General
Section 60: Form and manner of applications and notices
122.Section 60 allows Ministers to determine the form and manner of applications (which includes any documents accompanying the request or application). This includes a determination for applications to be made electronically. Ministers must allow applications to be made in printed or written form, except when an accredited body makes the application for a Level 1 disclosure on behalf of an individual (using the process in section 3). For Level 1 disclosure applications made on behalf of an individual, Ministers can determine how to evidence the individual’s consent. Ministers can make different determinations for different purposes. They must publish them in such manner as they see fit. Ministers need not deal with an application unless it is made in accordance with the appropriate determination. The section also allows Ministers to make similar provision in relation to the giving of notices or notifications.
Section 61: Fees
123.This section allows Ministers, by regulations subject to the negative procedure, to prescribe fees for the exercise of their functions under Part 1. For example, fees may be imposed by regulations in connection with applications relating to accredited bodies, disclosure products, disclosure requests, and related applications (such as for removal of a conviction). The regulation-making powers allow for different fees, including annual or recurring fees, to be prescribed for different purposes, and for the reduction, refund or waiver of the prescribed fee in prescribed circumstances (see subsection (3)). Ministers need not consider any application unless the fee that is provided for by regulations in relation to the application is paid in the manner provided for in the regulations (see subsection (5)).
Section 62: Fees for provision of information by the chief constable
124.Section 62 requires Ministers to pay the Scottish Police Authority an appropriate fee for information received from the chief constable of the Police Service of Scotland (see definition of “chief constable” in section 69) in connection with Ministers’ functions under Part 1 of the Act.
Section 63: Guidance for chief constable
125.This section allows Ministers to issue guidance to the chief constable of the Police Service of Scotland about the chief constable’s functions under Part 1 of the Act (see section 89 for guidance with regard to the chief constable’s functions under the PVG Act). Guidance can only be issued after Ministers have consulted the chief constable. The guidance can be reviewed as necessary. Guidance must include provision for any review process under section 23 and the chief constable must have regard to the guidance when exercising any functions under Part 1 of the Act (including where any review is being carried out).
Section 64: Sharing of information with the chief constable
126.Section 64 gives Ministers a power to share information with the chief constable of the Police Service of Scotland. It applies to information held in connection with Ministers’ functions under this Part of the Act, but all that may be shared is the name, address and date of birth of an individual, and other information to enable the Police Service of Scotland to satisfy itself of a person’s identity. When Ministers disclose information to the chief constable it is to be used only by constables of the Police Service of Scotland in connection with the chief constable’s functions under Part 1 of the Act, or for law enforcement purposes as defined in section 31 of the Data Protection Act 2018.
127.This power may, for example, be exercised by the Scottish Ministers when as a result of searching central records in connection with an application made for a disclosure, it appears that Ministers hold a more current residential address than that in central records for an applicant who is wanted by the police in relation to an arrest warrant.
Section 65: Sources of information
128.Ministers are entitled to access information held in central records (as defined by section 69) to assist with Ministers’ functions. Ministers can also require certain persons to provide them with information which they believe the person holds and which they consider necessary to carry out their functions under this Part of the Act, for example gathering information to enable them to make a determination under section 13. The chief constable cannot provide information if disclosing it would be contrary to the interests of the prevention or detection of crime. Ministers cannot be held liable for any inaccuracy in information provided to them under Part 1 of the Act by a third party.
Section 66: Delegation of functions of Scottish Ministers
129.Section 66 allows Ministers to delegate their functions under the Act, except functions which involve making regulations, issuing and revising guidance to the chief constable, publishing the code of practice under section 55 and laying it in the Scottish Parliament, determining the form and manner of applications and disclosures under this Part of the Act, and setting fees. A delegation may be revoked or varied at any time. Subsection (4) protects a person to whom a function is delegated from proceedings in cases where inaccurate information is provided to that person by another party who provides information to Ministers under Part 1 of the Act.
Section 67: Saving: disclosure of information and records
130.Section 67 prevents the state disclosure system from prejudicing any other power which exists elsewhere to disclose information or make records available. For instance, the Act does not affect the police’s common law powers to make a community disclosure to a parent, carer or guardian of a child who is requesting information about someone involved in their family life, specifically if they are concerned that the person might be a child sexual offender.(7)
Section 68: Definition of consideration of suitability
131.This section replicates the effect of section 73 of the PVG Act. It explains what is meant by references to consideration of the suitability of a person for a type of regulated role for the purpose of provisions relating to Level 2 disclosures for PVG scheme members (see sections 17(1)(b) and 44(2)). It captures people appointing someone to a regulated role directly (including private individuals employing someone in their personal capacity) and people supplying an individual to someone else to carry out a regulated role. In circumstances where a private individual has used an accredited body to act as countersignatory for the application (see paragraph 118 of these notes), it is still the employer who is assessing the individual’s suitability for the role, acting on the advice as to suitability provided by the accredited body. There is also a power under paragraph (c) to prescribe other purposes.
Section 69: Interpretation of Part 1
132.Section 69 provides the meanings for certain words and phrases used in Part 1 of the Act
