Scheme membership
Section 70: Participation in Scheme
133.Section 70 substitutes a new section 45 (Participation in Scheme) into the PVG Act. The new section 45(1) provides that an individual aged 16 or over may apply to participate in the PVG Scheme (the “Scheme”), or if already a scheme member apply to renew their membership. This is read with section 45(2) which sets out the type of regulated roles in relation to which an individual can participate in the Scheme i.e. individuals may participate in the Scheme in relation to regulated roles with children, regulated roles with adults, or both types of regulated role. The new section 45(3) states that Ministers must allow membership unless the person is under the age of 16, or barred from carrying out the type of regulated role to which their application to join, or renew their membership of, the Scheme relates.
134.For the avoidance of doubt, while individuals under the age of 16 years cannot participate in the PVG Scheme, they can still carry out activities that would amount to a regulated role if they were aged 16 or over. As set out below (see paragraph 144), the offence provisions for individuals, organisations and personnel suppliers do not apply in relation to individuals under the age of 16 years. This means that individuals under the age of 16 are not within scope of the mandatory scheme. It would be at the discretion of an employing organisation to assess what activities may be appropriate for a person under 16 and to put in place any suitable safeguarding measures both for the individual undertaking the role and any children or protected adults they were working with.
Section 71: Duration of Scheme membership
135.Section 71 inserts a new section 45A (Duration of Scheme membership) into the PVG Act. Section 45A(1) sets the length of PVG scheme membership at five years. Section 45A(3)(a) requires Ministers to contact the persons mentioned in subsection (4) (namely, the scheme member and each organisation, personnel supplier and relevant regulatory body for which they know the scheme member is carrying out a regulated role) three months before membership is due to expire to alert them that expiry is approaching. Section 45A(3)(b) allows Ministers to notify a person other than an organisation (for example, an individual employing a personal carer through self-directed support) that expiry is approaching.
136.Section 45A(5) and (6) work together to ensure that information about a scheme member who participates in the Scheme for both types of regulated roles but notice of expiry relates to only one of those types of regulated role. In that case, the notice in relation to that type of regulated role to the organisation (see definition in section 97(1) of the PVG Act), personnel supplier, relevant regulatory body or any other person for whom the scheme member is doing a regulated role must not disclose information about the scheme member’s participation in the Scheme in relation to that other type of regulated role (or the fact that the scheme member participates in the Scheme in relation to that other type of regulated role).
137.In cases where a scheme member has applied for renewal of membership before the date of expiry, and where Ministers have not determined the application, then membership must continue until Ministers’ determination of the renewal application occurs (see subsection (7)).
Section 72: Failure to apply for renewal of Scheme membership
138.Section 72 inserts a new section 45B (Failure to apply for renewal of Scheme membership) into the PVG Act. This section sets out the rules around what happens when a scheme member fails to apply to renew membership before the expiry date. Ministers cannot end scheme membership unless they are satisfied that the scheme member is no longer carrying out a regulated role. So membership is extended by 4 weeks, referred to as the “extended membership period”, to enable Ministers to satisfy themselves of that fact (see subsection (2)).
139.If Ministers cannot be so satisfied before the extended membership period lapses, they may extend membership for six months – referred to as the “discretionary membership period” (see subsection (3)(b)). Where Ministers do this, they must notify the scheme member and any organisation, personnel supplier or relevant regulatory body for whom they know the scheme member is carrying out a regulated role. They may also notify a person other than an organisation for whom a scheme member is carrying out a regulated role. If during that discretionary membership period the scheme member does not apply to renew their membership and Ministers are satisfied that the scheme member is no longer carrying out a regulated role then the individual can be removed from the Scheme (see subsection (6)).
140.If the scheme member does not apply to renew their membership of the scheme and Ministers believe that the scheme member is still carrying out a regulated role they must place the individual under consideration for listing in the children’s list or the adults’ list (or both) if they consider that it may be appropriate for the scheme member to be included in that list, regardless of the type of regulated role for which they participate in the Scheme (see subsections (7) and (8)).
141.Where an application is made by a scheme member to renew their membership to continue to participate in the Scheme during either the extended or discretionary membership period, Ministers must allow ongoing participation in the Scheme until the application is determined by them. Ministers can refuse to consider an application by an individual for a Level 2 disclosure (or a confirmation of scheme membership under section 54 of the PVG Act) that is made by the scheme member during any discretionary membership period (see subsection (11)). It is intended that this will encourage individuals who require to remain in the Scheme to do so by renewing their membership at the appropriate time. An application for a Level 2 disclosure made by a scheme member during the discretionary membership period may be disregarded in which case the individual would not be able to share a Level 2 disclosure or confirmation of their membership with, for example, an employer. This could prevent them from performing or continuing to perform a regulated role.
Section 73: Compulsory Scheme membership
142.Section 73 inserts five new sections: sections 45C, 45D, 45E, 45F and 45G into the PVG Act. The new section 45C (Individuals must be scheme members to carry out regulated roles) makes it an offence under subsection (1) for an individual to carry out, or agree to carry out, a regulated role if not a scheme member. Subsection (2) makes it clear, in relation to an offence under subsection (1), that an individual is not deemed to have agreed to carry out a regulated role if that agreement is subject to the individual joining the PVG Scheme for that type of role. It is a defence if the person did not know they were carrying out a regulated role, or if they did not know that their membership had not been renewed. The offence does not apply to any individual who is barred from the type of regulated role in question (although the offence under section 34 of the PVG Act may be triggered), or who is under the age of 16 years of age.
143.The offence also does not apply in relation to any individual who is barred from the type of regulated role in question (although section 35 of the PVG Act may apply), or who is under the age of 16 years of age (see paragraph 134 of these notes).
144.The new section 45D (Organisations not to use individuals for regulated roles without confirming scheme membership) makes it an offence for an organisation to offer a regulated role to a person unless the organisation has first had PVG scheme membership confirmed by Disclosure Scotland issuing a Level 2 disclosure to them. It is a defence if the organisation can prove that it did not know, and could not by expected to have known, that the person was not a scheme member. An organisation which had offered a role conditional on receipt of a disclosure does not commit an offence. The offence also does not apply in relation to any individual who is barred from the type of regulated role in question (although section 35 of the PVG Act may apply), or who is under the age of 16 years of age.
145.The new section 45E (Power to require organisations to stop using individuals for regulated roles without scheme membership) makes it an offence for an organisation to fail to comply with regulations made under subsection (1). Subsection (1) provides the Scottish Ministers with a regulation making power (subject to the affirmative procedure by virtue of the amendment in section 73(3)) to prohibit organisations from permitting an individual to carry out a regulated role or to require organisations to remove an individual from a regulated role where the individual is not a scheme member. This is to address behaviour by organisations continuing to employ someone to carry out a regulated role where that person is not or is no longer a scheme member. Regulations may impose prohibitions or requirements in relation to particular types of organisations or in relation to particular kinds of regulated roles.
146.Section 45E ensures there is an ongoing impetus on organisations to check whether their employees remain scheme members. It does so by ensuring that there is a consequence for an organisation that does nothing following receipt of a notification under the new section 45B stating that a scheme member’s membership has lapsed. Under subsection (4) it is a defence for an organisation charged with an offence under subsection (3) to prove that it did not know, and could not reasonably be expected to have known, that the individual was not a scheme member.
147.Section 45F (Personnel suppliers not to supply individuals for regulated roles without confirming scheme membership) makes provision, in relation to personnel suppliers offering an individual to carry out a regulated role for an organisation. A personnel supplier commits an offence by offering or supplying a person for a regulated role in an organisation unless the personnel supplier has first had PVG scheme membership confirmed by Disclosure Scotland issuing a Level 2 disclosure to them. The offence does not apply in relation to any individual who is barred from the type of regulated role in question (but see section 36 of the PVG Act), or who is under the age of 16 years.
148.The new section 45G (Penalties for offences relating to regulated roles by individuals not in Scheme) sets out the penalties for the offences introduced by sections 45C, 45D, 45E and 45F.
