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Disclosure (Scotland) Act 2020

Scheme members under consideration for listing

Section 76: Conditions imposed on scheme members under consideration for listing

157.Section 76 inserts three new sections into the PVG Act. The sections relate to Ministers’ new powers to impose conditions on a person who is under consideration for listing. New section 13A (Conditions imposed on scheme members under consideration for listing) contains powers for Ministers to impose prescribed conditions on scheme members who are under consideration for listing. The conditions are to be prescribed in regulations subject to the negative procedure in the Scottish Parliament. Ministers will also be able to use their powers under section 42(1)(c) of the PVG Act to make further procedure about the procedure which is to be followed before making a decision to impose conditions on a scheme member who is under consideration for listing.

158.The conditions that Ministers impose can be based only on the information that led them to place the scheme member under consideration for listing, information gathered under section 18 to 20 of the PVG Act, or information gathered while performing their functions relating to the PVG Scheme.

159.Any conditions imposed last for an initial period to be prescribed by regulations subject to the negative procedure to be made by Ministers. They can be extended beyond that period subject to confirmation by a sheriff on application by Ministers under section 13B. The conditions will lapse at the end of the initial period prescribed by regulations unless they are confirmed by a sheriff.

160.Section 13A(5) requires Ministers to notify the persons listed in subsection (6) of the fact that conditions have been imposed, and what those conditions are. Ministers must inform the scheme member only of the reasons why the conditions are being imposed.

161.The new section 13B (Application to sheriff for confirmation of conditions) allows Ministers to apply to a sheriff to have conditions imposed by them approved by a sheriff. The scheme member on whom conditions have been imposed is entitled to be a party to proceedings before the sheriff (subsection (8)). An application must be made before the prescribed period under section 13A(4) expires. In cases where the application is made, the prescribed period extends until the sheriff determines the application (see new section 13B(3)). The application is to be made when it is lodged with the sheriff clerk (see subsection (10)). A sheriff can hear the application in private (see subsection (11)).

162.Subsections (4) to (7) specify the decisions that a sheriff may make on an application; that any variation of a condition or imposition of a new condition cannot go beyond what Ministers could have imposed under section 13A; that if the sheriff approves the application (with or without variation, or imposition of a new condition) the conditions will remain in place while Ministers are considering whether to list the scheme member in the adults’ list or the children’s list (as they case may be); and, where the sheriff removes that condition imposed by Ministers, that removal takes effect from the date of the sheriff’s decision. The persons to be notified of a sheriff’s decision are set out in subsection (9), and they are the same persons as were notified under section 13A(6).

163.The new section 13C (Breach of conditions: offences) makes it an offence for a scheme member to fail to comply with a condition imposed. It is also an offence for a person mentioned in subsection (3), namely an organisation or personnel supplier employing or supplying the scheme member in a regulated role, to fail to take action to prevent a condition imposed being adhered to. It is a defence for a scheme member or any employer or personnel supplier that they did not know, and could not reasonably be expected to have known, that a condition was imposed. The penalties for the offences are set out in subsection (5).

Section 77: Notice of consideration for listing

164.Section 77 amends section 30 of the PVG Act relating to notice of listing. Subsection (2) extends Ministers’ notification duty under section 30(3) of the PVG Act to personnel suppliers. Subsection (3) inserts new subsections (3A), (3B) and (3C) into section 30. Together, subsections (3A) and (3B) give Ministers a discretionary power to notify an individual who employs other persons but not in the course of business, for example a parent who is employing a music tutor to give their child piano lessons or an individual employing a carer within the context of self-directed care, that a scheme member is being considered for listing, and where appropriate give notice of any conditions imposed on the individual. Subsection (3C) allows Ministers to notify such persons of the outcome of the consideration for listing process.

Section 78: Withdrawal from Scheme when under consideration for listing

165.Section 78(2) inserts a new section 59A (Withdrawal from Scheme when under consideration for listing) into the PVG Act. This new section is contingent on Ministers having removed an individual from the PVG Scheme under section 59 of the PVG Act (where the scheme member has applied to be removed from the register and Ministers are satisfied that the scheme member is not carrying out a regulated role), and the removal occurring while the individual was under consideration for listing in the children’s list or the adults’ list or both. Ministers can decide whether to continue with the consideration case after removal takes place. A decision under section 59A(2) does not amount to a decision not to list the individual for the purpose of the notification provisions under section 30(3C) or (4) of the PVG Act,

166.Subsection (3) amends section 60 of the PVG Act to require that a notice under section 60(1), advising of removal from the Scheme, must give information about any decision under section 59A(2) where appropriate.

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