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Disclosure (Scotland) Act 2020

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Disclosure (Scotland) Act 2020

2020 asp 13

The Bill for this Act of the Scottish Parliament was passed by the Parliament on 10th June 2020 and received Royal Assent on 14th July 2020

An Act of the Scottish Parliament to restate and amend the law relating to the disclosure of criminal history and other information by the Scottish Ministers; to make amendments to the Protection of Vulnerable Groups (Scotland) Act 2007; and for connected purposes.

PART 1 SDisclosure of criminal history and other information

Level 1 disclosuresS

1Level 1 disclosureS

In this Part, a “Level 1 disclosure”, in relation to an individual, is a certificate—

(a)containing the prescribed details of every unspent conviction (including an unspent childhood conviction) of the individual that is recorded in central records or, if there are no such convictions, stating that fact, and

(b)if the individual is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003, stating that fact.

2Provision of Level 1 disclosuresS

(1)The Scottish Ministers must provide a Level 1 disclosure to an individual who—

(a)is 16 years of age or older, and

(b)makes an application.

(2)The Scottish Ministers may provide a Level 1 disclosure to an individual who—

(a)is 12 years of age or older but under 16 years of age, and

(b)makes an application,

if it appears to them from the information contained in the application that it is appropriate in the circumstances to provide the disclosure.

(3)The Scottish Ministers may refuse to provide a Level 1 disclosure to an individual under subsection (1) if it appears to them from the information contained in the application that the information that would be contained in the disclosure could more appropriately be obtained from another person.

(4)A Level 1 disclosure provided under subsection (1) or (2) may relate only to the applicant.

3Applications by accredited bodies on behalf of individualsS

(1)An accredited body may make an application under section 2 on behalf of an individual.

(2)An application by an accredited body on behalf of an individual may be made only with the consent of the individual.

(3)The Scottish Ministers must not consider any such application that does not comply with subsection (2).

(4)Where an application under section 2 is made by an accredited body on behalf of an individual, the individual is to be treated for the purposes of this Part as the applicant and, accordingly, any Level 1 disclosure provided as a result of the application is to be provided to the individual.

(5)Subsection (4) is subject to section 4.

(6)The Scottish Ministers may refuse to provide a Level 1 disclosure to an individual under section 2(1) where—

(a)the application for the disclosure is made on behalf of the individual by an accredited body, and

(b)the Scottish Ministers consider that the accredited body or its lead signatory or countersignatory has failed to comply with the code of practice published under section 55.

4Provision of Level 1 disclosure to third partiesS

(1)Where a Level 1 disclosure is provided to an applicant by using electronic communications, the applicant may, within the prescribed period, either—

(a)request that the Scottish Ministers arrange for the disclosure to be made available by electronic communications to such other person or persons as the applicant may specify, or

(b)notify the Scottish Ministers that the applicant intends to make a Level 1 review application under section 5 in relation to the disclosure.

(2)If the applicant makes a request under subsection (1)(a), the Scottish Ministers must comply with the request.

(3)Where notification has been given under subsection (1)(b), the notification is to be treated as withdrawn if, before the end of the prescribed period, the applicant makes a request under subsection (1)(a).

(4)If no request or notification is made or given under subsection (1) within the prescribed period, at the end of that period the disclosure lapses and nothing further may be done in relation to it.

(5)Subsection (4) does not prevent the applicant subsequently making another application for a Level 1 disclosure.

(6)Otherwise, the Scottish Ministers must not make the disclosure available to any other person.

Level 1 disclosures: review applicationsS

5Level 1 disclosure: application for reviewS

(1)Where a Level 1 disclosure is provided to an applicant, the applicant may, within the prescribed period, apply to the Scottish Ministers for a review of the accuracy of any of the information contained in the disclosure.

(2)Where a Level 1 disclosure is provided to an applicant by using electronic communications, an application may be made under subsection (1) only if the applicant has notified the Scottish Ministers under section 4(1)(b) of an intention to make the application.

(3)An application under subsection (1) is referred to in this Part as a “Level 1 review application”.

6Review of accuracy of information by the Scottish MinistersS

(1)This section applies where a Level 1 review application is made in relation to a Level 1 disclosure provided to an applicant.

(2)The Scottish Ministers must carry out a review of the accuracy of the information contained in the Level 1 disclosure.

(3)In the review the Scottish Ministers must decide whether the information is accurate.

(4)The Scottish Ministers must notify the applicant of their decision.

7Provision of new Level 1 disclosure on conclusion of review proceedingsS

(1)This section applies where—

(a)a Level 1 review application is made in relation to a Level 1 disclosure provided to an applicant, and

(b)the Scottish Ministers have made a decision under section 6(3) in relation to the application.

(2)The Scottish Ministers must provide the applicant with a new Level 1 disclosure as if the applicant had made an application for the disclosure under section 2 on the date on which the Scottish Ministers made the decision under section 6(3).

(3)If the effect of the Scottish Ministers' decision under section 6(3) is, in relation to any of the information contained in the Level 1 disclosure that was subject to a review as to its accuracy, that the information is inaccurate, the Scottish Ministers must ensure that the new Level 1 disclosure contains corrected information.

Level 2 disclosuresS

8Level 2 disclosureS

(1)In this Part, a “Level 2 disclosure”, in relation to an individual, is a certificate—

(a)containing the prescribed details of every criminal disposal incurred by the individual that is recorded in central records or, if there are no such disposals, stating that fact,

(b)containing information about any spent childhood convictions and children's hearing outcomes of the individual that is to be included under section 13 or, if there is no such information, stating that fact,

(c)containing any information relating to the individual provided by the chief constable in accordance with section 14 or, if no such information has been provided, stating that fact,

(d)containing information relating to the individual provided by the chief officer of a relevant overseas police force that may be included in the disclosure in accordance with section 15 or, if no such information has been provided, stating that fact,

(e)if the individual is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003, stating that fact,

(f)if section 16 applies, containing any further information under that section relating to the individual, and

(g)if section 17 applies, containing any further information under that section relating to the individual.

(2)But a Level 2 disclosure in relation to an individual must not contain any details or information if—

(a)the details or information were excluded from another Level 2 disclosure under section 31(4) following a Level 2 review application in respect of that other Level 2 disclosure, and

(b)it appears to the Scottish Ministers that the purpose of the disclosure is the same as the purpose of that other Level 2 disclosure.

(3)In subsection (1), “criminal disposal”—

(a)means—

(i)a conviction (other than a childhood conviction), whether spent or unspent,

(ii)an unspent childhood conviction,

(iii)an unspent caution (other than a childhood caution), but

(b)does not include a non-disclosable conviction.

9Non-disclosable convictionsS

(1)For the purposes of this Part, a conviction of an individual is a non-disclosable conviction if—

(a)it is a spent conviction, and

(b)either—

(i)it is not a conviction for an offence listed in schedule 1 (a “List A offence”) or schedule 2 (a “List B offence”), or

(ii)it is a conviction for a List B offence and at least one of the conditions in subsection (2) is satisfied.

(2)The conditions are—

(a)the disposal in respect of the conviction was an admonition or an absolute discharge,

(b)the conviction is a childhood conviction and at least 5 years and 6 months have passed since the date of the conviction,

(c)the conviction is not a childhood conviction and at least 11 years have passed since the date of the conviction.

(3)The Scottish Ministers may by regulations modify schedule 1 or 2.

10Non-disclosable children's hearing outcomesS

(1)For the purposes of this Part, a children's hearing outcome of an individual is a non-disclosable children's hearing outcome if—

(a)the offence which led to the children's hearing outcome is not a List A offence or a List B offence, or

(b)the offence which led to the children's hearing outcome is a List B offence and either of the conditions in subsection (2) is satisfied.

(2)The conditions are—

(a)the referral to the children's hearing which led to the children's hearing outcome was discharged under—

(i)section 69(1)(b) and (12) of the Children (Scotland) Act 1995, or

(ii)section 91(3)(b), 93(2)(b), 108(3)(b) or 119(3)(b) of the Children's Hearings (Scotland) Act 2011,

(as the case may be),

(b)at least 5 years and 6 months have passed since the date of the children's hearing outcome.

11Provision of Level 2 disclosuresS

(1)The Scottish Ministers must provide a Level 2 disclosure to an individual who—

(a)is 16 years of age or older, and

(b)makes an application that complies with section 12.

(2)The Scottish Ministers may provide a Level 2 disclosure to an individual who—

(a)is 12 years of age or older but under 16 years of age, and

(b)makes an application that complies with section 12,

if it appears to them from the information contained in the application that it is appropriate in the circumstances to provide the disclosure.

(3)The Scottish Ministers may refuse to provide a Level 2 disclosure to an individual under subsection (1) where they consider a person mentioned in subsection (4) has failed to comply with the code of practice published under section 55.

(4)The persons are—

(a)the accredited body countersigning the application for the disclosure,

(b)the lead signatory of the accredited body,

(c)a countersignatory of the accredited body,

(d)a person mentioned in section 56(1)(b)(i) at whose request the accredited body countersigned the application for the disclosure.

(5)A Level 2 disclosure provided under subsection (1) or (2) may relate only to the applicant.

12Level 2 disclosure applications: countersigning and purposesS

(1)An application for a Level 2 disclosure under section 11 must—

(a)be countersigned by an accredited body, and

(b)include a statement by the accredited body of the purpose for which the disclosure is required.

(2)The purpose stated in the application in accordance with subsection (1)(b) must be a purpose for which the application of section 4(2)(a) or (b) of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation) is excluded by virtue of an order made by the Scottish Ministers under section 4(4) of that Act.

(3)In this Part, references to the purpose of a Level 2 disclosure are references to the purpose stated in the application for the disclosure in accordance with subsection (1)(b).

13Childhood informationS

(1)Before providing a Level 2 disclosure to an applicant, the Scottish Ministers must—

(a)ascertain whether there is any spent childhood conviction of the applicant that is recorded in central records and that is not a non-disclosable conviction,

(b)ascertain whether there is any children's hearing outcome of the applicant that is recorded in central records and that is not a non-disclosable children's hearing outcome, and

(c)if there is such a childhood conviction or children's hearing outcome, determine—

(i)whether the conviction or outcome is relevant for the purpose of the disclosure, and

(ii)whether information about the conviction or outcome ought to be included in the disclosure.

(2)Where the Scottish Ministers determine that a spent childhood conviction or children's hearing outcome of the applicant is relevant for the purpose of the disclosure and that information about the conviction or outcome ought to be included in the disclosure, they must include in the disclosure such information about the conviction or outcome as they consider appropriate in such form as they consider appropriate.

(3)On providing a Level 2 disclosure to an applicant that contains information under this section about a spent childhood conviction or children's hearing outcome of the applicant, the Scottish Ministers must notify the applicant of—

(a)the reasons for their determination that—

(i)the conviction or outcome is relevant for the purpose of the disclosure, and

(ii)information about the conviction or outcome ought to be included in the disclosure, and

(b)the right to make a Level 2 review application under section 20 for a review of the inclusion of the information.

14Provision of relevant Scottish police informationS

(1)Before providing a Level 2 disclosure to an applicant, the Scottish Ministers must request the chief constable to provide any information relating to the applicant which—

(a)the chief constable reasonably believes to be relevant for the purpose of the disclosure, and

(b)in the chief constable's opinion ought to be included in the disclosure.

(2)The chief constable must comply with any request made under subsection (1) as soon as practicable after receiving it.

(3)The chief constable must not provide information by virtue of a request under subsection (1) if the chief constable thinks that disclosing the information would be contrary to the interests of the prevention or detection of crime.

(4)For the avoidance of doubt, information mentioned in subsection (1) may include information with respect to relevant behaviour within the meaning of section 5(1)(a) of the Age of Criminal Responsibility (Scotland) Act 2019.

(5)However, the chief constable may provide information mentioned in subsection (1) relating to a time when the applicant was under 12 years of age only where—

(a)the independent reviewer determines, on a review under section 18 of the Age of Criminal Responsibility (Scotland) Act 2019, that the information ought to be included in the Level 2 disclosure and—

(i)no appeal under section 20 of that Act is taken, or

(ii)such an appeal having been taken, the sheriff confirms the determination under section 20(3)(a) of that Act, or

(b)the sheriff, on an appeal under section 20 of that Act, determines under subsection (3)(b) of that section that the information ought to be included in the Level 2 disclosure.

15Provision of relevant overseas police informationS

(1)Before providing a Level 2 disclosure to an applicant, the Scottish Ministers must request the chief officer of every relevant overseas police force to provide—

(a)any information relating to the applicant which—

(i)the chief officer reasonably believes to be relevant for the purpose of the disclosure, and

(ii)in the chief officer's opinion ought to be included in the disclosure, and

(b)a statement of the chief officer's reasons for—

(i)the chief officer's belief that the information is relevant for the purpose of the disclosure, and

(ii)the chief officer's opinion that the information ought to be included in the disclosure.

(2)Where information is received by the Scottish Ministers from the chief officer of a relevant overseas police force in response to a request under subsection (1), the Scottish Ministers must arrange for the independent reviewer to carry out a review of the information.

(3)In the review the independent reviewer must decide—

(a)whether the information is relevant for the purpose of the disclosure, and

(b)whether the information ought to be included in the disclosure.

(4)The Scottish Ministers may include the information in a Level 2 disclosure only if the effect of the final outcome of proceedings in the review carried out by the independent reviewer (including any appeal against the independent reviewer's decision by virtue of regulations under subsection (5)) is that the information—

(a)is relevant for the purpose of the disclosure, and

(b)ought to be included in the disclosure.

(5)The Scottish Ministers may by regulations make further provision in connection with the carrying out of a review by the independent reviewer under this section including, in particular, provision for or about—

(a)the provision of information to the independent reviewer for the purpose of a review (including the conferral of powers on the independent reviewer to require the provision of information),

(b)giving the applicant an opportunity to make representations,

(c)notification of the independent reviewer's decision in a review,

(d)an appeal to a sheriff on a point of law against the independent reviewer's decision,

(e)what constitutes the final outcome of proceedings for the purposes of subsection (4).

(6)In this section—

  • chief officer”, in relation to an overseas police force, means the person responsible for the direction of the overseas police force,

  • overseas police force” means—

    (a)

    the States of Jersey Police Force,

    (b)

    the salaried police force of the Island of Guernsey,

    (c)

    the Isle of Man Constabulary,

    (d)

    a body with functions in any country or territory outside the United Kingdom, the Channel Islands and the Isle of Man that correspond to those of a police force in any part of the United Kingdom,

  • relevant overseas police force” means such overseas police force as may be prescribed.

16Further information for certain purposes: non-PVG scheme membersS

(1)This section applies where—

(a)the individual applying for a Level 2 disclosure does not participate in the PVG Scheme, and

(b)the purpose of the disclosure is a prescribed purpose.

(2)Regulations under subsection (1)(b) may prescribe—

(a)purposes relating to children, and

(b)purposes relating to adults.

(3)The disclosure must also contain any further information under this section relating to the applicant, as well as the information mentioned in section 8(1)(a) to (e).

(4)Further information under this section is—

(a)where the purpose of the disclosure is one relating to children—

(i)a statement of whether the applicant is barred from regulated roles with children,

(ii)if the applicant is barred from such roles, the prescribed details of the circumstances in which the applicant became barred,

(iii)a statement of whether the Scottish Ministers are considering whether to list the applicant in the children's list,

(iv)if the Scottish Ministers are considering whether to list the applicant in the children's list, details of any conditions that the Scottish Ministers have imposed under section 13A(1) of the PVG Act or, if no such conditions have been imposed, a statement of that fact,

(v)the prescribed details of every prescribed civil court order in effect in respect of the applicant or a statement that no such order is in effect,

(b)where the purpose of the disclosure is one relating to adults—

(i)a statement of whether the applicant is barred from regulated roles with adults,

(ii)if the applicant is barred from such roles, the prescribed details of the circumstances in which the applicant became barred,

(iii)a statement of whether the Scottish Ministers are considering whether to list the applicant in the adults' list,

(iv)if the Scottish Ministers are considering whether to list the applicant in the adults' list, details of any conditions that the Scottish Ministers have imposed under section 13A(1) of the PVG Act or, if no such conditions have been imposed, a statement of that fact,

(v)the prescribed details of every prescribed civil court order in effect in respect of the applicant or a statement that no such order is in effect.

17Further information for certain purposes: PVG scheme membersS

(1)This section applies where—

(a)the individual applying for a Level 2 disclosure participates in the PVG Scheme, and

(b)the purpose of the disclosure is to enable or assist a person (or any other person for whom the person acts) to consider the applicant's suitability to carry out, or to be offered or supplied for, a type of regulated role.

(2)The disclosure must also contain any further information under this section relating to the applicant, as well as the information mentioned in section 8(1)(a) to (e).

(3)Further information under this section is—

(a)a statement confirming that the applicant participates in the PVG Scheme in relation to the type of regulated role to which the purpose of the disclosure relates,

(b)a statement of whether the Scottish Ministers are considering whether to list the applicant in the relevant list,

(c)if the Scottish Ministers are considering whether to list the applicant in the relevant list, details of any conditions that the Scottish Ministers have imposed under section 13A(1) of the PVG Act or, if no such conditions have been imposed, a statement of that fact, and

(d)the prescribed details of every prescribed civil court order in effect in respect of the applicant or a statement that no such order is in effect.

(4)Subsection (5) applies where—

(a)an individual applying for a Level 2 disclosure participates in the PVG Scheme in relation to both types of regulated role, and

(b)the purpose of the disclosure relates to only one of the types of regulated role.

(5)Where this subsection applies, the Level 2 disclosure must not disclose information that appears in the applicant's scheme record only because the applicant participates in the PVG Scheme in relation to the other type of regulated role.

(6)In this section, “the relevant list” means—

(a)where the type of regulated role to which the purpose of the disclosure relates is a regulated role with children, the children's list,

(b)where the type of regulated role to which the purpose of the disclosure relates is a regulated role with adults, the adults' list.

18Provision of Level 2 disclosure to accredited bodiesS

(1)Where a Level 2 disclosure is provided to an applicant, the applicant may, within the prescribed period, either—

(a)request that the Scottish Ministers arrange for the disclosure to be made available to the accredited body that countersigned the applicant's application, or

(b)notify the Scottish Ministers that the applicant intends to make a Level 2 review application under section 20 in relation to the disclosure.

(2)If the applicant makes a request under subsection (1)(a), the Scottish Ministers must comply with the request.

(3)Where notification has been given under subsection (1)(b), the notification is to be treated as withdrawn if, before the end of the prescribed period, the applicant makes a request under subsection (1)(a).

(4)If no request or notification is made or given under subsection (1) within the prescribed period, at the end of that period the disclosure lapses and nothing further may be done in relation to it.

(5)Subsection (4) does not prevent the applicant subsequently making another application for a Level 2 disclosure for the same purpose.

(6)Otherwise, the Scottish Ministers must not make the disclosure available to the accredited body or any other person.

19Crown employmentS

(1)This section applies to an application under section 11 for a Level 2 disclosure if the application is accompanied by a statement by a person mentioned in subsection (3) stating—

(a)the purpose for which the disclosure is required, and

(b)that it is required in the course of considering the applicant's suitability for an appointment by or under the Crown.

(2)The purpose stated in the statement in accordance with subsection (1)(a) must be a purpose for which the application of section 4(2)(a) or (b) of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation) is excluded by virtue of an order made by the Scottish Ministers under section 4(4) of that Act.

(3)Any of the following persons may make a statement for the purposes of subsection (1)—

(a)a Minister of the Crown,

(b)a member of the Scottish Government,

(c)any other office-holder in the Scottish Administration,

(d)a nominee of any person mentioned in paragraphs (a) to (c).

(4)The requirement in section 11(1)(b) or (2)(b) that the application comply with section 12 does not apply.

(5)Any reference in this Part to—

(a)the accredited body that countersigned an application for a Level 2 disclosure, or

(b)the accredited body to whom a Level 2 disclosure is made available,

is, in relation to an application to which this section applies or a Level 2 disclosure made available in pursuance of such an application, to be read as a reference to the person who made the statement for the purpose of subsection (1).

(6)Any reference in this Part to the purpose of the disclosure is, in relation to an application to which this section applies, to be taken to be a reference to the purpose mentioned in subsection (1)(a).

Level 2 disclosures: review applicationsS

20Level 2 disclosure: application for reviewS

(1)Where a Level 2 disclosure is provided to an applicant, the applicant may, within the prescribed period, apply to the Scottish Ministers for—

(a)a review of the accuracy of any of the information contained in the disclosure,

(b)if the disclosure includes reviewable information, a review of the inclusion of any of the reviewable information.

(2)The following information is “reviewable information” for the purposes of this Part—

(a)information included under section 13 about a spent childhood conviction or children's hearing outcome of the applicant,

(b)information relating to the applicant provided by the chief constable in accordance with section 14,

(c)details of a removable conviction of the applicant.

(3)An application may be made under subsection (1) only if the applicant notified the Scottish Ministers under section 18(1)(b) of an intention to make the application.

(4)Where an application under subsection (1) seeks a review of the inclusion of any reviewable information, the applicant must specify in the application the reviewable information that the applicant wishes to be subject to the review.

(5)An application under subsection (1) is referred to in this Part as a “Level 2 review application”.

(6)In this Part, a “removable conviction” is a conviction (other than a childhood conviction) that is—

(a)a spent conviction for a List A offence and at least 11 years have passed since the date of conviction,

(b)a spent conviction for a List B offence that is not a non-disclosable conviction.

21Review of accuracy of information by the Scottish MinistersS

(1)This section applies where—

(a)a Level 2 review application is made in relation to a Level 2 disclosure provided to an applicant, and

(b)the Level 2 review application seeks a review of the accuracy of any of the information contained in the Level 2 disclosure.

(2)The Scottish Ministers must carry out a review of the accuracy of the information contained in the Level 2 disclosure.

(3)In the review the Scottish Ministers must decide whether the information is accurate.

(4)The Scottish Ministers must notify the applicant of their decision.

(5)A review under subsection (2) in respect of any information contained in a Level 2 disclosure may not, in relation to that information, consider any question that could be the subject of a review under—

(a)section 22, 23 or 25, or

(b)section 18 of the Age of Criminal Responsibility (Scotland) Act 2019.

22Review of childhood information by the independent reviewerS

(1)This section applies where—

(a)a Level 2 review application is made in relation to a Level 2 disclosure provided to an applicant, and

(b)the Level 2 review application specifies information included in the disclosure under section 13 about a spent childhood conviction or children's hearing outcome of the applicant as information that the applicant wishes to be subject to the review.

(2)The Scottish Ministers must arrange for the independent reviewer to carry out a review of the information.

(3)In the review the independent reviewer must decide—

(a)whether the childhood conviction or children's hearing outcome is relevant for the purpose of the disclosure, and

(b)whether information about the conviction or outcome ought to be included in the disclosure.

(4)No finding of fact on which a childhood conviction or children's hearing outcome is based may be challenged in a review under this section.

23Review of relevant Scottish police information by the policeS

(1)This section applies where—

(a)a Level 2 review application is made in relation to a Level 2 disclosure provided to an applicant, and

(b)the Level 2 review application specifies information relating to the applicant provided by the chief constable in accordance with section 14 as information that the applicant wishes to be subject to the review.

(2)A review under this section may not consider any information contained in a Level 2 disclosure which was or could have been the subject of a review under section 18 of the Age of Criminal Responsibility (Scotland) Act 2019.

(3)The Scottish Ministers must arrange for the chief constable to carry out a review of the information.

(4)In the review the chief constable must decide—

(a)whether the chief constable still reasonably believes the information to be relevant for the purpose of the disclosure, and

(b)whether the chief constable is still of the opinion that the information ought to be included in the disclosure.

(5)In carrying out a review under this section, the chief constable must—

(a)by notice give the applicant an opportunity to make representations, and

(b)have regard to any representations made by the applicant.

(6)A notice under subsection (5)(a) must specify the time period within which the applicant may make representations.

(7)The chief constable must notify the Scottish Ministers of—

(a)the chief constable's decision under subsection (4), and

(b)the chief constable's reasons for the decision.

(8)The Scottish Ministers must notify the applicant of—

(a)the chief constable's decision,

(b)the chief constable's reasons for the decision, and

(c)if the chief constable notifies the Scottish Ministers that the chief constable—

(i)still reasonably believes the information to be relevant for the purpose of the disclosure, and

(ii)is still of the opinion that the information ought to be included in the disclosure,

the right to request a review by the independent reviewer under section 24 in relation to the information.

24Review of relevant Scottish police information by the independent reviewerS

(1)This section applies where—

(a)a Level 2 review application is made in relation to a Level 2 disclosure provided to an applicant,

(b)the Level 2 review application specifies information relating to the applicant provided by the chief constable in accordance with section 14 as information that the applicant wishes to be subject to the review, and

(c)following a review under section 23 in relation to the information, the Scottish Ministers have notified the applicant that the chief constable—

(i)still reasonably believes the information to be relevant for the purpose of the disclosure, and

(ii)is still of the opinion that the information ought to be included in the disclosure.

(2)The applicant may, within the prescribed period, request that the Scottish Ministers arrange for the independent reviewer to carry out a review of the information.

(3)On receipt of a request under subsection (2), the Scottish Ministers must arrange for the independent reviewer to carry out a review of the information.

(4)In the review the independent reviewer must decide—

(a)whether the information is relevant for the purpose of the disclosure, and

(b)whether the information ought to be included in the disclosure.

25Review of inclusion of removable convictions by the Scottish MinistersS

(1)This section applies where—

(a)a Level 2 review application is made in relation to a Level 2 disclosure provided to an applicant, and

(b)the Level 2 review application specifies details of a removable conviction included in the disclosure as information that the applicant wishes to be subject to the review.

(2)The Scottish Ministers must carry out a review of the inclusion of the removable conviction.

(3)In the review the Scottish Ministers must decide—

(a)whether the removable conviction is relevant for the purpose of the disclosure, and

(b)whether details of the removable conviction ought to be included in the disclosure.

(4)In carrying out a review under this section, the Scottish Ministers must by notice give the applicant an opportunity to make representations.

(5)A notice under subsection (4) must specify the period within which the applicant may make representations.

(6)In reaching a decision in the review, the Scottish Ministers must take account of—

(a)any representations received by virtue of subsection (4), and

(b)where they, by notice under section 65(2), require any person to provide them with information for the purpose of carrying out the review, any information received by virtue of the notice.

(7)No finding of fact on which a conviction is based may be challenged in a review under this section.

(8)The Scottish Ministers must notify the applicant of—

(a)their decision under subsection (3), and

(b)if they decide that the removable conviction is relevant for the purpose of the disclosure and that details of it ought to be included in the disclosure—

(i)the reasons for their decision, and

(ii)the right to request a review by the independent reviewer under section 26 in relation to the conviction.

26Review of inclusion of removable convictions by the independent reviewerS

(1)This section applies where—

(a)a Level 2 review application is made in relation to a Level 2 disclosure provided to an applicant,

(b)the Level 2 review application specifies details of a removable conviction included in the disclosure as information that the applicant wishes to be subject to the review, and

(c)following a review under section 25 in relation to the removable conviction, the Scottish Ministers have notified the applicant that they have decided that—

(i)the removable conviction is relevant for the purpose of the disclosure, and

(ii)details of it ought to be included in the disclosure.

(2)The applicant may, within the prescribed period, request that the Scottish Ministers arrange for the independent reviewer to carry out a review of the inclusion of the removable conviction.

(3)On receipt of a request under subsection (2), the Scottish Ministers must arrange for the independent reviewer to carry out a review of the inclusion of the removable conviction.

(4)In the review the independent reviewer must decide—

(a)whether the removable conviction is relevant for the purpose of the disclosure, and

(b)whether details of the removable conviction ought to be included in the disclosure.

(5)No finding of fact on which a conviction is based may be challenged in a review under this section.

27Combination of reviews by the independent reviewerS

(1)Subsection (2) applies where, in respect of the same Level 2 review application, a review is to be carried out by the independent reviewer under more than one of—

(a)section 22,

(b)section 24,

(c)section 26.

(2)The Scottish Ministers must arrange for the reviews to be carried out by the independent reviewer together as a single review.

(3)Subsection (4) applies where, in respect of the same Level 2 review application—

(a)a review is to be carried out by the independent reviewer under section 22, and

(b)a review (the “earlier review”) is to be carried out under (either or both)—

(i)section 23,

(ii)section 25.

(4)The Scottish Ministers must ensure that the review to be carried out by the independent reviewer is not started until—

(a)the outcome of the earlier review or reviews has been notified to the applicant, and

(b)the relevant period has expired.

(5)The relevant period is the period mentioned in whichever of the following applies—

(a)section 24(2),

(b)section 26(2).

(6)Where both of those sections apply and the periods mentioned in them do not expire at the same time, the relevant period is taken to expire when the later period expires.

28Independent reviewer: information and representationsS

(1)In carrying out a review under this Part in respect of a Level 2 review application, the independent reviewer—

(a)must by notice give the applicant an opportunity to make representations, and

(b)may by notice require any person mentioned in subsection (2) to provide the reviewer with information which the reviewer—

(i)believes the person holds, and

(ii)considers is necessary to carry out the review.

(2)The persons are—

(a)the applicant,

(b)the Scottish Ministers,

(c)the chief constable,

(d)the Scottish Courts and Tribunals Service,

(e)any other person the independent reviewer considers appropriate.

(3)Where the review includes a review under section 22 of information about a spent childhood conviction or children's hearing outcome of the applicant, the Scottish Ministers must provide to the independent reviewer a statement of their reasons for their determination—

(a)that the childhood conviction or children's hearing outcome is relevant for the purpose of the disclosure, and

(b)that information about the conviction or outcome of the applicant ought to be included in the disclosure.

(4)Where the review includes a review under section 24 of information relating to the applicant provided by the chief constable in accordance with section 14, the Scottish Ministers must provide to the independent reviewer the statement of the chief constable's reasons for the chief constable's decision following the review under section 23.

(5)Where the review includes a review under section 26 of the inclusion of a removable conviction of the applicant, the Scottish Ministers must provide to the independent reviewer a statement of their reasons for their decision following the review under section 25.

(6)A notice under subsection (1)(a) must specify the period within which the applicant may make representations.

(7)A notice under subsection (1)(b) must specify the information sought and the period within which it must be provided.

(8)The chief constable must not provide information by virtue of a notice under subsection (1)(b) if the chief constable thinks that disclosing the information would be contrary to the interests of the prevention or detection of crime.

(9)In carrying out the review, the independent reviewer must take account of any statement of reasons, representations or information received by virtue of subsection (1), (3), (4) or (5).

29Notification of independent reviewer's decisionS

(1)On concluding a review under this Part in respect of a Level 2 review application, the independent reviewer must notify the persons mentioned in subsection (2) of—

(a)the independent reviewer's decision, and

(b)the independent reviewer's reasons for it.

(2)The persons are—

(a)the applicant,

(b)the Scottish Ministers, and

(c)where the review included a review under section 24 of information relating to the applicant provided by the chief constable in accordance with section 14, the chief constable.

(3)In subsection (1)(a), the “independent reviewer's decision” includes—

(a)where the review included a review under section 22, the independent reviewer's decision under subsection (3) of that section,

(b)where the review included a review under section 24, the independent reviewer's decision under subsection (4) of that section,

(c)where the review included a review under section 26, the independent reviewer's decision under subsection (4) of that section.

30Appeal against independent reviewer's decisionS

(1)An appeal may be taken against the independent reviewer's decision in a review carried out by the independent reviewer under this Part in respect of a Level 2 review application.

(2)The appeal may be taken by—

(a)the applicant, or

(b)where the review included a review under section 24 of information relating to the applicant provided by the chief constable in accordance with section 14, the chief constable.

(3)The appeal is to be—

(a)to a sheriff, and

(b)on a point of law only.

(4)The appeal may be taken before the end of the period of 3 months beginning with the day on which the independent reviewer's decision was notified to the applicant under section 29.

(5)If, before the end of that period—

(a)the applicant notifies the Scottish Ministers that the applicant does not intend to take an appeal under this section, the applicant loses the right to take an appeal on the date on which the notification is given,

(b)the chief constable notifies the Scottish Ministers that the chief constable does not intend to take an appeal under this section, the chief constable loses the right to take an appeal on the date on which the notification is given.

(6)In an appeal under this section, the sheriff must—

(a)confirm the independent reviewer's decision, or

(b)quash the decision and substitute for it the sheriff's own decision.

(7)No finding of fact on which a conviction or children's hearing outcome is based may be challenged in an appeal under this section.

(8)Proceedings in an appeal under this section may take place in private if the sheriff considers it appropriate in all the circumstances.

(9)The sheriff may allow the appeal in part where it relates to—

(a)more than one decision, or

(b)information about two or more convictions.

(10)The decision of the sheriff in an appeal under this section is final.

(11)References in this section to the independent reviewer's decision are to be construed in accordance with section 29(3) and include any part of the decision.

31Provision of new Level 2 disclosure on conclusion of review proceedingsS

(1)This section applies where—

(a)a Level 2 review application is made in relation to a Level 2 disclosure provided to an applicant, and

(b)proceedings on the application have finally concluded.

(2)The Scottish Ministers must provide the applicant with a new Level 2 disclosure as if the applicant had made an application for the disclosure under section 11 on the date on which proceedings on the review application finally concluded.

(3)If the effect of the final outcome of the proceedings is, in relation to any of the information contained in the Level 2 disclosure that was subject to a review as to its accuracy, that the information is inaccurate, the Scottish Ministers must ensure that the new Level 2 disclosure contains corrected information.

(4)If the effect of the final outcome of the proceedings is, in relation to any of the reviewable information that was the subject of the Level 2 review application, that the information—

(a)is not relevant for the purpose of the disclosure, and

(b)ought not to be included in the disclosure,

the Scottish Ministers must exclude the information from the new Level 2 disclosure to be provided under subsection (2).

(5)If the effect of the final outcome of the proceedings is, in relation to any of the reviewable information that was the subject of the Level 2 review application, that the information—

(a)is relevant for the purposes of the disclosure, and

(b)ought to be included in the disclosure,

the applicant may not specify the information in any review application made in relation to the new Level 2 disclosure or any subsequent Level 2 disclosure provided for the same purpose as the original Level 2 disclosure.

(6)Subsection (5) does not prevent the applicant from specifying the information in any review application made in relation to a subsequent Level 2 disclosure provided for the same purpose as the original Level 2 disclosure if—

(a)the review application in relation to the subsequent Level 2 disclosure is made after the end of such period beginning with the final outcome of proceedings as the Scottish Ministers may by regulations specify, or

(b)the Scottish Ministers are satisfied that the applicant's circumstances have changed in a material respect since the final outcome of proceedings.

(7)For the purposes of this section, proceedings on a Level 2 review application finally conclude on whichever of the following occurs last—

(a)if a review of the accuracy of any information contained in the Level 2 disclosure is carried out by the Scottish Ministers, the date of the Scottish Ministers' decision under section 21(3),

(b)if no review is carried out by the independent reviewer in relation to any of the reviewable information that is the subject of the Level 2 review application, the expiry of the period within which the applicant could have requested that the Scottish Ministers arrange for the independent reviewer to review the inclusion of the reviewable information (see sections 24(2) and 26(2)),

(c)if—

(i)a review is carried out by the independent reviewer in relation to any of the reviewable information that is the subject of the Level 2 review application, and

(ii)no appeal is taken under section 30 against the independent reviewer's decision,

the expiry of the period within which an appeal could have been taken against the independent reviewer's decision (see section 30(4)) or, if sooner, the relevant date,

(d)if—

(i)a review is carried out by the independent reviewer in relation to any of the reviewable information that is the subject of the Level 2 review application, and

(ii)an appeal is taken under section 30 against the independent reviewer's decision,

the date of the sheriff's decision in the appeal.

(8)In subsection (7)(c), the “relevant date” is—

(a)where—

(i)the review carried out by the independent reviewer included a review under section 24 of information relating to the applicant provided by the chief constable in accordance with section 14, and

(ii)both the applicant and the chief constable notify the Scottish Ministers under subsection (5) of section 30 that they do not intend to take an appeal under subsection (1) of that section,

the date on which the later of those notifications is made,

(b)in any other case, the date on which the applicant notifies the Scottish Ministers under subsection (5) of 30 that the applicant does not intend to take an appeal under subsection (1) of that section.

(9)For the purposes of this section, “the final outcome of the proceedings”, in relation to any of the information that was the subject of the Level 2 review application, means—

(a)where subsection (7)(a) applies in relation to the information, the Scottish Ministers' decision,

(b)where subsection (7)(b) applies in relation to the proceedings, the decision of the Scottish Ministers or the chief constable as the case may be,

(c)where subsection (7)(c) applies in relation to the information, the independent reviewer's decision as notified under section 29,

(d)where subsection (7)(d) applies in relation to the information, the sheriff's decision.

(10)Subsections (11) and (12) apply where—

(a)a new Level 2 disclosure is provided to an applicant under subsection (2),

(b)information is excluded from the new Level 2 disclosure by virtue of subsection (4),

(c)the applicant participates in the PVG Scheme, and

(d)the information that is excluded from the new Level 2 disclosure is also contained in the applicant's scheme record in relation to a type of regulated role to which the purpose of the new Level 2 disclosure relates.

(11)The Scottish Ministers must remove the information from the applicant's scheme record so far as relating to the type of regulated role mentioned in subsection (10)(d).

(12)The information is to be treated for the purposes of the PVG Act as not being vetting information.

32Disapplication of provisions of section 4 of the Rehabilitation of Offenders Act 1974S

(1)Subsection (2) applies where—

(a)a review is to be carried out by the independent reviewer under section 22 of information included in a Level 2 disclosure about—

(i)a spent childhood conviction of an applicant, or

(ii)a children's hearing outcome of an applicant, or

(b)a review is to be carried out—

(i)by the Scottish Ministers under section 25, or

(ii)by the independent reviewer under section 26,

of the inclusion of a removable conviction in a Level 2 disclosure.

(2)Subsections (1)(a) and (b), (2)(a) and (b) and (3)(a) of section 4 of the Rehabilitation of Offenders Act 1974 (effect of becoming a protected person) (the “1974 Act”) do not apply—

(a)for the purpose of the review and, in the case of a review by the independent reviewer, any appeal under section 30 against the independent reviewer's decision in the review,

(b)in relation to the conviction or outcome that is the subject of the review.

(3)Subsection (4) applies where—

(a)a review as mentioned in subsection (1) is carried out by the independent reviewer or, as the case may be, the Scottish Ministers,

(b)the effect of the final outcome of the proceedings (within the meaning of section 31(9)) on the Level 2 review application giving rise to the review is that—

(i)the spent childhood conviction, children's hearing outcome or removable conviction is relevant for the purpose of the Level 2 disclosure, and

(ii)information about or, as the case may be, details of the conviction or outcome ought to be included in the disclosure, and

(c)information about or, as the case may be, details of the conviction or outcome is or are included in a new Level 2 disclosure provided to the applicant by virtue of section 31(2).

(4)Subsections (1)(a) and (b), (2)(a) and (b) and (3)(a) and (b) of section 4 of the 1974 Act do not apply—

(a)in relation to the purpose of the Level 2 disclosure, and

(b)in relation to the spent childhood conviction, children's hearing outcome or removable conviction information about or, as the case may be, details of which is or are included in the disclosure.

(5)Subsection (6) applies where—

(a)information about—

(i)a spent childhood conviction of an applicant,

(ii)a children's hearing outcome of an applicant, or

(b)details of a removable conviction of an applicant,

is or are included in a Level 2 disclosure as mentioned in subsection (3)(c).

(6)Subject to subsections (1) and (2), the application of subsections (1)(a) and (b), (2)(a) and (b) and (3)(a) and (b) of section 4 of the 1974 Act is not excluded in relation to the spent childhood conviction, children's hearing outcome or removable conviction, or any circumstances ancillary to it, during the period before the Level 2 disclosure was provided to the applicant.

Level 2 disclosures: considering relevance and whether to include informationS

33Level 2 disclosure: considering relevance and whether to include certain informationS

(1)This section applies where a person is considering for the purposes of section 13(1)(c), 14(1), 15(3), 22(3), 23(4), 24(4), 25(3) or 26(4)—

(a)whether a conviction, children's hearing outcome or other information is relevant for the purpose of a Level 2 disclosure to be provided to an individual, and

(b)whether information about, or details of, the conviction or outcome or the other information (as the case may be) ought to be included in the disclosure.

(2)In considering whether the conviction, children's hearing outcome or other information is relevant for the purpose of the disclosure, the person may take account of any of the following matters (amongst other matters)—

(a)the nature and seriousness of the conviction, outcome or other information,

(b)the circumstances giving rise to the conviction, outcome or other information,

(c)in the case of a conviction, the level of any sentence imposed in respect of the conviction,

(d)the time that has elapsed since the behaviour giving rise to the conviction, outcome or other information occurred,

(e)the age of the individual at the time when the behaviour giving rise to the conviction, outcome or other information occurred,

(f)any previous or subsequent offences committed by the individual,

(g)in the case of other information, the reliability of the information.

(3)In considering whether information about, or details of, the conviction, children's hearing outcome or the other information (as the case may be) ought to be included in the disclosure, the person may take account of any of the following matters (amongst other matters)—

(a)the nature and seriousness of the conviction, outcome or other information,

(b)the circumstances giving rise to the conviction, outcome or other information,

(c)in the case of a conviction, the level of any sentence imposed in respect of the conviction,

(d)the time that has elapsed since the behaviour giving rise to the conviction, outcome or other information occurred,

(e)the age of the individual at the time when the behaviour giving rise to the conviction, outcome or other information occurred,

(f)any particular events or circumstances in the individual's life at the time when the behaviour giving rise to the conviction, outcome or other information occurred which the person considers to be relevant to the behaviour,

(g)any previous or subsequent offences committed by the individual,

(h)in the case of other information, the reliability of the information,

(i)in the case of other information, whether the individual has had an opportunity to challenge the information or make representations about the circumstances which gave rise to it,

(j)the impact on the individual of including information about, or details of, the conviction or outcome or the other information in the disclosure.

(4)In this section, “other information” means information—

(a)provided or to be provided in accordance with section 14,

(b)provided in accordance with section 15.

(5)The Scottish Ministers may by regulations modify subsection (2) or (3).

Common provisions relating to Level 1 and Level 2 disclosuresS

34Form and manner of provision of disclosuresS

(1)The Scottish Ministers must determine the form and manner in which a Level 1 disclosure or a Level 2 disclosure is to be provided or made available.

(2)They may in particular determine that a Level 1 disclosure or a Level 2 disclosure is to be provided by using electronic communications.

(3)A determination under subsection (1) must allow a Level 1 disclosure or a Level 2 disclosure to be provided in the form of a printed or written document if the applicant so requests.

(4)The Scottish Ministers may make different determinations under this section for different disclosures or other different purposes.

(5)The Scottish Ministers must arrange for their determinations under this section to be published in such manner as they see fit.

(6)A Level 1 disclosure or a Level 2 disclosure must specify the date on which the disclosure was provided to the applicant.

35Reclassification of applicationsS

(1)Where the Scottish Ministers receive an application under this Part for one type of disclosure, they may treat it as an application for another type of disclosure if it appears to them from the information contained in the application that the other type of disclosure is more appropriate in the circumstances.

(2)For the purposes of this section, the types of disclosure are—

(a)a Level 1 disclosure,

(b)a Level 2 disclosure where neither section 16 nor section 17 applies,

(c)a Level 2 disclosure where section 16 applies,

(d)a Level 2 disclosure where section 17 applies.

(3)Where the fee for the other type of disclosure is lower than the fee for the type of disclosure originally applied for, the Scottish Ministers must refund the difference in the fees to the applicant.

(4)Where the fee for the other type of disclosure is higher than the fee for the type of disclosure originally applied for, the Scottish Ministers need not consider the application any further unless and until the difference in the fees is paid by the applicant.

(5)In subsections (3) and (4), references to a fee are to a fee provided for under section 61.

36Regulations about procedure for disclosure requestsS

The Scottish Ministers may by regulations make further provision about the procedure to be followed in connection with—

(a)applications under this Part for Level 1 disclosures or Level 2 disclosures,

(b)the provision of such disclosures to applicants under this Part,

(c)making such disclosures available to persons other than the applicants.

37Regulations about review procedureS

(1)The Scottish Ministers may by regulations make provision in connection with the procedure for the carrying out of any review (whether by the Scottish Ministers, the chief constable or the independent reviewer) under this Part in relation to any of the information included in a Level 1 disclosure or a Level 2 disclosure.

(2)Regulations under this section may in particular include provision about—

(a)the time period within which any statement of reasons is to be provided for the purposes of the review,

(b)the time period within which the applicant may make representations for the purposes of the review,

(c)the time period within which a person required to provide information for the purposes of the review is to do so,

(d)the time period within which any notice or notification required in connection with the review is to be given.

38Power to modify definitions of Level 1 disclosure and Level 2 disclosureS

(1)The Scottish Ministers may by regulations modify—

(a)section 1 (which defines “Level 1 disclosure”),

(b)section 8 (which defines “Level 2 disclosure”),

including the definitions of expressions used in those sections.

(2)Regulations under subsection (1) may in particular make modifications for the purposes of, or in connection with, enabling Level 1 disclosures or Level 2 disclosures provided under this Part to include details of information held outside the United Kingdom.

39Childhood information: power to modify other enactmentsS

(1)The Scottish Ministers may by regulations modify any disclosure enactment for the purpose of ensuring that relevant childhood information of an individual is not required or allowed to be disclosed to another person unless the information has been disclosed to another person in a Level 1 disclosure or a Level 2 disclosure under this Act.

(2)In subsection (1), “disclosure enactment” means any enactment other than this Act so far as—

(a)requiring or allowing the disclosure of relevant childhood information of individuals to other persons for any purpose, or

(b)otherwise regulating the disclosure of such information.

(3)For the purposes of this section, “relevant childhood information” is, in relation to an individual—

(a)information about a children's hearing outcome of the individual, and

(b)information about—

(i)a conviction,

(ii)a caution,

(iii)an alternative to prosecution (within the meaning of the Rehabilitation of Offenders Act 1974),

for an offence committed when the individual was under 18 years of age.

40Presumption as to age in relation to convictionsS

For the purposes of the exercise of their functions under this Part, the Scottish Ministers may, in the absence of information to the contrary, presume that a person convicted of an offence was of the same age at the time when the offence was committed as the person was at the date of the conviction.

Offences relating to Level 1 and Level 2 disclosuresS

41Falsification of a Level 1 or Level 2 disclosureS

(1)A person commits an offence if the person, with intent to deceive—

(a)makes a document that purports to be a Level 1 disclosure or a Level 2 disclosure,

(b)alters a Level 1 disclosure or Level 2 disclosure,

(c)uses, or allows another person to use, a Level 1 disclosure or Level 2 disclosure in a way that suggests that it relates to an individual other than the one who is the subject of the Level 1 disclosure or Level 2 disclosure.

(2)A person commits an offence if the person knowingly makes a false or misleading statement for the purpose of obtaining, or enabling another person to obtain, a Level 1 disclosure or Level 2 disclosure.

(3)A person who commits an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both).

42Unlawful disclosure of a Level 2 disclosureS

(1)A person to whom a Level 2 disclosure is made available or disclosed under this Part commits an offence if the person discloses it unlawfully to another person.

(2)A Level 2 disclosure is disclosed lawfully only so far as the disclosure is permitted by section 43; otherwise it is disclosed unlawfully.

(3)A person to whom a Level 2 disclosure is disclosed unlawfully commits an offence if the person discloses the Level 2 disclosure to another person.

(4)A person who commits an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both).

43Lawful disclosures of Level 2 disclosuresS

(1)An accredited body to whom a Level 2 disclosure is made available under this Part may disclose the Level 2 disclosure—

(a)to any of the accredited body's employees,

(b)where the accredited body is not an individual, to any member or officer of the accredited body,

(c)where the Level 2 disclosure was made available by virtue of an application for a Level 2 disclosure made at the request of another person (a “third person”) who is, for the purpose of the disclosure, asking a question about the individual who is the subject of the disclosure—

(i)to that third person,

(ii)to any of the third person's employees,

(iii)where the third person is not an individual, to any member or officer of the third person.

(2)An employee, member or officer of the accredited body to whom a Level 2 disclosure is disclosed under subsection (1) may disclose the Level 2 disclosure—

(a)to any other employee, member or officer of the accredited body, or

(b)as mentioned in subsection (1)(c).

(3)A third person to whom a Level 2 disclosure is disclosed under subsection (1)(c) or (2)(b) may disclose the Level 2 disclosure—

(a)to any of the third person's employees,

(b)where the third person is not an individual, to any of the third person's members or officers.

(4)An employee, member or officer of a third person to whom a Level 2 disclosure is disclosed under subsection (1)(c), (2)(b) or (3) may disclose the Level 2 disclosure to another employee, member or officer of the third person.

(5)Disclosure of a Level 2 disclosure by a person is permitted under this section only so far as the disclosure is—

(a)made in the course of the person's functions,

(b)for a purpose that is the same as the purpose of the Level 2 disclosure, and

(c)in the case of disclosure as mentioned in subsection (1)(c), permitted by section 56(3) or (4).

(6)In subsection (1), the reference to an accredited body to whom a Level 2 disclosure is made available under this Part includes a reference to any lead signatory or countersignatory of the accredited body to whom a Level 2 disclosure is made available on behalf of the accredited body.

44Unlawful request for and use of a Level 2 disclosureS

(1)A person commits an offence if the person requests the provision of, or otherwise seeks sight of, a Level 2 disclosure for a purpose other than a permitted purpose.

(2)In subsection (1), “permitted purpose”, in relation to a Level 2 disclosure, means a purpose falling within section 12(2) or 19(2) including, where section 17 applies to the disclosure, to enable or assist a person (or any other person for whom the person acts) to consider the suitability of the individual who is the subject of the disclosure to carry out, or to be offered or supplied for, a type of regulated role.

(3)A person commits an offence if the person uses a Level 2 disclosure for a purpose other than a permitted purpose.

(4)In subsection (3), “permitted purpose”, in relation to a Level 2 disclosure, means a purpose that is the same as the purpose of the disclosure.

(5)A person who commits an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both).

45Offences under sections 42 and 44: supplementary provisionS

(1)Nothing in section 42 makes the disclosure of a Level 2 disclosure an offence where the disclosure is—

(a)by the individual who is the subject of the Level 2 disclosure,

(b)by any other person with the consent of the individual who is the subject of the Level 2 disclosure,

(c)to an office-holder in the Scottish Administration or a government department,

(d)to a statutory office-holder,

(e)in accordance with any obligation to provide information imposed by virtue of any enactment,

(f)for any other prescribed purpose.

(2)Nothing in section 44 makes the use of a Level 2 disclosure for a purpose other than a permitted purpose an offence where the use is—

(a)by the individual who is the subject of the Level 2 disclosure,

(b)by any other person with the consent of the individual who is the subject of the Level 2 disclosure,

(c)by an office-holder in the Scottish Administration or a government department,

(d)by a statutory office-holder,

(e)in accordance with any obligation to provide information imposed by virtue of any enactment,

(f)in any other prescribed circumstances.

(3)In this section and sections 42, 43 and 44(3), references to a Level 2 disclosure include references to any information contained in a Level 2 disclosure.

Accredited bodiesS

46Register of accredited bodiesS

(1)The Scottish Ministers must maintain a register for the purposes of this Part (referred to in this Part as the “register of accredited bodies”).

(2)In this Part—

(a)an “accredited body” is a person who is registered in the register of accredited bodies, and

(b)references to “registration” are to registration in the register of accredited bodies.

47Registration in the register of accredited bodiesS

(1)A person may apply to be registered in the register of accredited bodies in relation to—

(a)the making of applications for Level 1 disclosures under section 2 on behalf of an individual,

(b)the countersigning of applications for Level 2 disclosures under section 11, or

(c)both—

(i)the making of applications for Level 1 disclosures under section 2 on behalf of an individual, and

(ii)the countersigning of applications for Level 2 disclosures under section 11.

(2)The Scottish Ministers must register in the register of accredited bodies a person who applies to them and—

(a)where the person seeks registration of the type mentioned in subsection (1)(a), satisfies the conditions mentioned in subsections (3) and (4),

(b)where the person seeks registration of the type mentioned in subsection (1)(b) or (c), satisfies the conditions mentioned in subsections (3) to (5).

(3)The applicant must be—

(a)a body corporate or unincorporated,

(b)a statutory office-holder, or

(c)an individual who is 18 years of age or older and employs other persons in the course of a business.

(4)The applicant must satisfy the Scottish Ministers that the applicant is likely to be acting in relation to a disclosure request.

(5)The Scottish Ministers must be satisfied that each relevant individual is a suitable person to have access to disclosure information (see section 49).

(6)In subsection (5), “relevant individual”, in relation to an applicant, is—

(a)where the applicant is an individual employing other persons in the course of a business, the individual,

(b)where the applicant is a body corporate or unincorporated or is a statutory office-holder—

(i)the individual nominated as the lead signatory of the applicant, and

(ii)each individual nominated as a countersignatory of the applicant.

(7)The Scottish Ministers may register in the register of accredited bodies an individual who applies to them and—

(a)is 16 or 17 years of age,

(b)employs other persons in the course of a business, and

(c)satisfies—

(i)the condition mentioned in subsection (4), and

(ii)where the individual seeks registration of the type mentioned in subsection (1)(b) or (c), the condition mentioned in subsection (5).

(8)Before refusing an application for registration under this section, the Scottish Ministers must give the applicant an opportunity to make representations.

(9)Where the Scottish Ministers decide to refuse an application under this section for registration of the type mentioned in subsection (1)(c) because the condition mentioned in subsection (5) is not met, the decision applies to the application only insofar as the application relates to the countersigning of applications for Level 2 disclosures under section 11 (and does not affect the application insofar as it relates to the making of applications for Level 1 disclosures under section 2 on behalf of an individual).

(10)In this Part, “disclosure information” means information contained in a Level 2 disclosure.

(11)In this Part, references to acting in relation to a disclosure request are to be read as references to—

(a)in relation to registration of the type mentioned in subsection (1)(a), making an application for a Level 1 disclosure under section 2 on behalf of an individual,

(b)in relation to registration of the type mentioned in subsection (1)(b), countersigning an application for a Level 2 disclosure under section 11,

(c)in relation to registration of the type mentioned in subsection (1)(c), both—

(i)making an application for a Level 1 disclosure under section 2 on behalf of an individual, and

(ii)countersigning an application for a Level 2 disclosure under section 11.

48Protection of information: removal of registrationS

(1)This section applies to an accredited body with registration of the type mentioned in section 47(1)(b) or (c).

(2)The Scottish Ministers may remove the accredited body from the register of accredited bodies if they consider that a relevant individual is not a suitable person to have access to disclosure information (see section 49).

(3)Before removing an accredited body from the register of accredited bodies under subsection (2), the Scottish Ministers must—

(a)notify the persons mentioned in subsection (4) that they are considering whether to remove the accredited body from the register of accredited bodies, and

(b)give those persons an opportunity to make representations.

(4)The persons are—

(a)where the accredited body is an individual employing other persons in the course of a business, the accredited body,

(b)where the accredited body is a body corporate or unincorporated or a statutory office-holder—

(i)the accredited body, and

(ii)the relevant individual whom the Scottish Ministers consider may not be a suitable person to have access to disclosure information.

(5)Where notice is given under subsection (3)(a) to an accredited body that is an individual employing other persons in the course of a business, the notice must include reasons for the Scottish Ministers considering whether to remove the accredited body from the register of accredited bodies.

(6)Where notice is given under subsection (3)(a) to the relevant individual mentioned in subsection (4)(b)(ii), in relation to an accredited body that is a body corporate or unincorporated or a statutory office-holder, the notice must include reasons for the Scottish Ministers considering whether to remove the accredited body from the register of accredited bodies.

(7)A decision by the Scottish Ministers under subsection (2) to remove an accredited body with registration of the type mentioned in section 47(1)(c) from the register of accredited bodies applies to the body's registration only insofar as it relates to the countersigning of applications for Level 2 disclosures under section 11 (and does not affect the body's registration insofar as it relates to the making of applications for Level 1 disclosures under section 2 on behalf of an individual).

(8)In this section, a “relevant individual”, in relation to an accredited body, is—

(a)where the accredited body is an individual employing other persons in the course of a business, the individual,

(b)where the accredited body is a body corporate or unincorporated or is a statutory office-holder—

(i)the lead signatory of the accredited body, and

(ii)a countersignatory of the accredited body.

49Suitable persons to have access to disclosure informationS

(1)In determining, for the purposes of section 47(5) or 48(2) whether an individual is a suitable person to have access to disclosure information, the Scottish Ministers may have regard in particular to—

(a)such details as may be prescribed under section 8(1)(a) of every criminal disposal incurred by the individual that is recorded in central records,

(b)whether the individual is—

(i)barred from regulated roles with children,

(ii)barred from regulated roles with adults,

(c)whether the Scottish Ministers are considering whether to list the individual in the children's list or the adults' list,

(d)whether—

(i)an application for registration in the register of accredited bodies by the individual has been refused,

(ii)the individual has been removed from the register of accredited bodies,

(iii)the individual's nomination as lead signatory or countersignatory of an accredited body has been refused,

(iv)all of the prescribed details relating to the individual as a lead signatory or countersignatory of an accredited body have been removed from the entry for the accredited body in the register of accredited bodies,

and the reason for the refusal of the application, the removal of the individual (or all of the individual's prescribed details) from the register or the refusal of the nomination (as the case may be),

(e)any information provided to them under subsection (2),

(f)any representations made by the applicant or the accredited body concerned,

(g)any other information held by the Scottish Ministers.

(2)Before making a determination mentioned in subsection (1), the Scottish Ministers may request the chief officer of any relevant police force to provide them with information which—

(a)is available to the chief officer,

(b)relates to—

(i)an applicant for registration in the register of accredited bodies,

(ii)an accredited body, or

(iii)an individual nominated as lead signatory or countersignatory of an accredited body,

(c)the chief officer considers—

(i)is relevant to the determination of the suitability of individuals to have access to disclosure information, and

(ii)ought to be provided to the Scottish Ministers.

(3)Where a request is made under subsection (2) to the chief constable, the chief constable must comply, as soon as practicable after receiving it, with the request.

(4)The chief constable must not provide information by virtue of a request under subsection (2) if the chief constable thinks that disclosing the information would be contrary to the interests of the prevention or detection of crime.

(5)In this section—

  • criminal disposal” has the same meaning as in section 8(3),

  • relevant police force” means such police force as may be prescribed.

(6)In subsection (1)(d), references to—

(a)the refusal of an application for registration,

(b)removal from the register of accredited bodies (of an accredited body or all of the prescribed details of a lead signatory or countersignatory from the entry for an accredited body in the register of accredited bodies), and

(c)refusal of nomination as lead signatory or countersignatory,

include references to any process applying in England and Wales or Northern Ireland which appears to the Scottish Ministers to be equivalent to such a refusal or removal.

(7)For the purposes of this section—

(a)references to a police force include—

(i)the Royal Navy Police,

(ii)the Royal Military Police,

(iii)the Royal Air Force Police,

(iv)the Ministry of Defence Police,

(v)the British Transport Police,

(vi)the Civil Nuclear Constabulary,

(vii)the States of Jersey Police Force,

(viii)the salaried police force of the Island of Guernsey,

(ix)the Isle of Man Constabulary,

(x)a body with functions in any country or territory outside the United Kingdom, the Channel Islands and the Isle of Man that correspond to those of a police force in any part of the United Kingdom,

(b)references to the chief officer of a police force include the person responsible for the direction of a body mentioned in paragraph (a),

(c)each of the following is to be treated as if it were a police force—

(i)the Commissioners for Her Majesty's Revenue and Customs (and for this purpose a reference to the chief officer of a police force is to be taken to be a reference to any of the Commissioners),

(ii)the National Crime Agency (and for this purpose a reference to the chief officer of a police force is to be taken to be a reference to the Director General of the Agency), and

(iii)such other department or body as may be prescribed (and regulations may prescribe in relation to the department or body the person to whom a reference to the chief officer of a police force is to be taken to be).

50Removal of registration on other groundsS

(1)The Scottish Ministers may remove an accredited body from the register of accredited bodies on any of the grounds mentioned in subsection (2) or (3).

(2)The grounds are that the Scottish Ministers consider that—

(a)the accredited body is no longer likely to be acting in relation to a disclosure request,

(b)the accredited body has breached any condition of the body's registration that is imposed on the body by virtue of section 54 or under section 55(7),

(c)the accredited body, its lead signatory or countersignatory or a disclosure information recipient has failed to comply with the code of practice published under section 55.

(3)In the case of an accredited body that is a body corporate or unincorporated or a statutory office-holder, further grounds are that the accredited body does not have a lead signatory.

(4)Where an accredited body has registration of the type mentioned in section 47(1)(c), the Scottish Minsters may remove the accredited body from the register of accredited bodies under subsection (1) in relation to either or both of—

(a)the making of applications for Level 1 disclosures under section 2 on behalf of an individual,

(b)the countersigning of applications for Level 2 disclosures under section 11.

(5)Before removing an accredited body from the register of accredited bodies under subsection (1), the Scottish Ministers must—

(a)notify the accredited body—

(i)that they are considering whether to remove the accredited body from the register of accredited bodies, and

(ii)of the reasons for considering that removal, and

(b)give the accredited body an opportunity to make representations.

(6)In subsection (2)(c), a “disclosure information recipient”, in relation to an accredited body, is a person mentioned in section 56(1)(b)(i) to whom the accredited body has provided disclosure information.

51Lead signatories and countersignatoriesS

(1)Where an application for registration in the register of accredited bodies is made by a body corporate or unincorporated or a statutory office-holder—

(a)the applicant must in the application nominate a lead signatory, and

(b)where the applicant is seeking registration of the type mentioned in section 47(1)(b) or (c), the applicant may in the application nominate one or more countersignatories.

(2)Where an accredited body is a body corporate or unincorporated or a statutory office-holder, the accredited body may by application nominate—

(a)a lead signatory in substitution for an individual previously nominated as lead signatory,

(b)where the accredited body has registration of the type mentioned in section 47(1)(b) or (c), a countersignatory (whether in addition to, or in substitution for, an individual previously nominated as a countersignatory).

(3)Where an application for registration in the register of accredited bodies is made by an individual who—

(a)employs other persons in the course of a business, and

(b)is seeking registration of the type mentioned in section 47(1)(b) or (c),

the applicant may in the application nominate one or more countersignatories.

(4)Where an accredited body—

(a)is an individual who employs other persons in the course of a business, and

(b)has registration of the type mentioned in section 47(1)(b) or (c),

the accredited body may by application nominate one or more countersignatories.

(5)An application under this section containing a nomination of a lead signatory or a countersignatory must also contain the prescribed details of the lead signatory or countersignatory.

(6)If the Scottish Ministers accept the nomination of a lead signatory or countersignatory of an accredited body under this section they must include the prescribed details of the lead signatory or countersignatory in the entry for the accredited body in the register of accredited bodies.

(7)An accredited body must notify the Scottish Ministers of any changes in the prescribed details submitted in accordance with this section of—

(a)the body's lead signatory,

(b)any countersignatory of the body.

(8)In this Part—

  • countersignatory”, in relation to an accredited body, means an individual authorised to act for the accredited body in relation to the countersigning of an application for a Level 2 disclosure under section 11 by the accredited body,

  • lead signatory”, in relation to an accredited body, means the individual authorised to act in relation to registration of the body and with overall responsibility for the body's acting in relation to a disclosure request (including, where the accredited body has registration of the type mentioned in section 47(1)(b) or (c), authority to act as a countersignatory of the body).

(9)An individual may not act as lead signatory or, as the case may be, countersignatory of an accredited body unless the prescribed details of the lead signatory or countersignatory are included in the entry for the accredited body in the register of accredited bodies.

52Lead signatories and countersignatories: acceptance or refusal of nomination and removal from the registerS

(1)Subject to subsection (2), the Scottish Ministers must accept the nomination of an individual as the lead signatory or a countersignatory of an accredited body if—

(a)the individual is 18 years of age or older, and

(b)the individual is—

(i)employed by the accredited body,

(ii)otherwise appointed by the accredited body to act as the lead signatory or a countersignatory of the accredited body, or

(iii)employed by a person acting on behalf of the accredited body.

(2)Where the accredited body has registration of the type mentioned in section 47(1)(b) or (c), the Scottish Ministers may refuse to accept the nomination of an individual as the lead signatory or a countersignatory if, in their opinion, the individual is not a suitable person to have access to disclosure information.

(3)The Scottish Ministers may remove all of the prescribed details of a lead signatory or countersignatory of an accredited body from the entry for the accredited body in the register of accredited bodies if they consider that—

(a)the lead signatory or countersignatory is not a suitable person to have access to disclosure information, or

(b)the lead signatory or countersignatory has failed to comply with the code of practice published under section 55.

(4)In determining, for the purposes of subsection (2) or (3)(a), whether an individual is a suitable person to have access to disclosure information, the Scottish Ministers may have regard in particular to—

(a)the matters mentioned in section 49(1) (but subsection (2)(b) of that section applies for the purposes of this section as if it referred only to the provision of information relating to the individual who is (or is nominated as) the lead signatory or a countersignatory of the accredited body concerned), and

(b)any representations made by the individual who is (or is nominated as) the lead signatory or a countersignatory of the accredited body concerned.

(5)Before refusing to accept a nomination by an accredited body of an individual as the lead signatory or a countersignatory under subsection (2), the Scottish Ministers must—

(a)notify the individual—

(i)that they are considering whether to refuse the nomination, and

(ii)of the reasons for considering that refusal, and

(b)give the individual an opportunity to make representations.

(6)Before deciding to remove all of the prescribed details of the lead signatory or a countersignatory of an accredited body from the entry for the accredited body in the register of accredited bodies under subsection (3)(a) or (b), the Scottish Ministers must—

(a)notify the lead signatory or countersignatory—

(i)that they are considering whether to remove the details from the register of accredited bodies, and

(ii)of the reasons for considering that removal, and

(b)give the lead signatory or countersignatory an opportunity to make representations.

(7)Where an accredited body has registration of the type mentioned in section 47(1)(c), a decision by the Scottish Ministers—

(a)under subsection (2) to refuse the nomination of an individual as the lead signatory of the accredited body, or

(b)under subsection (3)(a) to remove the prescribed details of the lead signatory from the entry for the accredited body in the register of accredited bodies,

relates only to the lead signatory acting in relation to Level 2 disclosures on behalf of the accredited body (and does not prevent the lead signatory acting otherwise on behalf of the accredited body).

(8)In subsections (1), (2), (4) (insofar as it relates to subsection (2)), (5) and (7)—

(a)the references to an accredited body include references to a person applying for registration in the register of accredited bodies, and

(b)the references to an accredited body having registration of a type mentioned in section 47(1) include references to a person applying for registration of that type in the register of accredited bodies.

53Notification and review of decisions: removal from register or refusal of registration or nominationS

(1)This section applies where the Scottish Ministers decide to—

(a)refuse an application for registration in the register of accredited bodies,

(b)remove an accredited body from the register of accredited bodies,

(c)refuse to accept the nomination of an individual as lead signatory or countersignatory of an accredited body,

(d)remove all of the prescribed details of a lead signatory or countersignatory of an accredited body from the entry for the accredited body in the register of accredited bodies.

(2)The reference in subsection (1)(b) to removing an accredited body from the register of accredited bodies includes, in the case of an accredited body with registration of the type mentioned in section 47(1)(c)—

(a)removing the accredited body from the register in relation only to the making of applications for Level 1 disclosures under section 2 on behalf of an individual,

(b)removing the accredited body from the register in relation only to the countersigning of applications for Level 2 disclosures under section 11.

(3)The Scottish Ministers must notify the persons mentioned in subsection (4) of their decision and the reasons for the decision.

(4)The persons are—

(a)in the case of refusal of an application for registration, the applicant,

(b)in the case of removal of an accredited body from the register, the accredited body,

(c)in the case of refusal to accept the nomination of an individual as the lead signatory or a countersignatory of an accredited body, the individual,

(d)in the case of removal of all of the prescribed details of a lead signatory or countersignatory of an accredited body from the entry for the accredited body in the register of accredited bodies, the lead signatory or (as the case may be) countersignatory.

(5)Where the Scottish Ministers decide to—

(a)refuse to accept the nomination of an individual as the lead signatory or a countersignatory of an accredited body, or

(b)remove all of the prescribed details of the lead signatory or a countersignatory of an accredited body from the entry for the accredited body in the register of accredited bodies,

they must also notify the accredited body of their decision.

(6)If a person notified under subsection (3) considers that the information on which the decision was based may have been inaccurate, the person may apply to the Scottish Ministers for a review of their decision.

54Regulations about registrationS

(1)The Scottish Ministers may by regulations make further provision about the register of accredited bodies and registration in it.

(2)Regulations under this section may in particular make provision for or in connection with—

(a)the information to be included in an application for registration,

(b)the information to be included in the register,

(c)the registration of any accredited body being subject to conditions,

(d)the process for refusing registration or removing an accredited body from the register,

(e)the nomination of a lead signatory or countersignatory and acceptance or refusal by the Scottish Ministers of such a nomination,

(f)the removal of all of the prescribed details of a lead signatory or countersignatory of an accredited body from the entry for the accredited body in the register,

(g)the process for reviewing a decision to—

(i)refuse an application for registration,

(ii)remove an accredited body from the register,

(iii)refuse to accept the nomination of a lead signatory or countersignatory,

(iv)remove all of the prescribed details of a lead signatory or countersignatory of an accredited body from the entry for the accredited body in the register,

(h)the suspension of the registration of an accredited body,

(i)the period which must elapse before any person refused registration, or removed from the register, may apply again for registration.

(3)The provision which may be made by virtue of subsection (2)(c) includes provision—

(a)for the registration or continued registration of any accredited body to be subject to such conditions as may be specified in the regulations or, if the regulations so provide, such conditions as the Scottish Ministers consider appropriate, and

(b)for the Scottish Ministers to vary or revoke those conditions.

55Code of practiceS

(1)The Scottish Ministers must publish a code of practice in connection with—

(a)the use of disclosure information provided to, or

(b)the exercise of any function by,

accredited bodies under this Part.

(2)The Scottish Ministers must, as soon as practicable after publication, lay the code of practice before the Scottish Parliament.

(3)The persons mentioned in subsection (4) must comply with the code of practice.

(4)The persons are—

(a)an accredited body,

(b)the lead signatory of an accredited body,

(c)a countersignatory of an accredited body,

(d)a disclosure information recipient.

(5)An accredited body must take all necessary steps with a view to ensuring the compliance by each disclosure information recipient with the code of practice.

(6)The Scottish Ministers may from time to time publish a revised code of practice, and references in this Part to a code of practice include references to a revised code of practice.

(7)Where an accredited body, its lead signatory or countersignatory or a disclosure information recipient has failed to comply with the code of practice, the Scottish Ministers may impose conditions in relation to the registration of the accredited body.

(8)In this section, “disclosure information recipient” has the meaning given in section 50(6).

56Sharing of Level 2 disclosure information by accredited bodiesS

(1)An accredited body may countersign an application for a Level 2 disclosure under section 11—

(a)on its own behalf, or

(b)if the condition mentioned in subsection (2) is met, at the request of another person who—

(i)falls within any of paragraphs (a) to (c) of section 47(3) (but who is not an accredited body), or

(ii)is an individual who does not employ other persons in the course of business.

(2)The condition is that the person referred to in subsection (1)(b)(i) or (ii) is asking a question about the individual who is the subject of the Level 2 disclosure for the purpose of the disclosure.

(3)Where a Level 2 disclosure is made available to an accredited body by virtue of an application for a Level 2 disclosure made at the request of another person mentioned in subsection (1)(b)(i), the accredited body may disclose information contained in the Level 2 disclosure to that person if the body is satisfied that disclosure to the person would comply with the code of practice published under section 55.

(4)Where a Level 2 disclosure is made available to an accredited body by virtue of an application for a Level 2 disclosure made at the request of an individual mentioned in subsection (1)(b)(ii), the accredited body—

(a)must not disclose the information contained in the Level 2 disclosure to the individual,

(b)but may provide advice based on the information to the individual relating to the question referred to in subsection (2).

(5)The Scottish Ministers may by regulations make provision about the fees that may be charged by accredited bodies in connection with countersigning an application for a Level 2 disclosure at the request of another person mentioned in subsection (1)(b)(ii).

Evidence of identityS

57Evidence of identityS

(1)A person making an application under this Part must provide the Scottish Ministers with such evidence of identity as they may require in respect of the application.

(2)The evidence of identity that may be required under subsection (1) includes evidence of the identity of—

(a)the applicant,

(b)where an application is made on behalf of an individual, that individual,

(c)where an application is made—

(i)for registration of an accredited body in the register of accredited bodies, or

(ii)nominating a lead signatory or countersignatories of an accredited body,

the nominated lead signatory and countersignatories of the body.

(3)The Scottish Ministers need not consider such an application if—

(a)the applicant fails to comply with a requirement under this section, or

(b)the evidence provided does not satisfy them as to the identity of the person in respect of whom it is required.

58Power to use personal data to check identityS

(1)The Scottish Ministers may use information provided to them by personal data holders to check evidence of identity given to them for the purposes of section 57.

(2)Personal data holders are–

(a)the Registrar General of Births, Deaths and Marriages for Scotland,

(b)a Minister of the Crown in connection with—

(i)passports,

(ii)the keeping of records relating to immigration or visas,

(iii)the keeping of records of national insurance numbers,

(iv)the keeping of records relating to drivers and motor vehicles,

(c)the Department for Infrastructure in Northern Ireland in connection with the keeping of records relating to drivers and motor vehicles,

(d)such other persons holding data about individuals as may be prescribed.

(3)The Registrar General of Births, Deaths and Marriages for Scotland must comply, as soon as practicable after receiving it, with any request by the Scottish Ministers to provide them with information which—

(a)the Registrar General holds in connection with the keeping of records of births, marriages, deaths and adoptions, and

(b)is relevant to the Scottish Ministers' functions under this Part.

59Power to use fingerprints to check identityS

(1)The Scottish Ministers may require an individual in respect of whom evidence of identity may be required under section 57 to have fingerprints taken in such manner, by such person and at such place, as may be prescribed for the purposes of enabling or assisting the Scottish Ministers to satisfy themselves as to the identity of the individual.

(2)But the Scottish Ministers may require an individual to have fingerprints taken under subsection (1) only if they are not satisfied by other evidence provided under section 57(1) as to the individual's identity.

(3)Where the Scottish Ministers require an individual to have fingerprints taken under subsection (1) in connection with an application under this Part but the individual refuses to comply with that requirement, the Scottish Ministers need not consider the application.

(4)The Scottish Ministers must arrange for the destruction of any such fingerprints as soon as reasonably practicable after they have been used for the purposes mentioned in subsection (1).

(5)Any person who holds in Scotland records of fingerprints for the use of police forces generally must make those records available to the Scottish Ministers for the purposes of this section.

(6)This section does not affect the generality of section 57 in relation to any other type of evidence of identity.

GeneralS

60Form and manner of applications and noticesS

(1)The Scottish Ministers must determine the form and manner in which—

(a)any application under this Part is to be made,

(b)any notice or notification under this Part is to be given.

(2)A determination under subsection (1) may in particular make provision for—

(a)an application to be made (and signed or countersigned), or

(b)a notice or notification to be given,

by using electronic communications.

(3)A determination under subsection (1) must allow an application to be made in the form of a printed or written document if the applicant so chooses.

(4)Subsection (3) does not apply to a determination relating to an application for a Level 1 disclosure made under section 2 by an accredited body on behalf of an individual.

(5)A determination under subsection (1) relating to an application for a Level 1 disclosure made under section 2 by an accredited body on behalf of an individual may include provision about the form and manner in which the individual's consent to the application is to be given and evidenced for the purposes of subsection (2) of that section.

(6)The Scottish Ministers may make different determinations under this section for—

(a)different applications, notices or notifications, or

(b)other different purposes.

(7)The Scottish Ministers must arrange for their determinations under this section to be published in such manner as they see fit.

(8)The Scottish Ministers need not consider any application under this Part that is not made in the form and manner determined by them under this section.

(9)In this section, “application” includes request and any statement or other document that is to accompany an application.

61FeesS

(1)The Scottish Ministers may by regulations make provision for the charging of fees in respect of the exercise of their functions under this Part.

(2)Regulations under this section may in particular provide for the charging of fees for or in connection with—

(a)an application for a Level 1 disclosure,

(b)an application for a Level 2 disclosure,

(c)an application for registration in the register of accredited bodies and registration in the register,

(d)an application nominating the lead signatory or a countersignatory of an accredited body,

(e)the notification of any changes relating to the prescribed details of an accredited body's lead signatory or countersignatory,

(f)the provision of any documentation confirming the authenticity of a certificate provided in response to an application for a Level 1 disclosure,

(g)a Level 1 review application,

(h)a Level 2 review application,

(i)verifying the identity of an applicant of a disclosure request.

(3)Regulations may in particular provide for—

(a)different fees in different circumstances,

(b)reduction, waiver or refund of fees,

(c)the manner in which fees are to be paid.

(4)The provision which may be made by virtue of subsection (2)(c) includes in particular provision for—

(a)annual or other recurring fees in respect of—

(i)registration in the register of accredited bodies,

(ii)the nomination of the lead signatory or a countersignatory of an accredited body,

(b)such annual or other recurring fees to be paid in advance or in arrears.

(5)Where regulations provide for a fee to be charged in respect of any application, the Scottish Ministers need not consider the application unless the fee is paid in the manner provided for in the regulations.

62Fees for provision of information by the chief constableS

The Scottish Ministers must pay to the Scottish Police Authority such fee as they think appropriate for the provision of information to them by the chief constable in pursuance of any provision of this Part.

63Guidance for chief constableS

(1)The Scottish Ministers must issue guidance to the chief constable about the exercise of the chief constable's functions under this Part.

(2)The Scottish Ministers may from time to time issue revised guidance, and references in this section to guidance include revised guidance.

(3)The guidance may in particular include provision about the conduct of reviews under section 23.

(4)Before issuing guidance under this section, the Scottish Ministers must consult the chief constable.

(5)The chief constable must have regard to guidance issued under this section in exercising functions under this Part.

64Sharing of information with the chief constableS

(1)The Scottish Ministers may make available to the chief constable any information mentioned in subsection (2) that they hold in connection with the performance of their functions under this Part.

(2)The information is—

(a)the name, address and date of birth of any individual,

(b)any other information that would enable or assist constables of the Police Service of Scotland to satisfy themselves as to the identity of an individual.

(3)Information disclosed under subsection (1) may be used by constables of the Police Service of Scotland only for—

(a)the performance of the chief constable's functions under this Part, or

(b)the law enforcement purposes within the meaning of section 31 of the Data Protection Act 2018.

65Sources of informationS

(1)Any person who holds central records must make those records available to the Scottish Ministers for the purposes of enabling or assisting them to perform their functions under this Part.

(2)The Scottish Ministers may by notice require any person mentioned in subsection (3) to provide them with information which they—

(a)believe the person holds, and

(b)consider is necessary to carry out their functions under this Part.

(3)The persons are—

(a)an individual applying for a Level 1 or a Level 2 disclosure,

(b)the chief constable,

(c)the Principal Reporter,

(d)the Scottish Courts and Tribunals Service,

(e)a local authority,

(f)any other person the Scottish Ministers consider appropriate.

(4)The chief constable must not provide information by virtue of a notice under subsection (2) if the chief constable thinks that disclosing the information would be contrary to the interests of the prevention or detection of crime.

(5)No proceedings are competent against the Scottish Ministers by reason of an inaccuracy in the information made available or provided to them in accordance with or in pursuance of any power or duty under this Part to provide information to the Scottish Ministers in relation to their functions under this Part.

66Delegation of functions of Scottish MinistersS

(1)The Scottish Ministers may, to such extent and subject to such conditions as they think appropriate, delegate any of their functions under this Part (other than excepted functions) to such person as they may determine.

(2)An excepted function is a function—

(a)relating to the making of regulations,

(b)relating to the publishing or revising of a code of practice under section 55,

(c)relating to the laying of such a code of practice before the Scottish Parliament,

(d)relating to the making of a determination under section 34(1) or 60(1),

(e)relating to the determination of a fee under section 62,

(f)relating to the issuing and revising of guidance under section 63.

(3)A delegation under subsection (1) may be varied or revoked at any time.

(4)No proceedings are competent against a person exercising functions delegated under this section by reason of an inaccuracy in the information made available or provided to the person in accordance with or in pursuance of any power or duty under this Part to provide information to the Scottish Ministers in relation to their functions under this Part.

67Saving: disclosure of information and recordsS

Nothing in this Part limits any power that exists otherwise than under this Act to disclose information or to make records available.

68Definition of consideration of suitabilityS

In sections 17(1)(b) and 44(2), the references to a person (“A”) considering an individual's suitability to carry out, or to be offered or supplied for, a type of regulated role are references to A considering the individual's suitability—

(a)to carry out that type of regulated role for A,

(b)to be supplied by A to carry out that type of regulated role for another person,

(c)for any other prescribed purpose.

69Interpretation of Part 1S

In this Part—

  • accredited body” has the meaning given in section 46(2),

  • acting in relation to a disclosure request” is to be construed in accordance with section 47(11),

  • the “adults' list” means the list referred to in section 1(1)(b) of the PVG Act,

  • barred from regulated roles with adults” is to be construed in accordance with section 92(2) of the PVG Act,

  • barred from regulated roles with children” is to be construed in accordance with section 92(1) of the PVG Act,

  • caution” means a caution given to a person in England and Wales or Northern Ireland in respect of an offence which, at the time when the caution is given, the person has admitted,

  • central records” means such records of convictions, cautions or other information held for the use of police forces generally as may be prescribed,

  • certificate” means any one or more documents provided in response to a particular application,

  • chief constable” means the chief constable of the Police Service of Scotland,

  • childhood caution”, in relation to an individual, means a caution given in respect of an offence committed when the individual was under 18 years of age,

  • childhood conviction”, in relation to an individual, means a conviction for an offence committed when the individual was under 18 years of age,

  • children” is to be construed in accordance with the definition of “child” in section 97(1) of the PVG Act,

  • children's hearing outcome” means anything treated as a conviction for the purposes of the Rehabilitation of Offenders Act 1974 by virtue of section 3 of that Act (special provision with respect to certain disposals by children's hearings),

  • the “children's list” means the list referred to in section 1(1)(a) of the PVG Act,

  • conviction” means a conviction within the meaning of the Rehabilitation of Offenders Act 1974, but does not include a children's hearing outcome,

  • countersignatory” has the meaning given in section 51(8),

  • disclosure information” has the meaning given in section 47(10),

  • electronic communications” is to be construed in accordance with section 15(1) of the Electronic Communications Act 2000,

  • independent reviewer” means the independent reviewer established by section 11 of the Age of Criminal Responsibility (Scotland) Act 2019,

  • lead signatory” has the meaning given in section 51(8),

  • Level 1 disclosure” has the meaning given in section 1,

  • Level 1 review application” means an application under section 5(1),

  • Level 2 disclosure” has the meaning given in section 8,

  • Level 2 review application” means an application under section 20(1),

  • List A offence” means an offence listed in schedule 1,

  • List B offence” means an offence listed in schedule 2,

  • Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975,

  • non-disclosable children's hearing outcome” has the meaning given in section 10,

  • non-disclosable conviction” has the meaning given in section 9,

  • police force” means—

    (a)

    the Police Service of Scotland,

    (b)

    a police force in England or Wales maintained under the Police Act 1996,

    (c)

    the Police Service of Northern Ireland and the Police Service of Northern Ireland Reserve,

  • prescribed” means prescribed by regulations made by the Scottish Ministers,

  • purpose of the disclosure”, in relation to a Level 2 disclosure, is to be construed in accordance with sections 12(3) and 19(6),

  • the PVG Scheme” means the scheme provided for by Part 2 of the PVG Act,

  • register of accredited bodies” has the meaning given in section 46(1),

  • registration” has the meaning given in section 46(2),

  • regulated roles with children” has the meaning given in section 91 of the PVG Act,

  • regulated roles with adults” has the meaning given in section 91 of the PVG Act,

  • removable conviction” has the meaning given in section 20(6),

  • reviewable information” has the meaning given in section 20(2),

  • scheme record” has the meaning given in section 48 of the PVG Act,

  • spent”, in relation to a conviction (including a childhood conviction) or caution, means spent for the purpose of the Rehabilitation of Offenders Act 1974; and “unspent”, in relation to a conviction (including a childhood conviction) or caution, is to be construed accordingly,

  • statutory office-holder” means a person appointed to an office by virtue of an enactment,

  • type of regulated role” is to be construed in accordance with section 91(4) and (5) of the PVG Act.

PART 2 SProtection of vulnerable groups

Scheme membershipS

70Participation in SchemeS

For section 45 (participation in Scheme) of the PVG Act substitute—

45Participation in Scheme

(1)An individual aged 16 or over may apply to Ministers—

(a)to join the Scheme and become a member of the Scheme (a “scheme member”), or

(b)if the individual is an existing scheme member, to renew that membership.

(2)An individual may participate in the Scheme in relation to—

(a)regulated roles with children,

(b)regulated roles with adults, or

(c)both types of regulated role.

(3)Ministers must allow an individual to participate in the Scheme in relation to a type of regulated role if the individual is—

(a)not barred from that type of regulated role, and

(b)aged 16 or over..

71Duration of Scheme membershipS

After section 45 of the PVG Act insert—

45ADuration of Scheme membership

(1)A scheme member participates in the Scheme (unless earlier removed from the Scheme) in relation to a type of regulated role until the end of the period of 5 years beginning with the day on which—

(a)the scheme member joins the Scheme in relation to that type of regulated role, or (as the case may be)

(b)the scheme member's membership of the Scheme in relation to that type of regulated role is renewed.

(2)In this section and section 45B, the period mentioned in subsection (1) is referred to as the “membership period”.

(3)No later than 3 months before the end of the membership period (the “expiry date”)—

(a)Ministers must send written notice to the persons mentioned in subsection (4)—

(i)of the expiry date, and

(ii)that the scheme member's participation in the Scheme in relation to the type of regulated role concerned will end on that date unless the scheme member's membership of the Scheme is renewed,

(b)may send written notice of those facts to any person other than an organisation for whom Ministers know the scheme member is carrying out a regulated role of the type concerned.

(4)The persons referred to in subsection (3)(a) are—

(a)the scheme member,

(b)any organisation for whom Ministers know the scheme member is carrying out a regulated role of the type concerned,

(c)any personnel supplier whom Ministers know has offered or supplied the scheme member to carry out a regulated role of the type concerned,

(d)any relevant regulatory body (within the meaning of section 13A(8)) whom Ministers think it would be appropriate to notify.

(5)Subsection (6) applies where—

(a)a scheme member participates in the Scheme in relation to both types of regulated role, and

(b)notice is given under subsection (3)(a) to an organisation, personnel supplier or relevant regulatory body, or under subsection (3)(b), in relation to only one of the types of regulated role.

(6)Where this subsection applies, the notice must not disclose any information relating to the scheme member's participation in the Scheme in relation to the other type of regulated role (or that the scheme member participates in the Scheme in relation to that other type of regulated role).

(7)If a scheme member has applied to renew the scheme member's membership of the Scheme in relation to a type of regulated role before the expiry date but Ministers have not, as at the expiry date, determined the application, the scheme member's participation in the Scheme in relation to that type of regulated role is to continue in effect until the application is determined..

72Failure to apply for renewal of Scheme membershipS

After section 45A of the PVG Act (inserted by section 71) insert—

45BFailure to apply for renewal of Scheme membership

(1)This section applies where a scheme member does not apply to renew the scheme member's membership of the Scheme in relation to a type of regulated role before the end of the membership period.

(2)Ministers must extend the scheme member's participation in the Scheme in relation to that type of regulated role for a period of 4 weeks beginning with the end of the membership period (the “extended membership period”).

(3)If before the end of the extended membership period—

(a)Ministers are satisfied that the scheme member is not carrying out a regulated role of that type, Ministers must remove the scheme member from the Scheme in relation to that type of regulated role, or

(b)Ministers are not so satisfied—

(i)they must send written notice to the persons mentioned in subsection (5) of the expiry of the extended membership period and that the scheme member's participation in the Scheme in relation to that type of regulated role is to end on the expiry of that period unless the scheme member's membership of the Scheme is renewed,

(ii)they may send written notice of those facts to any person other than an organisation for whom Ministers know the scheme member is carrying out a regulated role of the type in relation to which the member participates in the Scheme, and

(iii)they may extend the scheme member's participation in the Scheme in relation to that type of regulated role for an additional period of 6 months beginning with the end of the extended membership period (the “discretionary membership period”).

(4)Where Ministers decide under subsection (3)(b)(iii) to extend the scheme member's participation in the Scheme for the discretionary membership period—

(a)they must send written notice to the persons mentioned in subsection (5)—

(i)of that fact, and

(ii)that the scheme member's participation in the Scheme in relation to the type of regulated role concerned is to end on the expiry of that period unless the scheme member's membership of the Scheme is renewed, and

(b)they may send written notice of those facts to any person other than an organisation for whom Ministers know the scheme member is carrying out a regulated role of the type in relation to which the member participates in the Scheme.

(5)The persons referred to in subsections (3)(b)(i) and (4)(a) are—

(a)the scheme member,

(b)any organisation for whom Ministers know the scheme member is carrying out a regulated role of the type in relation to which the scheme member participates in the Scheme,

(c)any personnel supplier whom Ministers know has offered or supplied the scheme member to carry out a regulated role of the type in relation to which the scheme member participates in the Scheme,

(d)any relevant regulatory body (within the meaning of section 13A(8)) whom Ministers think it would be appropriate to notify.

(6)If—

(a)the scheme member does not apply to renew the scheme member's membership of the Scheme in relation to that type of regulated role before the end of the discretionary membership period, and

(b)Ministers are satisfied that the scheme member is not carrying out a regulated role of that type,

Ministers must remove the scheme member from the Scheme in relation to that type of regulated role.

(7)If—

(a)the scheme member does not apply to renew the scheme member's membership of the Scheme in relation to that type of regulated role before the end of the discretionary membership period, and

(b)Ministers have reasonable grounds to believe that the scheme member is carrying out a regulated role of that type,

Ministers must consider listing the scheme member 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 (or both of those lists).

(8)For the avoidance of doubt, subsection (7) applies in relation to the scheme member regardless of the type of regulated role in relation to which the scheme member participates in the Scheme.

(9)If the scheme member has applied, during the extended membership period or the discretionary membership period, to renew the scheme member's membership of the Scheme in relation to a type of regulated role but Ministers have not by the end of such a period determined the application, the scheme member's participation in the Scheme in relation to that type of regulated role is to continue in effect until the application is determined.

(10)Subsections (5) and (6) of section 45A apply for the purposes of this section as they apply for the purposes of that section except that the reference in subsection (5)(b) of that section—

(a)to a notice given under subsection (3)(a) of that section is to be read as a reference to a notice given under subsection (3)(b)(i) or (4)(a) of this section, and

(b)to a notice given under subsection (3)(b) of that section is to be read as a reference to a notice given under subsection (3)(b)(ii) or (4)(b) of this section.

(11)Ministers need not consider—

(a)an application for a Level 2 disclosure (within the meaning of section 8(1) of the Disclosure (Scotland) Act 2020) where section 17 of that Act applies, or

(b)a request for confirmation of scheme membership under section 54,

that is made by the scheme member during any discretionary membership period of the scheme member..

73Compulsory Scheme membershipS

(1)The PVG Act is amended as follows.

(2)After section 45B (inserted by section 72) insert—

45CIndividuals must be scheme members to carry out regulated roles

(1)It is an offence for an individual to carry out, or to agree to carry out, any type of regulated role unless the individual participates in the Scheme in relation to that type of regulated role.

(2)For the purposes of subsection (1), an individual is not to be treated as having agreed to carry out a regulated role if the individual's agreement is subject to the individual's participating in the Scheme in relation to that type of role.

(3)It is a defence for an individual charged with an offence under subsection (1)—

(a)to prove that the individual did not know, and could not reasonably be expected to have known, that the role concerned was a regulated role, and

(b)where the individual participated in the Scheme in relation to the type of regulated role concerned and the individual's membership of the Scheme in relation to that type of regulated role was not renewed, to prove that the individual did not know, and could not reasonably be expected to have known, that the individual's membership of the Scheme had not been renewed.

(4)Subsection (1) does not apply to an individual who is—

(a)barred from the type of regulated role concerned (but see section 34),

(b)aged under 16.

45DOrganisations not to use individuals for regulated roles without confirming scheme membership

(1)It is an offence for an organisation to offer any type of regulated role to an individual unless the organisation has received a Level 2 disclosure in pursuance of a request under section 18(1)(a) of the Disclosure (Scotland) Act 2020 containing a statement confirming that the individual participates in the Scheme in relation to that type of regulated role.

(2)For the purposes of subsection (1), an organisation is not to be treated as having offered a regulated role to an individual if the offer is subject to the organisation receiving a Level 2 disclosure as mentioned in subsection (1).

(3)Subsection (1) does not apply in relation to an individual who is—

(a)barred from the type of regulated role concerned (but see section 35),

(b)aged under 16.

45EPower to require organisations to stop using individuals for regulated roles without scheme membership

(1)Ministers may by regulations—

(a)prohibit an organisation from permitting an individual to carry out a regulated role,

(b)require an organisation to remove an individual from a regulated role,

where the individual does not participate in the Scheme in relation to that type of regulated role.

(2)Regulations under subsection (1) may in particular—

(a)impose prohibitions or requirements—

(i)in relation to particular types of organisations,

(ii)in relation to particular kinds of regulated roles,

(b)otherwise limit the purposes for which the prohibition or requirement is to apply (or the area in which it is to apply) in such manner as Ministers think appropriate.

(3)An organisation which fails to comply with regulations made under subsection (1) commits an offence.

(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 does not participate in the Scheme in relation to that type of regulated role.

45FPersonnel suppliers not to supply individuals for regulated roles without confirming scheme membership

(1)Subsection (2) applies where a personnel supplier knows or has reason to believe that an organisation will make arrangements for an individual to carry out a type of regulated role.

(2)Where this subsection applies, it is an offence for the personnel supplier to offer or supply the individual to the organisation in relation to that type of regulated role unless the personnel supplier has received a Level 2 disclosure in pursuance of a request under section 18(1)(a) of the Disclosure (Scotland) Act 2020 containing a statement confirming that the individual participates in the Scheme in relation to that type of regulated role.

(3)Subsection (2) does not apply in relation to an individual who is—

(a)barred from the type of regulated role concerned (but see section 36),

(b)aged under 16.

45GPenalties for offences relating to regulated roles by individuals not in Scheme

A person who commits an offence under section 45C, 45D, 45E or 45F is liable—

(a)on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both),

(b)on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both)..

(3)In section 100 (orders and regulations), in subsection (4), after the entry in the list for section 35(2) insert— “ Section 45E(1) ”.

Regulated rolesS

74Regulated rolesS

(1)The PVG Act is amended as follows.

(2)For section 91 (regulated work) substitute—

91Regulated roles

(1)A regulated role means a regulated role with children or adults.

(2)A regulated role with children has the meaning given in schedule 2.

(3)A regulated role with adults has the meaning given in schedule 3.

(4)In this Act, there are two types of regulated roles—

(a)regulated roles with children, and

(b)regulated roles with adults.

(5)References in this Act to types of regulated roles are to be construed accordingly..

(3)For schedule 2 (regulated work with children) substitute the schedule contained in schedule 3.

(4)For schedule 3 (regulated work with adults) substitute the schedule contained in schedule 4.

75Meaning of “protected adult”S

(1)Section 94 (meaning of “protected adult”) of the PVG Act is amended as follows.

(2)In subsection (1) for the words from “an individual” to the end of that subsection substitute

(a)an individual aged 18 or over who, by reason of physical or mental disability, illness, infirmity or ageing—

(i)has an impaired ability to protect themself from physical or psychological harm, or

(ii)requires assistance with the activities of daily living,

(b)in relation to a regulated role with adults that involves the carrying out of activities mentioned in paragraph 17 of Part 2 of schedule 3, an individual aged 18 or over who—

(i)is homeless (within the meaning of section 24 of the Housing (Scotland) Act 1987), or

(ii)has experienced, is experiencing or is at risk of experiencing domestic abuse,

(c)in relation to a regulated role with adults that involves the carrying out of activities mentioned in one or more of paragraphs 6 to 12 of Part 2 of schedule 3 (health care), an individual aged 18 or over who is being provided with a prescribed health service, or

(d)in relation to a regulated role with adults that involves the carrying out of such of the activities mentioned in Part 2 of schedule 3 as may be prescribed, an individual aged 18 or over who is being provided with—

(i)a prescribed support service,

(ii)a prescribed adult placement service,

(iii)a prescribed care home service,

(iv)a prescribed housing support service,

(v)a prescribed community care service, or

(vi)a prescribed welfare service..

(3)After subsection (2) insert—

(2A)In subsection (1)(b)(ii), “domestic abuse” means behaviour (whether or not amounting to a criminal offence) that—

(a)is perpetrated between partners or ex-partners, whether in the home or elsewhere or by means of electronic or other forms of communications, and

(b)involves any form of physical, verbal, sexual, psychological, emotional or financial abuse of one of the partners or ex-partners by the other.

(2B)For the purposes of subsection (2A), a person is a partner of another person if they are—

(a)married to each other,

(b)civil partners of each other,

(c)living with each other as if they were married to each other, or

(d)otherwise in an intimate relationship with each other,

and the references to ex-partners are to be construed accordingly..

(4)In subsection (3)—

(a)in paragraph (a), for “paragraph (a) of subsection (1)” substitute “ sub-paragraphs (i) to (iv) of subsection (1)(d) ”,

(b)paragraphs (b) and (c) are repealed.

(5)In subsection (4)—

(a)after “In” insert “ sub-paragraph (v) of ”,

(b)the definition of “direct payment” is repealed.

(6)In subsection (5), for “subsection (1)(d)” substitute “ sub-paragraph (vi) of subsection (1)(d) ”.

Scheme members under consideration for listingS

76Conditions imposed on scheme members under consideration for listingS

(1)The PVG Act is amended as follows.

(2)After section 13 insert—

13AConditions imposed on scheme members under consideration for listing

(1)Where Ministers are considering whether to list a scheme member by virtue of sections 10 to 13 or section 45B(7), they may impose such conditions on the scheme member as—

(a)may be prescribed, and

(b)they consider necessary for the protection of the public or otherwise in the public interest.

(2)Regulations under subsection (1)(a) may in particular provide that Ministers may—

(a)restrict the scheme member from carrying out a regulated role,

(b)require that the scheme member may carry out a regulated role only under the supervision of another scheme member whom Ministers are not considering whether to list by virtue of sections 10 to 13 or section 45B(7),

(c)require that the scheme member may carry out only a regulated role of such description as may be specified by Ministers,

(d)require the scheme member to provide to them information relating to any regulated role which the scheme member is carrying out, or is to carry out, for a person or individual who is not an organisation or a personnel supplier.

(3)Ministers may impose a condition under subsection (1) only on the basis of—

(a)information which caused them to consider listing the scheme member,

(b)information relating to the scheme member which they obtain—

(i)in pursuance of a requirement made under any of sections 18 to 20, or

(ii)otherwise in performing their functions in relation to the Scheme.

(4)A condition imposed under subsection (1) applies for the prescribed period beginning with the day on which Ministers impose the condition on the scheme member and ceases to apply at the end of that period unless it is confirmed by the sheriff under section 13B.

(5)Where Ministers decide under subsection (1) to impose a condition on a scheme member, they must notify the persons mentioned in subsection (6) of—

(a)that fact, and

(b)the details of the condition.

(6)The persons are—

(a)the scheme member,

(b)an organisation for whom Ministers know the scheme member is carrying out, or is seeking or agreeing to carry out, a regulated role,

(c)a personnel supplier whom Ministers know has offered or supplied the scheme member to carry out a regulated role,

(d)any relevant regulatory body whom Ministers think it would be appropriate to notify under subsection (5), and

(e)the chief constable.

(7)In addition, Ministers must inform the scheme member of the reason for imposing the condition.

(8)In subsection (6)(d) (and section 13B(9)(c)), a “relevant regulatory body” is—

  • The General Teaching Council for Scotland,

  • Healthcare Improvement Scotland,

  • The Scottish Social Services Council,

  • Social Care and Social Work Improvement Scotland,

  • any other person specified in regulations made by Ministers.

(9)In this section (and in sections 13B and 13C), “condition” includes restriction or requirement.

13BApplication to sheriff for confirmation of conditions

(1)Ministers may apply to the sheriff for confirmation of a condition imposed on a scheme member under section 13A(1).

(2)An application under subsection (1) must be made before the expiry of the period referred to in section 13A(4).

(3)Where an application under subsection (1) is made, that period is to be treated for the purposes of section 13A(4) as not having ended until the application is determined.

(4)In considering an application under subsection (1), the sheriff may—

(a)confirm the condition (with or without variation),

(b)remove the condition, or

(c)impose another condition.

(5)The sheriff may only—

(a)make a variation to a condition under subsection (4)(a) if the variation would result in a condition that could have been imposed by Ministers under section 13A(1), or

(b)impose a condition under subsection (4)(c) if the condition is one that could have been imposed by Ministers under section 13A(1).

(6)If the sheriff confirms (with or without variation) the condition under paragraph (a) of subsection (4) or imposes another condition under paragraph (c) of that subsection, that condition applies until Ministers make a decision under section 15 or, as the case may be, 16.

(7)If the sheriff removes the condition under subsection (4)(b), the condition ceases to apply from the date of the sheriff's decision.

(8)The scheme member is entitled to be a party to proceedings on an application under subsection (1).

(9)Ministers must notify the following persons of the sheriff's decision under subsection (4)—

(a)the scheme member,

(b)an organisation (or other person) for whom they know the scheme member is carrying out, or seeking or agreeing to carry out, a regulated role,

(c)any relevant regulatory body whom Ministers think it would be appropriate to notify of the decision,

(d)the chief constable.

(10)For the purposes of subsection (2), an application is made when it is lodged with the sheriff clerk.

(11)Proceedings on an application under subsection (1) may take place in private if the sheriff considers it appropriate in all the circumstances.

13CBreach of conditions: offences

(1)It is an offence for a scheme member on whom a condition is imposed under section 13A(1) to fail to comply with the condition.

(2)It is an offence for a person mentioned in subsection (3) to knowingly do anything, or fail to do anything, that results in a scheme member failing to comply with a condition imposed on the scheme member under section 13A(1).

(3)The persons referred to in subsection (2) are—

(a)an organisation for whom the scheme member is carrying out a regulated role,

(b)a personnel supplier who has offered or supplied the scheme member to carry out a regulated role.

(4)It is a defence for a person charged with an offence under subsection (1) or (2) to prove that the person did not know, and could not reasonably be expected to have known, that a condition was imposed on the scheme member.

(5)A person who commits an offence under subsection (1) or (2) is liable—

(a)on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both),

(b)on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both)..

(3)In section 100 (orders and regulations), in subsection (4), before the entry in the list for section 14(3) insert— “ Section 13A(1)(a) ”.

77Notice of consideration for listingS

(1)Section 30 (notice of listing etc.) of the PVG Act is amended as follows.

(2)In subsection (3)—

(a)in paragraph (b), at the end insert “ and any personnel supplier whom they know has offered or supplied the scheme member to carry out a regulated role with children, ”,

(b)in paragraph (c), at the end (and before the word “and” immediately following that paragraph) insert “ and any personnel supplier whom they know has offered or supplied the scheme member to carry out a regulated role with adults, ”.

(3)After subsection (3) insert—

(3A)Subsection (3B) applies where—

(a)Ministers are considering whether to list an individual by virtue of sections 10 to 13 or section 45B(7), and

(b)they know that the individual is carrying out a regulated role with children or, as the case may be, a regulated role with adults for a person other than an organisation.

(3B)Where this subsection applies, Ministers may notify the person—

(a)that they are considering whether to list the individual in the children's list or, as the case may be, in the adults' list, and

(b)of the details of any conditions that Ministers have imposed under section 13A(1) or, if no such conditions have been imposed, of that fact.”.

(3C)After considering whether to list an individual as mentioned in subsection (3A)(a), Ministers may notify their decision (whether to list the individual or not to do so) to any person other than an organisation for whom they know the individual is carrying out a regulated role with children or, as the case may be, a regulated role with adults..

(4)In subsection (5), after “(2)” insert “ , (3B), (3C) ”.

78Withdrawal from Scheme when under consideration for listingS

(1)The PVG Act is amended as follows.

(2)After section 59 insert—

59AWithdrawal from Scheme when under consideration for listing

(1)Where—

(a)Ministers remove an individual who is a scheme member from the Scheme under section 59, and

(b)at the time of the removal, they are considering whether to list the individual by virtue of sections 10 to 13 or section 45B(7),

they may decide not to continue to consider whether to list the individual.

(2)Where Ministers decide under subsection (1) not to continue to consider whether to list an individual, that decision is not to be treated as a decision not to list the individual after considering whether to do so for the purposes of subsection (3C) or (4) of section 30 (and accordingly no notice of the decision under subsection (1) is to be given under either of those subsections of that section)..

(3)In section 60 (notice of removal), after subsection (2) insert—

(2A)Where Ministers decide under section 59A(1) not to continue to consider whether to list the individual a notice under subsection (1) must also give notice of that fact..

Notice of barred statusS

79Notice of barred statusS

After section 46 of the PVG Act insert—

46ANotice of barred status

(1)Subsection (2) applies where—

(a)an accredited body has countersigned an application for a Level 2 disclosure,

(b)the individual applying for the disclosure seeks to participate in the Scheme,

(c)the purpose of the disclosure is to enable the accredited body (or any person for whom the body acts) to consider the individual's suitability to carry out, or to be offered or supplied for, a type of regulated role, and

(d)Ministers have refused to allow the individual to participate in the Scheme in relation to that type of regulated role because the individual is—

(i)barred from regulated roles with children, or (as the case may be)

(ii)barred from regulated roles with adults.

(2)Where this subsection applies, Ministers must notify the accredited body that they have refused to allow the individual to participate in the Scheme in relation to that type of regulated role because the individual is—

(a)barred from regulated roles with children, or (as the case may be)

(b)barred from regulated roles with adults.

(3)In this section—

  • accredited body” has the meaning given in section 46(2) of the Disclosure (Scotland) Act 2020,

  • Level 2 disclosure” has the meaning given in section 8 of that Act..

ListingS

80Reference by chief constableS

(1)The PVG Act is amended as follows.

(2)After section 6 insert—

6AReference by chief constable

The chief constable must give Ministers any prescribed information that the chief constable holds in relation to an individual whom the chief constable considers is or has been carrying out a type of regulated role while not participating in the Scheme in relation to that type of regulated role..

(3)After section 10(1)(a) (consideration whether to list: organisational referrals etc.) insert—

(aa)where prescribed information relating to an individual has been given to Ministers in pursuance of section 6A, or.

81Removal of references by courtS

(1)The PVG Act is amended as follows.

(2)The following provisions are repealed—

(a)section 7,

(b)section 11,

(c)section 32(1) and (2),

(d)schedule 1,

(e)in the table in schedule 5, the entry relating to “relevant offence”.

(3)In section 32 (relevant offences etc.)—

(a)in subsection (4), the word “7,” is repealed,

(b)the title of the section becomes “ Individual not criminally responsible or unfit for trial: order treated as conviction ”.

82Reference by councils or integration joint boardsS

(1)Section 8 (reference by certain other persons) of the PVG Act is amended as follows.

(2)In subsection (2)—

(a)before the entry in the list for the General Teaching Council for Scotland insert— “ Councils ”,

(b)after the entry in the list for Healthcare Improvement Scotland insert— “ An integration joint board established by order under section 9 of the Public Bodies (Joint Working) (Scotland) Act 2014 ”.

(3)In subsection (3), before paragraph (a) insert—

(za)in relation to a council or an integration joint board mentioned in subsection (2), such functions as are conferred on either of them by the Social Work (Scotland) Act 1968, the Children (Scotland) Act 1995, the Adults with Incapacity (Scotland) Act 2000, the Adult Support and Protection (Scotland) Act 2007 or the Children and Young People (Scotland) Act 2014,.

83Application for removal from listS

(1)Section 25 (application for removal from list) of the PVG Act is amended as follows.

(2)In subsection (3), for paragraph (b) substitute—

(b)Ministers are satisfied that there has been a relevant change in the applicant's circumstances since the applicant—

(i)was listed, or

(ii)last made an application for removal from the list under this section..

(3)After subsection (4) insert—

(4A)For the purposes of subsection (3)(b), a change in the applicant's circumstances is relevant if it is relevant to the question whether the applicant is no longer unsuitable to carry out regulated roles with children or, as the case may be, regulated roles with adults..

(4)Subsections (5) and (6) are repealed.

84Ministers' powers to remove from listS

(1)The PVG Act is amended as follows.

(2)In section 28 (late representations), after subsection (1) insert—

(1A)This section also applies where an individual listed under section 15 or 16 (other than one mentioned in subsection (1))—

(a)seeks to make representations to Ministers as to why the individual should not have been listed, and

(b)Ministers consider that it is appropriate in all the circumstances to allow the representations to be made..

(3)In section 29 (removal from list), in subsection (1)(b)—

(a)the words “they are satisfied that the individual should not have been listed” become sub-paragraph (i), and

(b)at the end of that sub-paragraph insert , or

(ii)they are otherwise satisfied that the individual is no longer unsuitable to carry out regulated roles with children or, as the case may be, regulated roles with adults..

85Appeals and removals: information powerS

(1)The PVG Act is amended as follows.

(2)In section 26 (determination of application for removal from list), subsection (3) is repealed.

(3)After section 29 insert—

Appeals and removals: information powersS
29AAppeals and removals: application of sections 18 to 20

(1)Sections 18 to 20 apply—

(a)for any of the purposes specified in subsection (2) as they apply for the purpose of enabling or assisting Ministers to decide whether to list an individual,

(b)with the modifications that are specified in subsection (2) in relation to the purpose.

(2)The purposes (and modifications) are—

(a)enabling or assisting Ministers to consider, in relation to an appeal under section 21, 22 or 23, whether an individual should have been listed (with references to deciding whether to list an individual being read as references to deciding whether the individual should have been listed),

(b)enabling or assisting Ministers to determine under section 26 an application for removal from the children's list or the adults' list (with references to deciding whether to list an individual being read as references to determining whether to remove an individual from the list),

(c)enabling or assisting Ministers to consider, in relation to an appeal under section 27, whether an application for removal from the children's list or the adults' list should have been refused under section 26 (with references to deciding whether to list an individual being read as references to deciding whether an application for removal from the list should have been refused),

(d)enabling or assisting Ministers to decide under section 28 or 29 whether to remove an individual from the children's list or the adults' list (with references to deciding whether to list an individual being read as references to deciding whether an individual should not have been listed or is no longer unsuitable to carry out regulated roles with children or, as the case may be, regulated roles with adults).”. Confirmation of PVG Scheme membership.

Confirmation of PVG Scheme membershipS

86Confirmation of scheme membership under the PVG ActS

(1)The PVG Act is amended as follows.

(2)For section 46 (statement of scheme membership) substitute—

46Confirmation of scheme membership

(1)Ministers must provide a confirmation of scheme membership to each scheme member.

(2)A confirmation of scheme membership is a document which—

(a)specifies the type of regulated role in relation to which the scheme member participates in the Scheme,

(b)confirms that the scheme member is not barred from that type of role,

(c)if Ministers are considering whether to list the member in relation to that type of role—

(i)states that fact, and

(ii)sets out details of any conditions that Ministers have imposed under section 13A(1) or, if no such conditions have been imposed, states that fact, and

(d)contains such other information about the scheme member as may be prescribed.

(3)Ministers need not comply with subsection (1) where, at the same time as the individual applies to join the scheme, the individual makes an application under section 11 of the Disclosure (Scotland) Act 2020 for a Level 2 disclosure where section 17 of that Act applies..

(3)For section 54 (disclosure of scheme membership) substitute—

54Provision of confirmation of scheme membership to third parties

(1)Where—

(a)a scheme member requests that Ministers make a confirmation of scheme membership available to such other person (a “third party”) as the member specifies in the request, and

(b)the conditions in subsection (2) are satisfied,

Ministers must comply with the request.

(2)The conditions are that—

(a)the request includes a statement referred to in subsection (3),

(b)the request specifies the type of regulated role in relation to which it is made, and

(c)the scheme member participates in the Scheme in relation to that type of regulated role.

(3)The statement is a statement by the scheme member that the confirmation of scheme membership is requested for the purpose of enabling or assisting the third party (or any other person for whom the third party acts) to consider the member's suitability to carry out, or to be offered or supplied for, the type of regulated role in relation to which the member participates in the Scheme..

MiscellaneousS

87Retention of scheme records after removalS

In section 61 (retention of scheme records after removal) of the PVG Act, after subsection (2) insert—

(3)Where Ministers decide under section 59A(1) not to continue to consider whether to list an individual, Ministers may keep any information received by them when considering whether to list the individual for the purposes of enabling or assisting them to perform their functions under this Act..

88Offences outside ScotlandS

(1)The PVG Act is amended as follows.

(2)After section 37 insert—

37AOffences outside Scotland

(1)This section applies where an offence is committed under section 34, 35 or 36 outside Scotland.

(2)The person committing the offence may be prosecuted, tried and punished for the offence—

(a)in a sheriff court district in which the person is apprehended or in custody, or

(b)in a sheriff court district determined by the Lord Advocate,

as if the offence had been committed in that district.

(3)The offence is, for all purposes incidental to or consequential on the trial and punishment, deemed to have been committed in that district..

(3)After section 45G (as inserted by section 73) insert—

47HOffences outside Scotland

(1)This section applies where an offence is committed under section 45C, 45D, 45E or 45F outside Scotland.

(2)The person committing the offence may be prosecuted, tried and punished for the offence—

(a)in a sheriff court district in which the person is apprehended or in custody, or

(b)in a sheriff court district determined by the Lord Advocate,

as if the offence had been committed in that district.

(3)The offence is, for all purposes incidental to or consequential on the trial and punishment, deemed to have been committed in that district..

89Guidance for chief constableS

After section 84 of the PVG Act insert—

84AGuidance for chief constable

(1)The Scottish Ministers must issue guidance to the chief constable about the exercise of the chief constable's functions under Parts 1 and 2 of this Act.

(2)The Scottish Ministers may from time to time issue revised guidance, and references in this section to guidance include revised guidance.

(3)Before issuing guidance under this section, the Scottish Ministers must consult the chief constable.

(4)The chief constable must have regard to guidance issued under this section in exercising functions under Part 1 or 2 of this Act.

(5)This section does not affect the generality of section 84..

90Meaning of “conviction”S

(1)The PVG Act is amended as follows.

(2)In section 97(1) (general interpretation), after the definition of “conduct” insert—

conviction” means a conviction within the meaning of the Rehabilitation of Offenders Act 1974; and references to “convicted” (other than in section 14) are to be construed accordingly,.

(3)In schedule 5 (index), at the appropriate place insert—

conviction, convicted (other than in section 14)section 97(1).

PART 3 SGeneral

91RegulationsS

(1)Any power of the Scottish Ministers to make regulations under this Act includes power to make—

(a)incidental, supplementary, consequential, transitional, transitory or saving provision,

(b)different provision for different purposes.

(2)Regulations under section 9(3), 38(1) or 39(1) are subject to the affirmative procedure.

(3)Regulations under section 92(1) containing provisions which add to, replace or omit any part of the text of an Act are subject to the affirmative procedure.

(4)All other regulations under this Act are subject to the negative procedure.

(5)This section does not apply to regulations under section 97(2).

92Ancillary provisionS

(1)The Scottish Ministers may by regulations make any incidental, supplementary, consequential, transitional, transitory or saving provision they consider appropriate for the purposes of, in connection with or for giving full effect to this Act or any provision made under it.

(2)Regulations under subsection (1) may modify any enactment (including this Act).

93Consequential and minor modificationsS

In schedule 5—

(a)Part 1 contains modifications of enactments in consequence of Part 1.

(b)Part 2 contains modifications of enactments in consequence of Part 2.

(c)Part 3 contains minor modifications of enactments and other modifications in consequence of this Act.

94Individual culpability where organisation commits offenceS

(1)This section applies where—

(a)an offence under this Act is committed by a relevant organisation, and

(b)the commission of the offence—

(i)involves consent or connivance on the part of a responsible individual, or

(ii)is attributable to neglect on the part of a responsible individual.

(2)The responsible individual (as well as the relevant organisation) commits the offence.

(3)For the purposes of this section—

(a)relevant organisation” means an organisation listed in the first column of the table in subsection (4),

(b)responsible individual” means, in relation to a relevant organisation—

(i)an individual falling within the corresponding entry in the second column of the table in subsection (4), or

(ii)an individual purporting to act in the capacity of an individual falling within the corresponding entry.

(4)The table is as follows—

Organisation Individual
company as mentioned in section 1 of the Companies Act 2006director, manager, secretary or other similar officer
member, where the company's affairs are managed by its members
limited liability partnershipmember
other partnershippartner
any other body or associationindividual who is concerned in the management or control of its affairs

95Meaning of “the PVG Act”S

In this Act, “the PVG Act” means the Protection of Vulnerable Groups (Scotland) Act 2007.

96Crown applicationS

(1)Nothing in or under this Act makes the Crown criminally liable.

(2)The Court of Session may, on an application by the Scottish Ministers, declare unlawful any act or omission for which the Crown would be criminally liable if it were not for subsection (1).

(3)Subsection (1) does not affect the criminal liability of persons in the service of the Crown.

97CommencementS

(1)This Part, other than section 93, comes into force on the day after Royal Assent.

(2)The other provisions of this Act come into force on such day as the Scottish Ministers may by regulations appoint.

(3)Regulations under subsection (2) may—

(a)include transitional, transitory or saving provision,

(b)make different provision for different purposes.

98Short titleS

The short title of this Act is the Disclosure (Scotland) Act 2020.

SCHEDULE 1SList A offences

(introduced by section 9(1)(b)(i))

PART 1 SCommon law offences

1SAbduction.

2SAbortion.

3SAssault to the danger of life.

4SAssault to severe injury.

5SAssault with intent to rape or ravish.

6SAssault with intent to commit the statutory offence of rape.

7SBestiality.

8SCruel and unnatural treatment of persons.

9SCulpable homicide.

10SDefeating the ends of justice.

11SDrugging.

12SEmbezzlement.

13SExtortion.

14SHamesucken.

15SPerverting the course of justice (by whatever means and however the offence is described), including in particular—

(a)false accusation of a crime,

(b)perjury,

(c)prevarication on oath,

(d)prison breaking,

(e)subornation of perjury.

16SPlagium.

17SReset of plagium.

18SWilful fire-raising.

PART 2 SStatutory offences

Armed forcesS

19SAn offence under section 42 of the Armed Forces Act 2006 (criminal conduct) where the corresponding offence under the law of England and Wales is, or corresponds to, an offence listed in this schedule.

BriberyS

20SAn offence under the Bribery Act 2010.

ChildrenS

21SAn offence under section 12 of the Children and Young Persons (Scotland) Act 1937 (cruelty to persons under 16).

Computer misuseS

22SAn offence under section 3ZA of the Computer Misuse Act 1990 (unauthorised acts causing, or creating risk of, serious damage).

Domestic abuseS

23SAn offence under section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour in an intimate or family relationship).

24SAn offence under section 2 of the Domestic Abuse (Scotland) Act 2011 (breach of domestic abuse interdict with power of arrest).

25SAn offence under section 1 of the Domestic Abuse (Scotland) Act 2018 (abusive behaviour towards partner or ex-partner).

ExplosivesS

26SAn offence under the Explosive Substances Act 1883.

False statements and declarationsS

27SAn offence under section 44 of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements and declarations).

Firearms and other weaponsS

28SAn offence under section 1A of the Prevention of Crime Act 1953 (threatening with offensive weapon in public).

29SAn offence under any of the following provisions of the Firearms Act 1968—

(a)section 4 (conversion of weapons),

(b)section 5 (weapons subject to general prohibition),

(c)section 16 (possession of firearm with intent to injure),

(d)section 16A (possession of firearm with intent to cause fear of violence),

(e)section 17 (use of firearm to resist arrest),

(f)section 18 (carrying firearm with criminal intent),

(g)section 19 (carrying firearm in a public place),

(h)section 20 (trespassing with firearm),

(i)section 21 (possession of firearm by persons previously convicted of crime),

(j)section 24 (supplying firearms to minors),

(k)section 25 (supplying firearm to person drunk or insane),

(l)section 46(5) (power of search with warrant),

(m)section 47 (powers of constables to stop and search),

(n)section 48 (production of certificates).

30SAn offence under the Chemical Weapons Act 1996.

31SAn offence under section 139AA of the Criminal Justice Act 1988 (threatening with article with blade or point or offensive weapon).

Forced marriageS

32SAn offence under section 9 of the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011 (offence of breaching order).

33SAn offence under section 122 of the Anti-social Behaviour, Crime and Policing Act 2014 (offence of forced marriage: Scotland).

Fraud and forgeryS

34SAn offence under any of the following provisions of the Forgery and Counterfeiting Act 1981—

(a)Part 1 (forgery and kindred offences),

(b)section 14 (offences of counterfeiting notes and coins),

(c)section 15 (offences of passing etc. counterfeit notes and coins),

(d)section 16 (offences involving custody or control of counterfeit notes and coins),

(e)section 17 (offences involving the making or custody or control of counterfeiting materials and implements).

HarassmentS

35SAn offence under section 234A of the Criminal Procedure (Scotland) Act 1995 (non-harassment orders).

36SAn offence under any of the following provisions of the Protection from Harassment Act 1997—

(a)section 2 (offence of harassment),

(b)section 2A (offence of stalking),

(c)section 4 (putting people in fear of violence),

(d)section 4A (stalking involving fear of violence or serious alarm or distress),

(e)section 9 (breach of non-harassment order).

Human trafficking and exploitationS

37SAn offence under section 22 of the Criminal Justice (Scotland) Act 2003 (traffic in prostitution etc.).

38SAn offence under section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (trafficking people for exploitation).

39SAn offence under section 47 of the Criminal Justice and Licensing (Scotland) Act 2010 (slavery, servitude and forced or compulsory labour).

40SAn offence under section 3A of the Female Genital Mutilation Act 2003 (failure to protect girl from risk of genital mutilation).

41SAn offence under the Prohibition of Female Genital Mutilation (Scotland) Act 2005.

42SAn offence under any of the following provisions of the Human Trafficking and Exploitation (Scotland) Act 2015—

(a)section 1 (offence of human trafficking),

(b)section 4 (slavery, servitude and forced or compulsory labour),

(c)section 32(1) (breach of certain orders).

InsolvencyS

43SAn offence under any of the following provisions of the Insolvency Act 1986—

(a)section 206 (fraud, etc. in anticipation of winding up),

(b)section 207 (transactions in fraud of creditors),

(c)section 208 (misconduct in course of winding up),

(d)section 209 (falsification of company's books),

(e)section 210 (material omissions from statement relating to company's affairs),

(f)section 211 (false representations to creditors).

Medical professions etc.S

44SAn offence under section 10Z9 of the National Health Service (Scotland) Act 1978 (offences in relation to registration).

45SAn offence under any of the following provisions of the Medical Act 1983—

(a)section 49 (penalty for pretending to be registered),

(b)section 49A (penalty for pretending to hold a licence to practise).

46SAn offence under article 38 of the Pharmacy Order 2010 (offences relating to the Register).

MedicinesS

47SAn offence under any of the following provisions of the Medicines Act 1968—

(a)section 67(1A) and (1B) (offences under Part 3),

(b)section 78 (restrictions on use of titles, descriptions and emblems).

Proceeds of crime and money launderingS

48SAn offence under any of the following provisions of the Proceeds of Crime Act 2002—

(a)Part 7 (money laundering), other than section 339(1A),

(b)Part 8 (investigations).

ProstitutionS

49SAn offence under any of the following provisions of the Criminal Law (Consolidation) (Scotland) Act 1995—

(a)section 7 (procuring),

(b)section 9 (permitting girl to use premises for intercourse),

(c)section 11 (trading in prostitution and brothel-keeping),

(d)section 12 (allowing child to be in brothel),

(e)section 13(9) (living on the earnings of another from male prostitution).

Road trafficS

50SAn offence under any of the following provisions of the Road Traffic Act 1988—

(a)section 1 (causing death by dangerous driving),

(b)section 3ZC (causing death by driving: disqualified drivers),

(c)section 3A (causing death by careless driving when under influence of drink or drugs).

Serious organised crimeS

51SAn offence under any of the following provisions of the Criminal Justice and Licensing (Scotland) Act 2010—

(a)section 28 (involvement in serious organised crime),

(b)section 30 (directing serious organised crime),

(c)section 31 (failure to report serious organised crime).

Sexual offencesS

52SAn offence under section 50(3) of the Customs and Excise Management Act 1979 (penalty for improper importation of goods) in relation to goods prohibited to be imported under section 42 of the Customs Consolidation Act 1876, but only where the prohibited goods include indecent photographs of persons.

53SAn offence under section 51A of the Civic Government (Scotland) Act 1982 (extreme pornography).

54SA sexual offence within the meaning given in section 210A(10) of the Criminal Procedure (Scotland) Act 1995 other than an offence mentioned in paragraph (xxvii)(ZF) or (ZG) of the definition of “sexual offence” in that subsection (engaging while an older child in sexual conduct with or towards another older child).

55SAn offence under any of the following provisions of the Sexual Offences Act 2003—

(a)section 67A (voyeurism: additional offences),

(b)section 103I (breach of sexual harm prevention order or interim sexual harm prevention order),

(c)section 113 (breach of sexual offences prevention order or interim sexual offences prevention order, etc.),

(d)section 122H (breach of sexual risk order or interim sexual risk order).

56SAn offence under section 7 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (offence: breach of risk of sexual harm order or interim risk of sexual harm order etc.).

57SAn offence under any of the following provisions of the Sexual Offences (Scotland) Act 2009—

(a)section 54 (incitement to commit certain sexual acts outside Scotland),

(b)section 54A (offences committed outside Scotland),

(c)section 55 (offences committed outside the United Kingdom).

58SAn offence under section 69 of the Serious Crime Act 2015 (possession of paedophile material).

59SAn offence under any of the following provisions of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016—

(a)section 2 (disclosing, or threatening to disclose, an intimate photograph or film),

(b)section 24 (breach of sexual harm prevention order or interim sexual harm prevention order),

(c)section 34 (breach of sexual risk order or interim sexual risk order),

(d)section 37 (breach of orders equivalent to orders in Chapters 3 and 4).

SolicitorsS

60SAn offence under the Solicitors (Scotland) Act 1980.

Stalking and harassmentS

61SAn offence under section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995 (racially-aggravated harassment).

62SAn offence under section 39 of the Criminal Justice and Licensing (Scotland) Act 2010 (offence of stalking).

TaxationS

63SAn offence under any of the following provisions of the Criminal Finances Act 2017—

(a)section 45(1) (failure to prevent facilitation of UK tax evasion offences),

(b)section 46(1) (failure to prevent facilitation of foreign tax evasion offences).

TerrorismS

64SAn offence under any of the following provisions of the Terrorism Act 2000—

(a)section 11 (membership),

(b)section 12 (support),

(c)section 15 (fund-raising),

(d)section 16 (use and possession),

(e)section 17 (funding arrangements),

(f)section 17A(2) or (4) (insurance payments made in response to terrorist demands),

(g)section 18 (money laundering),

(h)section 19 (disclosure of information: duty),

(i)section 21A (failure to disclose: regulated sector),

(j)section 21D (tipping off: regulated sector),

(k)section 38B (information about acts of terrorism),

(l)section 39 (disclosure of information, &c.),

(m)section 54 (weapons training),

(n)section 56 (directing terrorist organisation),

(o)section 57 (possession for terrorist purposes),

(p)section 58 (collection of information),

(q)section 58A (eliciting, publishing or communicating),

(r)section 58B (entering or remaining in a designated area),

(s)section 61 (inciting terrorism overseas).

65SAn offence under any of the following provisions of the Anti-terrorism, Crime and Security Act 2001—

(a)section 47 (use etc. of nuclear weapons),

(b)section 50 (assisting or inducing certain weapons-related acts overseas),

(c)section 52 (powers of entry),

(d)section 54 (offences),

(e)section 67 (offences),

(f)section 79 (prohibition of disclosures relating to nuclear security),

(g)section 80 (prohibition of disclosures of uranium enrichment technology),

(h)section 113 (use of noxious substances or things to cause harm and intimidate),

(i)section 114 (hoaxes involving noxious substances or things),

(j)paragraph 7 of schedule 3 (offences).

66SAn offence under the Terrorism Act 2006.

67SAn offence under any of the following provisions of the Counter-Terrorism Act 2008—

(a)section 2 (offence of obstruction),

(b)section 54 (offences relating to notification),

(c)paragraph 15 of schedule 5 (breach of foreign travel restriction order and offence),

(d)paragraph 30 of schedule 7 (offences: failure to comply with requirement imposed by direction),

(e)paragraph 30A of schedule 7 (offences: relevant person circumventing requirements),

(f)paragraph 31 of schedule 7 (offences in connection with licences).

Violent offender ordersS

68SAn offence under section 113(1) of the Criminal Justice and Immigration Act 2008 (breach of violent offender order or interim violent offender order).

Vulnerable personsS

69SAn offence under section 83 of the Adults with Incapacity (Scotland) Act 2000 (offence of ill-treatment and wilful neglect).

70SAn offence under section 315 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (ill-treatment and wilful neglect of mentally disordered person).

71SAn offence under any of the following provisions of the Protection of Vulnerable Groups (Scotland) Act 2007—

(a)section 13C (breach of conditions: offences),

(b)section 34 (barred individuals not to carry out regulated roles),

(c)section 35 (organisations not to use barred individuals for regulated roles),

(d)section 36 (personnel suppliers not to supply barred individuals for regulated roles),

(e)section 45C (individuals must be scheme members to carry out regulated roles),

(f)section 45D (organisations not to use individuals for regulated roles without confirming scheme membership),

(g)section 45E (power to require organisations to stop using individuals for regulated roles without scheme membership),

(h)section 45F (personnel suppliers not to supply individuals for regulated roles without confirming scheme membership).

72SAny offence where the conduct in respect of which the person was convicted also constituted a breach of a banning order granted under section 19 of the Adult Support and Protection (Scotland) Act 2007 (banning orders).

73SAn offence under section 26 of the Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016 (care worker offence).

Witness protectionS

74SAn offence under any of the following provisions of the Serious Organised Crime and Police Act 2005—

(a)section 86 (offence of disclosing information about protection arrangements),

(b)section 88 (offences of disclosing information relating to persons assuming new identity).

Statutory aggravationsS

75SAn offence (other than another List A offence) in relation to which any of the following provisions apply—

(a)section 31 of the Counter-Terrorism Act 2008 (offences aggravated by terrorism),

(b)section 29(1) of the Criminal Justice and Licensing (Scotland) Act 2010 (offences aggravated by connection with serious organised crime),

(c)section 5 of the Human Trafficking and Exploitation (Scotland) Act 2015 (aggravation by connection with human trafficking activity),

(d)section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (offences aggravated by involving abuse of partner or ex-partner).

PART 3 SOther

Common law aggravationsS

76SAn offence the conviction for which indicates that it was committed against a child.

77SAn offence the conviction for which indicates that it included a sexual element.

Inchoate offencesS

78SAn offence committed by aiding, abetting, counselling, procuring or inciting the commission of the offence of murder or any offence listed in paragraphs 1 to 77 of this schedule.

79SAn offence committed by attempting or conspiring to commit the offence of murder or any offence listed in paragraphs 1 to 77 of this schedule.

Superseded offencesS

80SAn offence superseded (whether directly or indirectly) by any offence listed in paragraphs 1 to 79 of this schedule (and any qualification in relation to a listed offence applies to the superseded offence as it applies to the listed offence).

Combined offencesS

81SAn offence which was charged, and the conviction for which was received, in conjunction with any offence listed in paragraphs 1 to 80 of this schedule.

Corresponding offences elsewhere in the UK or abroadS

82SAn offence under the law of England and Wales or Northern Ireland, or any country or territory outside the United Kingdom, which corresponds to any offence listed in paragraphs 1 to 81 of this schedule.

SCHEDULE 2SList B offences

(introduced by section 9(1)(b)(i))

PART 1 SCommon law offences

1SAssault excluding any assault that is a List A offence.

2SBreach of the peace.

3SClandestinely taking possession.

4SCulpable and reckless conduct.

5SCulpable and reckless endangering of the public.

6SCulpable and reckless fire-raising.

7SFraud.

8SHijacking.

9SHousebreaking with intent to steal.

10SOpening a lockfast place with intent to steal.

11SPiracy.

12SPublic indecency.

13SReset (excluding reset of plagium).

14SRobbery.

15STheft (excluding plagium).

16STreason.

17SUttering.

18SUttering threats.

PART 2 SStatutory offences

Adult support and protectionS

19SAn offence under section 49 of the Adult Support and Protection (Scotland) Act 2007 (obstruction).

Armed forcesS

20SAn offence under section 42 of the Armed Forces Act 2006 (criminal conduct) where the corresponding offence under the law of England and Wales is, or corresponds to, an offence listed in this schedule.

Assaulting or hindering public officialsS

21SAn offence under section 89 of the Police Act 1996 (assaults on constables).

22SAn offence under section 32 of the Commissioners for Revenue and Customs Act 2005 (assault).

23SAn offence under the Emergency Workers (Scotland) Act 2005.

24SAn offence under section 85 of the Fire (Scotland) Act 2005 (false alarms).

25SAn offence under section 90 of the Police and Fire Reform (Scotland) Act 2012 (assaulting or impeding police).

Aviation, maritime and spaceflightS

26SAn offence under the Piracy Act 1837.

27SAn offence under any of the following provisions of the Aviation Security Act 1982—

(a)section 1 (hijacking),

(b)section 2 (destroying, damaging or endangering safety of aircraft),

(c)section 3 (other acts endangering or likely to endanger safety of aircraft),

(d)section 4 (offences in relation to certain dangerous articles).

28SAn offence under section 9 of the Aviation and Maritime Security Act 1990 (hijacking of ships).

29SAn offence under article 265 of the Air Navigation Order 2016 in respect of a contravention of article 240 of that Order (endangering safety of aircraft).

30SAn offence under any of the following paragraphs of schedule 4 of the Space Industry Act 2018—

(a)paragraph 1 (hijacking of spacecraft),

(b)paragraph 2 (destroying, damaging or endangering safety of spacecraft),

(c)paragraph 3 (other acts endangering or likely to endanger safety of spacecraft),

(d)paragraph 5 (offences in relation to certain dangerous articles).

Care servicesS

31SAn offence under any of the following provisions of the Regulation of Care (Scotland) Act 2001—

(a)section 45 (application for registration under Part 3),

(b)section 52 (use of title “social worker” etc.).

32SAn offence under any of the following provisions of the Public Services Reform (Scotland) Act 2010—

(a)section 80(1) (offences in relation to registration under Chapter 3),

(b)section 81 (false statements in application under Chapter 3),

(c)section 90 (offences under Chapter 4).

33SAn offence under article 27 of the Public Services Reform (General Teaching Council for Scotland) Order 2011 (offences).

34SAn offence under regulation 19 of the Social Care and Social Work Improvement (Scotland) (Requirements for Care Services) Regulations 2011 (offences).

CharitiesS

35SAn offence under the Charities and Trustee Investment (Scotland) Act 2005.

Child SupportS

36SAn offence under section 50 of the Child Support Act 1991 (unauthorised disclosure of information).

ChildrenS

37SAn offence under section 6 of the Child Abduction Act 1984 (offence in Scotland of parent, etc. taking or sending child out of United Kingdom).

Computer misuseS

38SAn offence under any of the following provisions of the Computer Misuse Act 1990—

(a)section 1 (unauthorised access to computer material),

(b)section 2 (unauthorised access with intent to commit or facilitate commission of further offences),

(c)section 3 (unauthorised acts with intent to impair, or with recklessness as to impairing, operation of computer etc.),

(d)section 3A (making, supplying or obtaining articles for use in an offence under section 1, 3 or 3ZA).

CrossbowsS

39SAn offence under section 1 of the Crossbows Act 1987 (sale and letting on hire).

DrugsS

40SAn offence under any of the following provisions of the Misuse of Drugs Act 1971—

(a)section 3 (restriction of importation and exportation of controlled drugs),

(b)section 4 (restriction of production and supply of controlled drugs),

(c)section 4A (aggravation of offence of supply of controlled drug),

(d)section 5(3) (restriction of possession of controlled drugs),

(e)section 6 (restriction of cultivation of cannabis plant),

(f)section 8(a) and (b) (occupiers etc. of premises to be punishable for certain activities taking place there),

(g)section 12 (directions prohibiting prescribing, supply etc. of controlled drugs by practitioners etc. convicted of certain offences),

(h)section 13 (directions prohibiting prescribing, supply etc. of controlled drugs by practitioners in other cases),

(i)section 17 (power to obtain information from doctors, pharmacists etc. in certain circumstances),

(j)section 19 (attempts etc. to commit offences), but only in relation to an offence listed in sub-paragraphs (a) to (i) of this paragraph,

(k)section 20 (assisting in or inducing commission outside United Kingdom of offence punishable under corresponding law).

41SAn offence under any of the following provisions of the Customs and Excise Management Act 1979 in relation to goods prohibited to be imported or exported under section 3(1) of the Misuse of Drugs Act 1971 (restriction of importation and exportation of controlled drugs)—

(a)section 50(2) or (3) (penalty for improper importation of goods),

(b)section 68(2) (offences in relation to exportation of prohibited or restricted goods),

(c)section 170 (fraudulent evasion of duty).

42SAn offence under the Criminal Justice (International Co-operation) Act 1990.

43SAn offence under any of the following provisions of the Psychoactive Substances Act 2016—

(a)section 5 (supplying, or offering to supply, a psychoactive substance),

(b)section 7 (possession of psychoactive substance with intent to supply),

(c)section 8 (importing or exporting a psychoactive substance),

(d)section 9 (possession of a psychoactive substance in a custodial institution),

(e)section 48 (offence in relation to enforcement officers).

Escape from custody etc.S

44SAn offence under section 316 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (inducing and assisting absconding etc.).

45SAn offence under section 91 of the Police and Fire Reform (Scotland) Act 2012 (escape from custody).

Financial servicesS

46SAn offence under the Financial Services and Markets Act 2000.

47SAn offence under the Financial Services Act 2012.

Fire safetyS

48SAn offence under section 72(1) or (3) of the Fire (Scotland) Act 2005 (offences).

FirearmsS

49SAn offence under any of the following provisions of the Firearms Act 1968—

(a)section 1 (requirement of firearm certificate),

(b)section 2 (requirement of certificate for possession of shot guns),

(c)section 3 (business and other transactions with firearms and ammunition),

(d)section 22 (acquisition and possession of firearms by minors),

(e)section 23 (exceptions from section 22(4)),

(f)section 28A(7) (certificates: supplementary),

(g)section 29 (variation of firearm certificates),

(h)section 30D(3) (revocation of certificates: supplementary),

(i)section 39 (offences in connection with registration),

(j)section 40 (compulsory register of transactions in firearms).

50SAn offence under section 50(5) of the Civic Government (Scotland) Act 1982 (drunk in possession of firearm).

51SAn offence under the Firearms (Amendment) Act 1997.

52SAn offence under any of the following provisions of the Violent Crime Reduction Act 2006—

(a)section 28 (using someone to mind a weapon),

(b)section 32 (sales of air weapons by way of trade or business to be face to face),

(c)section 35 (restriction on sale and purchase of primers),

(d)section 36 (manufacture, import and sale of realistic imitation firearms).

53SAn offence under section 31 of the Air Weapons and Licensing (Scotland) Act 2015 (false statements, certificates and permits).

Food safety and standardsS

54SAn offence under any of the following provisions of the Food Safety Act 1990—

(a)section 7 (rendering food injurious to health),

(b)section 9 (inspection and seizure of suspected food).

55SAn offence under regulation 4(b) of the General Food Regulations 2004 (food safety requirements).

Fraud and forgeryS

56SAn offence under any of the following provisions of the Forgery and Counterfeiting Act 1981—

(a)section 18 (offence of reproducing British currency notes),

(b)section 19 (offences of making etc. imitation British coins).

57SAn offence under section 46A of the Criminal Law (Consolidation) (Scotland) Act 1995 (false monetary instruments).

58SAn offence under the Fraud Act 2006.

59SAn offence under section 993 of the Companies Act 2006 (offence of fraudulent trading).

60SAn offence under section 49 of the Criminal Justice and Licensing (Scotland) Act 2010 (articles for use in fraud).

61SAn offence under section 92 of the Police and Fire Reform (Scotland) Act 2012 (impersonation etc.).

Immigration etc.S

62SAn offence under any of the following provisions of the Immigration and Asylum Act 1999—

(a)section 105 (false representations),

(b)section 106 (dishonest representations),

(c)any of the following paragraphs of schedule 11—

(i)paragraph 1 (obtaining certificates of authorisation by false pretences),

(ii)paragraph 4 (assaulting a detainee custody officer),

(iii)paragraph 5 (obstructing detainee custody officers).

63SAn offence under section 35 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (deportation or removal: cooperation).

64SAn offence under section 21 of the Immigration, Asylum and Nationality Act 2006 (offence).

InsolvencyS

65SAn offence under any of the following provisions of the Insolvency Act 1986—

(a)section 131 (company's statement of affairs),

(b)section 216 (restriction on re-use of company names),

(c)section 235 (duty to co-operate with office-holder).

LandminesS

66SAn offence under section 2 of the Landmines Act 1998 (prohibited conduct).

LasersS

67SAn offence under the Laser Misuse (Vehicles) Act 2018.

MedicinesS

68SAn offence under section 67(2) or (3) of the Medicines Act 1968 (offences under Part 3).

69SAn offence under any of the following provisions of the Human Medicines Regulations 2012—

(a)regulation 34(1) (offences: breach of regulations and false information and defence concerning starting materials),

(b)regulation 255(1)(a), (b), (c) or (d) (offences relating to dealings with medicinal products).

Mental healthS

70SAn offence under section 318 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (false statements).

Neglect of dutyS

71SAn offence under Part 4 (shipping: alcohol and drugs) or Part 5 (aviation: alcohol and drugs) of the Railways and Transport Safety Act 2003.

72SAn offence under section 22 of the Police and Fire Reform (Scotland) Act 2012 (failure to perform duty).

Obscene material etc.S

73SAn offence under section 1(1) of the Indecent Displays (Control) Act 1981 (indecent displays).

74SAn offence under section 51 of the Civic Government (Scotland) Act 1982 (obscene material).

75SAn offence under section 85(3) of the Postal Services Act 2000 (prohibition on sending certain articles by post).

76SAn offence under section 127(1) of the Communications Act 2003 (improper use of public electronic communications network).

Offences in relation to childrenS

77SAn offence under any of the following provisions of the Children and Young Persons (Scotland) Act 1937—

(a)section 15 (causing or allowing persons under 16 to be used for begging),

(b)section 22 (exposing children under seven to risk of burning),

(c)section 31(1) (penalties and legal proceedings in respect of general provisions as to employment),

(d)section 33 (prohibition of persons under sixteen taking part in performances endangering life or limb),

(e)section 34 (restrictions on training for performances of a dangerous nature).

78SAn offence under section 40(1) of the Children and Young Persons Act 1963 (offences).

79SAn offence under section 50(2) of the Civic Government (Scotland) Act 1982 (drunk in charge of a child).

80SAn offence under section 81 of the Children (Scotland) Act 1995 (offences in connection with orders etc. for the protection of children).

81SAn offence under any of the following provisions of the Children's Hearings (Scotland) Act 2011—

(a)section 59 (offences),

(b)section 171 (offences related to absconding).

Offensive weaponsS

82SAn offence under the Restriction of Offensive Weapons Act 1959.

83SAn offence under section 50(3) (penalty for improper importation of goods) or section 170 (fraudulent evasion of duty) of the Customs and Excise Management Act 1979 in relation to goods prohibited to be imported under—

(a)section 1(2) of the Restriction of Offensive Weapons Act 1959 (penalties for offences in connection with dangerous weapons), or

(b)section 141(4) of the Criminal Justice Act 1988 (offensive weapons).

84SAn offence under any of the following provisions of the Criminal Justice Act 1988—

(a)section 141 (offensive weapons),

(b)section 141A (sale of knives and certain articles with blade or point to persons under eighteen).

85SAn offence under any of the following provisions of the Criminal Law (Consolidation) (Scotland) Act 1995—

(a)section 47 (prohibition of the carrying of offensive weapons),

(b)section 48 (search for offensive weapons),

(c)section 49 (offence of having in a public place an article with a blade or point),

(d)section 49A (offence of having article with blade or point (or offensive weapon) on school premises),

(e)section 49C (offence of having offensive weapon etc. in prison),

(f)section 50 (extension of constable's power to stop, search and arrest without warrant).

86SAn offence under any of the following provisions of the Offensive Weapons Act 2019—

(a)section 1 (sale of corrosive products to persons under 18),

(b)section 6 (offence of having a corrosive substance in a public place),

(c)section 11(5) (offences of obstruction and concealment relating to a search for corrosive substances: Scotland).

Official Secrets ActsS

87SAn offence under the Official Secrets Act 1911.

88SAn offence under the Official Secrets Act 1920.

89SAn offence under the Official Secrets Act 1989.

Proceeds of crime and money launderingS

90SAn offence under any of the following provisions of the Proceeds of Crime Act 2002—

(a)section 339(1A) (making disclosure otherwise than in the prescribed form and manner),

(b)section 453A (certain offences in relation to financial investigators).

91SAn offence under the Proceeds of Crime Act 2002 (External Investigations) Order 2013.

92SAn offence under the Proceeds of Crime Act 2002 (External Investigations) (Scotland) Order 2015.

ProstitutionS

93SAn offence under the Prostitution (Public Places) (Scotland) Act 2007.

Public orderS

94SAn offence under any of the following provisions of the Public Order Act 1986—

(a)section 1 (riot),

(b)section 2 (violent disorder),

(c)section 3 (affray),

(d)section 4 (fear or provocation of violence),

(e)section 4A (intentional harassment, alarm or distress),

(f)section 5 (harassment alarm or distress),

(g)section 18 (use of words or behaviour or display of written material),

(h)section 19 (publishing or distributing written material),

(i)section 20 (public performance of play),

(j)section 21 (distributing, showing or playing a recording),

(k)section 22 (broadcasting or including programme in cable programme service),

(l)section 23 (possession of racially inflammatory material),

(m)section 29B (use of words or behaviour or display of written material),

(n)section 29C (publishing or distributing written material),

(o)section 29D (public performance of play),

(p)section 29E (distributing, showing or playing a recording),

(q)section 29F (broadcasting or including programme in programme service),

(r)section 29G (possession of inflammatory material).

95SAn offence under section 68(1) of the Criminal Justice and Public Order Act 1994 (aggravated trespass).

Road trafficS

96SAn offence under any of the following provisions of the Road Traffic Act 1988—

(a)section 1A (causing serious injury by dangerous driving),

(b)section 2 (dangerous driving),

(c)section 2B (causing death by careless, or inconsiderate, driving),

(d)section 3ZB (causing death by driving: unlicensed or uninsured drivers),

(e)section 3ZD (causing serious injury by driving: disqualified drivers),

(f)section 4(1) (driving, or being in charge, when under the influence of drink or drugs),

(g)section 5(1) (driving or being in charge of a motor vehicle with alcohol concentration above prescribed limit),

(h)section 5A (driving or being in charge of a motor vehicle with concentration of specified controlled drug above specified limit),

(i)section 178 (taking motor vehicle without authority, etc.).

Sexual offencesS

97SAn offence under section 37(1) or (4) of the Sexual Offences (Scotland) Act 2009 (older children engaging in sexual conduct with each other).

TerrorismS

98SAn offence under any of the following provisions of the Terrorism Act 2000—

(a)section 13 (uniform and publication of images),

(b)section 36 (police powers),

(c)section 51 (offences),

(d)section 116 (powers to stop and search),

(e)paragraph 32 of schedule 5 (urgent cases),

(f)paragraph 18 of schedule 7 (offences).

Threatening or abusive behaviourS

99SAn offence under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 (threatening or abusive behaviour).

Miscellaneous statutory offencesS

100SAn offence under any of the following provisions of the Civic Government (Scotland) Act 1982—

(a)section 57 (being in or on building etc. with intent to commit theft),

(b)section 58 (convicted thief in possession),

(c)section 60 (powers of search and seizure).

101SAn offence under section 22 of the Rent (Scotland) Act 1984 (unlawful eviction and harassment of occupier).

102SAn offence under section 85(1) of the Postal Services Act 2000 (prohibition on sending certain articles by post).

103SAn offence under any of the following provisions of the Serious Organised Crime and Police Act 2005—

(a)section 67 (offences in connection with disclosure notices or search warrants),

(b)section 129 (corresponding Scottish offence),

(c)section 145 (interference with contractual relationships so as to harm animal research organisation),

(d)section 146 (intimidation of persons connected with animal research organisation).

Statutory aggravationsS

104SAn offence (other than a List A offence) in relation to which either of the following provisions applies—

(a)section 96 of the Crime and Disorder Act 1998 (offences racially aggravated), or

(b)section 74 of the Criminal Justice (Scotland) Act 2003 (offences aggravated by religious prejudice).

105SAn offence (other than a List A offence) to which either of the following provisions of the Offences (Aggravation by Prejudice) (Scotland) Act 2009 applies—

(a)section 1(1) (prejudice relating to disability), or

(b)section 2(1) (prejudice relating to sexual orientation or transgender identity).

PART 3 SOther

Common law aggravationsS

106SAn offence (other than a List A offence or an offence listed in paragraph 104 of this schedule), the conviction for which indicates that it included an element of racial prejudice or was racially motivated.

107SAn offence (other than a List A offence or an offence listed in paragraph 104 of this schedule), the conviction for which indicates that it included an element of religious prejudice or was motivated by religious prejudice.

Inchoate offencesS

108SAn offence committed by aiding, abetting, counselling, procuring or inciting the commission of any offence listed in paragraphs 1 to 107 of this schedule.

109SAn offence committed by attempting or conspiring to commit any offence listed in paragraphs 1 to 107 of this schedule.

Superseded offencesS

110SAn offence superseded (whether directly or indirectly) by any offence listed in paragraphs 1 to 109 of this schedule (and any qualification in relation to a listed offence applies to the superseded offence as it applies to the listed offence).

Combined offencesS

111SAn offence which was charged, and the conviction for which was received, in conjunction with any offence listed in paragraphs 1 to 110 of this schedule.

Corresponding offences elsewhere in the UK or abroadS

112SAn offence under the law of England and Wales or Northern Ireland, or any country or territory outside the United Kingdom, which corresponds to any offence listed in paragraphs 1 to 111 of this schedule.

SCHEDULE 3SSchedule to be substituted for Schedule 2 of the PVG Act

(introduced by section 74)

SCHEDULE 2SRegulated roles with children

(introduced by section 91(2))

PART 1 SPreliminary
Regulated roles with childrenS

1(1)A regulated role with children is a role of any description which—

(a)involves the carrying out of one or more activities mentioned in Part 2 of this schedule, and

(b)satisfies the conditions mentioned in sub-paragraph (2).

(2)The conditions are—

(a)the activities are carried out—

(i)as a necessary part of the role, and

(ii)in Scotland, and

(b)in the case of—

(i)activities mentioned in paragraph 21 of Part 2 of this schedule, the carrying out of the activities gives the individual carrying them out, when doing anything permitted or required in connection with the carrying out of the activities, the opportunity to have unsupervised contact with children,

(ii)other activities mentioned in Part 2 of this schedule, the carrying out of the activities gives the individual carrying them out, when doing anything permitted or required in connection with the carrying out of the activities, the opportunity to have contact with children.

(3)A role—

(a)the normal duties of which include the day-to-day supervision or management of an individual carrying out a regulated role by virtue of sub-paragraph (1), or

(b)which involves training or studying in Scotland to carry out one or more activities mentioned in Part 2 of this schedule and which gives the individual undertaking the training or study, when doing anything permitted or required in connection with undertaking the training or study, the opportunity to have contact with children,

is to be treated as a regulated role with children for the purposes of sub-paragraph (1).

(4)For the purposes of sub-paragraph (2)(a)(ii), where—

(a)an activity is carried out outside the United Kingdom, the Channel Islands and the Isle of Man by an individual who is ordinarily resident in the United Kingdom,

(b)the activity is carried out for—

(i)an organisation with a place of business in Scotland, or

(ii)a personnel supplier with a place of business in Scotland, and

(c)the organisation's or personnel supplier's functions in relation to the carrying out of the activity by the individual are principally exercised at that place of business,

the activity is to be treated as if it were carried out in Scotland.

(5)For the purposes of sub-paragraph (3)(b), where—

(a)training or study is undertaken outside the United Kingdom, the Channel Islands and the Isle of Man by an individual who is ordinarily resident in the United Kingdom,

(b)the person with principal responsibility for the provision of the training or course of study is—

(i)an organisation with a place of business in Scotland, or

(ii)a personnel supplier with a place of business in Scotland, and

(c)the organisation's or personnel supplier's functions in relation to the undertaking of the training or study by the individual are principally exercised at that place of business,

the training or study is to be treated as if it were undertaken in Scotland.

Exceptions to regulated roles with childrenS

2(1)A role which would be a regulated role with children by virtue of the carrying out of an activity mentioned in any of the paragraphs of Part 2 of this schedule is not, despite any of those provisions, a regulated role with children if—

(a)the activity is carried out in relation to children in the course of the children's work (whether paid or unpaid work),

(b)the activity is carried out in the course of a family relationship, or

(c)the activity is carried out for an individual (“A”)—

(i)in the course of a personal relationship,

(ii)for no commercial consideration, and

(iii)for the benefit of A, a member of A's family or A's friend.

(2)In sub-paragraph (1)(b)—

(a)a family relationship does not include a relationship between a child and a foster carer in relation to the child,

(b)a family relationship includes a relationship between two persons who—

(i)live in the same household, and

(ii)treat each other as though they were members of the same family.

(3)In sub-paragraph (1)(c)—

(a)a personal relationship is a relationship between or among friends, and

(b)benefit” does not include commercial benefit.

(4)For the purposes of sub-paragraphs (1)(c) and (3)(a), a friend of a member of an individual's family is to be regarded as being the individual's friend.

(5)Ministers may prescribe circumstances in which an activity is or is not to be treated for the purposes of this paragraph as being done in the course of a family or personal relationship.

Definitions in relation to contact with childrenS

3(1)In paragraph 1(2)(b)—

  • “contact with children”—

    (a)

    means, in relation to an activity, contact that is more than incidental to the carrying out of the activity, and

    (b)

    includes physical contact with children, written or verbal communication with children, and exercising power or influence over children,

  • unsupervised contact with children” means contact with children in the absence of—

    (a)

    a responsible person,

    (b)

    a person carrying out an activity mentioned in paragraph 4, 8 or 12 of Part 2 of this schedule, or

    (c)

    an individual who, in relation to a child, has agreed to supervise the contact under arrangements made by the child's parent or guardian or any person aged 18 or over with whom the child lives in the course of a family or personal relationship,

  • responsible person” means, in relation to a child, any of the following persons—

    (a)

    the child's parent or guardian,

    (b)

    any person aged 18 or over with whom the child lives,

    (c)

    the person in charge of any of the following establishments in which the child is accommodated, is a patient or receives education (and any person acting on behalf of such a person)—

    (i)

    secure accommodation for children,

    (ii)

    a hospital which is used exclusively or mainly for the reception and treatment of children,

    (iii)

    an educational institution,

    (iv)

    a hostel,

    (v)

    a residential care setting,

    (d)

    a person who provides day care of children (within the meaning of schedule 12 of the Public Services Reform (Scotland) Act 2010),

    (e)

    any person holding a position mentioned in sub-paragraph (2),

  • “family relationship” and “personal relationship” are to be construed in accordance with paragraph 2(2) to (4).

(2)The positions referred to in paragraph (e) of the definition of “responsible person” in sub-paragraph (1) are—

(a)a manager or member of a governing body, body of trustees or other body responsible for the management of an educational institution or a hostel (other than a member of a council),

(b)a member of—

(i)a committee (including joint committee) of a council which is concerned with the provision of education, accommodation, social services or health care services to children,

(ii)a sub-committee which discharges any functions of any such committee,

(c)a member of—

(i)the Children's Panel,

(ii)the Safeguarders Panel,

(iii)Children's Hearings Scotland,

(iv)staff of Children's Hearings Scotland,

(v)an area support team,

(vi)the Scottish Children's Reporter Administration,

(vii)staff of the Scottish Children's Reporter Administration,

(d)the National Convener of Children's Hearings Scotland,

(e)the Principal Reporter,

(f)the chief social work officer of a council,

(g)the Chief Education Officer of an education authority,

(h)the Commissioner for Children and Young People in Scotland,

(i)a member of staff of the Commissioner for Children and Young People in Scotland,

(j)the Registrar of Independent Schools in Scotland,

(k)a foster carer,

(l)a charity trustee of a children's charity,

(m)a person holding another position in a children's charity.

(3)In paragraph 1(3), “contact with children”—

(a)means, in relation to training or study, contact that is more than incidental to the undertaking of the training or study, and

(b)includes physical contact with children, written or verbal communication with children, and exercising power or influence over children.

(4)For the purpose of paragraph (b) of the definitions of “contact with children” in each of sub-paragraphs (1) and (3), “exercising power or influence over children” means—

(a)assisting, facilitating, permitting or impeding progress towards a desirable objective or outcome for a particular child,

(b)making decisions of an operational or strategic nature that could have an impact on a number of children, or

(c)persuading or putting pressure on a particular child to behave or act in a certain manner for the financial gain or personal gratification of a person other than the child.

PART 2 SActivities
Child protectionS

4Acting as a foster carer in relation to the child.

5Making decisions in relation to a child's care arrangements where a council has facilitated the child's care arrangements.

6Having responsibility for the safety and welfare of a child, other than acting as a foster carer in relation to the child.

7Having the ability to directly influence decisions about the safety or welfare of a child, other than in the capacity of an elected representative or as the holder of a judicial office.

Education and trainingS

8Teaching, instructing or delivering training to children.

9Having the ability to directly influence the operational delivery of education services for children, other than in the capacity of an elected representative or as the holder of a judicial office.

10Holding power or influence over a child for the purpose of—

(a)an activity in which the child is taking part or seeking to take part in,

(b)arranging the future recruitment, training or employment of the child.

11Providing advice or guidance to children in relation to career development or education.

ChildcareS

12Being in charge of or caring for children, other than acting as a foster carer.

Care, health and accommodation servicesS

13Practising as a registered medical practitioner.

14Practising as a registered nurse, midwife or health visitor.

15Practising as a chiropractor pursuant to registration with the General Chiropractic Council.

16Practising as a dentist pursuant to registration with the General Dental Council.

17Practising as an optician pursuant to registration with the General Optical Council.

18Practising as an osteopath pursuant to registration with the General Osteopathic Council.

19Practising as a pharmacist pursuant to registration with the General Pharmaceutical Council.

20Being engaged in the provision of a domestic service (including cleaning, preparing food, acting as a caretaker of premises or carrying out maintenance of premises) that is provided for children in an educational institution, hospital, day care premises, hospice, hostel, residential care setting or secure accommodation for children.

21Carrying out an activity in an educational institution, hospital, nursery, day care premises, hospice, residential care setting or secure accommodation for children.

22Providing a care home service or an independent healthcare service which is provided exclusively or mainly for children.

23Being engaged by or on behalf of a child with an illness or disability to provide personal care services.

24Providing counselling, therapy or advice or guidance in relation to health or wellbeing to children, other than where such counselling, therapy, advice or guidance is provided in a prison by a prisoner to another prisoner.

25Having the ability to directly influence the operational delivery of medical or care services for children, other than in the capacity of an elected representative or as the holder of a judicial office.

Leisure activitiesS

26Providing cultural, leisure, social or recreational activities for children.

Sports activitiesS

27Coaching children in relation to sports or physical activity.

Religious activitiesS

28Providing religious activities or services for children.

MiscellaneousS

29Driving or escorting children in connection with transport services provided exclusively or mainly for children.

30Holding a position of responsibility in an organisation which has as one of its main purposes the provision of benefits for or to children (regardless of whether the organisation has an additional purpose of providing benefits for or to another group of persons).

InterpretationS

31In this schedule—

  • care home service” has the same meaning as in paragraph 2 of schedule 12 of the Public Services Reform (Scotland) Act 2010,

  • children's charity” means a charity whose—

    (a)

    main purpose is to provide benefits for children, and

    (b)

    principal means of delivery of those benefits is by its staff carrying out regulated roles with children,

  • day care premises” means premises at which day care of children (within the meaning of schedule 12 of the Public Services Reform (Scotland) Act 2010) is provided,

  • educational institution” means a school or further education institution,

  • elected representative” means—

    (a)

    a member of the House of Commons,

    (b)

    a member of the Scottish Parliament,

  • further education institution” means a body listed under the heading “Institutions formerly eligible for funding by the Scottish Further Education Funding Council” in schedule 2 of the Further and Higher Education (Scotland) Act 2005 or a college of further education which is assigned to a regional strategic body by order made under section 7C(1) of that Act,

  • hospital” has the meaning given in section 108(1) of the National Health Service (Scotland) Act 1978,

  • hostel” means a hostel used mainly by pupils attending an educational institution,

  • independent health care service” has the same meaning as in section 10F of the National Health Service (Scotland) Act 1978,

  • judicial office” means—

    (a)

    the office of judge of any court,

    (b)

    the office of member of any tribunal,

    (c)

    any other office, or appointment, consisting of functions of a judicial nature,

  • prison” means a prison, young offenders institution or remand centre that is under the general superintendence of the Scottish Ministers under the Prisons (Scotland) Act 1989 and includes any contracted out prison within the meaning of section 106(4) of the Criminal Justice and Public Order Act 1994,

  • prisoner” means a person committed to prison for trial, safe custody, punishment or otherwise,

  • residential care setting” means a home that—

    (a)

    is provided exclusively or mainly for children, and

    (b)

    is—

    (i)

    provided by a council in exercise of its functions under section 59 (provision by councils of residential and other establishments) of the Social Work (Scotland) Act 1968 or section 25 (provision of care and support services by councils) of the Mental Health (Care and Treatment) (Scotland) Act 2003, or

    (ii)

    provided or secured by a person to whom such a function is delegated by a council in pursuance of an integration scheme under section 1 or 2 (integration schemes) of the Public Bodies (Joint Working) (Scotland) Act 2014,

  • secure accommodation for children” means accommodation provided in a residential establishment, approved in accordance with regulations made under section 78(2) of the Public Services Reform (Scotland) Act 2010, for the purpose of restricting the liberty of children.

32Ministers may by regulations amend the definition of “further education institution” in paragraph 31 so as to include or exclude bodies listed in schedule 2 of the Further and Higher Education (Scotland) Act 2005.

PART 3 SGeneral
Power to amend scheduleS

33Ministers may by regulations modify this schedule as they think appropriate.

34Regulations under paragraph 33 may disapply or otherwise modify the application of sections 34 to 37 and sections 45C to 45G in relation to particular kinds of regulated roles with children..

SCHEDULE 4SSchedule to be substituted for Schedule 3 of the PVG Act

(introduced by section 74)

SCHEDULE 3SRegulated roles with adults

(introduced by section 91(3))

PART 1 SPreliminary
Regulated roles with adultsS

1(1)A regulated role with adults is a role of any description which—

(a)involves the carrying out of one or more activities mentioned in Part 2 of this schedule, and

(b)satisfies the conditions mentioned in sub-paragraph (2).

(2)The conditions are—

(a)the activities are carried out—

(i)as a necessary part of the role, and

(ii)in Scotland, and

(b)the carrying out of the activities gives the individual carrying them out, when doing anything permitted or required in connection with the carrying out of the activities, the opportunity to have contact with protected adults.

(3)A role—

(a)the normal duties of which include the day-to-day supervision or management of an individual carrying out a regulated role by virtue of sub-paragraph (1), or

(b)which involves training or studying in Scotland to carry out one or more activities mentioned in Part 2 of this schedule and which gives the individual undertaking the training or study, when doing anything permitted or required in connection with undertaking the training or study, the opportunity to have contact with protected adults,

is to be treated as a regulated role with adults for the purposes of sub-paragraph (1).

(4)For the purposes of sub-paragraph (2)(a)(ii), where—

(a)an activity is carried out outside the United Kingdom, the Channel Islands and the Isle of Man by an individual who is ordinarily resident in the United Kingdom,

(b)the activity is carried out for—

(i)an organisation with a place of business in Scotland, or

(ii)a personnel supplier with a place of business in Scotland, and

(c)the organisation's or personnel supplier's functions in relation to the carrying out of the activity by the individual are principally exercised at that place of business,

the activity is to be treated as if it were carried out in Scotland.

(5)For the purposes of sub-paragraph (3)(b), where—

(a)training or study is undertaken outside the United Kingdom, the Channel Islands and the Isle of Man by an individual who is ordinarily resident in the United Kingdom,

(b)the person with principal responsibility for the provision of the training or course of study is—

(i)an organisation with a place of business in Scotland, or

(ii)a personnel supplier with a place of business in Scotland, and

(c)the organisation's or personnel supplier's functions in relation to the undertaking of the training or study by the individual are principally exercised at that place of business,

the training or study is to be treated as if it were undertaken in Scotland.

Exceptions to regulated roles with adultsS

2(1)A role which would be a regulated role with adults by virtue of the carrying out of an activity mentioned in any of the paragraphs of Part 2 of this schedule is not, despite any of those provisions, a regulated role with adults if—

(a)the activity is carried out in the course of a family relationship, or

(b)the activity is carried out for an individual (“A”)—

(i)in the course of a personal relationship,

(ii)for no commercial consideration, and

(iii)for the benefit of A, a member of A's family or A's friend.

(2)In sub-paragraph (1)(a) a family relationship includes a relationship between two persons who—

(a)live in the same household, and

(b)treat each other as though they were members of the same family.

(3)In sub-paragraph (1)(b)—

(a)a personal relationship is a relationship between or among friends, and

(b)benefit” does not include commercial benefit.

(4)For the purposes of sub-paragraphs (1)(b) and (3)(a), a friend of a member of an individual's family is to be regarded as being the individual's friend.

(5)Ministers may prescribe circumstances in which an activity is or is not to be treated for the purposes of this paragraph as being done in the course of a family or personal relationship.

Definition of contact with protected adultsS

3(1)In paragraph 1(2)(b) “contact with protected adults”—

(a)means, in relation to an activity, contact that is more than incidental to the carrying out of the activity, and

(b)includes physical contact with protected adults, written or verbal communication with protected adults, and exercising power or influence over protected adults.

(2)In paragraph 1(3)(b) “contact with protected adults”—

(a)means, in relation to training or study, contact that is more than incidental to the undertaking of the training or study, and

(b)includes physical contact with protected adults, written or verbal communication with protected adults, and exercising power or influence over protected adults.

(3)For the purpose of paragraph (b) of the definitions of “contact with protected adults” in each of sub-paragraphs (1) and (2), “exercising power or influence over protected adults” means—

(a)assisting, facilitating, permitting or impeding progress towards a desirable objective or outcome for a particular protected adult,

(b)making decisions of an operational or strategic nature that could have an impact on a number of protected adults, or

(c)persuading or putting pressure on a particular protected adult to behave or act in a certain manner for the financial gain or personal gratification of a person other than the protected adult.

PART 2 SActivities
Education, training and guidanceS

4Teaching, instructing, training or supervising protected adults.

5Providing advice or guidance to a protected adult in relation to education, training or employability.

Care, health and accommodation servicesS

6Practising as a registered medical practitioner.

7Practising as a registered nurse, midwife or health visitor.

8Practising as a chiropractor pursuant to registration with the General Chiropractic Council.

9Practising as a dentist pursuant to registration with the General Dental Council.

10Practising as an optician pursuant to registration with the General Optical Council.

11Practising as an osteopath pursuant to registration with the General Osteopathic Council.

12Practising as a pharmacist pursuant to registration with the General Pharmaceutical Council.

13Being engaged in the provision of a domestic service (including cleaning, preparing food, acting as a caretaker of premises or carrying out maintenance of premises) that is provided for protected adults in a hospital, hospice, care home, day care centre or adult placement setting.

14Being in charge of protected adults.

15Being engaged by or on behalf of a protected adult to support the protected adult to live independently, including providing personal care services, food preparation or recreational services.

16Providing support to a protected adult under a shared lives scheme.

17Providing counselling, therapy or advice or guidance in relation to health or wellbeing to protected adults, other than where such counselling, therapy, advice or guidance is provided in a prison by a prisoner to another prisoner.

18Having the ability to directly influence the operational delivery of medical or care services for protected adults, other than in the capacity of an elected representative or as the holder of a judicial office.

Leisure activitiesS

19Providing cultural, leisure, social or recreational activities for protected adults.

Sports activitiesS

20Coaching protected adults in relation to sports or physical activity.

Religious activitiesS

21Providing religious activities or services for protected adults.

MiscellaneousS

22Driving or escorting protected adults in connection with transport services provided exclusively or mainly for use by protected adults.

23Holding a position of responsibility in an organisation whose main purpose is to provide benefits for or to protected adults (regardless of whether the organisation has an additional purpose of providing benefits for or to another group of persons).

InterpretationS

24In this schedule—

  • adult placement setting” means a residential establishment or accommodation occupied exclusively or mainly by individuals aged 18 or over which is—

    (a)

    provided by a council in exercise of its functions under section 59 (provision by councils of residential and other establishments) of the Social Work (Scotland) Act 1968 or section 25 (provision of care and support services by councils) of the Mental Health (Care and Treatment) (Scotland) Act 2003, or

    (b)

    provided or secured by a person to whom such a function is delegated by a council in pursuance of an integration scheme under section 1 or 2 (integration schemes) of the Public Bodies (Joint Working) (Scotland) Act 2014,

  • care home” means accommodation occupied exclusively or mainly by individuals aged 18 or over which is provided by an organisation carrying on a care home service (within the meaning of schedule 12 of the Public Services Reform (Scotland) Act 2010),

  • elected representative” means—

    (a)

    a member of the House of Commons,

    (b)

    a member of the Scottish Parliament,

  • hospital” has the meaning given in section 108(1) of the National Health Service (Scotland) Act 1978,

  • judicial office” means—

    (a)

    the office of judge of any court,

    (b)

    the office of member of any tribunal,

    (c)

    any other office, or appointment, consisting of functions of a judicial nature,

  • prison” means a prison, young offenders institution or remand centre that is under the general superintendence of the Scottish Ministers under the Prisons (Scotland) Act 1989 and includes any contracted out prison within the meaning of section 106(4) of the Criminal Justice and Public Order Act 1994,

  • prisoner” means a person committed to prison for trial, safe custody, punishment or otherwise,

  • shared lives agreement” means an agreement entered into between a person carrying on a shared lives scheme and an individual for the provision, by that individual, of personal care to a protected adult together with, where necessary, accommodation in the individual's home,

  • shared lives carer” means an individual who, under the terms of a shared lives agreement, provides, or intends to provide, personal care for protected adults together with, where necessary, accommodation in the individual's home,

  • shared lives scheme” means a scheme carried on (whether or not for profit) by a local authority or other person for the purposes of—

    (a)

    recruiting and training shared lives carers,

    (b)

    making arrangements for the placing of protected adults with shared lives carers, and

    (c)

    supporting and monitoring placements.

PART 3 SGeneral
Power to amend scheduleS

25Ministers may by regulations modify this schedule as they think appropriate.

26Regulations under paragraph 25 may disapply or otherwise modify the application of sections 34 to 37 and sections 45C to 45G in relation to particular kinds of regulated roles with adults..

SCHEDULE 5SConsequential and minor modifications

(introduced by section 93)

PART 1 SModifications of enactments in consequence of Part 1

Caravan Sites and Control of Development Act 1960S

1SIn section 32P of the Caravan Sites and Control of Development Act 1960 (fit and proper person: criminal conviction certificate)—

(a)in subsection (1), for the words from “criminal” to the end substitute “ Level 1 disclosure (within the meaning of section 1 of the Disclosure (Scotland) Act 2020). ”,

(b)in subsection (2), for “criminal conviction certificate” substitute “ Level 1 disclosure ”,

(c)the title of the section becomes “ Fit and proper person: Level 1 disclosure ”.

Rehabilitation of Offenders Act 1974S

2(1)The Rehabilitation of Offenders Act 1974 is amended as follows.S

(2)In section 5 (disclosure periods for particular sentences), after subsection (2A) insert—

(2AA)Subsection (2A)(a) is subject to section 5J(1)(ba)..

(3)In section 5A(1) (disclosure periods: ordinary cases), in Table A, in each of the following entries, for the period specified in the third column (disclosure period – aged under 18) substitute “ Nil (see section 5J(1)(ba)) ”

(a)the first entry (a custodial sentence not exceeding 12 months),

(b)the fourth entry (a fine),

(c)the fifth entry (a compensation order under section 249 of the Criminal Procedure (Scotland) Act 1995),

(d)the sixth entry (an order for endorsement made by a court in relation to an offence mentioned in schedule 2 of the Road Traffic Offenders Act 1988),

(e)the seventh entry (any sentence not mentioned in the entries above or in Table B other than one to which section 5(2D) or any of sections 5C to 5J applies).

(4)In section 5B (disclosure periods: service disciplinary offences), in Table B, in each of the entries, for the period specified in the third column (disclosure period – aged under 18) substitute “ Nil (see section 5J(1)(ba)) ”.

(5)In section 5C (disclosure period: caution for good behaviour), in subsection (2), paragraph (b) is repealed.

(6)In section 5D (disclosure period: particular court orders)—

(a)in subsection (1), paragraph (b) is repealed,

(b)in subsection (3), the words “and (b)(ii)” are repealed.

(7)In section 5I (disclosure period: service disciplinary orders)—

(a)in subsection (1), paragraph (b) is repealed,

(b)in subsection (3)—

(i)in paragraph (a), for “15” substitute “ 18 ”,

(ii)paragraph (b) is repealed.

(8)In section 5J (sentences to which no disclosure period applies)—

(a)in subsection (1), after paragraph (b) insert—

(ba)any sentence other than an excepted sentence mentioned in subsection (1A) imposed on a person in respect of a conviction for an offence committed when the person was under 18 years of age,,

(b)after subsection (1) insert—

(1A)The excepted sentences referred to in subsection (1)(ba) are—

(a)an excluded sentence,

(b)in the case of a conviction for an offence listed in any of paragraphs 52 to 59 of schedule 1 of the Disclosure (Scotland) Act 2020 (sexual offences), a custodial sentence (within the meaning of section 5(12)) for a term exceeding 12 months.

(1B)For the purposes of subsection (1)(ba), it is to be presumed, in the absence of evidence to the contrary, that a person convicted of an offence was of the same age at the time the offence was committed as the person was at the date of conviction..

Police Act 1997S

3SIn the Police Act 1997, Part 5 (certificates of criminal records etc.) is repealed.

Antisocial Behaviour etc. (Scotland) Act 2004S

4SIn section 85A of the Antisocial Behaviour etc. (Scotland) Act 2004 (fit and proper person: criminal record certificate)—

(a)in subsection (1), for the words from “criminal” to the end substitute “ Level 2 disclosure (within the meaning of section 8(1) of the Disclosure (Scotland) Act 2020). ”,

(b)in each of subsections (2) and (3), for “criminal record certificate” substitute “ Level 2 disclosure ”,

(c)in subsection (3), in each of paragraphs (a) and (b), for “certificate” substitute “ Level 2 disclosure ”,

(d)the title of the section becomes “ Fit and proper person: Level 2 disclosure ”.

Protection of Vulnerable Groups (Scotland) Act 2007S

5(1)The PVG Act is amended as follows.S

(2)In section 18 (police information etc.)—

(a)in subsection (4), for paragraph (b) substitute—

(b)any person who holds central records to provide them with the prescribed details of every relevant matter relating to the individual that is recorded those records.,

(b)after subsection (4) insert—

(5)In subsection (4)(b)—

  • central records” has the meaning given in section 69 of the Disclosure (Scotland) Act 2020,

  • relevant matter” means—

    (a)

    a conviction that is not a non-disclosable conviction within the meaning of section 9 of the Disclosure (Scotland) Act 2020,

    (b)

    a caution within the meaning given in section 69 of that Act that is not spent by virtue of schedule 3 of the Rehabilitation of Offenders Act 1974, and

    (c)

    a prescribed civil court order..

(3)In section 49 (vetting information)—

(a)in subsection (1), for paragraph (a) substitute—

(a)the prescribed details of every relevant matter relating to the scheme member that is recorded in central records,,

(b)after subsection (1) insert—

(1A)Section 33 of the Disclosure (Scotland) Act 2020 (Level 2 disclosure: considering relevance and whether to include certain information) applies for the purposes of subsection (1)(c) of this section as it applies for the purposes of the sections mentioned in subsection (1) of that section, but as if—

(a)references to a person considering whether a conviction, children's hearing outcome or other information is relevant for the purpose of a Level 2 disclosure were references to the chief constable considering whether information is relevant to the type of regulated role in relation to which the scheme member participates in the Scheme,

(b)references to a person considering whether a conviction, children's hearing outcome or other information ought to be included in a Level 2 disclosure were references to the chief constable considering whether information ought to be included in the scheme member's scheme record,

(c)references to a conviction or children's hearing outcome were omitted, and

(d)references to other information were references to information mentioned in subsection (1)(c) of this section.,

(c)after subsection (2) insert—

(3)In subsection (1)(a), “central records” and “relevant matter” have the same meanings as in section 18(5)..

(4)In section 51 (correction of inaccurate scheme record)—

(a)in subsection (1), after “section 50” insert “ or a review under section 21 of the Disclosure (Scotland) Act 2020, ”,

(b)subsections (2) to (7) are repealed.

(5)Section 52ZA (procedure following correction of inaccurate scheme record) is repealed.

(6)Section 52 (disclosure of scheme records) is repealed.

(7)Section 52A (review of vetting information in scheme record) is repealed.

(8)Section 53 (disclosure of short scheme records) is repealed.

(9)Section 55 (disclosure conditions) is repealed.

(10)Section 56 (Crown work) is repealed.

(11)Section 57 (disclosure restrictions) is repealed.

(12)Section 57A (meaning of “conviction” and “protected conviction”) is repealed.

(13)In section 97 (general interpretation)—

(a)in subsection (1)—

(i)in the definition of “prescribed” the words “(except where used in sections 18(4)(b) and 49(1)(a))” are repealed,

(ii)the following definitions are repealed—

  • “disclosure declaration”,

  • “disclosure record”,

  • “disclosure request”,

(b)in subsection (2), for the words from “doing” in the first place it occurs to the end of that subsection substitute carrying out a regulated role for an organisation if they—

(a)have made available, in respect of the individual—

(i)a confirmation of scheme membership under section 54,

(ii)a Level 2 disclosure (within the meaning of section 8(1) of the Disclosure (Scotland) Act 2020) where section 17 of that Act applies,

in relation to that regulated role,

(b)know that the confirmation of scheme membership or (as the case may be) the Level 2 disclosure was sought for the purpose of enabling or assisting the organisation to consider the scheme member's suitability to carry out that type of regulated role for the organisation (or to be offered such a role by the organisation), and

(c)have not been satisfied that the individual has not been engaged to carry out, or has stopped carrying out, that type of regulated role for the organisation.,

(c)in subsection (4), for “Part 5 of the 1997 Act” substitute “ Part 1 of the Disclosure (Scotland) Act 2020 ”,

(d)in subsection (5), for “in relation to an application under section 113B of the 1997 Act” substitute “ for the purposes of section 49 of the Disclosure (Scotland) Act 2020 ”.

(14)In schedule 5 (index), the following entries are repealed—

  • disclosure condition,

  • disclosure declaration,

  • disclosure information,

  • disclosure record,

  • disclosure request,

  • short scheme record.

Housing (Scotland) Act 2014S

6SIn section 35 of the Housing (Scotland) Act 2014 (fit and proper person: criminal record information), in subsection (2), for the words from “criminal” to “1997 (c. 50))” substitute “ Level 1 disclosure (within the meaning of section 1 of the Disclosure (Scotland) Act 2020) ”.

Age of Criminal Responsibility (Scotland) Act 2019S

7(1)The Age of Criminal Responsibility (Scotland) Act 2019 is amended as follows.S

(2)In section 8 (disapplication of sections 6 and 7)—

(a)in subsection (1), for the words from “in—” to the end substitute “ in a Level 2 disclosure. ”,

(b)in subsection (3)(a), for “an enhanced criminal record certificate or, as the case may be, a scheme record” substitute “ a Level 2 disclosure ”,

(c)in subsection (4)—

(i)in paragraph (a), for “for which the certificate or, as the case may be, scheme record is provided” substitute “ of the disclosure ”,

(ii)in paragraph (b), for “certificate or record” substitute “ Level 2 disclosure ”,

(d)subsection (5) is repealed,

(e)in subsection (6), for “certificate or, as the case may be, scheme record” substitute “ Level 2 disclosure ”,

(f)in subsection (7), for “certificate or record” substitute “ Level 2 disclosure ”.

(3)In section 10 (disclosure of information relating to time when person under 12), subsections (1), (2) and (4) are repealed.

(4)In section 11 (independent reviewer), in paragraph (a), for the words from “information—” to the end substitute “ information in a Level 2 disclosure, and ”.

(5)In section 12 (period and terms of appointment), in subsection (7)(a), for “8A or 8B of the 1997 Act” substitute “ 1 or 2 of the 2020 Act ”.

(6)In section 14 (referral of information to independent reviewer)—

(a)in subsection (1), in paragraph (a)—

(i)for “113B(4) of the 1997 Act” substitute “ 14(1) of the 2020 Act ”,

(ii)for “an enhanced criminal record certificate issued under section 113B(1) of that Act” substitute “ a Level 2 disclosure ”,

(b)in subsection (1), paragraph (b) is repealed,

(c)in subsection (2)—

(i)in paragraph (a), for the words from “described” to the end substitute “ of the disclosure, ”,

(ii)paragraph (b) is repealed,

(iii)in paragraph (c), for “enhanced criminal record certificate or, as the case may be, scheme record” substitute “ Level 2 disclosure ”.

(7)In section 16 (notification to applicant or scheme member), in subsection (2)(b), for “enhanced criminal record certificate or, as the case may be, scheme record” substitute “ Level 2 disclosure ”.

(8)In section 18 (review of information referred under section 14)—

(a)in subsection (1)—

(i)in paragraph (a), for the words from “in relation to” to the end substitute “ for the purpose of the disclosure, and ”,

(ii)in paragraph (b), for “that certificate” substitute “ the disclosure ”,

(b)after subsection (1) insert—

(1A)Section 33 of the 2020 Act (Level 2 disclosure: considering relevance and whether to include certain information) applies for the purposes of subsection (1) of this section as it applies for the purposes of the sections mentioned in subsection (1) of that section, but as if—

(a)references to a conviction or a children's hearing outcome were omitted, and

(b)references to other information were references to information mentioned in section 14(1)(a) of this Act.,

(c)subsection (2) is repealed,

(d)in subsection (4)(a), for “enhanced criminal record certificate or, as the case may be, scheme record” substitute “ Level 2 disclosure ”.

(9)After section 20 insert—

20ARemoval of information from scheme record following review or appeal

(1)This section applies where, in the case of a scheme member—

(a)information that is the subject of a review under section 18 is also contained in the scheme member's scheme record in relation to a type of regulated role to which the purpose of the disclosure referred to in section 18(1)(a) relates, and

(b)subsection (2) or (3) applies in relation to the review.

(2)This subsection applies if the independent reviewer determines under section 18(4)(a) that the information ought not to be included in the disclosure and—

(a)no appeal under section 20 is taken, or

(b)such an appeal having been taken, the sheriff confirms the determination under section 20(3)(a).

(3)This subsection applies if the sheriff, on an appeal under section 20, determines under subsection (3)(b) of that section that the information ought not to be included in the disclosure.

(4)The Scottish Ministers must remove the information from the scheme member's scheme record so far as relating to the type of regulated role mentioned in subsection (1)(a).

(5)The information is to be treated for the purposes of the 2007 Act as not being vetting information..

(10)In section 23 (regulation of procedure for review)—

(a)in subsection (1), for “enhanced criminal record certificates and scheme records” substitute “ Level 2 disclosures ”,

(b)in subsection (2)(a), for “an enhanced criminal record certificate or, as the case may be, a scheme record” substitute “ a Level 2 disclosure ”.

(11)Section 25 (amendments consequential on Chapter 2) is repealed.

(12)In section 26 (interpretation of Part 2)—

(a)the definitions of “1997 Act” and “enhanced criminal record certificate” are repealed,

(b)after the definition of “2007 Act” insert—

2020 Act” means the Disclosure (Scotland) Act 2020,,

(c)in the definition of “applicant” for “113B of the 1997 Act for an enhanced criminal record certificate” substitute “ 11 of the 2020 Act for a Level 2 disclosure ”,

(d)after the definition of “independent reviewer” insert—

Level 2 disclosure” means a Level 2 disclosure under section 8 of the 2020 Act,

purpose of the disclosure”, in relation to a Level 2 disclosure, has the meaning given in section 69 of the 2020 Act,.

PART 2 SModifications of enactments in consequence of Part 2

Education (Scotland) Act 1980S

8(1)The Education (Scotland) Act 1980 is amended as follows.S

(2)In section 98A (application for registration of independent school)—

(a)in subsection (5)(a)(ii), for “work” substitute “ roles ”,

(b)in subsection (6), for the definition of “barred from regulated work with children” substitute—

barred from regulated roles with children” is to be construed in accordance with the Protection of Vulnerable Groups (Scotland) Act 2007;.

(3)In section 99 (complaints), in each of paragraphs (g)(ii) and (h)(ii) of subsection (1A) for “work” substitute “ roles ”.

(4)In section 135(1) (interpretation), for the definition of “barred from regulated work with children” substitute—

barred from regulated roles with children” has the meaning given in section 98A(6) of this Act;.

Foster Children (Scotland) Act 1984S

9SIn section 7(4) (persons disqualified from keeping foster children) of the Foster Children (Scotland) Act 1984 for “work” substitute “ roles ”.

Protection of Vulnerable Groups (Scotland) Act 2007S

10(1)The PVG Act is amended as follows.S

(2)In section 2 (referral ground)—

(a)in paragraph (a), for the opening words substitute—

(a)in relation to an individual who is or has been carrying out (or has been offered or supplied for) a regulated role with children, is that the individual has, whether or not in the course of the individual carrying out that role—,

(b)in paragraph (b), for the opening words substitute—

(b)in relation to an individual who is or has been carrying out (or has been offered or supplied for) a regulated role with adults, is that the individual has, whether or not in the course of the individual carrying out that role—.

(3)In section 3 (reference following disciplinary action etc.)—

(a)in subsection (1)—

(i)in the opening words for “doing regulated work” substitute “ carrying out a regulated role ”,

(ii)in paragraph (a)(ii) for “work” substitute “ role ”,

(iii)in paragraph (b)(i) for “doing regulated work” substitute “ carrying out the regulated role ”,

(b)in subsection (2)—

(i)in the opening words for “doing regulated work” substitute “ carrying out a regulated role ”,

(ii)in paragraph (a) for “doing the regulated work” substitute “ carrying out the regulated role ”,

(iii)in paragraph (b) for “doing regulated work” substitute “ carrying out the regulated role ”,

(iv)in paragraph (c)(ii) for “doing regulated work” substitute “ carrying out the regulated role ”,

(c)in subsection (3)—

(i)in paragraph (a) for the words from “regulated” to the end of that paragraph substitute “ a regulated role is not to be treated as having stopped carrying out that role, ”,

(ii)in paragraph (b) for “work” substitute “ role ”.

(4)In section 4 (reference by employment agency)—

(a)in the opening words for “doing regulated work” substitute “ carrying out a regulated role ”,

(b)in paragraph (b)(i) for “further regulated work” substitute “ another regulated role ”,

(c)in paragraph (b)(ii) for “such work” substitute “ another regulated role ”.

(5)In section 5 (reference by employment business)—

(a)in the opening words for “regulated work” substitute “ a regulated role ”,

(b)in paragraph (b) for “doing regulated work” substitute “ carrying out the regulated role ”,

(c)in paragraph (c) for “further regulated work” substitute “ another regulated role ”.

(6)In section 6(1) (reference relating to matters occurring before provisions come into force) for “doing the regulated work” substitute “ carrying out the regulated role ”.

(7)In section 8(1) (reference by certain other persons) for “doing regulated work” substitute “ carrying out a regulated role ”.

(8)In section 10(4) (consideration whether to list: organisational referrals etc.) for the words from “work” to the end of that subsection substitute “ role (if any) which the individual is or has been carrying out. ”.

(9)In section 12 (consideration whether to list: vetting information etc.) in each of subsections (1)(b) and (2)(b) for “do regulated work” substitute “ carry out a regulated role ”.

(10)In section 13 (consideration whether to list: inquiries)—

(a)in each of paragraphs (a) and (b) of subsection (1) for “doing regulated work” substitute “ carrying out a regulated role. ”,

(b)in subsection (4) for the words from “work” to the end of that subsection substitute “ role which the individual was carrying out ”.

(11)In section 15 (inclusion in children's list after consideration) for “work” substitute “ carry out regulated roles ”.

(12)In section 16 (inclusion in adults' list after consideration) for “work with protected” substitute “ carry out regulated roles with ”.

(13)In section 18 (police information etc.) in each of subsections (1) and (4)(a) for “work” substitute “ role ”.

(14)In section 19(2)(a) (information held by public bodies etc.) for “work” substitute “ role ”.

(15)In section 20 (information held by regulated work providers)—

(a)in subsection (2)—

(i)in paragraph (a) for “doing, or has done, regulated work” substitute “ carrying out, or has carried out, a regulated role ”,

(ii)in paragraph (b) for the words from “regulated” to the end of that paragraph substitute “ a regulated role by the person (whether or not the individual subsequently carried out the role), ”,

(iii)in paragraph (c) for “regulated work” substitute “ a regulated role ”,

(iv)in paragraph (d) for “do regulated work” substitute “ carry out a regulated role ”,

(b)the title of the section becomes “ Information held by providers of regulated roles ”.

(16)In section 21 (appeals against inclusion in children's list), in subsection (3)(a) for “work” substitute “ carry out regulated roles ”.

(17)In section 22 (appeals against inclusion in adults' list), in subsection (3)(a) for “work with protected” substitute “ carry out regulated roles with ”.

(18)In section 26 (determination of application for removal from list)—

(a)in subsection (1)(a) for “work” substitute “ carry out regulated roles ”,

(b)in subsection (2)(a) for “work with protected” substitute “ carry out regulated roles with ”.

(19)In section 27 (appeals against refusal to remove individual from list)—

(a)in subsection (2)(a) for “work” substitute “ carry out regulated roles ”,

(b)in subsection (3)(a) for “work with protected” substitute “ carry out regulated roles with ”.

(20)In section 30 (notice of listing etc.)—

(a)in subsection (1)(c), after “13” insert “ or section 45B(7) ”,

(b)in each of subsections (1)(b) and (2)(a) for “doing regulated work” substitute “ regulated roles ”,

(c)in subsection (3)(b)—

(i)in sub-paragraph (i) for “work” substitute “ roles ”,

(ii)in the closing words for “doing regulated work” substitute “ carrying out a regulated role ”,

(d)in subsection (3)(c)—

(i)in sub-paragraph (i) for “work” substitute “ roles ”,

(ii)in the closing words for “doing regulated work” substitute “ carrying out a regulated role ”,

(e)in each of paragraphs (b) and (c) of subsection (4) for “doing regulated work” substitute “ carrying out a regulated role ”.

(21)The italic heading before section 34 becomes “ Offences relating to regulated roles ”.

(22)In section 34 (barred individuals not to do regulated work)—

(a)in subsection (1), for “do, or to seek or agreed to do, any regulated work” substitute “ carry out, or to seek or agree to carry out, any regulated role ”,

(b)in subsection (2)—

(i)in paragraph (a), for “work” substitute “ role ”,

(ii)in paragraph (b), for “work concerned was regulated work” substitute “ role concerned was a regulated role ”,

(c)the title of the section becomes “ Barred individuals not to carry out regulated roles ”.

(23)In section 35 (organisations not to use barred individuals for regulated work)—

(a)in subsection (1), for “regulated work to an individual barred from that work” substitute “ a regulated role to an individual barred from that role ”,

(b)in subsection (2)—

(i)for “do” substitute “ carry out ”,

(ii)for “regulated work” substitute “ a regulated role ”,

(c)in subsection (3)(a)(ii), for “work” substitute “ roles ”,

(d)in subsection (5), for “regulated work” substitute “ a regulated role ”,

(e)in subsection (6), for “doing that regulated work” substitute “ that regulated role ”,

(f)in subsection (7)—

(i)for “regulated work” substitute “ a regulated role ”,

(ii)for “do that work” substitute “ carry out that role ”,

(g)the title of the section becomes “ Organisations not to use barred individuals for regulated roles ”.

(24)In section 36 (personnel suppliers not to supply barred individuals for regulated work)—

(a)in subsection (1)—

(i)in paragraph (a) for “doing regulated work” substitute “ regulated roles ”,

(ii)in paragraph (b) for “do regulated work” substitute “ carry out a regulated role ”,

(b)in subsection (2) for “doing the regulated work” substitute “ the regulated role ”,

(c)The title of the section becomes “ Personnel suppliers not to supply barred individuals for regulated roles ”.

(25)The title of section 37 becomes “ Penalties for offences relating to regulated roles ”.

(26)In section 39(1) (restrictions on listing in children's list) for “work” substitute “ roles ”.

(27)In section 40(1) (restrictions on listing in adults' list) for “work” substitute “ roles ”.

(28)In section 44 (the Scheme) for “do, or wish to do, regulated work” substitute “ carry out, or wish to carry out, regulated roles ”.

(29)In section 48 (scheme record), for paragraph (a) substitute—

(a)the information to be contained in a confirmation of scheme membership under section 46(2), and.

(30)In section 49(1)(c)(i) (vetting information) for “work” substitute “ role ”.

(31)In section 58(1) (removal from scheme)—

(a)in the opening words for “work” substitute “ role ”,

(b)in paragraph (a) for “doing that work” substitute “ carrying out that type of role ”,

(c)in paragraph (b) for “doing that work” substitute “ that type of regulated role ”.

(32)In section 59 (withdrawal from scheme)—

(a)in the opening words for “work” substitute “ role ”,

(b)in paragraph (b) for “doing that type of regulated work” substitute “ carrying out that type of regulated role ”.

(33)In section 60 (notice of removal)—

(a)in subsection (1), after “section” insert “ 45B(3)(a) or (6), ”,

(b)in subsection (2)(a), for “work” substitute “ role ”.

(34)In section 62 (evidence of identity), in subsection (1), for paragraph (c) substitute—

(c)a request for confirmation of scheme membership under section 54,.

(35)The italic heading before section 65 becomes “ Offences relating to confirmation of scheme membership ”.

(36)In section 65 (falsification of scheme records etc.)—

(a)in subsection (1)—

(i)in paragraph (a), for “disclosure record” substitute “ confirmation of scheme membership made available under section 54 ”,

(ii)in each of paragraphs (b) and (c), for “a disclosure record” substitute “ such a confirmation ”,

(iii)in paragraph (c), for “disclosed” substitute “ made available ”,

(b)in subsection (2)—

(i)in paragraph (a), for “disclosure record” substitute “ confirmation of scheme membership under section 54 ”,

(ii)in paragraph (b), for “doing regulated work” substitute “ carrying out a regulated role ”,

(c)the title of the section becomes “ Falsification of confirmation of scheme membership ”.

(37)In section 66 (unlawful disclosure of scheme records etc.)—

(a)in subsection (1), for “disclosure information is disclosed under section 51, 52, 53 or 54” substitute “ a confirmation of scheme membership is made available under section 54 ”,

(b)in subsection (2)—

(i)for “disclosure information” substitute “ confirmation of scheme membership ”,

(ii)in paragraph (c), for “disclosure was made” substitute “ confirmation of scheme membership was made available ”,

(c)in each of subsections (2)(c) and (4)(b) for “do, or to be offered or supplied for, regulated work” substitute “ carry out, or to be offered or supplied for, a regulated role ”,

(d)in subsection (3), for “disclosure information” substitute “ a confirmation of scheme membership ”,

(e)in subsection (4)—

(i)for “disclosure information” substitute “ confirmation of scheme membership ”,

(ii)in paragraph (a), for “corresponding disclosure was made under section 52, 53 or 54” substitute “ confirmation of scheme membership was made available under section 54 ”,

(iii)in paragraph (b), for “disclosure was made” substitute “ confirmation of scheme membership was made available ”,

(f)in subsection (5), for “disclosure information” substitute “ a confirmation of scheme membership made available under section 54 ”,

(g)in subsection (6), for “disclosure information” substitute “ confirmation of scheme membership ”,

(h)in subsection (7), for “disclosure information” substitute “ a confirmation of scheme membership made available under section 54 ”,

(i)in subsection (8)—

(i)for “disclosure information” substitute “ confirmation of scheme membership ”,

(ii)for “corresponding disclosure was made under section 52, 53 or 54” substitute “ confirmation of scheme membership was made available under section 54 ”,

(j)in subsection (9), for “disclosure information” substitute “ a confirmation of scheme membership made available under section 54 ”,

(k)the title of the section becomes “ Unlawful disclosure of confirmation of scheme membership ”.

(38)In section 67 (unlawful requests for scheme records etc.)—

(a)in subsection (1), for “disclosure record” substitute “ confirmation of scheme membership under section 54 ”,

(b)in subsection (2), for “disclosure information” substitute “ a confirmation of scheme membership made available under section 54 ”,

(c)in subsection (3)—

(i)for “record or information” substitute “ confirmation of scheme membership ”,

(ii)for paragraph (a), substitute—

(a)to carry out, or to be offered or supplied for, the type of regulated role to which the confirmation of scheme membership relates,,

(iii)in paragraph (b), for “do that type of regulated work” substitute “ carry out that type of regulated role ”,

(d)subsection (4) is repealed,

(e)the title of the section becomes “ Unlawful requests for and use of confirmation of scheme membership ”.

(39)In section 68 (unlawful disclosure etc.: supplementary)—

(a)in subsection (2), for “do, or to be offered or supplied for, the type of regulated work” substitute “ carry out, or to be offered or supplied for, the type of regulated role ”,

(b)in subsection (1)—

(i)for “disclosure information” substitute “ a confirmation of scheme membership made available under section 54 ”,

(ii)in each of paragraphs (a) and (b), for “information” substitute “ confirmation of scheme membership ”,

(c)in subsection (2)—

(i)for “disclosure information made” substitute “ a confirmation of scheme membership made available under section 54 ”,

(ii)for “corresponding disclosure request was made” substitute “ confirmation of scheme membership was made available under section 54 ”,

(d)in subsection (3)—

(i)for “disclosure information” substitute “ a confirmation of scheme membership made available under section 54 ”,

(ii)in each of paragraphs (a) and (b), for “information” substitute “ confirmation of scheme membership ”,

(e)for subsection (4) substitute—

(4)In sections 66 and 67(2) and in this section, references to a confirmation of scheme membership include references to any information contained in a confirmation of scheme membership..

(40)The title of section 69 becomes “ Penalties for offences relating to confirmation of scheme membership ”.

(41)In section 70 (fees)—

(a)in subsection (1)—

(i)in paragraph (a), after “Scheme” insert “ or to renew membership of the Scheme ”,

(ii)in paragraph (b), for “disclosure requests” substitute “ requests for confirmations of scheme membership under section 54 ”,

(b)in subsection (2), after paragraph (c) insert—

(d)the manner in which fees are to be paid.,

(c)in subsection (4)—

(i)in paragraph (a), after “Scheme” insert “ or to renew membership of the Scheme, ”,

(ii)in paragraph (b), for “disclosure request” substitute “ request for confirmation of scheme membership under section 54 ”,

(iii)in the closing words, after “paid” insert “ in the manner provided for in the regulations. ”

(42)In section 71 (forms)—

(a)in subsection (1)—

(i)in paragraph (a), after “Scheme” insert “ or to renew membership of the Scheme ”,

(ii)for paragraph (c) substitute—

(c)requests for confirmation of scheme membership under section 54 (including a statement under subsection (3) of that section),,

(b)in each of subsections (2) and (3), for “declaration” substitute “ statement ”.

(43)In section 72 (procedure), in subsection (2)—

(a)in paragraph (a), after “Scheme” insert “ or to renew membership of the Scheme ”,

(b)paragraph (c) is repealed,

(c)for paragraph (d) substitute—

(d)prescribe further procedure for making requests for confirmations of scheme membership under section 54 and making such confirmations available in pursuance of such requests..

(44)In section 73 (consideration of suitability)—

(a)in the opening words, for “to do, or to be offered or supplied for, any type of regulated work” substitute “ to carry out, or to be offered or supplied for, any type of regulated role ”,

(b)in each of paragraphs (a) and (b), for “do that type of regulated work” substitute “ carry out that type of regulated role ”,

(c)paragraphs (c) to (f) are repealed.

(45)In section 76(1)(b) (police access to scheme information) for “regulated work” substitute “ regulated roles ”.

(46)In section 77 (statements of scheme membership: disclosure of whether individual under consideration for listing)—

(a)in subsection (1)—

(i)for “Despite section 46(2)(c), a statement of scheme membership” substitute “ A confirmation of scheme membership made available under section 54 or a Level 2 disclosure made available under section 18 of the Disclosure (Scotland) Act 2020 ”,

(ii)after “individual” insert “ (or details of any conditions that Ministers have imposed under section 13A(1)) ”,

(b)after subsection (1), insert—

(1A)Subsection (1) applies despite—

(a)section 46(2)(c) or (d) of this Act,

(b)section 16(4)(a)(iii) or (iv) or (b)(iii) or (iv) of the Disclosure (Scotland) Act 2020, or

(c)section 17(3)(b) or (c) of that Act,

(as the case may be).,

(c)in subsection (2)(b), for “or 13” substitute “ , 13 or 45B(7) ”.

(47)The title of section 77 becomes “ Disclosure of whether an individual is under consideration for listing ”.

(48)In section 92 (individuals barred from regulated work)—

(a)in the opening words of each of subsections (1) and (2), for “work” substitute “ roles ”,

(b)in each of subsections (3) and (4) for “work” substitute “ roles ”.

(49)The title of section 92 becomes “ Individuals barred from regulated roles ”.

(50)Section 95 (work) is repealed.

(51)In section 96 (fostering)—

(a)in subsection (2), for “doing work” substitute “ carrying out a regulated role with children ”,

(b)in subsection (3)—

(i)after “37” insert “ and sections 45C to 45F ”,

(ii)for “work” in the first place it occurs substitute “ the carrying out of a regulated role ”,

(iii)for “work is done” substitute “ role is carried out ”,

(c)subsection (4) is repealed,

(d)in subsection (5), for “doing regulated work” substitute “ carrying out a regulated role ”.

(52)In section 97(3) (general interpretation), for “11, 12 or 13” substitute “ 12, 13 or 45B(7) ”.

(53)In section 100 (orders and regulations), in subsection (4)—

(a)for “Paragraph 28 of schedule 2 (except an order of the type mentioned in paragraph 15 of that schedule)” substitute “ Paragraph 33 of schedule 2 ”,

(b)for “Paragraph 13 of schedule 3” substitute “ Paragraph 25 of schedule 3 ”.

(54)In schedule 5 (index)—

(a)in the entry relating to—

(i)“barred from regulated work”, in the left hand column substitute “ barred from regulated roles ”,

(ii)“regulated work”, in the left hand column substitute “ regulated role ”,

(iii)“regulated work with adults”, in the left hand column substitute “ regulated role with adults ”,

(iv)“regulated work with children”, in the left hand column substitute “ regulated role with children ”,

(v)“scheme member”, in the right hand column substitute “ section 45(1)(a) ”,

(b)at the appropriate place insert—

confirmation of scheme membershipsection 46(2),
type of regulated rolesection 91(5),

(c)the following entries are repealed—

  • statement of scheme membership,

  • type of regulated work,

  • work, worker, working.

Age of Criminal Responsibility (Scotland) Act 2019S

11SIn section 26 of the Age of Criminal Responsibility (Scotland) Act 2019 (interpretation of Part 2), in the definition of “regulated work”, for “work” substitute “ role ”.

PART 3 SOther consequential and minor modifications

Protection of Vulnerable Groups (Scotland) Act 2007S

12(1)The PVG Act is amended as follows.S

(2)In section 10(1)(b) (consideration whether to list: organisational referrals etc.), for “Independent Safeguarding Authority” substitute “ Disclosure and Barring Service ”.

(3)In section 17(5)(c)(i) (information relevant to listing decisions), for “the Council of the Pharmaceutical Society of Great Britain” substitute “ the General Pharmaceutical Council ”.

(4)In section 19(3) (information held by public bodies etc.), after the entry in the list for Health Boards and Special Health Boards insert— “ An integration joint board established by order under section 9 of the Public Bodies (Joint Working) (Scotland) Act 2014 ”.

(5)In section 38(2) (police access to lists), for the words from “purpose of” to the end of that subsection substitute “ law enforcement purposes within the meaning of section 31 of the Data Protection Act 2018. ”.

(6)In section 39 (restrictions on listing in children's list)—

(a)in subsection (2)(a), for “Independent Safeguarding Authority (“ISA”)” substitute “ Disclosure and Barring Service (“DBS”) ”,

(b)in each of subsections (4)(b), (5) and (6)(b), for “ISA” substitute “ DBS ”.

(7)In section 40 (restrictions on listing in adults' list)—

(a)in subsection (2)(a), for “Independent Safeguarding Authority (“ISA”)” substitute “ Disclosure and Barring Service (“DBS”) ”,

(b)in each of subsections (4)(b), (5) and (6)(b), for “ISA” substitute “ DBS ”.

(8)In section 76(2) (police access to scheme information), for the words from “the purpose” to the end of that subsection insert

(a)the performance of the chief constable's functions under this Part, or

(b)the law enforcement purposes within the meaning of section 31 of the Data Protection Act 2018.

(9)In section 96 (fostering)—

(a)in subsection (1)(a) the words “(“the 1995 Act”)” are repealed,

(b)in each of subsections (1)(b) and (2)(a) for “1995 Act” substitute “ Children (Scotland) Act 1995 ”,

(c)in subsection (8), in the definition of “parental responsibilities” and “parental rights”, for “1995 Act” substitute “ Children (Scotland) Act 1995 ”.

(10)In section 97(1) (general interpretation)—

(a)after the definition of “disciplinary proceedings”, insert—

“Disclosure and Barring Service” and “DBS” mean the body established by section 87(1) of the Protection of Freedoms Act 2012,,

(b)the definition of “Independent Safeguarding Authority” (and “ISA”) is repealed,

(c)for the definition of “police force” substitute—

police force” has the same meaning as in section 69 of the Disclosure (Scotland) Act 2020,

(11)In schedule 5 (index)—

(a)at the appropriate place insert—

Disclosure and Barring Service, DBSsection 97(1),

(b)the entry relating to “Independent Safeguarding Authority, ISA” is repealed.

Children's Hearings (Scotland) Act 2011S

13SIn the Children's Hearings (Scotland) Act 2011, the following provisions are repealed—

(a)section 187 (Rehabilitation of Offenders Act 1974: treatment of certain disposals by children's hearings),

(b)section 188 (criminal record certificates).

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