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Part 1SThe lists

ReferralsS

2Referral groundS

The referral ground—

[F1(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—]

(i)harmed a child,

(ii)placed a child at risk of harm,

(iii)engaged in inappropriate conduct involving pornography,

(iv)engaged in inappropriate conduct of a sexual nature involving a child, or

(v)given inappropriate medical treatment to a child,

[F2(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—]

(i)harmed a protected adult,

(ii)placed a protected adult at risk of harm,

(iii)engaged in inappropriate conduct involving pornography,

(iv)engaged in inappropriate conduct of a sexual nature involving a protected adult, or

(v)given inappropriate medical treatment to a protected adult.

Textual Amendments

Commencement Information

I1S. 2 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

3Reference following disciplinary action etc.S

(1)An organisation must give Ministers any prescribed information which it holds in relation to an individual who is or has been [F3carrying out a regulated role] if—

(a)it has, on the referral ground—

(i)dismissed the individual, or

(ii)transferred the individual to a position which does not involve that type of regulated [F4role], or

(b)it would or might have dismissed or so transferred the individual on the referral ground if the individual had not—

(i)otherwise stopped [F5carrying out the regulated role], or

(ii)been working for the organisation for a fixed term.

(2)An organisation must give Ministers any prescribed information which it holds in relation to an individual who has been [F6carrying out a regulated role] if—

(a)the individual stops [F7carrying out the regulated role] in circumstances not falling within subsection (1),

(b)the organisation subsequently becomes aware of information which it was unaware of when the individual stopped [F8carrying out the regulated role], and

(c)the organisation considers that, if—

(i)it had been aware of that information at that time, and

(ii)the individual had not stopped [F9carrying out the regulated role],

it would or might have dismissed the individual on the referral ground.

(3)In subsections (1) and (2)—

(a)an individual suspended from [F10a regulated role is not to be treated as having stopped carrying out that role,]

(b)the duty to give Ministers information in relation to the temporary transfer of an individual to another position applies only if the organisation subsequently makes a final decision not to permit the individual to resume the type of regulated [F11role] from which the individual was transferred.

(4)This section does not apply to personnel suppliers (see sections 4 and 5).

Textual Amendments

Commencement Information

I2S. 3(1)(2) in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I3S. 3(1)(2) in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

I4S. 3(3)(4) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

4Reference by employment agencyS

A personnel supplier which carries on an employment agency must give Ministers any prescribed information which it holds in relation to an individual who is or has been [F12carrying out a regulated role] if it has, on the referral ground, decided—

(a)not to do any further business with the individual, or

(b)not to—

(i)find the individual [F13another regulated role], or

(ii)offer or supply the individual for [F14another regulated role].

Textual Amendments

Commencement Information

I5S. 4 in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I6S. 4 in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

5Reference by employment businessS

A personnel supplier which carries on an employment business must give Ministers any prescribed information which it holds in relation to an individual whom it has offered or supplied for [F15a regulated role] if—

(a)it has dismissed the individual on the referral ground,

(b)the individual has otherwise stopped [F16carrying out the regulated role] in circumstances in which it would or might have dismissed the individual on the referral ground if the individual had not so stopped, or

(c)it has, on the referral ground, decided not to offer or supply the individual for [F17another regulated role].

Textual Amendments

Commencement Information

I7S. 5 in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I8S. 5 in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

6Reference relating to matters occurring before provisions come into forceS

(1)The duties in sections 3 to 5 do not apply where the individual stopped [F18carrying out the regulated role] (or, as the case may be, the organisation's opinion was formed) before the date on which the provisions imposing the duties come into force.

(2)But an organisation may give Ministers any prescribed information which it holds in relation to such an individual if it wishes to do so.

Textual Amendments

Commencement Information

I9S. 6(1) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

I10S. 6(2) in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I11S. 6(2) in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

[F196AReference by chief constableS

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.]

Textual Amendments

F19S. 6A inserted (30.9.2024 for specified purposes, 1.4.2025 in so far as not already in force) by Disclosure (Scotland) Act 2020 (asp 13), ss. 80(2), 97 (with s. 96); S.S.I. 2024/242, reg. 2, sch.; S.S.I. 2025/27, reg. 3(1)(2), sch.

7Reference by courtS

(1)Where a court convicts an individual of a relevant offence, it must give Ministers any prescribed information that it holds in relation to the convicted individual.

(2)Subsection (3) applies where a court—

(a)convicts an individual of an offence (other than a relevant offence), and

(b)is satisfied that it may be appropriate for the individual to be listed in the children's list or in the adults' list (or in both lists).

(3)Where this subsection applies, the court may give Ministers any prescribed information that the court holds in relation to the convicted individual.

(4)This section applies in relation to offences committed before and after this section comes into force.

Commencement Information

I12S. 7(1)(3) in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I13S. 7(1)(3) in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

I14S. 7(2)(4) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

8Reference by certain other personsS

(1)A person to whom this section applies may give Ministers any prescribed information that the person holds in relation to an individual who is or has been [F20carrying out a regulated role] if—

(a)on the basis of information obtained by the person in the exercise of relevant functions, the person considers that the referral ground is met (regardless of whether the conduct to which the information relates occurred before or after this section comes into force), and

(b)prescribed information in relation to the individual has not been given to Ministers under sections 3 to 6 in respect of the conduct to which the information relates.

(2)This section applies to—

(3)For the purposes of this section, “relevant functions” means—

[F27(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,]

(a)in relation to the General Teaching Council for Scotland, such functions as are conferred on it by virtue of the [F28Public Services Reform (General Teaching Council for Scotland) Order 2011],

[F29( aa)in relation to Healthcare Improvement Scotland, such functions as are conferred on it by virtue of the National Health Service (Scotland) Act 1978 (c. 29) and any other enactment,]

(b)in relation to registrars mentioned in subsection (2), such functions as are conferred on them by virtue of any enactment,

(c)in relation to F30... the Scottish Social Services Council, such functions as are conferred on [F31 it ] by virtue of the 2001 Act and any other enactment, F32...

[F33(ca)in relation to Social Care and Social Work Improvement Scotland, such functions as are conferred on it by virtue of the 2010 Act and any other enactment, and]

(d)in relation to a person specified in an order made under subsection (2), such functions as are specified by the order.

Textual Amendments

F22Words in s. 8(2) inserted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 17 para. 36(a)(i); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

F25S. 8(2) entry repealed (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 28(a)(i); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

F26Words in s. 8(2) inserted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 28(a)(ii); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

F29S. 8(3)(aa) inserted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 17 para. 36(a)(ii); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

F30Words in s. 8(3)(c) repealed (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 28(b)(i); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

F31Word in s. 8(3)(c) substituted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 28(b)(ii); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

F32Word in s. 8(3) repealed (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 28(b)(iii); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

F33S. 8(3)(ca) inserted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 28(b)(iv); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

Commencement Information

I15S. 8(1)(2) in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I16S. 8(1)(2) in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

I17S. 8(3)(a)-(c) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

I18S. 8(3)(d) in force at 12.10.2010 by S.S.I. 2010/344, art. 2(a)(i)

9Failure to refer: offenceS

An organisation which fails, without reasonable excuse, to comply with a duty imposed by any of sections 3 to 5 within 3 months of the date on which the duty arose is guilty of an offence and liable—

(a)on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both,

(b)on a conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine, or to both.

Commencement Information

I19S. 9 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)