Accredited bodies
Section 46: Register of accredited bodies
90.This section requires Ministers to maintain a register of accredited bodies, and also contains the definition of “accredited body” and what is meant by “registration”.
Section 47: Registration in the register of accredited bodies
91.To make applications for a Level 1 disclosure on behalf of individuals, or to countersign applications for Level 2 disclosures, a person must be registered as an accredited body. Registration can be for one of those purposes or both. This section sets out who can apply to be included in the register of accredited bodies upon Ministers being satisfied that the application has been made to act in connection with disclosure requests. For accredited bodies acting in relation to Level 2 disclosures, Ministers must be satisfied that each relevant individual, defined by subsection (6), is suitable to have access to disclosure information. Suitability is assessed under section 49.
92.An application by an individual who employs others in the course of a business (a “sole business proprietor”) must be accepted where the individual is aged 18 years or over and meets the registration condition in subsection (4) and, if the individual is seeking registration to be able to countersign Level 2 disclosures, the condition in subsection (5). The condition in subsection (4) is that the individual satisfies Ministers that the individual is likely to be making applications for Level 1 disclosures and/or countersigning Level 2 disclosures (depending on the type of registration sought). The condition in subsection (5) is that Ministers are satisfied that the individual is a suitable person to receive information contained in a Level 2 disclosure.
93.Furthermore, an application by a body corporate or unincorporated or a person appointed to an office by virtue of an enactment must be accepted if the person satisfies the condition mentioned in subsection (4) and, where the person is seeking registration to be able to countersign Level 2 disclosures, that Ministers are satisfied that the person’s lead signatory (and, if applicable, countersignatory (or countersignatories)) (see section 51) are suitable persons to have access to information contained in Level 2 disclosures (this is the condition in subsection (5)).
94.Ministers also have discretion to register an individual aged 16 or 17 years who is a sole business proprietor and meets the condition in subsection (4) and, where the individual will act in relation to Level 2 disclosures, the condition in subsection (5).
95.If Ministers are considering refusing an application for registration, they must give the applicant the opportunity to make representations. Refusal may be partial, if the person is seeking registration to act in relation to both Level 1 and Level 2 applications.
Section 48: Protection of information: removal of registration
96.This section sets out the factors that Ministers can take account of when deciding whether to remove a person from the register of accredited bodies because a “relevant individual” is not a suitable person to have access to disclosure information. A “relevant individual” is, in the case where the accredited body is an individual who is a sole business proprietor, that individual and, in the where the accredited body is a body corporate or unincorporated or a person appointed to an office by virtue of an enactment (a “body corporate accredited body”), the body’s lead signatory or any countersignatory.
97.Subsections (5) and (6) ensure that criminal conviction information about an individual giving rise to concern about the individual’s suitability to have access to information contained in a Level 2 disclosure is not disclosed to anyone other than that individual. This means that both the relevant person who Ministers consider may not be a suitable person to have access to that information and, where the accredited body is a body corporate accredited body, the accredited body, are entitled to make representations before a decision to remove the accredited body. But a body corporate accredited body will not be permitted to know the reasons for the proposed removal where the reasons relate to criminal conviction information of the accredited body’s lead signatory or countersignatory. A decision to remove an accredited body on the ground that a relevant individual is unsuitable can only be made in relation to the body’s registration to countersign applications for Level 2 disclosures; any registration relating to the making of applications for Level 1 disclosures on behalf of an individual would not be affected (see subsection (7)).
Section 49: Suitable persons to have access to disclosure information
98.This section sets out the information Ministers may have regard to for determining whether an individual is suitable to have access to disclosure information for the purposes of section 47(5) or 48(2). “Individual” in this context refers to the sole business proprietor applying to be (or registered as) an accredited body or, in the case of body corporate applicants or accredited bodies, the lead signatory or countersignatory (or nominee for that position).
99.Subsection (1)(a) to (g) sets out the information Ministers may have regard to, including prescribed details of criminal disposals, information from the barred lists, representations made by the individual concerned, and information requested by Ministers from the chief officer of any relevant police force under subsection (2). It is not intended that subsection (1)(g) should be read broadly. In practice, “any other information held by the Scottish Ministers” will be limited to information held by Disclosure Scotland in relation to its functions under sections 46 to 56 of the Act, rather than information held generally by the wider Scottish Government. In exercising this power, Ministers would be required to act proportionately and to have regard to the principles of the ECHR and data protection legislation. Ministers have the power under subsection (5) to prescribe relevant police forces by regulations subject to the negative procedure, and subsection (7) lists various bodies which constitute a police force for this purpose, in addition to the UK police forces covered by the general definition in section 69. Under subsection (3), the chief constable (defined in section 69 as the chief constable of the Police Service of Scotland) is required to comply promptly with a request from Ministers under this section, but need not provide information which the chief constable thinks would be contrary to the interests of the prevention or detection of crime. It is expected that similar provision in relation to the other relevant police forces will be made by order under section 104 of the Scotland Act 1998.
100.Subsection (6) allows Ministers to have regard to the individual’s removal from or refusal of an equivalent registration in England and Wales or Northern Ireland.
Section 50: Removal of registration on other grounds
101.This section sets out the grounds on which Ministers may remove an accredited body from the register other than the suitability of individuals to have access to disclosure information. Subsection (2)(a) to (c) specifies the grounds on which removal of registration may occur, including that the accredited body is no longer likely to act in relation to the type of disclosure request they are registered for, the accredited body has breached any condition imposed on them, or failure to comply with the code of practice published by Ministers under section 55. Subsection (3) provides that, for an accredited body that is a corporate or unincorporated body or a statutory office-holder, a further ground for removal is that the accredited body does not have a lead signatory. Where an accredited body is registered in relation to both making applications for Level 1 disclosures and countersigning applications for Level 2 disclosures, Ministers may remove the accredited body in relation to either or both (see subsection (4)).
102.Before removing an accredited body from the register, Ministers must notify the accredited body that they are considering whether to remove them, provide the reasons for considering that removal and give the accredited body the opportunity to make representations (see subsection (5)).
Section 51: Lead signatories and countersignatories
103.This section sets out rules about what the different types of person making an application for inclusion in the register must do in relation to the nomination of a lead signatory and countersignatories (see definitions in subsection (8)). A person seeking registration as a body corporate accredited body must nominate a lead signatory (see subsection (1)(a)). Where that person is seeking registration to countersign applications for Level 2 disclosures, that person may also nominate one or more countersignatories (note that in such cases the lead signatory can also act as a countersignatory – see the definition of “lead signatory” in subsection (8)). Subsection (2) relates to the nomination of a substitute lead signatory or a substitute or additional countersignatory by a body corporate accredited body.
104.Where the accredited body application is made by a sole business proprietor in relation to the countersigning of applications for Level 2 disclosure, that person may nominate one or more countersignatories (see subsection (3)). Where an accredited body is a sole business proprietor and is registered to countersign applications for Level 2 disclosures, the accredited body may nominate one or more countersignatories (see subsection (4)). Ministers may make regulations, subject to the negative procedure, under subsection (5) prescribing the details that must be included in an application nominating a lead signatory or countersignatory. Any accredited body must advise Ministers of any changes in those prescribed details of its lead signatory or any countersignatory (see subsection (7)).
105.Subsection (9) provides that an individual may not act as the lead signatory or countersignatory of an accredited body unless their details are included in the entry for the accredited body in the register of accredited bodies (and Ministers will include these details if they accept a nomination - see subsection (6)).
Section 52: Lead signatories and countersignatories: acceptance or refusal of nomination and removal from the register
106.This section places certain duties on Ministers to accept the nomination of an individual as the lead signatory or a countersignatory of an accredited body. Ministers must accept the nomination of someone over the age of 18 who is employed or appointed directly by the accredited body, or employed by someone acting on the accredited body’s behalf (see subsection (1)).
107.But under subsection (2), where the accredited body’s registration relates to countersigning Level 2 disclosure applications (either alone or in conjunction with the making of Level 1 disclosures) Ministers may refuse to accept the nomination of an individual as a lead signatory or countersignatory if, in their opinion, the individual is not a suitable person to have access to information contained in a Level 2 disclosure (see definition of “disclosure information” in section 69).
108.Subsection (3) allows Ministers to remove all of the prescribed details of a lead signatory or countersignatory if that individual is not a suitable person to have access to information contained in a Level 2 disclosure, or if they have failed to comply with the code of practice published under section 55. In determining whether an individual is a suitable person to have access to disclosure information, Ministers may have regard to any of the information mentioned in section 49(1) and any representations made by the individual who is (or is nominated as) the lead signatory or a countersignatory of the accredited body concerned.
109.Subsection (5) requires Ministers to notify the individual whose nomination as lead signatory or countersignatory of an accredited body they are considering whether to refuse that they are so considering and of the reasons for doing so, and give the individual an opportunity to make representations. Subsection (6) replicates the procedure for those individuals already in the register who may become unsuitable at a later point in time of their registration for reasons under subsection (3)(a) or (b).
110.Subsection (7) provides that, in relation to an applicant seeking, or an accredited body with, mixed registration to make applications for Level 1 disclosures and countersign applications for Level 2 disclosures, the refusal of the nomination of an individual as lead signatory or the removal of a lead signatory from the register on the grounds that the individual is not a suitable person to have access to Level 2 disclosure information does not affect the individual’s ability to act in relation to Level 1 disclosures.
Section 53: Notification and review of decisions: removal from register or refusal of registration or nomination
111.This section places certain duties on Ministers should they refuse an application for inclusion in the register, or remove a person from it (and subsection (2) provides for partial or whole removal from the register of an accredited body which is registered both to make applications for Level 1 disclosures and to countersign applications for Level 2 disclosures).
112.Ministers must notify the affected person(s) (see subsection (4)) and give reasons for their decision. The person so refused or removed can apply for a review of Ministers’ decision if they consider that the information on which it was based may have been inaccurate (see subsection (6)). Ministers may make regulations subject to the negative procedure under section 54 (see subsection (2)(g)) in connection with those reviews.
Section 54: Regulations about registration
113.This section gives Ministers a power to make regulations about the register of accredited bodies and registration in the register. The regulations will be subject to negative procedure in the Scottish Parliament and can cover aspects such as: information to be provided on application; the content of the register; imposing conditions on accredited bodies; the process for refusing and removing registration; and re-application following refusal or removal.
Section 55: Code of practice
114.Ministers must publish a code of practice and lay it before the Scottish Parliament as soon as possible after publication. They can revise the code of practice if necessary (see subsection (6)). Subsection (4) lists the persons who must comply with the code of practice. Failure to comply with the code can lead to Ministers imposing a condition in relation to the registration of an accredited body (see subsection (7)) or refusing to provide a Level 2 disclosure (see section 11(3)).
Section 56: Sharing of Level 2 disclosure information by accredited bodies
115.Section 56 applies to accredited bodies, and allows them to countersign a Level 2 disclosure application under section 11 on their own behalf, or on behalf of other persons. When they are acting on behalf of others, this is often referred to by Disclosure Scotland as an ‘umbrella body’ service.
116.The persons on whose behalf an accredited body can act must either be someone who would be eligible in terms of section 47(3) to become an accredited body (but who is not registered as an accredited body), or an individual who employs other persons but not in the course of a business. The ability to act on behalf of another person is subject to the condition that the person is asking a question about the individual who is the subject of the disclosure for the purpose of the disclosure, which may, for example, be in connection with recruitment into paid or voluntary work.
117.In cases where the accredited body acts on behalf of a person of the type eligible to become an accredited body (i.e. bodies corporate or unincorporated, statutory office-holders or sole business proprietors), the accredited body may share the Level 2 disclosure with that other person if it is satisfied that disclosure to the person would comply with the code of practice (see subsection (3)).
118.In cases where the accredited body acts for an individual seeking to employ or engage the services of another individual in a personal capacity, the accredited body cannot share the Level 2 disclosure or disclose its content. The accredited body can, however, provide advice to the individual in relation to how any information in the disclosure might affect the decision for which the Level 2 disclosure was requested (see subsection (4)). This means that an accredited body could provide suitability advice to individuals who are in the process of recruiting or using a self-employed worker, such as a music tutor, nanny or carer. Ministers may, by regulations subject to the negative procedure, set a maximum fee that an accredited body may charge an individual for acting on their behalf in this way (see subsection (5)).
