Listing
Section 80: Reference by chief constable
168.Section 80 inserts a new section 6A (Reference by chief constable) into the PVG Act. This new power enables the chief constable of Police Service of Scotland to make a referral to Ministers if the chief constable considers an individual is or has been carrying out a regulated role without being a PVG scheme member (which will now be an offence under the new section 45C of the PVG Act). This power exists independently of the powers the chief constable has to investigate whether an offence has been committed by the individual. Subsection (3) inserts a new paragraph (aa) into section 10(1) of the PVG Act so that Ministers can take action on such a referral by the chief constable, and if appropriate place the individual under consideration for listing.
Section 81: Removal of references by court
169.Section 81 repeals a number of provisions in the PVG Act to bring to an end the requirement for court referrals upon conviction for a relevant offence. This process is no longer necessary in light of the new mandatory scheme requirement for all regulated roles.
Section 82: Reference by councils or integration joint boards
170.Section 82 extends the power to make a referral to Ministers to Scottish local authorities and integration joint boards. To achieve this, section 8 of the PVG Act is amended. The referrals can be made only in connection with issues that arise in exercise of certain statutory functions by these bodies. These functions are listed in subsection (3).
Section 83: Application for removal from list
171.Subsections (2) and (3) change the test in section 25 of the PVG Act so that it more explicitly reflects the filtering nature of the provision, such that an application for removal will only be competent if Ministers are satisfied that there has been a change in circumstances since the applicant was listed or last made an application for removal from the list which is relevant to the question of their suitability to carry out a regulated role.
172.Subsection (4) repeals references to a quashed conviction in 25(5) and 25(6) of the PVG Act. The repeal of these subsections does not necessarily mean that a quashed conviction will no longer be treated as a relevant change of circumstances. It may still be a relevant change in circumstances leading to a competent application for determination under section 26 of the PVG Act, but it will not always be relevant. This resolves any ambiguity for individuals who may think that a conviction being quashed will automatically lead to someone’s removal from the list. This is not the case, since there are different standards of proof for a criminal finding of guilt (beyond reasonable doubt) and the civil standard for listing decisions (balance of probabilities).
Section 84: Ministers’ powers to remove from list
173.Subsection (2) modifies section 28 of the PVG Act so that Ministers have a power to receive and consider late representations from an individual as to why they should not have been listed when it is appropriate to do so in the circumstances. This is to allow the listed individual to provide information to Ministers, which, if they had done before listing, would have led to a decision not to list.
174.Subsection (3) broadens section 29(1)(b) of the PVG Act so that Ministers have discretion to remove an individual from either of the lists at any time if they are satisfied that the individual is no longer unsuitable to carry out the relevant type of regulated role. This is in addition to the exiting discretion to remove from the list if they are satisfied that the individual should not have been listed.
Section 85: Appeals and removals: information power
175.Sections 18 to 20 of the PVG Act relate to the information gathering powers available to Ministers when considering whether to list an individual (under sections 15 or 16) or whether to remove an individual from the list (under section 26). Section 85 of the Act adds a new section 29A to the PVG Act that expands the application of sections 18 to 20 so that the powers to obtain information also apply where Ministers are considering whether or not an individual should not have been listed or is no longer unsuitable to carry out regulated roles with children or adults. This consideration would take place when an individual raises an appeal, but also in other circumstances, e.g. when late representations are received or when Ministers become aware of information from another source which called into question the original listing decision.
