Safeguarding Vulnerable Groups (Transitory Provisions) Order (Northern Ireland) 2009

EXPLANATORY NOTE

(This note is not part of the Order)

This Order, made under the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 (“the 2007 Order”), makes provision relating to the functions of the Independent Barring Board (“IBB”) (which is established under section 1 of the Safeguarding Vulnerable Groups Act 2006) during the “relevant period”. The relevant period is defined in Article 2 as the period starting on the day after the Order comes into operation and ending on the day that Article 7 of the 2007 Order comes into operation for all purposes. The beginning of that period marks the point from which IBB starts to replace the Department of Health, Social Services and Public Safety and the Department of Education as the bodies which decide who should be barred from working with children and/or vulnerable adults.

Article 3 requires the Department of Health, Social Services and Public Safety and the Department of Education to refer to IBB certain people whose cases the Department of Health, Social Services and Public Safety would otherwise have considered under the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003 (“the 2003 Order”) and cases the Department of Education would otherwise have considered under the Education (Prohibition from Teaching or Working with Children) Regulations (Northern Ireland) 2007 (“the 2007 Regulations”). The people who must be referred are those in relation to whom the Department of Health, Social Services and Public Safety or the Department of Education has received referrals or information in accordance with any of the provisions specified in paragraphs (2)(a) and (b) and who are not included provisionally in either of the lists specified in paragraph (3). The duty to refer a person only applies if this information has been received before the start of the relevant period and the Department of Health, Social Services and Public Safety or the Department of Education has not, by that point, written to the person to invite representations from them as to why they should not be included in any of the specified lists. Where the Department of Health, Social Services and Public Safety or the Department of Education has written to invite representations, has provisionally included a person in either of the lists specified in paragraph (3), or has prohibited a person in accordance with regulation 8 of the 2007 Regulations, that person will be considered in accordance with the 2003 Order and/or 2007 Regulations, as appropriate.

Article 4 relates to cases arising during the relevant period. Where a person, A, would formerly have been required to refer or provide information about another person, B, to the Department of Health, Social Services and Public Safety or the Department of Education in accordance with any of the provisions specified in paragraph (10), this duty takes effect as one to refer B to IBB for consideration in accordance with the 2007 Order. Under paragraph (8) the Department of Health, Social Services and Public Safety must refer to IBB any person found guilty of “relevant misconduct” by a “relevant inquiry” (both terms having the meanings given by Article 7 and 39 of the 2003 Order). However, the duty under paragraph (8) does not apply if the Department of Health, Social Services & Public Safety is satisfied that IBB is already considering the individual and knows about the conduct in question. Paragraph (6) ensures that the Department of Health, Social Services and Public Safety may not separately consider such a person for inclusion in either of the lists specified in Article 3(3), whilst paragraphs (4) and (5) make provision consequential on the redirection of referrals under the 2003 Order effected by paragraph (3).

Article 5 disapplies the modification introduced by Article 3 in so far as this is necessary in relation to the 2007 Regulations (a) to ensure that where, before the start of the relevant period, the Department of Education had invited representations, the Department may continue to consider the case of the person in question and (b) so that it does not affect the interpretation of any reference elsewhere in legislation to the work to which regulation 6 of the 2007 Regulations applies.

Article 6 modifies the effect of Schedule 1 to the Order during the relevant period. As a result, IBB is not to include a person in the children’s barred list under paragraph 3 of the Schedule if the only conduct it has to consider has already been considered by a court and that court has also considered whether to impose a disqualification order on the person in relation to the conduct in question (a disqualification order is an order under Article 23 or 24 of the 2003 Order). The other change effected by Article 6 is that a person is not to be included automatically in either of the barred lists unless IBB, rather than the Department of Education, is satisfied that criteria prescribed for the purposes of paragraphs 1, 2, 7 or 8 are met. IBB will satisfy itself of this by accessing the information made available to it under Article 9(2) and by exercising the powers provided for under paragraph 19(1) of Schedule 1 to the 2007 Order.

Articles 7 and 9 provide for the effect of inclusion in the children’s and adults’ barred lists under this Order. Anyone included in the children’s barred list is to be treated as if they were included in the list kept under Article 3 of the 2003 Order or the list kept under regulation 8 of the 2007 Regulations. Anyone included in the adults’ barred list is to be treated as if they were included in the list kept under Article 35 of the 2003 Order. As a result, any reference elsewhere in legislation to a person who is included in the list kept under the 2003 Order or the 2007 Regulations is to be read as including anyone included in the children’s or adults’ barred list, as appropriate. However, this does not apply for the purposes of the provisions specified in paragraph (4) of either Article (so, for example, where a person is included in the children’s barred list, they do not have a right to appeal under regulation 10 of the 2007 Regulations; their right to appeal is provided for under Article 8 of the 2007 Order).

Articles 8 and 10 provide for the effect of inclusion in the children’s and adults’ barred lists for England and Wales (established and maintained under section 2(1) of the Safeguarding Vulnerable Groups Act 2006) under the Safeguarding Vulnerable Groups Act 2006 (Transitory Provisions) Order 2009 (S.I. 2009/12). Anyone included in the children’s barred list for England and Wales is to be treated as if they were included in the list kept under Article 3 of the 2003 Order, or the list kept under regulation 8 of the 2007 Regulations. Anyone included in the adults’ barred list for England and Wales is to be treated as if they were included in the list kept under Article 35 of the 2003 Order. As a result, any reference elsewhere in legislation to a person who is included in the list kept under the 2003 Order or the 2007 Regulations is to be read as including anyone included in the children’s or adults’ barred list for England and Wales, as appropriate. However, this does not apply for the purposes of the provisions specified in paragraph (4) of either Article (so for example, where a person is included in the children’s barred list for England and Wales, they do not have a right of appeal under regulation 10 of the 2007 Regulations).

Article 11 makes provision in relation to the information to be made available to IBB and that which is to be considered by IBB for the purpose of its functions under this Order. The effect of paragraphs (3) to (6) is that, when considering whether to include a person in the adults’ barred list, IBB is to consider only information referred to it under Article 36, 37 or 38 of the 2003 Order or information which is has considered in relation to the question of whether the person should be included in the children’s barred list. When considering whether to include a person in the children’s barred list, IBB is to consider any information that it receives in relation to the inclusion of that person in that list.

Article 12 makes provision for IBB to provide information to other persons during the relevant period. This will enable IBB to provide AccessNI and its equivalents in Scotland and England with information about people who are included in the barred lists. IBB will be able to provide similar information to the Department of Education, for example, in connection with its functions under the Teachers’ Superannuation Regulations (Northern Ireland) 1998 (S.R.1998/333). It will also be able to confirm to the General Teaching Council for Northern Ireland and employers or prospective employers of teachers and other school staff whether a person is subject to any of the disqualifications set out in paragraph (6).

Articles 13 and 14 similarly make provision for the Department of Health, Social Services and Public Safety and the Department of Education to advise employers or prospective employers whether a person was included in the lists kept under Article 3 or 35 of the 2003 Order or regulation 8 of the 2007 Regulations.

Articles 16 and 17 make supplementary and consequential provision. Article 16 modifies the effect of the Teachers’ Superannuation Regulations (Northern Ireland) 1998 in relation to applications from people referred to IBB under this Order for ill health pensions, whilst Article 17 amends the General Teaching Council for Northern Ireland (Registration of Teachers) Regulations (Northern Ireland) 2004 to disqualify from registration a person who is included in the list kept under regulation 8 of the 2007 Regulations or who IBB has included in either of the barred lists.