The Disclosure (Scotland) Act 2020 (Commencement No. 5, Saving and Transitional Provision) Regulations 2025

EXPLANATORY NOTE

(This note is not part of the Regulations)

Commencement S

Regulation 3(1) and (2) and the schedule of these Regulations bring into force the provisions of the Disclosure (Scotland) Act 2020 (“the Disclosure Act”) specified in column 1 of the table in the schedule on 1 April 2025, including section 86 (confirmation of scheme membership under the PVG Act) and paragraphs 3 (Police Act 1997) and 5 (Protection of Vulnerable Groups (Scotland) Act 2007) of schedule 5. If a purpose is stated in column 3 of the table in the schedule, the provision is only brought into force for that purpose. Regulation 3(3) brings section 73(2) of the Disclosure Act (compulsory Scheme membership) into force for all remaining purposes on 1 July 2025.

The Bill for the Disclosure Act received Royal Assent on 14 July 2020. By virtue of section 97(1) of the Disclosure Act, sections 91 (regulations), 92 (ancillary provisions), 94 (individual culpability where organisation commits an offence), 95 (meaning of “the PVG Act”), 96 (Crown application), 97 (commencement) and 98 (short title) came into force on the day after Royal Assent.

Savings and transitional S

These Regulations make saving and transitional provision in relation to the commencement of some of these provisions. These include the vetting functions of the Scottish Ministers under the Police Act 1997 (“the 1997 Act”) and the Protection of Vulnerable Groups (Scotland) Act 2007 (“the PVG Act”) to reflect the changes made to the disclosure system by the Disclosure Act. The Regulations also make transitional provision in relation to offences inserted into the PVG Act by the Disclosure Act.

Part 1 of the Disclosure Act reforms the system of disclosure of criminal records administered by the Scottish Ministers. Prior to the Disclosure Act, disclosure functions were performed in accordance with Part 5 of the 1997 Act and Part 2 of the PVG Act. The Disclosure Act repeals Part 5 of the 1997 Act as it applies in Scotland, amends the PVG Act and makes provision for new Level 1 and Level 2 disclosures that replace criminal conviction certificates, criminal record certificates and enhanced criminal record certificates under the 1997 Act and scheme records and short scheme records under the PVG Act. Part 1 of the Disclosure Act also replaces the system of registration of registered persons (under the 1997 Act) who can countersign criminal record certificates, enhanced criminal record certificates, scheme records and short scheme records with the register of accredited bodies who can request Level 1 disclosure applications and countersign Level 2 disclosure applications.

Part 2 of the Disclosure Act amends the operation of the Protecting Vulnerable Groups Scheme (“the PVG Scheme”) under the PVG Act by making it a requirement for anyone carrying out a regulated role (paid, unpaid or voluntary) to be a member of the PVG Scheme. Section 73 of the Disclosure Act inserts new offences (sections 45C to 45G) into the PVG Act to support this compulsory scheme membership policy.

Regulations 4 and 5 of these Regulations make transitional provision in relation to applications for certificates made under the 1997 Act and requests for scheme records and short scheme records made under the PVG Act. From the relevant date (1 April 2025), those certificates and records will be treated for all purposes as if they were applications for Level 1 or Level 2 disclosures made under the Disclosure Act and the new review mechanisms set out in sections 5 to 6 and 20 to 30 of the Disclosure Act will apply to the Level 1 and Level 2 disclosures provided to individuals as a result of those applications.

Regulation 6 of these Regulations makes transitional provision in relation to requests for disclosure of statements of scheme membership made under section 54 of the PVG Act. From the relevant date, those requests will be treated for all purposes as if they relate to a request for a confirmation of scheme membership made under section 54 of the PVG Act (as substituted by section 86(3) of Disclosure Act).

Regulation 7 of these Regulations makes transitional provision in relation to disputes about accuracy of information contained in certificates issued under the 1997 Act or in scheme records disclosed under the PVG Act. The effect is that the Scottish Ministers must treat any notification received in relation to a certificate previously issued or scheme record previously disclosed, before the relevant date, as an equivalent Level 1 or Level 2 review application under the Disclosure Act for all purposes. If the Scottish Ministers are, before the relevant date, already considering the accuracy of information included in a certificate or a scheme record and have not, on the relevant date, made a decision on the accuracy of the information, they must treat the certificate previously issued or scheme record previously disclosed as an equivalent Level 1 or Level 2 review application under the Disclosure Act for all purposes and determine the dispute as if it were a Level 1 or Level 2 disclosure review application made under the Disclosure Act.

Regulation 8 of these Regulations makes transitional provision in relation to certificates issued under the 1997 Act and scheme records issued under the PVG Act which include details of a conviction that is eligible for removal (by order of a sheriff) from an individual’s certificate or scheme record. The effect is that where the Scottish Ministers have, before the relevant date:

• issued a certificate or disclosed a scheme record that includes such a conviction and on the relevant date the individual has not notified the Scottish Ministers of their intention to make an application to the sheriff for an order requiring the issue of a new certificate that does not include the details of the conviction or removal of vetting information from their scheme record (and the timescale for doing so has not expired), on the relevant date the original certificate application or original scheme record request will be treated for all purposes as if it were an application for a Level 2 disclosure under the Disclosure Act. This means that any subsequent notification made by the individual (made within the timescale for doing so) will be treated as a Level 2 review application under section 20(1)(b) of the Disclosure Act,

• issued a certificate or disclosed a scheme record that includes such a conviction and the individual has already notified the Scottish Ministers of their intention to make an application to the sheriff for an order requiring the issue of a new certificate that does not include the details of the conviction or removal of vetting information from their scheme record but on the relevant date has not yet made such application, the individual’s notification will be treated as a Level 2 review application under the Disclosure Act.

The transitional provision in regulation 8 will enable the Scottish Ministers to undertake a review of the ‘removable conviction’ under section 25 of the Disclosure Act.

Regulation 9 of these Regulations makes transitional provision in relation to applications to a sheriff by an individual, for an order requiring the issue of a new certificate or the removal of vetting information from their scheme record, where the application was made before the relevant date. It also makes provision for a Level 2 disclosure to be provided to the individual upon conclusion of the sheriff’s determination of the application after the relevant date and for that Level 2 disclosure to be subject to provision that is similar to provision in section 31(5) and (6) of the Disclosure Act relating to the further review of information included in a Level 2 disclosure in circumstances where a sheriff refuses the application. This is to ensure that the review process applies equally to all individuals. Regulation 9 also saves sections 116ZB of the 1997 Act and 52A of the PVG Act in relation to all applications made under those sections before the relevant date which are not finally disposed of by that date.

Regulation 10 of these Regulations makes transitional provision so that any person, currently registered as a registered person in the register maintained under section 120(1) of the 1997 Act, will automatically be included in the register for accredited bodies maintained under section 46(1) of the Disclosure Act in relation to the countersigning of applications for Level 2 disclosures under section 11 of that Act with effect from the relevant date. It makes transitional provision so that any conditions that are attached to that person’s registration continue to apply. It also makes transitional provision so that a person’s application for registration in the register maintained under section 120(1) of the 1997 Act made before the relevant date is treated for all purposes as if it were an application to be registered in the register of accredited bodies under section 47(1)(b) of the Disclosure Act if the Scottish Ministers haven’t determined that application by the relevant date.

Regulation 11 of these Regulations makes transitional provision in respect of section 45C of the PVG Act so that an individual does not commit an offence under that section if the individual has, before the relevant date, made an application to join the PVG Scheme in relation to the type of regulated role concerned and the application has not been withdrawn or finally determined.

Regulation 12 of these Regulations makes transitional provision in respect of how sections 45D and 45F of the PVG Act are to be read where:

• an organisation which has, before the relevant date, received disclosure of a scheme record under section 52 of the PVG Act or a short scheme record under section 53 of the PVG Act in relation to the individual that sets out that the individual participates in the Scheme in relation to the same type of regulated work as the regulated role offered, to ensure that that organisation does not commit an offence under section 45D, and

• a personnel supplier who has, before the relevant date, received disclosure of a scheme record under section 52 of the PVG Act or a short scheme record under section 53 of the PVG Act in relation to the individual that sets out that the individual participates in the Scheme in relation to the same type of regulated work as the regulated role offered, to ensure that that personnel supplier does not commit an offence under section 45F.