155.Subsection (1)(a) and (b) provide that no claim for damages may be made as result of a person’s inclusion in, or the fact that he is not included in a barred list. Subsection (1)(c) makes it clear that no claim for defamation may be brought by the subject of any information which is provided to the IBB by those under a duty to refer or provide information
156.But subsection (2) provides that people or bodies which refer or provide information to the IBB which they know to be untrue and which they create, or cause another to create, will not be protected from damages claims. This subsection ensures that defamation claims may be made in respect of malicious referrals under provisions mentioned in subsection (1)(c).
157.This section excludes from the scope of the Act activity carried out during the course of family relationships. Activity carried out within the context of a personal relationship which is not carried out for commercial consideration is also excluded. This means, for example, that a person included in the children’s barred list could look after his grandchildren. This section also includes a power to prescribe in regulations circumstances which may fall inside or outside of the definitions of “family relationship” or “personal relationship”.
158.This section defines vulnerable adult for the purposes of the Act. A person is vulnerable in the context of the setting in which they are situated or the service they receive as follows:
Those in residential accommodation provided in connection with care or nursing or in receipt of domiciliary care services
Those receiving health care
Those in lawful custody or under the supervision of a probation officer
Those receiving a welfare service of a prescribed description or direct payments from a social services authority
Those receiving services, or taking part in activities, aimed at people with disabilities or special needs because of their age or state of health
Those who need assistance in the conduct of their affairs.
159.This section provides for most of the powers in the Act to make subordinate legislation to be subject to the negative resolution procedure. The exceptions that have to be subject to the affirmative resolution procedure are instruments:
varying the definition of regulated activity;
extending the period during which those engaged in the activities set out in section 16(1)(b) to (e) are exempt from the requirement to become subject to monitoring. In the Act this period is set at three years from commencement of any part of section 16;
varying the definition of controlled activity in relation to children;
varying the definition of controlled activity in relation to vulnerable adults;
making provision for who may engage in controlled activity, the steps that a person must take in engaging another person in controlled activity, and the circumstances in which a person must not engage another person in controlled activity;
amending any Act or conferring a power to make subordinate legislation in consequence of or having regard to Scottish or Northern Ireland legislation that makes provision equivalent to that in this Act;
amending, repealing or revoking any enactment through the powers to make supplementary, incidental, consequential, transitory, transitional or saving provision under section 64(1) and (2);
prescribing the criteria for automatic inclusion in a barred list;
prescribing the conditions under which a person's case should be considered by Scottish Ministers and not by the IBB;
amending what constitutes obtaining appropriate verification (that a person is subject to monitoring) in Schedule 5 for the purpose of section 11.
Section 62: Transitional provision
160.This section gives effect to Schedule 8, which provides powers to transfer individuals who are barred under current schemes to the new barred lists as appropriate.
161.This Schedule provides powers to ensure a transition can take place from the current barring schemes to the new barred lists. Paragraph 1 allows the Secretary of State to get advice from the IBB when taking decisions under the current schemes. Paragraphs 2 and 3 set out the provision that may be included in regulations governing a transition for those currently barred.
162.This section introduces Schedules 9 and 10.
163.Paragraph 1 amends the Children Act 1989 so that regulations may prescribe that a person who appears on the children’s barred list may not be registered as a childminder or daycare provider.
164.Paragraph 3 repeals the duty on the General Teaching Council for England to respond to requests for advice from the Secretary of State. This provision was required so that the GTC could advise the Secretary of State on professional misconduct cases in relation to List 99. List 99 is repealed under this Act so this advice is no longer required.
165.Paragraph 4 amends the Teaching and Higher Education Act 1998 so that a person who appears on the children’s barred list may not register as a teacher with the General Teaching Councils for England and Wales.
166.Paragraphs 5 and 6 amend the duties in the Teaching and Higher Education Act 1998 to refer information to the General Teaching Councils for England and Wales. These changes reflect that sections 142 to 144 of the Education Act 2002 (which provided for “List 99” directions) are being repealed by this Act and that references to sections 142 to 144 must therefore be removed from the Teaching and Higher Education Act 1998.
167.Paragraph 8 repeals the duty on the Secretary of State to keep the list under the Protection of Children Act 1999 (the “POCA list”). This list is superseded by the children’s barred list set up under this Act.
168.Paragraph 9 repeals the duty on the Secretary of State to keep the protection of vulnerable adults (POVA) list. This list is superseded by the adults’ barred list set up under this Act.
169.Paragraph 10 amends the Childcare Act 2006 so that regulations may prescribe that a person who appears on the children’s barred list may not be registered as a childminder or daycare provider.
170.Paragraphs 11 and 13 amend the Police Pensions Act 1976 and the Police Act 1996 so that a member of the police force may continue to be part of the police pension scheme while on secondment to the IBB.
171.Paragraph 14 amends the Police Act 1997. The amendments made by subparagraph (2) enable the Secretary of State to amend the existing definitions of “central records” and “relevant matter” which comprise the information routinely disclosed on standard criminal record certificates and enhanced criminal record certificates. This will enable the Secretary of State to provide for the routine disclosure of various additional types of information that have become available to the prosecuting and judicial authorities since the original definitions in the Police Act were enacted.
172.Subparagraph (3) amends section 113B of the Police Act to make clear that an enhanced criminal record certificate can only be applied for if, in addition to meeting such other qualifying criteria as may be prescribed, the position, employment or licensing application in question is included within those listed in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975.
173.Subparagraph (4) introduces three new sections into the Police Act to provide for enhanced criminal record certificates issued under Part 5 of the Police Act to include ‘suitability information’ relating to children or to vulnerable adults. This includes information as to: whether a person is barred and such details as are prescribed of the circumstances surrounding that fact; whether a person is subject to monitoring and/or whether the IBB is considering whether the include the person in the barred list.
174.Subparagraph (7) amends section 119 of the Police Act to require those who hold records of convictions and cautions for police forces to make these available to the Secretary of State, and to require chief officers of police to supply the Secretary of State with relevant information in response to requests made by the Secretary of State in relation to his functions under this Act. This enables the Secretary of State to perform his monitoring functions under section 24.
175.Paragraph 15 amends section 56 the Data Protection Act 1998. The result of the amendment is that it is a criminal offence to require a person to produce a record of information that the person has obtained through a subject access request to the Secretary of State or the IBB (with regard to their functions under the SVG Act), where the requirement is in connection with the employment of the person or the provision of goods, facilities or services to the person.
176.Paragraph 16 amends section 58 of the Care Standards Act 2000 in order to permit the General Social Care Council, or the Care Council for Wales to have regard to the fact that a person is included in a barred list when deciding whether a person is of good character for the purposes of registration with either Council.