The Safeguarding Vulnerable Groups Act 2006 (Transitory Provisions) Order 2009

EXPLANATORY NOTE

(This note is not part of the Order)

This Order, made under the Safeguarding Vulnerable Groups Act 2006 (“the Act”), makes provision relating to the functions of the Independent Barring Board (“IBB”) (which is established under section 1 of the Act) during the “relevant period”. The relevant period is defined in article 1 as the period starting on the day after the Order is made and ending on the day that section 3 of the Act comes into force for all purposes. The beginning of that period marks the point from which IBB starts to replace the Secretary of State as the body which decides who should be barred from working with children and/or vulnerable adults.

Article 2 requires the Secretary of State to refer to IBB certain people whose cases the Secretary of State would otherwise have considered under the Protection of Children Act 1999 (“the 1999 Act”), the Care Standards Act 2000 (“the 2000 Act”) and/or the Education Act 2002 (“the 2002 Act”). The people who must be referred are those in relation to whom the Secretary of State or the Welsh Ministers have received referrals or information in accordance with any of the provisions specified in paragraphs (5) and (6) 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 Secretary of State has not, by that point, written to the person to invite representations from them as to why they should not be included in either of the specified lists or made subject to a direction under section 142 of the 2002 Act. Where the Secretary of State has written to invite representations, has provisionally included a person in either of the lists specified in paragraph (3), or has made the person subject to a direction under section 142 of the 2002 Act in accordance with regulation 8 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 (S.I.2003/1184) (“the 2003 Regulations”), that person will be considered in accordance with the 1999 Act, 2000 Act and/or 2002 Act, as appropriate.

Article 3 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 Secretary of State in accordance with any of the provisions specified in paragraph (13), this duty takes effect as one to refer B to IBB for consideration in accordance with the Act. Under paragraph (6), the Welsh Ministers must also refer to IBB any information that they receive about a person in accordance with regulation 4 or 6 of the Education (Supply of Information) (Wales) Regulations 2003 (S.I.2003/542) and under paragraph (11) the Secretary of State must refer to IBB any person found guilty of “relevant misconduct” by a “relevant inquiry” (both terms having the meanings given by section 2B of the 1999 Act and section 85 of the 2000 Act). However, the duty under paragraph (11) does not apply if the Secretary of State is satisfied that IBB is already considering the person and knows about the conduct in question. Paragraph (9) ensures that the Secretary of State may not separately consider such a person for inclusion in either of the lists specified in article 2(3), whilst paragraphs (4) and (5) make provision consequential to the redirection of referrals under the 1999 and 2000 Acts effected by paragraph (3).

Article 4 modifies the effect of section 142 of the 2002 Act. The effect of paragraph (2) is that, in relation to any case arising during the relevant period, the Secretary of State may only make a direction under that section to prohibit a person from participating in the management of an independent school and he may do so only on the grounds of that person’s misconduct. The effect of paragraph (6) is that during the relevant period the duty under regulation 4 of the 2003 Regulations does not apply where an employer has ceased to use a person’s services, or an agent has terminated arrangements with a person, on a ground relating to that person’s misconduct. Paragraph (6) also has the effect that regulation 8 of those Regulations will not apply to a person if that person is included automatically in either of the barred lists maintained under section 2 of the Act. The remaining provisions of the article disapply the modification introduced by paragraph (2) in so far as this is necessary (a) to ensure that where, before the start of the relevant period, the Secretary of State had invited representations or exercised any other functions under section 142 he 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 section 142 applies (see, for example, section 169 of the 2002 Act).

Article 5 modifies the effect of Schedule 3 to the Act 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 section 28, 29 or 29A of the Criminal Justice and Court Services Act 2000). The other change effected by article 5 is that a person is not to be included automatically in either of the barred lists unless IBB, rather than the Secretary of State, 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 8(2) and by exercising the powers provided for under paragraph 19(1) of Schedule 3 to the Act.

Articles 6 and 7 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 section 1 of the 1999 Act and were also subject to a direction under section 142 of the 2002 Act. Anyone included in the adults’ barred list is to be treated as if they were included in the list kept under section 81 of the 2000 Act. As a result, any reference elsewhere in legislation to a person who is included in the list kept under the 1999 Act or the 2000 Act, or who is subject to a direction under section 142 of the 2002 Act, 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 section 144 of the 2002 Act; their right to appeal is provided for under section 4 of the Act).

Article 8 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 section 82(1), 83(1) or 84(1) of the 2000 Act 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 9 makes provision for IBB to provide information to other persons during the relevant period. This will enable IBB to provide the Criminal Records Bureau and its equivalents in Scotland and Northern Ireland with information about people who are included in the barred lists, the lists kept under the 1999 and 2000 Acts, and who are subject to directions under section 142 of the 2002 Act. IBB will be able to provide similar information to the Secretary of State, for example, for the purposes of his functions under the Teachers’ Pensions Regulations 1997 (S.I.1997/3001). It will also be able to confirm to the General Teaching Councils for England and Wales 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), and under article 10 the Secretary of State will continue to be able to confirm to those employers whether teachers and school staff are barred from working with children or vulnerable adults. By these means, where anyone was bound to check, for example, whether a person was included in the list kept under section 1 of the 1999 Act before employing them, a check carried out in the same manner will reveal whether the person is included in the children’s barred list.

Articles 12 to 14 make supplementary and consequential provision. Article 12 modifies the effect of the Teachers’ Pensions Regulations 1997 in relation to applications from people referred to IBB under this Order for ill health pensions, whilst articles 13 and 14 have the effect that the functions of an investigating committee of the General Teaching Council for England or for Wales are excluded where IBB has included or is considering including a teacher in either of the barred lists.