The Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012
A draft of this Order was laid before Parliament in accordance with section 89(2) of the Protection of Freedoms Act 2012 and was approved by resolution of each House of Parliament.
PART 1Introduction
Citation, commencement, extent and interpretation1.
(1)
This Order may be cited as the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012 and shall come into force on 1st December 2012.
(2)
Subject to paragraphs (3), (4), (5) and (6), this Order extends to England and Wales and Northern Ireland.
(3)
The amendments to any enactment made by this Order, subject to paragraphs (4), (5) and (6), have the same extent as the enactment amended.
(4)
(5)
The amendments made to the Police Act 1997 by articles 13(2)(c), 52 and 53 extend to Northern Ireland only.
(6)
(7)
In this Order—
“the 1997 Act” means the Police Act 1997;
“the 2012 Act” means the Protection of Freedoms Act 2012;
“DBS” means the Disclosure and Barring Service;
“ISA” means the Independent Safeguarding Authority;
“the principal enactments” means the 2006 Act, the 2007 Order, the 2008 Northern Ireland Transitional Provisions Order and the 2008 Transitional Provisions Order.
PART 2Transfer of the Independent Safeguarding Authority’s functions
CHAPTER 1Transfer of ISA’s functions
Transfer of ISA’s functions2.
All of ISA’s functions except for the function of establishing the children’s barred list and the adults’ barred list under section 2 of the 2006 Act and Article 6 of the 2007 Order are transferred to DBS.
CHAPTER 2Consequential amendments to the principal enactments
Consequential amendments to the 2006 Act
3.
In the following provisions of the 2006 Act for “ISA”, in each place where it occurs, substitute “DBS”—
(a)
sections 2 and 4;
(b)
sections 35 to 42;
(c)
section 43 (including section 43(1) and (2) as substituted by section 75(3) of the 2012 Act);
(d)
sections 45 to 47;
(e)
(f)
the following paragraphs of Schedule 3—
(i)
paragraphs 2 to 5;
(ii)
(iii)
paragraph 6 (including the reference to ISA inserted by section 74(2) of the 2012 Act);
(iv)
paragraphs 8 to 11;
(v)
(vi)
paragraph 12 (including the reference to ISA inserted by section 74(4) of the 2012 Act);
(vii)
paragraphs 13 to 21;
(viii)
(ix)
paragraph 25;
(g)
the table in paragraph 1 of Schedule 7;
(h)
paragraphs 1 (including the heading), 2(2) and 3(2) of Schedule 8.
4.
In section 2 omit “establish and”.
5.
““DBS” means the Disclosure and Barring Service established by section 87(1) of the Protection of Freedoms Act 2012;”
Consequential amendments to the 2007 Order
6.
In the following provisions of the 2007 Order for “ISA”, in each place where it occurs, substitute “DBS”—
(a)
Articles 2, 6 and 8;
(b)
Articles 37 to 44;
(c)
Article 45 (including Article 45(1) and (2) as substituted by paragraph 12(2) of Schedule 7 to the 2012 Act);
(d)
Articles 47 to 49;
(e)
(f)
the following paragraphs of Schedule 1—
(i)
paragraphs 2 to 5;
(ii)
(iii)
paragraph 6 (including the reference to ISA inserted by paragraph 11(2) of Schedule 7 to the 2012 Act);
(iv)
paragraphs 8 to 11;
(v)
(vi)
paragraph 12 (including the reference to ISA inserted by paragraph 11(4) of Schedule 7 to the 2012 Act);
(vii)
paragraphs 13 to 21;
(viii)
(ix)
paragraph 25;
(g)
paragraphs 1 (including the heading), 2(2) and 3(2) of Schedule 6.
7.
“Disclosure and Barring Service5.
In this Order references to DBS are references to the Disclosure and Barring Service established by section 87(1) of the Protection of Freedoms Act 2012.”
8.
In Article 6 omit “establish and”.
Consequential amendments to the 2008 Northern Ireland Transitional Provisions Order
9.
(a)
article 3(2), (4) and (5);
(b)
article 4(2);
(c)
article 5(2), (4) and (5);
(d)
article 6(2).
10.
In the following provisions of the 2008 Northern Ireland Transitional Provisions Order for “IBB” substitute “IBB, ISA or DBS, as the case may be”—
(a)
article 3(1)(c);
(b)
article 4(1)(c);
(c)
article 5(1)(c);
(d)
article 6(1)(c).
Consequential amendments to the 2008 Transitional Provisions Order
11.
In the following provisions of the 2008 Transitional Provisions Order for “IBB” substitute “DBS”—
(a)
article 2(2), (4) and (5);
(b)
article 3(2);
(c)
article 4(2), (4) and (5).
12.
In the following provisions of the 2008 Transitional Provisions Order for “IBB” substitute “IBB, ISA or DBS, as the case may be”—
(a)
article 2(1)(c);
(b)
article 3(1)(c);
(c)
article 4(1)(c).
CHAPTER 3Consequential amendments to other enactments
Consequential amendments to other enactments
13.
(1)
For the words in the left-hand column of the table, wherever they appear in the provisions of the Acts of Parliament mentioned in paragraph (2) or the subordinate legislation mentioned in paragraph (3), substitute the corresponding words in the right-hand column of the table.
Existing words | Substitution |
|---|---|
“Independent Barring Board” | “Disclosure and Barring Service” |
“IBB” | “DBS” |
“Independent Safeguarding Authority” | “Disclosure and Barring Service” |
“ISA” | “DBS” |
“the Authority” | “the Service” |
“the Board” | “the Service” |
(2)
The provisions of the Acts of Parliament are—
(a)
(b)
(c)
(d)
(e)
(f)
section 171(1)(b) of the Education and Inspections Act 2006;
(g)
sections 130(4) and (5) and 141(1)(b) of the Education and Skills Act 2008.
(3)
The subordinate legislation is—
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(u)
(v)
(w)
(x)
(y)
(z)
(aa)
(bb)
(cc)
(dd)
(ee)
Consequential amendment to the Parliamentary Commissioner Act 1967
14.
Consequential amendment to the Superannuation Act 1972
15.
Consequential amendment to the Data Protection Act 1998
16.
Consequential amendment to the Freedom of Information Act 2000
17.
Consequential amendments to the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975
18.
19.
In article 3(a)(ii) for “40, 43 or 44” substitute “38, 40 or 43”.
20.
(1)
Part II of Schedule 1 is amended as follows.
(2)
In paragraph 38—
(a)
for “Independent Barring Board” substitute “Disclosure and Barring Service”;
(b)
after “Service” insert “, and any other work in the Disclosure and Barring Service”.
(3)
Omit paragraph 44.
Consequential amendments to the General Teaching Council for Wales (Disciplinary Functions) Regulations 2001
21.
22.
(a)
for “Independent Barring Board, established under section 1 of the Safeguarding Vulnerable Groups Act 2006” substitute “Disclosure and Barring Service, established by section 87(1) of the Protection of Freedoms Act 2012”;
(b)
for “that Act” substitute “the Safeguarding Vulnerable Groups Act 2006”.
23.
In regulation 9(1)(c), in the Welsh language text of those Regulations (Rheoliadau Cyngor Addysgu Cyffredinol Cymru (Swyddogaethau Disgyblu) 2001),—
(a)
for “Bwrdd Gwahardd Annibynnol, a sefydlwyd o dan adran 1 o Ddeddf Diogelu Grwpiau Hyglwyf 2006” substitute “Gwasanaeth Datgelu a Gwahardd, a sefydlwyd o dan adran 87(1) o Ddeddf Diogelu Rhyddid 2012”;
(b)
for “o’r Ddeddf honno” substitute “o Ddeddf Diogelu Grwpiau Hyglwyf 2006”.
Consequential amendments to the Education (Supply of Information) (Wales) Regulations 2009
24.
25.
In regulation 1(3) for “Independent Barring Board” substitute “Disclosure and Barring Service”.
26.
In regulation 1(3), in the Welsh language text of those Regulations (Rheoliadau Addysg (Cyflenwi Gwybodaeth) (Cymru) 2009), for “Bwrdd Gwahardd Annibynnol” substitute “Gwasanaeth Datgelu a Gwahardd”.
Consequential amendments to the Protection of Vulnerable Groups (Scotland) Act 2007 (Consequential Provisions) Order 2010
27.
28.
““Disclosure and Barring Service” and “DBS” mean the body established by section 87(1) of the Protection of Freedoms Act 2012;”
29.
In articles 18, 19 and 20, and the subject heading before articles 11 and 18, for “Independent Safeguarding Authority” substitute “Disclosure and Barring Service” and for “ISA” substitute “DBS”.
Consequential amendments to the Family Procedure Rules 2010
30.
(1)
(2)
(a)
for “Independent Safeguarding Authority” substitute “Disclosure and Barring Service”; and
(b)
for “section 1 of the Safeguarding Vulnerable Groups Act 2006” substitute “section 87(1) of the Protection of Freedoms Act 2012”.
Consequential amendments to the Fostering Services (England) Regulations 2011
31.
32.
In regulation 2(1) for ““Independent Safeguarding Authority” has the meaning given in section 1 of the Safeguarding Vulnerable Groups Act 2006” substitute ““Disclosure and Barring Service” means the body established by section 87(1) of the Protection of Freedoms Act 2012”.
33.
In Schedule 7 for “Independent Safeguarding Authority” substitute “Disclosure and Barring Service”.
CHAPTER 4Supplemental provisions
Further references to ISA and DBS
34.
Any reference (other than those dealt with by Chapters 2 and 3 of this Part) to the Independent Safeguarding Authority (including references to the Independent Barring Board, which are to be treated as references to the Independent Safeguarding Authority by virtue of section 81(5) of the Policing and Crime Act 2009) in any enactment passed or made before the commencement of this Order is to be read as a reference to the Disclosure and Barring Service.
35.
Any reference to the Disclosure and Barring Service which arises by virtue of this Order is to be read—
(a)
in relation to times before the commencement of section 81 of the Policing and Crime Act 2009, as a reference to the Independent Barring Board, and
(b)
in relation to times after the commencement of that section but before the commencement of this Order, as a reference to the Independent Safeguarding Authority.
PART 3Transfer of the Secretary of State’s functions
CHAPTER 1Transfer of the Secretary of State’s functions under Part 5 of the 1997 Act
Amendment of Part 5 of the 1997 Act
36.
The 1997 Act is amended as follows.
37.
In the following provisions for “the Secretary of State” and “The Secretary of State”, in each place where it occurs, substitute “DBS”—
(a)
section 112(1) (but not paragraph (b) of subsection (1)) and (4);
(b)
(c)
(d)
(e)
section 114(1) (but not paragraph (b) of subsection (1));
(f)
section 116(1) (but not paragraph (b) of subsection (1));
(g)
(h)
(i)
(j)
(k)
(l)
(m)
section 120(1), (2), (5) and (6);
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(u)
(v)
38.
In section 113A(5)—
(a)
in paragraph (a) for “his” substitute “its”; and
(b)
in paragraph (b) for “him” substitute “it”.
39.
In section 113B—
(a)
in subsection (7) for “his” substitute “its”; and
(b)
in subsection (8) for “he” substitute “it”.
40.
In section 117(2) for “he” in both places where it occurs substitute “it”.
41.
In section 118—
(a)
in subsection (1) for “he” substitute “it”; and
(b)
in subsection (2A) for “he” substitute “it”.
42.
In section 119—
(a)
in subsection (1) for “him” substitute “it”;
(b)
in subsection (1B) for “he” substitute “it”;
(c)
in subsection (3) for “he” substitute “the Secretary of State”;
(d)
in subsection (4)—
(i)
for “him” substitute “it”; and
(ii)
for “his” substitute “its”; and
(e)
in subsection (5) for “him” substitute “it”.
43.
In section 120(2)(a) for “him” substitute “it”.
44.
In section 120A(1) for “him” substitute “it”.
45.
In section 120AB—
(a)
in subsection (1) for “his” substitute “its”; and
(b)
in subsection (4)(b) for “he” substitute “it”.
46.
In section 122(3B) for “he” substitute “it”.
47.
““DBS” means the Disclosure and Barring Service established by section 87(1) of the Protection of Freedoms Act 2012;”
CHAPTER 2Transfer of the Secretary of State’s functions under the 2006 Act
48.
In the following provisions of the 2006 Act for “the Secretary of State” and “The Secretary of State”, in each place where it occurs, substitute “DBS”—
(a)
(b)
(c)
(d)
(e)
section 47(7);
(f)
(g)
(h)
(i)
paragraphs 19(7) and 22 of Schedule 3.
CHAPTER 3Transfer of the Secretary of State’s functions under the 2007 Order
49.
In the following provisions of the 2007 Order for “the Secretary of State” and “The Secretary of State”, in each place where it occurs, substitute “DBS”—
(a)
(b)
(c)
(d)
(e)
Article 49(7);
(f)
(g)
(h)
(i)
paragraph 22 of Schedule 1.
CHAPTER 4Consequential amendments to the 1997 Act, the 2006 Act and the 2007 Order
Consequential amendments to the 1997 Act in England and Wales
50.
(1)
Section 119 of the 1997 Act is amended as follows—
(2)
Omit subsection (1A).
(3)
“(4A)
DBS may require the Secretary of State to provide it with the information and advice specified in section 113CD(2) to (6) for the purpose of enabling DBS to carry out its functions under section 113CD.”.
51.
Consequential amendments to the 1997 Act in Northern Ireland
52.
(1)
Section 119 of the 1997 Act is amended as follows.
(2)
“(1ZA)
Any person who holds records of convictions or cautions for the use of police forces generally must make those records available to the Disclosure and Barring Service for the purpose of enabling it to carry out its functions under paragraph 1, 2, 7 or 8 of Schedule 1 to the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007.”
(3)
In subsection (5)—
(a)
after “Secretary of State” insert “or the Disclosure and Barring Service”, and
(b)
after “him” insert “or it”.
(4)
Omit subsection (8)(d).
53.
In section 126A of the 1997 Act omit—
(a)
subsections (2)(b) and (3), and
(b)
in subsection (2)(d) “section 119 or”.
Consequential amendments to the 2006 Act
54.
In section 43(5E) of the 2006 Act omit “or (as the case may be) the Secretary of State”.
55.
Schedule 3 to the 2006 Act is amended as follows.
56.
“(2)
If DBS is satisfied that this paragraph applies to a person, it must include the person in the children’s barred list.”
57.
“(2)
Sub-paragraph (4) applies if it appears to DBS that—
(a)
this paragraph applies to a person, and
(b)
the person is or has been, or might in future be, engaged in regulated activity relating to children.”
58.
“(2)
If DBS is satisfied that this paragraph applies to a person, it must include the person in the adults’ barred list.”
59.
“(2)
Sub-paragraph (4) applies if it appears to DBS that—
(a)
this paragraph applies to a person, and
(b)
the person is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults.”
60.
Omit paragraph 19(8).
61.
Omit paragraph 20(2).
Consequential amendments to the 2007 Order
62.
In Article 45(5E) of the 2007 Order omit “or (as the case may be) the Secretary of State”.
63.
Schedule 1 to the 2007 Order is amended as follows.
64.
“(2)
If DBS is satisfied that this paragraph applies to a person, it must include the person in the children’s barred list.”
65.
“(2)
Sub-paragraph (4) applies if it appears to DBS that—
(a)
this paragraph applies to a person, and
(b)
the person is or has been, or might in future be, engaged in regulated activity relating to children.”
66.
“(2)
If DBS is satisfied that this paragraph applies to a person, it must include the person in the adults’ barred list.”
67.
“(2)
Sub-paragraph (4) applies if it appears to DBS that—
(a)
this paragraph applies to a person, and
(b)
the person is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults.”
68.
Omit paragraph 20(3).
CHAPTER 5Consequential amendments to other enactments
Consequential amendments to the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975
69.
The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 is amended as follows.
70.
71.
Consequential amendments to the Data Protection Act 1998
72.
73.
In entry 2 in the table in section 56(6) omit paragraphs (f) and (g).
74.
In entry 4 in the table in section 56(6)—
(a)
before “Its functions” insert “(a)”;
(b)
“(b)
Its functions under Part 5 of the Police Act 1997.”
75.
In section 75(4) omit “by the Secretary of State”.
Consequential amendments to the Police Act 1997 (Criminal Records) Regulations 2002
76.
77.
78.
Consequential amendments to the Independent Schools (Provision of Information) (Wales) Regulations 2003
79.
80.
In paragraph 3(16) of the Schedule for “Criminal Records Bureau” substitute “Disclosure and Barring Service”.
81.
In paragraphs 7(d) and 10(d) of the Schedule for “Secretary of State” substitute “Disclosure and Barring Service”.
82.
In paragraph 3(16) of the Schedule, in the Welsh language text of those Regulations (Rheoliadau Ysgolion Annibynnol (Darparu Gwybodaeth) (Cymru) 2003), for “Swyddfa Cofnodion Troseddol” substitute “Gwasanaeth Datgelu a Gwahardd”.
83.
In paragraphs 7(ch) and 10(ch) of the Schedule, in the Welsh language text for “Ysgrifennydd Gwladol” substitute “Gwasanaeth Datgelu a Gwahardd”.
Consequential amendments to the Pensions Act 2004
84.
“Disclosure and Barring Service
Functions under Part 5 of the Police Act 1997”
85.
“Disclosure and Barring Service
Functions under Part 5 of the Police Act 1997”
Consequential amendments to the Police Act 1997 (Criminal Records) (Registration) Regulations 2006
86.
87.
““DBS” means the Disclosure and Barring Service established by section 87(1) of the Protection of Freedoms Act 2012;”
88.
In the following provisions for “the Secretary of State” substitute “DBS”—
(a)
regulation 2;
(b)
regulation 3(1)(a), (1)(e)(ii) and (1)(f)(i);
(c)
regulation 4(2), (3), (4) and (5);
(d)
regulation 7(b), (c), (d)(i), (e), (e)(i), (f), (g)(iii), (j), (k) and (m);
(e)
regulation 8(1), (2) and (4);
(f)
regulation 9;
(g)
regulation 10(1), (2) and (3).
Consequential amendments to the Local Authority Adoption Service (Wales) Regulations 2007
89.
90.
In regulation 16(3)(e) for “CRB” each time it occurs substitute “Disclosure and Barring Service”.
91.
In paragraph 5 of Schedule 4 for “Criminal Records Bureau” substitute “Disclosure and Barring Service”.
92.
In regulation 16(3)(d), in the Welsh language text of those Regulations (Rheoliadau Gwasanaeth Mabwysiadu Awdurdodau Lleol (Cymru) 2007), for “SCT (CRB)” each time it occurs substitute “Gwasanaeth Datgelu a Gwahardd”.
93.
In paragraph 5 of Schedule 4, in the Welsh language text, for “Swyddfa Cofnodion Troseddol” substitute “Gwasanaeth Datgelu a Gwahardd”.
Consequential amendments to the Legislative and Regulatory Reform (Regulatory Functions) Order 2007
94.
Consequential amendments to the Special Educational Needs Tribunal for Wales Regulations 2012
95.
96.
In regulation 66(4) for “Criminal Records Bureau” substitute “Disclosure and Barring Service”.
97.
In regulation 66(4), in the Welsh language text of those Regulations (Rheoliadau Tribiwnlys Anghenion Addysgol Arbennig Cymru 2012), for “Swyddfa Cofnodion Troseddol” substitute “Gwasanaeth Datgelu a Gwahardd”.
CHAPTER 6Supplemental provisions
Supplemental provisions relating to Secretary of State functions
98.
Anything which is being done by or in relation to the Secretary of State, when the Secretary of State’s functions under Part 5 of the 1997 Act, the 2006 Act and the 2007 Order are transferred to DBS by this Order, may, so far as it relates to those functions, be continued by, or in relation to, DBS.
99.
Anything done before the coming into force of this Order by or in relation to the Secretary of State under Part 5 of the 1997 Act, the 2006 Act and the 2007 Order, in relation to a function of the Secretary of State transferred to DBS by this Order, has effect, so far as necessary for continuing its effect after those functions are transferred by this Order, as if done by, or in relation to, DBS.
100.
Any enactment or instrument passed or made before the coming into force of this Order has effect, so far as is necessary for the purposes of or in consequence of the transfer of a function of the Secretary of State to DBS by this Order, as if references to the Secretary of State were or included references to DBS.
PART 4Transitional provisions
Appeals and legal proceedings
101.
Any appeal under section 4 of the 2006 Act, under article 8 of the 2007 Order or resulting from any decision made under the 2008 Northern Ireland Transitional Provisions Order or the 2008 Transitional Provisions Order, or any other legal proceedings being taken against ISA (or any further appeal or other legal proceedings which may be taken by ISA) at the time ISA’s functions are transferred by this Order to DBS shall, from that time, lie against (or may be taken by, as the case may be) DBS.
102.
(1)
DBS shall be substituted as the respondent (or the appellant, or as any other party, as the case may be) in any legal proceedings against or brought by ISA which are not completed at the time ISA’s functions are transferred by this Order to DBS.
(2)
The substitution of DBS as the respondent (or the appellant, or as any other party, as the case may be) shall not affect the operation of any time limits in any such legal proceedings.
Information
103.
Any information which is held by ISA at the time ISA’s functions are transferred by this Order to DBS shall, at that time, be transferred to DBS.
Representations
104.
(1)
Any representations which can be made to ISA under paragraph 2, 3, 5, 8, 9, 11, 16 or 17 of Schedule 3 to the 2006 Act, under paragraph 2, 3, 5, 8, 9, 11, 16 or 17 of Schedule 1 to the 2007 Order or under the 2008 Northern Ireland Transitional Provisions Order or the 2008 Transitional Provisions Order at the time ISA’s functions are transferred by this Order to DBS may, from that time, be made to DBS.
(2)
No person need, as a result of the transfer of ISA’s functions to DBS, re-submit any representations that they have previously submitted to ISA.
105.
(1)
Any representations which can be made to the Secretary of State under section 120AB of the 1997 Act at the time the Secretary of State’s functions under that section are transferred to DBS by this Order may, from that time, be made to DBS.
(2)
No person need, as a result of the transfer of the Secretary of State’s functions to DBS, re-submit any representations that they have previously submitted to the Secretary of State.
Reviews
106.
107.
Any application for a review received by ISA prior to the time ISA’s functions are transferred by this Order to DBS shall, from that time, be considered by DBS.
Report and accounts
108.
(1)
DBS must prepare reports and accounts in relation to ISA’s final financial year in accordance with paragraphs 9 and 12 of Schedule 1 to the 2006 Act (despite the repeal of that Schedule by article 125).
(2)
For that purpose ISA’s final financial year is the period 1st April 2012 to 30th November 2012.
Advice
109.
Any request for advice that is made to ISA by the Secretary of State under paragraph 1 of Schedule 8 to the 2006 Act or made to ISA by the Northern Ireland Department of Health, Social Services and Public Safety or the Northern Ireland Department of Education under paragraph 1 of Schedule 6 to the 2007 Order prior to ISA’s functions under the 2006 Act and the 2007 Order being transferred to DBS by this Order, shall be complied with by DBS.
Registration
110.
Any person who is a registered person under sections 120 and 120ZA of the 1997 Act at the time the function of maintaining the register under section 120 of the 1997 Act is transferred from the Secretary of State to DBS by this Order shall have their registration transferred to the register maintained by DBS under section 120 of the 1997 Act.
PART 5Dissolution of the Independent Safeguarding Authority
Dissolution of ISA
111.
ISA is dissolved immediately after its functions are transferred to DBS by article 2 of this Order.
112.
Section 1 of, and Schedules 1 and 2 to, the 2006 Act cease to have effect.
Home Office
Part 2 of this Order transfers the functions of the Independent Safeguarding Authority (“ISA”) under the Safeguarding Vulnerable Groups Act 2006 (“the 2006 Act”), the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 (“the 2007 Order”), the Safeguarding Vulnerable Groups Act 2006 (Transitional Provisions) Order 2008 (“the 2008 Transitional Provisions Order”) and the Safeguarding Vulnerable Groups (Transitional Provisions) Order (Northern Ireland) (“the 2008 Northern Ireland Transitional Provisions Order”) to the Disclosure and Barring Service (“DBS”) which is established under section 87(1) of the Protection of Freedoms Act 2012. The ISA was originally called the Independent Barring Board, but it was renamed the Independent Safeguarding Authority by virtue of section 81 of the Policing and Crime Act 2009.
The ISA is the body in England, Wales and Northern Ireland which is responsible for maintaining the barred lists under section 2 of and Schedule 3 to the 2006 Act and Article 6 of and Schedule 1 to the 2007 Order. The children’s barred list is a list of those persons who are barred from engaging in regulated activity relating to children; the adults’ barred list is a list of those persons who are barred from engaging in regulated activity relating to vulnerable adults. The ISA also has functions in relation to exchanging information with providers of regulated activity (frequently the employer), personnel supplies (for example agencies), local authorities, professional bodies (for example the General Medical Council), supervisory authorities (for example Her Majesty’s Chief Inspector of Schools in England) and the police.
The ISA also has functions under the 2008 Transitional Provisions Order and the 2008 Northern Ireland Transitional Provisions Order which set out the system whereby the ISA considers any person for barring who was included in the predecessor lists. The predecessor lists in England and Wales are those kept under section 1 of the Protection of Children Act 1999 (c. 14), section 81 of the Care Standards Act 2000 (c. 14) and those persons subject to a direction under section 142 of the Education Act 2002 (c. 32). The predecessor lists in Northern Ireland are those kept under Articles 3 and 35 of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003 (S.I. 2003/417 (N.I. 4)) (“the 2003 Order”) and the list kept for the purposes of the Education (Prohibition from Teaching or Working with Children) Regulations (Northern Ireland) 2007 (S.R. 2007/288). The 2008 Transitional Provisions Order also sets out the system whereby the ISA considers any person for barring who was subject to a disqualification order under sections 28, 29 of 29A of the Criminal Justice and Court Service Act 2000 (c. 43). The 2008 Northern Ireland Transitional Provisions Order also sets out the system whereby the ISA considers any person for barring who was subject to a disqualification order under Articles 23 or 24 of the 2003 Order. There are still some persons who are being considered or are yet to be considered under the 2008 Northern Ireland Transitional Provisions Order and the 2008 Transitional Provisions Order.
All the ISA’s functions under the 2006 Act, the 2007 Order, the 2008 Transitional Provisions Order and the 2008 Northern Ireland Transitional Provisions Order, with the exception of the obligation to establish the barred lists, are transferred to the DBS under article 2 of this Order.
Chapter 2 makes amendments to the principal enactments which are consequential on this transfer of functions and Chapter 3 makes amendments to other enactments which are consequential on this transfer of functions. Chapter 4 makes supplemental provision.
Part 3 of this Order transfers the functions of the Secretary of State in England and Wales which are exercised by the Criminal Records Bureau under Part 5 of the Police Act 1997 to the Disclosure and Barring Service. The functions of Access Northern Ireland, which operates on behalf of the Northern Ireland Department of Justice under Part 5 of the 1997 Act, are not being transferred to the DBS. Articles 35 to 46 this by amending Part 5 of the 1997 Act. Functions such as making regulations (for example under section 113B(2) of the 1997 Act) or issuing guidance (for example under section 113B(4A) of the 1997 Act) remain with the Secretary of State. The CRB also carries out functions under the 2006 Act and the 2007 Order, mainly in relation to sharing information with bodies including professional bodies and supervisory authorities. These functions are transferred to the DBS under articles 47 and 48 of this Order. Chapter 4 makes amendments to the main enactments which are consequential on this transfer of functions and Chapter 5 makes amendments to other enactments which are consequential on this transfer of functions. Chapter 6 makes supplemental provision.
Part 4 of this Order contains transitional provisions in light of the transfer of functions to the DBS. Articles 101 and 102 ensure that litigation which was being dealt with by the ISA will subsequently be dealt with by the DBS. Article 103 ensures that all information held by the ISA (for example, case files) will be passed to the DBS. Article 104 ensures that any representations made to the ISA and not yet dealt with at the time functions are transferred will be dealt with by the DBS and article 105 makes similar provision for representations made to the Secretary of State. Articles 106 and 107 ensure that any reviews being carried out, or any applications for reviews received, by the ISA at the time functions are transferred will be dealt with by the DBS. Article 108 provides that the DBS will take over the functions of preparing accounts and reports from the ISA at the time functions are transferred. Article 109 ensures that advice requested from the ISA in relation to predecessor lists will be dealt with by DBS when functions are transferred. Article 110 provides that any person registered with the CRB, for the purpose of counter-signing or transmitting applications under Part 5 of the 1997 Act, will have their registration automatically transferred to the DBS at the time functions are transferred.
Having transferred the ISA’s functions to the DBS, Part 5 of this Order dissolves the ISA under section 88(3) of the Protection of Freedoms Act 2012.