Section 19: Offences: other persons

96.     This section provides for the following offences which can be committed by people acting, or appearing to act, on behalf of regulated activity providers and personnel suppliers (such as their employees):

• subsection (1) mirrors the offence in section 10(1) of a regulated activity provider knowingly permitting someone to engage in regulated activity who is not subject to monitoring;

• subsection (2) mirrors the offence in section 9(2) of a personnel supplier knowingly supplying a barred person for regulated activity;

• subsection (3) mirrors the offence in section 10(2) of a personnel supplier knowingly supplying a person who is not subject to monitoring for regulated activity; and

• subsection (6) provides that a person acting or appearing to act on behalf of a regulated activity provider may be held liable for the commission of the offence in section 11 (failure to check) where it is due to the act or reckless default of the person.

Section 20: section 19: exclusions and defences

97.     Section 20 provides for defences in relation to the offences in section 19. These mirror the defences for the regulated activity providers and personnel suppliers in sections 10 and 11.

CONTROLLED ACTIVITY

Section 21: Controlled activity relating to children

98.     This section defines controlled activity relating to children. Broadly, this is any activity in the further education and health sectors which is carried out frequently, or on three or more days in a 30-day period, and involves the opportunity for contact with children or access to children's medical records but is not a regulated activity.

99.     This will include ancillary work in such sectors, such as cleaning, administrative work, etc. and the teaching of adults in further education settings where children are present. Subsection (5) ensures that staff working for a local authority in connection with the making of direct payments who have contact with children are also undertaking controlled activity.

100.     An individual who has the frequent opportunity for access to the records specified in subsection (6) (e.g. health, education or social services records) for or on behalf of an organisation specified in subsection (10) (e.g. a local authority) will also be engaged in controlled activity.

101.     There is no overlap between the definitions of controlled activity and regulated activity relating to children. This is because subsection (2) provides an activity is a controlled activity relating to children only to the extent that it is not a regulated activity relating to children.

102.     The section also allows for the definition of controlled activity in relation to children to be amended in the future.

Section 22: Controlled activity relating to vulnerable adults

103.     This section defines controlled activity relating to vulnerable adults. Broadly, this is activity in the health and social care sectors which is carried out frequently, or on three or more days in a 30-day period, and involves the opportunity for contact with vulnerable adults or access to vulnerable adults' health or social care records but is not regulated activity. This will include ancillary work in such sectors, such as cleaning, administrative work, etc. An activity is a controlled activity only to the extent that it is not a regulated activity. The section allows for the list of services (in relation to which controlled activity occurs) to be amended in the future.

Section 23 - Controlled activity: regulations

104.     This section provides for a power to make regulations as to the steps employers must take when engaging an individual in controlled activity. It is intended that the regulations will make it a requirement that employers: check individuals they intend to engage in controlled activity; ensure they are subject to monitoring (unless they are barred); and, if they decide to employ a barred person, that they put in place the necessary safeguards in order to minimise any potential risk. To ensure these requirements are appropriately enforced the regulations will make it a criminal offence for employers to fail to comply with them.

MONITORING

Section 24: Monitoring

105.     Subsection (1) sets out the criteria that must be satisfied for a person to be subject to monitoring in relation to a regulated activity. In particular, the person must have made a monitoring application. On a monitoring application being made the Secretary of State must make enquiries to obtain relevant information (defined in subsection (8)) which includes information about convictions and cautions and information from police forces that might be relevant in relation to the regulated activity.

106.     Section 24 also enables the Secretary of State to set a fee to be paid by applicants for monitoring. It is intended that the Vetting and Barring Scheme will be funded from income from a flat fee to be paid once when applicants first apply to be monitored. The fee is to be waived in the case of volunteers who work with vulnerable groups.

Section 25: Monitoring: fees

107.     Section 25 makes further provision relating to fees required to be paid under section 24(1)(d). During the first five years that monitoring is functioning, the Secretary of State will be able to take into account the costs of the Vetting and Barring Scheme over the whole of that period when setting the level of the monitoring fee. This will mean that he can set a fee that will not vary significantly over the first five years of the scheme, and that will enable the scheme to break even over the first five years. This is intended to avoid the risk of excessive fluctuations in the level of the fee that might have occurred in the early years if the fee had to provide income to meet the scheme's costs in each year.

108.     Subsections (2) and (3) ensure that in setting the fee the Secretary of State can take into account the cost of funding IBB and other expenditure incurred in connection with his functions under the Act. In other words, fees need not be limited to what is necessary to recoup expenditure incurred in connection with monitoring.

109.     Subsection (3) is also intended to ensure that after the first five years, the fee will be set on the basis of meeting costs incurred each year.

Section 27: Prohibition of requirement to produce certain records

110.     This section makes it an offence for employers and others to require an individual (or a third party) to produce the record of information given to an individual under section 24(4). It is also an offence to require the production of that record as a condition of providing or offering to provide goods, facilities or services to the public.

111.     An exception is made from this offence for parents and other private employers.

Section 28 Independent monitor

112.     This section provides a statutory basis for the current non-statutory monitoring arrangements relating to the disclosure of local police information by the Criminal Records Bureau under Part 5 of the Police Act 1997 and to the disclosure of information under section 24 of the Safeguarding Vulnerable Groups Act 2006.

113.     The section provides for an "Independent Monitor" to be appointed by the Secretary of State, and to report to him, on matters connected with the disclosure or non-disclosure of information under certain provisions. The purpose of this review is to ensure compliance with Article 8 of the European Convention on Human Rights.

Section 29: Part 5 of the Police Act 1997: code of practice

114.     This section extends the scope of the code of practice issued under section 122 of Part 5 of the Police Act 1997 ("Part 5") which governs the use of information provided to registered persons by the CRB. Registered persons are organisations which (being considered suitable to receive sensitive disclosure information) are registered with the CRB for the purpose of applying for disclosures of conviction information under Part 5, either in their own right or on behalf of others. A person who is not registered must apply for a disclosure via a registered person.

115.     Section 29 extends the scope of the code of practice so as to include provisions relating to the carrying out of any function by a body or person registered with the CRB for the purpose of accessing the disclosure service under Part 5. The current scope of the code of practice as it relates to England and Wales is limited to the use of information provided to such bodies or persons.

116.     The section also provides for a variety of sanctions for failure to comply with the code of practice. The proposed sanctions are equivalent to sanctions already contained in Part 5 (section 120A) for failure to comply with prescribed conditions of registration.

NOTICES AND INFORMATION

Section 30: Provision of vetting information

117.     This section provides for applications to be made to the Secretary of State for relevant information in relation to an individual by applicants who fall within the table in Schedule 7.

118.     An application for relevant information is to be made in the prescribed form and must include an appropriate declaration. This declaration must state that the applicant falls within column 1 of the table in Schedule 7, and so has a right to the information, and that the individual has consented to the check. The consent provision will help to protect the information held by the scheme. Consent is not needed when an application is made by an appropriate officer within the meaning of section 13 who is making a check on a member of a governing body of a school or other educational establishment.

Schedule 7 - Vetting information

119.     This Schedule contains a list of those who are eligible to make checks under section 30. Entry 19 of the table allows regulations to add to the categories of person who are eligible to make checks, and paragraph 2 allows the other entries to be amended by order.

120.     Sub-paragraph (1) of paragraph 3 changes the definition of regulated activity, for the purposes of this Schedule, so that checks can be made when the activity relates to children under the age of 16 who are in employment or is carried on for the armed forces. Sub-paragraphs (2) and (3) change the definition of regulated and controlled activity, for the purposes of this Schedule, so that checks can be made even where the activity is not frequent. These sub-paragraphs enable those not under any obligation to check an individual to make a check voluntarily of their status. Provision made by this Schedule means that a parent who is considering engaging a babysitter can check the babysitter's status.

Section 31: Meaning of relevant information in section 30

121.     This section provides for the information which will be released by the Secretary of State under section 30. The "relevant information" will indicate the individual's status in the scheme to the applicant by showing whether the individual is subject to monitoring (under section 24) and, if so, whether the individual is undergoing assessment. In general terms, an individual is undergoing assessment if the Secretary of State has not yet completed checks and gathering of information carried out on receipt of an application to be subject to monitoring, or if the individual is being considered for barring by the IBB.

Section 32: Notification of cessation of monitoring

122.     This section provides for a system for a person to register an interest to be notified if an individual ceases to be subject to monitoring. All those eligible to make checks will be able to register to be notified if the individual ceases to be subject to monitoring (in relation to regulated activity relating to children, vulnerable adults or both) by making an application in the prescribed form which includes an appropriate declaration. This declaration will be similar to the declaration in section 30 and will also state that the applicant has the individual's consent. If the individual has given consent to a section 30 check, then that consent is valid for the purposes of this section.

123.     The Secretary of State will be under a duty to notify all those with a registered interest in an individual when that individual ceases to be subject to monitoring in relation to the regulated activity in respect of which the interest was registered. The person who registered the interest will then be able to take action to find out why the individual is no longer monitored and to prevent them engaging in regulated or controlled activity, if that is appropriate.

Section 33: Cessation of registration

124.     This section provides that registration must cease once the Secretary of State has notified the person that the individual is no longer monitored or when the person who registered their interest requests that it ceases. The individual may also request that registration cease in prescribed circumstances.

Section 34: Declarations under 30 and 32

125.     This section makes it an offence to make a false declaration under sections 30 and 32. This offence is intended to deter people from trying to access private information about an individual when they are not entitled to that information under the Vetting and Barring Scheme.

Section 35: Regulated activity providers: duty to refer

126.     This section relates to referrals of information from employers to the IBB. It sets out the circumstances in which a regulated activity provider and a responsible person (within the meaning of section 23) must provide the IBB with prescribed information about an individual. These are that:

a.     the provider or other person withdraws permission for the individual to engage in a regulated or controlled activity (for example an employer dismisses an employee); and

b.     the permission is withdrawn for one of the specified reasons e.g. that the provider or other person thinks that any of the criteria specified in Schedule 3 for inclusion in a barred list applies.

127.     The duty also applies if the provider or other person would or might have withdrawn permission if the individual had not otherwise stopped being engaged in the regulated activity (for example because the employee resigned before he could be dismissed). The duty does not apply to a person who is permitting an individual to engage in activity mentioned in section 16 that is regulated activity relating to vulnerable adults.

Section 36: Personnel suppliers: duty to refer

128.     This section sets out the circumstances in which a personnel supplier must provide the IBB with prescribed information about an individual. The first of these circumstances is where the personnel supplier knows that the individual has ceased to be engaged in regulated or controlled activity in the circumstances set out in section 35. The second set of circumstances is that:

a.     the personnel supplier decides to stop supplying the individual for regulated or controlled activity or, in the case of an educational institution, decides that the individual should cease to follow a course at the institution; and

b.     it does this for one of the specified reason e.g. the reason for the decision is that the personnel supplier thinks that the individual satisfies any of the criteria specified in Schedule 3 for inclusion in a barred list.

129.     Personnel suppliers are employment agencies and businesses, and educational institutions that supply individuals for regulated or controlled activity, such as teacher training colleges.

Section 38: Duty to provide information offences

130.     This section makes it an offence not to comply with the duties in section 35, 36 or 37.

LOCAL AUTHORITY INFORMATION AND REFERRALS

Section 39: Local authorities: duty to refer

131.     This section sets out the circumstances in which local authorities must provide the IBB with prescribed information about an individual. Broadly, these circumstances are that the local authority thinks that:

a.     an individual satisfies any of the criteria under which he could be barred or considered for barring under Schedule 3,

b.     the individual is engaged or may engage in a regulated or controlled activity, and

c.     the IBB may consider it appropriate for the individual to be included in a barred list.

PROFESSIONAL BODIES AND SUPERVISORY AUTHORITIES

132.     Sections 41 to 44 make provision regarding the professional bodies, and the relevant registers which they keep, listed in section 41(7). Sections 45 to 50 make provision for supervisory authorities, as listed in section 45(7).

Section 41: Registers: duty to refer

133.     This section sets out circumstances in which a professional body whose register is specified in section 41(7) is under a duty to provide prescribed information to the IBB. Broadly, these circumstances are that the professional body thinks that:

a.     an individual who appears on its register or list satisfies any of the criteria under which he could be barred or considered for barring under Schedule 3,

b.     the individual is engaged or may engage in a regulated or controlled activity, and

c.     the IBB may consider it appropriate for the individual to be included in a barred list.

134.     This section also provides professional bodies with a power to refer information to the IBB. This power applies where the professional body thinks that a person has engaged in relevant conduct before commencement of the section, that the information may lead to the person's inclusion in a barred list and that the person is engaged or may engage in regulated or controlled activity.

Section 43: Registers: notice of barring and cessation of monitoring

135.     This section makes provision for the sharing of information by the Secretary of State and the IBB with the General Teaching Councils for England and Wales, the General Social Care Council and the Care Council for Wales. The section places a duty on the Secretary of State to inform the body if an individual that he thinks is on the body's register becomes barred. In this case, the Secretary of State must also require the IBB to provide the body with all the information on which the IBB relied in coming to its decision to bar. This will enable the body to make a decision about whether to remove an individual from its register or place conditions on the individual's registration. Similarly the Secretary of State must inform these professional or regulatory bodies if an individual that he thinks is on the register ceases to be subject to monitoring.

136.     The IBB must also provide the General Teaching Councils for England and Wales, the General Social Care Council and the Care Council for Wales with relevant information that it holds about an individual who it thinks is on the body's register. This applies regardless of whether the information has led the IBB to bar the individual. For this duty to be invoked, the information must be relevant to the protection of children or vulnerable adults and to the exercise of the functions of the body concerned. The duty does not apply to:

a.     information that the IBB must not consider in making a barring decision because the police do not think that it would be in the interests of the prevention or detection of crime to disclose it to the person whom the IBB is considering barring;

b.     information that a person has been included on a barred list or an equivalent Northern Ireland or Scottish list; the information leading to such inclusion; or information that a person has otherwise ceased to be subject to monitoring. Section 43(2) already ensures that this information is provided to the General Teaching Councils in England and Wales, the General Social Care Council and the Care Council for Wales.

Section 44: Registers: power to apply for vetting information

137.     This section provides that the Secretary of State must provide, on request, the General Teaching Councils for England and Wales, the General Social Care Council and the Care Council for Wales with information about a person who appears on the body's register or whom the body is considering including on its register. The information that the Secretary of State must provide is:

a.     whether the person is barred,

b.     whether the person is being considered for barring at the IBB's discretion,

c.     whether the person is subject to monitoring,

d.     if the person is subject to monitoring, whether the Secretary of State has (i) notified the person whether the enquiries required under Section 24(3) have produced any disclosable information and provided that information to him and (ii) issued an enhanced criminal records certificate in relation to the person following a simultaneous application both for such a certificate and to become subject to monitoring. Obviously the Secretary of State will not be able to provide such notification until all the relevant information has been obtained about an individual.

Section 45: Supervisory authorities: duty to refer

138.     This section relates to the authorities that are set out in subsection (7). The section provides for the circumstances when such a supervisory authority is under a duty to provide prescribed information to the IBB. Broadly, these circumstances are that the supervisory authority thinks that:

a.     the individual satisfies any of the criteria under which he could be barred or considered for barring under Schedule 3,

b.     the individual is engaged, or may engage, in a regulated or controlled activity, and

c.     the IBB may consider it appropriate for the individual to be included in a barred list.

139.     This section allows for the list of supervisory authorities to be amended in the future.

140.     This section also provides a supervisory authority with a power to refer prescribed information to the IBB. This power applies where supervisory authority thinks that a person has engaged in relevant conduct before commencement of the section, that the information may lead to the person's inclusion in a barred list and that the person is engaged or may engage in regulated or controlled activity.

Section 47: supervisory authorities: power to apply for vetting information

141.     This section provides that, on the request of a supervisory authority, the Secretary of State must provide it with information required in connection with its functions. The information that the Secretary of State must provide is:

d.     whether the person is barred,

e.     whether the person is being considered for barring at the IBB's discretion, rather than as a result of fullfilling a criterion for automatic barring,

f.     whether the person is subject to monitoring,

g.     if the person is subject to monitoring, whether the Secretary of State has finished obtaining all the relevant information about the person as specified in section 24(3) and notified him in accordance with section 24(4). (See comments above regarding barring in the commentary on section 44).

Section 48: Supervisory authorities: notification of barring etc in respect of children

142.     This section provides the mechanism for supervisory authorities to be notified when a person is newly included on the children's barred list or an equivalent list in Scotland or Northern Ireland, or a person ceases to be subject to monitoring in relation to regulated activity relating to children. If a supervisory authority wants to be notified in future if the person is barred or ceases to be subject to monitoring it must register an interest in that person by making an application to the Secretary of State (section 48(3)(a)). A supervisory authority may later withdraw its application in relation to the person (section 48(3)(b)). It may only register an interest in a person where it needs to be notified of changes in that person's circumstances in connection with its functions (section 48(4)).

Section 49: Supervisory authorities: notification of barring etc in respect of vulnerable adults

143.     This section is equivalent to section 48, but in relation to vulnerable adults.

Section 50: Provision of information to supervisory authorities

144.     Under this section the IBB must provide a supervisory authority with relevant information that it holds about an individual. This applies regardless of whether the information has led the IBB to bar the individual. Relevant information is defined as information which relates to the protection of children or vulnerable adults and which is relevant to the exercise of the functions of the authority concerned. The section does not apply to:

a.     information that the IBB must not consider in making a barring decision because the police do not think that it would be in the interests of the prevention or detection of crime to disclose to the person whom the IBB is considering barring;

b.     information that a person has been included on a barred list or an equivalent Northern Ireland or Scottish list, or has otherwise ceased to be subject to monitoring. Sections 48 and 49 already ensure that this information is provided to supervisory authorities.

CROWN

Section 51: Crown application

145.     This section provides that the duties in the Act apply to the Crown. The Crown itself may not be prosecuted for an offence under the Act but that is not the case for a Crown employee.

146.     The section also provides that the definition of a regulated activity provider in section 6(2) should be disregarded in relation to the Crown. Instead each government department or other Crown body should be regarded as the regulated activity provider in relation to any regulated activity in which it is engaged.