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Explanatory Notes to Protection of Vulnerable Groups (Scotland) Act 2007
2007 Chapter 14 |
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These Notes relate to the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14) which received Royal Assent on 18 April 2007 PROTECTION OF VULNERABLE GROUPS (SCOTLAND) ACT 2007 EXPLANATORY NOTES INTRODUCTION 1. These Explanatory Notes have been prepared by the Scottish Government in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by the Parliament. 2. The Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given. REFERENCES AND INTERPRETATIONS 3. Throughout the Notes, certain expressions are used either as convenient abbreviations or as having the particular meaning given to them by section 97 of the Act, or in other sections in relation to particular Parts or sections of the Act. The most important of these expressions are as follows:
SUMMARY AND BACKGROUND 4. The Act follows the extensive review of child protection procedures in England and Wales carried out by Sir Michael Bichard and published as the Bichard Inquiry Report on 22 June 2004. Since that report was published, the Scottish Ministers and UK Government have accepted all the recommendations and have been working to implement them. This Act substantially implements the proposals set out in the Scottish Executive's consultation paper, Protecting Vulnerable Groups: Scottish Vetting and Barring Scheme, published on 8 February 2006. The Act also makes provision to amend the definition of school care accommodation services. 5. It makes provision for the following matters concerning the protection of vulnerable groups:
6. The Act requires amendments to orders made under ROA so that employers can ask for and receive information about spent convictions in respect of regulated work (this is called asking the "exempted question" under that Act). The Act also requires cross-border information sharing for the scheme to operate effectively and additional provision will be sought at Westminster (through a section 104 order under the Scotland Act or other means) to put this in place. Safeguarding Vulnerable Groups Act 2006 7. The Safeguarding Vulnerable Groups Act 2006 received Royal Assent on 8 November 2006. The legislation establishes a vetting and barring scheme for England, Wales and Northern Ireland similar to the scheme established by this Act for Scotland. This Act makes provision to: complement the 2006 Act; ensure that both schemes are properly connected; and avoid cross-border loopholes. In addition, section 87 of the Act provides a power to make further devolved provision by order for the purpose of giving full effect to the SVG Act or to any future distinct Northern Ireland legislation. Functions of the Scottish Ministers in the Act 8. Many of the functions allocated to the Scottish Ministers will be undertaken on behalf of them by civil servants in an executive agency. The agency will be divided, administratively, into two separate elements: a Vetting and Disclosure Unit and a Central Barring Unit. The Central Barring Unit will exercise most of the functions allocated to the Scottish Ministers in Part 1 and the Vetting and Disclosure Unit will exercise most of the functions in Part 2 as well as the criminal record checks and other functions allocated from the Police Act. For the sake of clarity, these notes refer to the Central Barring Unit and the Vetting and Disclosure Unit, where appropriate, instead of the Scottish Ministers. OVERVIEW 9. Part 1 sets out the provisions for the operation of the lists of those individuals who are barred from working with children and protected adults respectively. It provides for the Scottish Ministers (as the Central Barring Unit) to maintain the lists and to determine an individual's unsuitability to undertake regulated work with children or protected adults. Part 1 also provides the courts with duties or powers, in different circumstances respectively, to refer individuals for consideration by the Scottish Ministers for inclusion on the relevant list(s). Criteria for the automatic inclusion of individuals on the lists can be specified by order, made under powers in Part 1. Part 1 also makes provision for appeals and the process for removal from the list. 10. Part 2 sets out provisions for the vetting element of the new vetting and barring scheme, creating three new forms of disclosure certificate as well as making provisions for a scheme detailing all those individuals working in regulated positions with children and/or protected adults. Mechanisms for obtaining and reviewing new information in relation to individuals on the scheme are also set out. 11. Part 3 makes amendments to Part 5 of the Police Act other than for the immediate purposes of Parts 1 and 2. It provides for additional information to be included on criminal record (disclosure) certificates, allows application forms to be completed electronically, allows the Scottish Ministers to pay police forces for information provided and makes a number of technical amendments to provisions relating to registration. 12. Part 4 amends the definition of "school care accommodation services" in the 2001 Act and disapplies some fire safety duties to individuals providing such services on domestic premises. 13. Parts 5, 6 and 7 include supplementary and general provision, provision on interpretation of various terms used in the Act and provision specifying the powers to make Scottish statutory instruments. PART 1 - THE LISTS Section 1. Duty of the Scottish Ministers to keep lists 14. This section establishes two separate lists, one concerning adults and one concerning children. In practice, these will be maintained by the Central Barring Unit. Sections 2 - 6. Referrals by organisations, businesses, agencies and others 15. Section 2 sets out the grounds for a referral by an employer, employment agency, employment business or professional regulatory body to one or other of the lists. Sections 3, 4 and 5 place duties on organisational employers, employment agencies (including nurse agencies) and employment businesses to make a referral when certain criteria are met. 16. A referral can only take place if at least one of the grounds set out in section 2 has been met. An organisation can only make a referral in respect of the type of regulated work which the individual does. For example, a teacher who is undertaking regulated work with children can only be referred by the education authority, for consideration for inclusion in the children's list, on a ground in section 2(a). But the incident(s) which trigger the referral are not limited to workplace incidents. 17. The referral grounds at section 2 are identical for both the children's and adults' lists. Note that referrals can be made where there has been inappropriate conduct but no harm. A referral can be made on the basis of inappropriate conduct in relation to pornography or inappropriate conduct of a sexual nature involving a child or a protected adult. The conduct criteria ensure that a referral can be made where an individual has, for example, accessed child pornography. The criterion in respect of inappropriate medical treatment encompasses, for example, the sedation of children or protected adults in order to make it easier to manage them, rather than for their own benefit. 18. Some of the grounds for referral rely on the meaning of "harm" and "risk of harm". Section 93 defines harm and risk of harm. The definition of harm makes clear that harm goes wider than physical harm; for example, including threatening behaviour (one type of psychological harm) or harm to the interests of an individual. The definition of risk of harm ensures that the individual does not need to be the direct agent of harm nor does it matter if the individual's actions are ineffective. For example, the firing of a gun at a child which the individual did not know was unloaded would be an attempt to harm under section 93(2)(a) and, therefore, would constitute placing the child at risk of harm. 19. With organisational referrals under section 3, the intention is that a referral should be triggered by an organisation permanently removing an individual from regulated work. Provision is made at section (1)(b)(i) to accommodate referral grounds being identified after the individual has otherwise stopped doing regulated work for the organisation, for example of their own accord. A temporary removal, such as a suspension whilst circumstances are investigated, should not lead to a referral and this is made clear by subsection (3). 20. Sections 3, 4, 5 and 8 give the Scottish Ministers the power to prescribe the information which constitutes a referral. The Scottish Ministers will use this power to ensure that all necessary information is included in a referral to expedite the processing of a case and minimise the need to correspond with employers for clarification. 21. Section 6 gives employers and employment organisations the power to make referrals in respect of incidents which took place prior to the Act being commenced. Section 7. Reference by court 22. Section 7(1) requires that, where a court convicts an individual of a relevant offence (as defined by schedule 1), the court must provide any information, as prescribed by the Scottish Ministers, that relates to the convicted individual. Section 11(2) requires that Ministers must consider an individual for listing in the children's list where that individual has been referred by a court, following a conviction for a relevant offence (relevant offences are only applicable to the children's list and not the adults' list). The prescribed information provided by the court will be used for the purposes of these considerations. 23. Section 7(2) gives the courts a power to refer an individual for consideration for listing where that individual commits any offence other than a relevant offence. The court is required to be satisfied that it may be appropriate for the individual to be listed on one or other or both lists. The Scottish Ministers, as the Central Barring Unit, will consider the court referral (under section 11) as they would any other referral. Note that section 7(2) of this Act only requires the court to be satisfied that it may be appropriate for the individual to be listed; there is no re-offending test and the court is not expected to reach any definitive conclusion. 24. In all cases of a court referral, the individual can only be listed following a consideration: very serious offences leading to automatic listing are those prescribed by order under section 14. So court referrals will always allow the full circumstances of the case to be considered by the Central Barring Unit before making a determination. Section 8. Reference by certain other persons 25. Section 8 gives the professional regulatory bodies a power to make a referral. It is expected that any incident or behaviour which should trigger a referral will result in the employer, or employing organisation, making the referral. However, there are circumstances in which a proper referral might not be made, for example a negligent employer failing to refer or where an individual has a number of employers and no individual employer is in a position to make a referral. For example, if several education authorities raise concerns with the General Teaching Council for Scotland (GTCS) about a locum teacher, the GTCS may make a referral on the basis of the aggregate information available. Section 8 is therefore designed to enable relevant professional bodies operating in Scotland or on a UK-wide basis to make a referral where the employer(s) could not, or negligently did not, make a referral in respect of a registered professional. 26. Note that vetting information from regulatory bodies can be prescribed under section 49(1)(d) and regulatory bodies placed under a duty to provide this information by section 49(2). Such regulations, to the extent that they overlap with the power at section 8 in respect of scheme members, would supervene that power. But the power at section 8 is not restricted to scheme members. Section 9. Failure to refer: offence 27. Organisations, employment agencies, nurse agencies and employment businesses commit an offence if they fail to discharge their duty to refer within 3 months from the date that the duty arose. This offence attracts a penalty of up to 12 months imprisonment and /or a fine not exceeding the statutory maximum on summary conviction. On conviction on indictment, the penalty is up to 5 years imprisonment and / or an unlimited fine. The severity of the penalty reflects the fact that this offence has potentially very serious consequences: a failure to refer means that an individual, who might have been barred had their case been considered, can continue to undertake regulated work with children and/or protected adults. 28. Section 89 of the Act makes provision for particular individuals to be held accountable where an offence is committed by an organisation. Sections 10 - 13. Consideration whether to list 29. There are four triggers for consideration for listing by the Central Barring Unit. These are an organisational referral or court referral being received, new relevant vetting information coming to light (usually under arrangements made under section 42(2)) and the individual being named in a relevant inquiry report. 30. The Act establishes two lists and provides flexibility for triggers in respect of an individual's conduct in one workforce to lead to consideration in respect of listing on the other. For example, a referral in respect of a health worker undertaking regulated work with protected adults could, depending on the facts and circumstances of the case, result in consideration for listing in the children's list. 31. Organisational referrals lead to consideration for listing where the criteria set out at section 10 are met. Firstly, the organisation must have provided the requisite information (as prescribed under sections 3 to 6 and 8). The reason for this is to ensure that the Scottish Ministers have sufficient identity information to be sure of whom they are considering for listing and also the basic facts of a prima facie case against that individual. Secondly, the Scottish Ministers must be satisfied that the information was not given for vexatious or frivolous purposes. For example, the referral was not made out of malice or spite (vexatious) or over a trivial incident where nothing really untoward took place (frivolous). 32. A referral which passes these tests is said to be a competent referral. But before a competent referral leads to consideration for listing, the Scottish Ministers must be satisfied that it may be appropriate for the individual to be included in the relevant list. This will normally be the case, but depends on a caseworker assessment of the information provided by the organisation. The "may be appropriate" test is more easily met than the test for inclusion on the lists at sections 15 and 16. 33. Court referrals lead to consideration for listing where the criteria set out at section 11 are met. Section 11(2) means that Ministers must consider listing an individual convicted of a relevant offence (relevant offences are set out in schedule 1). This duty to consider an individual for listing is commonly referred to as "automatic consideration for listing", although there is no such wording in the Act. There is no schedule of relevant offences for protected adults nor any corresponding automatic consideration for listing for that list. 34. Section 11(3) links back to a court referral under section 7(3). Note that the Scottish Ministers must be satisfied as to the same matter as the court (compare section 7(2)(b) with sections 11(3)(a) and 11(4)(a)) and, additionally, that the individual does, has done or is likely to do regulated work. This latter element of the test before consideration for listing brings the focus onto the workforce but allows the Scottish Ministers to consider for listing individuals who are not scheme members. 35. The process following a court referral is independent of any appeal against conviction. If the appeal against conviction is successful, it does not follow that the individual will be removed from the list, although the individual could make an application for removal under section 25 on the basis of change of circumstances. Where the individual had been a scheme member prior to conviction, there may be other information on the retained scheme record (retained by the Scottish Ministers using their power at section 61) which should be taken into account. 36. Vetting information leads to consideration for listing where the criteria set out at section 12 are met. When new vetting information (as defined at section 49) about scheme members comes to light through arrangements made under section 47(2), it will be assessed against the criteria in section 12. That is to say, vetting information gathered by the Scottish Ministers in their capacity as the Vetting and Disclosure Unit (under Part 2), will be considered by them in their capacity as the Central Barring Unit (under Part 1). The tests at section 12(1)(b) and 12(2)(b) are met by the individual having had, having or applying for scheme membership in respect of that type of regulated work. They can also be met where there is other evidence of involvement with that type of regulated work outside of scheme membership. The "may be appropriate" test filters out new vetting information (e.g. driving convictions) which have no bearing on unsuitability to do regulated work. 37. Section 12 also makes provision for a determination relating to one list (whether or not the individual was listed) to lead to consideration for listing in relation to the other list, provided that there is evidence of involvement in regulated work in that workforce. A case may be referred for consideration in relation to the other list at any stage in the consideration process from the beginning of the process (sections 10 to 13) to the final determination (section 15 or 16). It is expected that information which would lead to consideration for both lists would be identified early in the process but, in some cases, information may only emerge at a late stage or the need for referral to the other list may only become apparent when the determination panel considers specific information or aggregate vetting information. 38. A relevant inquiry report leads to consideration for listing where the criteria set out at section 13 are met. The types of inquiry to which this section relates are set out in section 31. Firstly, the individual must be named in a relevant inquiry report. Secondly, it must appear to the Scottish Ministers from the report that the person who held the inquiry found that the referral ground was met when the individual was doing regulated work. Note that the test centres on the view of the person who held the inquiry, rather than the Scottish Ministers, in respect of the referral ground being met. Thirdly, the Scottish Ministers must apply the "may be appropriate" test before considering the individual for listing. It is expected that persons conducting relevant inquiries will highlight named individuals potentially within scope of this section to the Central Barring Unit at the earliest opportunity. 39. A listed individual must not undertake regulated work (see section 34). But an individual under consideration for listing (i.e. in the period between a competent trigger under sections 10 to 13 and a determination under sections 15 or 16) may continue to do regulated work without committing any offence. Section 30 provides for organisational employers and relevant regulatory bodies to be notified of an individual being placed under consideration for listing and it is expected that they will take any appropriate action to mitigate any risk. Section 14. Automatic listing 40. Section 14 requires the Scottish Ministers to place an individual on the children's list or the adults' list where the individual satisfies specified criteria for automatic inclusion. Such criteria will be specified by order, made subject to affirmative procedure in the Scottish Parliament. 41. The Scottish Ministers intend to use the order making power at section 14(3) to capture historic, serious offences picked up if such an individual applies for scheme membership under section 45. This would prevent the need for a determination process in relation to, for example, an individual convicted of child rape in 1980 who applies to join the scheme. It is also intended that the order cover any contemporary conviction for such serious offences (whether or not individual is a scheme member). 42. Section 14(4) puts beyond doubt that an individual may be listed automatically following conviction for an offence elsewhere in the UK or as a result of them having been made subject to an order of a specified description imposing requirements about an individual's conduct. | |
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