47.—(1) A supervisory authority must provide IBB with any prescribed information it holds relating to a person if the first and second conditions are satisfied.
(2) The first condition is that the supervisory authority thinks, on the basis of relevant evidence—
(a) that paragraph 1, 2, 7 or 8 of Schedule 1 applies to the person,
(b) that the person has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 1) occurring after the commencement of this Article, or
(c) that the harm test is satisfied.
(3) The harm test is that the person may—
(a) harm a child or vulnerable adult,
(b) cause a child or vulnerable adult to be harmed,
(c) put a child or vulnerable adult at risk of harm,
(d) attempt to harm a child or vulnerable adult, or
(e) incite another to harm a child or vulnerable adult.
(4) The second condition is that the supervisory authority thinks—
(a) that the person is engaged or may engage in regulated activity or controlled activity, and
(b) (except in a case where paragraph 1, 2, 7 or 8 of Schedule 1 applies) that IBB may consider it appropriate for the person to be included in a barred list.
(5) The supervisory authority may provide IBB with any prescribed information it holds relating to a person if—
(a) it thinks, on the basis of relevant evidence, that the person has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 1) occurring before the commencement of this Article, and
(b) the condition in paragraph (4) is satisfied.
(6) Paragraph (1) does not apply if the supervisory authority is satisfied that IBB already has the information.
(7) A supervisory authority is—
(a) the Regulation and Improvement Authority in respect of its functions under the 2003 Order;
(b) an inspector appointed under Article 102 of the Education and Libraries (Northern Ireland) Order 1986 in the exercise of his functions.
(8) Relevant evidence is evidence obtained by the supervisory authority in the exercise of the functions mentioned in paragraph (7).
(9) The Secretary of State may by order amend paragraph (7) by inserting a sub-paragraph or amending or omitting a sub-paragraph for the time being contained in that paragraph.
(10) For the purposes of paragraph (2)(b) or (5)(a), conduct is inappropriate if it appears to the supervisory authority to be inappropriate having regard to the guidance issued by the Secretary of State under paragraph 4(6) or 10(6) of Schedule 1.
48.—(1) This Article applies if IBB is considering—
(a) whether to include in a barred list a person in relation to whom IBB thinks that a supervisory authority may have prescribed information;
(b) whether to remove such a person from a barred list.
(2) IBB may require the supervisory authority to provide it with any prescribed information it holds relating to the person.
(3) The supervisory authority must comply with a requirement under paragraph (2).
49.—(1) If a supervisory authority applies to the Secretary of State for information within paragraph (2) or (3) relating to a person (B), the Secretary of State must provide the supervisory authority with that information.
(2) The information within this paragraph is—
(a) whether B is barred from regulated activity relating to children,
(b) whether IBB is considering whether to include B in the children’s barred list in pursuance of paragraph 3 or 5 of Schedule 1,
(c) whether B is subject to monitoring in relation to regulated activity relating to children,
(d) if B is subject to such monitoring and the Secretary of State is required to notify B as mentioned in Article 28(4) in connection with his monitoring application, whether the Secretary of State has yet done so, and
(e) if B is subject to such monitoring and has made a simultaneous application under section 113B of the Police Act 1997, whether the Secretary of State has yet issued an enhanced criminal record certificate under that section.
(3) The information within this paragraph is—
(a) whether B is barred from regulated activity relating to vulnerable adults,
(b) whether IBB is considering whether to include B in the adults' barred list in pursuance of paragraph 9 or 11 of Schedule 1,
(c) whether B is subject to monitoring in relation to regulated activity relating to vulnerable adults,
(d) if B is subject to such monitoring and the Secretary of State is required to notify B as mentioned in Article 28(4) in connection with his monitoring application, whether the Secretary of State has yet done so, and
(e) if B is subject to such monitoring and has made a simultaneous application under section 113B of the Police Act 1997, whether the Secretary of State has yet issued an enhanced criminal record certificate under that section.
(4) A supervisory authority may apply for information under this Article only if the information is required in connection with the exercise of a function of the supervisory authority mentioned in Article 47(7).
(5) In paragraphs (2)(e) and (3)(e), “simultaneous application” means an application made simultaneously with B’s monitoring application under Article 28.
(6) The Secretary of State may by order amend this Article for the purpose of altering the information within paragraph (2) or (3).
(7) The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this Article.
50.—(1) This Article applies if—
(a) a person is newly included in the children’s barred list,
(b) the Secretary of State becomes aware that a person is subject to a relevant children’s disqualification, or
(c) having been subject to monitoring in relation to regulated activity relating to children, a person ceases to be so subject by virtue of Article 30.
(2) The Secretary of State must notify every interested supervisory authority of the circumstance mentioned in sub-paragraph (a), (b) or (c) (as the case may be) of paragraph (1).
(3) A supervisory authority is an interested supervisory authority only if—
(a) it has applied to the Secretary of State to be notified if any of the circumstances mentioned in paragraph (1) occurs in relation to the person, and
(b) the application has not been withdrawn.
(4) A supervisory authority may apply to the Secretary of State under paragraph (3)(a) only if the notification is required in connection with the exercise of a function of the supervisory authority mentioned in Article 47(7).
(5) For the purposes of paragraph (3)(b) an application is withdrawn if the supervisory authority notifies the Secretary of State that it no longer wishes to be notified if any of the circumstances mentioned in paragraph (1) occurs in relation to the person.
(6) A person is subject to a relevant children’s disqualification if he is included in a list maintained under the law of England and Wales or Scotland which the Secretary of State specifies by order as corresponding to the children’s barred list.
(7) The Secretary of State may provide that in prescribed circumstances a supervisory authority is not an interested supervisory authority for the purposes of this Article.
(8) The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this Article.
51.—(1) This Article applies if—
(a) a person is newly included in the adults' barred list,
(b) the Secretary of State becomes aware that a person is subject to a relevant adults' disqualification, or
(c) having been subject to monitoring in relation to regulated activity relating to vulnerable adults, a person ceases to be so subject by virtue of Article 30.
(2) The Secretary of State must notify every interested supervisory authority of the circumstance mentioned in sub-paragraph (a), (b) or (c) (as the case may be) of paragraph (1).
(3) A supervisory authority is an interested supervisory authority only if—
(a) it has applied to the Secretary of State to be notified if any of the circumstances mentioned in paragraph (1) occurs in relation to the person, and
(b) the application has not been withdrawn.
(4) A supervisory authority may apply to the Secretary of State under paragraph (3)(a) only if the notification is required in connection with the exercise of a function of the supervisory authority mentioned in Article 47(7).
(5) For the purposes of paragraph (3)(b) an application is withdrawn if the supervisory authority notifies the Secretary of State that it no longer wishes to be notified if any of the circumstances mentioned in paragraph (1) occurs in relation to the person.
(6) A person is subject to a relevant adults' disqualification if he is included in a list maintained under the law of England and Wales or Scotland which the Secretary of State specifies by order as corresponding to the adults' barred list.
(7) The Secretary of State may provide that in prescribed circumstances a supervisory authority is not an interested supervisory authority for the purposes of this Article.
(8) The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this Article.
52.—(1) This Article applies if IBB has information that it thinks is relevant to a supervisory authority.
(2) IBB must provide the supervisory authority with the information.
(3) Information is relevant to a supervisory authority if—
(a) it relates to the protection of children or vulnerable adults in general, or of any child or vulnerable adult in particular, and
(b) is relevant to the exercise of any function of the authority,
but does not include information falling within paragraph 19(5) of Schedule 1 or information that any of the events mentioned in Article 50(1)(a), (b) and (c) or 51(1)(a), (b) and (c) has occurred in relation to a person.
53.—(1) Subject to the provisions of this Article, this Order and any regulations or orders made under it bind the Crown to the full extent authorised or permitted by the constitutional laws of Northern Ireland.
(2) No contravention by the Crown of any provision of this Order or of any regulations or order made under it makes the Crown criminally liable.
(3) Despite paragraph (2), this Order and any regulations or orders made under it apply to persons in Crown employment (within the meaning of the Employment Rights (Northern Ireland) Order 1996 (NI 16)) as they apply to other persons.
(4) Paragraph (2) of Article 10 does not apply in relation to any activity carried out by the Crown.
(5) Each government department and other body performing functions on behalf of the Crown—
(a) if the department or body engages in regulated activity, is the regulated activity provider in relation to the activity;
(b) if the department or body engages in controlled activity, is the responsible person (within the meaning of Article 27) in relation to the activity.
(6) In paragraph (5) “body” includes office-holder.
54.—(1) For the purposes of the provisions mentioned in paragraph (2), it is immaterial whether there is a finding of fact in any proceedings.
(2) The provisions are—
(a) Article 37(3)(b) and (c);
(b) Article 38(4)(b) and (c);
(c) Article 41(2)(b) and (c) and (5)(a);
(d) Article 43(2)(b) and (c) and (5)(a);
(e) Article 47(2)(b) and (c) and (5)(a).
55.—(1) Despite Article 4, this Order applies to activity that is regulated activity by virtue of paragraph 1(5) of Schedule 2.
(2) Paragraph (1) does not affect the operation of this Order in relation to any other activity that is carried out in connection with a foster child.
(3) Paragraph (4) applies if a person (P)—
(a) makes arrangements for another person to foster a child as a private foster parent, and
(b) has power to terminate the arrangements.
(4) P is, if he would not otherwise be, a regulated activity provider in relation to fostering carried out by the foster parent in pursuance of the arrangements.
(5) The following provisions of this Article apply for the purposes of this Order.
(6) A person fosters a child if he is a foster parent of the child.
(7) A person is a foster parent if—
(a) he is an authority foster parent within the meaning of Article 27(3) of the Children Order;
(b) he is a person with whom a child has been placed by a voluntary organisation under Article 75(1)(a) of that Order;
(c) he is a private foster parent.
(8) A person is a private foster parent if he falls within paragraph (9) and looks after a child—
(a) for reward, or
(b) in pursuance of an arrangement made by someone other than a member of the child’s family.
(9) A person falls within this paragraph if—
(a) he fosters the child privately within the meaning of Article 106(1) of the Children Order,
(b) he would be so fostering the child but for Article 107(1) of that Order (minimum period of 28 days), or
(c) (in the case of a child who has attained the age of 16) he would fall within sub-paragraph (a) or (b) if the child were under the age of 16.
(10) A person’s family includes—
(a) the person’s foster child;
(b) the foster child of any member of the person’s family;
and references to a family relationship and family member are to be construed accordingly.
56.—(1) The Secretary of State may, by order, make such provision (including provision amending any statutory provision, including this Order) as he thinks necessary or expedient in consequence of or having regard to any relevant England and Wales legislation or any relevant Scottish legislation.
(2) An order may—
(a) include provision for treating a person to whom a monitoring provision applies as if he were subject to monitoring in relation to regulated activity;
(b) confer power to make subordinate legislation.
(3) Relevant England and Wales legislation is any provision applying in England or Wales made by or under an Act of Parliament which the Secretary of State thinks—
(a) corresponds to provision made by or under this Order,
(b) makes monitoring provision, or
(c) affects the operation of any provision made by or under this Order.
(4) Relevant Scottish legislation is any provision made by or under an Act of the Scottish Parliament which the Secretary of State thinks—
(a) corresponds to provision made by or under this Order,
(b) makes monitoring provision, or
(c) affects the operation of any provision made by or under this Order.
(5) Monitoring provision is provision for the collation and disclosure of information relating to persons who engage or wish to engage in activity which the Secretary of State thinks corresponds to regulated activity with children or vulnerable adults.
57.—(1) No claim for damages lies in respect of any loss or damage suffered by any person in consequence of—
(a) the fact that an individual is included in a barred list;
(b) the fact that an individual is not included in a barred list;
(c) the provision of prescribed information in pursuance of any of Articles 37, 38, 39, 41, 42, 43, 44, 47 and 48.
(2) Paragraph (1)(c) does not apply to the provision of information which is untrue by a person who knows the information is untrue and either—
(a) he is the originator of the information and he knew at the time he originated the information that it was not true, or
(b) he causes another person to be the originator of the information knowing, at the time the information is originated, that it is untrue.
(3) Nothing in this Order affects section 8 of the Human Rights Act 1998 (c. 42) as it relates to the power of a court to award damages in respect of an unlawful act of a public authority (within the meaning of that Act).
58.—(1) Orders or regulations under this Order shall be subject to annulment in pursuance of a resolution of either House of Parliament in like manner as a statutory instrument and section 5 of the Statutory Instruments Act 1946 shall apply accordingly.
(2) Paragraph (1) does not apply to an order made under Article 1, including such an order which contains provision made under Article 61 (except paragraph (3) of that Article).
59. Schedule 6 has effect.
60.—(1) Schedule 7 contains amendments.
(2) Schedule 8 contains repeals.
61.—(1) An order or regulations under this Order may include—
(a) such supplementary, incidental or consequential provision, or
(b) such transitory, transitional or saving provision,
as the Secretary of State thinks necessary or expedient.
(2) The Secretary of State may by order make such further provision as he considers appropriate—
(a) for the general purposes, or any particular purpose, of this Order;
(b) in consequence of any provision made by this Order;
(c) for giving full effect to this Order or any provision made by it.
(3) An order or regulations under this Order may amend, repeal, revoke or otherwise modify any statutory provision (including this Order).
(4) Nothing in this Order affects the generality of the power conferred by this Article.
Christine Cook
Deputy Clerk of the Privy Council