Office of Public Sector Information

Monitoring

Monitoring

28.—(1) An individual is subject to monitoring in relation to regulated activity if—

(a) he is not barred from engaging in the activity,

(b) he makes a monitoring application,

(c) he satisfies the prescribed requirements, and

(d) he pays such fee (if any) as is prescribed.

(2) A monitoring application must specify whether it is in respect of—

(a) regulated activity relating to children, or

(b) regulated activity relating to vulnerable adults.

(3) On a monitoring application being made the Secretary of State must—

(a) make such enquiries as he thinks appropriate to ascertain whether any relevant information exists in relation to the individual;

(b) request the person who holds such information to provide it to the Secretary of State.

(4) The Secretary of State must—

(a) provide the individual with any disclosable information that he has, or

(b) notify the individual that he has no disclosable information.

(5) Disclosable information is information provided to the Secretary of State under paragraph (3)(b) in relation to the individual, but does not include information to which paragraph (9) applies.

(6) Paragraph (4) does not apply if the individual made an application for an enhanced criminal record certificate (under section 113B of the Police Act 1997 (c. 50)) simultaneously with his monitoring application.

(7) The Secretary of State must also ensure that—

(a) at such intervals as he thinks appropriate such enquiries are made as he thinks appropriate to ascertain whether any new relevant information exists in relation to the individual;

(b) the person who holds such new relevant information is requested to provide it to him.

(8) Relevant information is—

(a) the prescribed details of relevant matter (within the meaning of Article section 113A of the Police Act 1997);

(b) information which the chief officer of a relevant police force thinks might be relevant in relation to the regulated activity concerned;

(c) such other information as may be prescribed.

(9) This paragraph applies to information mentioned in paragraph (8)(b) which the chief officer of a relevant police force thinks it would not be in the interests of the prevention or detection of crime to disclose to an individual subject to monitoring.

(10) A monitoring application is an application made to the Secretary of State in the prescribed form and manner.

(11) The prescribed requirements may include requirements as to the manner in which the applicant must prove his identity (identification requirements); and if such requirements include a requirement that the applicant has his fingerprints taken at such place and in such manner as may be prescribed, the regulations may make provision requiring their destruction in specified circumstances and by specified persons.

(12) For the purpose of verifying evidence of identity supplied in pursuance of the identification requirements the Secretary of State may obtain such information as he thinks is appropriate from data held—

(a) by the Identity and Passport Service;

(b) by the Driver and Vehicle Agency in Northern Ireland or the Driver and Vehicle Licensing Agency;

(c) by the Department for Social Development or the Secretary of State in connection with keeping records of national insurance numbers;

(d) by such other persons or for such purposes as is prescribed.

(13) Relevant information is new if it was not discovered when any earlier inquiries under this Article were carried out.

(14) References to a relevant police force must be construed in accordance with section 113B of the Police Act 1997 as if an application under this Article were an application under that section.

Monitoring fees

29.—(1) This Article has effect in respect of fees which may be prescribed in relation to applications for monitoring under Article 28.

(2) In setting a fee for an application made during the period of 5 years beginning with the commencement of that Article, the Secretary of State may take account of expenditure incurred, or which he thinks will be incurred, by him before the end of that period (taking one financial year with another)—

(a) in connection with the operation of IBB (including payments under paragraph 11 of Schedule 1 to the Safeguarding Vulnerable Groups Act 2006);

(b) in respect of any other expenditure of the Secretary of State in connection with his functions under this Order.

(3) In setting a fee for an application made after that period, the Secretary of State may take account of expenditure incurred, or which he thinks will be incurred, by him—

(a) in making payments under paragraph 11 of that Schedule;

(b) in respect of any other expenditure of the Secretary of State in connection with his functions under this Order.

(4) For the purposes of paragraph (2), it is immaterial that any expenditure is incurred before the commencement of Article 28.

(5) The power to prescribe fees is exercisable only with the consent of the Treasury.

(6) Fees received by the Secretary of State by virtue of Article 28(1)(d) must be paid into the Consolidated Fund of the United Kingdom.

Ceasing monitoring

30.—(1) The Secretary of State may cease monitoring as mentioned in Article 28 in relation to an individual in such circumstances as are prescribed.

(2) The Secretary of State must cease such monitoring in relation to an individual who—

(a) satisfies the Secretary of State that he is not engaged in the regulated activity concerned, and

(b) requests the Secretary of State to cease monitoring.

Prohibition of requirement to produce certain records

31.—(1) A person (P) must not, in connection with—

(a) the recruitment of another person as an employee, or

(b) the continued employment of another person,

require that other person or a third party to supply him with a relevant record.

(2) A person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public must not, as a condition of providing or offering to provide any goods, facilities or services to another person, require that other person or a third party to supply him with a relevant record.

(3) Paragraph (1) does not apply if the duties of the employee include activity of a kind mentioned in paragraph 2(1) or 7(1) of Schedule 2 and the activity is for, or for the benefit, of—

(a) P himself;

(b) a child, or vulnerable adult, who is a member of P’s family;

(c) a child, or vulnerable adult, who is a friend of P.

(4) “Family” and “friend” must be construed in accordance with Article 4.

(5) A person who contravenes paragraph (1) or (2) is guilty of an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(6) A relevant record is the record of information provided by the Secretary of State under Article 28(4).

(7) An employee is an individual who—

(a) works under a contract of employment, as defined by Article 3(2) of the Employment Rights (Northern Ireland) Order 1996 (NI 16),

(b) provides any service under a contract for services, or

(c) holds any office,

whether or not he is entitled to remuneration; and “employment” must be construed accordingly.

Notices and information

Provision of vetting information

32.—(1) The Secretary of State must provide a person (A) with the information mentioned in paragraph (4) in relation to another (B) if—

(a) A makes an application for the information,

(b) the application contains the appropriate declaration, and

(c) the Secretary of State has no reason to believe that the declaration is false.

(2) The appropriate declaration is a declaration by A—

(a) that he falls within column 1 of a specified entry, and

(b) that B has consented to the provision of the information to A.

(3) In this Article references to a specified entry are to an entry in the table in Schedule 5 specified by A in his declaration.

(4) The information is—

(a) if column 2 of the specified entry refers to children, relevant information relating to children, and

(b) if column 2 of the specified entry refers to vulnerable adults, relevant information relating to vulnerable adults.

(5) Sub-paragraph (b) of paragraph (2) does not apply if the specified entry is 17.

(6) If B consents to the provision of information to A in relation to an application under this Article, the consent also has effect in relation to any subsequent such application by A.

(7) The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this Article (including the form and manner of a declaration contained in such an application).

(8) The Secretary of State may by regulations make provision requiring an authority which makes or proposes to make payments to or on behalf of a person in accordance with regulations under Article 18C of the Children Order or section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002 (c. 6) to inform the person of his right to obtain relevant information under this Article.

Meaning of relevant information in Article 32

33.—(1) This Article has effect for the purposes of Article 32.

(2) Relevant information relating to children is—

(a) whether B is subject to monitoring in relation to regulated activity relating to children, and

(b) if so, whether he is undergoing assessment.

(3) Relevant information relating to vulnerable adults is—

(a) whether B is subject to monitoring in relation to regulated activity relating to vulnerable adults, and

(b) if so, whether he is undergoing assessment.

(4) B is undergoing assessment if—

(a) the Secretary of State is required to notify B as mentioned in Article 28(4) in connection with B’s monitoring application but has not yet done so;

(b) B has made a simultaneous application under section 113B of the Police Act 1997 but the Secretary of State has not yet issued an enhanced criminal record certificate under that section;

(c) in relation to paragraph (2)(b), IBB is considering whether to include B in the children’s barred list in pursuance of paragraph 3 or 5 of Schedule 1;

(d) in relation to paragraph (3)(b), IBB is considering whether to include B in the adults' barred list in pursuance of paragraph 9 or 11 of that Schedule.

(5) In paragraph (4)(b) “simultaneous application” means an application made simultaneously with B’s monitoring application under Article 28.

(6) The Secretary of State may by order amend the preceding provisions of this Article for the purpose of altering the meaning of relevant information relating to children or vulnerable adults (as the case may be).

Notification of cessation of monitoring

34.—(1) The Secretary of State must establish and maintain a register for the purposes of this Article.

(2) The Secretary of State must register a person (A) in relation to another (B) if—

(a) A makes an application to be registered in relation to B,

(b) the application contains the appropriate declaration,

(c) the Secretary of State has no reason to believe that the declaration is false, and

(d) B is subject to monitoring in relation to the regulated activity to which the application relates.

(3) The appropriate declaration is a declaration by A—

(a) that he falls within column 1 of a specified entry, and

(b) that B has consented to the application.

(4) In this Article references to a specified entry are to an entry in the table in Schedule 5 specified by A in his declaration.

(5) A’s application and registration relate—

(a) if column 2 of the specified entry refers to children, to regulated activity relating to children;

(b) if column 2 of the specified entry refers to vulnerable adults, to regulated activity relating to vulnerable adults.

(6) The Secretary of State must notify A if B ceases to be subject to monitoring in relation to the regulated activity to which A’s registration relates.

(7) The requirement under paragraph (6) is satisfied if notification is sent to any address recorded against A’s name in the register.

(8) Sub-paragraph (b) of paragraph (3) does not apply if the specified entry is 17.

(9) If B consents to the provision of information to A under Article 32 the consent also has effect as consent to any application by A to be registered in relation to B under this Article.

(10) The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this Article (including the form and manner of a declaration contained in such an application).

Cessation of registration

35.—(1) In this Article references to registration are to registration in the register maintained for the purposes of Article 34.

(2) Once a person is notified as mentioned in paragraph (6) of that Article, his registration ceases.

(3) The Secretary of State may cancel a person’s registration in such circumstances as are prescribed.

(4) The Secretary of State must cancel a person’s registration—

(a) if the person applies for it to be cancelled;

(b) in prescribed circumstances, if the person in relation to whom he is registered applies for it to be cancelled.

(5) When a person’s registration is cancelled under paragraph (3) or (4)(b), the Secretary of State must notify him of that fact.

(6) The requirement under paragraph (5) is satisfied if notification is sent to any address recorded against A’s name in the register.

Declarations under Articles 32 and 34

36.—(1) An individual commits an offence if, in an application made for the purposes of Article 32 or 34—

(a) he makes a false declaration, and

(b) he either knows that it is false or is reckless as to whether it is false.

(2) A person guilty of an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Regulated activity providers: duty to refer

37.—(1) Paragraph (2) applies to—

(a) a regulated activity provider who holds any prescribed information in relation to a person (P) engaged in regulated activity provided by him;

(b) a responsible person (within the meaning of Article 27) who holds any prescribed information in relation to a person (P) whom he permits to engage in controlled activity.

(2) A person to whom this paragraph applies must provide IBB with the information if—

(a) he withdraws permission for P to engage in the activity for a reason mentioned in paragraph (3), or

(b) he does not withdraw permission for such a reason but would or might have done so if P had not otherwise ceased to engage in the activity.

(3) The reasons are that the person to whom paragraph (2) applies thinks—

(a) that paragraph 1, 2, 7 or 8 of Schedule 1 applies to P,

(b) that P has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 1), or

(c) that the harm test is satisfied.

(4) The harm test is that P 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.

(5) For the purposes of paragraph (3)(b), conduct is inappropriate if it appears to the person to whom paragraph (2) applies to be inappropriate having regard to the guidance issued by the Secretary of State under paragraph 4(6) or 10(6) of Schedule 1.

(6) If regulated activity engaged in by P—

(a) is regulated activity relating to vulnerable adults, and

(b) falls within Article 20,

paragraph (2) must be read as if for “must” there were substituted “may”.

(7) This Article does not apply if the conditions specified in paragraph (2) are fulfilled before the Article is commenced.

Personnel suppliers: duty to refer

38.—(1) A personnel supplier must provide IBB with any prescribed information it holds in relation to a person (P) who has been supplied by it to another person if the supplier knows that P has ceased to be engaged in regulated activity or controlled activity in the circumstances mentioned in paragraph (2)(a) or (b) of Article 37.

(2) A personnel supplier which is an employment agency or employment business must provide IBB with any prescribed information it holds in relation to a person (P) for whom it acts if—

(a) the agency or business determines to cease to act for P for a reason mentioned in paragraph (4), or

(b) it does not determine to cease to act for P for such a reason but would or might have done so if its arrangement with, or employment of, him had not otherwise come to an end.

(3) A personnel supplier which is an educational institution must provide IBB with any prescribed information it holds in relation to a student (P) following a course at the institution if—

(a) the institution determines to cease to supply P to another person for him to engage in regulated or controlled activity for a reason mentioned in paragraph (4),

(b) the institution determines that P should cease to follow a course at the institution for a reason mentioned in paragraph (4), or

(c) it does not determine as mentioned in sub-paragraph (a) or (b) for such a reason but would or might have done so if P had not otherwise ceased to engage in the activity or ceased to follow the course.

(4) The reasons are that the personnel supplier thinks—

(a) that paragraph 1, 2, 7 or 8 of Schedule 1 applies to P,

(b) that P has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 1), or

(c) that the harm test is satisfied.

(5) The harm test is that P 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.

(6) For the purposes of paragraph (4)(b), conduct is inappropriate if it appears to the personnel supplier to be inappropriate having regard to the guidance issued by the Secretary of State under paragraph 4(6) or 10(6) of Schedule 1.

(7) An employment agency acts for a person if it makes arrangements with him with a view to—

(a) finding him employment with an employer, or

(b) supplying him to employers for employment by them.

(8) An employment business acts for a person if it employs him to act for and under the control of other persons in any capacity.

(9) In this Article “employment” has the same meaning as in Part II of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 (NI 20).

(10) This Article does not apply if the conditions specified in paragraph (1), (2) or (3) are fulfilled before the Article is commenced.

Regulated activity providers: duty to provide information on request etc.

39.—(1) This Article applies if IBB is considering—

(a) whether to include any person in a barred list;

(b) whether to remove any person from a barred list.

(2) IBB may require—

(a) any regulated activity provider who has made arrangements for that person to engage in regulated activity (whether or not the arrangements are still in place),

(b) any responsible person (within the meaning of Article 27) who permits or has permitted that person to engage in controlled activity,

(c) any personnel supplier which is an employment agency or employment business and which acts for or has acted for that person, or

(d) any personnel supplier which is an educational institution and which has supplied that person to another person for him to engage in regulated or controlled activity,

to provide IBB with any prescribed information he or it holds relating to the person.

(3) An employment agency acts for a person if it makes arrangements with him with a view to—

(a) finding him relevant employment with an employer, or

(b) supplying him to employers for relevant employment by them.

(4) Relevant employment is employment which consists in or involves engaging in regulated or controlled activity.

(5) An employment business acts for a person if it employs him to engage in regulated or controlled activity for and under the control of other persons.

(6) In this Article “employment” has the same meaning as in Part II of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 (NI 20).

Duty to provide information: offences

40.—(1) A person commits an offence if—

(a) he is required under Article 37 or 38 or in pursuance of Article 39 to provide information to IBB, and

(b) he fails, without reasonable excuse, to provide the information.

(2) A person guilty of an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Education and Library Boards and HSS Bodies

Education and Library Boards and HSS Bodies: duty to refer

41.—(1) An education and library board (“a board”) and an HSS body 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 board or HSS body thinks—

(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,

(e) incite another to harm a child or vulnerable adult.

(4) The second condition is that the board or HSS body 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) A board or an HSS body may provide IBB with any prescribed information it holds relating to a person if—

(a) the board or HSS body thinks that a 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) For the purposes of paragraphs (2)(b) or (5)(a), conduct is inappropriate if it appears to the board or HSS body to be inappropriate having regard to the guidance issued by the Secretary of State under paragraph 4(6) or 10(6) of Schedule 1.

Education and Library Boards and HSS bodies: duty to provide information on request

42.—(1) This Article applies if IBB is considering—

(a) whether to include any person in a barred list;

(b) whether to remove any person from a barred list.

(2) If IBB thinks that an education and library board or an HSS body holds any prescribed information relating to the person, it may require that board or body to provide it with the information.

(3) The board or body must comply with a requirement under paragraph (2).

Professional bodies and supervisory authorities

Registers: duty to refer

43.—(1) A keeper of a relevant register must provide IBB with any prescribed information he holds relating to a person if the first and second conditions are satisfied.

(2) The first condition is that the keeper thinks—

(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 keeper 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) A keeper of a relevant register may provide IBB with any prescribed information he holds relating to a person if—

(a) he thinks 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) For the purposes of paragraph (2)(b) or (5)(a), conduct is inappropriate if it appears to the keeper to be inappropriate having regard to the guidance issued by the Secretary of State under paragraph 4(6) or 10(6) of Schedule 1.

(7) In this Article—

(a) a relevant register is a register appearing in column 1 of the following table, and

(b) in relation a relevant register, the keeper of the register is the corresponding person appearing in column 2 of the table.

(8) The Secretary of State may by order amend the table in paragraph (7) by inserting an entry or amending or omitting an entry for the time being contained in the Table.

Registers: duty to provide information on request

44.—(1) This Article applies if IBB is considering—

(a) whether to include in a barred list a person who appears on a relevant register;

(b) whether to remove such a person from a barred list.

(2) IBB may require the keeper of the register to provide it with any prescribed information he holds relating to the person.

(3) The keeper of the register must comply with a requirement under paragraph (2).

(4) References to a relevant register and the keeper of a relevant register must be construed in accordance with Article 43(7).

Registers: notice of barring and cessation of monitoring

45.—(1) Paragraph (2) applies if the Secretary of State knows or thinks that a person (A) appears on a relevant register and either—

(a) A is newly included in a barred list or the Secretary of State becomes aware that A is subject to a relevant disqualification, or

(b) having been subject to monitoring, A ceases to be so subject by virtue of Article 30.

(2) The Secretary of State must—

(a) notify the keeper of the register of the circumstances mentioned in sub-paragraph (a) or (b) (as the case may be) of paragraph (1), and

(b) in a case where A is newly included in a barred list, require IBB to provide the keeper with all the information on which IBB relied in deciding to include A in the list.

(3) If IBB—

(a) knows or thinks that a person appears on a relevant register; and

(b) becomes aware of relevant information relating to that person,

it must provide the keeper of the register with that information.

(4) In paragraph (3), relevant information is information which—

(a) 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 keeper of the register.

(5) But, in that paragraph, relevant information does not include—

(a) information that any of the events mentioned in paragraph (1)(a) and (b) has occurred in relation to the person;

(b) the information mentioned in paragraph (2)(b);

(c) information falling within paragraph 19(5) of Schedule 1.

(6) In this Article—

(a) a relevant register is a register appearing in column 1 of entry 1 or 8 of the table in Article 43(7), and

(b) in relation a relevant register, the keeper of the register is the corresponding person appearing in column 2 of the Table.

(7) A person is subject to a relevant 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 a barred list.

Registers: power to apply for vetting information

46.—(1) If the keeper of a relevant register applies to the Secretary of State for information within paragraph (2) in relation to a person (B), the Secretary of State must provide the keeper of the register with that information.

(2) The information within this paragraph is—

(a) whether B is barred from regulated activity relating to children or vulnerable adults,

(b) whether IBB is considering whether to include B in a barred list in pursuance of paragraph 3 or 5 or 9 or 11 of Schedule 1,

(c) whether B is subject to monitoring in relation to regulated activity relating to children or 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), 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 keeper of a relevant register may apply for information under this Article in relation to a person only if—

(a) the person appears in the register, or

(b) the person is being considered for inclusion in the register.

(4) In this Article—

(a) a relevant register is a register appearing in column 1 of entry 1 or 8 of the table in Article 43(7), and

(b) in relation to a relevant register, the keeper of the register is the corresponding person appearing in column 2 of the table.

(5) In paragraph (2)(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).

(7) The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this Article.