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Appendix 2: Civic forum briefing paper
Scottish vetting and barring scheme for the children and adults at risk workforces
Introduction
This consultation is about new measures to protect Scotland's vulnerable groups from those who pose a danger to them whilst reducing bureaucracy for those who provide services to them. The main aims are that:
- People known to be unsuitable do not gain access to children or adults at risk through their work; and
- People who become unsuitable are detected as early as possible, and prevented from continuing to work, or seek to work with children or adults at risk.
The Scottish Executive proposes to legislate to create an improved vetting and barring scheme for those working or applying to work with children and/or adults at risk1. The scheme takes forward the main recommendation made by Sir Michael Bichard following his inquiry into the failures that were highlighted by the murder of two schoolgirls in Soham in 2003. It will build on existing child protection measures (e.g. the Disqualified from Working with Children List -- DWCL) as well as creating new protections for adults at risk, including a list of those barred from working with them.
The consultation exercise runs from 8 February until 2 May 2006 with a view to preparing legislation for the Scottish Parliament to consider in autumn 2006. A programme of implementation of the new vetting and barring scheme will begin in 2007. Similar preparations are being made in England, Wales and Northern Ireland.
A full list of the questions in the consultation is given at Annex A and copies of the consultation paper are available from the Scottish Executive website: http://www.scotland.gov.uk/Publications/2006/02/07134454/0
Current System
The current vetting system works through individuals obtaining a disclosure from Disclosure Scotland. Depending on the level of disclosure, employers are informed of criminal convictions or relevant non-conviction information. This helps employers to screen out the tiny minority of people who are regarded as unsuitable to work with children or adults at risk.
Coverage of the workforce
Any person wanting to work (whether paid or unpaid) with children or adults at risk, or changing positions, will have to apply for a new Vetting and Barring Disclosure from Disclosure Scotland.
As well as covering those who work directly with vulnerable groups, the new scheme will be available to people:
- Whose work brings them regularly into contact with vulnerable groups, e.g. telephone helpline staff and internet chat room moderators
- Whose position puts them in a position of trust with vulnerable groups, e.g. police officers
- People who have substantial access to personal and sensitive information about vulnerable groups, e.g. database operators
Retrospective checks for existing workers
The existing workforce will not have to go through the new system of checks immediately, although employers will be able to request it. It is likely that the existing workforce will be required to have obtained the new Vetting and Barring Disclosure within 3-5 years of the new law coming into effect.
Costs / Lifetime of Vetting and Barring Disclosure
Under the new system, there are likely to be different fees for the initial disclosure procedure and subsequent checks. As now, the applicant will be responsible for paying the fee, although presently many employers cover the cost. The income from the fees will have to cover the cost of the new system.
It is proposed that volunteers working in voluntary organisations requiring a disclosure check will not have to cover the costs themselves.
It is proposed that the Vetting and Barring Disclosure certificate will be valid for ten years after which time a new check will be necessary. Employers and regulatory bodies could require a more regular check if they wish.
Information sharing for disclosure and from which sources
The police and other agencies will share relevant information with the Central Barring Unit.
Police/criminal history
Police information ranges from allegations to criminal investigation. There is also semi-public information, such as convictions which are public at the time but for which there is no public archive. A balance needs to be struck between exchanging useful, relevant information and individuals' rights under the European Convention for Human Rights. Police also need to be able to exercise some discretion to withhold information, for example, to protect sources.
Local authorities
Bichard proposed that other public agencies (e.g. social services) should be under a duty to share information about individuals unsuitable to work with vulnerable groups. It is proposed to place such a duty on local authorities, the details of which will be worked out later following further consultation.
Regulatory bodies
The Central Barring Unit should know if an individual has been struck off a professional register, because the reason for striking them off could be relevant to positions other than those covered by the professional body. For example, it might be relevant that someone going through Vetting and Barring Disclosure to become a Scout leader had been struck off the General Teaching Council for Scotland's register of teachers years earlier.
Barred lists across the UK
It will be essential for the system to mesh with those in other parts of the UK. The Central Barring Unit should be aware if anyone is barred in other parts of the UK and the reasons behind it.
Central Barring Unit: structure and operations
As now, an application to Disclosure Scotland would be the entry point to the system. Where relevant information is discovered through a search it will be passed to an expert team - the Central Barring Unit. The Unit will consider the relevance and seriousness of the information and make a decision as to whether or not someone should be barred from working with children or adults at risk.
The Executive needs to decide whether the decision should be made by a special panel, a "case conference" or by an administrator. Although the detail will be worked out later, the legislation needs to say something about how decisions will be made.
Structure
Whatever structure is adopted, Scottish Ministers will ultimately be responsible for the Unit's decisions. But the structure might affect who is immediately responsible for taking decisions. Three possible options have been identified:
- Non-Departmental Public Body ( NDPB) which would need to be set up through legislation and where decisions would be made by a panel of experts or administrators
- Executive Agency which would be linked to Ministers but one step removed - responsibility would ultimately rest with Ministers
- Core Civil Service Department - this would mean that, as with the current DWCL, the Unit would be part of the Scottish Executive and Ministers would be more directly responsible.
Another option would be for the Unit to be part of Disclosure Scotland which, under current arrangements, would mean that Ministers were responsible for listing decisions.
Maintaining and updating lists
The Unit will maintain a list of those barred from working with children, based on the current DWCL and the separate Disqualified from Working with Adults at Risk List which is being introduced through this legislation. Some people may be barred under both sets of criteria and be present on both lists.
Any new information received on an individual who has previously been subject to a Vetting and Barring Disclosure will be passed to the Central Barring Unit to enable the barred status of an individual to be reviewed. If a decision is taken to bar the individual on the basis of new information, the applicant and any relevant organisations will be notified.
Barred Lists
Provisional listing
Where a determination will take time to complete, an individual may be provisionally listed. Individuals will be able to continue working and employers notified so they can take steps to minimise risk.
Referrals
As now, referrals will be made by employers when an individual's employment is terminated as a result of harm or risk of harm to children or if the individual has been moved away from working with children or left the organisation before either of these things could happen. Regulatory bodies will be able to highlight concerns about an individual and courts will be able to put individuals on either or both lists. The proposed legislation would introduce a broadly similar arrangement for those working with adults at risk.
Access
All employers with a legitimate interest will be able to get access to a person's barred status, including personal employers such as parents and those employing carers for adults at risk. Access may be made available through the internet with suitable security systems in place to limit access to the applicant's current or potential employer. In the case of small-scale and personal employers and parents, access may need to be through a registered body whose main function would be identity checking. Whatever the access system adopted the intention is to make it as quick and simple as possible for those who have a legitimate interest while ensuring an individual's privacy and rights are protected.
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