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Annex A: Secondary Legislation Provided for in the Protection of Vulnerable Groups (Scotland) Bill
Substantive Secondary legislation
These items of secondary legislation will critically determine the effectiveness and acceptability to stakeholders of the vetting and barring scheme. These are the areas where there has been most debate during the consultation on the Bill and during Stage 1. They are explored in this pre-consultation discussion document. All of the items in this section will be subject to a two stage formal consultation. The first stage will be a policy consultation and this will then be followed by a consultation on the draft Scottish Statutory Instruments ( SSIs).
Section 14 - Automatic Listing
This power relates to instances where automatic listing occurs as a result of an individual committing prescribed offences which do not appear in schedule 1. The power provides Ministers with the ability to automatically list someone as a result of them having committed an offence or combination of offences not listed in Schedule 1.
Section 39(1)(c) - Power to regulate procedure
The power at Section 39(1)(c) provides Ministers with the ability to set determination procedures to be followed when considering whether an individual is to be listed. This provision will be used to make regulations similar to the Protection of Children (Scotland) Act 2003 Determination Regulations 2004 (S.S.I. 2004/523).
Section 67 - Fees
This power provides Ministers with the ability to set fees relating to the scheme.
Section 100 - Commencement
This power allows Ministers to effectively manage the commencement of the legislation by setting out in secondary legislation the procedure for implementation. In particular, section 100 allows for the setting of a timetable for retrospective checking.
Secondary Legislation Necessary for Commencement
These items of legislation will provide for the detailed operational guidance needed to underpin the scheme, as well as issues such as transferring staff of Disclosure Scotland into the new agency that will operate the scheme on behalf of Ministers. In policy terms they are not controversial, so consultation will focus around draft SSIs accompanied by a summary of the policy intent.
Sections 3, 4, 5 and 6 - Reference by organisations, agencies and businesses
This power gives Scottish Ministers the ability to identify the information that is required to be submitted for the purposes of considering an organisational referral. Similar powers are used for the purposes of operating the existing Disqualified from Working with Children List with the information required in order to consider a referral prescribed in the Protection of Children (Scotland) Act 2003 Determination Regulations 2004 (S.S.I 2004/523). We would envisage similar requirements being placed on organisations under the new arrangements.
Section 7 - Reference by Court
This power gives Ministers the ability to identify information that is required to be provided for the purposes of a court referral. It is the intention that much of this information will be the same as that requested for the purposes of organisation referrals.
Section 25 - Application for Removal From List
This power will be used to set the criteria which will have to be met prior to an application for removal from a list being considered. This power may be used to prescribe different timeframes between listing and application for removal from the list for different individuals depending on their circumstances e.g. their age at the time of listing and the reason for the initial listing.
Section 37 - Police access to lists
This power provides Ministers with the flexibility to provide the Police with information on listed individuals for the purposes of confirming identity. As well as providing police with names of people included on the list(s) for the purposes of preventing and detecting crime, the police need additional information to satisfy themselves of the identity of the person about whom they are enquiring. The information that will be prescribed is likely to be the full name, date and place of birth, and current full address of the person included on the lists(s).
Section 39(1)(a) - Power to regulate procedure
The power at Section 39(1)(a) will be used to prescribe the information that will be stored on the list for the purposes of confirming the identity of listed individuals. The power provides flexibility for the types of information held to be amended to respond to changes in information used to confirm identity.
Section 39(1)(b) - Power to regulate procedure
The power at Section 39(1)(b) provides Ministers with the ability to set in place procedures for maintaining the information held about listed individuals. In particular, the power will be used so that listing is unambiguously connected with the right individual
Section 46 - Vetting Information
This power provides Ministers with the ability to specify information that is to be considered vetting information for the purposes of this Bill. The intention of this provision is to allow for certain information held by regulatory bodies and local authorities to be considered vetting information for the purposes of the new scheme.
Section 54 - Disclosure restrictions
This power provides Ministers with the ability to, in certain instances, obtain and hold certain information about an individual that is relevant for the purposes of considering unsuitability but not include the information on the individual's disclosure certificate. The power would be used to specify the types of information to which this provision would be applicable.
Section 65 - Unlawful Disclosure
This power provides Ministers with the ability to identify the conditions in which information contained on a disclosure certificate issued for the purposes of the scheme can be shared with persons other than the individual to whom the disclosure relates and the countersigning individual/organisation.
Section 69 - Procedure
This power provides Ministers with the ability to specify arrangements and procedures for the administration of the scheme. It is anticipated that the power will be used to set the length of scheme membership and to detail the procedure and governance arrangements associated with online disclosure applications for the purposes of the new scheme.
Section 84 - Payment of fees for information from certain police forces
This power will be used to allow Ministers to pay bodies such as police forces from the Channel Islands, or potentially police forces outside the British Isles, for information required for the purposes of disclosure. Currently, a fee is paid to UK police forces.
Section 87 - Transfer of Disclosure Scotland staff
This power allows Ministers to specify the date and other details surrounding the transfer of Disclosure Scotland staff from the Strathclyde Joint Police Board to take up employment in the new executive agency. This will enable Disclosure Scotland to become part of the new executive agency which will administer the scheme.
Section 94 - Meaning of Protected Adult
This power provides Ministers with the ability to prescribe those services that an adult has to be in receipt of if they are to fall within the definition of a "protected adult". Flexibility to amend the definition of protected adults to reflect changing circumstances in relation to the types and sources of care services in future years.
Section 97 - Ancillary provisions
This power will provide Ministers with the ability to transfer the existing safeguards being operated under the Protection of Children (Scotland) Act to the new legislation. In addition, this section offers a general power which provides Ministers with the ability to make minor amendments to any element of the legislation to ensure with the aim of ensuring that the Bill achieves its policy objectives without the need for further primary legislation.
Secondary legislation which may be used to enhance operational effectiveness
These items of legislation will enable further enhancements to the scheme that will improve its effectiveness. The powers will be used in part in establishing the scheme, (the measures intended for immediate use are set out below) but will also allow for future flexibility. They will be subject to consultation on draft SSIs as with legislation necessary for commencement.
Section 60 - Power to use fingerprints to check applicant's identity
This power will be used to identify the circumstances in which it will be suitable for fingerprints to be taken, used and destroyed, for the purposes of confirming identity. Fingerprints will be used only in those cases where the other information provided by the applicant and separately gathered by the Scottish Ministers is not sufficient to satisfy Ministers of the applicant's identity, and where that doubt causes Ministers to believe that the applicant might have a criminal conviction. It is intended that procedures similar to those in Part 5 of the Police Act 1997 will be developed.
Section 82 - Information on criminal conviction and record certificates
This power which will be exercised under Part 5 of the Police Act 1997 provides Ministers with the ability to prescribe civil orders that should be included on standard and enhanced disclosure checks. It is intended that this power be used to include Sexual Offences Prevention Orders and Risk of Sexual Harm Orders on certificates in the first instance. The power provides the flexibility to include other civil orders that are deemed relevant at some point in the future.
Section 85 - Regulations about registration
This power is designed to give Scottish Ministers a greater degree of control over the management of registered persons for the purposes of disclosure. It is anticipated that the power will be used to set a lower limit to the number of countersignatures that a registered person can make each year. Where this number is not met, the person will be de-registered. The power will provide Ministers with the flexibility to set the lower limit at a level that, whilst not overly restrictive, assists in managing the workload of Disclosure Scotland.
Section 88 - Power to give effect to the Safeguarding Vulnerable Groups Act 2006
This power provides Ministers with the ability to amend any element of primary legislation to ensure that the Safeguarding Vulnerable Groups Act 2006 can take full effect. This provision may be necessary to ensure the scheme in England and Wales functions properly.
Secondary Legislation Designed to Ensure Future Flexibility
The purpose of these items of secondary legislation will be to ensure future flexibility of the scheme to respond to changing requirements without recourse to amending the primary legislation. It is not intended that any of these will be enacted immediately, unless they prove necessary to respond to changing circumstances or to make the scheme effectively connect to other UK schemes.
Section 8 - Reference by Certain other Persons
The power identified in Section 8 gives Ministers the ability to identify additional regulatory bodies who will have a power to make a referral to the Central Barring Unit. As the structures and operation of regulatory bodies change it will be necessary for Ministers to amend the list of organisations who are deemed relevant for the purposes of making a referral under this section.
Section 17 - Information Relevant to listing decisions
The legislation identifies a number of bodies who can provide information that is a "finding of fact" and so can not be disputed for the purposes of the determination process. This power provides Ministers with the flexibility to extend the list of regulatory bodies that can provide information that is a "finding of fact". The power is intended to be used where new regulatory bodies come into being and information held by them is of relevance to the determination process.
Section 19 - Information held by Public Bodies etc.
This power is required to ensure that Ministers have the flexibility to widen the range of information that can be considered for the purposes of listing to match changing circumstances. For example, were a new regulatory body to come into being at some point in the future, it may be necessary for Scottish Ministers to have the ability to consider the information held by that body for the purposes of a referral. This power provides the flexibility to do this by allowing for the extension of information sources to cover public bodies not identified in the primary legislation.
Section 29 - Notice of listing etc.
This power allows Ministers to extend the list of bodies that can be notified of instances where individuals have been listed. This power is intended to be used where new regulatory bodies come into being and it is necessary for these bodies to be informed of relevant listing decisions. Similarly, the power will allow for regulatory bodies not specified in the primary legislation but prescribed subsequently to be informed of instances where individuals undergo name changes.
Section 30 - Relevant Inquiries
A power has been included in this section to provide Ministers with the flexibility to consider the findings of inquiries that are not prescribed in the primary legislation but may, in future, be relevant for the purposes of determining an individual's unsuitability. This power provides flexibility to respond to future developments in means of confirming identity or location.
Section 31 - Offences against children and protected adults
This power has been included to provide Ministers with the flexibility to amend the content of Schedule 1 (relevant offences) to take into account the creation of new offences. The power may also be used to provide further on offences that can be deemed as an offence against a protected adult were such additional clarity required.
Section 32 - Duty to notify certain changes
This power provides Ministers with the ability to place a duty on barred individuals to provide notification of any changes in personal details that are additional to those details specified on the face of the Bill.
Section 47 - Duty to notify certain changes
This power provides Ministers with the ability to place a duty on scheme members to provide notification of any changes in personal details that are additional to those details specified on the face of the Bill.
Section 61 - Power to use personal data to check applicant's identity
This power provides Ministers with the flexibility to identify alternative methods of confirming identity that can be used for the purposes of the scheme. For instance, if an identity card scheme were to be introduced by the UK Government, Ministers could identify this as a mechanism of confirming identity.
Section 92 - Meaning of references to being barred from regulated work
This power provides Ministers with the ability to disqualify individuals from undertaking regulated work as a result of their placement on prescribed lists held in jurisdictions outwith the UK. There is currently no intention to use this power.
Schedule 2, Part 3, paragraph 14 - further education institutions
This power provides Ministers with the flexibility to include or exclude institutions involved in the provision of higher or further education in line with the changing roles that these institutions may play. The power also provides the flexibility to continue to cover institutions that may change name by recognising the institution's new name in secondary legislation.
Schedule 2, Part 5, paragraph 26 - power to amend schedule
This power allows the schedule to be amended in order that it continues to accurately reflect what constitutes regulated work with children. The power is required to allow flexibility to respond to changes in the way in which services are provided.
Schedule 3, Part 5, paragraph 15 - power to amend schedule
This power allows the schedule to be amended in order that it continues to accurately reflect what constitutes regulated work with protected adults. The power is required to allow for the flexibility to respond to changes in the way in which services are provided.
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