The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010

This Order is made under sections 87(1), (2) and (3) and 98(1) and (2) of, and paragraph 28 of schedule 2 and paragraph 13 of schedule 3 to, the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14) (“the Act”).

The Act establishes a Scheme (under section 44) for vetting and disclosure in relation to individuals who wish to do regulated work with children or protected adults (referred to as the “PVG Scheme”). The Act also provides that Scottish Ministers must keep a children’s list and an adults’ list (section 1(1)). An individual may be listed in one or both of those lists (section 1(2)). A listed person is barred from undertaking regulated work with children (if listed in the children’s list) or protected adults (if listed in the adults’ list). “Regulated work” is defined at section 91 of, and schedules 2 and 3 to, the Act

The Safeguarding Vulnerable Groups Act 2006 (c.46) (“the 2006 Act”) and the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 (SI 2007/1351 (N.I. 11) (“the 2007 Order”) establish a similar vetting and barring scheme (“the VBS”) for England, Wales and Northern Ireland. The 2006 Act establishes the Independent Safeguarding Authority (“the ISA”) which makes decisions to bar individuals from working with children or vulnerable adults for England and Wales and Northern Ireland. It also establishes the SVG children’s barred list and SVG adults’ barred list for England and Wales. The 2007 Order establishes the SVG NI children’s barred list and SVG NI adults’ barred list for Northern Ireland.

The purpose of this Order, using the powers in section 87 and 98 of the Act, is to make provision to ensure the proper operation and cross-border interaction of the Act, the 2006 Act and the 2007 Order and the various lists set up under that legislation across the United Kingdom. This Order makes provisions in consequence of provisions made by virtue of the 2006 Act and by virtue of the 2007 Order (which is the Northern Irish legislation corresponding to the Act). The Safeguarding Vulnerable Groups Act 2006 (Specified Lists: Scotland) Order 2010 (SI 2010/2342) specifies the children’s list and the adults’ list as lists corresponding to the children’s barred list and the adults’ barred list maintained under section 2 of the 2007 Act. The Safeguarding Vulnerable Groups (Barred Lists: Scotland) Order (Northern Ireland) 2010 (SR 2010/336) makes similar provision to specify the children’s list and the adults’ list under the 2007 Order.

Article 4 amends section 10 of the Act to allow the ISA to provide information about an individual to the Scottish Ministers so that Scottish Ministers can consider that individual for listing in either the children’s list or the adults’ list or both lists.

Article 5(2) and (3) amend section 18 of the Act to allow Scottish Ministers to request information from the Scottish Crime and Drug Enforcement Agency when they are considering whether to list an individual. Article 5(4) makes provision to allow for payment to go to the Scottish Police Services Authority for such information.

Article 6 amends section 38 of the Act to allow the Scottish Ministers to provide information about individuals on the children’s list or the adults’ list to the Scottish Police Services Authority and the Scottish Crime and Drug Enforcement Agency.

Article 7 amends section 39 of the Act. The purpose of section 39 is to cover the cross-border interaction with the ISA and its functions under the 2006 Act in relation to regulated work with children. Article 7(2) amends section 39(1) so that this section now covers the cross-border interaction in relation to all individuals who are barred from doing regulated work with children (as defined in section 92 of the Act), whether under the 2006 Act, the 2007 Order or otherwise. Article 7(3) extends the effect of section 39(2) so that Scottish Ministers need not consider listing an individual in the children’s list if the individual’s case is being or has been dealt with by the ISA. Article 7(6) similarly extends section 39(5) so that Scottish Ministers need not automatically list an individual in the children’s list under section 14 of the Act if the individual’s case has been dealt with by the ISA. Article 7(4) amends section 39(3) to cover all cases where an individual’s case has been dealt with under any “relevant corresponding legislation” which is defined in the new section 39(7) inserted by article 7(7) as being the English and Welsh and Northern Irish legislation under which individuals can currently be listed and consequently barred from doing regulated work with children. Article 7(5) and the new section 39(6) inserted by article 7(7) make consequential provision to ensure that notices are properly issued under section 30 of the Act.

Article 8 amends section 40 of the Act. The purpose of section 40 is to cover the cross-border interaction with the ISA and its functions under the 2006 Act in relation to regulated work with adults. Article 8(2) amends section 40(1) so that this section now covers the cross-border interaction in relation to all individuals who are barred from doing regulated work with adults (as defined in section 92 of the Act), whether under the 2006 Act, the 2007 Order, or otherwise. Article 8(3) to (7) extend the effect of section 40 in the same way as has been done for section 39 of the Act by virtue of article 7(3) to (7).

Article 9 amends section 41 of the Act to extend the provision that no proceedings are competent against Scottish Ministers to cover information provided to them in pursuance of any other power or duty to provide information to them.

Article 10(2) and (3) amend section 75 of the Act to allow Scottish Ministers to request information from the Scottish Crime and Drug Enforcement Agency for their functions under Part 2 of the Act. Article 10(4) makes provision to allow for payment to go to the Scottish Police Services Authority for such information. Article 10(5) extends the provision in section 75(5) that no proceedings are competent against Scottish Ministers to cover information provided to them in pursuance of any other power or duty to provide information to them.

Article 11 amends section 76 of the Act to allow the Scottish Ministers to provide information about individuals who are members of the PVG Scheme to the Scottish Crime and Drug Enforcement Agency.

Articles 12 and 13 amend paragraph 1 of both schedules 2 and 3 to the Act to make it clear, for the avoidance of doubt, that regulated work with children or with protected adults is work which is done in Scotland.

Article 14 allows Scottish Ministers to provide information to the ISA, to the Secretary of State or the Department of Justice in Northern Ireland for the purposes of their functions under the 2006 Act or the 2007 Order or Part 5 of the Police Act 1997. Scottish Ministers may provide information about whether an individual is listed in the children’s list or the adults’ list (or both), whether an individual has been removed from one of those lists, whether an individual is under consideration for listing in one of those lists or whether Scottish Ministers have decided not to list the individual in one of those lists. Scottish Ministers may also provide information to assist with identifying such individuals.

Article 15 allows Scottish Ministers to provide information to the ISA which they hold or have obtained by virtue performing their functions under the Act or under the Protection of Children (Scotland) Act 2003 (asp 5). The information can be provided to the ISA to assist them in determining whether to list an individual in the children’s barred lists or adults’ barred lists kept under the 2006 Act or the 2007 Order.

Article 16 makes provision which is similar to section 38 of the Act so that Scottish Ministers can provide information about individuals listed in the children’s list and the adults’ list to police bodies outwith Scotland. Those bodies may only use the information for the purposes of the prevention or detection of crime or the apprehension or prosecution of offenders.

Article 17 makes provision which is similar to section 76 of the Act so that Scottish Ministers can provide information about individuals who are members of the PVG Scheme to police bodies outwith Scotland. Those bodies may only use the information for the purposes of providing vetting information to Scottish Ministers for the performance of Ministers’ functions in relation to the PVG Scheme, of the prevention or detection of crime or the apprehension or prosecution of offenders.

Articles 18 and 19 make provision to prevent an individual who is listed in the children’s list or in the adults’ list from also being included in the children’s barred lists or adults’ barred lists kept under the 2006 Act or the 2007 Order. If an individual is listed in a list in Scotland and in a list in another part of the United Kingdom, Scottish Ministers can remove the individual from the children’s list or the adults’ list if they think that it would be more appropriate for the individual to be listed in the corresponding list in another part of the United Kingdom.

Article 20 amends section 6 of the Teaching Council (Scotland) Act 1965 to replace the reference about being listed on the list kept under the Protection of Children (Scotland) Act 2003 with a reference to being barred from doing regulated work with children within the meaning of section 92 of the Act. This ensures that an individual who is barred from regulated work with children by virtue of being included in a corresponding list in another part of the United Kingdom cannot be registered as a teacher in Scotland.

Article 21 repeals paragraph 2 of schedule 4 to the 2007 Act so as to remove the previous amendment (not yet in force) to section 6 of the Teaching Council (Scotland) Act 1965.

Article 22 makes minor consequential amendments to the Protection of Vulnerable Groups (Scotland) Act 2007 (Consideration for Listing) Regulations 2010 (SSI 2010/183) following the amendments made to section 10 of the Act (by article 4 of this Order).