Session 2010 - 12
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Public Bill Committee: 17 May 2011                     

312

 

Protection of Freedoms Bill, continued

 
 

“(aa)    

it has reason to believe that the person is or has

 

been, or might in future be, engaged in regulated

 

activity relating to children,”, and

 

(c)    

in sub-paragraph (3)(b) for “appears to ISA” substitute “is satisfied”.

 

      (5)  

For sub-paragraphs (2) and (3) of paragraph 7 of that Schedule to that Order

 

(automatic inclusion of person to whom paragraph applies in adults’ barred

 

list) substitute—

 

  “(2)  

If the Secretary of State has reason to believe that—

 

(a)    

this paragraph might apply to a person, and

 

(b)    

the person is or has been, or might in future be, engaged in

 

regulated activity relating to vulnerable adults,

 

            

the Secretary of State must refer the matter to ISA.

 

      (3)  

If (whether or not on a reference under sub-paragraph (2)) ISA—

 

(a)    

is satisfied that this paragraph applies to a person, and

 

(b)    

has reason to believe that the person is or has been, or might

 

in future be, engaged in regulated activity relating to

 

vulnerable adults,

 

            

it must include the person in the adults’ barred list.”

 

      (6)  

For sub-paragraphs (2) to (4) of paragraph 8 of that Schedule to that Order

 

(inclusion of person to whom paragraph applies in adults’ barred list with right

 

to make representation afterwards) substitute—

 

  “(2)  

If the Secretary of State has reason to believe that—

 

(a)    

this paragraph might apply to a person, and

 

(b)    

the person is or has been, or might in future be, engaged in

 

regulated activity relating to vulnerable adults,

 

            

the Secretary of State must refer the matter to ISA.

 

      (3)  

Sub-paragraph (4) applies if (whether or not on a reference under

 

sub-paragraph (2)) it appears to ISA that—

 

(a)    

this paragraph applies to a person, and

 

(b)    

the person is or has been, or might in future be, engaged in

 

regulated activity relating to vulnerable adults.

 

      (4)  

ISA must give the person the opportunity to make representations

 

as to why the person should not be included in the adults’ barred

 

list.

 

      (5)  

Sub-paragraph (6) applies if—

 

(a)    

the person does not make representations before the end of

 

any time prescribed for the purpose, or

 

(b)    

the duty in sub-paragraph (4) does not apply by virtue of

 

paragraph 16(2).

 

      (6)  

If ISA—

 

(a)    

is satisfied that this paragraph applies to the person, and

 

(b)    

has reason to believe that the person is or has been, or might

 

in future be, engaged in regulated activity relating to

 

vulnerable adults,

 

            

it must include the person in the list.

 

      (7)  

Sub-paragraph (8) applies if the person makes representations

 

before the end of any time prescribed for the purpose.


 
 

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Protection of Freedoms Bill, continued

 
 

      (8)  

If ISA—

 

(a)    

is satisfied that this paragraph applies to the person,

 

(b)    

has reason to believe that the person is or has been, or might

 

in future be, engaged in regulated activity relating to

 

vulnerable adults, and

 

(c)    

is satisfied that it is appropriate to include the person in the

 

adults’ barred list,

 

            

it must include the person in the list.”

 

      (7)  

In paragraph 9 of that Schedule to that Order (inclusion in adults’ barred list

 

on behaviour grounds)—

 

(a)    

in sub-paragraph (1)(a) for the words from “has” to “conduct,”

 

substitute “—

 

(i)    

has (at any time) engaged in relevant

 

conduct, and

 

(ii)    

is or has been, or might in future be,

 

engaged in regulated activity relating to

 

vulnerable adults,”,

 

(b)    

in sub-paragraph (3), after paragraph (a) (and before the word “and” at

 

the end of the paragraph), insert—

 

“(aa)    

it has reason to believe that the person is or has

 

been, or might in future be, engaged in regulated

 

activity relating to vulnerable adults,”, and

 

(c)    

in sub-paragraph (3)(b) for “appears to ISA” substitute “is satisfied”.

 

      (8)  

In paragraph 11 of that Schedule to that Order (inclusion in adults’ barred list

 

because of risk of harm)—

 

(a)    

in sub-paragraph (1)(a) for “falls within sub-paragraph (4)” substitute

 

“—

 

(i)    

falls within sub-paragraph (4), and

 

(ii)    

is or has been, or might in future be,

 

engaged in regulated activity relating to

 

vulnerable adults,”,

 

(b)    

in sub-paragraph (3), after paragraph (a) (and before the word “and” at

 

the end of the paragraph), insert—

 

“(aa)    

it has reason to believe that the person is or has

 

been, or might in future be, engaged in regulated

 

activity relating to vulnerable adults,”, and

 

(c)    

in sub-paragraph (3)(b) for “appears to ISA” substitute “is satisfied”.

 

Abolition of controlled activity

 

5          

Omit Articles 25 to 27 of the Safeguarding Vulnerable Groups (Northern

 

Ireland) Order 2007 (controlled activity).

 

Abolition of monitoring

 

6          

Omit Articles 28 to 31 of the Safeguarding Vulnerable Groups (Northern

 

Ireland) Order 2007 (monitoring).

 

Information for purposes of making barring decisions

 

7    (1)  

In paragraph 19 of Schedule 1 to the Safeguarding Vulnerable Groups

 

(Northern Ireland) Order 2007 (information required by ISA about persons to

 

whom grounds for barring apply)—


 
 

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Protection of Freedoms Bill, continued

 
 

(a)    

in sub-paragraph (1)—

 

(i)    

in paragraph (a) after “applies” insert “or appears to apply”,

 

(ii)    

in paragraph (b) for “apply” substitute “applies or appears to

 

apply”, and

 

(iii)    

omit paragraph (d),

 

(b)    

in sub-paragraphs (2) and (3) for “thinks might” substitute “reasonably

 

believes to”, and

 

(c)    

in sub-paragraph (6)—

 

(i)    

omit the words from “which” to “it is”, and

 

(ii)    

omit “or paragraph 20(2)”.

 

      (2)  

In paragraph 20 of that Schedule to that Order (provision of information by

 

Secretary of State to ISA) for sub-paragraph (3) substitute—

 

  “(3)  

Where the Secretary of State is under a duty under paragraph 1, 2,

 

7 or 8 to refer a matter to ISA, the Secretary of State must provide

 

to ISA any prescribed details of relevant matter (within the meaning

 

of section 113A of the Police Act 1997) of a prescribed description

 

which has been made available to the Secretary of State for the

 

purposes of Part 5 of that Act.”

 

Review of barring decisions

 

8          

After paragraph 18 of Schedule 1 to the Safeguarding Vulnerable Groups

 

(Northern Ireland) Order 2007 (power to apply for review of a person’s

 

inclusion in a barred list) insert—

 

“18A (1)  

Sub-paragraph (2) applies if a person’s inclusion in a barred list is

 

not subject to—

 

(a)    

a review under paragraph 18, or

 

(b)    

an application under that paragraph,

 

            

which has not yet been determined.

 

      (2)  

ISA may, at any time, review the person’s inclusion in the list.

 

      (3)  

On any such review, ISA may remove the person from the list if,

 

and only if, it is satisfied that, in the light of—

 

(a)    

information which it did not have at the time of the person’s

 

inclusion in the list,

 

(b)    

any change of circumstances relating to the person

 

concerned, or

 

(c)    

any error by ISA,

 

            

it is not appropriate for the person to be included in the list.”

 

Information about barring decisions

 

9    (1)  

For Articles 32 to 34 of the Safeguarding Vulnerable Groups (Northern

 

Ireland) Order 2007 (provision of vetting information and information about

 

cessation of monitoring) substitute—

 

“32A  

Provision of barring information on request

 

(1)    

The Secretary of State must provide a person (A) with the information

 

mentioned in paragraph (3) in relation to another (B) if—

 

(a)    

A makes an application for the information and pays any fee

 

payable in respect of the application,


 
 

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Protection of Freedoms Bill, continued

 
 

(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 A falls within column 1 of the table in Schedule 5 in

 

relation to B,

 

(b)    

that column 2 of the entry by virtue of which A falls within

 

column 1 refers to children or (as the case may be) vulnerable

 

adults, and

 

(c)    

that B has consented to the provision of the information to A.

 

(3)    

The information is—

 

(a)    

if A’s declaration states that column 2 of the relevant entry

 

refers to children, whether B is barred from regulated activity

 

relating to children, and

 

(b)    

if A’s declaration states that column 2 of the relevant entry

 

refers to vulnerable adults, whether B is barred from regulated

 

activity relating to vulnerable adults.

 

(4)    

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.

 

(5)    

The Secretary of State may prescribe any fee payable in respect of an

 

application under this Article.

 

(6)    

Fees received by the Secretary of State by virtue of this Article must

 

be paid into the Consolidated Fund of the United Kingdom.

 

(7)    

The Secretary of State may determine 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).

 

32B    

Provision of barring information on registration

 

(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 and

 

pays any fee payable in respect of the application,

 

(b)    

the application contains the appropriate declaration, and

 

(c)    

the Secretary of State has no reason to believe that the

 

declaration is false.

 

(3)    

The appropriate declaration is a declaration by A—

 

(a)    

that A falls within column 1 of the table in Schedule 5 in

 

relation to B,

 

(b)    

that column 2 of the entry by virtue of which A falls within

 

column 1 refers to children or (as the case may be) vulnerable

 

adults, and

 

(c)    

that B has consented to the application.

 

(4)    

A’s application and registration relate—


 
 

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Protection of Freedoms Bill, continued

 
 

(a)    

if A’s declaration states that column 2 of the relevant entry

 

refers to children, to regulated activity relating to children;

 

(b)    

if A’s declaration states that column 2 of the relevant entry

 

refers to vulnerable adults, to regulated activity relating to

 

vulnerable adults.

 

(5)    

The Secretary of State must notify A if B is barred from regulated

 

activity to which A’s registration relates.

 

(6)    

The requirement under paragraph (5) is satisfied if notification is sent

 

to any address recorded against A’s name in the register.

 

(7)    

If B consents to the provision of information to A under Article 32A,

 

the consent also has effect as consent to any application by A to be

 

registered in relation to B under this Article.

 

(8)    

The Secretary of State may prescribe any fee payable in respect of an

 

application under this Article.

 

(9)    

Fees received by the Secretary of State by virtue of this Article must

 

be paid into the Consolidated Fund of the United Kingdom.

 

(10)    

The Secretary of State may determine 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).”

 

      (2)  

In Article 35 of that Order (cessation of registration)—

 

(a)    

in paragraph (1) for “34” substitute “32B”,

 

(b)    

in paragraph (2) for “(6)” substitute “(5)”, and

 

(c)    

after paragraph (3) insert—

 

“(3A)    

Circumstances prescribed by virtue of paragraph (3) may, in

 

particular, include that—

 

(a)    

the Secretary of State has asked the registered person

 

(A) to make a renewed declaration within the

 

prescribed period in relation to the person (B) in

 

relation to whom A is registered, and

 

(b)    

either—

 

(i)    

A has failed to make the declaration within

 

that period, or

 

(ii)    

A has made the declaration within that period

 

but the Secretary of State has reason to

 

believe that it is false.

 

(3B)    

A renewed declaration is a declaration by A—

 

(a)    

that A falls within column 1 of the table in Schedule

 

5 in relation to B,

 

(b)    

that column 2 of the entry by virtue of which A falls

 

within column 1 refers to children or (as the case may

 

be) vulnerable adults, and

 

(c)    

that B consents to the registration of A in relation to

 

B.

 

(3C)    

If B consents to the provision of information to A under

 

Article 32A, the consent also has effect as consent to the

 

registration of A in relation to B.


 
 

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Protection of Freedoms Bill, continued

 
 

(3D)    

Article 36 applies in relation to the making of a declaration in

 

response to a request from the Secretary of State of the kind

 

mentioned in paragraph (3A)(a) as it applies in relation to the

 

making of a declaration in an application made for the

 

purposes of Article 32B.”

 

      (3)  

In Article 36 of that Order (declarations under Articles 32 and 34)—

 

(a)    

in the heading for “32 and 34” substitute “32A and 32B”, and

 

(b)    

in paragraph (1) for “32 or 34” substitute “32A or 32B”.

 

      (4)  

Omit entry 19 in the table in paragraph 1 of Schedule 5 to that Order (power to

 

add entries to the table).

 

      (5)  

In paragraph 2 of Schedule 5 to that Order (power to amend entries in the table)

 

for the words from “any” to the end substitute “this Schedule”.

 

      (6)  

Omit paragraph 3(1)(b) of Schedule 5 to that Order (barring information where

 

certain activities carried on for the purposes of the armed forces of the Crown)

 

and the word “or” before it.

 

Duty to check whether person barred

 

10         

After Article 36 of the Safeguarding Vulnerable Groups (Northern Ireland)

 

Order 2007 (declarations relating to the provision of barring information)

 

insert—

 

“36ZA

Duty to check whether person barred

 

(1)    

A regulated activity provider who is considering whether to permit an

 

individual (B) to engage in regulated activity relating to children or

 

vulnerable adults must ascertain that B is not barred from the activity

 

concerned before permitting B to engage in it.

 

(2)    

A personnel supplier who—

 

(a)    

is considering whether to supply an individual (B) to another

 

(P), and

 

(b)    

knows, or has reason to believe, that P will make

 

arrangements for B (if supplied) to engage in regulated

 

activity relating to children or vulnerable adults,

 

    

must ascertain that B is not barred from the activity concerned before

 

supplying B to P.

 

(3)    

A person is, in particular, to be treated as having met the duty in

 

paragraph (1) or (2) if condition 1, 2 or 3 is met.

 

(4)    

Condition 1 is that the person has, within the prescribed period, been

 

informed under Article 32A that B is not barred from the activity

 

concerned.

 

(5)    

Condition 2 is that—

 

(a)    

the person has, within the prescribed period, checked a

 

relevant enhanced criminal record certificate of B which has

 

been obtained within that period, and

 

(b)    

the certificate does not show that B is barred from the activity

 

concerned.

 

(6)    

Condition 3 is that—

 

(a)    

the person has, within the prescribed period, checked—

 

(i)    

a relevant enhanced criminal record certificate of B,

 

and


 
 

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Protection of Freedoms Bill, continued

 
 

(ii)    

up-date information given, within that period, under

 

section 116A of the Police Act 1997 in relation to the

 

certificate,

 

(b)    

the certificate does not show that B is barred from the activity

 

concerned, and

 

(c)    

the up-date information is not advice to request B to apply for

 

a new enhanced criminal record certificate.

 

(7)    

The Secretary of State may by regulations provide for—

 

(a)    

the duty under paragraph (1) not to apply in relation to persons

 

of a prescribed description,

 

(b)    

the duty under paragraph (2) not to apply in relation to persons

 

of a prescribed description.

 

(8)    

In this Article—

 

“enhanced criminal record certificate” means an enhanced criminal

 

record certificate issued under section 113B of the Police Act 1997,

 

“relevant enhanced criminal record certificate” means—

 

(a)    

in the case of regulated activity relating to children, an enhanced

 

criminal record certificate which includes, by virtue of section

 

113BA of the Police Act 1997, suitability information relating to

 

children, and

 

(b)    

in the case of regulated activity relating to vulnerable adults, an

 

enhanced criminal record certificate which includes, by virtue of

 

section 113BB of that Act, suitability information relating to

 

vulnerable adults.”

 

Restrictions on duplication with barred lists in England and Wales and Scotland

 

11  (1)  

Before paragraph 6 of Schedule 1 to the Safeguarding Vulnerable Groups

 

(Northern Ireland) Order 2007 (restriction on inclusion in children’s barred list

 

for Scottish cases), and after the italic cross-heading before that paragraph,

 

insert—

 

“5A(1)  

ISA must not include a person in the children’s barred list if ISA

 

knows that the person is included in a corresponding list.

 

      (2)  

ISA must remove a person from the children’s barred list if ISA

 

knows that the person is included in a corresponding list.

 

      (3)  

A corresponding list is 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.”

 

      (2)  

In paragraph 6(1)(a) of that Schedule to that Order—

 

(a)    

after “if” insert “ISA knows that”,

 

(b)    

after “authority” insert “—

 

(i)    

”, and

 

(c)    

for the words from “(whether” to “list)” substitute “, and

 

(ii)    

has decided not to include the person in the

 

list”.

 

      (3)  

Before paragraph 12 of that Schedule to that Order (restriction on inclusion in

 

adults’ barred list for Scottish cases), and after the italic cross-heading before

 

that paragraph, insert—

 

“11A (1)  

ISA must not include a person in the adults’ barred list if ISA knows

 

that the person is included in a corresponding list.


 
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Revised 17 May 2011