Protection of Freedoms Bill (HC Bill 146)

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

the end of any time prescribed for the purpose.

(8) If ISA—

(a) is satisfied that this paragraph applies to the person,

(b) 5has reason to believe that the person is or has been, or might

in future be, engaged in regulated activity relating to

children, and

(c) is satisfied that it is appropriate to include the person in the

children’s barred list,

10it must include the person in the list.”

(3) In paragraph 3 of that Schedule to that Act (inclusion in children’s barred list

on behaviour grounds)—

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

substitute “—

(i) 15has (at any time) engaged in relevant conduct,

and

(ii) is or has been, or might in future be, engaged

in regulated activity relating to children,”,

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

20the 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 children,”, and

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

(4) 25In paragraph 5 of that Schedule to that Act (inclusion in children’s 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) 30is or has been, or might in future be, engaged

in regulated activity relating to children,”,

(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,

35or 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 Act

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

40list) 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,

45the 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) 5For sub-paragraphs (2) to (4) of paragraph 8 of that Schedule to that Act

(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) 10the 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) 15this 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) 20Sub-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) 25If 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,

30it 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.

(8) If ISA—

(a) is satisfied that this paragraph applies to the person,

(b) 35has 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,

40it must include the person in the list.”

(7) In paragraph 9 of that Schedule to that Act (inclusion in adults’ barred list on

behaviour grounds)—

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

substitute “—

(i) 45has (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

5the 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) 10In paragraph 11 of that Schedule to that Act (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) 15is 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) 20it 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 other areas of regulation

67 25Abolition of controlled activity

Omit sections 21 to 23 of the Safeguarding Vulnerable Groups Act 2006

(controlled activity).

68 Abolition of monitoring

Omit sections 24 to 27 of the Safeguarding Vulnerable Groups Act 2006

30(monitoring).

Main amendments relating to new arrangements

69 Information for purposes of making barring decisions

(1) In paragraph 19 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006

(information required by ISA about persons to whom grounds for barring

35apply)—

(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) 40omit 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 Act (provision of information by

5Secretary of State to ISA) for sub-paragraph (2) substitute—

“(2) 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

10has been made available to the Secretary of State for the purposes of

Part 5 of that Act.”

70 Review of barring decisions

After paragraph 18 of Schedule 3 to the Safeguarding Vulnerable Groups Act

2006 (power to apply for review of a person’s inclusion in a barred list) insert—

“18A (1) 15Sub-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) 20ISA 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) 25any 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.”

71 Information about barring decisions

(1) 30For sections 30 to 32 of the Safeguarding Vulnerable Groups Act 2006

(provision of vetting information and information about cessation of

monitoring) substitute—

“30A Provision of barring information on request

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

35mentioned in subsection (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,

(b) the application contains the appropriate declaration, and

(c) the Secretary of State has no reason to believe that the

40declaration is false.

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

(a) that A falls within column 1 of the table in Schedule 7 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) 5The 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

10refers 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 section, the consent also has effect in relation to

any subsequent such application by A.

(5) 15The Secretary of State may prescribe any fee payable in respect of an

application under this section.

(6) Fees received by the Secretary of State by virtue of this section must be

paid into the Consolidated Fund.

(7) The Secretary of State may determine the form, manner and contents of

20an application for the purposes of this section (including the form and

manner of a declaration contained in such an application).

30B Provision of barring information on registration

(1) The Secretary of State must establish and maintain a register for the

purposes of this section.

(2) 25The 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) 30the 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 7 in relation

to B,

(b) 35that 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—

(a) 40if 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) 45The Secretary of State must notify A if B is barred from regulated

activity to which A’s registration relates.

(6) The requirement under subsection (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 section 30A, the

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

5registered in relation to B under this section.

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

application under this section.

(9) Fees received by the Secretary of State by virtue of this section must be

paid into the Consolidated Fund.

(10) 10The Secretary of State may determine the form, manner and contents of

an application for the purposes of this section (including the form and

manner of a declaration contained in such an application).”

(2) In section 33 of that Act (cessation of registration)—

(a) in subsection (1) for “32” substitute “30B”,

(b) 15in subsection (2) for “(6)” substitute “(5)”, and

(c) after subsection (3) insert—

“(3A) Circumstances prescribed by virtue of subsection (3) may, in

particular, include that—

(a) the Secretary of State has asked the registered person

20(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

25period, 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) 30that A falls within column 1 of the table in Schedule 7 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) 35that B consents to the registration of A in relation to B.

(3C) If B consents to the provision of information to A under section

30A, the consent also has effect as consent to the registration of

A in relation to B.

(3D) Section 34 applies in relation to the making of a declaration in

40response to a request from the Secretary of State of the kind

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

making of a declaration in an application made for the purposes

of section 30B.”

(3) In section 34 of that Act (declarations under sections 30 and 32)—

(a) 45in the heading for “30 and 32” substitute “30A and 30B”, and

(b) in subsection (1) for “30 or 32” substitute “30A or 30B”.

(4) Omit entry 19 in the table in paragraph 1 of Schedule 7 to that Act (power to

add entries to the table).

(5) In paragraph 2 of Schedule 7 to that Act (power to amend entries in the table)

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

(6) 5After paragraph 3(1) of Schedule 7 to that Act (barring information where

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

insert—

“(1A) Where sub-paragraph (1)(b) applies, in each of entries 1 and 5 in the

table, the reference to regulated activity relating to children includes

10activity engaged in outside England and Wales that, if in England or

Wales, would be regulated activity relating to children.”

72 Duty to check whether person barred

After section 34 of the Safeguarding Vulnerable Groups Act 2006 (declarations

relating to the provision of barring information) insert—

“34ZA 15Duty 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) 20A 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

25children 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

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

(4) 30Condition 1 is that the person has, within the prescribed period, been

informed under section 30A 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

35enhanced 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) 40the person has, within the prescribed period, checked—

(i) a relevant enhanced criminal record certificate of B, and

(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) 5The Secretary of State may by regulations provide for—

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

of a prescribed description,

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

of a prescribed description.

(8) 10In this section—

• “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)

  15in 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
  
  20adults, an enhanced criminal record certificate which
  
  includes, by virtue of section 113BB of that Act,
  
  suitability information relating to vulnerable adults.”

73 Restrictions on duplication with Scottish and Northern Ireland barred lists

(1) Before paragraph 6 of Schedule 3 to the Safeguarding Vulnerable Groups Act

252006 (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

30knows that the person is included in a corresponding list.

(3) A corresponding list is a list maintained under the law of Scotland or

Northern Ireland 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 Act—

(a) 35after “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

40list”.

(3) Before paragraph 12 of that Schedule to that Act (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

45that the person is included in a corresponding list.

(2) ISA must remove a person from the adults’ 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 Scotland or

Northern Ireland which the Secretary of State specifies by order as

5corresponding to the adults’ barred list.”

(4) In paragraph 12(1)(a) of that Schedule to that Act—

(a) after “if” insert “ISA knows that”,

(b) after “authority” insert “—

(i)”, and

(c) 10for the words from “(whether” to “list)” substitute “, and

(ii) has decided not to include the person in the

list”.

Other amendments

74 Professional bodies

(1) 15In section 41 of the Safeguarding Vulnerable Groups Act 2006 (registers: duty

to refer)—

(a) in subsection (1)—

(i) for “must” substitute “may”, and

(ii) omit “prescribed”,

(b) 20in subsection (4)—

(i) in paragraph (a), for “engaged or may engage” substitute “or

has been, or might in future, be engaged”,

(ii) also in paragraph (a), omit “or controlled activity”, and

(iii) in paragraph (b) for “, 2, 7 or 8” substitute “or 7”,

(c) 25in subsection (5) omit “prescribed”, and

(d) in the heading for “duty” substitute “power”.

(2) Omit paragraph 9(2)(a) of Schedule 5 to the Health Care and Associated

Professions (Miscellaneous Amendments and Practitioner Psychologists)

Order 2009 (S.I. 2009/1182S.I. 2009/1182) (which, if section 44(1) of the Act of 2006 were to

30come into force, would insert subsections (4A) to (4C) into section 41 of the Act

of 2006).

(3) In section 43 of the Act of 2006 (registers: notice of barring etc.) for subsections

(1) to (5) substitute—

“(1) Subsection (2) applies if—

(a) 35ISA knows or thinks that a person (A) appears on a relevant

register, and

(b) either—

(i) A is included in a barred list, or

(ii) ISA is aware that A is subject to a relevant

40disqualification.

(2) ISA must—

(a) notify the keeper of the register of the circumstances mentioned

in subsection (1)(b)(i) or (as the case may be) (ii), and

(b) in the case where A is included in a barred list, provide the

keeper of the register with such of the information on which ISA

relied in including A in the list as ISA considers—

(i) to be relevant to the exercise of any function of the

5keeper, and

(ii) otherwise appropriate to provide.

(3) Subsection (4) applies if the keeper of a relevant register applies to ISA

to ascertain in relation to a person (A) whether—

(a) A is included in a barred list, or

(b) 10ISA is aware that A is subject to a relevant disqualification.