Protection of Freedoms Bill (HC Bill 189)

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 children,”, and

(c) 5in sub-paragraph (3)(b) for “appears to ISA” substitute “is satisfied”.

(4) In paragraph 5 of that Schedule to that Order (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) 10falls within sub-paragraph (4), 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”

15at 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 children,”, and

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

(5) 20For 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) 25the 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) 30has 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

35(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

40regulated 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) 45the 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) 5the 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) 10is 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) 15Sub-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) has reason to believe that the person is or has been, or

20might 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) 25In 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

30conduct, 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”

35at 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) 40In 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) 45is 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) 5in 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 10Omit 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

15to whom grounds for barring apply)—

(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) 20omit 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) 25omit “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

30to 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 35After 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) 40a 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

5person’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.”

10Information 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) 15The 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,

(b) 20the 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

25relation 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) 30The 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

35refers 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) 40The 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) 5The 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

10pays 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) 15that 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) 20that B has consented to the application.

(4) A’s application and registration relate—

(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

25refers 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

30sent 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

35application 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

40and 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

5(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

10that 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) 15that 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) 20that 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.

(3D) Article 36 applies in relation to the making of a declaration in

25response 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) 30in 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

35table) 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 40After 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

45an 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

5(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

10supplying 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

15concerned.

(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) 20the 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,

25and

(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

30concerned, 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

35persons 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
  
  40criminal 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
  
  45includes, 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

  Protection of Freedoms BillPage 137

  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

5(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) 10ISA 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) 15In 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) 20has 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) 25ISA must not include a person in the adults’ barred list if ISA

knows that 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 England

30and Wales or Scotland which the Secretary of State specifies by

order as corresponding to the adults’ barred list.”

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

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

(b) after “authority” insert “—

(i)”, and 35

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

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

list”.

Professional bodies

12 (1) 40In Article 43 of the Safeguarding Vulnerable Groups (Northern Ireland)

Order 2007 (registers: duty to refer)—

(a) in paragraph (1)—

(i) for “must” substitute “may”, and

(ii) omit “prescribed”,

(b) in paragraph (4)—

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

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

(ii) 5also in sub-paragraph (a), omit “or controlled activity”, and

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

(c) omit paragraph (4A) to (4C),

(d) in paragraph (5) omit “prescribed”, and

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

(2) 10In Article 45 of that Order (registers: notice of barring etc.) for paragraphs (1)

to (5) substitute—

“(1) Paragraph (2) applies if—

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

register, and

(b) 15either—

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

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

disqualification.

(2) ISA must—

(a) 20notify the keeper of the register of the circumstances

mentioned in paragraph (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

25ISA relied in including A in the list as ISA considers—

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

keeper, and

(ii) otherwise appropriate to provide.

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

30ISA to ascertain in relation to a person (A) whether—

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

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

(4) ISA must notify the keeper of the register as to whether the

circumstances are as mentioned in paragraph (3)(a) or (as the case

35may be) (b).

(5) ISA may (whether on an application by the keeper or otherwise)

provide to the keeper of a relevant register such relevant information

as ISA considers appropriate.

(5A) Paragraph (5B) applies if—

(a) 40a keeper of a register has applied to the Secretary of State to

be notified in relation to a person (A) if—

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

(ii) the Secretary of State is aware that A is subject to a

relevant disqualification, and

(b) 45the application has not been withdrawn.

(5B) The Secretary of State must notify the keeper of the register if the

circumstances are, or become, as mentioned in paragraph (5A)(a)(i)

or (as the case may be) (ii).

(5C) For the purposes of paragraph (5A)(b) an application is withdrawn

5if—

(a) the keeper of the register notifies the Secretary of State that

the keeper no longer wishes to be notified if the

circumstances are, or become, as mentioned in paragraph

(5A)(a)(i) or (as the case may be) (ii) in relation to A, or

(b) 10the Secretary of State cancels the application on either of the

following grounds—

(i) that the keeper has not answered, within such

reasonable period as was required by the Secretary of

State, a request from the Secretary of State as to

15whether the keeper still wishes to be notified if the

circumstances are, or become, as mentioned in

paragraph (5A)(a)(i) or (as the case may be) (ii), or

(ii) that A neither appears in the register nor is being

considered for inclusion in the register.

(5D) 20A keeper of a relevant register may apply for information under this

Article, or to be notified under this Article, in relation to a person (A)

only if—