Protection of Freedoms Bill (HL Bill 99)

Protection of Freedoms BillPage 60

72 Information about barring decisions

(1) For sections 30 to 32 of the Safeguarding Vulnerable Groups Act 2006
(provision of vetting information and information about cessation of
monitoring) substitute—

30A 5Provision of barring information on request

(1) The Secretary of State must provide a person (A) with the information
mentioned 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) 10the 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 7 in relation
15to 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) 20The 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
25refers 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) 30The 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
35an 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) 40The 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

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(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 7 in relation
5to 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) 10A’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
refers to vulnerable adults, to regulated activity relating to
15vulnerable 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 subsection (5) is satisfied if notification is sent
to any address recorded against A’s name in the register.

(7) 20If 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
registered 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) 25Fees received by the Secretary of State by virtue of this section must be
paid into the Consolidated Fund.

(10) The 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) 30In section 33 of that Act (cessation of registration)—

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

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

(c) after subsection (3) insert—

(3A) Circumstances prescribed by virtue of subsection (3) may, in
35particular, 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) 40either—

(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
45that it is false.

(3B) A renewed declaration is a declaration by A—

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(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
5be) 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 section
30A, the consent also has effect as consent to the registration of
A in relation to B.

(3D) 10Section 34 applies in relation to the making of a declaration in
response 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) 15In section 34 of that Act (declarations under sections 30 and 32)—

(a) in 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) 20In 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) Omit paragraph 3(1)(b) of Schedule 7 to that Act (barring information where
certain activities carried on for the purposes of the armed forces of the Crown)
and the word “or” before it.

73 25Duty 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 Duty to check whether person barred

(1) A regulated activity provider who is considering whether to permit an
30individual (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
35(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
40supplying 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.

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(4) Condition 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) 5the 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) 10Condition 3 is that—

(a) the 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
15certificate,

(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) 20The 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) 25In 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)

    30in 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
    35adults, an enhanced criminal record certificate which
    includes, by virtue of section 113BB of that Act,
    suitability information relating to vulnerable adults.

74 Restrictions on duplication with Scottish and Northern Ireland barred lists

(1) Before paragraph 6 of Schedule 3 to the Safeguarding Vulnerable Groups Act
402006 (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
45knows that the person is included in a corresponding list.

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(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) 5after “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
10list.

(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
15that 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
20corresponding 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) 25for the words from “(whether” to “list)” substitute , and

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

Other amendments relating to new arrangements: England and Wales

75 Professional bodies

(1) 30In 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) 35in 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) 40in 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

Protection of Freedoms BillPage 65

come 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) 5Subsection (2) applies if—

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

(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) 15in 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
keeper, and

(ii) 20otherwise 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) ISA is aware that A is subject to a relevant disqualification.

(4) 25ISA must notify the keeper of the register as to whether the
circumstances are as mentioned in subsection (3)(a) or (as the case may
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
30ISA considers appropriate.

(5A) Subsection (5B) applies if—

(a) a 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) 35the Secretary of State is aware that A is subject to a
relevant disqualification, and

(b) the 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 subsection (5A)(a)(i) or
40(as the case may be) (ii).

(5C) For the purposes of subsection (5A)(b) an application is withdrawn if—

(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 subsection (5A)(a)(i) or (as the case
45may be) (ii) in relation to A, or

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(b) the 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
5State, a request from the Secretary of State as to whether
the keeper still wishes to be notified if the circumstances
are, or become, as mentioned in subsection (5A)(a)(i) or
(as the case may be) (ii), or

(ii) that A neither appears in the register nor is being
10considered for inclusion in the register.

(5D) A keeper of a relevant register may apply for information under this
section, or to be notified under this section, in relation to a person (A)
only if—

(a) A appears in the register, or

(b) 15A is being considered for inclusion in the register.

(5E) The duties in subsections (2), (4) and (5B) do not apply if ISA or (as the
case may be) the Secretary of State is satisfied that the keeper of the
register already has the information concerned.

(5F) The Secretary of State may determine the form, manner and contents of
20an application for the purposes of this section.

(5G) In this section relevant information is information—

(a) which—

(i) relates to the protection of children or vulnerable adults
in general, or of any child or vulnerable adult in
25particular, and

(ii) is relevant to the exercise of any function of the keeper
of the register, but

(b) which is not—

(i) information that the circumstances are as mentioned in
30subsection (1)(b)(i) or (ii) in relation to a person,

(ii) any information provided under subsection (2)(b), or

(iii) information falling within paragraph 19(5) of Schedule
3.

(5H) The Secretary of State may by order amend subsection (5G).

(4) 35In section 43(6)(a) of the Act of 2006 (meaning of “relevant register”) omit “of
entry 1 or 8”.

(5) In the heading of section 43 of that Act for “notice of barring and cessation of
monitoring” substitute “provision of barring information to keepers of
registers”.

(6) 40Omit section 44 of that Act (registers: power to apply for vetting information).

76 Supervisory authorities

(1) In section 45 of the Safeguarding Vulnerable Groups Act 2006 (duty of
supervisory authorities to refer)—

(a) in subsection (1)—

(i) 45for “must” substitute “may”, and

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(ii) omit “prescribed”,

(b) in subsection (4)—

(i) in paragraph (a), for “engaged or may engage” substitute “or
has been, or might in future be, engaged”,

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

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

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

(d) omit subsection (6), and

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

(2) 10In section 47 of that Act (supervisory authorities: power to apply for vetting
information)—

(a) in the heading for “vetting” substitute “certain barring”,

(b) in subsection (1) for “the Secretary of State”, in both places where it
occurs, substitute “ISA”,

(c) 15in subsection (2) omit paragraphs (b) to (e),

(d) in subsection (3) omit paragraphs (b) to (e),

(e) omit subsection (5), and

(f) in subsection (7) for “prescribe” substitute “determine”.

(3) In section 48 of that Act (supervisory authorities: notification of barring etc. in
20respect of children)—

(a) in subsection (1)—

(i) for “This section” substitute “Subsection (2)”,

(ii) in paragraph (a) omit “newly”,

(iii) at the end of paragraph (a) insert “or”,

(iv) 25in paragraph (b) for “becomes” substitute “is”, and

(v) omit paragraph (c) and the word “or” before it,

(b) in subsection (2) for “, (b) or (c)” substitute “or (b)”,

(c) after subsection (2) insert—

(2A) The duty in subsection (2) does not apply in relation to an
30interested supervisory authority if the Secretary of State is
satisfied that the authority already has the information
concerned.,

(d) in subsection (3)(a) for the words from “if” to “occurs” substitute “of
any circumstance mentioned in subsection (1)”,

(e) 35in subsection (5)—

(i) after “withdrawn if” insert “—

(a),

(ii) for the words from “if”, where it appears for the second time, to
“occurs” substitute “of any circumstance mentioned in
40subsection (1)”, and

(iii) at the end insert “, or

(b) the Secretary of State cancels the application on either of
the following grounds—

(i) that the supervisory authority has not answered,
45within such reasonable period as was required
by the Secretary of State, a request from the
Secretary of State as to whether the supervisory
authority still wishes to be notified of any

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circumstance mentioned in subsection (1) in
relation to the person, or

(ii) that the notification is not required in connection
with the exercise of a function of the supervisory
5authority mentioned in section 45(7)., and

(f) in subsection (8) for “prescribe” substitute “determine”.

(4) In section 49 of that Act (supervisory authorities: notification of barring etc. in
respect of vulnerable adults)—

(a) in subsection (1)—

(i) 10for “This section” substitute “Subsection (2)”,

(ii) in paragraph (a) omit “newly”,

(iii) at the end of paragraph (a) insert “or”,

(iv) in paragraph (b) for “becomes” substitute “is”, and

(v) omit paragraph (c) and the word “or” before it,

(b) 15in subsection (2) for “, (b) or (c)” substitute “or (b)”,

(c) after subsection (2) insert—

(2A) The duty in subsection (2) does not apply in relation to an
interested supervisory authority if the Secretary of State is
satisfied that the authority already has the information
20concerned.,

(d) in subsection (3)(a) for the words from “if” to “occurs” substitute “of
any circumstance mentioned in subsection (1)”,

(e) in subsection (5)—

(i) after “withdrawn if” insert “—

(a), 25

(ii) for the words from “if”, where it appears for the second time, to
“occurs” substitute “of any circumstance mentioned in
subsection (1)”, and

(iii) at the end insert “, or

(b) 30the Secretary of State cancels the application on either of
the following grounds—

(i) that the supervisory authority has not answered,
within such reasonable period as was required
by the Secretary of State, a request from the
35Secretary of State as to whether the supervisory
authority still wishes to be notified of any
circumstance mentioned in subsection (1) in
relation to the person, or

(ii) that the notification is not required in connection
40with the exercise of a function of the supervisory
authority mentioned in section 45(7)., and

(f) in subsection (8) for “prescribe” substitute “determine”.

(5) In section 50 of that Act (provision of information to supervisory authorities)—

(a) in subsection (2) for “must” substitute “may (whether on an application
45by the authority or otherwise)”,

(b) in subsection (3)—

(i) in paragraph (b), after “the authority” insert “which is
mentioned in section 45(7)”, and

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(ii) for the words from “or information” to “occurred” substitute “or
of any circumstance mentioned in section 48(1) or 49(1)”, and

(c) after subsection (3) insert—

(4) A supervisory authority may apply to ISA under this section
5only if the information is required in connection with the
exercise of a function of the supervisory authority which is
mentioned in section 45(7).

(5) The Secretary of State may determine the form, manner and
contents of an application for the purposes of this section.

77 10Minor amendments

(1) In the Policing and Crime Act 2009 omit—

(a) section 87(2) (which, if commenced, would insert sections 34A to 34C
into the Safeguarding Vulnerable Groups Act 2006 in connection with
the notification of proposals to include persons in barred lists), and

(b) 15section 89(6) (which, if commenced, would amend the power of the
Secretary of State in the Act of 2006 to examine records of convictions
or cautions in connection with barring decisions).

(2) In section 39 of the Safeguarding Vulnerable Groups Act 2006 (duty of local
authorities to refer)—

(a) 20in subsection (1)—

(i) for “must” substitute “may”, and

(ii) omit “prescribed”,

(b) in subsection (4)—

(i) in paragraph (a), for “engaged or may engage” substitute “or
25has 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) in subsection (5) omit “prescribed”, and

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

(3) 30In section 50A(1) of the Act of 2006 (power for ISA to provide information to
the police for use for certain purposes), after paragraph (b), insert—

(c) the appointment of persons who are under the direction and
control of the chief officer,

(d) any prescribed purpose.

(4) 35After section 50A(1) of that Act insert—

(1A) ISA must, for use for any of the purposes mentioned in subsection (1),
provide to any chief officer of police who has requested it information
as to whether a person is barred.

(1B) ISA may, for use for the purposes of the protection of children or
40vulnerable adults, provide to a relevant authority any information
which ISA reasonably believes to be relevant to that authority.

(1C) ISA must, for use for the purposes of the protection of children or
vulnerable adults, provide to any relevant authority who has requested
it information as to whether a person is barred.