Protection of Freedoms Bill

House of Commons

Session 2010 - 11
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Other Bills before Parliament

Protection of Freedoms Bill

Protection of Freedoms Bill
Part 5 — Safeguarding vulnerable groups, criminal records etc.
Chapter 1 — Safeguarding of vulnerable groups
56

(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)
After paragraph 3(1) of Schedule 7 to that Act (barring information where
5
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
activity engaged in outside England and Wales that, if in England or
10
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
Duty to check whether person barred
15
(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—
20
(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,
25

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)
Condition 1 is that the person has, within the prescribed period, been
30
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
enhanced criminal record certificate of B which has been
35
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—
40
(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,

Protection of Freedoms Bill
Part 5 — Safeguarding vulnerable groups, criminal records etc.
Chapter 1 — Safeguarding of vulnerable groups
57

(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—
5
(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)
In this section—
10
“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
15
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
20
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
2006 (restriction on inclusion in children’s barred list for Scottish cases), and
25
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.
30
      (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)
after “if” insert “ISA knows that”,
35
(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”.
40
(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
that the person is included in a corresponding list.
45

Protection of Freedoms Bill
Part 5 — Safeguarding vulnerable groups, criminal records etc.
Chapter 1 — Safeguarding of vulnerable groups
58

      (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
corresponding to the adults’ barred list.”
5
(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)
for the words from “(whether” to “list)” substitute “, and
10
(ii)
has decided not to include the person in the
list”.
Other amendments
74
Professional bodies
(1)
In section 41 of the Safeguarding Vulnerable Groups Act 2006 (registers: duty
15
to refer)—
(a)
in subsection (1)—
(i)
for “must” substitute “may”, and
(ii)
omit “prescribed”,
(b)
in subsection (4)—
20
(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)
in subsection (5) omit “prescribed”, and
25
(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. 2009/1182) (which, if section 44(1) of the Act of 2006 were to
come into force, would insert subsections (4A) to (4C) into section 41 of the Act
30
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)
ISA knows or thinks that a person (A) appears on a relevant
35
register, and
(b)
either—
(i)
A is included in a barred list, or
(ii)
ISA is aware that A is subject to a relevant
disqualification.
40
(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

Protection of Freedoms Bill
Part 5 — Safeguarding vulnerable groups, criminal records etc.
Chapter 1 — Safeguarding of vulnerable groups
59

(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
keeper, and
5
(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)
ISA is aware that A is subject to a relevant disqualification.
10
(4)
ISA 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
15
ISA considers appropriate in relation to a person who is barred from
regulated activity relating to children or vulnerable adults.
(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—
20
(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)
the application has not been withdrawn.
(5B)
The Secretary of State must notify the keeper of the register if the
25
circumstances are, or become, as mentioned in subsection (5A)(a)(i) or
(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,
30
or become, as mentioned in subsection (5A)(a)(i) or (as the case
may be) (ii) in relation to A, or
(b)
the Secretary of State cancels the application on either of the
following grounds—
(i)
that the keeper has not answered, within such
35
reasonable period as was required by the Secretary of
State, 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
40
(ii)
that A neither appears in the register nor is being
considered 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—
45
(a)
A appears in the register, or
(b)
A is being considered for inclusion in the register.

Protection of Freedoms Bill
Part 5 — Safeguarding vulnerable groups, criminal records etc.
Chapter 1 — Safeguarding of vulnerable groups
60

(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
an application for the purposes of this section.
5
(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
particular, and
10
(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
subsection (1)(b)(i) or (ii) in relation to the person,
15
(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)
In section 43(6)(a) of the Act of 2006 (meaning of “relevant register”) omit “of
20
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)
Omit section 44 of that Act (registers: power to apply for vetting information).
25
75
Supervisory authorities
(1)
In section 45 of the Safeguarding Vulnerable Groups Act 2006 (duty of
supervisory authorities to refer)—
(a)
in subsection (1)—
(i)
for “must” substitute “may”, and
30
(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)
also in paragraph (a), omit “or controlled activity”, and
35
(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)
In section 47 of that Act (supervisory authorities: power to apply for vetting
40
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)
in subsection (2) omit paragraphs (b) to (e),
45

Protection of Freedoms Bill
Part 5 — Safeguarding vulnerable groups, criminal records etc.
Chapter 1 — Safeguarding of vulnerable groups
61

(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
respect of children)—
5
(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)
in paragraph (b) for “becomes” substitute “is”, and
10
(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
interested supervisory authority if the Secretary of State is
15
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)
in subsection (5)—
20
(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
subsection (1)”, and
25
(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,
within such reasonable period as was required
30
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
circumstance mentioned in subsection (1) in
relation to the person, or
35
(ii)
that the notification is not required in connection
with the exercise of a function of the supervisory
authority 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
40
respect of vulnerable adults)—
(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”,
45
(iv)
in 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)”,

Protection of Freedoms Bill
Part 5 — Safeguarding vulnerable groups, criminal records etc.
Chapter 1 — Safeguarding of vulnerable groups
62

(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
concerned.”,
5
(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)
”,
10
(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)
the Secretary of State cancels the application on either of
15
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
Secretary of State as to whether the supervisory
20
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
with the exercise of a function of the supervisory
25
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
by the authority or otherwise)”,
30
(b)
in subsection (3)—
(i)
in paragraph (b), after “the authority” insert “which is
mentioned in section 45(7)”, and
(ii)
for the words from “or information” to “occurred” substitute “of
any circumstance mentioned in section 48(1) or 49(1)”, and
35
(c)
after subsection (3) insert—
“(4)
A supervisory authority may apply to ISA under this section
only if the information is required in connection with the
exercise of a function of the supervisory authority which is
mentioned in section 45(7).
40
(5)
The Secretary of State may determine the form, manner and
contents of an application for the purposes of this section.”
76
Minor amendments
(1)
In the Policing and Crime Act 2009 omit—
(a)
section 87(2) (which, if commenced, would insert sections 34A to 34C
45
into the Safeguarding Vulnerable Groups Act 2006 in connection with
the notification of proposals to include persons in barred lists), and