Office of Public Sector Information
(1) Ministers must keep—
(a) the children’s list, and
(b) the adults' list.
(2) An individual may be listed in—
(a) the children’s list,
(b) the adults' list, or
(c) both lists,
only in accordance with this Part.
(3) In this Act, “listed”, in relation to an individual, means included in the children’s list or, as the case may be, the adults' list, and references to listing an individual are to be construed accordingly.
The referral ground—
(a) in relation to an individual who is or has been doing (or has been offered or supplied for) regulated work with children, is that the individual has, whether or not in the course of the individual’s work—
(i) harmed a child,
(ii) placed a child at risk of harm,
(iii) engaged in inappropriate conduct involving pornography,
(iv) engaged in inappropriate conduct of a sexual nature involving a child, or
(v) given inappropriate medical treatment to a child,
(b) in relation to an individual who is or has been doing (or has been offered or supplied for) regulated work with adults, is that the individual has, whether or not in the course of the individual’s work—
(i) harmed a protected adult,
(ii) placed a protected adult at risk of harm,
(iii) engaged in inappropriate conduct involving pornography,
(iv) engaged in inappropriate conduct of a sexual nature involving a protected adult, or
(v) given inappropriate medical treatment to a protected adult.
(1) An organisation must give Ministers any prescribed information which it holds in relation to an individual who is or has been doing regulated work if—
(a) it has, on the referral ground—
(i) dismissed the individual, or
(ii) transferred the individual to a position which does not involve that type of regulated work, or
(b) it would or might have dismissed or so transferred the individual on the referral ground if the individual had not—
(i) otherwise stopped doing regulated work, or
(ii) been working for the organisation for a fixed term.
(2) An organisation must give Ministers any prescribed information which it holds in relation to an individual who has been doing regulated work if—
(a) the individual stops doing the regulated work in circumstances not falling within subsection (1),
(b) the organisation subsequently becomes aware of information which it was unaware of when the individual stopped doing regulated work, and
(c) the organisation considers that, if—
(i) it had been aware of that information at that time, and
(ii) the individual had not stopped doing regulated work,
it would or might have dismissed the individual on the referral ground.
(3) In subsections (1) and (2)—
(a) an individual suspended from regulated work is not to be treated as having stopped doing that work, and
(b) the duty to give Ministers information in relation to the temporary transfer of an individual to another position applies only if the organisation subsequently makes a final decision not to permit the individual to resume the type of regulated work from which the individual was transferred.
(4) This section does not apply to personnel suppliers (see sections 4 and 5).
A personnel supplier which carries on an employment agency must give Ministers any prescribed information which it holds in relation to an individual who is or has been doing regulated work if it has, on the referral ground, decided—
(a) not to do any further business with the individual, or
(b) not to—
(i) find the individual further regulated work, or
(ii) offer or supply the individual for such work.
A personnel supplier which carries on an employment business must give Ministers any prescribed information which it holds in relation to an individual whom it has offered or supplied for regulated work if—
(a) it has dismissed the individual on the referral ground,
(b) the individual has otherwise stopped doing regulated work in circumstances in which it would or might have dismissed the individual on the referral ground if the individual had not so stopped, or
(c) it has, on the referral ground, decided not to offer or supply the individual for further regulated work.
(1) The duties in sections 3 to 5 do not apply where the individual stopped doing the regulated work (or, as the case may be, the organisation’s opinion was formed) before the date on which the provisions imposing the duties come into force.
(2) But an organisation may give Ministers any prescribed information which it holds in relation to such an individual if it wishes to do so.
(1) Where a court convicts an individual of a relevant offence, it must give Ministers any prescribed information that it holds in relation to the convicted individual.
(2) Subsection (3) applies where a court—
(a) convicts an individual of an offence (other than a relevant offence), and
(b) is satisfied that it may be appropriate for the individual to be listed in the children’s list or in the adults' list (or in both lists).
(3) Where this subsection applies, the court may give Ministers any prescribed information that the court holds in relation to the convicted individual.
(4) This section applies in relation to offences committed before and after this section comes into force.
(1) A person to whom this section applies may give Ministers any prescribed information that the person holds in relation to an individual who is or has been doing regulated work if—
(a) on the basis of information obtained by the person in the exercise of relevant functions, the person considers that the referral ground is met (regardless of whether the conduct to which the information relates occurred before or after this section comes into force), and
(b) prescribed information in relation to the individual has not been given to Ministers under sections 3 to 6 in respect of the conduct to which the information relates.
(2) This section applies to—
The General Teaching Council for Scotland
The Registrar of Chiropractors
The registrar of dentists and dental care professionals
The registrar of the General Medical Council
The registrar of the General Optical Council
The Registrar of health professionals
The Registrar of nurses and midwives
The Registrar of Osteopaths
The registrar of pharmaceutical chemists
The Scottish Commission for the Regulation of Care
The Scottish Social Services Council
Any other person specified in an order made by Ministers
(3) For the purposes of this section, “relevant functions” means—
(a) in relation to the General Teaching Council for Scotland, such functions as are conferred on it by virtue of the Teaching Council (Scotland) Act 1965 (c. 19),
(b) in relation to registrars mentioned in subsection (2), such functions as are conferred on them by virtue of any enactment,
(c) in relation to the Scottish Commission for the Regulation of Care and the Scottish Social Services Council, such functions as are conferred on the Commission or, as the case may be, the Council by virtue of the 2001 Act and any other enactment, and
(d) in relation to a person specified in an order made under subsection (2), such functions as are specified by the order.
An organisation which fails, without reasonable excuse, to comply with a duty imposed by any of sections 3 to 5 within 3 months of the date on which the duty arose is guilty of an offence and liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both,
(b) on a conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine, or to both.
(1) This section applies where—
(a) prescribed information relating to an individual has been given to Ministers in pursuance of sections 3 to 6 or 8, and
(b) they are satisfied that the information was not given for vexatious or frivolous purposes.
(2) Where Ministers are satisfied that the information indicates that it may be appropriate for the individual to be included in the children’s list, they must consider listing the individual in that list.
(3) Where Ministers are satisfied that the information indicates that it may be appropriate for the individual to be included in the adults' list, they must consider listing the individual in that list.
(4) For the avoidance of doubt, subsections (2) and (3) apply in relation to an individual regardless of the type of regulated work which the individual is or has been doing.
(1) This section applies where prescribed information relating to an individual has been given to Ministers in pursuance of section 7.
(2) Where the individual has been convicted of a relevant offence, Ministers must consider listing the individual in the children’s list.
(3) In any other case, Ministers must consider listing the individual in the children’s list where they are satisfied that—
(a) the information indicates that it may be appropriate for the individual to be included in that list, and
(b) the individual does, has done or is likely to do regulated work with children.
(4) Ministers must consider listing the individual in the adults' list where they are satisfied that—
(a) the information indicates that it may be appropriate for the individual to be included in that list, and
(b) the individual does, has done or is likely to do regulated work with adults.
(1) Ministers must consider listing an individual in the children’s list if they are satisfied that—
(a) either—
(i) vetting information about the individual, or
(ii) information received when considering whether to list the individual in the adults' list,
indicates that it may be appropriate for the individual to be included in the children’s list, and
(b) the individual does, has done or is likely to do regulated work with children.
(2) Ministers must consider listing an individual in the adults' list if they are satisfied that—
(a) either—
(i) vetting information about the individual, or
(ii) information received when considering whether to list the individual in the children’s list,
indicates that it may be appropriate for the individual to be included in the adults' list, and
(b) the individual does, has done or is likely to do regulated work with adults.
(1) This section applies where—
(a) a relevant inquiry report names an individual who is or has been doing regulated work, and
(b) it appears to Ministers from the report that the person who held the inquiry found that the referral ground was met at a time when the individual was doing regulated work (whether that time was before or after this section comes into force).
(2) Where it appears to Ministers from the report that it may be appropriate for the individual to be included in the children’s list, they may consider listing the individual in the children’s list.
(3) Where it appears to Ministers from the report that it may be appropriate for the individual to be included in the adults' list, they may consider listing the individual in the adults' list.
(4) For the avoidance of doubt, subsections (2) and (3) apply in relation to an individual regardless of the type of regulated work which the individual was doing.
(1) Ministers must list an individual in the children’s list where it appears to them that any of the criteria specified for the purposes of this subsection is satisfied in relation to the individual.
(2) Ministers must list an individual in the adults' list where it appears to them that any of the criteria specified for the purposes of this subsection is satisfied in relation to the individual.
(3) It is for Ministers to specify by order criteria for the purposes of subsections (1) and (2).
(4) Criteria which may be so specified include—
(a) that an individual has been convicted of, or cautioned in relation to, an offence of a specified description, including offences under—
(i) the law of England, Wales, Northern Ireland, the Channel Islands or the Isle of Man,
(ii) section 70 of the Army Act 1955 (c. 18),
(iii) section 70 of the Air Force Act 1955 (c. 19),
(iv) section 42 of the Naval Discipline Act 1957 (c. 53),
(v) section 42 of the Armed Forces Act 2006 (c. 52),
(b) that an order of a specified description imposing requirements about an individual’s conduct has been made.
Ministers must list an individual in the children’s list if, after considering whether to do so, they are satisfied by information relating to the individual’s conduct that the individual is unsuitable to work with children.
Ministers must list an individual in the adults' list if, after considering whether to do so, they are satisfied by information relating to the individual’s conduct that the individual is unsuitable to work with protected adults.
(1) Ministers must, before making a decision under section 15 or 16—
(a) give the individual whom they are considering whether to list an opportunity to make representations as to why the individual should not be listed, and
(b) consider any such representations.
(2) Ministers may, when deciding whether to list an individual, also consider—
(a) any information which caused them to consider listing the individual,
(b) any information relating to the individual which they obtain—
(i) in pursuance of a requirement made under any of sections 18 to 20, or
(ii) by performing their functions in relation to the Scheme, and
(c) any other information which they think relevant.
(3) An individual who is given an opportunity to make representations under subsection (1) must be given the opportunity to make representations in relation to all of the information on which Ministers intend to rely in deciding whether to list the individual.
(4) The opportunity to make representations under subsection (1) does not include the opportunity to make representations that any relevant finding of fact was wrongly made.
(5) A “relevant finding of fact” is a finding of fact—
(a) made in legal proceedings,
(b) made in a relevant inquiry report (other than a report relating to an inquiry of the type mentioned in sub-paragraph (ii) of section 31(2)(a)),
(c) made in proceedings before one of the following bodies or any of its committees—
(i) the Council of the Pharmaceutical Society of Great Britain,
(ii) the General Chiropractic Council,
(iii) the General Dental Council,
(iv) the General Medical Council,
(v) the General Optical Council,
(vi) the General Osteopathic Council,
(vii) the General Teaching Council for Scotland,
(viii) the Health Professions Council,
(ix) the Nursing and Midwifery Council,
(x) the Scottish Commission for the Regulation of Care,
(xi) the Scottish Social Services Council, or
(d) made by any other person, or in any other circumstance, specified by order made by Ministers.
(6) Subsections (1) and (3) do not apply if Ministers do not know and cannot reasonably ascertain the individual’s whereabouts.
(1) Ministers may, for the purpose of enabling or assisting them to decide whether to list an individual, require the chief constable of a police force to provide them with any information relating to the individual which the chief constable thinks might be relevant in relation to the type of regulated work concerned.
(2) A chief constable must not provide information to Ministers under subsection (1) if the chief constable thinks that disclosing it to the individual to whom it relates would be contrary to the interests of the prevention or detection of crime.
(3) Ministers must pay the appropriate police authority such fee as Ministers think appropriate for information provided under subsection (1).
(4) Ministers may, for the purpose of enabling or assisting them to decide whether to list an individual, require—
(a) any person who holds records of convictions, cautions or other information for the use of police forces generally to provide them with any information relating to the individual which the record holder thinks might be relevant in relation to the type of regulated work concerned,
(b) any person who holds such records to provide them with the information referred to in section 113A(3)(a) of the 1997 Act (prescribed details of every relevant matter relating to the individual which is recorded in central records).
(1) Ministers may, for the purpose of enabling or assisting Ministers to decide whether to list an individual, require—
(a) any person who holds vetting information of a type prescribed under section 49(1)(d) to provide them with any such vetting information relating to the individual,
(b) any of the persons set out in subsection (3) to provide them with any information held by the person which Ministers think might be relevant.
(2) Information provided under subsection (1)(b) may, in particular, be information which relates to—
(a) the regulated work concerned, or
(b) the protection of children or protected adults in general, or of any child or protected adult in particular.
(3) The persons who may be required to provide information under subsection (1)(b) are—
Councils
The General Teaching Council for Scotland
Health Boards and Special Health Boards
Her Majesty’s Chief Inspector of Prisons for Scotland
Her Majesty’s Inspectors of Schools
The Registrar of Chiropractors
The registrar of dentists and dental care professionals
The registrar of the General Medical Council
The registrar of the General Optical Council
The Registrar of health professionals
The Registrar of Independent Schools in Scotland
The Registrar of nurses and midwives
The Registrar of Osteopaths
The registrar of pharmaceutical chemists
The Scottish Commission for the Regulation of Care
The Scottish Social Services Council
Social work inspectors
Any other person specified in an order made by Ministers
(1) Ministers may require a person falling within subsection (2) to provide them with any information held by the person which Ministers think might be relevant for the purpose of enabling or assisting them to decide whether to list an individual.
(2) A person falls within this subsection if—
(a) the individual is doing, or has done, regulated work for the person,
(b) the individual has been offered regulated work by the person (whether or not the individual subsequently did the work),
(c) it is an employment agency which has offered or supplied, or made arrangements with a view to offering or supplying, the individual to another person for regulated work (whether or not the arrangements are still in place), or
(d) it is an employment business which employs or has employed the individual to do regulated work for another person.
(3) A person who fails, without reasonable excuse, to comply with a requirement made under subsection (1) is guilty of an offence and liable, on summary conviction, to a fine not exceeding level 5 on the standard scale.
(1) An individual listed under section 15 may appeal to the sheriff against Ministers' decision to list the individual in the children’s list.
(2) Such an appeal must be lodged—
(a) within 3 months of the date on which the individual was listed, or
(b) by such later date as the sheriff may, on cause shown, allow.
(3) The sheriff must determine an appeal under subsection (1)—
(a) where the sheriff is satisfied by information relating to the individual’s conduct that the individual is unsuitable to work with children, by confirming Ministers' decision to list the individual in the children’s list, or
(b) where the sheriff is not so satisfied, by directing Ministers to remove the individual from the children’s list.
(1) An individual listed under section 16 may appeal to the sheriff against Ministers' decision to list the individual in the adults' list.
(2) Such an appeal must be lodged—
(a) within 3 months of the date on which the individual was listed, or
(b) by such later date as the sheriff may, on cause shown, allow.
(3) The sheriff must determine an appeal under subsection (1)—
(a) where the sheriff is satisfied by information relating to the individual’s conduct that the individual is unsuitable to work with protected adults, by confirming Ministers' decision to list the individual in the adults' list, or
(b) where the sheriff is not so satisfied, by directing Ministers to remove the individual from the adults' list.
(1) The sheriff’s determination under section 21 or 22 may be appealed to the sheriff principal by—
(a) the individual, or
(b) Ministers.
(2) The sheriff principal’s determination of an appeal under subsection (1) may, with the leave of the sheriff principal, be appealed to the Inner House of the Court of Session on a point of law by—
(a) the individual, or
(b) Ministers.
(3) The decision of—
(a) the sheriff principal, or
(b) if leave is granted to appeal to the Inner House, that House,
on any appeal is final.
(1) No finding of fact on which any conviction is based may be challenged on an appeal under section 21, 22 or 23.
(2) Any court proceedings under section 21, 22 or 23 may take place in private if the court considers it appropriate in all the circumstances.
(1) A listed individual may apply to Ministers for removal from—
(a) the children’s list, or
(b) the adults' list.
(2) References in this section to “the list” are to be read as references to the list from which the individual has applied for removal.
(3) An application for removal from the list is competent only if—
(a) it is made after the end of such period as may be prescribed (beginning on such date as may be prescribed), or
(b) Ministers are satisfied that the applicant’s circumstances have changed since the applicant—
(i) was listed, or
(ii) last made an application for removal from the list under this section,
such that Ministers should consider the application.
(4) A period may not be prescribed under subsection (3)(a) in relation to a particular individual.
(5) An applicant’s circumstances are to be treated as having changed if—
(a) the applicant was convicted of an offence in relation to conduct which Ministers had regard to when considering whether to list the applicant, and
(b) the conviction is subsequently quashed.
(6) Subsection (5) does not affect the generality of subsection (3)(b).
(1) Ministers must determine a competent application for removal from the children’s list—
(a) where they are satisfied that the applicant is no longer unsuitable to work with children, by removing the individual from the list, or
(b) where they are not so satisfied, by refusing the application.
(2) Ministers must determine a competent application for removal from the adults' list—
(a) where they are satisfied that the applicant is no longer unsuitable to work with protected adults, by removing the individual from the list, or
(b) where they are not so satisfied, by refusing the application.
(3) Sections 18 to 20 apply to Ministers' determination of an application for removal from the list as they apply to a decision whether to list an individual (with references to deciding whether to list an individual being read as references to determining whether to remove an individual from the list).
Protection of Vulnerable Groups (Scotland) Act 2007