Scottish Government

Chapter 1: Introduction and summary of the Scheme

1.1 Introduction

1. This consultation document invites comments on policy proposals for secondary legislation required to implement the vetting and barring scheme established by the Protection of Vulnerable Groups (Scotland) Act 2007 (" the Act").

2. Readers may find it helpful to consult the Act to understand the scope of the powers which it is proposed to exercise to implement the policy options set out in this paper. A copy is available online at: http://www.opsi.gov.uk/legislation/scotland/acts2007/pdf/asp_20070014_en.pdf

3. The Scottish Parliament site includes copies of all the documents which accompanied the Act during its parliamentary passage: http://www.scottish.parliament.uk/business/bills/73-ProtVulGro/index.htm

4. More information about the consultation process can be found at section 1.4. Questions and policy options appear in the main body of each chapter for ease of understanding. Consultation respondents should complete and submit the response form on-line atwww.scotland.gov.uk/pvglegislation, or by post.

5. The Act creates the legislative framework for a new and robust vetting and barring scheme (" the scheme") for those working with children and protected adults in Scotland. The scheme is intended to ensure that people who are unsuitable do not gain access to children or protected adults through work, either paid or unpaid, and that those who become unsuitable are detected early and prevented from continuing to work. Where this consultation refers to employment, it should be taken to mean either paid employment or voluntary work. The scheme aims to reduce bureaucracy and streamline the disclosure process. It will also deliver a fair and consistent system that will be easy for people to understand and use.

Background

6. The Scheme responds to recommendation 19 of the Bichard Inquiry Report published in June 2004, following Sir Michael Bichard's inquiry into the murder of two schoolgirls in Soham in 2002. Recommendation 19 states that new arrangements should be introduced requiring those who wish to work with children, or vulnerable adults, to be registered. Following a feasibility study by the Home Office, the UK Government proposed a scheme for England and Wales by which people would, where appropriate, be barred from working with children. Sir Michael Bichard was satisfied that this proposal met with the requirements of his recommendation and endorsed the approach.

7. The previous administration in the Scottish Executive acted on recommendation 19 by legislating at the Scottish Parliament, resulting in the Act. The Scottish Government is now considering implementation issues associated with the Act and this consultation will play a significant part in this process.

8. The Scottish scheme will dovetail with the scheme established by the Safeguarding Vulnerable Groups Act 2006 for England, Wales and Northern Ireland. ¹ The UK Government and Scottish Government are seeking to avoid cross-border loopholes but recognise the need for distinct provision in each jurisdiction. Implementation in Scotland is building on experience of operating the Protection of Children (Scotland) Act 2003 (" the 2003 Act") and existing disclosure arrangements. A distinct Scottish scheme also allows more flexibility in responding to Scottish circumstances and priorities and ensures appropriate accountability to the Scottish Parliament.

Current position

9. Around 800,000 people in Scotland work with children or protected adults, either through their paid employment or as volunteers. Part 5 of the Police Act 1997 (" the 1997 Act") put in place a statutory framework to allow for criminal record checks for employment of these, and other, workers. Since April 2002, the Scottish Government and BT have worked in partnership as Disclosure Scotland to provide criminal record checks for Scotland.

10. The current vetting system operates via a disclosure certificate being obtained by individuals applying to Disclosure Scotland. There are three types of disclosure - basic, standard and enhanced, all of which cost £20, payable by either the applicant or their employer. The cost of disclosures for volunteers in the voluntary sector is met by the Scottish Government.

11. All applications for disclosure certificates have to be completed by the applicant. Standard and enhanced disclosures have to be countersigned by a body registered with Disclosure Scotland. Since Disclosure Scotland became operational in 2002, just under 2.4 million applications have been made for basic, standard and enhanced disclosures.

• A basic disclosure provides information on convictions that are unspent i.e. not rehabilitated under the Rehabilitation of Offenders Act 1974 (the 1974 Act).
• A standard disclosure provides details on all convictions, spent and unspent.
• An enhanced disclosure, as well as incorporating spent and unspent convictions, also includes non conviction information that the police consider to be relevant to the position being considered. For applicants for child care positions ² or posts involving working with adults at risk ³ an additional check is made to confirm that the individual is not disqualified from that type of work anywhere in the UK. It is an offence to employ an individual whose name appears on the children's list for England and Wales, List 99 (people disqualified from teaching in England and Wales) or the Disqualified from Working With Children list ( DWCL) in a child care position in Scotland. It is not an offence to employ an adult on the adult's list operating in England and Wales to work with adults at risk in Scotland, although it is unlikely that any employer would do so.

12. The DWCL was established by the 2003 Act, coming into force in January 2005. This list is currently maintained by civil servants in the Scottish Government and decisions about disqualification are made by a panel chaired by a senior civil servant. As of 23 October 2007, there were 226 individuals on the DWCL. Since it is an offence to offer work to an individual included on the DWCL in a child care position, it is necessary to obtain enhanced disclosure when employing an individual to do such work.

13. Although the vast majority of posts requiring enhanced disclosure will be covered by the new Scheme, enhanced disclosure will continue to be used for a small number of posts and appointments such as adoption checks and gaming licences.

Policy objectives

14. The policy objectives of the Act are to ensure that:

• those who have a history of behaviour that indicates they are unsuitable to work with children or protected adults are prevented from doing so and those who become unsuitable are quickly removed from such work;
• employers have an improved tool to assess suitability and make safe and informed recruitment and retention decisions;
• the Scheme is fair, consistent and easy for people to understand and use;
• the underlying processes are as streamlined, responsive and efficient as possible; and
• the Scheme dovetails with arrangements in the rest of the UK to ensure that cross-border loopholes do not develop which could be exploited by those who would harm children and protected adults.

15. The options in this consultation seek to strike the right balance between proportionate protection of vulnerable groups and not unduly compromising the privacy rights of individuals, including their ability to work in their chosen career.

1.2 Summary of the Scheme

Introduction

16. The Scheme offers the following improvements over the current system:

• effective barring - the scheme won't just collect and disclose vetting information, but will also assess it, so that individuals who are considered unsuitable on the basis of vetting information are prevented from entering the workforce;
• the adults' list - a new list of individuals who are unsuitable to work with protected adults;
• continuous vetting - continuing to collect vetting information about an individual after the initial disclosure check has been made will ensure that new information indicating that they might be unsuitable can be acted upon promptly;
• streamlined disclosures - recognising that some people have several roles and that many people move and change jobs over time, the scheme removes the need for repeated disclosure, simplifying and speeding up the process;
• access to disclosure for personal employers - who will be able to check that the person they are seeking to employ is not unsuitable; and
• more sources of vetting information - giving both the scheme and employers more information to decide on the suitability of an individual for a particular post.

17. The new adults' list and the children's list will be managed by a Central Barring Unit ( CBU) which together with the existing Disclosure Scotland service will form a single organisation, providing an end-to-end service to users. The CBU will manage the lists and take decisions about the unsuitability of individuals to work in either or both workforces. Disclosure Scotland will undertake the vetting function and will continue to issue basic, standard and enhanced certificates under the 1997 Act for purposes not covered by the scheme.

18. The effect of being listed in Scotland, i.e. included on the adults' list or children's list, is that an individual is barred from undertaking that type of regulated work in Scotland (or regulated activity anywhere else in the UK) and risks imprisonment if they do so. Similarly, any individual listed by the Independent Safeguarding Authority is barred from doing regulated work in Scotland.

Scheme membership

Basics:

19. The Act establishes a scheme which people undertaking regulated work with children and/or protected adults will join. Scheme membership is not mandatory but it is the only mechanism that enables employers to be sure that they are not employing a barred person. Employers will be committing an offence if they permit someone who is barred from the relevant workforce to undertake regulated work with children and/or protected adults. (This offence does not apply to personal employers such as parents or those buying care services directly.) An individual can only be in the scheme in respect of one or other or both types of regulated work if they are not barred. Employers can only establish that an individual is not barred by ensuring the individual is a scheme member.

Applying to the Scheme:

20. Individuals who carry out regulated work under the Act can apply to become scheme members (see chapter 2 for more information). On application, any vetting information about the individual will be gathered. In the vast majority of cases, no relevant information will exist and the individual will proceed immediately to become a member of the Scheme. Where relevant information is identified, the CBU will make a decision about whether the information makes the applicant unsuitable for regulated work. If it does not, either a scheme record disclosure or a statement of scheme membership will be provided to the applicant, depending on the type of application (see figure 1 in chapter 5.3). If they are deemed unsuitable, individuals will be added to one or both lists and will not become scheme members.

Generation of scheme record:

21. When an individual applies to join the scheme, a scheme record is issued to the applicant and the appropriate registered body which contains a statement of scheme membership and vetting information. The organisation will know that the individual is not barred because they are a scheme member. They can then use any vetting information as part of their recruitment process, as with enhanced disclosure now. In addition, an individual can apply without a registered body's counter-signature, allowing a statement of scheme membership to be issued without any vetting information. This can then be used to inform recruitment decisions of personal employers.

Continuous vetting:

22. Once a scheme member, an individual's scheme record held by Disclosure Scotland will be updated with any new vetting information as it arises. All such information will be added to the record and will be included on subsequent disclosures. Where the new information is relevant to the regulated work undertaken, the CBU may decide to place the individual under formal consideration for listing. A determination will then be undertaken by the CBU and the scheme member may be listed and so removed from membership of the Scheme. The individual and all organisations employing them in the relevant type of regulated work will be notified of any formal consideration for listing and the outcome of that consideration. While a scheme member is under consideration for listing, they can continue to undertake regulated work but organisational employers will be aware of their status. Any new organisational employer would also be informed of the consideration for listing through the disclosure certificate.

Moving between posts:

23. As an individual's scheme record is continuously updated, it allows them to move between posts more easily than under the current disclosure system. A quick update check detailing for new information will be available. Disclosures will be easier to apply for and quicker to generate, allowing a potential employer a much quicker response.

Referrals and listing:

24. As well as when new relevant vetting information arises, the CBU will also consider listing an individual following:

• an organisational referral by an employer, employment agency, employment business or regulatory body;
• a court referral; or
• the individual being named in a relevant inquiry report.

25. Organisational employers, employment agencies and employment businesses must refer an individual where the grounds for referral are met, for example following disciplinary action which leads to the dismissal of an individual or them being transferred from regulated work. Organisational referrals will have an initial consideration by the CBU to ensure they are not vexatious or frivolous and that it may be appropriate for the individual to be included in the children's list, adults' list or both. If it is considered that an individual may be unsuitable, they will be formally considered for listing.

26. Courts may refer, following conviction for any offence, if they are satisfied that it may be appropriate for the individual to be listed. They must refer an individual for consideration for listing on the children's list for some serious offences identified in the Act. The circumstances where referrals can or must be made are discussed in detail in chapter 3.

1.3 Disclosures available through the Scheme

27. Disclosures through the Scheme will replace enhanced disclosure for those who work with vulnerable groups. The Act creates several types of disclosure, tailor-made for different situations. The following section describes the purpose of each type.

Scheme record disclosure⁴

Short scheme record disclosure ⁵

Statement of scheme membership ⁶

Disclosure of scheme membership ⁷

1.4 Guide to the consultation document

28. This is a substantial consultation through which the Scottish Government is seeking views on how best to use a number of powers available under the Act. While all stakeholders are welcome and encouraged to comment on the consultation, we are aware that some groups may only be interested in certain aspects of the paper. For example, many stakeholders will be interested in how fees for the Scheme will be set, while a smaller number are likely to be interested in aspects of the consultation with a more specific focus.

Contents

29. The consultation consists of the following parts:

• the consultation paper;
• the response booklet;
• annexes; and
• a partial Regulatory Impact Assessment (published separately)

30. The first three parts of the consultation are included in this document and the Regulatory Impact Assessment is available at: www.scotland.gov.uk/pvglegislation

Purpose of consultation

31. The Act sets out the legislative framework for the scheme. This consultation is intended to allow respondents to inform the detail of secondary legislation. It sets out a number of options for each major issue as well as seeking general comments on the proposals. The findings of the consultation will enable the Scottish Government to develop a Scheme that is proportionate, easily understood and simple for individuals and organisations to use.

32. The consultation also includes a partial Regulatory Impact Assessment ( RIA) available at www.scotland.gov.uk/pvglegislationThe RIA assesses the impact of the various options in this paper on a range of stakeholders including government, business, the voluntary sector and individuals. Stakeholders are invited to comment on the RIA as they see fit, either as part of their response to this consultation or as a separate communication. Details of how to respond are included in the RIA.

Legislative process

33. The output of this consultation will be secondary legislation in the form of a number of draft Scottish Statutory Instruments. The following significant instruments will be the subject of further consultation in draft:

• the definition of protected adults;
• contractors' access to disclosure records;
• criteria for automatic listing;
• arrangements for retrospective checking; and
• fees for disclosures and scheme membership.

34. The secondary legislation required to implement the Scheme will be introduced to the Scottish Parliament from autumn 2008.

Overview of chapters

35. Table 1 summarises the sections of the consultation that are likely to be of most interest to key stakeholder groups. This is explored in further detail below.

Table 1. Guide to aspects of the Scheme which may be of particular interest to different types of stakeholders.

Chapter 2 - Scope of Regulated Work and Access to Disclosures

36. Chapter 2 focuses on who should become a scheme member because they are doing regulated work with children or adults or both. It sets out options for the definition of protected adult ⁸, the term used in the Act in place of adult at risk, and outlines how guidance ⁹ might set out criteria to assist organisations in assessing whether the post they are seeking to fill is regulated work. The scope of regulated work is likely to be of interest to a large and varied number of stakeholders.

37. This chapter also sets out options for sharing disclosure information with contractors in certain situations, asks about the duration of scheme membership and registration requirements for registered bodies. These sections will be of particular interest to councils and employers.

Chapter 3 - Referrals and Listing

38. Chapter 3 discusses what constitutes a referral, under what circumstances automatic listing and automatic consideration for listing will be applicable and the arrangements that will come into play when an individual is being considered for listing or being removed from the list. This chapter is likely to be of interest to stakeholders who may have to make referrals to the Scheme as well as those who want to understand how the listing process works. A wide range of employers, regulatory bodies and stakeholders working in the justice arena may be interested in this chapter.

Chapter 4 - New types of Vetting Information

39. Chapter 4 sets out options for extending vetting information used by the Scheme to include certain information held by councils and regulatory bodies. It also considers whether certain civil orders should be routinely disclosed. This chapter will be of particular interest to regulatory bodies and councils, the principal providers of additional vetting information.

Chapter 5 - Retrospective Checks and Fees

40. Chapter 5 focuses on the options available for phasing the existing workforce into scheme membership (retrospective checking) and charging regime options for the scheme. It discusses the merits of retrospective checking and sets out a number of options. In terms of fees, the two principal options are a two-tier charge for disclosures themselves or an annual subscription. This chapter is likely to be of interest to a very wide group of stakeholders ranging from self-employed individuals to large organisations such as local authorities.

Chapter 6 - Connecting with the rest of the UK

41. Chapter 6 gives an overview of how the Scottish Government anticipates connecting the Scottish scheme with that operating in other UK jurisdictions. This will be of interest to UK-wide organisations and individuals who do regulated work in Scotland and elsewhere in the UK.