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Protection of Vulnerable Groups (Scotland) Act 2007: Scottish Vetting and Barring Scheme

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CHAPTER 1

1.1 BACKGROUND

The Protection of Vulnerable Groups (Scotland) Act 2007 ( PVG Act) creates the legislative framework for a strengthened, robust and streamlined vetting and barring scheme for those working with children and protected adults in Scotland. For ease of reference, the Scottish Government is referring to this as the PVG Scheme.

The PVG Act 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.

The PVG Scheme will ensure that those who either have regular contact with vulnerable groups through the workplace, or who are otherwise in regulated work, do not have a history of abusive behaviour. It will also deliver a fair and consistent system that will be quick and easy for people to use.

It will exclude people who are known to be unsuitable, on the basis of past behaviour, from working with children and/or protected adults and detect those who become unsuitable while in the workplace.

Current Position

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 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. Since then over 3 million applications have been made for basic, standard and enhanced disclosures. In the 2007/08 financial year, 362,367 enhanced disclosures were processed.

Since 2005, Scottish Ministers have kept a list of individuals who are considered unsuitable to work with children - the Disqualified from Working with Children List - introduced by the Protection of Children (Scotland) Act 2003. It is an offence for anyone on the list to work in any prescribed child care position.

Policy objectives

The policy objectives of the PVG 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 PVG 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.

The PVG Scheme offers the following improvements over the current system:

  • effective barring - it 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 list of individuals who are unsuitable to work with protected adults;
  • continuous updating - continuing to collect relevant 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 applications to simplify and speed up the process;
  • access to disclosure for personal employers - permitting them to check that the person they wish 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.

The PVG Scheme will be managed and delivered by Disclosure Scotland as an executive agency, which will also continue to deliver the other types of disclosure. A new team within Disclosure Scotland will receive and consider referrals and take decisions, on behalf of Scottish Ministers, about those people who may be unsuitable to work with children or protected adults. The team will gather and assess all relevant information to make expert, fair and consistent decisions.

1.2 CONSULTATION PROCESS

The PVG Act establishes the new PVG Scheme, but leaves some significant detail to be defined in secondary legislation. Because of the importance of this legislation and the widespread interest of stakeholders, a commitment was given during the passage of the PVG Bill to consult extensively on the development of significant parts of the secondary legislation.

Consultation on Policy Proposals for Secondary Legislation

A formal written consultation took place between 1 November 2007 and 12 February 2008. Stakeholders were invited to comment on policy proposals for the secondary legislation required to implement the PVG Scheme. To complement the written consultation, 16 consultation/information events, which attracted over 1000 participants, were held between November 2007 and January 2008.

The consultation set out a number of policy proposals relating to each major issue.

  • Chapter 2 - Scope of Regulated Work and Access to Disclosures
  • Chapter 3 - Referrals and Listing
  • Chapter 4 - New types of Vetting Information
  • Chapter 5 - Retrospective Checks and Fees
  • Chapter 6 - Connecting with the rest of the UK

The consultation attracted 199 responses, which were analysed by the Office of the Chief Researcher in the Scottish Government. The analysis also captured the views of participants who attended the consultation/information events. It was published on 27 June 2008.

The consultation document, the responses received and the analysis are at: http://www.scotland.gov.uk/Topics/People/Young-People/children-families/pvglegislation/consultation

This is the Scottish Government's response to the consultation analysis. It sets out both the policy and legislative direction.

For ease of reference, the chapters in this document correlate with both the consultation document and the analysis.

Next Steps

The Scottish Government will conduct a further consultation on significant draft Scottish Statutory Instruments ( SSIs). This consultation will be on the actual draft instruments and Explanatory and Executive Notes and will take place prior to the SSIs being considered by the Scottish Parliament.

Annex A sets out the list of all SSIs to be developed and those that will be subject to consultation.

In due course, the Scottish Government will consult on the package of guidance relating to particular aspects of the scheme that is currently being developed in partnership with a broad range of stakeholders.

A date for the scheme to go-live is still to be determined and will be announced well in advance to allow stakeholders adequate time to prepare.

For more information, contact the PVG Act Implementation team at the Scottish Government on 0131 244 4905 or visit http://www.scotland.gov.uk/pvglegislation

1.3 SUMMARY

Scottish Ministers have fully considered the detailed analysis of the consultation on policy proposals for secondary legislation. This section summarises the actions that the Scottish Government proposes to take as it moves towards implementation of the PVG Scheme. These proposals will be reflected in Scottish Statutory Instruments laid before Parliament for consideration.

The rationale behind the decisions and more detailed information about how both the policy and secondary legislation will be taken forward is detailed from Chapter 2 onwards.

SCOPE OF REGULATED WORK AND ACCESS TO DISCLOSURES

Regulated Work with Children

  • The Scottish Government will re-examine the scope of regulated work with children and amend schedule 2 of the PVG Act to reflect recent changes to the Protection of Children (Scotland) Act 2003 and to ensure a proportionate approach to the scope of the scheme.

Regulated Work with Protected Adults

  • The definition of protected adult will be extended to include any individual in receipt of any NHS or private healthcare service. NHS services will be prescribed by reference to those provided or secured by health boards under the National Health Service (Scotland) Act 1978. Private and independent health care services will be prescribed by reference to those regulated by the Regulation of Care (Scotland) Act 2001.
  • The definition of protected adult will also be extended to include any individual in receipt of welfare services, defined by the nature and purpose of the service that an organisation provides. Welfare services will include support, assistance, advice or counselling to individuals and include those delivered by commercial organisations as well as public sector and voluntary and charitable organisations. In defining a protected adult, the same consideration of fairness and proportionality as outlined in relation to regulated work with children will be applied.

Contractors and Disclosure

  • Disclosure information will be able to be shared between contracting parties where they are councils or health boards contracting for the provision of transport services to transport children and/or protected adults. This will require the explicit consent of the individual who is the subject of the disclosure.

Changes to Registration of Registered Bodies

  • There will be no requirement on registered bodies to make a minimum number of disclosure applications each year as a condition of continued registration. Instead, subject to the approval of the Scottish Parliament, the registration fee will be replaced with an annual subscription based on the number of counter-signatories registered to that organisation .

REFERRALS AND LISTING

Making Referrals

  • For organisations making referrals, the content of the referral form will be broadly as set out in the consultation document although organisations will only be required to provide the information that they hold.

Automatic Listing

  • A conviction for one of a short list of serious sexual or violent offences will lead to automatic listing. Given the seriousness of these offences there will be considerable similarity between the lists of offences prescribed for both the children's and adults' lists.

Automatic Consideration for Listing
Children's List Only

  • The list of convictions which lead to automatic consideration for listing identified in schedule 1 of the PVG Act will be modified to include additional serious offences that suggest a future significant risk of harm to children.

Listing Decisions

  • Work will proceed on the approach to making listing decisions, based on the elements proposed in the consultation.

Removal from Lists

  • Individuals will be able to apply for removal from the list(s) after five years if they were a child when listed (ie aged under 18 at the date of listing) or after ten years if they were an adult when listed (ie aged 18 or over) or at any time if the individual is able to demonstrate a change in circumstances.

NEW TYPES OF VETTING INFORMATION

Regulatory Bodies and Councils

  • The definition and gathering of vetting information from regulatory bodies and councils, while supported by respondents, requires further detailed work with stakeholders. Aside from vetting information included in referrals from regulatory bodies, this information will not be included in the scheme from the outset.

Handling Sensitive Information from Regulatory Bodies and Councils

  • As identified above, vetting information will not be prescribed at the outset for councils. Where a referral is received and contains information about regulatory body disciplinary proceedings which is deemed relevant to the individual's suitability but doesn't lead to listing, that information will be disclosed on future scheme record disclosures.

Civil Orders

  • The four civil orders identified in the consultation paper (namely the Risk of Sexual Harm Order, Sexual Offences Prevention Order, Notification Order and Foreign Travel Order) will always appear on scheme record disclosures and on the enhanced plus disclosures for specific positions in respect of children or adults (eg adoption and Adults With Incapacity guardianship).

Other Sources of Vetting Information

  • Additional sources of vetting information, including information on previous competent referrals will not be prescribed as vetting information.

RETROSPECTIVE CHECKS AND FEES

Retrospective Checking: whether and how?

  • Scheme membership will be phased in for the existing workforce using a managed process of retrospective checking. This will commence one year after go-live and will last for a three year period, so that the entire regulated workforce should be brought onto the scheme, four years from go-live.

Fee Levels and Charging Regime

  • There will be a two tier system of charging. A higher fee will be charged for all applications to join the scheme for the first time. The higher fee will also apply on any occasion when a Scheme Record Disclosure is requested. The lower fee will apply to Short Scheme Record Disclosures and Disclosure of Scheme Membership where the individual is already a scheme member.
  • The fees for volunteers working in the voluntary sector will continue to be paid by the Scottish Government. Scheme members who join through voluntary work then go on to paid employment will not be required to pay the higher fee when they do so, but will be able to access scheme records on the same basis as those who are already in paid work.

CONNECTING WITH THE REST OF THE UK

  • The Scottish Government will continue to interact with those responsible for developing the system for the other parts of the UK through the Safeguarding Vulnerable Groups Act 2006 ( SVG Act 2006) and the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 to ensure that the schemes dovetail.