The Safeguarding Vulnerable Groups Act 2006 (Commencement No. 6, Transitional Provisions and Savings (Amendment)) and (Commencement No. 7) Order 2010

Made: 29th March 2010

In accordance with section 56(3)(p) of that Act the Secretary of State has consulted the Welsh Ministers.

PART 1 — Introduction

Citation

1

This Order may be cited as the Safeguarding Vulnerable Groups Act 2006 (Commencement No. 6, Transitional Provisions and Savings (Amendment)) and (Commencement No. 7) Order 2010.

Commencement and interpretation

2

• (1) Articles 6 to 11 come into force on the day after the day on which this Order is made.

• (2) In this Order—

• “the Act” means the Safeguarding Vulnerable Groups Act 2006;

• “the 2009 Order” means the Safeguarding Vulnerable Groups Act 2006 (Commencement No. 6, Transitional Provisions and Savings) Order 2009[^f00002];

• “CJCSA” means the Criminal Justice and Court Services Act 2000[^f00003];

• “disqualification order” means an order made under section 28, 29 or 29A of CJCSA[^f00004];

• “disqualified from working with children” means disqualified from working with children for the purposes of Part II of CJCSA;

• “ISA” means the Independent Safeguarding Authority[^f00005];

• “a regulated position” is one falling within section 36 of CJCSA.

PART 2 — Commencement

Provisions of the Safeguarding Vulnerable Groups Act 2006 coming into force on the day after the day on which this Order is made

3

In so far as they are not already in force, the day after the day on which this Order is made is the day appointed for the coming into force of sections 21, 22 and 23(3) of the Act (controlled activity and responsible persons).

Partial commencement of section 50 of the Safeguarding Vulnerable Groups Act 2006

4

• (1) The day on which article 2 of the Safeguarding Vulnerable Groups Act 2006 (Supervisory Authorities and Devolution Alignment) Order 2010[^f00006] comes into force is the day appointed for the coming into force of section 50 of the Act (provision of information to supervisory authorities) for the purpose specified in paragraph (2).

• (2) The purpose is the provision of information to the Secretary of State in the exercise of the Secretary of State’s functions under Chapter 1 of Part 10 of the Education Act 2002[^f00007].

Further repeal of provisions of the Criminal Justice and Court Services Act 2000

5

• (1) The repeal of the remaining provisions of CJCSA by section 63(2) of, and Schedule 10 to, the Act shall come into force on the day after the day on which this Order is made for the purposes specified in paragraph (2).

• (2) Section 35 of CJCSA shall cease to have effect for the purpose of making it an offence for a person knowingly to—

• (a) offer work in a regulated position to,

• (b) procure work in such a position for, or

• (c) fail to remove from a regulated position

a person falling within paragraph (3).

• (3) A person (“P”) falls within this paragraph if P is disqualified from working with children only by reason of a disqualification order falling within paragraph (4) and P—

• (a) is or has at any time been barred from regulated activity relating to children by virtue of section 3(2) of the Act, or

• (b) has been included in the children’s barred list pursuant to article 2(2)(a) of the Safeguarding Vulnerable Groups Act 2006 (Transitional Provisions) Order 2008[^f00008], but is removed from that list by the ISA in accordance with article 2(4) of that Order.

• (4) A disqualification order falls within this paragraph if—

• (a) P was subject to the disqualification order immediately before ISA included P in the children’s barred list, and

• (b) at that time ISA was aware that P was subject to the disqualification order.

• (5) In paragraph (1) “the remaining provisions of CJCSA” means the provisions of that Act mentioned in Schedule 10 to the Act other than those referred to in the Schedule to the 2009 Order.

PART 3 — Amendment of the Safeguarding Vulnerable Groups Act 2006 (Commencement No. 6, Transitional Provisions and Savings) Order 2009

6

The 2009 Order is amended in accordance with articles 7 to 11.

Amendment of article 1 of the 2009 Order (interpretation)

7

At the appropriate place in paragraph (2) of article 1 of the 2009 Order insert—

• “disqualified from working with children” means disqualified from working with children for the purposes of Part II of CJCSA;
• “First-tier Tribunal” means the tribunal established under section 3(1) of the Tribunals, Courts and Enforcement Act 2007[^f00009]

Amendment of article 5 of the 2009 Order (transitional provisions and savings: Protection of Children Act 1999)

8

• (1) Article 5 of the 2009 Order is amended in accordance with this article.

• (2) At the end of paragraph (5)(a) insert—

and— (i) there is no outstanding appeal relating to P’s removal from the list, and (ii) the period of time during which any appeal relating to the removal of P from the list may be made has expired

• (3) For paragraph (5)(b) substitute—

(b) P is included in the children’s barred list pursuant to article 2(2)(a) of the 2008 Order and— (i) ISA is not required under paragraph (2)(b) of article 2 of the 2008 Order to give P the opportunity to make representations as to why P should be removed from that list, or (ii) where ISA is required under that paragraph to give P the opportunity to make such representations, it decides under that article not to remove P from that list, and (iii) where paragraph (i) or (ii) applies— (aa) there is no outstanding review of, or outstanding determination relating to, P’s inclusion in the list kept under section 1 of POCA, (bb) there is no outstanding appeal relating to P’s inclusion in that list, and (cc) the period of time during which any appeal relating to P’s inclusion in that list may be made has expired;

• (4) After paragraph (5) insert—

(5A) Where P has been included in the children’s barred list in accordance with article 2(2)(a) of the 2008 Order and where paragraph (5)(a) is satisfied at any time whilst P is so included, ISA must remove P from the list unless it is satisfied that paragraph 1 or 2 of Schedule 3 to the Act (prescribed criteria for automatic inclusion in the children’s barred list) applies to P.

• (5) After paragraph (7) insert—

(8) For the purposes of paragraph (5)(b)(iii)(aa), “outstanding review” means a review being carried out by the Secretary of State for the purposes of determining whether P should be removed from the list pursuant to section 1(3) of POCA and “outstanding determination” means an application being considered by the First-tier Tribunal under section 4A of that Act.

Amendment of article 6 of the 2009 Order (transitional and savings provisions: Care Standards Act 2000)

9

• (1) Article 6 of the 2009 Order is amended in accordance with this article.

• (2) At the end of paragraph (5)(a) insert—

and— (i) there is no outstanding appeal relating to P’s removal from the list, and (ii) the period of time during which any appeal relating to the removal of P from the list may be made has expired

• (3) For paragraph (5)(b) substitute—

(b) P is included in the adults’ barred list pursuant to article 4(2)(a) of the 2008 Order and— (i) ISA is not required under paragraph (2)(b) of article 4 of the 2008 Order to give P the opportunity to make representations as to why P should be removed from that list, or (ii) where ISA is required under that paragraph to give P the opportunity to make such representations, it decides under that article not to remove P from that list, and (iii) where paragraph (i) or (ii) applies— (aa) there is no outstanding review of, or outstanding determination relating to, P’s inclusion in the list kept under section 81 of CSA, (bb) there is no outstanding appeal relating to P’s inclusion in that list, and (cc) the period of time during which any appeal relating to P’s inclusion in that list may be made has expired;

• (4) After paragraph (5) insert—

(5A) Where P has been included in the adults’ barred list in accordance with article 4(2)(a) of the 2008 Order and where paragraph (5)(a) is satisfied at any time whilst P is so included, ISA must remove P from the list unless it is satisfied that paragraph 7 or 8 of Schedule 3 to the Act (prescribed criteria for automatic inclusion in the adults’ barred list) applies to P.

• (5) After paragraph (7) insert—

(8) For the purposes of paragraph (5)(b)(iii)(aa), “outstanding review” means a review being carried out by the Secretary of State for the purposes of determining whether P should be removed from the list pursuant to section 81(3) of CSA and “outstanding determination” means an application being considered by the First-tier Tribunal under section 87 of that Act.

Amendment of article 7 of the 2009 Order (transitional and savings provisions: Education Act 2002)

10

• (1) Article 7 of the 2009 Order is amended in accordance with this article.

• (2) At the end of paragraph (4)(a) insert—

and— (i) there is no outstanding appeal relating to the revocation of the direction, and (ii) the period of time during which any appeal relating to the revocation of the direction may be made has expired

• (3) For paragraph (4)(b) substitute—

(b) P is included in the children’s barred list pursuant to article 2(2)(a) of the 2008 Order and— (i) ISA is not required under paragraph (2)(b) of article 2 of the 2008 Order to give P the opportunity to make representations as to why P should be removed from that list, or (ii) where ISA is required under that paragraph to give P the opportunity to make such representations, it decides under that article not to remove P from that list, and (iii) where paragraph (i) or (ii) applies— (aa) there is no outstanding review of, or outstanding determination relating to, a direction to which P is subject, (bb) there is no outstanding appeal relating to a direction made in relation to P, and (cc) the period of time during which any appeal relating to a direction made in relation to P may be made has expired;

• (4) After paragraph (4) insert—

(4A) Where P has been included in the children’s barred list in accordance with article 2(2)(a) of the 2008 Order and where paragraph (4)(a) is satisfied at any time whilst P is so included, ISA must remove P from the list unless it is satisfied that paragraph 1 or 2 of Schedule 3 to the Act (prescribed criteria for automatic inclusion in the children’s barred list) applies to P.

• (5) After paragraph (6) insert—

(7) For the purposes of paragraph (4)(b)(iii)(aa), “outstanding review” means a review being carried out for the purposes of determining whether a direction made in relation to P should be varied or revoked under section 142(6) of EA 2002 and “outstanding determination” means an application being considered by the First-tier Tribunal under section 144(2) of that Act.

Minor amendments of the 2009 Order (article 3 and the Schedule to that Order)

11

• (1) In article 3(4)(b) of the 2009 Order, for “paragraph” substitute “article”.

• (2) In column 2 of the Schedule to the 2009 Order—

• (a) in the entry that corresponds to the reference in column 1 to “Section 22”, for “to 37” subsitute “, 36”;

• (b) in the entry that corresponds with the reference in column 1 to “Schedule 10”, for “CJSA” substitute “CJCSA”.

Signed

Delyth Morgan — Parliamentary Under Secretary of State — Department for Children, Schools and Families — 29th March 2010

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

This Order brings into force further provisions of the Safeguarding Vulnerable Groups Act 2006 (“the Act”) and also makes amendments to transitional and savings provisions in the Safeguarding Vulnerable Groups Act 2006 (Commencement No. 6, Transitional and Savings Provisions) Order 2009 (“the 2009 Order”).

Article 3 commences sections 21, 22 and 23(3) of the Act (definitions of “controlled activity” and “responsible person”). These provisions have been partially commenced in earlier commencement orders under the Act but are now commenced in full for the purposes of regulations made under section 23 of the Act which put in place limited safeguards in relation to a person who is barred from engaging in regulated activity but who wishes to work in a controlled activity position. “Regulated activity” is defined in Schedule 4 to the Act and consists mainly of specified types of work with children or vulnerable adults, work in establishments where there is the opportunity to have contact with such vulnerable groups and specified offices and positions. “Controlled activity” is an activity that is ancillary to regulated activity and which gives a person the opportunity to have contact with children or vulnerable adults or access to sensitive records relating to them.

Article 4 commences section 50 of the Act (provision of information to supervisory authorities) to enable the Independent Safeguarding Authority (the barring authority established under section 1 of the Act) to provide information to the Secretary of State where such information is relevant to the Secretary of State’s functions relating to independent schools in England. The Safeguarding Vulnerable Groups Act 2006 (Supervisory Authorities and Devolution Alignment) Order 2010 adds the Secretary of State, as the registration authority for independent schools, to the list of supervisory authorities in section 45(7) of the Act.

Article 5 repeals provisions of the Criminal Justice and Court Services Act 2000 (“CJCSA”) which relate to disqualification orders made under sections 28 to 29A of that Act. The effect of this article is that the offence in section 35(2) of the CJCSA ceases to have effect in the circumstances specified in the article. The section 35(2) offence includes a person knowingly offering work to, or employing, a person subject to a disqualification order under the CJCSA (“disqualified person”) in a regulated position. A regulated position is one that falls within section 36 of the CJCSA and consists mainly of specified types of work with or in relation to children. In very general terms, the section 35(2) offence falls away if the disqualified person is or has ever been barred from regulated activity relating to children but only if the bar took into account the fact that the person was subject to the disqualification order. A similar provision was included in the 2009 Order but in relation to the offence in section 35(1) which consists of a disqualified person knowingly applying for, offering to work in or accepting or working in a regulated position.

Part 3 of the Order amends the 2009 Order. Articles 6 to 10 to put beyond doubt the intended consequences of the savings and transitional provisions in that Order in relation to people who are in the process of being migrated from the old barring regime to the barred lists under the Act. The purpose of the amendments is to ensure that where there is any outstanding review, determination or appeal under the old legislation, section 3 of the Act (bar from engaging in regulated activity) does not commence in relation to that person until the all the review, determination or appeal has been finally determined any relevant periods during which an appeal under that legislation can be made have expired. Article 11 makes minor correcting amendments to the 2009 Order.

Footnotes

[^f00001]: 2006 c. 47.

[^f00002]: S.I. 2009/2611 (C. 115).

[^f00003]: 2000 c. 43.

[^f00004]: Amendments were made to sections 28 and 29 of CJCSA by the Constitutional Reform Act 2005 (c. 4), section 59(5) and Schedule 11, Part 4, paragraph 35. Section 29A was inserted by the Criminal Justice Act 2003 (c. 44), section 299 and Schedule 30, paragraphs 1 and 2.

[^f00005]: The ISA was established under section 1 of the Act as the Independent Barring Board or IBB. Section 81 of the Policing and Crime Act 2009 (c. 26) renames the IBB as the Independent Safeguarding Authority or ISA. References to the Independent Barring Board or IBB in the Act and in other legislation are replaced with (or are to be read as) references to the Independent Safeguarding Authority or ISA.

[^f00006]: S.I. 2010/1073..

[^f00007]: 2002 c. 32.

[^f00008]: S.I. 2008/473 as amended by S.I. 2009/37.

[^f00009]: 2007 c. 15.