Disclosure (Scotland) Act 2020

Disclosure (Scotland) Act 2020

2020 asp 13

Provision by Provision Commentary

Part 1: Disclosure of criminal history and other information

Accredited bodies

Section 49: Suitable persons to have access to disclosure information

98. This section sets out the information Ministers may have regard to for determining whether an individual is suitable to have access to disclosure information for the purposes of section 47(5) or 48(2). “Individual” in this context refers to the sole business proprietor applying to be (or registered as) an accredited body or, in the case of body corporate applicants or accredited bodies, the lead signatory or countersignatory (or nominee for that position).

99. Subsection (1)(a) to (g) sets out the information Ministers may have regard to, including prescribed details of criminal disposals, information from the barred lists, representations made by the individual concerned, and information requested by Ministers from the chief officer of any relevant police force under subsection (2). It is not intended that subsection (1)(g) should be read broadly. In practice, “any other information held by the Scottish Ministers” will be limited to information held by Disclosure Scotland in relation to its functions under sections 46 to 56 of the Act, rather than information held generally by the wider Scottish Government. In exercising this power, Ministers would be required to act proportionately and to have regard to the principles of the ECHR and data protection legislation. Ministers have the power under subsection (5) to prescribe relevant police forces by regulations subject to the negative procedure, and subsection (7) lists various bodies which constitute a police force for this purpose, in addition to the UK police forces covered by the general definition in section 69. Under subsection (3), the chief constable (defined in section 69 as the chief constable of the Police Service of Scotland) is required to comply promptly with a request from Ministers under this section, but need not provide information which the chief constable thinks would be contrary to the interests of the prevention or detection of crime. It is expected that similar provision in relation to the other relevant police forces will be made by order under section 104 of the Scotland Act 1998.

100. Subsection (6) allows Ministers to have regard to the individual’s removal from or refusal of an equivalent registration in England and Wales or Northern Ireland.