2010 No. 179
The Protection of Vulnerable Groups (Scotland) Act 2007 (Applications for Removal from List and Late Representations) Regulations 2010
Made
Laid before the Scottish Parliament
Coming into force in accordance with regulation 1
Citation and commencementI11
These Regulations may be cited as the Protection of Vulnerable Groups (Scotland) Act 2007 (Applications for Removal from List and Late Representations) Regulations 2010 and come into force on the same day as section 1 of the Protection of Vulnerable Groups (Scotland) Act 2007.
InterpretationI22
1
In these Regulations—
“the Act” means the Protection of Vulnerable Groups (Scotland) Act 2007;
“the 2003 Act” means the Protection of Children (Scotland) Act 20033;
“electronic communication” means an electronic communication as defined in section 15(1) of the Electronic Communications Act 20004;
“individual” is the person who has—
- a
made an application for removal from the children’s list, from the adults’ list or, where applicable, from both lists under section 25 of the Act; or
- b
made late representations under section 28 of the Act as to why the person should not have been listed;
- a
“the 2010 Regulations” means the Protection of Vulnerable Groups (Scotland) Act 2007 (Consideration for Listing) Regulations 20105;
“working day” means a day which is not a Saturday, Sunday, a bank holiday in Scotland under the Banking and Financial Dealings Act 19716, or a day appointed for public thanksgiving or mourning.
2
Any reference in Schedule 1 to these Regulations to “the list” is to be read as a reference to the list or, where appropriate, lists from which the individual has applied for removal under section 25 of the Act.
3
Any reference in Schedule 2 to these Regulations to “the list” is to be read as a reference to the list or, where appropriate, lists in which the individual was listed under section 15 or 16 of the Act and in relation to which the individual is making late representations under section 28 of the Act.
First applications for removal from list: prescribed periodI33
For the first application by an individual for removal from the children’s list or the adults’ list, the period prescribed for the purposes of section 25(3)(a) of the Act in relation to an individual who at the time of inclusion in the children’s list or the adults’ list—
a
was aged 18 or over, is ten years from the date of inclusion in the list in question;
b
was a child, is five years from the date of inclusion in the list in question.
Further applications for removal from list: prescribed periodI44
1
Paragraph (2) applies where an individual—
a
has been included in the list for the period prescribed in regulation 3(a) or (b) as applicable;
b
has applied to Ministers for removal from the list under section 25 of the Act; and
c
Ministers, after considering that application, have refused that application under section 26(1)(b) or (2)(b) of the Act.
2
Where this paragraph applies, for any further application by an individual for removal from the children’s list or the adults’ list, the period prescribed for the purposes of section 25(3)(a), unless modified by order by the Inner House under section 27(6) of the Act, is ten years from the date of the last application for removal from the list in question.
Applications for removal: listing in both the children’s list and the adults’ listI55
1
Where an individual is listed in both the children’s list and the adults’ list, the individual may make one application for removal from both lists.
2
Where an individual is listed in both the children’s list and the adults’ list and the period prescribed in regulation 3(a) or (b) is satisfied only in relation to the individual’s listing in one list, it is competent for the individual, in any application under section 25 of the Act for removal from the list for which the prescribed period is satisfied, to apply for removal from the other list at the same time, irrespective of the length of time of listing in that other list.
Procedure for determining applications for removal from the list under section 25 of the ActI66
The procedure set out in Schedule 1 applies to any application for removal from the children’s list, from the adults’ list or, where applicable, from both lists under section 25 of the Act.
Procedure for late representations under section 28 of the ActI77
The procedure set out in Schedule 2 applies in relation to late representations under section 28 of the Act.
Extension of timeI88
1
Where these Regulations require or authorise an individual or any other person to do something within a specified period, the individual or other person may apply to Ministers for further time within which to comply.
2
On receipt of an application under paragraph (1), Ministers may, on cause shown or otherwise where they consider it reasonable to do so, grant any further period or periods of time as they consider appropriate.
3
Where Ministers have granted a further period of time, any reference in these Regulations to that period of time is to be construed as a reference to the period of time as so extended.
Manner and time of service of notices and other communicationsI99
1
Any notice required to be given by Ministers to an individual under these Regulations must be given in accordance with section 30(8) of the Act.
2
Any other communication required to be given by Ministers to an individual under these Regulations may be given in accordance with section 30(8) of the Act or may be sent by electronic communication, provided that the individual has consented to the use of electronic communication and has provided Ministers with an email address for the purposes of these Regulations.
3
Any notice required to be given by Ministers to any organisation or other person under these Regulations must be given in accordance with section 30(8) of the Act.
4
Any other communication required to be given by Ministers to any organisation or other person under these Regulations may be given in accordance with section 30(8) of the Act or may be sent by electronic communication, provided that the organisation or other person has consented to the use of electronic communication and has provided Ministers with an email address for the purposes of these Regulations.
5
Where an individual or any person, organisation or body is required to make any representations or submit any information or comments to Ministers under these Regulations, such representations, information or comments may be sent by electronic communication to an e-mail address specified by Ministers for that purpose.
6
Where any communication is sent by electronic communication, it is to be treated as received the day after the day of its transmission.
7
If a period of notice expires on a day which is not a working day, the period of notice is to be treated as expiring on the next working day after that day.
Transitional provision in relation to those individuals transferred to the children’s list under section 43 of the ActI1010
1
Paragraph (2) applies where an individual has been listed in the children’s list by virtue of section 43 of the Act and has not made an application for removal under section 14 (application for removal from list) of the 2003 Act.
2
Where this paragraph applies the prescribed period under regulation 3(a) or (b) is to be calculated from the date that the individual was included (otherwise than provisionally) in the list kept under section 1 of the 2003 Act.
3
Paragraph (4) applies where an individual has been listed in the children’s list by virtue of section 43 of the Act and has made an application under section 14 of the 2003 Act which was dismissed prior to the coming into force of these Regulations.
4
Where this paragraph applies, the prescribed period for the purposes of section 25(3)(a) of the Act is ten years from the date on which the application for leave to make an application under section 14 of the 2003 Act was made, unless a different period has been specified by order by the Inner House under section 15(8) of the 2003 Act.
5
Where the Inner House has by order specified a period under section 15(8) of the 2003 Act as the period during which an individual may not make an application to the sheriff for leave to make a further application for an order under section 14(2) of that Act, that order is to be treated as if that order had been made under section 27(6) of the Act.
6
Where an individual has been listed in the children’s list by virtue of section 43 of the Act, the individual is to be treated as a child for the purposes of regulation 3 if they would have been treated as a child under section 14 of the 2003 Act.
SCHEDULE 1PROCEDURE FOR DETERMINING APPLICATIONS FOR REMOVAL FROM THE LIST UNDER SECTION 25 OF THE ACT
Acknowledgement of receipt of application for removal under section 25 of the ActI111
1
Where Ministers receive an application for removal from the list under section 25 of the Act, they must send an acknowledgement of its receipt to the individual within five working days.
2
Where Ministers consider that insufficient information has been sent with the application to allow them to determine whether an appeal is competent under section 25(3)(b) of the Act, Ministers may, by notice, invite the individual to provide such further information as Ministers think appropriate, within 28 days of the date of the receipt of that notice.
3
If the individual fails to provide such further information within the period specified under paragraph (2), the application is deemed to have been withdrawn.
Representations, comments or information to be sent to MinistersI122
1
For the purpose of enabling or assisting Ministers to determine whether to remove an individual from the list, Ministers may, by notice, invite—
a
any further representations, comments or information from the individual as to why the individual should be removed from the list; or
b
any representations, comments or information from any other person as Ministers may consider appropriate.
2
Any representations, comments or information in response to a notice sent under sub‑paragraph (1) are to be supplied in the manner and within such time as Ministers may specify in the notice.
Notification of any further information on which Ministers intend to rely in determining whether to remove an individual from the listI133
Ministers must give to the individual—
a
details of any further representations, comments or information supplied to Ministers under paragraph 2(1)(b) on which they intend to rely in determining whether to remove an individual from the list;
b
details of any other information upon which they intend to rely in determining whether to remove an individual from the list, including—
i
any information which Ministers obtained under the Act or under the 2010 Regulations and upon which they relied when making their decision to list the individual under section 15 or 16 of the Act;
ii
information which they obtain in pursuance of a requirement made under section 18, 19 or 20 of the Act;
iii
information which they obtain by performing their functions in relation to the Scheme; or
iv
any reports provided to Ministers under paragraph 5(2) or 6(2); and
c
a notice inviting the individual to—
i
make any further representations as to why the individual should be removed from the list;
ii
submit comments on any of the information provided to the individual under sub-paragraphs (a) or (b); and
iii
submit any further supporting information which the individual wishes to be taken into account by Ministers in determining whether to remove the individual from the list,
within 28 days of the date of the receipt of that notice.
Notification of further procedureI144
1
During their determination of whether to remove an individual from the list, Ministers may, if they consider it appropriate, appoint—
a
an expert adviser to prepare a report to Ministers on such matters within the expert’s area of expertise as Ministers consider appropriate for the purpose of assisting Ministers in the Ministers’ assessment of the individual’s unsuitability to work with children, protected adults or, where applicable, both groups; or
b
one or more such suitably qualified individuals as Ministers consider appropriate to prepare a report to Ministers providing an assessment of the individual’s unsuitability to work with children, protected adults or, where applicable, both groups.
2
Where Ministers decide to appoint an expert adviser or suitably qualified individuals under sub-paragraph (1)(a) or (b) or both, they must notify the individual of that decision.
3
For the avoidance of doubt, Ministers may decide to make appointments under either or both of sub-paragraph (1)(a) and (b) and may do so at the same time or at different times during their determination of whether to remove an individual from the list.
Report by expert adviserI155
1
Where Ministers appoint an expert adviser under paragraph 4(1)(a) they must give to that person all relevant information, which they have obtained in carrying out their functions under the Act, the 2010 Regulations or these Regulations and which is reasonably required by the expert adviser, and such information may include—
a
a copy of the application for removal from the list under section 25 of the Act;
b
details of any information relating to the individual which Ministers obtained under the Act or the 2010 Regulations and upon which they relied when making their decision to list the individual under section 15 or 16 of the Act;
c
details of any vetting information relating to the individual;
d
details of any information relating to the individual which Ministers obtain in pursuance of a requirement made under section 18, 19 or 20 of the Act;
e
details of any information relating to the individual which Ministers obtain by performing their functions in relation to the Scheme; and
f
details of any representations, comments and information received by Ministers under these Regulations.
2
The person appointed under paragraph 4(1)(a) must provide their report to Ministers, in such manner and within such time as Ministers may specify.
Assessment by suitably qualified individualsI166
1
Where Ministers appoint one or more suitably qualified individuals to assess the individual’s unsuitability to work with children, protected adults or, where applicable, both groups under paragraph 4(1)(b) they must give to that person or persons all information upon which Ministers intend to rely in determining whether to remove an individual from the list and such information may include—
a
a copy of the application for removal from the list under section 25 of the Act;
b
details of any information relating to the individual which Ministers obtained under the Act or the 2010 Regulations and upon which they relied when making their decision to list the individual under section 15 or 16 of the Act;
c
details of any vetting information relating to the individual;
d
details of any information relating to the individual which Ministers obtain in pursuance of a requirement made under section 18, 19 or 20 of the Act;
e
details of any information relating to the individual which Ministers obtain by performing their functions in relation to the Scheme;
f
details of any representations, comments and information received by Ministers under these Regulations;
g
a copy of any report provided to Ministers under paragraph 5(2).
2
The person or persons appointed under paragraph 4(1)(b) must review the information supplied to them under sub-paragraph (1) and, based on that information, provide to Ministers a report containing their assessment as to the individual’s unsuitability to work with children, protected adults or, where applicable, both groups, in such manner and within such time as Ministers may specify.
Notification of determination of application for removalI177
1
Where Ministers determine under section 26(1)(a) or (2)(a) of the Act that an individual is to be removed from the list, Ministers must, as soon as reasonably practicable after making their determination, give notification to the individual of their determination.
2
Where Ministers determine under section 26(1)(b) or (2)(b) that an individual is not to be removed from the list, Ministers must, as soon as reasonably practicable after making their determination, give notification to the individual of their determination, together with—
a
the reasons for their determination;
b
information as to the individual’s right of appeal under section 27 of the Act against the Ministers’ determination to refuse the application for removal from the list; and
c
information as to the individual’s further right to seek removal from the list under section 25 of the Act and regulation 4.
SCHEDULE 2PROCEDURE FOR LATE REPRESENTATIONS UNDER SECTION 28 OF THE ACT
Acknowledgement of receipt of late representations under section 28 of the ActI181
1
Where Ministers receive late representations under section 28 of the Act, they must send an acknowledgement of receipt of those representations to the individual within five working days.
2
Within 28 days of acknowledging receipt of the late representations under paragraph (1), Ministers must send to the individual a copy of—
a
any information which Ministers obtained under the Act or under the 2010 Regulations and upon which they relied when making their decision to list the individual under section 15 or 16 of the Act; and
b
the notification under section 30 of the Act of their decision to list the individual, including the reasons for their decision.
Representations, comments or information to be sent to MinistersI192
1
In considering late representations under section 28 of the Act, Ministers may, by notice, invite—
a
any further representations, comments or information from the individual as to why the individual should not have been listed; or
b
any representations, comments or information from any other person as Ministers may consider appropriate.
2
Any representations, comments or information in response to a notice sent under sub- paragraph (1) are to be supplied in the manner and within such time as Ministers may specify in the notice.
Notification of any further information on which Ministers intend to rely in considering late representationsI203
Ministers must give to the individual—
a
details of any further representations, comments or information supplied to Ministers under paragraph 2(1)(b) on which they intend to rely in considering an individual’s late representations;
b
details of any other information upon which they intend to rely in considering an individual’s late representations, including—
i
information which they obtain in pursuance of a requirement made under section 18, 19 or 20 of the Act;
ii
information which they obtain by performing their functions in relation to the Scheme; or
iii
any reports provided to Ministers under paragraph 5(2) or 6(2); and
c
a notice inviting the individual to—
i
make any further representations as to why the individual should not have been listed;
ii
submit comments on any of the information provided to the individual under paragraph 1(2) or sub-paragraphs (a) or (b); and
iii
submit any further supporting information which the individual wishes to be taken into account by Ministers in considering the individual’s late representations,
within 28 days of the date of receipt of that notice.
Notification of further procedureI214
1
During their consideration of late representations, Ministers may, if they consider it appropriate, appoint—
a
an expert adviser to prepare a report to Ministers on such matters within the expert’s area of expertise as Ministers consider appropriate for the purpose of assisting Ministers in the Ministers’ assessment of the individual’s unsuitability to work with children, protected adults or, where applicable, both groups; or
b
one or more such suitably qualified individuals as Ministers consider appropriate to prepare a report to Ministers providing an assessment of the individual’s unsuitability to work with children, protected adults or, where applicable, both groups.
2
Where Ministers decide to appoint an expert adviser or suitably qualified individuals under sub-paragraph (1)(a) or (b) or both, they must notify the individual of that decision.
3
For the avoidance of doubt, Ministers may decide to make appointments under either or both of sub-paragraph (1)(a) and (b) and may do so at the same time or at different times during their consideration of the individual’s late representations.
Report by expert adviserI225
1
Where Ministers appoint an expert adviser under paragraph 4(1)(a) they must give to that person all relevant information, which they have obtained in carrying out their functions under the Act, the 2010 Regulations or these Regulations and which is reasonably required by the expert adviser, and such information may include—
a
a copy of the late representations under section 28 of the Act;
b
details of any information relating to the individual which Ministers obtained under the Act or the 2010 Regulations and upon which they relied when making their decision to list the individual under section 15 or 16 of the Act;
c
details of any vetting information relating to the individual;
d
details of any information relating to the individual which Ministers obtain in pursuance of a requirement made under section 18, 19 or 20 of the Act;
e
details of any information relating to the individual which Ministers obtain by performing their functions in relation to the Scheme; and
f
details of any representations, comments and information received by Ministers under these Regulations.
2
The person appointed under paragraph 4(1)(a) must provide their report to Ministers, in such manner and within such time as Ministers may specify.
Assessment by suitably qualified individualI236
1
Where Ministers appoint one or more suitably qualified individuals to assess the individual’s unsuitability to work with children, protected adults or, where applicable, both groups under paragraph 4(1)(b) they must give to that person or persons all information upon which Ministers intend to rely in considering the individual’s late representations, and such information may include—
a
a copy of the late representations under section 28 of the Act;
b
details of any information relating to the individual which Ministers obtained under the Act or the 2010 Regulations and upon which they relied when making their decision to list the individual under section 15 or 16 of the Act;
c
details of any vetting information relating to the individual;
d
details of any information relating to the individual which Ministers obtain in pursuance of a requirement made under section 18, 19 or 20 of the Act;
e
details of any information relating to the individual which Ministers obtain by performing their functions in relation to the Scheme;
f
details of any representations, comments and information received by Ministers under these Regulations;
g
a copy of any report provided to Ministers under paragraph 5(2).
2
The person or persons appointed under paragraph 4(1)(b) must review the information supplied to them under sub-paragraph (1) and, based on that information, provide to Ministers a report containing their assessment as to the individual’s unsuitability to work with children, protected adults or, where applicable, both groups, in such manner and within such time as Ministers may specify.
Notification of determination following consideration of late representationsI247
1
Where Ministers determine, following their consideration of late representations under section 28 of the Act, that the individual is to be removed from the list, Ministers must, as soon as reasonably practicable after making their determination, give notification to the individual of their determination.
2
Where Ministers determine, following their consideration of late representations under section 28 of the Act, that the individual is not to be removed from the list, Ministers must, as soon as reasonably practicable after making their determination, give notification to the individual of their determination, together with—
a
the reasons for their determination;
b
information as to the individual’s right of appeal under section 21 or 22 of the Act against Ministers’ decision to include them on the list; and
c
information as to the individual’s right to seek removal from the list under section 25 of the Act.
(This note is not part of the Regulations)