The Disclosure (Scotland) Act 2020 (Commencement No. 5, Saving and Transitional Provision) Regulations 2025

Citation and commencement

1.—(1) These Regulations may be cited as the Disclosure (Scotland) Act 2020 (Commencement No. 5, Saving and Transitional Provision) Regulations 2025.

(2) This regulation and regulations 2, 4 to 10 and 12 come into force on 1 April 2025.

(3) Regulation 3 comes into force as follows—

(a) paragraphs (1) and (2) come into force on 1 April 2025,

(b) paragraph (3) comes into force on 1 July 2025.

(4) Regulation 11 comes into force on 1 July 2025.

Interpretation

2.—(1) In these Regulations—

“the 1997 Act” means the Police Act 1997(1),

“criminal conviction certificate” has the same meaning as in Part 5 of the 1997 Act,

“criminal record certificate” has the same meaning as in Part 5 of the 1997 Act,

“Disclosure Act” means the Disclosure (Scotland) Act 2020,

“enhanced criminal record certificate” has the same meaning as in Part 5 of the 1997 Act,

“original certificate application” means an application for the certificate mentioned in section 116ZB(1) of the 1997 Act(2),

“original scheme record request” means a request for disclosure of a scheme record under section 52 of the PVG Act(3),

“PVG Act” means the Protection of Vulnerable Groups (Scotland) Act 2007(4),

“relevant date” means 1 April 2025,

“scheme record” means a document disclosed by the Scottish Ministers under section 52 of the PVG Act which—

(a)

sets out the type of regulated work (with children or adults) in relation to which the individual is a scheme member,

(b)

confirms that the scheme member is not barred from doing that work,

(c)

states if the Scottish Ministers are considering whether to list the scheme member, and

(d)

contains vetting information about the scheme member which the Scottish Ministers discovered as a result of enquiries or arrangements made under section 47 of the PVG Act,

“scheme member” has the meaning given by section 45(2) of the PVG Act(5),

“short scheme record” means a document disclosed by the Scottish Ministers under section 53 of the PVG Act(6) which—

(a)

sets out the type of regulated work (with children or adults) in relation to which the individual is a scheme member,

(b)

confirms that the scheme member is not barred from doing that work,

(c)

states if the Scottish Ministers are considering whether to list the scheme member, and

(d)

states that no vetting information is included in the scheme member’s scheme record.

(2) Any words or expressions to which meanings are assigned by Part 1 of the Disclosure Act shall, for the purposes of these Regulations, have the same meanings as in that Act.

Appointed days

3.—(1) 1 April 2025 is the day appointed for the coming into force of the provisions of the Disclosure Act specified in column 1 of the table in the schedule (the subject matter of which is described in column 2 of that table).

(2) If a purpose is specified in column 3 of the table in relation to any provision specified in column 1, that provision comes into force on 1 April 2025 for that purpose only.

(3) 1 July 2025 is the day appointed for the coming into force of section 73(2) of the Disclosure Act for all remaining purposes.

Transitional provision relating to applications made under section 112 of the 1997 Act

4.—(1) Paragraph (2) applies where—

(a) before the relevant date, an individual has made an application for a criminal conviction certificate under section 112 of the 1997 Act(7), and

(b) on the relevant date, the Scottish Ministers have not yet issued the certificate.

(2) An application made under section 112 of the 1997 Act must be treated for all purposes as if it were an application for a Level 1 disclosure made under section 2 of the Disclosure Act.

Transitional provision relating to applications made under sections 113A, 113B, 114 or 116 of the 1997 Act and requests made under sections 52 or 53 of the PVG Act

5.—(1) Paragraph (2) applies where—

(a) before the relevant date—

(i) an individual has made an application for—

(aa) a criminal record certificate under section 113A of the 1997 Act(8),

(bb) an enhanced criminal record certificate under section 113B of the 1997 Act(9),

(cc) a criminal record certificate under section 114 of the 1997 Act(10),

(dd) an enhanced criminal record certificate under section 116 of the 1997 Act(11), or

(ii) a scheme member has requested disclosure of—

(aa) their scheme record under section 52 of the PVG Act, or

(bb) their short scheme record under section 53 of the PVG Act, and

(b) on the relevant date, the Scottish Ministers have not yet issued the certificate or, as the case may be, disclosed the record.

(2) An application made under any of sections 113A, 113B, 114 or 116 of the 1997 Act or, as the case may be, a request for a scheme record under section 52 of the PVG Act or a short scheme record under section 53 of that Act must be treated for all purposes as if it were an application for a Level 2 disclosure made under section 11 of the Disclosure Act.

Transitional provision relating to statements of scheme membership

6.—(1) Paragraph (2) applies where—

(a) before the relevant date, a scheme member has requested disclosure of their statement of scheme membership under section 54 of the PVG Act(12), and

(b) on the relevant date, the Scottish Ministers have not yet disclosed the statement.

(2) The request for a disclosure of a statement of scheme membership made under section 54 of the PVG Act must be treated for all purposes as if it were a request for a confirmation of scheme membership made under section 54 of the PVG Act (as substituted by section 86(3) of Disclosure Act).

(3) In this regulation, “statement of scheme membership” means a document which—

(a) sets out the type of regulated work in relation to which the individual is a scheme member,

(b) confirms the individual is not barred from doing that work, and

(c) states if the Scottish Ministers are considering whether to list the scheme member.

Transitional provision relating to disputes about accuracy of certificates issued under the 1997 Act and correction of inaccurate scheme records disclosed under the PVG Act

7.—(1) Paragraph (2) applies where—

(a) before the relevant date, the Scottish Ministers have—

(i) issued a certificate under any of sections 112, 113A, 113B, 114 or 116 of the 1997 Act to an individual, or

(ii) disclosed a scheme record under section 52 of the PVG Act, and

(b) on or after the relevant date, the individual or, as the case may be, scheme member notifies the Scottish Ministers that they believe that the information contained in the certificate or scheme record is inaccurate.

(2) The Scottish Ministers must—

(a) treat a certificate issued under section 112 of the 1997 Act as if it were a Level 1 disclosure in respect of which an application for review had been made under section 5(1) of the Disclosure Act,

(b) treat a—

(i) certificate issued under any of sections 113A, 113B, 114 or 116 of the 1997 Act, or

(ii) scheme record disclosed under section 52 of the PVG Act,

as if it were a Level 2 disclosure in respect of which an application for review had been made under section 20(1)(a) of the Disclosure Act.

(3) Where paragraph (2)(b) applies, the requirement in section 20(3) of the Disclosure Act does not apply.

(4) Paragraph (5) applies where the Scottish Ministers—

(a) are, before the relevant date, considering the accuracy of the information included in a—

(i) certificate issued under any of sections 112, 113A, 113B, 114 or 116 of the 1997 Act, or

(ii) scheme record disclosed under section 52 of the PVG Act, and

(b) have not, on the relevant date, made a decision on the accuracy of the information.

(5) The Scottish Ministers must—

(a) treat a certificate issued under section 112 of the 1997 Act as if it were a Level 1 disclosure in respect of which they are carrying out a review under section 6(2) of the Disclosure Act,

(b) treat a—

(i) certificate issued under any of sections 113A, 113B, 114 or 116 of the 1997 Act, or

(ii) scheme record disclosed under section 52 of the PVG Act,

as if it was a Level 2 disclosure in respect of which they are carrying out a review under section 21(2) of the Disclosure Act.

Transitional provision relating to certificates and scheme records with convictions falling within section 116ZA(1A) of the 1997 Act or section 52(2A) of the PVG Act

8.—(1) Paragraph (2) applies where—

(a) before the relevant date—

(i) the Scottish Ministers have—

(aa) issued a criminal record certificate or enhanced criminal record certificate to an individual which includes details of a conviction which falls within section 116ZA(1A) of the 1997 Act(13), or

(bb) complied with section 52(5) of the PVG Act in relation to a scheme record which includes vetting information about a conviction which falls within section 52(2A) of that Act, and

(ii) the individual (to whom the certificate has been issued, or as the case may be, record has been disclosed) has not yet notified the Scottish Ministers of an intention to make an application under section 116ZB(2) of the 1997 Act(14) or, as the case may be, section 52A(2) of the PVG Act(15), and

(b) on the relevant date—

(i) the conviction which fell within section 116ZA(1A) of the 1997 Act or, as the case may be, section 52(2A) of the PVG Act is a—

(aa) removable conviction,

(bb) spent childhood conviction, or

(cc) children’s hearing outcome, and

(ii) the period mentioned in section 116ZB(3)(a) of the 1997 Act or, as the case may be, section 52A(3)(a) of the PVG Act has not expired.

(2) The original certificate application or, as the case may be, original scheme record request must be treated for all purposes as if it were an application for a Level 2 disclosure under section 11 of the Disclosure Act.

(3) Paragraph (4) applies where—

(a) before the relevant date—

(i) the Scottish Ministers have—

(aa) issued a criminal record certificate or enhanced criminal record certificate to an individual which includes details of a conviction which falls within section 116ZA(1A) of the 1997 Act, or

(bb) complied with section 52(5) of the PVG Act in relation to a scheme record which includes vetting information about a conviction which falls within section 52(2A) of that Act, and

(ii) the individual (to whom the certificate has been issued, or as the case may be, record has been disclosed) has—

(aa) before the end of the period mentioned in section 116ZB(3)(a) of the 1997 Act, notified the Scottish Ministers that the individual intends to make an application under section 116ZB(2) of that Act, or

(bb) before the end of the period mentioned in section 52A(3)(a) of the PVG Act, section 52A(2) of the PVG Act, notified the Scottish Ministers that the individual intends to make an application under section 52A(2) of the PVG Act, and

(b) on the relevant date—

(i) the conviction which fell within section 116ZA(1A) of the 1997 Act or, as the case may be, section 52(2A) of the PVG Act is a—

(aa) removable conviction,

(bb) spent childhood conviction, or

(cc) children’s hearing outcome, and

(ii) the period mentioned in section 116ZB(3)(b) of the 1997 Act or, as the case may be, section 52A(3)(b) of the PVG Act has not expired.

(4) The Scottish Ministers must, for all purposes, treat a notification of an intention to make an application —

(a) under section 116ZB(2) of the 1997 Act, or

(b) under section 52A(2) of the PVG Act,

as a Level 2 review application under section 20(1)(b) of the Disclosure Act.

(5) Where paragraph (4) applies, the requirement in section 20(3) of the Disclosure Act does not apply.

Savings and transitional provision relating to applications for an order under section 116ZB of the 1997 Act or section 52A of the PVG Act

9.—(1) Sections 116ZB of the 1997 Act and 52A of the PVG Act continue apply in relation to all applications made under those sections before the relevant date which are not finally disposed of by the relevant date.

(2) Where, on or after the relevant date, the sheriff allows an application made in accordance with section 116ZB(6)(a) or (7) of the 1997 Act—

(a) paragraphs (9) and (12) of section 116ZB of that Act do not apply,

(b) the sheriff must order the Scottish Minsters to—

(i) issue a Level 2 disclosure to the individual as if the individual had made an application for a Level 2 disclosure under section 11 of the Disclosure Act on the date on which the sheriff makes the order, and

(ii) exclude from that Level 2 disclosure the details which the sheriff is satisfied are not relevant.

(3) Where, on or after the relevant date, the sheriff refuses an application in accordance with section 116ZB(6)(b) of the 1997 Act—

(a) paragraphs (10) and (12) of section 116ZB of that Act do not apply,

(b) the sheriff must order the Scottish Ministers to issue a Level 2 disclosure to the individual as if the individual had made an application for a Level 2 disclosure under section 11 of the Disclosure Act on the date on which the sheriff makes the order.

(4) Where, on or after the relevant date, the sheriff allows an application made in accordance with section 52A(6)(a) or (7) of the PVG Act—

(a) section 52A(10) of that Act does not apply,

(b) the sheriff must order the Scottish Ministers to—

(i) issue a Level 2 disclosure to the individual as if the individual had made an application for a Level 2 disclosure under section 11 of the Disclosure Act on the date on which the sheriff makes the order, and

(ii) exclude from that Level 2 disclosure the information which the sheriff is satisfied is not relevant.

(5) Where, on or after the relevant date, the sheriff refuses an application made in accordance with section 52A(6)(b) of the PVG Act—

(a) section 52A(10) of that Act does not apply,

(b) the sheriff must order the Scottish Ministers to issue a Level 2 disclosure to the individual as if the individual had made an application for a Level 2 disclosure under section 11 of the Disclosure Act on the date on which the sheriff makes the order.

(6) An individual may not make a Level 2 review application under section 20(1) of the Disclosure Act in relation to a Level 2 disclosure issued under any of paragraphs (3)(b) or (5)(b), or any subsequent Level 2 disclosure provided for the same purpose as the original certificate application or, as the case may be, original scheme record request, in relation to the—

(a) details which the sheriff was satisfied were relevant to the purpose for which the original certificate application was required, or

(b) vetting information that the sheriff was satisfied was relevant to the type of regulated work in relation to which the original scheme record request was made.

(7) Paragraph (6) does not prevent the individual from making a Level 2 review application under section 20(1) of the Disclosure Act in relation to a subsequent Level 2 disclosure provided for the same purpose as the original certificate application or, as the case may be, original scheme record request if—

(a) the review application in relation to the subsequent Level 2 disclosure is made after the end of the period specified in regulations made under section 31(6)(a) of the Disclosure Act, or

(b) the Scottish Ministers are satisfied that the individual’s circumstances have changed in a material respect since the application to the sheriff under section 116ZB(2) of the 1997 Act or, as the case may be, section 52A(2) was finally disposed of.

(8) For the purposes of this regulation an application to the sheriff under section 116ZB(2) of the 1997 Act or section 52A(2) of the PVG Act is finally disposed of when—

(a) the sheriff has determined the application in accordance with section 116ZB(6) or (7) of the 1997 Act or section 52A(6) or (7) of the PVG Act, or

(b) the proceedings are otherwise disposed of without making a determination.

Transitional provision relating to registered persons under the 1997 Act

10.—(1) With effect from the relevant date—

(a) a person who was a registered person under section 120(1) of the 1997 Act(16) must be treated, for all purposes, as an accredited body within the meaning of section 46(2)(a) of the Disclosure Act, and

(b) the Scottish Ministers must include that person in the register of accredited bodies in relation to the countersigning of applications for Level 2 disclosures under section 11 of the Disclosure Act.

(2) Where paragraph (1) applies, the conditions in section 47(4) and (5) of the Disclosure Act do not apply.

(3) Paragraph (4) applies where, before the relevant date, the Scottish Ministers have imposed conditions on a person under section 122(4) of the 1997 Act(17) in respect of their continuing to be listed in the registered maintained under section 120 of that Act.

(4) Any conditions imposed under section 122(4) of the 1997 Act must be treated as conditions imposed by the Scottish Ministers in relation to the registration of an accredited body by virtue of regulations made under section 54 or under section 55(7) of the Disclosure Act.

(5) Paragraph (6) applies where—

(a) before the relevant date, an individual has made an application to be a registered person under section 120(2) of the 1997 Act, and

(b) on the relevant date, the Scottish Ministers have not yet determined the application.

(6) An application made under section 120(2) of the 1997 Act must be treated, for all purposes, as if it were an application to be registered in the register of accredited bodies under section 47(1)(b) of the Disclosure Act.

Transitional provision relating to section 45C of the PVG Act

11.—(1) It is not an offence under section 45C of the PVG Act(18) for an individual to carry out any type of regulated role where that individual does not participate in the Scheme(19) in relation to that type of regulated role if—

(a) before 1 July 2025, the individual has applied to join the Scheme in relation to that type of regulated role, and

(b) that application has not been withdrawn or finally determined.

(2) For the purposes of paragraph (1)(b), an application is finally determined when—

(a) a confirmation of scheme membership is provided to the individual under section 46(1) of the PVG Act(20),

(b) a Level 2 disclosure is provided to the individual under section 11 of the Disclosure Act, or

(c) the Scottish Ministers notify the individual that the application will not be considered by them in accordance with section 71(3) of the PVG Act(21).

(3) In this regulation, “type of regulated role” is to be construed in accordance with section 91(4) and (5) of the PVG Act (as substituted by section 74(2) of the Disclosure Act).

Transitional Provision relating to sections 45D and 45F of the PVG Act

12.—(1) Paragraph (2) applies where—

(a) an organisation—

(i) has, before the relevant date, received disclosure of a scheme record under section 52 of the PVG Act or a short scheme record under section 53 of the PVG Act in relation to an individual which sets out that the individual participates in the Scheme in relation to a type of regulated work(22), and

(ii) on or after the relevant date, offers the individual a regulated role which is of the same type as the regulated work, or

(b) a personnel supplier—

(i) has, before the relevant date, received disclosure of a scheme record under section 52 of the PVG Act or a short scheme record under section 53 of the PVG Act in relation to an individual which sets out that the individual participates in the Scheme in relation to a type of regulated work, and

(ii) on or after the relevant date, offers or supplies the individual to an organisation to carry out a regulated role which is of the same type as the regulated work.

(2) Sections 45D(1) and 45F(2) of the PVG Act(23) are to be read as if, for “received a Level 2 disclosure in pursuance of a request under section 18(1)(a) of the Disclosure (Scotland) Act 2020 containing a statement confirming that the individual participates in the Scheme in relation to that type of regulated role” there is substituted “received disclosure of a scheme record under section 52 of the PVG Act or a short scheme record under section 53 of the PVG Act which sets out that the individual participates in the Scheme in relation to regulated work of the same type as the regulated role”.

NATALIE DON-INNES

Authorised to sign by the Scottish Ministers

St Andrew’s House,

Edinburgh

30th January 2025