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The Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009

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EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations prescribe the criteria which determine whether a person should be included automatically in the children’s barred list or the adults’ barred list maintained by the Independent Barring Board under section 2 of the Safeguarding Vulnerable Groups Act 2006 (c. 47) (the Independent Barring Board is established under section 1 of that Act).

Regulation 3 prescribes the criteria on the basis of which a person will be included automatically in the children’s barred list without having the right to make representations. Regulation 4 prescribes the criteria on the basis of which a person will be included automatically in that list but then allowed to make representations as to why they should be removed from it.

Regulation 3 addresses three categories of person. The first is someone who, before these Regulations came into force, (i) was made subject to a disqualification order (an order of the court under section 28, 29 or 29A of the Criminal Justice and Court Services Act 2000 (c. 43)), (ii) met conditions under the Education (Prohibition from Teaching or Working with Children) Regulations 2003 (S.I. 2003/1184, as amended – “the 2003 Regulations”) which meant that, had that order not been imposed, the Secretary of State would still have been bound to make the person subject to a direction under section 142 of the Education Act 2002 (c. 32) (“the 2002 Act”) without giving that person the right to make representations on the matter, but (iii) in relation to whom no such direction was made. The second is someone who, before these Regulations came into force, was convicted of or cautioned in relation to an offence meeting conditions under the 2003 Regulations which meant that the Secretary of State would have been bound to make that person subject to a direction under section 142 of the 2002 Act without having the right to make representations on the matter, but in relation to whom no such direction was made. The third is someone who, on or after the coming into force of these Regulations, has been convicted of or cautioned in relation to, an offence specified in paragraph 1 of the Schedule in any relevant circumstances, where these are prescribed, a “connected offence”, or a “relevant foreign offence” (these last two terms being defined in regulation 1).

Regulation 4 addresses five categories of person. The first is someone who, before these Regulations came into force, (i) was made subject to a disqualification order, (ii) did not meet conditions under the 2003 Regulations which, but for the imposition of that order, would have led to the imposition of a direction under section 142 of the 2002 Act without giving that person the right to make representations, and (iii) in relation to whom no such direction was made. The second is someone who, before these Regulations came into force, was convicted of or cautioned in relation to an offence meeting conditions under the 2003 Regulations which meant that the Secretary of State would have been bound to make that person subject to a direction under section 142 of the 2002 Act but also to have allowed the person to make representations on the matter, and in relation to whom no such direction was made. The third is someone who, on or after the coming into force of these Regulations, has been made subject to a risk of sexual harm order (within the meaning of section 123 of the Sexual Offences Act 2003 (c. 42) or section 2 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9)). The fourth is someone who, on or after the coming into force of these Regulations, has been convicted of or cautioned in relation to, an offence specified in paragraph 2 of the Schedule in any relevant circumstances, where these are prescribed, a connected offence, or a relevant foreign offence. The fifth is someone who, on or after the coming into force of these Regulations, is made subject to a disqualification order and who does not meet any other criteria prescribed by regulations 3 or 4.

Regulation 5 prescribes the criteria on the basis of which a person will be included in the adults’ barred list without having the right to make representations. Regulation 6 does the same in relation to criteria on the basis of which a person will be included in that list but then have the right to make representations as to why they should be removed from it.

The Schedule to these Regulations sets out the offences under the common law and statute law of England and Wales, Scotland and Northern Ireland which are prescribed for the purposes of these Regulations and, where relevant, the circumstances in which they must have been committed for a particular conviction or caution to meet criteria for automatic inclusion in either the children’s or adults’ barred list.

Regulation 7 amends regulation 8 of the Education (Provision of Information by Independent Schools) (England) Regulations 2003 (S.I. 2003/1934) and inserts a new regulation 10A into those Regulations which imposes a duty on the Independent Barring Board to inform the Secretary of State, on request, whether it has received information from the proprietor of a specified independent school about the dismissal of a specified member of staff, in accordance with the amended regulation 8.

Regulation 8 amends the Safeguarding Vulnerable Groups Act 2006 (Transitional Provisions) Order 2008 (S.I. 2008/473) so that anyone who meets criteria prescribed by these Regulations and who is made subject to a disqualification order does not fall to be referred to IBB by the Secretary of State in accordance with article 2 of that Order.

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