Disclosure (Scotland) Bill: partial BRIA

9. Enforcement, sanctions and monitoring

The Disclosure (Scotland) Bill will include provisions that will contribute to the enforcement of a mandatory PVG Scheme for individuals carrying out work in a regulated role. It will also include provisions allowing Disclosure Scotland to impose conditions on scheme members during the period of consideration for listing.

The Bill proposes that it should be an offence for:

• an individual engaging in, or seeking to engage in, a regulated role without being a member of the PVG Scheme (this includes lapsed memberships),
• organisational employers and personnel suppliers to offer a regulated role to an individual who is not a member of the PVG scheme and without having had sight of a Level 2 disclosure for PVG scheme members, and
• an individual, organisation or personnel supplier to fail to comply with any conditions or restrictions imposed by Ministers.

A person found guilty of these proposed offences should be liable on summary conviction to a term of imprisonment not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both. A person found guilty of this offence should be liable on indictment to a term of imprisonment not exceeding 5 years or to a fine, or to both.

These penalties are comparable to the existing offence provisions in sections 9 and 34 – 37 of the PVG Act.

The Bill will also introduce offences in relation to the falsification of disclosures and the unlawful request, use and disclosure of a level 2 disclosure. The bill proposes that that is should be an offence for:

• an individual to make a document that purports to be a level 1 or level 2 disclosure, or make a false or misleading statement for the purpose of obtaining or enabling another person to obtain a level 1 or level 2 disclosure.
• an individual to unlawfully disclose a level 2 disclosure to another person.
• an individual to request the provision of, or otherwise seeks sight of, a Level 2 disclosure for a purpose other than a permitted purpose

A person who commits an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both).

These penalties are comparable to the existing offence provisions in sections 9 and 65-69 of the PVG Act.

Enforcement and monitoring of these offence provisions will be achieved through police constables acting in accordance with their statutory functions to investigate alleged offences; the Care Inspectorate’s powers to inspect care services and duties placed on organisations and bodies under a Code of Practice who use Disclosure Scotland’s services.