The Protection of Vulnerable Groups (Scotland) Act 2007: Section 35(2) and (3) The Protection of Vulnerable Groups (Scotland) Act 2007 (Removal of Barred Individuals from Regulated Work) Regulations 2010

Executive Summary

In 2007 the Scottish Parliament enacted the Protection of Vulnerable Groups (Scotland) Act ("the 2007 Act"). Part 1 of the 2007 Act provides for the barring of those persons that Scottish Ministers consider to be unsuitable for regulated work with children or protected adults (or both). The 2007 Act provides Scottish Ministers with a power to impose certain prohibitions or requirements on employers seeking to employ persons to do regulated work. Failure to comply with those prohibitions or requirements would result in the employers committing criminal offences under the 2007 Act.

In 2010, Ministers made regulations by a Scottish Statutory Instrument under section 35(2) and (3) of the 2007 Act ( the Protection of Vulnerable Groups (Scotland) Act 2007 (Removal of Barred Individuals from Regulated Work) Regulations 2010 ( SSI 2010
No 244)) ("the 2010 Regulations").

A person who is barred from regulated work commits a criminal offence under section 34 of the 2007 Act by seeking or doing regulated work with the group from which they are barred. The effect of the 2010 Regulations is that an employer commits a criminal offence if they have been told by Scottish Ministers that the individual is barred and the employer still permits that person to continue working for them and does not remove that person from doing that regulated work.

Retrospective checking began on 29 October 2012 and was scheduled to be completed by 29 October 2015. As of the end of October 2015, the vast majority of organisations and employers in Scotland had brought the relevant members of staff into the PVG Scheme. However, a small number of organisations had not yet achieved that target.

The purpose of this consultation was for the Scottish Government to seek the views of organisations, employers and individuals on whether or not new regulations should be made under section 35(2) and (3) of the 2007 Act once retrospective checking is complete in order to revoke and replace the 2010 Regulations.

At the outset of the programme of retrospective checking, Ministers gave a public commitment that regulations to set out the new prohibitions and requirements under section 35(2) and (3) of the 2007 Act would be consulted on with stakeholders prior to draft regulations being laid in Parliament. This consultation fulfilled this commitment.

Analysis and Reporting

The consultation ran from 26 January 2016 to 19 April 2016. The Scottish Government received 85 written responses to the consultation. Of these:

• 21 were from the public sector;
• 12 were from individuals;
• 5 were from regulatory bodies;
• 30 were from the voluntary sector;
• 17 were from the private sector.

38 respondents wished for their identity to remain anonymous. 5 respondents wished for their identity and answers to remain anonymous. A list of those who responded can be found in Annex A.

Comments given at each open question were examined and key themes, similar issues raised or comments made in a number of responses, were identified. In addition, we looked for sub-themes such as reasons for opinions, specific examples or explanations, alternative suggestions or other related comments.

Where possible, we looked at whether respondents said they agreed or disagreed with the specific proposals. In the analysis of these questions if a respondent indicated clearly yes, or provided comments of a positive nature then they were considered to have said yes. If the comments were negative they were interpreted as having said no.

The key themes were looked at in relation to individuals and organisation groupings to ascertain whether any particular theme was specific to one particular group, or whether it appeared in responses across groups.

When looking at sub-group differences, it must be also borne in mind that where a specific opinion has been identified in relation to a particular group or groups, this does not indicate that other groups agree or disagree with this opinion, but rather that they have simply not commented on that particular point.

This exercise was a consultation and not a survey. While the consultation gave all those who wished to comment an opportunity to do so, given the self-selecting nature of this type of exercise, any figures quoted here cannot be extrapolated to a wider population.

Main Findings from Consultation

• 58% of the respondents felt that the current provisions within the 2007 Act and the 2010 Regulations were sufficient. 39% felt that there was a need to introduce additional or new prohibitions.
• A common theme in the responses from those in favour of maintaining the current provisions was that the current provisions provide sufficient safeguards for vulnerable groups. The current provisions are simple and easy to understand. A change in the provisions could place additional financial and administrative burdens on businesses and organisations.
• A common theme in the responses in favour of new provisions is that they will provide an extra safe‑guarding step and further reduce the risk of an unsuitable person being in regulated work.
• Most respondents were from the public and voluntary sectors.
• The majority of respondents believed that maintaining the status quo or creating new provisions would not have any impact on protected equality groups.
• A number of respondents felt that the introduction of new provisions would have an impact on businesses. This impact could be financial and administrative.