PART 1 Introduction

Citation and interpretation

1.–(1) This Order may be cited as the Safeguarding Vulnerable Groups Act 2006 (Commencement No.6, Transitional Provisions and Savings) Order 2009.

(2) In this Order–

"the Act" means the Safeguarding Vulnerable Groups Act 2006;

"the 2008 Order" means the Safeguarding Vulnerable Groups Act 2006 (Transitional Provisions) Order 2008(2);

"CSA" means the Care Standards Act 2000(3);

"CJCSA" means the Criminal Justice and Court Services Act 2000(4);

"disqualification order" means an order made under section 28, 29 or 29A of CJCSA;

"EA 2002" means the Education Act 2002(5);

"POCA" means the Protection of Children Act 1999(6);

PART 2 Commencement

Provisions coming into force on 12th October 2009

2.–(1) 12th October 2009 is the day appointed for the coming into force of the provisions of the Act specified in column 1 of the Schedule.

(2) Where a particular purpose is specified in column 2 of the Schedule in relation to any such provision, the provision shall come into force on that date for that purpose only.

Repeal of provisions of the Criminal Justice and Courts Services Act 2000

3.–(1) The repeal of the remaining provisions of CJCSA by section 63(2) of, and Schedule 10 to, the Act shall come into force on 12th October 2009 for the purposes specified in the following provisions of this article.

(2) The provisions of CJCSA referred to in paragraph (1) shall cease to have effect for the purposes of enabling a disqualification order to be made in relation to a person who is barred from regulated activity by virtue of section 3(2) of the Act.

(3) Section 35 of CJCSA shall cease to have effect for the purpose of making it an offence for a person knowingly to apply for, to offer to do, to accept or to do any work in a regulated position (within the meaning of section 36 of that Act) where–

(a) the person falls within paragraph (4), and

(b) is disqualified from working with children only by reason of a disqualification order falling within paragraph (5).

(4) A person ("P") falls within this paragraph if P–

(a) is or has at any time been barred from regulated activity by virtue of section 3(2) of the Act; or

(b) has been included in the children´s barred list pursuant to article 2(2)(a) of the 2008 Order, but is removed from that list by IBB in accordance with paragraph 2(4) of that Order.

(5) A disqualification order falls within this paragraph if–

(a) P was subject to the disqualification order immediately before IBB(7) included P in the children´s barred list; and

(b) at that time IBB was aware that P was subject to the disqualification order.

(6) In paragraph (1) "the remaining provisions of CJCSA" means the provisions of that Act mentioned in Schedule 10 to the Act other than those referred to in the Schedule to this Order.

Repeal of provisions of the Education Act 2002

4.–(1) The repeal of the remaining provisions of EA 2002 by section 63(2) of, and Schedule 10 to, the Act shall come into force on 12th October 2009 for all purposes except as provided in paragraph (2).

(2) The provisions of EA 2002 referred to in paragraph (1) shall continue to have effect for the purpose of enabling the Secretary of State to make a direction under section 142(1)(a) of that Act where–

(a) the effect of the direction is to prevent a person from taking part in the management of an independent school, and

(b) the direction is made on grounds relating to a person´s misconduct pursuant to section 142(4)(c) of that Act.

(3) In paragraph (1) "the remaining provisions of EA 2002" means the provisions of that Act mentioned in Schedule 10 to the Act other than those referred to in the Schedule to this Order

PART 3 Transitional provisions and savings

Transitional provisions and savings: Protection of Children Act 1999

5.–(1) Despite the commencement under article 2 of the repeal of–

(a) provisions of POCA, and

(b) the other related provisions,

those provisions continue to have effect in relation to a person falling within paragraph (4) ("P") for any of the purposes specified in paragraph (2) until one of the matters described in paragraph (5) applies to P.

(2) The provisions mentioned in paragraph (1) continue to have effect for the purposes of–

(a) keeping the list under section 1 of POCA;

(b) including P in that list;

(c) providing for the effect of P´s inclusion in that list in accordance with section 7 of that Act;

(d) determining whether P is to be removed from that list and providing for P´s removal.

(3) For the purposes of paragraph (2)(d), the reference to determining whether P is to be removed from the list includes consideration of whether P should be removed on an appeal under section 4 of that Act or on an application under section 4A of that Act.

(4) P is a person–

(a) who immediately before 12th October 2009 is included (provisionally or otherwise) in the list kept under section 1 of POCA, and

(b) in relation to whom none of the matters described in paragraph (5)(b) to (e) has occurred before that date.

(5) The matters referred to in paragraph (1) are–

(a) P is removed from the list kept under section 1 of POCA in accordance with a provision of that Act;

(b) P is included in the children´s barred list pursuant to article 2(2)(a) of the 2008 Order and either–

(i) IBB is not required under article paragraph (2)(b) of article 2 of that Order to give P the opportunity to make representations as to why P should be removed from that list, or

(ii) where IBB is required under that paragraph to give P the opportunity to make such representations, IBB decides under that article not to remove P from that list;

(c) P is included in the children´s barred list other than in accordance with article 2(2)(a) of the 2008 Order;

(d) in accordance with article 2(4) of the 2008 Order, IBB removes P from the children´s barred list;

(e) where P is referred to IBB in accordance with article 3 of the 2008 Order, IBB makes a decision not to include P in the children´s barred list.

(6) Section 3 of the Act does not apply to P until the provisions referred to in paragraph (1) cease to have effect in relation to P in accordance with this article.

(7) In paragraph (1) "the other related provisions" means–

(a) the following provisions of CSA–

(i) sections 82(4) to (7), 83(4) to (7) and 85(1) to (6), in so far as those provisions apply by virtue of sections 2C of POCA to the inclusion of persons in the list kept under section 1 of that Act; and

(ii) sections 94 to 98 and paragraph 26 of Schedule 4;

(b) paragraphs 155, 157 and 158 of Schedule 7 to CJCSA;

(c) paragraph 121 of Schedule 21 to EA 2002, in so far as the amendments made by those provisions are relevant to the provisions of section 7 of POCA affecting persons included in the list under section 1 of that Act;

(d) paragraphs 122(a) and 123 of Schedule 21 to EA 2002;

(e) section 189(1) of the Health and Social Care (Community Health and Standards) Act 2003(8), in so far the amendment made by that provision is relevant to the provisions of section 7 of POCA affecting persons included in the list under section 1 of that Act.

Transitional provisions and savings: Care Standards Act 2000

6.–(1) Despite the commencement under article 2 of the repeal of–

(a) provisions of CSA, and

(b) the related provisions of POCA,

those provisions continue to have effect in relation to a person falling within paragraph (4) ("P") for any of the purposes specified in paragraph (2) until one of the matters described in paragraph (5) applies to P.

(2) The provisions mentioned in paragraph (1) continue to have effect for the purposes of–

(a) keeping the list under section 81 of CSA;

(b) including P in that list;

(c) providing for the effect of P´s inclusion in that list in accordance with section 89 of that Act;

(d) determining whether P is to be removed from that list and providing for P´s removal.

(3) For the purposes of paragraph (2)(d), the reference to determining whether P is to be removed from the list includes consideration of whether P should be removed on an appeal under section 86 of that Act or on an application under section 87.

(4) P is a person–

(a) who immediately before 12th October 2009 is included (provisionally or otherwise) in the list kept under section 81 of CSA, and

(b) in relation to whom none of the matters described in paragraph (5)(b) to (d) has occurred before that date.

(5) The matters referred to in paragraph (1) are–

(a) P is removed from the list kept under section 81 of CSA in accordance with a provision of that Act;

(b) P is included in the adults´ barred list pursuant to article 4(2)(a) of the 2008 Order and either–

(i) IBB is not required under paragraph (2)(b) of article 4 of that Order to give P the opportunity to make representations as to why P should be removed from that list, or

(ii) where IBB is required under that paragraph to give P the opportunity to make such representations, IBB decides under that article not to remove P from that list;

(c) IBB includes P in the adults´ barred list other than in accordance with article 4(2)(a) of the 2008 Order;

(d) in accordance with article 4(4) of the 2008 Order, IBB removes P from the adults´ barred list.

(6) Section 3 of the Act does not apply to P until the provisions referred to in paragraph (1) cease to have effect in relation to P in accordance with this article.

(7) In paragraph (1) "the related provisions of POCA" means sections 2(4) to (7), 2A(3), 2B(1) to (6) and 2D(1) and (2) of that Act, in so far as those provisions apply by virtue of section 92 of CSA to the inclusion of persons in the list kept under section 81 of that Act.

Transitional provisions and savings: Education Act 2002

7.–(1) Despite the commencement by this Order of the repeal of–

(a) the provisions of EA 2002 referred to in article 4,

(b) section 7 of POCA (in so far as that section has effect in relation to persons subject to a direction under section 142 of the EA 2002), and

(c) the other related provisions,

those provisions continue to have effect in relation to a person falling within paragraph (3) ("P") for any of the purposes specified in paragraph (2) until one of the matters described in paragraph (4) applies to P.

(2) The provisions mentioned in paragraph (1) continue to have effect for the purposes of–

(a) enabling a direction under section 142 of EA 2002 ("a direction") to be made and to have effect in relation to P;

(b) providing for the effect of a direction in relation to P under section 7 of POCA;

(c) determining whether a direction in relation to P should be revoked under section 142(6) of EA 2002 (revocation by the Secretary of State) or section 144 of that Act (revocation by the First-tier Tribunal on review or on appeal) and revoking such a direction;

(d) giving effect to regulations under the provisions of EA 2002 mentioned in paragraph (1)(9) in so far as the regulations are relevant for the purposes specified in sub-paragraphs (a) to (c).

(3) P is a person–

(a) who immediately before 12th October 2009–

(i) is included (provisionally or otherwise) in the list kept under section 1 of POCA, or

(ii) is not included in that list but is subject to a direction made under section 142 of EA 2002 on the grounds referred to in subsection (4)(b) to (e) of that section; and

(b) in relation to whom none of the matters described in paragraph (4)(b) to (e) has occurred before that date.

(4) The matters referred to in paragraph (1) are–

(a) a direction made in relation to P is revoked under section 142(6) or 144 of EA 2002;

(b) P is included in the children´s barred list pursuant to article 2(2)(a) of the 2008 Order and either–

(i) IBB is not required under paragraph (2)(b) of article 2 of that Order to give P the opportunity to make representations as to why P should be removed from that list, or

(ii) where IBB is required under that paragraph to give P the opportunity to make such representations, IBB decides under that article not to remove P from that list;

(c) P is included in the children´s barred list other than in accordance with article 2(2)(a) of the 2008 Order;

(d) in accordance with article 2(4) of that Order, IBB removes P from the children´s barred list;

(e) where P is referred to the IBB in accordance with article 3 of the 2008 Order, IBB makes a decision not to include P in the children´s barred list.

(5) Section 3 of the Act does not apply to a person falling within paragraph (3)(a)(ii) until the provisions referred to in paragraph (1) cease to have effect in relation to that person in accordance with this article.

(6) In paragraph (1) "the other related provisions" means–

(a) the following provisions in so far as the amendments made by those provisions are relevant to the provisions of section 7 of POCA affecting persons subject to a direction under section 142 of EA 2002–

(i) paragraph 121 of Schedule 2 to EA 2002;

(ii) section 189(1) of the Health and Social Care (Community Health and Standards) Act 2003(10);

(b) section 9(2)(b) of POCA; and

(c) paragraph 122(a) of Schedule 21 to EA 2002.

Article 2

SCHEDULE Provisions coming into force on 12th October 2009

EXPLANATORY NOTE

(This note is not part of the Order)

Article 2 of the Order brings into force section 3 of the Safeguarding Vulnerable Groups Act 2006 ("the Act") which has the effect of barring from regulated activity a person who is included in one of the barred lists under section 2 of the Act, namely the children´s barred list and the adults´ barred list. The barred lists are established under section 2 of the Act and are maintained by the Independent Barring Board ("IBB") which is a body established under section 1 of the Act.

Article 2 also brings into force sections 7, 9 and other sections in the Act that relate to the offences created under the Act in relation to a person who engages in regulated activity whilst on one of the barred lists.

This Order also brings into force the duties to refer prescribed information to the IBB under sections 35, 36, 39, 41 and 45 of the Act. Duties under sections 37, 40, 42 and 46 to provide IBB with prescribed information on request came into force on 20th January 2009 (S.I. 2009/39). The Safeguarding Vulnerable Groups Act 2006 (Prescribed Information) Regulations 2008 (S.I. 2008/3265) specifies the information prescribed in relation to the duties to refer and to provide information on request. Article 2 also commences the offence under section 38 of the Act for failure to comply with any of the duties under section 35, 36 or 37 of the Act to provide information.

Article 3 provides for partial commencement of the repeal of the provisions of the Criminal Justice and Court Services Act 2000 ("CJCSA") from 12th October 2009. The effect of article 3 is that where a person is barred from regulated activity by virtue of section 3 of the Act, no disqualification order under section 28, 29 or 29A of the CJCSA can be made in relation to that person. Article 3 also has the effect of excluding from the scope of section 35 of the CJCSA persons subject to disqualification orders falling within the description in paragraph (5) of article 3. Section 35 of the CJCSA makes it an offence for persons disqualified from working with children to apply for, to offer to do, to accept or to do any work in a regulated position.

Articles 4 provides for the partial commencement of the repeal of provisions in the Education Act 2002. The power of the Secretary of State to make directions under section 142 of that Act is repealed save for the making of a direction on grounds relating to a person´s misconduct that has the effect of preventing a person from taking part in the management of an independent school.

Articles 5 to 7 consist of transitional provisions and savings in relation to individuals who immediately before 12th October 2009 are still subject to the old barring regimes (i.e. those included in the list kept under the Protection of Children Act 1999, the list kept under section 81 of the Care Standards Act 2000 or who are subject to a direction made under section 142 of the Education Act 2002). Where such a person has not been included in the children´s barred list by that date, or where the person has been included in that list under article 2 or 4 of the Safeguarding Vulnerable Groups Act 2006 (Transitional Provisions) Order 2008 (S.I. 2008/473) but no final decision has been taken on their inclusion, the relevant old barring regime will continue to apply instead of section 3 of the Act until one of the events referred to in article 5(5), 6(5) or 7(4) occurs.

NOTE AS TO EARLIER COMMENCEMENT ORDERS

(This note is not part of the Order)