Commentary on Sections Section: 306: Limit on period of detention without charge of suspected terrorists Section 328: Criminal record certificates: amendments of Part 5 of Police Act 1997
709.Section 328 introduces Schedule 35 which makes a number of amendments to Part 5 of the Police Act 1997 (‘the 1997 Act’) which governs the disclosure of criminal and other records by the Criminal Records Bureau (CRB) for employment vetting purposes. The CRB’s higher level disclosure service was launched in March 2002. This is intended for employers and voluntary organisations seeking to appoint persons to work with children or vulnerable adults or involving other sensitive positions of trust.
710.The CRB experienced some initial difficulties in meeting its published performance standards; as a result, in September 2002, the Home Secretary appointed an Independent Review Team to take a fundamental look at the operations of the CRB. The Home Secretary announced the Government’s response to the Review Team’s recommendations on 27th February 2003 (Official Report, col: 32WS-36WS). The amendments to the 1997 Act implement a number of the Review Team’s recommendations.
711.Paragraphs 2, 3(2)(b) and 4(2)(b) of Schedule 35 amend sections 112(1)(a), 113(1)(a) and 115(1)(a) of the 1997 Act respectively to enable regulations to be made prescribing the manner in which an application for a disclosure must be made. In the case of standard and enhanced disclosures, the intention is to require applications to be submitted to the CRB via a registered body (which is already the current practice) and, in due course, to require applications to be submitted electronically. Paragraphs 3(2)(c) and 4(2)(c) amend sections 113(1)(b) and 115(1)(b) respectively so that regulations may also be made prescribing the manner in which the fee for a standard or enhanced disclosure application is to be payable. Again, it is the intention to require the fee to be routed to the CRB via the registered body countersigning the application, although liability for payment will remain with the individual applicant.
712.Paragraph 3(3) and 4(5) insert a new subsection into sections 113 and 115 respectively. The purpose is to enable the CRB to issue a standard disclosure where an enhanced disclosure has been applied for but the application does not satisfy the requirements for such a disclosure, and vice versa. The CRB will first and foremost seek to educate and support registered bodies to ensure that they correctly apply the criteria for each type of disclosure; accordingly it is intended that this reserve power will only be used in exceptional circumstances.
713.Paragraph 4(3) and (4) repeal the existing subsections in section 115 which determine who qualifies for an enhanced disclosure. The intention is that, henceforth, the criteria will be specified in regulations so that there is the flexibility to alter them as circumstances require, for example, because of a change to the risk assessment in relation to a given occupational group. Paragraph 5 makes a similar change to section 116 of the 1997 Act which relates to applications for enhanced disclosures for judicial appointments and Crown employment.
714.Paragraphs 6 to 9 enable the CRB to set clear standards for registered bodies, particularly in respect of validating the identity of applicants for disclosures, and confers powers on the CRB to suspend or revoke registration where such standards are not complied with.
715.Paragraph 6 amends section 120 of the 1997 Act which relates to registered persons. Section 120(2) of the 1997 Act requires the Secretary of State to register any person who satisfies the requirements for registration. These requirements are set down either in regulations (hitherto made under section 120(3), but in future made under new section 120ZA(2) as inserted by paragraph 6 of the Schedule) or in section 120(4) to (6) of the 1997 Act which relate to the legal status of the person applying for registration and whether that person can ask (on his own or another person’s behalf) an exempted question under the provisions of the Rehabilitation of Offenders Act 1974. The revised section 120(2) sets down an additional requirement, namely that the applicant has not had his registration cancelled in the past two years.
716.Paragraph 7 inserts new section 120ZA into the 1997 Act. This new section replaces and extends the existing power to make regulations about registration. In particular, the new power enables regulations to make provision for the registration of any registered body to be subject to conditions. It is envisaged that such conditions would require a registered body to take specified steps to verify the identity of any applicant for disclosure, to ensure that disclosure applications are properly completed and to ensure that adequate security measures are in place to control the use of, access to and security of disclosures. Registered bodies will also be required to pay disclosure application fees monthly in arrears rather than submitting a separate fee with each individual application. A condition might also be imposed requiring applications for disclosure to be submitted to the CRB by electronic means. It would be open to a registered body to delegate the identity validation function to one or more agents (e.g. a Local Education Authority may delegate the function to headteachers of maintained schools), but would retain overall responsibility for ensuring that identity checks were properly carried out.
717.Paragraph 8 makes a consequential amendment to the heading of section 120A of the 1997 Act (refusal and cancellation of registration).
718.Paragraph 9 inserts new sections 120AA and 120AB into the 1997 Act. New section 120AA sets out further grounds on which a registration may be refused, suspended or cancelled, while new section 120AB sets out the procedure to apply in the event of a suspension or cancellation. Under new section 120AA(1) registration may be refused where an applicant is likely to countersign fewer than a prescribed minimum number of disclosure applications per year. A registration may be suspended or cancelled where a registered body is no longer likely to wish to countersign disclosure applications (this ground for cancellation may currently be found in regulations); has not countersigned the prescribed minimum number of applications in the past 12 months; or has failed to comply with any condition attached to registration. Before a decision to suspend or cancel a registration takes effect, a registered body must be given an opportunity to submit representations. If, following consideration of the representations, the decision is confirmed the registered body has a 6 week period of grace before the suspension or cancellation takes effect to allow time for alternative arrangements for counter-signing disclosure applications to be put in place. Regulations may be made to extend (or reduce) the 6 week period of grace.
719.Paragraph 10 inserts new section 122A into the 1997 Act. This enables the Secretary of State to delegate his functions under Part 5 of the 1997. Act to another person (e.g. to a Public Private Partnership provider or Managed Service provider). The Home Secretary is precluded from delegating his powers to make regulations or to publish or revise a code of practice.
720.Paragraph 11 inserts a new section 124A into the 1997 Act. This new section makes it an offence for any person to whom the Secretary of State has delegated functions under new section 122A (e.g. a PPP provider or his employees) to disclose any personal information obtained in connection with those functions. There are certain exceptions, including where the disclosure is made in the course of the person’s duties.