Outer House rules Disclosure Scotland can share safeguarding information with teaching regulator

About this case:

• Citation:
  [2026] CSOH 103
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Richardson

Lord Braid held that section 30(5)(b) of the Protection of Vulnerable Groups (Scotland) Act 2007 gives Scottish ministers, acting through Disclosure Scotland, a discretion to share appropriate information with the GTCS beyond merely identifying the individual and stating that they are being considered for listing.

Johnston KC and Blair, instructed by Anderson Strathern, appeared for the GTCS. Crawford KC and Jajdelski, instructed by the Scottish government, appeared for the respondents. The petitions concerned two registered teachers, anonymised as T and W.

Disclosure Scotland notified the GTCS in December 2025 that referrals had been received concerning both teachers and that they were under consideration for inclusion in the children’s and adults’ lists maintained under the 2007 Act. In neither case did it explain why the individual was being considered for listing, describe the allegations or provide the evidence which had triggered consideration.

The GTCS sought that information so that it could decide whether to begin fitness to teach proceedings and, if necessary, consider imposing a temporary restriction on the teacher’s registration. Disclosure Scotland maintained that section 30(5) did not give it power to provide the information.

Fitness to teach investigations

The GTCS is responsible for investigating whether registered teachers are fit to teach and must remove a teacher from the register where it concludes that the individual is unfit. Its evidence was that it investigates allegations sufficiently serious to present a risk to learners or colleagues, or to public confidence in the profession. If an investigation is opened, it may consider applying for a temporary restriction order limiting the teacher’s registration pending determination of the case.

The court heard that the regulator was heavily dependent on information from other organisations. The GTCS said Disclosure Scotland’s refusal to share referral information had sometimes delayed its ability to investigate serious safeguarding concerns. Examples were given involving teachers other than T and W where the GTCS learned only later of allegations involving sexual offences, including offences concerning children.

The regulator also highlighted a circularity in the system: Disclosure Scotland might ask the GTCS for information about its own investigation while refusing to provide information it already held which could enable that investigation to begin.

Meaning of ‘any other information’

The dispute centred on section 30(5)(b) of the 2007 Act.

Section 30 requires ministers to notify specified persons, including relevant regulatory bodies such as the GTCS, when an individual is being considered for listing. Subsection 5 provides that such a notice may contain certain details about the circumstances in which a person was barred or considered for listing and “any other information about the individual which ministers think appropriate”.

Disclosure Scotland argued that “other” meant information other than that falling within section 30(5)(a). Referral information which might ultimately inform a listing decision was therefore said not to be “other information”. The GTCS argued that the phrase had a broader meaning and permitted Disclosure Scotland, where appropriate, to provide information which had led to the individual being considered for listing. Its case was not that all referral material had to be disclosed, but that the legislation gave ministers a discretion to do so.

Separate statutory schemes

Lord Braid accepted the GTCS interpretation.

He acknowledged that section 30(5)(b) was “not drafted as clearly as it might have been” and that the 2007 Act did not fit entirely seamlessly with the Disclosure Scotland Act 2020. However, he held that the listing regime under the 2007 Act and the disclosure regime under the 2020 Act were separate statutory schemes. The fact that particular information could not be provided to the GTCS in one capacity under the 2020 Act did not mean that the same information could not be provided to it in its different capacity as a professional regulator under the 2007 Act.

Lord Braid stressed that the GTCS was not seeking a Level 2 disclosure in contravention of the 2020 Act. Its position was simply that Disclosure Scotland had discretion to provide more information than it currently did when notifying the regulator that an individual was under consideration for listing.

Public protection purpose

Lord Braid said the 2007 Act had to be read in light of its purpose of protecting the public, including preventing individuals unsuitable to work with children from doing so. It was consistent with that purpose that “more, rather than less, information” should be capable of being provided to a regulator, particularly where the listing decision itself might depend partly on an investigation conducted by that body.

The natural meaning of “other”, he said, was that it referred to something additional rather than imposing a restriction. At the stage where a person was merely being considered for listing, section 30(5)(a) was not yet engaged. It was therefore natural to understand “other information” as information additional to the basic notification that the individual was under consideration.

Lord Braid said Disclosure Scotland’s interpretation effectively required the provision to be read as “information other than that specified in paragraph (a)”, which was to “turn the provision on its head”. He also considered that Parliament must have intended notification to enable professional regulators to exercise their statutory functions effectively. Preventing Disclosure Scotland from sharing relevant referral information could frustrate that purpose.

UNCRC reinforced interpretation

Lord Braid held that this interpretation was reinforced by section 24 of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024. Article 19 requires appropriate measures to protect children from abuse by persons responsible for their care.

Lord Braid said a construction permitting Disclosure Scotland, where appropriate, to share safeguarding information with a regulator provided a more effective measure for protecting children than one which prevented it. He noted that under the narrower interpretation a teacher could potentially continue working while the GTCS attempted to obtain elsewhere information already held by Disclosure Scotland which suggested that the individual might pose a risk to children.

There was also an “obvious circularity” in Disclosure Scotland requesting information from the GTCS to assist its own listing decision while maintaining that it lacked power to provide information relevant to the regulator’s investigation. Lord Braid concluded that Disclosure Scotland had “fallen into error” by failing to acknowledge that section 30(5)(b) conferred a discretion to share information with the GTCS.

Disclosure remains discretionary

The court did not hold that Disclosure Scotland must automatically disclose referral information whenever a teacher is being considered for listing. Lord Braid emphasised that the legislation gives ministers a discretion over what information should be shared.

He also rejected the proposition that disclosure under section 30(5) would necessarily infringe an individual’s ECHR rights. The 2007 Act allowed Disclosure Scotland to decide both whether information should be disclosed and what information it was appropriate to provide. That discretion required a balancing exercise in each case.

Declarator to be finalised

The GTCS sought reduction of Disclosure Scotland’s decisions together with a declarator confirming the scope of its power to share information. Lord Braid considered that declaratory relief was appropriate because the disagreement between the parties had “festered for some ten years” and Disclosure Scotland’s position that it had no discretion was erroneous.

He was not satisfied that the GTCS’s proposed wording should be adopted in full and put the case out by order for further discussion of the precise terms of the declarator. Expenses were also to be dealt with at that hearing.