Cornwall Council has been warned that it cannot implement a policy of blanket disclosure and barring checks on all councillors.
Last week the council’s constitution and governance committee was asked to approve a policy under which criminal records checks would be made on all councillors when elected or re-elected, or when they disclosed a relevant offence or incident.
But a letter from the Disclosure and Barring Service, which carries out checks on individuals who work with children or vulnerable adults, said this approach would be unlawful.
Cornwall proposed the introduction of blanket checks following controversy in January over the council’s decision to name Cllr Alex Folkes as a threat to children.
Cllr Folkes resigned from the Liberal Democrats but continues to sit as a councillor and has protested his innocence, saying purchases of indecent images of children showed on his credit card only after it was cloned in 2006 and that police took no action against him. He has threatened legal proceedings against Cornwall.
In a letter to the council, DBS relationship management officer Sue O’Neill said powers to blanket check councillors on authorities that deal with education and social services had been removed by the Protection of Freedoms Act 2012.
Councillors could be checked only where their roles had been “assessed individually to confirm whether they meet the eligibility criteria”, Ms O’Neill said.
“Blanket-checking of all roles should not be implemented without establishing this,” she added.
If Cornwall made a blanket application to check councillors “you would be in breach not only of the DBS [code of practice] and the Police Act 1997 (Criminal Records) (Registration) Regulations 2006,” she wrote.
“You would also be sighting information you are not privy to see.”
In its letter to the DBS, Cornwall said the recommendation to consider “enhanced DBS checks on all members” had arisen from an LGA report following the row over Cllr Folkes’ status.
But Ms O’Neill warned: “It is legislation which provides entitlement to carry out a DBS check, not an LGA recommendation or safeguarding policy.”
The council has deferred a decision on the introduction of blanket checks pending further discussions with the DBS on what is legally permitted.