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Disclosure (Scotland) Bill

Overview

This Bill aims to simplify the process for disclosing criminal history information about people.

It proposes changes to whether and how certain offences are disclosed. An example of this is offences committed when a person was under 18.

It also proposes new appeal processes for which convictions are disclosed.

It would also make changes to protection of vulnerable groups (PVG) checks.

The Bill would mean that anyone who wants to work with children, young people or vulnerable adults would have to be a member of the PVG scheme. It would be against the law for employers and individuals not to do this.

You can find out more in the Explanatory Notes document that explains the bill.

Why the Bill was created

People and employers applying for disclosures and criminal record checks can find the processes complicated. This Bill aims to simplify these processes.

The Scottish Government wants to find the right balance between protecting the public and allowing people to move on from offending.

You can find out more in the Policy Memorandum document that explains the bill.

The Bill at different stages

'Bills' are proposed laws. Members of the Scottish Parliament (MSPs) discuss them to decide if they should become law.

Here are the different versions of the Bill:

The Bill as introduced

Disclosure (Scotland) Bill

The Scottish Government sends the Bill and the related documents to the Scottish Parliament.

Bill is at ScottishParliament.SC.Feature.BillComponents.Models.BillStageModel?.DefaultBillStage?.Stage_Name stage.

Where do laws come from?

The Scottish Parliament can make decisions about many things like:

  • agriculture and fisheries
  • education and training
  • environment
  • health and social services
  • housing
  • justice and policing
  • local government
  • some aspects of tax and social security

These are 'devolved matters'.

Laws that are decided by the Scottish Parliament come from:

Government Bills

These are Bills that have been introduced by the Scottish Government. They are sometimes called 'Executive Bills'.

Most of the laws that the Scottish Parliament looks at are Government Bills.

Hybrid Bills

These Bills are suggested by the Scottish Government.

As well as having an impact on a general law, they could also have an impact on organisations' or the public's private interests.

The first Hybrid Bill was the Forth Crossing Bill.

Members' Bill

These are Bills suggested by MSPs. Every MSP can try to get 2 laws passed in the time between elections. This 5-year period is called a 'parliamentary session'.

To do this, they need other MSPs from different political parties to support their Bills.

Committee Bills

These are Bills suggested by a group of MSPs called a committee.

These are Public Bills because they will change general law.

Private Bills

These are Bills suggested by a person, group or company. They usually:

  • add to an existing law
  • change an existing law

A committee would be created to work on a Private Bill.

Bill stage timeline

The Disclosure (Scotland) Bill is currently at Stage 1.

Introduced

The Scottish Government sends the Bill and related documents to the Parliament.

Disclosure (Scotland) Bill as introduced

Related information from the Scottish Government on the Bill

Opinions on whether the Parliament has the power to make the law (Statements on Legislative Competence)

Information on the powers the Bill gives the Scottish Government and others (Delegated Powers Memorandum)

Scottish Parliament research on the Bill 

Stage 1 - General principles

Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.

Have your say

 The deadline for sharing your views on this Bill has passed. Read the views that were given.

Ministerial Statement

Before Stage 1 Maree Todd MSP, the Minister for Children and Young People, gave a statement on the Bill

Committees involved in this Bill

Who examined the Bill

Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.

It looks at everything to do with the Bill.

Other committees may look at certain parts of the Bill if it covers subjects they deal with.

Who spoke to the lead committee about the Bill

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First meeting transcript

The Convener

Item 3 is the committee’s first evidence session on the Disclosure (Scotland) Bill. We will begin by hearing from the Scottish Government bill team, which includes officials from Disclosure Scotland. I welcome Kevin Lee, who is the bill manager at Disclosure Scotland; Gerard Hart, who is the director of protection services and policy at Disclosure Scotland; and Ailsa Heine, who is a senior principal legal officer in the Scottish Government’s legal directorate. I invite the panel to make some opening remarks.

Kevin Lee (Disclosure Scotland)

Good morning, convener and committee members. Thank you for the opportunity to make some opening remarks on the bill.

The bill builds on the reforms that have been achieved under the Age of Criminal Responsibility (Scotland) Act 2019 and the Management of Offenders (Scotland) Act 2019, both of which were recently passed by the Scottish Parliament.

The bill’s main purpose is to strengthen the barring service in order to maintain the Scottish Government’s ability to protect the most vulnerable people in society while delivering a range of positive and proportionate reforms to the disclosure regime. Since November 2016, when the Deputy First Minister and Cabinet Secretary for Education and Skills announced a review of Scotland’s disclosure regime, we have engaged extensively with stakeholders to achieve that balance.

Last summer, following preconsultation engagement with more than 300 individuals and organisations and an online survey that generated more than 800 responses, we undertook the statutory public consultation on disclosure. The consultation document was distributed widely to stakeholders, including all organisations that are registered with Disclosure Scotland. We received 353 responses from a broad cross-section of Scottish life, including individuals, charities, sports associations, advocacy groups and private sector businesses. The engagement with our stakeholders has helped to shape the bill that is before Parliament.

Part 1 of the bill creates the legislative framework for the state disclosure of criminal history and other information, reducing the number of disclosure products in order to streamline and simplify the process for applicants for disclosure.

The bill gives disclosure applicants greater control over the sharing of disclosure information by separating into two distinct stages the application and the individual’s request to make that information available to a third party. That is an important improvement on the current process that will allow individuals to apply for a review of disclosure information before it is seen by a third party.

For review applications, the bill establishes new procedures to have childhood conviction information, other relevant information and removable convictions taken off a person’s disclosure. It also sets out the role of the independent reviewer, who will make determinations on such review applications.

On childhood convictions, the bill provides that convictions for offences that were committed while the offender was under 18 will no longer automatically be disclosed. Instead, the Scottish Government will have to decide in each case whether to include such information. If it is included, the Government will need to give the applicant reasons why the information is relevant to the disclosure purpose and ought to be disclosed.

The Scottish Government recognises the important role that other relevant information—known as ORI—from the police plays in safeguarding, so it is vital that it continue to be available to protect the public. The main reform in the bill is the introduction of statutory guidance, which will be issued by Scottish ministers to the chief constable, who must have regard to it when exercising functions under that part of the bill. There will also be statutory review mechanisms to have ORI removed from a disclosure. In relation to removable convictions, the bill will end the current process of people having to apply to the sheriff and will replace it with an internal application to Disclosure Scotland, followed by a right to apply to the independent reviewer.

In summary, the bill provides for a two-step process in which decisions that are made by Disclosure Scotland in relation to childhood convictions or removable convictions or by the chief constable in relation to ORI may be subject to independent review, followed by a right of appeal to the sheriff on a point of law only. That will all take place before the disclosure is made available to a third party. We will ensure that the process is less burdensome for the applicant and that it provides a single streamlined outcome for the applicant.

The bill also provides that nobody who is under the age of 16 should have access to the state disclosure system. That mirrors arrangements in the rest of the United Kingdom. Provision is made for exceptions when it is considered to be appropriate in the circumstances to provide disclosure. However, there is an absolute prohibition on anyone under 16 joining the protecting vulnerable groups scheme.

I turn to part 2 and the changes that are being made to the protecting vulnerable groups scheme. The bill introduces a mandatory PVG scheme for people who work with vulnerable groups—something for which the Parliament’s Health and Sport Committee said there was a “compelling case” in its 2017 report, “Child Protection in Sport”.

The PVG scheme is currently a lifetime membership scheme. In its present form, it will simply continue to increase in size. The bill aims to address that by introducing renewable time-limited membership of five years. The bill will replace the concept of doing “regulated work” with a list of core activities that give rise to “regulated roles” that trigger PVG scheme membership—for paid and voluntary activities—with the intention of ensuring that the scheme focuses on those who hold “power or influence over” children and protected adults.

In responding to the well-documented episodes of exploitation and abuse in the international aid sector, the bill will also bring certain regulated roles that are outside Scotland into the scope of the PVG scheme. The bill also makes provision for Scottish ministers to have new powers to impose conditions and limitations on scheme members while they are under consideration for listing. Where those apply, they will ensure that vulnerable people are protected from individuals who pose a serious risk of harm.

Finally, local authorities will be able to make referrals to Disclosure Scotland within the context of their normal adult and child protection roles when there is no employer involved that can make a referral under the Protection of Vulnerable Groups (Scotland) Act 2007. That addresses the safeguarding gap that exists in the care environment, where, in particular, self-directed support has been much more widely used since 2007.

My colleagues and I are pleased to take any questions.

Iain Gray (East Lothian) (Lab)

Can you give a bit more detail of the thinking behind the proposed move from lifetime membership to time-limited five-year membership of the PVG scheme?

Kevin Lee

The PVG scheme has now been in operation for eight years. In that time, we have seen it become inflated beyond the size that it was originally thought that it would be. There are more than 1.2 million people in the scheme right now, and our research tells us that as many as 20 per cent of them are no longer doing regulated work. As such, we have a situation in which Disclosure Scotland is monitoring those individuals daily with no safeguarding return. That is the thinking behind time-limited membership.

Iain Gray

Given that membership of the scheme is monitored all the time, if members are not using—or do not need—membership at a given moment, that creates a burden for Disclosure Scotland. Is that the key issue?

Kevin Lee

Yes, carrying out the monitoring comes at a cost. However, there is also intrusion into people’s lives when there is no need for it, because they are not doing regulated work.

Iain Gray

Would you say that, largely, it is an administrative measure to avoid the scheme ballooning out of control?

Kevin Lee

Yes.

Iain Gray

That is fair enough, but it has an impact on the members of the scheme because those who are using their PVG membership will have to renew it every five years. What are the likely consequences for them in respect of the cost and burden of reapplication?

Kevin Lee

In respect of having to do the checks every five years, we have seen that organisations have already introduced their own recurring checks. The Care Inspectorate recommends that it is good practice that organisations do a check every three years. We can see from our data that organisations, including voluntary organisations, are doing that.

Gerard Hart (Disclosure Scotland)

It is also worth saying that we have tried many different ways to get people to leave the PVG scheme voluntarily when they are not doing regulated work. We have tried writing out to tens of thousands of people, suggesting that, but the returns were very limited. It is also reputationally dangerous for the PVG scheme to get so large that it no longer bears any relation to the number of people who are doing regulated work in Scotland.

The forthcoming fees consultation and the work on how that will all be designed in co-production with the various employer groups and employees is an opportunity for us to think about different ways to add value to the scheme during that five-year tenure.

Iain Gray

I am sorry, but what do you mean by that?

Gerard Hart

We can think about different ways in which the scheme could be deployed. For example, one of the policy ideas is that, in return for a fee that is payable over five years, an individual might not have to pay again to use the scheme in those five years. If that were the case, it would benefit lots of workers out there who are locum workers or who have low-paid jobs and work on multiple sites, who have to pay again and again. The Government is very keen to have a conversation with stakeholders about how driving value into the new model of five-year membership could be achieved. There will be a consultation process and there is on-going dialogue with unions and other organisations and employers about how that could be done.

Iain Gray

I will track back to the daily monitoring. Is the suggestion that that will continue but that you will control the size of the membership?

Kevin Lee

Yes.

Iain Gray

You are not replacing daily monitoring.

Kevin Lee

No.

Liz Smith (Mid Scotland and Fife) (Con)

Before I ask my question, I have a quick follow-up to Iain Gray’s question. Is it incumbent on the person who has the PVG to follow it up with their organisation? Do they have to pay again to do that? What is the process?

Kevin Lee

The bill allows a sort of buffer period: the bill says that before the end of the five years, Disclosure Scotland has to contact the individual scheme member and the organisations that are associated with their scheme membership to let them know that the membership is about to expire and to ask whether they still need to be in the scheme. After that, the renewals process can start.

Liz Smith

Is that at a cost to the individual?

Kevin Lee

As Gerard Hart suggested, there is a separate piece of work that we need to do in co-operation with unions and employers to understand how that model should work. At the moment, there are questions about how the current model works, because we can see that individuals who pay for the scheme themselves are having to pay £59, or £18 multiple times, because they move around and new organisations want access to their full disclosure. There is work to be done to understand whether we have the right model.

All that the bill does is provide for ministers to set the period at five years.

10:15  



Gerard Hart

There is also an important point of principle. Over the past few years, when we have done customer research, we have repeatedly found that many people do not understand that they are in a membership scheme. They think that they have a disclosure, which is the bit of paper that they have. Some of them do not understand that we are then monitoring them every single day, uploading millions of records to our systems and matching them against existing records to see whether anything has changed. We need to rebrand PVG and move it away from being a disclosure product to being a membership product. With a membership product, people expect to get value: they expect to have control over their information and to be able to use it in a productive way. In taking things forward, we are thinking about such design principles.

For a membership product to succeed, the burden to pay for it initially would normally rest with the member. However, members could have an arrangement with their employers to reimburse that, or another arrangement. Currently, the law says that somebody pays—it does not say who will pay; it is ambiguous about that. However, we think that that should probably change.

Liz Smith

I make the point because the most recent two times—some years ago—that we have had a discussion about PVG in the committee, the cost factor was important. There is an implication that, in some institutions—for example, schools—the cost falls on the school or local authority. If we ask for membership to be renewed every five years, as opposed to having lifetime membership, there are cost implications. It would be helpful if, at some stage, the bill team could analyse the likely costs of that.

Gerard Hart

Some analysis has been done—we have an understanding of what the impact might be. As Kevin Lee said, in some cases local authorities pay fees and in others they do not. There is not a homogeneous position across the country on who pays fees for PVG.

That said, it is clear that in any fees structure there are winners and losers. Some people would have one disclosure and never darken our door again for another disclosure. Under a five-year model, perhaps they would lose. However, because of the gig economy, people—including locum workers such as supply teachers, doctors and nurses—are increasingly changing their place of work and are using the scheme more and more often in a five-year period. On balance, those people will be winners. There will be swings and roundabouts with this model.

Liz Smith

Convener, it would be helpful if that information could be shared with the committee.

The Convener

If you could provide that information, we would be delighted.

Gerard Hart

Yes—I am happy to do that.

Liz Smith

It is important to put on record that the bill’s reception has been generally positive, although there are issues about the meaning of “relevant” information. In its evidence, the Law Society of Scotland says that

“Given the significant discretion being afforded to Disclosure Scotland to decide whether information in providing Level 1 or Level 2 disclosure is to be included depends on how the respective tests of ‘ought to be included’ and ‘relevant for the purposes of disclosure’ are to be interpreted.”

It also says that

“it is not clear from the Bill whether information must meet either or both of the ‘ought to be included’ and ‘relevant for the purposes of disclosure’ tests”.

Can you explain more about that? There is a genuine concern from the Law Society of Scotland about how that would be addressed.

Kevin Lee

In relation to level 2 disclosure, there are two limbs to the test. The first part is: is it relevant? The second part is about whether something “ought to be disclosed”. That is because, for access to level 2—the high-level information—there will always be a purpose for asking for access to that information. With level 1 disclosures, access can be for any purpose. The simple question is whether it meets the “ought to be disclosed” requirement.

We recognise that the Law Society of Scotland and other gatekeepers will have strong views on how the decisions will be made. We are committed to working in collaboration with stakeholders to develop a robust decision-making framework, so that their views are heard and so that what we deliver is in the best possible condition for stakeholders.

Gerard Hart

We have significant experience of making decisions about the meaning of people’s past criminal behaviour and police information in respect of whether they are suitable to do regulated work with children or protected adults. We and the predecessor team—the disqualified from working with children team—have been doing this for 15 years or more. There is a lot of experience of weighing things up and making decisions. We do that using a structured judgment protocol, and we intend to use that experience, skill and knowledge, as well as appropriate guidance and structured decision-making frameworks, to ensure that the process is fair, consistent and reliable.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I wonder whether you can clear up some confusion in my mind about the difference between the provisions in the bill and those in the Management of Offenders (Scotland) Act 2019, which are based on the date of convictions for under-18s. How do they fit together?

Ailsa Heine (Scottish Government)

In the Management of Offenders (Scotland) Act 2019, the rehabilitation period—or the disclosure period—is based on the date of conviction.

Rona Mackay

Yes.

Ailsa Heine

On the provisions in our bill, the policy is about the behaviour of under-18s; it is not about the date of conviction. Somebody might carry out behaviour when they are under 18, but, for some reason—it might simply be for admin reasons—they might not be prosecuted for a number of months. They might not even be prosecuted for a number of years, because of circumstances in the reporting of the offence. Given that the policy is to ensure that any behaviour of under-18s is not automatically disclosed, the bill has to focus on the date of the behaviour and not on the date of conviction.

Rona Mackay

I am still slightly confused. Which comes first when making a decision? Is it the date of the behaviour?

Ailsa Heine

In decisions about whether to disclose a conviction, we will look at the date of the behaviour.

Rona Mackay

Not the date of conviction.

Ailsa Heine

Not the date of conviction, which might be quite a few years later. If a 17-year-old commits an offence and they are convicted when they are 17, it does not seem appropriate to treat another 17-year-old, who just happens to be convicted after the date—

Rona Mackay

So a judgment is made on the behaviour.

Ailsa Heine

Yes.

Rona Mackay

Okay. Thank you.

Ross Greer (West Scotland) (Green)

I am interested in the proposal to put a lower age limit on PVG scheme membership. I was 15 when I started to do what would be regulated work for my church—that was a few years before PVG scheme membership. Will you explain the rationale behind the change?

Gerard Hart

Certainly. Although we recognise that there are circumstances in which a disclosure may sometimes be appropriate for a person under the age of 16, the idea of PVG involves on-going longitudinal membership of the individual in the scheme. The policy thinking is that, in most circumstances, a child who has something in their background or their circumstances that would lead them to be under consideration for barring under the age of 16 or who was involved with the police in a significant way would already be managed under the getting it right for every child process. The police, social workers and other organisations would link up to provide the care and welfare of that person, as well as the management of any offending behaviour risk.

It was felt that it would not be proportionate to allow young people to come into the PVG scheme and have on-going monitoring overhead when considered against the risk of not allowing that to happen and relying instead on the very robust procedures that are in place for young people’s behaviour when they commit criminal or harmful behaviour. The latter approach allowed us to strike a balance that is consistent with the approach in the rest of the United Kingdom.

On balance, it would be inappropriate to have children under the age of 16 in the scheme, but there will be circumstances in which that is possible. For example, when a family is about to adopt, enhanced disclosures on adult household members are sometimes obtained.

In relation to work, the PVG was felt to be inappropriate for under-16s. Through the children’s hearings system and youth justice arrangements, we have very robust processes to provide for a more proportionate and fairer way to deal with those behaviours than putting them into PVG. That was the policy thinking behind that approach.

Ross Greer

How many people gained membership of the PVG scheme when they were under 16? I accept that many of them will have gained membership when they were 15, not long before that age.

Kevin Lee

Since 2015, around 300 under-16s a year have entered the PVG scheme. The bill will not stop under-16s performing regulated roles; it will disapply the offence provisions that exist in relation to the PVG scheme being mandatory for individuals and organisations. It will still be possible for the current arrangements to apply; the bill will simply stop the on-going monitoring of children.

Ross Greer

I understand that the number of under-16s who have been barred by ministers is very small—it is around half a dozen people. However, there are instances in which individuals have been barred. You have explained the systems that should be in place for monitoring those individuals. Many of those systems are delivered primarily through social work, which is delivered at local authority level. It would certainly not be the first time that a move between local authorities resulted in a break in someone being effectively monitored and effectively supported. Under the proposed change, how will the system ensure that someone who moves from one area to another continues to be monitored appropriately and that, if required, they would undergo a PVG check?

Gerard Hart

I was involved in the work on the disclosure provisions surrounding the Age of Criminal Responsibility (Scotland) Bill, which has now been enacted. A substantial amount of dialogue has taken place on how to build a non-criminal construct to deal with young people under the age of 12 and how to manage their behaviour in a way that is right for victims, right for public protection and right for the young people concerned. There has been a lot of dialogue between the police and social work as part of that process.

The process is transferable. The figures reflect the fact that a highly successful approach is being taken to youth justice in Scotland—there has been a reduction in youth criminality. It is now understood that organisations, when they work together well, have an impact and achieve success. There is evidence that the position is ever improving in that respect.

On balance, taking into account the detriments of having children in the PVG scheme—there are such detriments—it is better to manage those in the existing constructs for youth justice and child welfare than it is to manage them in a criminal context.

Ross Greer

I have an unrelated question about the conditions in which it would be possible to prescribe under the bill. Those conditions are not detailed but would be the subject of further regulation. I understand why providing such powers is necessary, but I am often loth to provide as yet undefined powers through a bill. In what timescale will the regulations that will specify what conditions it will be possible to set be agreed?

Kevin Lee

I cannot answer that question at the moment.

Ailsa Heine

It is likely that those regulations would be developed in the context of the implementation of the bill, if it is passed. That might happen within a year, but it would take place as part of a planned programme of implementation. That would be the normal expectation with such regulation-making powers.

Gerard Hart

I will say something about the policy background to those conditions, if that would be of interest. I am accountable for the operation of the barring service in Scotland. In rare cases, we encounter individuals whose behaviour we think is extremely dangerous and risky. At the moment, we do not have any powers to intervene to curtail or control their activity while they are being considered for barring. Once they have been barred, we can intervene, but we cannot do so before that has happened. In the past, there has been a period in which there has been risk. Having the ability to impose such conditions will mean that we can prescribe controls.

We cannot bar someone ahead of the process being completed but, short of that, having the conditions means that we can put in place significant limitations on what the person can and cannot do, which will be of substantial benefit to public protection. Those powers are counterbalanced by the fact that we would need to go to a sheriff to get the conditions imposed, so we would have to make the case that the conditions were justifiable and proportionate. It will be a significant benefit to the public that we will be able to use the conditions in the very few cases in which an individual’s conduct is such that that is a justifiable step to take.

10:30  



Ross Greer

I agree that it is important that the power to impose those conditions exists. However, it is important that the committee has an understanding of the process by which you will propose the specific conditions that will, potentially, be agreed to through regulation. I understand that you are not able to give us that information now, but it would be helpful if you could write to the committee as soon as possible about that.

Dr Alasdair Allan (Na h-Eileanan an Iar) (SNP)

I will pick up on one of Ross Greer’s points. I apologise if I have not picked up the answer completely; the witnesses might have already explained this point. Ross Greer gave a hypothetical example of a 15-year-old who works with much younger children. It is easy to imagine that happening in a charity or a church. The witnesses have explained that, if there were known to be allegations of criminality against that 15-year-old, the 15-year-old would already be in the system. How would the church or the charity know that the 15-year-old was in the system?

Gerard Hart

There are different ways that that could happen. A child who has been involved in significant harmful behaviour will probably be part of a programme of care and welfare. They will have a social worker and other parties might be involved. The police continue to have the power to make a public-interest disclosure. They can inform an organisation in circumstances in which, they believe, there is a significant risk to the public. From my experience, it is likely that the police would speak to the 15-year-old or his or her parents and say, “Look, you need to understand that there is significant risk in your doing this work. We want you to tell the church or stop doing the work.” If the 15-year-old did not do that, the police would make the disclosure. The committee would be well advised to speak to Police Scotland, because it has a robust process for such activity.

In general, a young person who has been involved in serious sexually harmful behaviour, for example, will have a significant and rigorous pattern of people around them. It is unlikely that the behaviour that Alasdair Allan is quite correctly worried about would ever be able to be perpetrated, because of that protection.

Gail Ross

When the bill that became the Age of Criminal Responsibility (Scotland) Act 2019 was going through Parliament, most children’s organisations wanted the age to be raised higher than 12, and we got a commitment from the Government that it would look at raising the age. Does the Disclosure (Scotland) Bill make provision for the raising of the minimum age of criminal responsibility?

Kevin Lee

All the bill does is set out that the process of childhood convictions applies to behaviour that is carried out by those under the age of 18. It does not draw a distinction about behaviour by those who are 12 up to 17; it simply talks about behaviour by those who are under the age of 18.

Ailsa Heine

The age of criminal responsibility is set by the 2019 act, and the bill does not change that. The age is set at 12, and the Government has undertaken to review that. In the interim, while the review is on-going, the behaviour of children between the ages of 12 and 17 will be dealt with through the bill. The age of criminal responsibility is completely separate from the bill.

Gail Ross

I have a question about fees, which we touched on earlier. Let us say that Disclosure Scotland contacted someone to tell them that their five years was nearly at an end and that they had to pay a fee by a certain date. If that person did not pay the fee and fell off the scheme, what would the implications be for their volunteering or employment?

Gerard Hart

Volunteers would not pay fees, because the policy intention is that free checks for them would continue. If we were to check and find that a volunteer was still working in a regulated role but had not paid the fee, we would have to say that they and their employer were committing a criminal offence, because the scheme is mandatory. Individuals who are in regulated roles have to join the scheme and cannot leave it. Their employers cannot employ them in that role if they are not in the scheme, so they would simply have to rejoin it and could not lawfully leave at that point. Obviously, our approach would be to encourage people to rejoin rather than to resort to taking criminal proceedings against them. That is the ultimate sanction against a person who performs a regulated role without being in the scheme, but many other steps would have to be taken before that point.

Ailsa Heine

The bill sets out extended membership period procedures to cover cases in which someone fails to renew but we are aware that they are still performing a regulated role. They would not simply drop out of the scheme exactly five years later. It would be possible to extend their membership, and the process that is set out in the bill would be gone through. However, as Gerard Hart said, were they to fail to renew after various steps had been taken, they would be committing an offence by continuing to work.

The Convener

Members have exhausted their questions. I thank our witnesses for attending. We look forward to receiving the extra information that members asked for. On the basis of the evidence that it has received, the committee will select witnesses for future meetings at which it will continue to take evidence.

I suspend the meeting briefly to allow our witnesses to leave the room.

10:36 Meeting suspended.  



10:38 On resuming—  



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Second meeting transcript

The Convener

Item 2 is our second evidence session on the Disclosure (Scotland) Bill. In September, we heard from the bill team, and today we will hear from a range of organisations with an interest in the bill. I welcome Nicola Dickie, who is chief officer for children and young people at the Convention of Scottish Local Authorities; Alison Reid, who is principal solicitor at Clan Childlaw; Sheena Brennan, who is information manager for disclosure at Police Scotland; Andrew Alexander, who is head of policy at the Law Society of Scotland; and Cheryl Campbell, who is acting director of regulation at the Scottish Social Services Council.

I ask each of you to make some brief introductory remarks on your interest in the area. We will start with Nicola Dickie.

Nicola Dickie (Convention of Scottish Local Authorities)

Good morning and thank you for the opportunity to be here. COSLA supports the broad approach in the bill, which seems to strike the right balance between protecting public safety and supporting the rehabilitation of individuals. We recognise that the current system is complex and often confusing, and we support the bill’s aims to streamline disclosure and close the loopholes. We recognise that the financial impact on local government is estimated to be minimal, but that is set against a climate of significant reductions to local government funding, so all new resource implications must be fully met by the Scottish Government.

COSLA is broadly happy with the bill, and that view is shared by our elected members, colleagues in Social Work Scotland and our heads of personnel networks.

Alison Reid (Clan Childlaw)

Clan Childlaw is a unique legal outreach service solely for children and young people in Scotland. It enables young people to have their voices heard and to participate in decision-making processes that affect them. We are specialist lawyers for children and young people. Clan Childlaw enables young people to know about their right to access free, child-centred outreach and legal help, which allows them to get support and be treated in the way that they are entitled to be treated.

The vast majority of young people that we represent are care experienced. We take issues that arise in our direct casework with young people and try to make the law better for all children and young people in Scotland. Our concern about the effect of childhood offending-type behaviours later in life has long been one of our priority policy areas and it is one in which we have practical experience. That led us to intervene in the Supreme Court last year, in the matter of an application by Lorraine Gallagher and others, to assist the court with the details of the Scottish system.

We represent children in children’s hearings every day, and the issue of disclosure arises frequently as young people are asked to accept offence-based grounds without knowing the consequences for them when they apply for a job or a college course when they reach the age of 16. We are often asked by young people who are applying for their first job whether anything will appear on their disclosure.

Given our involvement with the disclosure scheme, we have restricted our submission to the consideration of childhood behaviours only. I thank the committee for the opportunity to give evidence today, and I hope that I can be of some assistance.

Sheena Brennan (Police Scotland)

Good morning, convener and committee members. Police Scotland welcomes the opportunity to attend the meeting this morning. As the committee will know, the bill represents the first review of the primary legislation since it was enacted, and Police Scotland is very supportive of the revised terms. We have worked closely with Disclosure Scotland since the introduction of part 5 of the Police Act 1997 in Scotland and the Protection of Vulnerable Groups (Scotland) Act 2007, and we continue to work together on the bill and related legislation.

We welcome the current process and a number of the major changes in the bill, including the change from lifetime membership to a five-year renewable membership, which will reduce the number of scheme members and the duty on us for on-going monitoring. The change from the current form of membership to role-specific or post-specific membership through regulated roles is welcome, and the fact that the scheme will become mandatory for identified post holders or job holders addresses what we see as a shortfall in the existing legislation.

We welcome the replacement of the existing dispute process by representations to be overseen by the role of the independent reviewer. That mirrors the situation down south, where there is an independent monitor. The moving of the role with regard to responsibility for disputes around other relevant information from Police Scotland to the independent reviewer is welcome, although it will be assessed as the bill progresses.

We also welcome the fact that statutory guidance will be produced for the chief constable of Police Scotland in respect of the quality assurance framework. Police Scotland currently follows the Home Office guidelines, and we welcome the bill’s introduction of Scotland-specific guidance for the QAF. Overall, we are very supportive of the bill and we welcome the opportunity to discuss it further today.

Andrew Alexander (Law Society of Scotland)

I thank the convener and committee members for the opportunity to attend today to assist the committee in its scrutiny of the bill. The Law Society of Scotland is broadly supportive of the bill, given the way in which it balances protections for the public with the importance of rehabilitation. The simplification of the process is a welcome step. We appreciate the fact that, as a regulator and a user of the disclosure system, we have had the opportunity to engage with the Scottish Government and Disclosure Scotland on how the bill might impact our organisation.

Guidance will be important, particularly on the way in which tests of relevance and provisions on what “ought to be” disclosed will operate, in order to allow us to discharge our public functions. That will give us clarity to be able to progress with the new disclosure system and allow us to ensure that we maintain the professional principles of a regulated legal profession.

Cheryl Campbell (Scottish Social Services Council)

Good morning. The SSSC welcomes the opportunity to appear before the committee to provide evidence on the bill. We regulate the Scottish social services workforce and protect the public by carefully assessing applications for entry to our register. We also take action against those applicants and registrants whose behaviour falls short of the standard that is expected. The disclosure of information plays a key part in our assessment.

We consider that the bill represents a welcome simplification of the current system of disclosure, and the mandatory element of the PVG scheme is also welcome. We look forward to continuing to work with the Scottish Government and Disclosure Scotland to advance the bill’s aims, and I hope to be able to assist the committee today.

The Convener

Thank you. When you wish to respond to a question, please indicate to me or the clerks, and we will ensure that you are brought in. We have a broad range of topics to cover, and we begin with a question from Dr Allan.

Dr Alasdair Allan (Na h-Eileanan an Iar) (SNP)

I am interested in what the bill has to say—or perhaps does not have to say—about under-16s and where they fit into the picture. We want to avoid the twin risks of letting someone under 16 who is a danger slip through the net and getting into a situation where there are too many restrictions on young people who want to do voluntary work. I am keen to hear your views on how the system works and the fact that under-16s will not be able to join the PVG scheme.

Nicola Dickie

The number of people who are under 16 and in the PVG scheme is fairly limited. COSLA has had broad discussions with professionals who support young people, and getting it right for every child means that many young people who are troublesome or have behavioural issues are already well known to support services such as social work, teaching staff and Police Scotland, depending on the level of the behavioural difficulties. Many of those young people are also involved in the children’s hearings system. We are comfortable that the bill strikes the right balance between the risk of having those young people outwith the system and having them in the system and continually monitoring their behaviour for a significant time.

Dr Allan

In previous discussions on the subject, my colleague Ross Greer has asked how, if somebody approaches a voluntary organisation, it will know whether they are in the scheme.

Nicola Dickie

The Scottish Government is clear in the policy memorandum that it will be for Police Scotland and the lead professionals to have a conversation with the young person, and they will expect the young person to disclose the information. If that does not happen, Police Scotland and the lead professionals might have to disclose the information. I am sure that Police Scotland has thoughts about that.

Sheena Brennan

I agree with Nicola Dickie. When a person under 16 has behaviour that is concerning, they will be known to a number of professionals, who will ensure that the young person does not work or volunteer—in most cases, it will be volunteering—in certain areas. You could look at that and think that there is a potential gap. However, organisations have their own safeguarding responsibilities, and if people under the age of 16 work for or volunteer with them, they will place restrictions to ensure that those who do not have a PVG certificate cannot work one to one with vulnerable children or whatever. It is a partnership-working scenario. The Scout Association works all around the United Kingdom, and it addresses its safeguarding responsibilities.

It would be unusual for an individual under the age of 16 who had behaved in such a manner to be in that situation. If they have committed an automatic barring offence, Disclosure Scotland will have to automatically disclose the offence as a duty of care.

Dr Allan

Related to those issues is the concept of spent convictions, which might affect people throughout their lives. I am keen to hear your views on how the proposals to change the system deal with that. What are your views on the way in which the rules deal with spent convictions and people’s potential for rehabilitation if they are being monitored?

Sheena Brennan

That relates to the Management of Offenders (Scotland) Act 2019, which is associated with the age of criminal responsibility due to the fact that 12 to 17-year-olds are now in a different situation because of the Age of Criminal Responsibility (Scotland) Act 2019. Following the management of offenders legislation, Disclosure Scotland has now implemented schedule 2 paragraph 1(8)(a) and (b) lists for filtering information, which benefits individuals who have the right to rehabilitation. If they committed a more serious offence, that would not be caught by the rehabilitation guidelines.

Alison Reid

We have some concerns about how childhood convictions are treated in the bill. We are particularly worried about children’s hearings. Given that the children’s hearings system is welfare based and looks at the best interests of the child, we feel that there is a dissonance between the negative outcome of the disclosure scheme and the welfare that the children’s hearings system is trying to achieve. We see that as problematic and potentially challengeable under article 8 of the European convention on human rights.

The purpose of the children’s hearings system is to divert a young person from their offending behaviour, and we question whether having enduring adverse consequences from childhood into adulthood is an effective and proportionate way of achieving that. That raises concerns for us around article 8.

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We are also concerned about the group of under-18s who are convicted in the adult court. Given that the Scottish Government is committed to the incorporation of the United Nations Convention on the Rights of the Child and to making sure that children are looked at in a different context from adults, our view is that under-18s should not accrue convictions. If there is something serious, it could appear as other relevant information. I can say more about that. I believe that a high bar is required for other relevant information in relation to children.

Dr Allan

Finally, I have a question for the Law Society, which may or may not relate to the points that have just been made. More generally, how robust is the new system that is proposed, given that there have been legal challenges to the existing system and similar systems throughout the UK? Do you have any views on the robustness of the system in the face of possible challenges from individuals?

Andrew Alexander

Alison Reid has highlighted areas in which there is the potential for challenge, and it is always feasible that individuals might look to test, on article 8 grounds, the ways in which the disclosure system operates. There could potentially also be the prospect of challenge under article 1 of the ECHR, which concerns interference with property, because a disclosure can have a direct impact on someone’s livelihood.

The approach in the bill is reasonably robust and there is a degree of flexibility. Therefore, we are not particularly concerned about that. It would be helpful if some of the detail was fleshed out because, if we are in a situation in which the process is not fair to most of the individuals involved, there could be particular difficulties.

One of areas that we highlighted involves the prescribed periods during which reviews could take place, because there is a degree of tension there. Often, if a disclosure is for the purposes of employment, the review process might need to be fairly quick. Equally, if the review process is particularly short, it might not allow people the opportunity to adequately represent their position, or to get independent advice on what could be some serious consequences.

We think that the bill takes a reasonable approach in the light of current decisions, although it is always difficult to future proof legislation regarding potential challenges.

Alison Reid

When I was looking at the question of compatibility with the ECHR, I was concerned about three areas, apart from the one that I have raised already around children’s hearings.

The first is around the “ought to” and relevance tests, because the law has to be foreseeable. At the moment, without the detail of what the tests are, it is really hard to be able to advise young people, or any person, about what will actually be disclosed. I therefore think that more detail around those tests is required.

The second area is around other relevant information, which I am sure we will come on to. It has to be proportionate and, given that the information is not proven information, we think that a very high bar will need to be set around the other relevant information. In addition, there should be a really close link between the disclosure and the risk that it is trying to protect against, in order for it to be compatible.

My third concern is around the complexity of the scheme. The law has to be foreseeable, and I understand that it has been simplified to some degree, but it still remains pretty complex.

Dr Allan

Thank you.

Gail Ross (Caithness, Sutherland and Ross) (SNP)

I want to follow up on the human rights aspect. I invite everybody to answer; however, it relates to the submission that Alison Reid made, which she mentioned just now. It states:

“A system so complex as to mean there is the lack of foreseeability, is at risk of being incompatible with Article 8 ECHR”,

which concerns respect for private and family life. Will you expand on that a bit more with regard to the challenges that there have been and how you see this as being different?

Alison Reid

The law has to be understood and it has to be foreseeable. We are trying to explain the scheme to young people who potentially have complex mental health issues, who have experienced physical and emotional abuse or trauma or who have been exposed to neglect.

We try to explain really complex concepts; it is not that each concept in itself is difficult, but it is complex once you get them altogether. I also deliver training on the subject to professionals who work with young people, and it is difficult. A person has to understand the concepts of what a conviction is; whether it is spent or unspent; other relevant information; the lists and whether the offence fits into the list or not; whether it was heard in the children’s hearings system; whether it was brought on offence grounds rather than care and protection grounds; whether there was a time lapse that has gone since the incident; and whether it is level 1 or level 2, as it now is. By the time that you have brought in all those concepts, it becomes tricky to explain. I understand that, to some extent, it needs to be complicated, because it is not straightforward; I am not trying to overstate the position.

Gail Ross

Is there any way at all that you could see it being made simpler, compared to your description of what we have now?

Alison Reid

In relation to the way that childhood offending behaviour is addressed, our view is that it should not be treated as a conviction. That would simplify the system substantially, because any childhood behaviours would be treated as other relevant information, which would take out the whole column in the table that I created in my submission to try to explain the system, and leave us with just other relevant information.

As I said before, a high bar needs to be set around what other relevant information is. There needs to be certainty around what that is, and a link between disclosure and the risk that is trying to be protected against. That would certainly simplify it for the purposes of children.

Gail Ross

Would that fit in with the second section of article 8, which is about the public safety aspect?

Alison Reid

In my view, it would, in that, if there were some circumstances that still required to be told to a prospective regulator or employer, it could be done under other relevant information, with the high bar being set, given that it relates to childhood.

Daniel Johnson (Edinburgh Southern) (Lab)

I would like to follow on from that line of questioning, to an extent. One of the clear policy intentions of the bill is to simplify the disclosure regime; indeed, it does so by reducing the categories of disclosure from four to two. However, in creating one single level of enhanced disclosure, is there—to use Alison Reid’s terminology—a lack of “foreseeability” as to what might be disclosed? A very broad range of different types of information might now be disclosed in level 2; whereas, previously, with the three levels of enhanced disclosure, you would have a degree of predictability about what might come out.

Would the panel agree that there is potentially an issue there, and perhaps for more people than just those with childhood convictions, whose situation Alison Reid outlined?

Nicola Dickie

COSLA recognises that such matters are complex, given the nature of trying to shoehorn everybody into the same disclosure scheme. Whatever the bill ends up looking like, a publicity campaign will be desperately important for members who will be joining the scheme and for prospective employers. That will help to inform people with disclosures that they will need to come forward.

The change from four levels of disclosure to two levels is a simplification, but Daniel Johnson is right to say that that will not come without consequences. Therefore, there must be an undertaking in the financial memorandum to raise the profile of what we have done and why we have done it. That is important so that the changes are as foreseeable as they can be for people who are in the scheme, but it is also important for public perception. We must be careful to be absolutely clear about what we are trying to establish and why we want to do that. We should do that through the public conversations that we are having in relation to the age of criminal responsibility and the UNCRC. We should be aware that public awareness of such issues is growing, but raising awareness further will be an important part of our work as we move forward.

Cheryl Campbell

The Scottish Social Services Council is part of the stakeholder advisory group that is reviewing Disclosure Scotland. That is a complex area of work, because there is a diverse landscape and it is a real challenge to get the right balance between rehabilitation and protecting the public. The stakeholder advisory group meetings have shown very clearly that people are on different sides of the fence, so we have tried to come together with some sort of compromise. The bill presents that compromise, but the position is still rather complex. The bill goes some way in simplifying things while taking account of both those elements.

Daniel Johnson

I totally take Nicola Dickie’s point about the need for publicity; that stands to reason. However, the problem is that we cannot design the publicity campaign now, because we do not know what criteria will apply—that will be entirely down to guidance. Clan Childlaw and the Law Society have pointed out that the only tests that are in the bill relate to relevance and whether information ought to be disclosed. Cheryl Campbell said that there is a compromise, but we do not know what the compromise will be because we do not have the criteria in front of us. Is that a correct summary of where we are?

Cheryl Campbell

Yes—I would say so. We would welcome the opportunity to work collaboratively with Disclosure Scotland on the development of the guidance, so that all views—not only those of the Scottish Social Services Council, but those of other bodies—are taken into consideration.

Daniel Johnson

I will put a direct question to the Law Society and Clan Childlaw. Should some high-level principles be included in the bill to provide clarity and to allow for legal redress? Is there a weakness in relying on guidance to provide people with legal certainty?

Andrew Alexander

In our submission, we highlighted our concerns about using the tests of “relevant” and “ought to” without there being guidance in place. People who apply for disclosure and those who are in receipt of it require a degree of certainty, so we must ensure that we have the correct balance. It is a difficult area and there might need to be a degree of flexibility. We do not know whether the jurisprudence around how to deal with that balance will shift over time, not just in Scotland but across the rest of the UK, and we want to maintain consistency. It would be helpful to have guidance that could be scrutinised at this stage. Alternatively, there is the prospect of including high-level principles in the bill, with the potential of using regulations to amend them through a negative or affirmative process, should those principles find themselves out of touch with emerging jurisprudence at a later stage. However, it is an area in which being able to see what the tests of relevance ought to disclose and how they might operate will play a large part. For instance, as a regulator, we might be interested in offences under the Solicitors (Scotland) Act 1980 and think that it would be relevant for them to be disclosed.

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We would have to consider whether our approach on relevance could be sufficiently nuanced to enable us to say that, for the purposes of deciding on admission as a solicitor, such offences would be relevant and ought to be disclosed, or whether a more general set of principles might operate for positions of trust and the like. There is undoubtedly scope to provide greater clarity on the two tests.

Alison Reid

I agree. Clan Childlaw aims to be able to advise young people on what the changes would mean, what would happen and what the consequences would be. We need to make all that foreseeable, so my preference would be to have the scheme set out clearly in the bill. That would mean that the detail would be preserved and could be challenged more easily if something were to go wrong, which I hope will not happen—that is the last thing that we want. It would just make clear what the scheme is and what the tests are. People would be able to see the detail and everything would be up front. Clearly, guidance would help with that, too.

Sheena Brennan

I want to comment on the guidance and also the relevancy tests. As I understand the position, only the checks that would come through the level 2 disclosure process and would be triggered to Police Scotland would be assessed for relevancy.

We are already working with the Home Office quality assurance framework. We hope that, if the bill is passed, we would then have a set of Scottish guidelines that would probably be based on the ones that are already in existence. Such a change came about in the guidance that was issued in 2015 following recommendations made by Sunita Mason in her review of the criminal records regime. It said that the criterion should change from information that an officer thinks might be relevant to information that the officer

“reasonably believes to be relevant”

and which “ought to be” disclosed. If we could have such guidance set out in the bill, that might reassure those who are concerned about the relevancy tests that are undertaken. It would also be pertinent to our own piece of legislation and relevant to information that is retained here.

Daniel Johnson

You are saying that, at the moment, it is difficult for an individual to know precisely what will be disclosed, because of the absence of detail about the tests. Might the flip side of that coin not be that, from the perspective of members of the public, as the bill is currently drafted, they will be very reliant on Disclosure Scotland’s interpreting what the requirements and responsibilities are for roles for which they might apply through the scheme? Are there concerns about that and about the ability of Disclosure Scotland—or whichever other body might be involved—to understand those matters fully and to get them right? Is there a danger of its misunderstanding and therefore not disclosing information that would be relevant and should be disclosed?

Sheena Brennan

Only certain cases come to Police Scotland for assessment of other information that might be held, such as pending cases or intelligence information. As I understand it, when such a request is triggered, we apply our tests, which are based on the Home Office quality assurance framework that I mentioned, which is available to anyone who wishes to look it up—we have used that as a basis for our principles for undertaking tests. I am not sure whether Disclosure Scotland would make changes to our information once we send such requests back, because the chief constable would have decided that that was the other relevant information that we wanted to share with it.

I will not move on to the next steps, because that would involve looking at the dispute process and how representations might be made. However, the independent reviewer, which is a new post that came from the Age of Criminal Responsibility (Scotland) Act 2019 and has a much greater role in the disclosure bill, creates a better opportunity for an individual to see that information on ECHR and human rights grounds before it is shared with an employer.

Iain Gray (East Lothian) (Lab)

Most or all of the evidence so far has been on the principles and the tests of ORI. I appreciate that the guidance for the new scheme does not exist yet, but Police Scotland works to the Home Office guidance. I am quite interested in the practicalities of how that works. The decision is taken by the chief constable, but I guess that some other people are also involved. I am interested to know how the police handle that and where the chief constable comes in.

Sheena Brennan

We regard ourselves as delegated signatories for the chief constable in respect of the legislation. As you might imagine, we are the ones who actually undertake the tests. When the request comes in, we assess all the information that is pertinent to the application, whether it be information about a pending case or intelligence. We then assess the information against the relevancy tests—accuracy, relevance, proportionality, and the ECHR element, which is foremost. It is about balancing the rights of the applicant against the rights of the child or the vulnerable adult.

Iain Gray

When you say “we”, who do you mean?

Sheena Brennan

I mean my team.

Iain Gray

That is the disclosure team at Police Scotland.

Sheena Brennan

Yes.

Iain Gray

How big is that team?

Sheena Brennan

Across the country, we have approximately 72 people, and 60 per cent of them are working on PVG.

Iain Gray

You said that you are a delegated signatory.

Sheena Brennan

Yes.

Iain Gray

Does that mean that the chief constable does not see the decisions at all?

Sheena Brennan

He sees them very rarely.

Alison Harris (Central Scotland) (Con)

Nicola Dickie, from COSLA, says that the cost implications will be minor. Can we explore that a bit? If the bill passes and the renewal system comes into play, the current cohort of PVG scheme members will need to go into the new scheme and that will be an initial cost.

Have you thought that, five years down the line, the bill creates a large liability for organisations that will have to be budgeted and planned for? The bill will also have implications for third sector groups—you talked about scouts and so on—have you given that any thought?

Nicola Dickie

That is why I said that COSLA recognises that the financial memorandum estimates that the costs will be minimal. The financial memorandum is never an exact science. What it looks like when the bill is introduced is not necessarily what it looks like when it is passed.

From a local government perspective, we recognise that it is swings and roundabouts. We might well face up-front costs and then move forward. We are interested in doing some of that modelling work.

Over and above the financial, there are other resource implications. My team is responsible for the expansion of early learning and childcare, which is a significant undertaking and might require a significant workforce. We need to factor that in. There will therefore be a financial resource implication and a personnel implication, which is not limited to local authorities, because third sector and private providers are also upscaling their workforces to meet their expansion programmes.

We are interested in working with the Government to get the financial modelling as spot on as we possibly can. There has been no pushback from the Government on that.

On the earlier point about guidance, the bill has been approached in a collaborative way, so I am not here to suggest that we will not do that work.

Alison Harris

Have the other witnesses given any consideration to the transition to the new scheme? Are there any thoughts on staggering the transition? I think that there will be a financial implication, so it is important to consider that.

Cheryl Campbell

We have been doing a bit of work with Disclosure Scotland on that—so far, we have had only initial discussions.

With regard to the cost, disclosures currently have to be repeated every three years in the social services sector. People have lifetime membership of the PVG scheme, but they have to get their record updated every three years, and there is a cost for that. The five-year membership could bring some savings, although those would be offset against some new costs. I do not have any details for you on that.

There needs to be a lot of thought about the details of implementation—for example, whether everyone is moved on to the scheme initially with a staggered renewal period so that people who have recently paid to become members could renew their membership later on. Those are the sorts of discussions that need to be had. As I said, our discussions with Disclosure Scotland are still in the very early stages.

Alison Harris

It is still being discussed.

Cheryl Campbell

Yes.

Alison Harris

That is good.

Andrew Alexander

We have not looked directly at the financial implications. As an organisation that admitted 587 solicitors in the past year, that aspect does not affect us.

However, one area that we think is important—to echo the earlier comments—concerns the idea of publicity. The scheme involves a huge number of people—it is currently seven figures—and there is ultimately a criminal sanction if people continue to do such work beyond the termination of their membership, as well as a criminal sanction on the organisation that allows that to occur, which is the right approach.

There needs, therefore, to be a degree of information available across the huge number of sectors involved in the scheme to ensure that no one inadvertently falls into a challenging situation. That struck me in listening to a previous evidence session, in which it was mentioned that communications had been sent out to people to tell them that they no longer needed to be part of the scheme because they were no longer carrying out the work. The feedback on that was apparently mixed. There needs to be some resource to ensure that everyone is aware that the system is going to change, because the changes will affect such a large number of people. That would be helpful.

Liz Smith (Mid Scotland and Fife) (Con)

I have some further questions about the cost, but first I would like Sheena Brennan to clarify something. In an answer to Iain Gray, you said that you had approximately 72 people around Scotland working in this area. If I heard you correctly, I think that either 60, or 60 per cent of them are working full-time on disclosure.

Sheena Brennan

Yes—as part of my information management disclosure team, I also have responsibility across the board for data protection, subject access and freedom of information. Around 60 per cent of my 72 staff are working on the PVG scheme.

Liz Smith

Do you foresee that the bill would cause you to increase that number?

Sheena Brennan

As we have suggested to Disclosure Scotland, our concerns around staffing relate more to our responsibility for processing representations. If we are putting out other relevant information, the disclosure would have to go to the independent reviewer first. At that point, we would have to undertake another clean review, performed by individuals who had not worked on the first disclosure. Our concern is that we might need more staff to support the representations element.

With regard to the financial implications and the number of people involved, there are currently 1.2 million people on the scheme. There are not 1.2 million people working in regulated work in Scotland, but because people remain scheme members, they are subject to on-going monitoring. There could therefore be a positive impact on staffing in relation to reducing on-going monitoring, but we will have additional responsibilities in relation to applications.

Many years ago, when we first had applications, a lot of applications were being assessed and there was very little on-going monitoring. Over the years, we have had fewer applications and much more on-going monitoring. It will now go the other way and we will again have more applications and less on-going monitoring. I hope that the work would therefore even out. We have discussed with Disclosure Scotland the responsibilities of the independent reviewer.

Liz Smith

I am interested to hear that response. I understand why the work might balance out. That said, moving to a mandatory scheme means that it will become mandatory for more people to be on the list. That in itself would create some kind of cost, not just to the individuals but in relation to the monitoring involved. Am I right?

10:45  



Sheena Brennan

Rather than having 1.2 million people on the scheme, we will end up with a scheme that includes the number of core individuals who do regulated work. The beauty of the new scheme is that we will deal with people who have regulated roles or responsibilities, rather than with child or adult schemes. We are looking forward to that system because, when we assess the information, we will look specifically at the role and responsibilities that an individual would take, as opposed to taking a more generic consideration by saying, “Well, it’s within the scheme. They might be driving or they might not be driving.” The system will allow us to home in more on what we are looking at, which might be easier.

Liz Smith

I am interested in what you said about 1.2 million people being on the scheme but not all those people necessarily being involved in jobs that require disclosure. I know of people on the three-year disclosure system who have never been told by the group that they are working with to update their disclosure. The bill will make it clearer that there is an obligation on groups to inform people that they must be in the disclosure system. Some extra costs must be involved in that.

Sheena Brennan

We should look at good examples of organisations that have worked proactively with the turnaround of three years. We will now have a mandatory system with renewal every five years, and those responsibilities will be set out. You are right to say that, because it has not been mandatory for people to be on the scheme, there is potentially a huge risk relating to individuals who do regulated work but who have never been through the disclosure process.

We do not know the details of how the turnaround process will work, but a lot of work was done on retrospective checking when the PVG scheme was first introduced. Until we see the detail, we are assuming—or hoping—that the balance of applications against on-going monitoring will improve over time. We have a good relationship with Disclosure Scotland and we have yearly budget discussions. Our information on the independent reviewer and the numbers that we think might be involved have very much come from our discussions with Disclosure Scotland.

Liz Smith

Everybody is relatively positive about the bill’s general principles; I do not think that there is any disagreement about them, which is very good. However, when we drill down on some of the detail, I think that there are some hidden costs. We must be very clear about what those costs are and whether there might be a detrimental impact on clubs and societies that do not have very much money. First, those groups will be obliged to ensure that the people who work with them are properly told about their responsibilities. Secondly, we must be careful that, if those associations or clubs take the responsibility for paying the £59, we do not stop them doing that. I worry about that, not least because of the pressure that a lot of voluntary organisations are under. Does that concern you?

Sheena Brennan

Police Scotland is not involved in that area but, as was said in the earlier conversation, there is definitely a concern about how the proposals will impact on organisations. We do not want somebody to avoid doing something that is mandatory because of a cost implication. Under the bill, Police Scotland would become a referral agency, so if we identified that somebody who was doing regulated work was not a scheme member, we would have the opportunity to refer. That is a new provision in the bill, which we welcome.

Liz Smith

For clarity, what would happen in that instance?

Sheena Brennan

We think that, under the bill, when membership of the scheme becomes mandatory, it will be an offence for someone to do regulated work without the relevant certificate. Police Scotland would then have an opportunity to refer the case to Disclosure Scotland. Many organisations already have that referral opportunity, but we do not have it at the moment.

Beatrice Wishart (Shetland Islands) (LD)

I am interested in the definition of “protected adult”. Part of the three-stage test is to determine that, when an individual is undertaking a regulated role, the activities include the opportunity to have contact with protected adults or children. One of the respondents was concerned that that definition focused on adults who

“by reason of physical or mental disability, illness or old age”

require support or are receiving healthcare. The concern was that victims of domestic abuse might not meet the criteria. What do the witnesses think about the definition of a protected adult? Is it sufficient?

Andrew Alexander

When we looked at the bill, members of our mental health and disability committee raised the point that the definition of “protected adult” in section 76 was somewhat different to that in other legislation for vulnerable people. We specifically highlighted that an individual could qualify for a personal independence payment, or disability assistance as it will be in future, and need a carer to meet their assessed needs but still not be considered to be a protected adult for the purposes of the legislation. That was one area where we thought that additional consideration could be made.

We were also aware of the response from Scottish Women’s Aid, which highlighted the area. Going back to look at the definition again would be helpful.

Nicola Dickie

COSLA is a co-signatory to the equally safe plan so, if Scottish Women’s Aid has raised the point, it is worth looking at it. We do not want to jeopardise any of the good work that we are doing under the equally safe plan through unintended consequences. From a local government perspective, we would be happy to work with the Government and Disclosure Scotland to look at that.

Iain Gray

We talked a bit about people under the age of 16 who have convictions, and I want to ask about the age at which convictions should cease to be treated as childhood convictions. Clan Childlaw’s submission takes a very different view from that of the other submissions and suggests that the system should pertain until the age of 25. Why do you believe that?

Alison Reid

We included that in our submission after we had looked at the research that was provided by the Centre for Youth and Criminal Justice. Donna McEwan suggested that 25 was the appropriate age because young people are still developing up to that age. That is where the suggestion came from; perhaps you can ask the CYCJ more about that.

I am saying today that 18 is the age that is protected by the UNCRC and the principles of looking at childhood behaviour mean that that would be the cut-off point in law.

Iain Gray

I am a little confused about which age you are suggesting would be the appropriate age.

Alison Reid

The research shows that young people are developing up to the age of 25. That is why I put that in the submission. I do not know anything more than that about the research.

Under the UNCRC principles, 18 is the appropriate age.

Iain Gray

Do any of the other witnesses have a view of the idea of 25 being the appropriate age?

Andrew Alexander

We have seen the evidence and suggestions that neurological development takes place into the mid-20s. We are consulting on incorporating the UNCRC into domestic law. As Alison Reid says, that has 18 as the appropriate age.

The age of criminal responsibility has also been changed and there is the potential for that to be reviewed in future. That could be the stage at which evidence about the effects of offending in childhood stages is reviewed.

The Convener

The Children and Young People (Scotland) Act 2014 includes provisions on access to support services for looked-after children up to the age of 25. Could a special case be made for looked-after children in this instance?

Nicola Dickie

COSLA supports the principle of raising the age of criminal responsibility to 16. We understand why we have landed where we have and that we are very much on a journey. Broadly, that is where COSLA and local government sit. We need to continue to develop the evidence and ensure that we take that information into account as the bill goes forward. We would not be absolutely dismissive of such proposals, but we do not have the evidence or, perhaps, the necessary public perception at the moment. I go back to the point about ensuring that we balance the rights and needs of our children and young people—which are paramount—with consideration of public safety and public perception.

Cheryl Campbell

The SSSC does not have a fully formed position on the age at which offences should be disclosed. As Alison Reid and Andrew Alexander said, it is about providing evidence in order to make an informed decision on what the age should be. We think that there will be times when the conviction of a child might have an impact on our decision on whether that person is safe to work with some of the most vulnerable people in society.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I have a follow-up on Liz Smith’s line of questioning. I would like a wee bit more detail on what Sheena Brennan said about a person who is in regulated work being referred for not having disclosure. Do you expect people to tell you that people are doing regulated work? How will you find that out? You do not look proactively for such evidence.

Sheena Brennan

The current legislation does not provide for a referral process for Police Scotland. As we understand the bill, once the mandatory scheme is introduced, it will be an offence for a person who has not gone through the process of getting the relevant disclosure to do regulated work. If police officers, while they are investigating a crime that relates to some other matter, identify that an individual is doing regulated work without the relevant disclosure, Police Scotland will have the opportunity to refer the case to Disclosure Scotland, which will take a decision. We would share information on that basis.

Rona Mackay

Disclosure Scotland would take the decision on whether the person was guilty of not having disclosure. What would be the outcome of that?

Sheena Brennan

My understanding is that the bill does not include detail on that. Earlier, we said that some organisations have individuals working with them who have not been through disclosure checks. The gap in the current legislation will be resolved through the mandatory element of the scheme.

Rona Mackay

Would the organisation be responsible, or would it be the individual?

Sheena Brennan

Both would be responsible. At the moment, certain offences lead to automatic barring from working with children or vulnerable adults. Disclosure Scotland does that processing, but it applies only to certain offences. Given that membership of the scheme will be mandatory, people who work within the regulated workforce will need to have disclosure. We or any other organisation might identify that somebody is doing regulated work. Under the bill, the police will have a role in referring such cases to Disclosure Scotland.

Rona Mackay

Nicola Dickie spoke about the need for a public awareness campaign before the bill is enacted. Some of the issues seem to be a bit vague. We need to be able to make it clear to the public what the sanctions will be for a person who does not have disclosure, so we will need to look at that gap.

11:00  



Nicola Dickie

Our approach needs to be proportionate. On the point about transitioning from where we are to where we need to be, we should be aware that the 1.2 million people who are on the current scheme do not all do the same things. It is in our gift to consider what we do and to ensure that, before someone is sanctioned for not being part of the mandatory scheme, we have a conversation with them and say that, if they come off the existing scheme, they do not need to transition. We need to get into that level of detail so that the system is not in a state of flux at a time when getting things right will be really important. I go back to what I said about early learning and childcare expansion because, on a personal level, I need that process to work particularly well.

There is also the on-going problem of the potential turnover of staff as a result of Brexit: we do not know what the staffing position will be. It is therefore important that we manage the transition in a helpful way, so that the system is not in a state of flux when we need it most.

Rona Mackay

The Brexit factor is very important.

Ross Greer (West Scotland) (Green)

I will return to Alasdair Allan’s questions on moving the minimum age of people on the scheme to 16. I want clarification on a point that Nicola Dickie made earlier about under-16s. In respect of the very small number of under-16s who are barred or restricted in their interaction with vulnerable groups, did you say that responsibility to disclose still exists even if the individual is a minor?

Nicola Dickie

It is my understanding that, from a public safety perspective, we would disclose—

Ross Greer

I am sorry, but are you saying that the child—the 14 or 15-year-old—would be responsible for disclosing the information?

Nicola Dickie

As the policy memorandum suggests, we would not sidle up to a 14-year-old and suggest that they should disclose stuff without any support. Under all the existing policies and procedures, we have on-going relationships with children and young people and with the people who have parental responsibility for them. It is about having those conversations in a supportive and informed way. I do not think for a minute that the issue should be dealt with in a black or white way by either sidling up to the voluntary organisation or stopping the person doing the work. Rather, we should say, “This is what’s in your best interests.” The conversations that take place on the front line should be about on-going protection and about children and young people’s outcomes. I do not see that changing as we move forward. The number of cases such as those to which Ross Greer referred is small.

Ross Greer

The main argument for moving the minimum age of people on the scheme to 16 seems to be that other statutory services will be involved in the lives of under-16s who have restrictions for whatever reason, but would otherwise be part of the scheme. One of my concerns is that, if a young person in that position moved between local authority areas, there might be a break, as least temporarily, in the provision of statutory services that we want to be delivered. Do the witnesses share that concern, or can they provide me with some reassurance? If the bill is passed, someone under the age of 16 who would otherwise be barred or restricted will not be required to have PVG membership. However, there could be a risk—even for a limited time—of monitoring by social workers or whoever not being continuous, due to a young person moving, for example.

Nicola Dickie

I would prefer to concentrate our efforts on ensuring that that young person would not experience a gap in provision. That would be a far more helpful way of working, because there are issues—not just those relating to Disclosure Scotland—for children and young people if they are not transitioned properly between different local authorities’ public services. We are talking about a small number of cases. For the benefit of the outcomes of those children and young people, I would prefer to work with all our professionals to ensure the transition between local authority areas and between public authorities. I would not use the bill to try to fix that: it has got things right by having a proportionate approach.

There is a separate conversation to be had about how our children and young people move between local authorities. I come back to the getting it right for every child approach. If we get that right, nothing should be unplanned, and young people should not be without the correct support, even for a limited time. The Disclosure (Scotland) Bill is only one part of that.

Ross Greer

I agree that more work needs to be done around transitions, but the issue is not that the bill would be used to solve that problem. As it stands, someone under the age of 16 can be a member of the scheme. The bill would change that. Given that the situation in relation to transitions is not perfect, the current scheme resolves that issue because an under-16 doing such regulated work would be a member. The bill will change that so that they would not be. In a world in which we acknowledge that transitions are not perfect, I am concerned that we are creating vulnerability rather than resolving an issue that is already resolved under the current scheme.

Nicola Dickie

That is certainly not the opinion of the professional associations with which I have had conversations. COSLA is clear that the bill almost has it right. I do not know whether that gives you enough reassurance.

This work is not being done in isolation: it is part of the work that we are doing on youth justice and the children’s hearing system. All that stuff is going on and the conversation in it is exactly the same. It just so happens that in relation the bill we are talking about Disclosure Scotland. We have similar conversations about youth justice.

Ross Greer

I will go back to the core issues. I am still looking for a clear answer to the question about what the problem is with having under-16s as members of the PVG scheme. The bill team’s explanation is that it is about striking a balance between risk management and the administrative burden of having in the scheme a substantial number of people who would not pose a risk and would otherwise not be restricted. I understand that there is a perfectly legitimate debate to have about striking that balance and creating a system that is not overly cumbersome, but beyond administration, are there any other inherent issues with 14 or 15-year-olds being members of the PVG scheme?

Nicola Dickie

I am not sure that their being in the scheme would be proportionate when set against the risk that would be posed by such individuals. All 14 and 15-year-olds would be in, as opposed to the small minority who currently apply for the PVG scheme. I am wholly aware that there are, on the panel here, experts on the law who can comment. However, putting all 14 and 15-year-olds in the scheme and having their behaviour monitored at all times does not seem to fit with the wider conversations that we are having about children and children’s rights across the country.

Ross Greer

It is about balancing the risk between one child who is engaged in work that would be restricted if they were a few months older and the children with whom they are working. I am interested to hear Clan Childlaw’s view of that. Am I getting this right? Are we talking essentially about balancing the rights of two different sets of children—the ones who are doing the work and the ones with whom they working?

Alison Reid

That is my understanding. I have to say that this is not an area that we have come across in practice, so we have not formed a view. Therefore, I am not sure that I can be much help to you on the issue.

Sheena Brennan

On proportionality, we are probably talking about a handful of children being individuals of concern.

Ross Greer

There are literally half a dozen.

Sheena Brennan

Absolutely. As I said earlier, organisations are responsible for ensuring that when they take on volunteers aged 14 and 15, their safeguarding and protection roles mean that those volunteers do not have one-to-one access to children, just in case. It is about organisations taking responsibility.

That might go back to the publicity and awareness campaign that needs to be run for the new legislation saying that, if an organisation has people working for it who are under 16, its responsibility is to ensure that safeguarding is in place because those people will not be subject to the legislation.

As we have said, we are probably talking about six or seven children who we are aware of who would be of concern.

Gil Paterson (Clydebank and Milngavie) (SNP) (Committee Substitute)

I am going to ask a couple of questions about the lists. Do the witnesses agree with the continuation of the system of having two lists?

Alison Reid

I have made clear my position on that in relation to children. I do not think that we should be getting involved in lists. The scheme should not involve convictions for under-18s, especially those in the children’s hearings system. There is a route to further information through the relevant information, with a high bar set on that relevant information.

Sheena Brennan

Police Scotland is not involved in what is on the list. It is very much a Disclosure Scotland responsibility so it is not for us to comment on it.

Andrew Alexander

We highlighted the issue in our response. There is the ability to change the lists over time, incorporating new offences or changing for policy reasons the priority that is given to various things and, I understand, changing them by using regulations to be laid under affirmative procedure, which gives the opportunity for detailed scrutiny.

If we are looking at the division between the two lists being around issues of honesty or positions of trust, we highlighted embezzlement and fraud as separate because they can be charged as alternative offences under the same legislation. We also mentioned other offences that we thought could be included on list A, including perjury and attempting to pervert or defeat the ends of justice. We thought that those areas merited further consideration and could be changed in the bill, if that is deemed to be appropriate.

Gil Paterson

Could the system function without a list?

Andrew Alexander

It would be more challenging to operate on that basis. If everything was moved from list B to list A, more information would be brought into the domain in which it would be disclosed. There would also be concerns about shifting things the other way, so that serious offences were subject to a less strict regime.

We are also conscious of the fact that there is some consistency among the jurisdictions of the United Kingdom. We are aware that some respondents to the bill have suggested that there should be different lists based on whether the person is a young person or an adult. When we considered that, we thought that we would need to see evidence for making a distinction between lists.

There are undoubtedly different ways of approaching the issue but, overall, we were content with the list A and list B approach, with some modifications to the types of offences that sit on those lists. We are looking to safeguard the public: when solicitors are in an important position of trust and are helping people with significant issues, often at very stressful times, we need to be able to apply a robust approach when we use the disclosure system.

Cheryl Campbell

I would echo what Andrew Alexander has said. We appreciate the rationale behind having list A and list B. We would like to be assured that some sort of consultation will be done on any review of list A and list B so that we can be content that they meet the needs that we are looking for, as a regulator.

11:15  



Gil Paterson

Are the timescales that are set out in the bill in relation to lists A and B appropriate?

Nicola Dickie

The idea of the timescales being wrong was not raised by our professional advisers or in any of our conversations from a local government perspective. We are content with the timescales and the lists.

Gil Paterson

I see that no one else wishes to comment. Questions about the issue might not have arisen.

My next question might have been answered, in part, but I will ask it to see what people have to say. Do the provisions relating to childhood offences—namely no time limit for review for list A offences and a five-and-a-half-year disclosure period for list B offences—suitably differentiate childhood offending?

Alison Reid

My view is that that is an arbitrary distinction that feeds into the difficulties that I have with the approach, particularly in relation to the children’s hearings system. The whole system is set up to do what is best for the welfare of the child, but we are imposing difficulties on young people as they move into adulthood. Other factors come into the decision on whether a young person ends up at a children’s hearing faced with offence grounds that could lead to a conviction. When the reporter makes that decision, they look at the overall circumstances of the child and take into account what is best and what involvement the child already has with the system. The arbitrariness of whether offence grounds that could lead to a conviction are used at a children’s hearing feeds into the arbitrariness of whether a conviction applies to a young person. We should think about it as a welfare-based system, so young people in the children’s hearings system should not be given any convictions.

Nicola Dickie

We have some sympathy with the position that Alison Reid has just outlined. Again, it is about proportionality and the fact that the system is in a state of transition. I expect that we will continue to have a live conversation about how criminal responsibility applies to children and young people and about the situation that we might be in in two or three years’ time. If we create a specific list for children and young people, we will add another layer of complexity, and we are trying to strip out that complexity to a degree. There is a delicate balance to be struck between the arbitrary nature of the issue and the rights of children and young people more generally.

Gil Paterson

Do you have any suggestions for changes to the offences on lists A and B?

Cheryl Campbell

I go back to what Andrew Alexander said. We identified that fraud has been taken off list A and put on to list B, while embezzlement remains on list A. From our perspective, those offences share the same characteristics of dishonesty. That is a real concern for us as a regulator that assesses people’s suitability to work with vulnerable people.

Alison Reid

We are pleased that the offence in relation to section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, which is about threatening and abusive behaviour, has been moved from list A to list B. That offence has been used a lot for relatively minor offending behaviour by children in residential units, but the offence is really serious in the adult world. We are pleased that the offence has shifted from list A to list B, but that does not take away from my point about not wanting childhood convictions.

The Convener

I have some questions about other relevant information. The appeal process and the independent reviewer are new aspects of the system. Will there be greater transparency and certainty for individuals regarding whether non-conviction information will be shared as ORI? How could that be achieved so that someone could have some knowledge about what might be disclosed?

Sheena Brennan

Under the current process, individuals have an opportunity to dispute the information with Disclosure Scotland. The second dispute comes straight to Police Scotland, and the third dispute goes to a court of law. If we determine that we want to push out other relevant information, that decision will go directly to the independent reviewer for assessment. An individual will have the opportunity for that assessment to be made before the information goes to an employer. From a transparency point of view, the new system is very much a positive for the applicant.

We discussed the independent reviewer’s role and responsibilities with Disclosure Scotland. I assume that the role and responsibilities will mirror those of the independent monitor for England and Wales, which is a role that has been in place for a number of years. I am comfortable that the independent reviewer’s role and responsibilities, along with the transparency route that we are taking, will be very much a positive.

For us, the Scottish Government’s guidance in relation to the quality assurance framework is key. Individuals will be able to see the tests that are undertaken.

The Convener

How does the ORI review process work, and how might it change under the bill? Should information about the balance of the review process be included in the bill or left to guidance and regulations?

Sheena Brennan

The role of the independent reviewer is covered in the bill. Guidance tends to be part of regulations, because that means that it can be amended. We will be in a better position to tweak the independent reviewer’s role and the relationships—should that be needed as time goes on—if the guidance is included in regulations.

In relation to the review process, we want totally independent individuals to review only those cases. In our conversations with Disclosure Scotland, we discussed the possibility of 150 such requests being made a year—that is a ballpark figure. Those requests will go to the independent reviewer and should be dealt with completely separately and without any interference from anybody who has been involved in the case previously. That will ensure transparency and show the individual that a fresh pair of eyes is looking at the case. Our team has a routing system, whereby a disclosure officer might take the first inquiry, and then it might be peer checked by a lead disclosure officer before it goes further up the chain. Assessment is done at different stages to reassure the individuals whose information is being assessed.

The Convener

Are childhood convictions, including those involving looked-after children who have been through the children’s hearings system, treated differently in that process?

Sheena Brennan

All the information that we have to hand is assessed. The information is not assessed only against the paperwork that we have; sometimes we will go back to the reporting officer and assess their understanding of the background and how the circumstances came to fruition. We do a full root-and-branch assessment of all the information that we have to hand. Police Scotland looks not only at convictions but at all the documentation, which can be wide ranging and cover a number of years.

We have obviously been involved in the discussions around the age of criminal responsibility and the role of the IR, which came in under the Age of Criminal Responsibility (Scotland) Act 2019. We do not see a lot of work in relation to the ACR for the IR, given that we have disclosed for very few individuals under the age of 12. When we move forward and get into ORI, the 12 to 17-year-olds will automatically go to the independent reviewer in the first instance. That is quite clear.

All the information that we assess is assessed bearing in mind relevance, proportionality, accuracy and necessity, and we obviously take the ECHR into account.

Alison Reid

I am delighted to hear that. That is all really good, but it would be even better if I could have some certainty so that I could tell young people that that is happening. If something was written down, I could give them some idea about whether information would appear. At the moment, I can just say, “It probably won’t”, but I cannot go any further than that.

Sheena Brennan

We are keen to have the Scottish quality assurance framework guidance so that there can be that assurance. It is about whether the information comes to us in the first place. If something is of a minor nature, or if there is no trigger that would bring it to Police Scotland’s attention, we might never see it. That is why we have that assurance.

On the ACR, we have had a lot of discussions with the bill team; we will have another meeting tomorrow to discuss how information is recorded on police systems and how we get that information. At a certain point, it is not criminal information. If there is factual information that requires to be shared, how do we use that terminology? We need to make sure that there is a balance for the applicant and the sector.

Alison Reid

The other difficulty is that, because the relevancy test is specific to the role, a young person does not know whether anything will appear until they apply for a course or employment. It is hard to advise on that, because we just have to say, “We don’t know.”

Sheena Brennan

Again, that is where there should be publicity about whether a role is within the regulated area and whether someone is going to require a level 1 or level 2 disclosure. It will be important that there is publicity or marketing showing what the new legislation is, how things will be done, where mandatory disclosure will come in and so on.

The Convener

We have exhausted members’ questions. I thank all the witnesses for their attendance this morning.

11:28 Meeting continued in private until 11:43.  



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Third meeting transcript

The Convener

Agenda item 2 is our second evidence session on the Disclosure (Scotland) Bill. We heard in September and October from the bill team and from a range of organisations with an interest in the bill. Today we will hear from two panels of witnesses. The first panel consists of organisations that interact with the Disclosure Scotland scheme. I welcome Ben Hall, Scottish development manager at Shared Lives Plus; Oisín Murphy-Lawless, policy, parliamentary and programme support officer for the Coalition of Care and Support Providers in Scotland; Adam Dillon, convener of the safeguarding committee for the Church of Scotland; Florence Witherow, national secretary of the Scottish Youth Football Association; and Sarah Latto, chair of the Scottish Volunteering Forum and volunteer development manager at Shelter Scotland. I invite you all to give opening statements.

Adam Dillon (Church of Scotland)

I am the convener of the safeguarding committee for the Church of Scotland. I have overall responsibility for safeguarding for the Church of Scotland, which is one of the larger voluntary organisations in Scotland. We have 38,000 members of the protecting vulnerable groups scheme. Specifically, I also deal with managing those who pose a risk within our communities and the recruitment of folk with convictions into paid positions and volunteer positions.

Florence Witherow (Scottish Youth Football Association)

I am from the Scottish Youth Football Association, which is responsible for grassroots youth football across the whole of Scotland. We cover age groups up to and including under-21s. The PVG scheme is a crucial part of our safe selection process. We are a major user of the PVG scheme, providing about 5,000 applications last year and about to hit the 5,000 mark again for 2019. It is a major part of our operations.

Sarah Latto (Shelter)

I am the chair of the Scottish Volunteering Forum. I am also the volunteer development manager for Shelter Scotland. The Scottish Volunteering Forum is a collaborative group of cross-sector organisations whose purpose is to use their collective experience and expertise to implement the strategic landscape for volunteering. In my role at Shelter Scotland, I am responsible for about 120 volunteers at any given time, and I champion innovative approaches that promote inclusion.

I have worked in volunteer support roles for more than 10 years, and I appreciate the vital role of the disclosure system in safeguarding vulnerable groups. However, I feel that the current system has some significant barriers to volunteers and that some of the proposals could also produce some barriers. Processing checks is quite complicated and takes some time. In particular, the proposals to remove PVGs for under-16s and to change the definition of regulated work could pose significant barriers to volunteers.

Ben Hall (Shared Lives Plus)

I represent the charity Shared Lives Plus and its members. The shared lives scheme is a unique model of social care whereby a vulnerable adult goes to live with or visits regularly a paid shared lives carer in their own home, where they share home and family life. It is a very stable form of care, with arrangements sometimes lasting for decades, and at times it has an astonishing impact on people’s lives. Shared Lives Plus is the network body and we represent our members from across the United Kingdom and Ireland. We have about 6,000 members, of which about 400 are in Scotland. Our members are either shared lives carers or the organisations that deliver shared lives services—they might be local authorities or third sector providers in Scotland. There are 15 shared lives schemes in Scotland, all of which are members of Shared Lives Plus, and they supported about 545 people in total last year.

Our members welcome the bill. They like the simplicity and clarity that it brings and the streamlining of the processes. They would like us to highlight two areas where changes could be made. First, being a shared lives carer is not identified as a regulated role, although shared lives is clearly covered by some of the activities as defined. In comparison, foster care, which is an analogous type of service, is defined as a regulated role. The analogy is that, in both cases, care and support is provided in people’s private homes and within family life over a long time. Secondly, our members have long campaigned and long asked us to try to find a way for the family members of a shared lives carer to be subject to an enhanced disclosure check. Those people are not paid to work and provide direct care, but they are living in a privileged position with vulnerable people over a long time. We are very happy to explore those areas with you.

Oisín Murphy-Lawless

Thank you very much for having CCPS along to provide evidence at this session. I am the policy, parliamentary and programme support officer for CCPS, which is a members’ organisation representing 80 of the largest third sector care providers in Scotland. As such, we find ourselves in an interesting position in so far as we rely on PVG because many of the people our members work with and support may fall into one of the categories of vulnerable adults or vulnerable children.

On the other side of things, many of our members work to bring people back into the system and back into employment, and they support better living choices for them. We are aware of the challenges posed by PVG in relation to people with offending convictions coming back into regular life.

We welcome the streamlining of the legislation, but we would like further clarity on how fees work within the system, on how membership cards—the non-digital interaction with the new PVG scheme—work and the impact on recruitment of other relevant information and the review process. We have a concern that it may present challenges for our members as employers.

The Convener

Thank you. We move to questions for the panel. We have two panels today, so we are quite tight for time. Please answer only if you have something to contribute, but we do not want to lose any of your valuable knowledge in this area.

Iain Gray (East Lothian) (Lab)

I have a question that is specifically for Ben Hall. In your submission, you not only express some concerns about the nature of the bill but suggest amendments to the bill. How would you like to see the bill amended to address the issues that you raised in your preamble?

Ben Hall

There are two themes to the feedback that we get from our members. The first is the question of family members who are part of the shared lives household, who are most likely to be the spouses of the shared lives carers. They do not take part in the delivery of the care, so they are not subject to any police check or disclosure process, but they are clearly in a privileged position—they are sharing a private house over many years. Our members have always wanted the opportunity to ask that those people be subject to an enhanced disclosure check, just to close the circle of protection for the vulnerable adults.

Iain Gray

Would that make the situation for the model that you are talking about for adults the same as the position of the families of foster carers?

Ben Hall

It would. I understand that the all the adults in a fostering household are subject to a police disclosure check, and our proposal would bring us into line with that.

Iain Gray

There was a second theme.

Ben Hall

There was a second theme, on which I was going to talk separately.

The Convener

Rona Mackay wants to come in with a supplementary question on that area, first.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Do the vulnerable adults stay overnight or are they daily visits?

Ben Hall

It is an alternative to residential care. Shared lives is a model that grew out of the closure of learning disability hospitals, when people went to live with carers. The adult placement regulations grew up to supervise that model, and it is inspected by the Care Inspectorate. People live with families. The model has evolved; there is also a short break model and a day support model, particularly for older people and people with dementia. However, probably about two thirds of the people live with the families over a significant length of time—it can be for decades. It is a very stable and heartwarming model.

The Convener

You were going to continue with a second area.

Ben Hall

The second theme is the idea of shared lives being a regulated role within the legislation. That is similar to the first argument, that the shared lives model of care is analogous to fostering. Fostering is defined specifically as a regulated role within the new bill, and there is no specific reason why fostering and shared lives should be seen differently within the legislation. Protection within shared lives, through the PVG check, operates within quite a wide protection mechanism. There is an extensive assessment—it may take three to four months—of people who want to be shared lives carers. An independent panel approves whether somebody can be a shared lives carer, and a review and monitoring process follows that. The PVG check is a core part of that process.

There has been quite a lot of growth in the area. About 70 per cent more people are supported within shared lives now than were supported three years ago. The nature of the growth presents a risk of dilution of the model. It is worth defining the model and having a regulated role so that there is no dilution and more people can benefit. It is a model of care that has a very low incidence of abuse, partly because of all the firm structures that we have for the supervision of care within a private household.

The Convener

Are those checks and balances relevant to all organisations, or is your own organisation putting them in place?

Ben Hall

We are the network body, so we do not deliver any shared lives services. They are delivered by our members, and all our members undertake all those processes. They are a core feature of a shared lives arrangement.

The Convener

Is that process voluntary for them? How much of what they do is statutory?

Ben Hall

The independent panel is a crucial part of the process. The length of the assessment is not set, but my experience is that all assessments take three months or longer. It is a similar process to fostering, with multiple visits by social workers, assessments and a report that goes to the independent panel for approval.

Ross Greer (West Scotland) (Green)

I have a couple of general questions for the panel. I will focus on the issue of removing under-16s from the scheme. Given that Sarah Latto mentioned that issue in her opening remarks, and given that it is dealt with in the Scottish Volunteering Forum’s written evidence, will she lay out the forum’s specific concerns about it?

Sarah Latto

Sure. The proposal is that PVG scheme membership be removed for anyone under the age of 16. However, our evidence suggests that a lot of volunteers are in that age range and they require PVG checks or are doing regulated work.

I am sitting next to Florence Witherow, and sport is a really popular volunteering activity among young people. They do regulated work with other young people and often require PVG membership. Our concern is that, if we removed that, given that there is also the proposal to make being a PVG scheme member mandatory for doing regulated roles, a lot of organisations would interpret that as meaning that people under the age of 16 would no longer be able to do any voluntary work with vulnerable groups. We think that that would be a real shame and that it would not reflect current circumstances and roles that young volunteers fulfil.

10:15  



I will give some statistics. In 2014, Volunteer Scotland conducted research that showed that over 50 per cent of school-age children volunteer. That is quite significant; the adult volunteering rate is 26 per cent. The 2018 Scottish household survey statistics show a slight decline in youth volunteering. That survey does not cover anyone under the age of 16, but it covers 16 to 24-year-olds. We have seen a decline in adult volunteering from 29 per cent to 26 per cent in the space of a year. The volunteering for all outcomes framework was launched by the Government this year, because it wants to promote volunteering from the earliest possible age. We think that the proposal would undermine those ambitions quite significantly.

Ross Greer

I forgot to refer to my entry in the register of interests. I am one of the 38,000 Church of Scotland PVGs. I thought that it would be worth mentioning that before I ask a general question.

Sarah Latto mentioned the potential impact on under-16s participating in volunteering. I am interested in the thoughts of the rest of the panel on what impact there might be.

Adam Dillon

I am happy to offer my own opinion on that. I do not think that there would be a significant impact. We do not have a huge number of people under 18 who are PVGed, simply because we take the view that people under 18 are children and what we understand to be regulated work is reserved for an older age group. That does not preclude children from being involved in highly significant work, but that is an understanding of regulated work. We have concerns about people who are under 18 making mistakes or behaving in a way that would result in their being reported through the disclosure system and about the impact that that might have on their later lives. We take the view that children are children.

Florence Witherow

The Scottish Youth Football Association’s rules dictate that officials need to be over 16. From our point of view, that particular section of the bill would not have an impact because, as things stand, all our volunteers are over 16 years old.

Oisín Murphy-Lawless

I will speak more generally. Although we do not have a particular view on under-16s working in roles, it needs to be acknowledged that there would be a concern for our members about employers consistently erring on the side of caution in respect of the definition of regulated roles. I see our members being concerned that, if somebody did not require PVG membership, they would not necessarily feel confident about employing them. Sarah Latto has alluded to that.

Sarah Latto

To follow up on that, I will give a couple of examples of roles that young volunteers fulfil. One of our members is Befriending Networks, which is the national network for befriending in Scotland—it is worth mentioning it, as this week is befriending week. Interest Link Borders, which is one of its members, has 60 volunteers of school age. Children’s Hospices Across Scotland, which is another of our members, regularly involves young people in its hospices, and it thinks that the impact and the value that young people can bring should not be underestimated.

Ross Greer

The proportionality argument has been made in the context of removing under-16s from the scheme. It has been argued that the approach is not proportionate to the number of under-16s, the risk and safeguarding management. What is the burden of administering the scheme for under-16s? What are your views on the proportionality argument? Is there any significant difference in administering PVG membership for someone under the age of 16?

Sarah Latto

From my personal experience, there is practically no real difference.

Ross Greer

I have a specific follow-up question for Adam Dillon on the points that he made. The Church of Scotland’s policy is that anyone under the age of 18 is a child and should be treated as such. When you have people under the age of 18 doing work that you would view as regulated work if they were over 18 and that is defined as regulated work, what are the church’s safeguarding policies in relation to the vulnerable groups with which those young people might work?

Adam Dillon

First, I would like to clarify something. It is not about people under 16 taking on roles that would be perceived to be regulated work; rather, it is suggested that it would not be appropriate for them to move into a specific role that involves regulated work until they had passed a certain age. That does not mean that they could not do similar work. It is about ensuring that they have appropriate supervision and that they are with somebody who is, under the new legislation, in a position of trust in doing what we understand as regulated work. It is about ensuring that people are buddied up in that sense.

Daniel Johnson (Edinburgh Southern) (Lab)

A number of panellists mentioned in their introductory remarks the streamlining of the process, but the flipside of that is that quite a broad range of information can be provided through a background check. Will the information that may be obtained under the proposed regime be sufficiently predictable compared with what can be obtained under the existing one?

More important, I understand that the proposed system will rely on the application of a twofold test that considers whether information is relevant and whether it ought to be provided. Are you clear about what that means?

Oisín Murphy-Lawless

I saw you express your concern about that in the committee’s previous evidence session on the bill, and I note that the representative from the Scottish Social Services Council remarked that it would be important to develop guidance with Disclosure Scotland to help to clarify that.

Although the bill does a good job in trying to simplify the scheme, that matter is definitely a concern for us. Our members work in a sector that is challenged in relation to recruitment, and it is harder for them to get the staff that they need and want to fill roles. The proposed system could be a bit of a barrier to that because potential employees could be concerned. The system is not necessarily clear, and in the previous evidence session, both the Convention of Scottish Local Authorities and the SSSC were quite keen for commitments to be made that there will be work to further clarify the system.

Speaking personally, with a human rights law hat on, I think that it is unfortunate that such cases are almost inevitably dealt with on a case-by-case basis. It is hard to provide guidance regarding foreseeability when individual cases are dealt with only as they come up. There is a body of work to be done to improve that. It would certainly help to alleviate our members’ concerns as employers, and on the other side it would help our members who are looking to bring people back into the workforce.

Daniel Johnson

It seems that there are no other views on that.

If we consider the case law, the Government has referred us to the case of R(L) v Commissioner of Police of the Metropolis, in which the judge summed it up by saying that it is about proportionality. It will boil down to either Disclosure Scotland’s or Police Scotland’s understanding of the relevance of the information that it has in front of it to the role that you or others are looking to put the person into. Will Disclosure Scotland and Police Scotland have sufficient understanding of such roles to understand whether it is proportionate to provide the information that they have?

Oisín Murphy-Lawless

Again, speaking in a personal capacity, I think that we have to trust the public bodies to balance that test of proportionality. It is a fundamental test to do with the rights of the individual versus the protections that are required for society.

Speaking on behalf of our members, I note that we need to look at the review process of the independent reviewer to safeguard any differences in interpretation as to what might be relevant and what ought to be released, with a view to proportionality. Our members would be concerned that the review process should balance the need for a swift review of the information at the behest of the applicant against their getting a fair view.

We would like to see a commitment—I do not know whether the financial memorandum is the most appropriate place for it—that the review process will be sufficiently resourced and that there will be enough money and hours for the independent reviewer to consider any differing interpretations of what is relevant and what ought to be done.

Daniel Johnson

Finally, I will, in a sense, turn Ross Greer’s questions on their head. The other side of the issue of people under the age of 16 volunteering is when concerns arise because people have convictions or, more particularly, the police are aware of other relevant information that falls below the level of a criminal conviction. The intent is clearly that adolescence should be treated as a special period in people’s lives. That is what the Government has stated. Is the bill clear enough about how and when information is relevant when someone is seeking to take up a protected role?

Sarah Latto

Another of the potential paradoxes in the disclosure scheme is that under-16s are still allowed to apply for other disclosure products; they are just not allowed to apply for a PVG. If someone is under 16, it is very unlikely that any information will be disclosed. They could be given the opportunity to get a PVG in order to do regulated work, as the only information that is really vital to make a decision on whether it is appropriate for somebody to do regulated work is whether they are on one of the barred lists. It is not necessarily about sharing the disclosure information or the conviction information; it is about whether they are barred.

Florence Witherow

Following on from the point about the potential removal of some of that information, I note that, for us, a key factor is the time element. When we get PVGs that contain stuff from when somebody was over 16 or other relevant information, but not a conviction, we have a rigorous and fairly time-consuming process for making a final decision on whether the person will be offered membership or invited along to our protection panel for further assessment.

Speaking on behalf of one organisation and thinking of the time that it takes for us when we already know the exact role that the person would be carrying out, I think that, if a generic group was doing that work, there could be some serious problems with how long it would take for reviews to be conducted.

10:30  



Liz Smith (Mid Scotland and Fife) (Con)

I put on the record that I hold a PVG with regard to school sport.

Lawyers have told the committee that there is a potential difference between information that is relevant and information that ought to be relevant, and it concerns us that those could be two different things. A couple of you have hinted at that. Mr Murphy-Lawless, you said that guidance would be helpful. Would it be just as helpful to have a legal interpretation of those two terms?

Oisín Murphy-Lawless

Any clarity is to be welcomed. I understand that, in your evidence session with COSLA, the SSSC and Police Scotland, there was an extensive discussion about whether the bill should contain clearer principles. Any clarity that we can get on those terms would be welcomed by both our members, who are employers, and people who are applying for jobs.

Liz Smith

In each of your organisations, you will have case history. You have to make judgments on whether people are suitable for a PVG, and you base your decision making on what has and has not worked for you. Do you feel that additional information would be helpful? You are nodding, Ms Latto. If you do feel that, will you explain what that additional information is?

Sarah Latto

I work for Shelter Scotland, which supports people who have been affected by homelessness and bad housing. A significant number of our volunteers have lived experience of homelessness and bad housing, and, as a symptom of that, a number of our volunteers have conviction histories. We have robust processes, but we also recognise that people who have convictions are entitled to have those considered. When we consider an applicant, we take a lot of time to consider in partnership with them the circumstances surrounding the conviction and the journey that they have travelled, recognising that volunteering is often part of a recovery journey.

A suggestion has come from one of our volunteers, who has a conviction. When she approached us to start volunteering, she was barred from working with vulnerable groups, and she successfully appealed that decision. She has suggested that, when conviction information comes through, it would be helpful if there was a free text box where people could share the circumstances surrounding their conviction history. She and a number of other volunteers have reported that continuously having to share their stories when they are trying to move on from the mistakes that they have made in the past can be quite traumatic as it involves constantly reliving the trauma.

We think that what that volunteer has suggested would be very helpful. One of the proposals is that, when somebody makes an application, the disclosure information will go to them first and it will be for them to decide whether they want to share it. It would be really nice if there was an opportunity for the applicant to share the circumstances surrounding that and what has happened in their life since it happened.

Liz Smith

That is helpful. Ms Witherow, you mentioned that it is time consuming to make sure that you get judgments absolutely correct. Would the scope for further information to be added be a serious barrier to you in the context of how you go about making your judgments?

Florence Witherow

Not necessarily. As I mentioned in my introduction, the PVG is only one part of our safe selection procedures. If there is an item on somebody’s PVG that we would like to know more about, we will ask them to fill out a self-declaration form, which gives them that opportunity. I suppose that, in that sense, there is a delay at our end. If we take on Ms Latto’s suggestion and there is an opportunity before it goes to the organisation, there would not necessarily be that delay. It is just about the point at which the applicant is asked to provide the information.

Liz Smith

That is helpful. On the cost of the PVG membership scheme, does anyone have concerns about the cost to those individuals who pay themselves instead of the organisation paying for them? Are you concerned that we might be putting people off coming forward as a result of that?

Adam Dillon

We are concerned that the cost is significant for low-paid workers. It is important to recognise that.

Oisín Murphy-Lawless

Our members would agree. We seek greater clarity specifically with regard to volunteers. It is not apparent whether volunteers will definitely be free of charges if they move out of volunteering and into the professional workforce, perhaps on the basis of their experience as volunteers—it is not clear whether they will be expected to contribute. We are looking at a five-yearly scheme, so people will be expected to renew regularly.

On the question of the fees and whether they are acting as a disincentive for people in low-paid work because they feel that they cannot apply for posts unless they have joined the scheme, the answer is yes—it is a further barrier to them.

Ben Hall

Recruitment of shared lives carers is always a challenge. Although they are not voluntary roles but paid roles, we should keep that in mind and try to fight against any extra barriers.

Sarah Latto

We share those concerns. There is a lack of clarity around volunteers. At present, PVG membership is free for people who are volunteering for a qualifying voluntary organisation. We feel that it is unfair to expect people to pay if, as a result of their volunteering, they move into employment, particularly given that, if someone moves into a role that is relevant to the volunteer role that they had previously, it is likely to be quite low paid and at quite a low grade to begin with. Expecting them to pay seems a bit unfair and it does not recognise the value that they added as a volunteer up to the time when they applied for paid employment.

Dr Alasdair Allan (Na h-Eileanan an Iar) (SNP)

I am interested in panel members’ views about a related issue, which is the types of offences that the legislation does or should list, particularly where that impacts on the associated timescales for disclosure. The previous legislation talked about schedule 8A and 8B to the Police Act 1997 offences with associated timescales for disclosure. The new legislation talks about list A and list B offences. Do panel members think that the view that is taken about disclosure of list A and list B offences is appropriate? Are the timescales associated with those lists the right ones?

Sarah Latto

I cannot speak to the specifics of it but, from an inclusive perspective for volunteers, we would welcome the reduction in the length of time for which convictions are on people’s criminal records.

Dr Allan

I did not mean to be too technical there—sorry. There are offences included in the lists and the Scottish Government has put forward a rationale as to why it has divided the offences up as it has. The policy memorandum sets out the Government’s view about the list of offences—those that resulted in serious harm to a person, those that represented an abuse of a position of trust or displayed a degree of recklessness, and so on. Building on what you have said, Ms Latto, is there anything that you would like to see changed in this part of bill that deals with timescales and the lists of offences?

Ben Hall

As I explained, PVG operates in a significant assessment process within the shared lives scheme, so the context for offences would always be considered. The suggestions do not appear to be a threat to protected adults that we work with.

Florence Witherow

I echo that, because it falls under a much wider safe selection process. If something has been deemed no longer of relevance or if a set time period has passed, it would not seem to pose a risk to us.

Adam Dillon

We have no particular additional views on list A and list B, but I think it is because this falls into how we recruit, given the information. We are satisfied with the categorisation and the way in which there are list A and list B offences. It is down to a rigorous process in safe selection, which is the responsibility of our various organisations.

Rona Mackay

Following up on that—it also goes back to the ORI question—will your organisations have enough guidance to train people and recruit them under what is contained in the bill? The other question is whether you think that it clarifies the whole issue. An awful lot of it is down to judgment and is very subjective. Does it concern you that it will, in the end, be down to someone’s opinion in a lot of cases?

Florence Witherow

I am aware that I have made this statement a few times, but it is because we are keen to stress to all of our teams, clubs and leagues that are taking on volunteers that PVG very much has to be seen as just one part of that process. If we were to say, “Yes, as long as the PVG is all done, that is fine,” there would be the risk that you have suggested. Even before anyone can apply for their PVG, clubs or teams—or whoever it is they are volunteering with—expect to meet them, interview them and obtain two references from them, so I do not think that there is a risk there, simply because it is part of a much wider process. Ultimately the decision to grant membership to our volunteers lies with us as the national association. Again, there are so many steps in that. If we looked at PVG on its own, there could be the risk that you suggest, but because it falls under a wider process, I do not think that the risk is there.

Rona Mackay

The SYFA’s process belongs to one organisation. Thankfully, it sounds robust, but not every organisation may do the same.

Florence Witherow

Yes, that is a valid point. We might have it right, but there will potentially be other organisations out there that still view PVG as the be-all and end-all. It would be good if there could be an education process around the new legislation. There will obviously be lots of attention around it when it comes out, so if that opportunity and platform could also be used to explain to people the importance of taking those other steps, that could go a long way to reaching out to organisations that do not necessarily have all those steps in place at the moment.

Ben Hall

I would echo that and probably give a very similar response, in that it is a judgment call. If it is not a judgment call, you are drawing very hard lines that create a natural injustice in any process. That judgment is an important part of assessing risk to protected adults.

Sarah Latto

When the PVG scheme was initially launched, I worked for a local third sector interface in Fife. A big part of my job was about exactly what Ms Witherow was describing and involved providing training to local voluntary organisations on the scheme and how to fit it into their wider safeguarding process. This obviously reflects only on the experience of volunteers, but it is worth mentioning that the status of volunteers is very different from the status of paid employees. The fact that there is no contractual relationship means that the recruitment and selection processes for them can be more of a journey than an event. For example, within Shelter Scotland we do not officially take our volunteers on until they have completed their training. It is interactive, participatory training to make sure that we feel we know them as well as the people who have provided references. The PVG or the disclosure check is just one very significant but quite small part of a much wider process.

10:45  



Adam Dillon

It is important to recognise the concern that you are raising. The reporting system through PVG and disclosure is objective. The subjectivity comes from the organisations that have to consider it. When we meet once a month to consider recruiting either volunteers or paid workers for jobs, if they have any convictions, I rely on volunteers who have experience in police, social work, law and psychology and we sit together as a group. That shows a level of joined-up working, but it relies heavily on the expertise of my colleagues to paint out and understand the broader picture. We are committed to recruiting those with convictions safely.

It raises issues. I have been involved with other smaller voluntary organisations and I wonder how their safeguarding might stand up to that test, particularly when they get the information on PVGs. Not everybody will have the knowledge of what a particular charge means, the length of a particular punishment, whether that is commensurate with a minor offence or whether it is a much more serious situation. We have to recognise that we need a very robust system for this and it relies on the volunteers.

Oisín Murphy-Lawless

I will echo what the other members of the panel were saying. Our member organisations have safeguarding duties themselves. Because so many of the people they support and in some cases care for may also fall within the vulnerable categories, they take those responsibilities seriously. Like all the other panellists, our members will be looking at PVG as part of the system, but not as the be-all and end-all, because it is such a crucial part of considering whether somebody might be well suited to working in social care.

The Convener

I think that that is it. Could I ask one final question? One of the areas of concern to the committee has been around care-experienced young people who, due to their circumstances, may well have proportionately higher conviction rates than the natural population. Do you have any experience of having to deal with care-experienced people? Do you track the number of care-experienced volunteers that you have within your organisations?

Sarah Latto

We do not track it. You say that people with care experience are more likely to have convictions. They are also more likely to experience homelessness or bad housing. To give you one example, we have two volunteers in our foundations first service in Paisley. Both of them are care experienced, both of them have experienced homelessness and one of them has convictions. She very bravely wrote a blog for us last year, which was called “volunteering with convictions” and it shared the value that she added but also the trauma that she went through as a result, because her conviction related significantly to the trauma of being in care. That highlighted to me the need for the disclosure system to treat people who have convictions with dignity and to recognise that they are individuals, and that often the circumstances surrounding their conviction are symptoms of their life experiences and have not necessarily been by their own choice.

The Convener

As there are no other comments, I thank you all very much for your contributions this morning. It was extremely valuable to the committee. I will suspend for just a few moments to allow the panels to change over. Thank you.

10:50 Meeting suspended.  



10:52 On resuming—  



The Convener

We continue with our second panel of witnesses, with whom we will consider how the Disclosure (Scotland) Bill affects those with convictions. I welcome to the meeting Dughall Laing, director of Recruit With Conviction; Rose McConnachie, policy development lead with Community Justice Scotland; Dr Cynthia Marks, senior manager, operations and policy, Business in the Community; and Beth Weaver, vice-convener, Howard League Scotland. I invite the witnesses to say a few opening remarks, starting with Ms McConnachie.

Rose McConnachie (Community Justice Scotland)

I thank the committee for providing Community Justice Scotland with the opportunity to take part in this evidence session.

As the national body for community justice, we have a strong interest in having an effective disclosure system that protects vulnerable people while supporting people with convictions to access employment and education and reintegrate into their community. Our campaign, second chances, shows that access to employment, learning and volunteering are all routes to providing people with the opportunity to reintegrate successfully; they also aid their rehabilitation and ultimately reduce the likelihood of further offending. Work is a key factor in people’s desistance. Beyond wages, work provides a sense of purpose and a stake in society. Evidence indicates that, when used disproportionately, disclosure can lock people out of those opportunities.

We welcome the principles of the bill, particularly the measures around simplification, and recognise that the bill promotes a shift to a more progressive, proportionate and sustainable system for people with convictions while continuing to safeguard the vulnerable.

We are, however, concerned about the creation of a new offence of performing work that would be covered by the PVG scheme without a PVG or following a failure to renew scheme membership, thereby potentially criminalising more people. In particular, the proposed penalty of up to 12 months in custody for a summary conviction seems disproportionate for what may amount to a lapse in paperwork and is a substantial shift from the present system. Of course, a custodial sentence is also inconsistent with the recent extension of the presumption against short prison sentences.

In our evidence, we highlighted the need for accessible guidance to make the new system understandable to all who use it: people with convictions, employers and others.

Beth Weaver (Howard League Scotland)

I represent Howard League Scotland, which is Scotland’s only penal reform organisation.

We welcome the opportunity to give evidence, and we hope to build on the evidence that we have given previously in relation to the age of criminal responsibility and the Management of Offenders (Scotland) Bill. We also recognise that the proposed changes seek to achieve a much more proportionate and individualised process that balances safeguarding the public with the rights of individuals with convictions.

Our submission attended to four key areas: childhood convictions and the issue of individualised disclosure; uses of other relevant information; representation, review and appeal; and removable and non-disclosable convictions.

With regard to the first key area, we welcome the provisions that treat childhood convictions as a separate category and limit the disclosure of information relating to children and, in particular, the automatic disclosure of childhood convictions. We feel that that approach takes Scotland towards a more individualised and structured discretionary model of disclosure. With regard to the disclosure of convictions accrued in childhood, we question why such a model or approach might not be applied to adult convictions. However, we advocate for a more individualised approach to the disclosure of convictions in general.

We have suggested that, if ORI is to be disclosed, the implications of any disclosure need to be carefully evaluated in terms of proportionality and necessity in relation to the ends of public protection against the rights of individuals. We also believe that the bill should categorically rule out the disclosure of certain kinds of information that might be disclosed currently as ORI.

We welcome provisions relating to reviewable data, including rights of review, representation and appeal. While we welcome measures to include representations from the applicant, which can allow for a much more situated understanding, we propose that consideration is given to providing for an independent reviewer on first request for all reviews, rather than a review initially being undertaken by the body whose decision is to be reviewed.

We also welcome the provisions in the bill for reducing the period after which a conviction may become non-disclosable or an application for removal can be made. Drawing on research evidence produced by time to redemption studies, we still have questions about the disclosure of spent convictions for the purposes of public protection in circumstances where the evidence would suggest that that person is statistically no more likely than members of the non-convicted population to commit a crime in the future. We also question the rationale for continuing to disclose spent convictions if there is scope in the provisions of the bill to remove them before that point. If a conviction may be removed, that suggests that on-going disclosure is not required in the interests of protecting the public.

Finally, the onus seems to be on the individual to apply to have their conviction removed, which rather depends on their having both the knowledge and the means to do so. Ought not the responsibility properly reside with Disclosure Scotland to review the relevancy of continued disclosure of spent convictions? That the subject is required to pay a fee for consideration of removal of the conviction puts yet another barrier in the way of people with very limited means.

Dr Cynthia Marks (Business in the Community)

I thank the committee for giving us the opportunity to speak this morning.

Business in the Community is the oldest and largest business-led membership organisation dedicated to responsible business. We inspire, engage and challenge our members, and we mobilise that collective strength as a force for good in society to create a skilled, inclusive workforce today and for the future, build thriving communities in which we live and work, and innovate to repair and sustain our planet.

We welcome the direction of the Disclosure (Scotland) Bill, especially its focus on rehabilitation and the removal of barriers to work for people with criminal convictions. We feel that its aim of striking a balance between rehabilitation and safeguarding is also to be commended, as is the empowerment of individuals to have control over their data.

We have long been an advocate of removing barriers to employment for people with criminal convictions. With Walgreens Boots Alliance, we set up the national reducing reoffending through employment network in 2012, and we launched the ban the box campaign in the UK in 2013. Ban the box encourages employers to remove the tick box from application forms that ask about criminal convictions and to decide whether, when and how best to ask for that information later in the recruitment process. The campaign has gained traction nationally, with more than 140 employers currently signed up, covering more than 914,000 roles. It has been adopted by the civil service in England and features in the Ministry of Justice’s employer guide. The campaign was officially launched in Scotland on its fifth anniversary, in 2018, and is promoted as part of Release Scotland’s approach to recruitment.

11:00  



Dughall Laing (Recruit With Conviction)

I am one of the directors of Recruitment With Conviction. We work with employers and intermediary agencies that support the one in five adults in Scotland who has a criminal conviction. We welcome the chance to provide some input into the bill. We also welcome the proposed changes, including in relation to the development of a system that should be more proportionate and the growth of independent verification.

However, we have some concerns. In particular, we are concerned about access to the information that belongs to those individuals and the costs involved; the understanding of employers and individuals of how the system is used; and the unintended impacts through the management of the system—currently, the disclosure system does not perhaps operate in the way that people would expect it to. We would like to see some of those things strengthened in the bill. Finally, we are very keen to see more independence for the third-party verifier and to understand how that role is to be used to have an oversight of the process.

The Convener

Thank you very much. We will move straight to questions from the committee.

Liz Smith

You probably heard me asking the previous panel about key legal issues that have been flagged up to us. Specifically, do you think that full clarification on a legal basis is needed of what is relevant and what ought to be relevant, as they are potentially two different things? Would clarification from a legal perspective be helpful?

Dr Marks

Yes, that would be very helpful. However, legal clarifications can sometimes be rather difficult to understand, and a lot of organisations—particularly smaller and newly started ones—might not have the background experience to translate a legal clarification, so it would be helpful to translate that into layspeak.

Liz Smith

Would it be helpful to have the legal clarification and the guidance written in straightforward English, so that everybody would understand it?

Dr Marks

Yes, it would.

Liz Smith

The previous panel raised the issue that there will be circumstances in which people will want to find out more information. I think that your organisations will feel much the same about that. Will the bill allow you to have all the information that you need to make the right decisions?

Dughall Laing

One process that needs to be involved relates to the use of the information. Members of the previous panel talked about their own safeguarding systems and processes. PVG scheme membership is part of the process; it is not the be-all and end-all. Good clarification and good understanding of how information will be used will be vital. Small businesses do not have that information or the capacity to develop that, so guidance and good support for them need to be in place from the outset.

Dr Marks

We second that. That is one of the roles for other organisations outside of what the bill can accomplish. There needs to be a wider piece of work to encourage more employers, regardless of which sector they are in, to develop such processes and to see that as one step, regardless of what sort of disclosure they are looking at or are required to get. A lot of employers will not have developed that sort of system on their own, so clarity and well-developed guidance with the bill and on the disclosures are essential.

Liz Smith

Do you think that that might impose more time restrictions on some of your staff as a result of interpreting that and having staff training? Would that be another barrier to people acting as volunteers and helping?

Dughall Laing

Training and development for organisations is our bread and butter, and we have provided training on that for seven or eight years. There is an assumption by individuals and applicants that those to whom they submit their information understand things, but they quite simply do not. Even in large organisations in which there might be a human resources department that understands the PVG system, information is not relayed to decision-making managers on the front line. Therefore, there is a very emotive process in which people do not understand the information. If the information is not presented in the best fashion, people will not get through into the labour market, because it is quite simply easier for people to say no than to say yes.

Liz Smith

Do you have any views on the financial cost of the proposed legislation?

Dr Marks

We welcome the further guidance, and it has been suggested that there will be another consultation on the process. It needs to be proportionate for small employers, particularly any employer that is trying to be responsible and will be paying for things itself. With the potential of people moving into and out of regulated roles, a further consultation on that is absolutely essential.

Rose McConnachie

I largely second that. It is worth considering the other point that was made during the earlier panel session about the resourcing of the independent reviewer. There is scope for that resource to be used more than four days a month, as was envisaged.

Dughall Laing

During the earlier panel discussion, the issue was raised that there will be transitions from volunteering to paid employment. One of our big concerns is that individuals can currently access their criminal record free under the general data protection regulation, and we would like a similar process to be maintained in the Disclosure (Scotland) Bill where the individual has pre-existing knowledge of what may or may not be disclosed to allow a judgment to be made. I know that a process is built in in which they will see that information before it goes to the employer, but that is too late. They really need to see it before that stage so that they can make an informed decision on whether they want to be part of the panel. Fundamentally, it is their information, and it needs to be protected.

The Convener

I want to ask you further about that. We have talked about other information that may be disclosed. That information would be about someone’s conviction. Other information would not be relevant.

Dughall Laing

I suppose that that is where the balance is and where the art exists. The ORI and the other information that will be presented to employers will have a bearing on whether the person is selected. The conviction information is quite cut and dried, and people can currently access that for free. We are instituting a system in which that will no longer be the case for a large section of employment. We need to maintain that access, and ORI becomes a different piece in the whole process.

Daniel Johnson

My line of questioning follows on from what I asked the first panel and, indeed, Liz Smith’s questions. Under the bill, is it sufficiently clear what information will be provided in what circumstances, given that we do not have sight of the guidance? Is that an issue for the panellists?

Rose McConnachie

Yes. Greater clarity on those things and the development of good-quality guidance are vital. The guidance is intended to support people in making decisions in a liminal space. There will be fine judgments, and the guidance cannot be black and white, as that would result in people being locked out of the system.

We think that making robust, good-quality guidance available to everybody who is involved in the process is the key. They will not all be lawyers and specialists in risk assessment. We look forward to the development of that guidance, but I do not know how much of that information needs to be in the bill at the front end. We do not have a formal view on that.

Daniel Johnson

I am interested in the view of Howard League Scotland. Its written evidence says that there should be

“a universal set of guiding principles to underpin the disclosure of ‘soft’ information”.

I wonder whether that is true of all the disclosures that might take place under the act.

Beth Weaver

That is certainly our position. We would advocate for a much more individualised approach not just to the use of other relevant information, but to the disclosure of convictions. Leaving to one side that spent convictions are not disclosed in continental Europe, there is scope in the bill to deal with the matter. A discretionary approach is taken to the disclosure of childhood convictions. What is the rationale for not adopting such an approach with adult convictions? An individualised approach would allow a case-by-case, structured approach to decisions to disclose, and that is really important in balancing rights to public protection and upholding the rights of individuals with conviction information. It has been suggested that schemes without the flexibility to permit that level of discretion cannot be compliant with article 8 of the European convention on human rights.

On the inclusion of non-conviction information, we would refer to some of Grace’s guidelines in 2014. He suggested tests that should apply to the disclosure of any such information. He asked:

“is the information indicative of the (alleged) commission of a sufficiently serious offence which it is reasonably certain was committed by the individual concerned, that is currently relevant to the purpose ... of public protection, and which the individual concerned has had an opportunity to comment meaningfully upon (where the information is of an allegation, caution, arrest, charge, or prosecution not resulting in a conviction)?”

Guidance is also available from the Equal Employment Opportunity Commission in the US. Although that is given to employers to help them to make sense of information that is disclosed, there are guidelines that might be extrapolated to inform a much more individualised approach to decision making on convictions. For example, three specific criteria are mentioned, which are referred to as the nature-time-nature test. You have to look at

“The nature and gravity of the offense ... The time that has passed since the offense, conduct and/or completion of the sentence”,

bearing in mind time-to-redemption studies, and

“The nature of the job held or sought.”

Further guidance is offered, which refers—the first panel talked about this—to attention to the “circumstances surrounding the offence”, the number of offences that the individual has been involved in and whether that suggests a pattern, and age at the time of conviction and/or release from prison. That allows for a much more situated approach to the disclosure of convictions.

Daniel Johnson

That sounds like a set of principles that could be codified and put in the bill.

Beth Weaver

It does.

Daniel Johnson

Does the panel agree with the Law Society of Scotland’s point that a set of principles—perhaps such as that just enunciated or similar—should be put in the bill?

Dr Marks

Yes. A consistent set of principles would give everyone confidence in the process and a transparent understanding of what is taking place and how decisions were made. That would give employers more confidence, as well. If there was a published set of standards by which everyone came to decisions, that would give everyone clarity, so I absolutely think that that would be welcomed.

Daniel Johnson

I would like to ask one final question, which is—

The Convener

I want to ask a question on that issue.

Daniel Johnson

Sorry.

The Convener

It is important that a lot of heads were nodding, but that cannot be put in the Official Report.

Do all the panellists agree with that?

Dughall Laing

I agree with that. People presume now that the PVG system almost operates in that way, but that is not true. One of the big criticisms that employers and individuals make is that that process has not been gone through. We absolutely endorse a much tighter sense of principle at the outset.

Rose McConnachie

I could not see our objecting to greater clarity and that positioning of underlying principles.

The Convener

Do you agree, Dr Weaver?

Beth Weaver

Yes.

The Convener

I am sorry to have interrupted Daniel Johnson, who has a supplementary question.

Daniel Johnson

It is my final question, and again it follows on from what I asked the previous panel. The bill and policy memorandum are relatively clear that the intent is to treat adolescence as a special point in time, and there is clarity about the offences committed. I am concerned about whether there is a grey area around other relevant information that stems from people’s behaviour and contact with the authorities under the age of 16. Is the bill clear on how and when Police Scotland may disclose that information if someone, at a later stage when they are over 16, applies for a PVG?

Dughall Laing

To turn that on its head a little, one of our concerns is that, if we are removing information for all under-16s, as soon as there is anything on there, the individual will be deemed to be far too high a risk for any employer or organisation to take on. We welcome the approach of treating young people as young people, and there is a need for the measure, but it means that those who have information reported on them at a later stage will be far more stigmatised and the assumption will be that the behaviour involved was beyond any form of acceptable behaviour. It creates that dichotomy and contrast in the process.

Daniel Johnson

That is my exact concern. Is it clear how and when such information might be disclosed?

Dughall Laing

It is not clear to me, but there are people in this room who are much more clever than I am.

Beth Weaver

I have no insight into how and when such information would be disclosed, based on the guidelines that have been provided so far.

11:15  



Daniel Johnson

Does that concern you?

Beth Weaver

Yes.

Rose McConnachie

We share that concern. The example of young people in care came up in the earlier panel. We know that young people in care experience greater contact with the police, often for things that, were they in a normal family setting, would perhaps not come to the attention of the police. We are concerned that ORI might have an unequal impact in that space. I do not think that that is the intended consequence, but we worry about that mechanism.

The Convener

Dr Allan, do you want to ask about the lists again?

Dr Allan

I have nothing to add about that.

The Convener

The earlier panel were asked about the A and B lists. Does this panel have any comment on that area?

Dughall Laing

I have quite a lot of comments on it.

The 2015 amendments that were made to the list system genuinely were a great step that gave people the opportunity to move on from their previous offences. However, the list system in its current format has not worked in any way, shape or form. A report by colleagues at Community Justice Scotland has referenced the fact that those who have not made any form of representation into the appeal system are not having their appeals taken forward. The system is not being used appropriately. One big issue is a lack of comprehension among employers and applicants as to how the list system operates.

Under the existing system, people are finding that their convictions are not automatically removed, although that should happen. It should be a fairly straightforward weeding process for the vast majority of offences, but that is not happening. There is an issue with the accessibility of information and individuals’ ability to use the system. There is a real need to strengthen that as much as possible to ensure that it happens automatically and that the process is independent.

We often find that people assume that the decisions are made by human beings but, as I understand it, they are quite commonly made by programming. That is fine, but it means that that objective information is not brought to bear in the process.

We welcomed the 2015 amendments, which were a fantastic step at the time. However, the system needs strengthening and needs to be used on a much higher level so that people have their previous convictions removed.

Similarly, to go back to Beth Weaver’s point, the arbitrary period of 15 years for an adult does not reflect the information. The reduction by four years is welcome, but my understanding is that it is purely because of the reduction of four years relating to the bulk of offences under the Management of Offenders (Scotland) Act 2019 and that first level of disclosure. It becomes a bit arbitrary. I suppose our question is whether there is more scope to ensure that the period reflects the evidence, which Beth Weaver laid out, instead of simply deducting four years because that has been deducted from the period relating to community disposals.

The Convener

Rose McConnachie mentioned care-experienced young people. Given that a disproportionate number of young people who are in care have engaged with the authorities and that, under the Children and Young People (Scotland) Act 2014, we extended local authority support to young people to the age of 25, is there a particular and special case to be made for care-experienced young people that what would be disclosed for them should be different from what might be done for other young people under the age of 16?

Dr Marks

Somebody in the previous panel mentioned having a free-text box and a chance to explain. That could be a consistent process for everybody, which might help young people from a care-experienced background and perhaps others who have faced challenges to explain their situation. They might feel more comfortable doing that in the process of the disclosure than in a live interview. As was said in the previous panel, it is important to recognise that that is just one aspect of how we support care-experienced young people and other young people who face particular challenges, especially in supporting them into employment. Employers and support organisations can do a lot more outwith the bill to ensure that that kind of stigma is removed, but that might be an option for supporting them through the bill.

Beth Weaver

I have just had a thought about that. In reading about decision making around the disclosure of childhood convictions, I found that one of the circumstances in which childhood convictions might be disclosed would be when a pattern continued into adulthood. One of the difficulties is that people who are looked after or care experienced often have arrested development and less opportunity to move on in life compared to somebody who is perhaps engaged in an isolated offence at the age of 13. We also know that our prisons disproportionately rehouse, for want of a better word, a lot of people who are care experienced. Therefore, the likelihood of care-experienced people going on to develop a pattern of adulthood offending means that they are precisely the people whose childhood convictions, by implication, will be disclosed.

So, now that you have mentioned the issue, convener, I do have some concerns.

The Convener

That is not my job, but never mind.

Rose McConnachie

Care-experienced young people often feel disempowered by a lot of the experiences that they go through. Disclosure runs the risk of being further disempowering by taking away their agency over their information. However, there is something that could help empower about that. Supports and processes could be put in place to help empower people to take ownership of their journey and experiences and to help them explain where they have been, where they have come from or where they want to go. In these discussions, there is a risk that we are very deficit based, but we are talking about people with strengths and skills and there is an opportunity to help focus on that as part of how disclosure could be used.

The Convener

Indeed.

Dughall Laing

There is a need to be much more proportionate about the information that we are using and how it is assessed and passed on. Because young people who are involved in the care system are observed in a structured fashion, we know that they are much more likely to be involved with the police. We need to stop singling them out as a group and start thinking about that wider issue.

Lesley McAra’s studies have shown that people’s socioeconomic background and where they come from have a high bearing on whether they pick up a conviction, even in like-for-like situations. Similarly, a lot of the people who we are looking to protect are young people with additional needs. More and more, we are seeing that they are the people who are coming through who have convictions from when they were younger, perhaps because of their behavioural understanding and such issues. We almost need to institute a system that looks after not just kids who have been in care but those who come from poorer backgrounds and those who have additional learning needs, because they are all much more likely to end up in the criminal justice system and the implications for them go on for much longer.

The Convener

There are no further questions from my colleagues. If you have not had the opportunity to discuss anything today but you particularly want to bring it to the committee’s attention, it would be helpful if you could provide information on it through the clerks. Thank you all for your attendance this morning. It has been very helpful.

11:23 Meeting continued in private until 11:47.  



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Fourth meeting transcript

The Convener (Clare Adamson)

Good morning, and welcome to the 30th meeting in 2019 of the Education and Skills Committee. I remind everyone present to turn mobile phones and other devices to silent for the duration of the meeting.

The first item of business is our fourth evidence session on the Disclosure (Scotland) Bill. We have already heard from the bill team and a range of organisations with an interest in the bill. Today’s panel consists of organisations whose focus is on young people.

I thank the attendees at the focus groups that we held last night and this morning. It has been very valuable for committee members to hear about participants’ personal and practical experiences to help us to understand the impact of the protecting vulnerable groups scheme, especially on young people, both at present and in light of the bill’s proposed changes.

I welcome to the meeting Alistair Hogg, head of practice and policy, Scottish Children’s Reporter Administration; Lindsay Law, convener, Connect; Debbie Nolan, practice development adviser, Centre for Youth and Criminal Justice; Amy Woodhouse, joint acting chief executive, Children in Scotland; and Brian Houston, director of operations, and Robert Dorrian, member, Who Cares? Scotland.

The panel is large, and we are constrained for time because a meeting of the Conveners Group is due to take place at 12 o’clock. If panel members wish to answer a question, I ask them to indicate that to me, but they should not feel that they have to contribute to answering every question that is asked.

I ask the representatives of each organisation to give the committee a little introduction, setting out their experience and interaction with the disclosure scheme. Perhaps Lindsay Law could start.

Lindsay Law (Connect)

Connect’s main involvement with Disclosure Scotland is in advising parents and parent groups about the use of the disclosure scheme in school volunteering and parent-led volunteering. We also act as an intermediary body for groups that want to make applications through us.

Alistair Hogg (Scottish Children’s Reporter Administration)

I thank the committee for inviting the Scottish Children’s Reporter Administration to attend the meeting. I am sure that committee members are aware of what the children’s hearings system does and of the welfare-based nature of that system. Every day, the SCRA considers the situations of Scotland’s most vulnerable children and young people, who are referred to it for a variety of reasons, one of which is that they might have committed offences.

The SCRA’s wish is for all children and young people who are referred to it and who go through the children’s hearings system to be considered in the same way, as their needs are all the same. That is one of the fundamental principles of the system that has been in place for more than 40 years. The decisions and options that are open to a children’s hearing are the same regardless of the reason for a child or young person having been referred to it.

The SCRA supports the measures that are proposed in the bill, as it would do for any measure that would improve the life chances of the vulnerable children and young people whom it sees and whose situations it considers daily. The bill is part of a range of legislative proposals that we believe set a positive direction of travel and which we support. Some of them have already been enacted, including the Age of Criminal Responsibility (Scotland) Act 2019 and the Management of Offenders (Scotland) Act 2019.

The bill would significantly improve the current situation. It recognises that there is a difference between childhood and adult offending. It would end automatic disclosure and introduce a range of checks and reviews. Although the situation would still be complex, as I am sure everyone here would agree, it would be slightly less complex than the current one. The SCRA feels that some areas merit further consideration and could be further improved. We would be happy to contribute to discussion and thoughts on those areas, which include the language that is used in the bill, its complexity, the preparation of guidance, the clarity of tests that are used in review situations and the ability to provide context for situations in which disclosure might be appropriate.

However, none of those further considerations should detract from the fact that the SCRA welcomes the bill and recognises that it makes a significant improvement. In the consultation process, the SCRA set out its views and the principles upon which it felt that this piece of legislation should be set. We feel that we were listened to extremely well and that the bill now reflects the issues that we raised.

Debbie Nolan (Centre for Youth and Criminal Justice)

I thank the committee for the opportunity to give evidence. I represent the CYCJ, which is a dedicated centre that aims to support improvements to youth justice that will contribute to better lives for individuals, families and communities.

We have had a long-standing interest in disclosure and advocating for change in the disclosure regime, especially in relation to children. We have been heavily involved in the pre-legislative consultation and the development of the bill, and we have facilitated a range of stakeholder engagement events and other events in the development process.

We are involved in supporting the implementation of the Scottish Government’s youth justice strategy. The priority theme of the strategy is about improving life chances, and the issue of disclosure is a key component in that. Through our practice development service, we offer advice and guidance to people in the youth justice sphere, including young people, their families and practitioners. We regularly receive from them queries about disclosure, such as, “What do I need to disclose?”, “How long do I need to disclose it for?” and, “Should I accept offence grounds at a children’s hearing and what might that mean for us?”

I echo the comments that have been made by Alistair Hogg. The CYCJ considers the bill an opportunity for necessary reform of the disclosure system. We see it as offering a progressive step that would provide proportionality and a more individualised process. It would also balance the rights of people with convictions—including children with disclosable information, who should have the ability to move on with their lives—with the duty of public protection.

We especially welcome the measures in the bill that would enable a distinct approach to be taken to childhood conviction information, which would end the automatic disclosure of information for children aged under 18 at the time of the offence. Such information would now be listed separately, and there would be the right to review it.

We see the bill’s approach as being evidence based, which is crucial and is also a key component in a child-friendly disclosure system that promotes children’s rights and supports Scotland’s whole-system approach to children, including those involved in offending. That is vital if we are to reduce the effects of disclosure of childhood conviction information, which we know are potentially devastating and destructive.

We suggest that more could be done in the bill. We welcome the childhood measures and a whole raft of other measures, but we think that further improvements could be made if we are to maximise the opportunity. I am sure that we will discuss those areas. In particular, they relate to the coherence of the different pieces of legislation; other relevant information, or ORI; the review process and how we can maximise the use of that process and the safeguards that are put in place; the suitability of lists in respect of children; and the complexity and support in the disclosure system.

Amy Woodhouse (Children in Scotland)

I am representing Children in Scotland. For those of you who are not familiar with our work, we are the national network organisation for improving children’s lives.

I have two different perspectives on the Disclosure (Scotland) Bill. One perspective is that of an organisation with staff who undertake regulated work and are members of the PVG scheme; the issue is how that works for us and for other organisations in the children’s sector. The other perspective is that of an organisation that tries to promote and enhance children’s rights considering the opportunities in the bill to further children’s access to their rights. We will probably talk from that perspective in particular.

Like my colleagues who have already spoken, Children in Scotland supports the bill’s intention and views it as a positive step forward in clarifying current processes and systems, which can be very complex for many organisations that are coming to grips with them, and in its opportunity to support young people with offending records to move on and have meaningful lives.

Likewise, we have questions and comments on a number of areas. I suspect that we will get into them, so I will not lay them out now. I will talk about my experience from Children in Scotland, the experience of our members and the bill’s interface with other policy areas. For example, Children in Scotland is the secretariat for the cross-party group in the Scottish Parliament on children and young people. The issue of disclosure was brought up at a recent meeting of that group on what was then the Age of Criminal Responsibility (Scotland) Bill. We can draw in learning from that, as well.

Brian Houston (Who Cares? Scotland)

I am from Who Cares? Scotland. We are an advocacy and influencing organisation that supports children, young people and adults who have experience of care. We are a membership organisation, so it is important for us to represent members’ views. The Disclosure (Scotland) Bill has been a significant bill for them to discuss and explore.

We welcome the bill because it has the potential to remove assumptions and barriers in the current disclosure system. The disproportionate impact of that system can be lifelong. It is important that we use the opportunity to explore the positive aspects of the bill and to recognise some of the hidden barriers that exist and reside in individuals. Whatever system we have—the existing one or the new one—there are barriers that young people or young adults apply to themselves. Their childhood convictions and the prospect of going through a disclosure process limit their opportunities in the future.

Although we welcome many elements of the bill, we want to have discussions and explorations in this evidence session that could improve it or clarify important bits of information.

We work with young people and adults who are aware that progressive legislation is being put in place but who have sometimes not seen the direct benefits of that as it has been implemented and interpreted. Although we understand the experience of the current system, it is important that we track that and see how the system benefits care-experienced people in the future.

10:15  



Robert Dorrian (Who Cares? Scotland)

As Brian Houston said, Who Cares? Scotland is a membership organisation. Before I begin, I note that the reason why I am here today is that I am a member of Who Cares? Scotland. I have care experience—I was in the care system from the age of four. I will talk a wee bit about that before I get into the purpose of today’s meeting.

I have had three different care settings; that is, three different families, including a failed adoption in a scenario whereby they kept my little sister, but did not keep me. I experienced loss, fear and constant worry. Notwithstanding that, I think that I have made a good account of myself. I have three degrees; most recently, I graduated with a bachelor of law degree just this year. This summer, I worked five jobs and held three volunteer roles. On paper, you would probably say that I look pretty successful. However, if you go back just a few short years, I would be reduced to just one word: “admonishment”.

I have experience of the disclosure process. I accrued an admonishment when I was 16. I have a very real interest in the bill, because it can effect change. There is a lot of conversation to be had about the intention behind the bill. My journey has been made more difficult than it had to be. Throughout my time, I have lost out on lucrative jobs, been passed over for consideration and have had to have more than one awkward conversation. That could and should have been avoided. Had the recommendations in the bill been enacted years ago, I might be in a different position from the one that I am in today.

Who Cares? Scotland wants a reality where every care-experienced individual can maximise their potential without being unnecessarily hindered by childhood or teenage criminal records. We know from our members that care-experienced individuals often self-exclude, which cannot be quantified or put in front of the committee as statistics. Because of the disclosure process, those individuals often self-exclude from volunteering roles, or roles that involve working with vulnerable groups. Our members have told us that childhood convictions have prevented them from moving on from their past. That needs to change, and the bill is an opportunity for that change. I look forward to the conversation that we will have today.

The Convener

I thank all the panel members for coming; we really appreciate the time that you have taken to be with us.

I will ask a quick question of Ms Nolan. You talked in your opening statement about

“the time of the offence”.

My understanding is that it is the date of the criminal conviction that appears on the disclosure—is that correct? Obviously, when we are talking about young people, that can be a difference of a couple of years in some circumstances.

Debbie Nolan

The provisions in the bill talk about the date of offence. For us, that is really positive; it is a real step forward and it is fundamental. As the convener alluded to, there can be lengthy delays in the process of a child committing an offence and actually being convicted of that offence. We do not deem that a child should be penalised owing to delays in that process. However, the Management of Offenders (Scotland) Act 2019 speaks about the date of conviction; that is, the provisions that are for under-18s are made only if the person was under 18 at the time that they were convicted, and not at the time that they committed the offence.

That is one of the anomalies in the potentially piecemeal approach that is being taken to reform of the disclosure system. There are three key pieces of legislation, all of which will impact on whether a child needs to disclose something. If those three pieces of legislation are not fully aligned, we run the risk of the benefits not being realised. The anomaly around whether we use the date of conviction or the age at the time of the offence is a prime example of that. It is a real anomaly. We strongly advocate that it should be the date of the offence and not the date of the conviction.

The Convener

Thank you. I will move to questions from the committee.

Daniel Johnson (Edinburgh Southern) (Lab)

Obviously, the bill brings simplification. However, the flipside of that coin is that there are only two levels of disclosure and, potentially, a very broad range of different information that could be disclosed. We are therefore very reliant on the two tests of whether the information is relevant, and whether it ought to be disclosed. Are those tests sufficiently clear for the people who will have to interpret them—namely, Disclosure Scotland—and the people who will be the subject of that information? Is more clarity needed about how the tests will operate? I direct the question towards Alistair Hogg and Debbie Nolan in the first instance, but I am interested to hear anyone else’s thoughts.

Alistair Hogg

Thank you. I think that I said in my opening comments that that is an area to which some clarity could be brought. The interpretation and application of the tests is crucial not just in terms of deciding when disclosure is appropriate, but in making the foreseeability of that clearer. Guidance on application of the tests will be critical; we need realistic examples to show under what circumstances the tests would be applied in one direction or another. It is crucial to have readily available and accessible guidance that people understand.

Debbie Nolan

I echo that: clarity is fundamental. It is really welcome that the bill enables greater individualisation of approach, particularly for children and young people. We know that flexibility and discretion are fundamental components of a rights-based system, so clarity is really important. If the tests are not entirely clear, we run the risk of making the situation more complex and less transparent. We agree that any further guidance or information about the tests that can be made available will be helpful in respect of what factors will be taken into account and how we will determine whether something is relevant and ought to be disclosed. We would like to see that in the bill or in statutory guidance, to enable greater weight to be given to that information, to make it clearer and to enable legal challenge, if required.

Daniel Johnson

I will go back a bit further. I am concerned that in case law, two of the key tests for proportionality are the seriousness of the offence and how long ago it was committed. That seems to me to be very subjective. It is certainly not intuitive to me—for example, after what length of time would the proportionality test kick in? Is it really possible to understand how the legislation will operate without seeing the guidance and the criteria and principles that it sets out? Is it an issue for the bill that we cannot test that?

Debbie Nolan

There is additional information in the bill about other factors that would be taken into account. However, there is a real need for guidance, and I agree that that should help to inform the decision-making process. Do we want to get into the details of that at this stage? We can consider the principles and the key components of the bill, but Daniel Johnson is right that guidance will help with the reality of implementation. I suppose that it is a question of sequencing and timing. Is it possible to consider the other measures without guidance, albeit that there is a clear commitment about what it will look like?

Alistair Hogg

I agree. I understand what you said about the subjective nature of applying such tests. It is impossible to articulate completely a set of rules and guidance that would lead to an inevitable conclusion; there has to be some subjectivity. Our belief is that tests need to be applied with the addition of contextual information, as I mentioned earlier. We need to think about how that could be introduced.

In terms of the importance of the guidance, one of the crucial areas will be understanding future risk. The guidance needs to acknowledge that such decisions involve application of a number of considerations, consideration of how those dictate future risk, and the striking of a balance between trying to assist the young person to move on with their life and the public interest. It is crucial that the young person who is at the centre of the process has clarity about how a decision is reached in order that they can determine whether they have a right to legal challenge. There is a right in the bill that relates to that, but only on a point of law. If the guidance is clear enough, the point of law might, if it arises, be clearer to that young person.

Debbie Nolan

On timescales, there is clear evidence that can inform the tests and help us to understand. The Howard League Scotland spoke at a previous meeting about the need to take an evidence-based approach. Research on time to redemption, for example, could really help to inform the tests.

Daniel Johnson

The tests become critically important in respect of looking at other relevant information. I think that it was the SCRA that pointed out that, under the Management of Offenders (Scotland) Act 2019, childhood convictions immediately become spent. However, there are no such provisions outside the bill for non-conviction information, while in the bill there are caveats and conditions for convictions that occur in childhood. Section 18 deals with provision of other relevant information—there are just two tests.

It strikes me that, under the bill, conviction information that pertains to a child would not be disclosable, but that other contact that a child might have had with the police, in relation to either convictions or other behaviours, could be disclosed. Is that correct? Do members of the panel share that concern?

Debbie Nolan

Yes, I certainly share that concern. We appreciate the role of the provision on other relevant information, and we recognise that there is a huge wealth of case law that has enabled such information to be used. The bill changes the process around other relevant information, but—as you outlined—there are still some real challenges in that respect.

A really high bar must be set with regard to other relevant information being disclosed. For example, what other relevant information can be disclosed? How will it be monitored? Further information around the tests in general would be beneficial, so I certainly agree that additional information about the tests for other relevant information will be fundamental.

That leads to another challenge. We might have information that could be disclosed as other relevant information although it could not be disclosed by the state under the measures in the bill. There is an anomaly in the bill. The state might decide not to disclose certain information in relation to a child, but because self-disclosure is governed by different legislation, a child could still have to self-disclose. The benefits of the legislation would therefore be null and void.

Daniel Johnson

Do any other members of the panel have points to raise that pertain to the tests?

Brian Houston

A key aspect concerns the detail of how the measures are implemented, how clarity is achieved and how decisions are communicated to care-experienced people, in particular. We have heard in testimony and evidence from care-experienced people that they are anxious about the current system and are not sure about the situation in respect of disclosure, so they avoid it. There is enormous caring intent within the care-experienced population: they want to give something back by working in caring professions, but they self-limit and exclude themselves from doing so. It is really important for them to understand the changes and the benefits that will arise from the bill.

Clarity on the guidance and around self-disclosure is important for young people as they develop into adults. They have experienced situations in which they did not know that they needed to disclose information, then found out that they needed to do so, so the view that was taken, because they did not disclose immediately, was to be suspicious of them. Important and detailed discussions need to take place about how it is communicated to people that they might benefit from the bill. That is fundamental if we are to liberate people to feel that they could play a part in the caring professions.

10:30  



Lindsay Law

I echo the point about the need for clarity. The message that we get from parent groups is that they are not clear about when they need to get volunteers through disclosure and that schools do not make that clear to them. All parent groups are made up of volunteers; they do not necessarily have experience of disclosure and PVG in other parts of their lives.

Some people have asked why it matters when a parent group says that everyone needs to have PVG checks. The issue is that care-experienced people and people who have experience of being in the criminal justice system might simply not volunteer to support their children at school, or they might withdraw from the system.

It is important that parent groups and schools are clear about when they need to ask for disclosure and about the types of work and roles that require it. We are keen to avoid parent groups and schools taking a broad-brush approach under which anyone who wants to volunteer in a school must go through disclosure, because that will not engender a situation in which the school is the hub of its community.

Amy Woodhouse

We share concerns that have been raised by members of the committee about other relevant information. They have been echoed by other organisations in the sector, including Clan Childlaw and the Centre for Excellence for Children’s Care and Protection. The issue needs to be resolved. If the bill is to proceed, further detailed and considered discussion is needed about the high threshold.

Iain Gray (East Lothian) (Lab)

Through the questions from the convener and Daniel Johnson, we have drawn out two contradictions between the Management of Offenders (Scotland) Act 2019 and the Disclosure (Scotland) Bill. First, one uses the date of conviction for under-18s, while the other uses the date of the offence. Secondly, the requirement for state disclosure and the requirement for self-disclosure are different. For the avoidance of doubt, I want to check with the panel whether they prefer the measures in the Disclosure (Scotland) Bill to those in the 2019 act. Is it fair to say that you are pointing to flaws in the 2019 act?

Alistair Hogg

Yes. The SCRA favours the approach that is taken in the Disclosure (Scotland) Bill.

Debbie Nolan

In relation to age, the CYCJ has the same perspective. In relation to the anomaly between state disclosure and self-disclosure, our concern is more about closing that loophole, particularly for under-18s.

Iain Gray

One way of closing the loophole would be to move to the approach that is taken in the 2019 act, but that is not what you are arguing for.

Debbie Nolan

No.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I agree with Brian Houston’s point about communication being key.

I have a technical question about ORI. CELSIS has stated that its understanding is that

“the default position and the policy aim is against the disclosure of childhood information”

but that that is not set out in the bill. In its submission, the SCRA also suggests that the presumption should be that childhood conviction information should not be included, unless that is justified. I appreciate that this is a broad question, but can you say what justification there might be for including such information? Can you give examples of what relevant information should be disclosed?

Alistair Hogg

Does your question relate to other relevant information?

Rona Mackay

Yes. Can you give a general benchmark? I know that it is a difficult question.

Alistair Hogg

We agree with what has been said about the need for a very high threshold for disclosing other relevant information. However, if I have picked it up correctly, your question is whether other relevant information should ever be disclosed. Is the question about the general concept itself?

Rona Mackay

Yes—but you are saying that the caveat is that such information should not be included unless that is otherwise justified. That assumes that there would be justification for such disclosure in some cases. What might they be?

Alistair Hogg

The SCRA considers cases of children who have not just committed offences, but have engaged in seriously harmful behaviour. There are some situations—I stress that they are highly exceptional situations—in which the behaviour that has been exhibited is of such a concern that it might point to potential future risk, including risk to other people. The SCRA wants young people to be able to move on from very difficult circumstances in their childhood. You have heard a very enlightening account today from Robert Dorrian, which was absolutely intense. There is a body of research—you will have access to all of it through the CYCJ—that can direct us in how to assess that risk.

The concept of “other relevant information” is understandable, but disclosure of it, particularly in relation to behaviour that has happened during childhood or adolescence, needs a very high threshold. I recognise that the bill introduces a whole range of checks and reviews, which will hopefully lead to other relevant information being disclosed only in exceptional situations in which that is genuinely necessary. The bill mentions “relevant police information”. The first review is by the chief constable, then there is review by the independent reviewer, then there is an appeal on a point of law, so there is a three-step check.

Rona Mackay

That sounds like a very thorough process. That was a helpful response, thank you.

Liz Smith (Mid Scotland and Fife) (Con)

Mr Hogg, you made the interesting point that you feel that other relevant information is an understandable concept. I think that most of us would accept that, but that is very different from applying the practice. Some of you have suggested this morning that there is confusion—or some doubt, to be more accurate—about interpretation of the guidance. Would it help if the bill clarified in law some of the key issues, specifically on the two tests of what is relevant and what might be relevant?

Alistair Hogg

That could help. It would bring greater clarity, and clarity brings a greater opportunity to understand and then, if necessary, to challenge. It could bring that benefit.

Liz Smith

Is that a common view among the panellists?

Amy Woodhouse

I do not have a specific opinion on that. I defer to others on the panel.

Liz Smith

Other witnesses have put it to us that there will potentially be quite a lot of scope for legal challenge if the bill is not clear about exactly what those two tests refer to. The committee must therefore make a judgment on whether we can enhance the bill by including some legal clarification to help with that. It is all very well to have good guidance, but if it comes down to a point of law—as two of you have mentioned this morning—that could be a complicating factor. Before we decide about some of the concerns and anomalies in the bill that you have mentioned, and before we take a step back to ensure that there is that clarification, I am keen to know whether you feel that it would be helpful.

Debbie Nolan

It would be helpful, because the unpredictability is a huge issue. It makes it hard to inform people of what might be disclosed if there are what-ifs, buts, maybes and questions about whether someone will decide that something is relevant within the timescales or that something ought to be included. Those are tricky concepts to explain to anyone, and they are very tricky concepts to explain to a child, particularly as we know that children who are involved in serious and persistent offending are more likely to have experienced adversity, trauma and loss, and they might have additional support needs. It is not good to have to say to someone who has had that raft of experiences, “Today, you are applying for a disclosure for this purpose, and that experience might be included or it might not be. Tomorrow, you will be applying for a different purpose, and the experience might be included or it might not be.”

As Who Cares? Scotland explained, there is a risk. We either overdisclose and we are penalised because we have given people too much information or we underdisclose and we are penalised because we have not given people enough information, and the person is considered a liar anyway. We are putting people in a no-win situation, because they cannot understand the system or what is going to be disclosed and what might or might not be disclosed. Coupled with that, there is a lack of support to help people to understand the system and navigate it. It is no wonder that people decide to self-deselect and say that they will not go down that route.

Liz Smith

That is a pertinent point. Would that increase the amount of work that groups have to do to ensure that they are giving accurate information for disclosure? Would it increase the burden of paperwork on you?

Debbie Nolan

It would not necessarily increase the burden. However, people do not know where to go to get accurate information. Numerous agencies are reluctant to give the information because, if they give the wrong information, it can have a detrimental impact on people’s life chances. At present, it is hard for people to know where to go.

There are some amazing organisations out there that are doing phenomenal work to support people with conviction information to understand the process and go through the system, but we need a much more rounded support package. At any stage in the journey, people should be able to access support from whoever they want to get it from, which means that we need to upskill those who support children and people who have convictions in general to understand the system. The bill will reduce some of the complexity of the system, which should make it easier, but there is still a grey area around where people can go for support and how we can ensure that good quality support is consistently and readily available to everyone.

Liz Smith

That is helpful. Thank you.

Brian Houston

We have concerns about other relevant information because of the process that young people experience in the hearings system. If there are offence grounds, the thoughtful discussion and careful consideration that happen in the hearing are about welfare. We want to get beyond the discussion about the offence to understand the context and the circumstances that created the conditions for it to occur. To get to that discussion, the young person is asked whether they accept the offence grounds. In that moment, we ask the young person for an admission of guilt when they do not have the normal supports that any citizen of this country would expect to have at such a time.

The rich discussion about the context of the offence then gets dislocated, and the conviction is carried forward with the young person. As they become an adult, the contextual discussion dissolves and is left behind. Our concern is that the information that will be introduced at that point will be other relevant information from someone else. Other relevant information relating to care experience might be about the young person’s actual experience—their trauma and difficulty—and how that expresses itself within their life. If there is no balance in that, and no re-engagement with the context, there are real and significant risks.

Ross Greer (West Scotland) (Green)

I am interested in the witnesses’ thoughts on the changes to the scheme in relation to under-16s’ membership. Under the provisions in the bill, anyone aged 16 or over who takes part in regulated work and does not have a PVG will be committing an offence, but that will not be the case for under-16s, because they will not be able to join the PVG scheme.

There are two lines of argument. One is that removing under-16s from the scheme is about proportionality, because it is not proportionate for someone who is under 16 to undergo the full checks and, under the getting it right for every child approach, if anyone’s behaviour poses a risk, they should already be on social work’s radar and so on. The other argument is that anyone who engages in work with vulnerable groups should undergo a full check. What are your thoughts on the proposal to remove under-16s from the full PVG scheme?

10:45  



Amy Woodhouse

In my organisation, we have discussed who should and should not do regulated work. What I have to say might not apply to all organisations. I agree that people who are under 16 could do some things that we consider to be regulated work. However, Children in Scotland as an organisation does not give them those roles. That is not because we do not think that they could do them; it is because of the responsibilities that come with those roles. We do not think that it is fair for people in that age group to assume those responsibilities. They can perform a wide variety of roles in our organisation and our partner organisations, but we do not think that it is appropriate for them to take on roles in which there are elements of safeguarding. I appreciate that, as I said, that might not be the case in other circumstances, but that is our position.

Debbie Nolan

The only thing that I would add is that we need to recognise that the disclosure regime is part of a package of safeguards and measures that are in place. It is risky to try to boil the issue down to a particular part of the system.

Ross Greer

We have had submissions from a number of voluntary organisations. Plenty of organisations support the proposal while others raise concerns along the lines of those that Amy Woodhouse set out. We have heard concerns that fewer organisations will offer volunteering opportunities to under-16s because there will be a perception that people who want to take part in this broad area must be at least 16. Does anyone have thoughts on that?

Lindsay Law

We need to take a step back and ensure that we have clarity on regulated work, protected roles and what are currently called regulated roles.

To address what Amy Woodhouse said, I would say that people who are under 16 might not be in a position to perform the full suite of functions in a particular role, so they might not do things for which disclosure is required. Voluntary organisations need clarity on that, because some things do not need to go through the disclosure system. For example, it would be bizarre if somebody who was attending school as part of a normal school day had to undergo a disclosure check if they went to a primary school to read to other young people, but some schools are imposing that on parents and young people because they are not clear about the difference between regulated work and volunteering that is supported by someone who is doing regulated work.

Amy Woodhouse

The point that I was trying to make is that young people take part in our organisation in lots of different ways and they have lots of different responsibilities but that, with regard to regulated work, there are some additional issues that we need to consider for that age group. It might not always be appropriate for them to take part in regulated work.

Ross Greer

Lindsay, how aware are schools of the fact that, as Debbie Nolan said, the PVG scheme is not the only thing on the table? Is it seen as the be-all and end-all of the protection system?

Lindsay Law

I think that schools are aware that it is not the be-all and end-all, but when we talk to parent groups, we often hear people say, “Do you have your PVG?” or “Oh, just go and get a PVG,” as if that is where the responsibility of parent group stops with regard to after-school activities that they run on behalf of schools.

Like other organisations that are represented on the panel, Connect views the disclosure regime as part of a suite of measures. It should certainly not be viewed as something that someone has to go through if they want to volunteer with a parent group at their child’s school. That perception can bar people from participating, because they opt out of doing anything. We want every parent, carer and family to play a full part in children’s lives, and we do not think that the barriers that are imposed, albeit by well-meaning people, deliver what those well-meaning people intended them to, which is, ultimately, to ensure the safety of vulnerable groups.

Amy Woodhouse

There is a need for clarity in the process. We know that the issue is a matter of concern in the wider voluntary sector. Indeed, we often ask whether posts in our organisation involve regulated work—we do that all the time. There is definitely a need for clarity, and a move towards talking about the roles rather than the work might help with that.

The Convener

I would like to follow up on that. Last night, when we spoke to a focus group panel, we heard the view that a move to talking about the roles rather than the activities might result in more confusion. Will you explain why you think that it would be a better idea?

Amy Woodhouse

I suppose it will depend on what we end up coming up with in terms of the description. There is quite a lot of work to be done in that regard.

As an organisation, we have struggled with the situation where regulated work forms a proportion of somebody’s job rather than their full job. Currently, one of the criteria for going through an application involves the regularity of the work. The idea that it is the functions that are undertaken that make the application necessary might be more helpful than some of the current ways of defining it.

The Convener

The committee has heard examples of people who have one role, such as classroom assistants, having various functions across local authority areas, so we are concerned that there might be less clarity if we go down the route that you suggest. Do other panel members have an opinion?

Brian Houston

We have two focuses in that regard. Normally, our focus would be the concerns and wishes of members, but we are also an employer and we want to employ care-experienced people, including ones who might have had convictions. We also have points of contact with young people across the organisation. It might not look as if some of our roles involve contact with children, but they do.

It is important to recognise that what we are trying to do with disclosure and protection is not something that happens only at one moment. A false sense of security comes from thinking that a check is all that we need to do. If there is a focus on the check and there is an assumption that everything is okay because we have done the check, it misses the point that the assessment of what is happening is dynamic—it is front of us every day.

It is important to have clarity on people’s roles and what we are asking them to do with people and vulnerable groups. As Debbie Nolan says, a suite of things promote protection, and the check is only one part of that.

Dr Alasdair Allan (Na h-Eileanan an Iar) (SNP)

The bill contains two lists of offences—list A and list B. Do members of the panel have views on the lists? Should they apply to adult and childhood convictions?

Alistair Hogg

The SCRA has some concerns about the lists and the things that are contained in them, as well as the fact that they apply to adult and childhood convictions. Our reason is that some of the offences on the lists—today is not the time to go through them in detail—are offences in relation to which young people are frequently referred to the children’s reporter, and they should be seen differently, through the lens of childhood convictions.

One of the most pertinent examples is wilful fire-raising, which I think appears in list A. As children’s reporters, we see that offence quite frequently, as young people are referred to us for it. It is reflective of childhood behaviour and reactions to difficult circumstances, rather than being an offence that needs to appear on a high-tariff list. We have concerns about some of the offences on the lists. In previous committee meetings, there have been discussions about whether a separate list is required. We would be happy to contribute to a discussion on whether that idea has some merit.

Debbie Nolan

I echo those real concerns. If we are trying to move to a more proportionate, individualised approach of structured decision making on a case-by-case basis but we still have the implementation of lists, particularly for children, it becomes problematic and challenging. The two approaches do not go together. We would prefer a situation where a small number of offences were considered for children, rather than the wide range and the lists. That is our first issue.

Our second issue—this builds on what Alistair Hogg said—is that some of the offences are really common offences for children. I know that section 38 offences have been moved to list B, but it still covers numerous offences that are committed by children. We have done a lot of work on the unnecessary criminalisation of looked-after children, and we know that many of those offences fall into that section 38 category. That is a prime example of something that flies in the face of our ability to improve the system for children.

Our third point about the lists concerns the timescales. We appreciate that there will be shorter timescales for children but, when we consider list B, they would still have to disclose the information for five and a half years, which is a significant proportion of a child’s life. The timescales appear to be based on those in the Management of Offenders (Scotland) Act 2019. There is concern that they are not based on the evidence that is available in the time to redemption research, which has been mentioned. There has been some improvement, but there are still issues with the list process.

Dr Allan

Someone on the panel—forgive me; I forget who it was—suggested that offences that were committed when the person was under 18 should be listed separately, with a right to review. If that is your view, how should that work? It does not have to be the person who said that who answers.

Debbie Nolan

We want a smaller number of offences to be considered for children, with a different approach to timeframes and the factors that are taken into account in determining whether something should extend beyond the arbitrary timeframe. In the current list situation, we say, “It’s been this length of time since you committed the offence,” and it is either on or off. We would like a more nuanced approach. That links back to our earlier discussions about tests and principles. A lot of what you have heard about the bill in the evidence sessions that you have held and the written evidence gives a really clear platform as to what should be part of that decision-making process, what should be part of those tests and what those principles are. If that information is brought together, it could have a real benefit in answering your question.

Dr Allan

Mr Houston, you said there is room for improvement in the bill for care-experienced people. I would be keen to hear from any of the panel, particularly Mr Dorrian, what you feel that room for improvement is. What would you like to see in the bill that is not there when it comes to care-experienced people?

Robert Dorrian

I think that the room for improvement in the bill concerns the issue of clear intention with regard to what the bill proposes to do. We were talking about lists previously, and when you put that in the context of what should be included in the bill, those two positions jar, as Debbie Nolan said.

The current system puts the onus on a child or young person to come to grips with an often overly complex process. We need to put their care experience into context. If we think about a child who might be in a residential setting, has to engage in a children’s panel or has alternative school arrangements, is it surprising that the context leading up to any convictions that they pick up is forgotten about in the process?

11:00  



We were talking about contextualisation. We spoke earlier about other relevant information and when or whether it would be appropriate to include that. We need to talk about the training for the people who make the decision on what is considered to be other relevant information and the mindset that they have when they consider what information to include.

Particularly with regard to the independent reviewer role, the bill has scope to simplify the manner in which a person can challenge information on their certificate. It also has a provision for an assumption against disclosure of offences that were committed prior to the age of 18. However, the language that is used around that is still ambiguous—we spoke about that early on in today’s discussion.

The bill has a limited ability to enable the detail behind the conviction to be discussed. That is where a lot of the discussion on what we want to achieve needs to be based. The bill does not consider either the stress that the person was under at the time or any mental health issues. As someone who has experienced care, I might have those discussions, but someone making the decision about other relevant information might not have any experience of care and might not consider it appropriate to do so. We need to balance that with whether it is appropriate. More detail is needed.

However, the contextualisation part needs to be clearly set out. A conviction should be disclosed only when absolutely necessary. There is more work to be done on the language in the bill, as well as on the support and guidance that we spoke about earlier, with regard to how that is structured.

One of my concerns is that, should there not be a statutory framework behind the process, the use of the phrase “other relevant information” leaves a lot of ambiguity and scope for different interpretations by different people. That could lead to challenge. It does not make it easy for someone who is engaging in the process but nor does it make it easy for organisations who are helping and supporting someone through that process.

Brian Houston

One of the other key elements that we need to consider is that care-experienced young adults are just migrating out of a system that has processes, some of which they have not had trust in. The disclosure system—and its associated processes—is just the next thing that they might encounter.

If we do not provide clarity on the information that is held, when it will be disclosed and what the implementation looks like, we will not promote confidence in the system. We will deny ourselves the resource that comes from that group—the caring intent that is provoked in them when they receive care. There is a more fundamental thing here about how we lift a barrier to young adults who might want to give something back.

As an employer, I interview a lot of staff who want to work with us and I am always interested in their motivation to work with children and young people. I do not mean, “Why do you want the job?”; it is much deeper than that. I am interested in what has compelled them to work with children and young people. I am always more reassured by care-experienced people when they articulate that. They are a lot clearer about it. There is an enormous potential for our country to tap into that caring resource. We need to get the technical aspects of that correct, so that we can communicate with simplicity what the new system looks like. That will generate confidence and trust among a group of people who have not had either in significant amounts. That will be better for us as a country.

Jenny Gilruth (Mid Fife and Glenrothes) (SNP)

Some of the points that I was going to raise have already been covered. Brian Houston has spoken about simplifying the process and trying to get the message out there, particularly to care-experienced young people, for a variety of different reasons. As we have heard, things can be particularly confusing for care-experienced young people, whose corporate parent is the state.

Is there a need for some sort of national campaign to raise the profile of the disclosure system or to develop an education programme to explain to people in a bit more detail or in more simplistic terms how it works—just to get the message out there, given the disconnect that exists?

Brian Houston

There are two key audiences, and we represent both of them. First, there are employers. You really need to give them clarity and confidence about the potential in the bill, and to take them beyond the natural response that might be generated when they see a conviction or read something. That is not the way to recruit people. It is one element, but the way to recruit people is to understand all the skills and abilities that they could bring to a job.

The other key audience is the care-experienced community. There is something really powerful that happens in that community. Those young people talk to each other, and they may be telling each other that a given field is not a caring profession and that they might not be able to work there.

There are invisible barriers here, which Robert Dorrian touched on earlier, and they are really hard to quantify. They involve word of mouth, with people saying, “I don’t think you could work there,” or “I don’t think you’d be able to do that job.” Some of that is simply not accurate. If we progress to something that is much more embracing, then we need to communicate that very strongly to groups of people who may not be part of the system, but who will be able to apply for things with the same level of confidence that anyone might have, as it will be about their skills and abilities, not something that happened in their childhood.

Robert Dorrian

To add to what Brian Houston has said, you raised a point about corporate parenting, Ms Gilruth, referring to the responsibilities there. For me, a pragmatic approach would be to have provision for independent legal advice set out in the bill itself. There are elements where that would not be available. To have a clear point of contact for tailored advice or even an online platform for experience would make things simpler and more accessible for people who have to navigate an often complex process. There will still be barriers in place, but anything that we can do to break them down would be helpful.

To contextualise that, the stereotypical person engaging in the disclosure process may have had one or two moves, but what about the person who has had 14 or 16? The onus is on them to know about those changes, to know where they were at what time and to know about the support mechanism that is in place.

Disclosure Scotland and a number of other organisations have an opportunity to adopt a practice that recognises the role of corporate parents in ending secondary discriminatory practices against care-experienced people. I do not mean direct discrimination; I mean discrimination that is almost a by-product of the system that we are in. There is an opportunity for all corporate parents to take that into consideration as you consider and implement the bill.

Gail Ross (Caithness, Sutherland and Ross) (SNP)

We have touched on the interactions between the Disclosure (Scotland) Bill and the Management of Offenders (Scotland) Act 2019. I want to go a little bit further into the interaction with the minimum age of criminal responsibility, referring in particular to the Children in Scotland submission that we received. We know from our consideration of the bill during its passage through Parliament that the Government has committed to looking at raising the age further, to 14 and possibly 16, however that plays out with the evidence that is taken on that. The written evidence from Children in Scotland says:

“This would have implications for proposals within the Disclosure (Scotland) Bill.”

Can you explain to us how the two pieces of legislation will work if the minimum age is put up further to 14, or indeed to 16?

Amy Woodhouse

Others may wish to comment on this, too. We are supportive of a further increase in the minimum age of criminal responsibility, in line with the recommendations of the United Nations Committee on the Rights of the Child, which has said that the age should be a minimum of 14, if not even higher. In some countries it is 16, and it can be even higher than that.

We view that as a change that might still come—certainly, lots of children’s rights organisations are advocating for a further increase from the recent one that raised the age from eight years to 12.

In discussions about the bill that became the Age of Criminal Responsibility (Scotland) Act 2019, there was a lot of conversation about whether that age might be increased to 14 straight away rather than going to 12 first, and the implications that that might have for other areas of legislation such as this one. Legal organisations raised questions about the complexity of doing so, and the feeling was that a lot of work would be required to bring other pieces of legislation into line.

Other panel members might have more specific comments on the technical details, but at that point that idea was viewed as a barrier to raising the age higher than 12. We and other children’s rights organisations did not agree; we were firmly of the view that we could go straight to 14, if the work that was required to enable that happen was done. All of us should still have that as our aspiration and should continue to push for it where we can.

Debbie Nolan

The CYCJ would echo that. We would welcome a commitment to consider increasing the age further, and would like to be involved in work on that.

Linked to that is the fact that we can learn from the incremental approach to the age of criminal responsibility that we have adopted. I know that, in its previous evidence session, the committee heard a lot about provisions for under-18s, such as those on childhood convictions, and facilitating the extension of an individualised and more proportionate approach to adults. There might be scope for using that as another example of an area in which we might take an incremental approach and say, “Let’s make this change for children at the moment, but let’s keep it open for review.” A fundamental part of such an approach would be to articulate and understand the impact that the bill would have if it were passed, what the effect of its implementation would be for people and what their experience might be. We should explore the data on those points to see what we can learn from it, because, clearly, there is learning to be had from such an approach.

Alistair Hogg

I agree. I am grateful to Debbie Nolan for introducing the point about the age of people to whom the bill extends, which I had been hoping would be raised at some point today. At the moment, the bill clearly articulates that it is 18, but the Age of Criminal Responsibility (Scotland) Act 2019 provides a template for how we might view that. We should monitor, evaluate and review it, and then consider whether the age might be pushed further than 18, to 21 or—as Clan Childlaw suggested—as far as 25.

Your question was about the implications of a further rise. Clearly, if the Age of Criminal Responsibility (Scotland) Act 2019 were to be reviewed and amended to increase that age, the act that the disclosure bill would become, should it be passed, would also require to be amended. The technical implication appears to be that, if the age of criminal responsibility were raised to, for example, 14, any offence—or “harmful behaviour” as it would then be called—committed by a child under the age of 14 would fall into the same category as one committed by a child under the age of 12 currently does. Any disclosure would relate exclusively to other relevant information.

Iain Gray

I have a specific question for either Brian Houston or Robert Dorrian, or both. The Who Cares? Scotland submission says that the bill should

“Recognise corporate parenting duties ... and legally enshrine the need for the new disclosure process to take these into account.”

Will you say a little more about exactly what you would be looking for to achieve that?

11:15  



Brian Houston

Our experience of engaging with Disclosure Scotland, which is a corporate parent, has been very positive. We have been trying to employ people who might have had childhood convictions, and we have always viewed the discussions that we have had and the explorations that have happened with Disclosure Scotland on a case-by-case basis as being constructive and progressive. It has also adopted its corporate parenting responsibilities very clearly and robustly. Therefore our operational experience of how the disclosure scheme is being implemented has been positive. I consider Who Cares? Scotland to be an informed employer, which wants to push into the system so that we employ not only more people with experience of care but more people who might have had childhood convictions. Our main concern is that that should translate into the wider population of employers so that they see the benefits of the approach.

Iain Gray

I am asking exactly how you would like the bill to be amended in order to reflect that.

Brian Houston

I have no further information to add.

The Convener

I am looking around the table in case anyone else wishes to speak, but I think that that concludes members’ questions.

I thank all the panel members for coming along to represent their organisations, and especially Mr Dorrian, who has attended as a representative of Who Cares? Scotland. It has been greatly appreciated.

11:16 Meeting continued in private until 11:43.  



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Fifth meeting transcript

The Convener

Our next item of business is the fifth and final evidence session on the Disclosure (Scotland) Bill. We have heard from a range of bodies since September, and all the evidence that we have received has been helpful.

Today, we welcome to the committee the Minister for Children and Young People, Maree Todd, and her officials Kevin Lee, the bill team leader, Gerard Hart, director of protection services and policy—both from Disclosure Scotland—and Gemma Grant, who is a lawyer in the Scottish Government’s legal directorate.

I invite the minister to give her opening remarks.

The Minister for Children and Young People (Maree Todd)

Thank you for inviting me to give evidence on the general principles of the bill.

The Disclosure (Scotland) Bill is the result of extensive engagement through the day-to-day operation of Disclosure Scotland and the review of disclosure since 2016. The protection of vulnerable groups scheme is widely viewed as a vital tool to support safe recruitment and public confidence in those who carry out certain roles with vulnerable people.

Recent inquiries involving sexual abuse in sport and other spheres of life that impact children have once again raised public consciousness about the importance of safeguarding. A number of recent high-profile cases involving the exploitation of adults have also served to remind us that the PVG scheme exists to protect us all in circumstances in which we might be especially vulnerable to harm. However, it is clear that change is required to ensure that the scheme remains able to meet tomorrow’s demands.

Since becoming the Minister for Children and Young People, I have heard moving accounts of the on-going impact of disclosure for children and young people who have come into contact with the justice system. It is with that in mind that the bill makes new provisions surrounding the disclosure of childhood offending and seeks to simplify the process for adults to realise their right to apply for the removal of certain disclosure information.

The committee has focused on fees, the decision-making frameworks underpinning disclosable information and a minimum age for accessing disclosure. I acknowledge that stakeholders would like more information on those areas.

I understand the concerns of individuals and organisations about the impact of changes to fees. Although the proposals in the bill could be delivered using the current fee structure, there is a question about whether we could find better ways forward. I have an open mind on the issue and I am committed to consulting fully on fee structures. However, I am clear that the fee waiver will continue for qualifying voluntary organisations.

I am also committed to the statutory guidance on the review process that is being developed in consultation with stakeholders. Comprehensive and clear guidance will accompany the changes to the disclosure system. Our stakeholders have committed to helping us to draft the guidance and test it with their users to ensure that it meets their needs.

I understand the concern that an unintended consequence of setting a minimum age for disclosure might be that organisations avoid taking on volunteers who are under that age. In England, Wales and Northern Ireland, children under the age of 16 cannot obtain state disclosures, but that has not affected the many United Kingdom-wide organisations that offer opportunities to children. I will ensure that Disclosure Scotland and the Government more widely communicate effectively on that issue to make sure that children are not disadvantaged in obtaining volunteering opportunities.

I thank everyone who has provided evidence to the committee. We have listened carefully and we will continue to engage proactively with stakeholders to strengthen and improve the bill. I am happy to answer questions and provide more detail if the bill progresses.

The Convener

We will move straight to questions.

Liz Smith (Mid Scotland and Fife) (Con)

Minister, the basic principles of the bill have been generally well received, as has its intention to simplify a number of issues. As you said, the situation is not always simple.

With that in mind, we need to consider some of the complexities that witnesses have recently flagged up to us. In its letter to the committee, the Faculty of Advocates said:

“The proportionality of the disclosure will inevitably require balancing the rights of individuals with the potential risk to members of society ... this balancing act is ‘of the greatest public importance’.”

I think that all the witnesses from whom we have heard agree with that. Minister, how confident are you that there is a good legal foundation to that statement?

Maree Todd

I am very confident that there is a good legal basis to that statement. As I explained in my letter to the committee of 21 October, the two-part test on whether information is “relevant for the purpose of the disclosure” and “ought to be included in the disclosure” is well established in the context of decisions by the police to provide other relevant information, for example, for inclusion in a disclosure certificate. The approach has been approved by multiple decisions of the United Kingdom Supreme Court.

We need to be clear about the type of information to which the two-part test applies. The two-part test for whether something is relevant for the purpose of the disclosure and ought to be included applies to three separate categories of information: ORI; childhood conviction information; and removable convictions. Although the same wording applies, the test will be applied in different contexts, depending on the information in question, the stage in the review and who is making the decision—the chief constable, ministers or the independent reviewer.

Liz Smith

Do you accept that two witnesses questioned how able they would be to interpret the different categories of information that you mentioned? Although good guidance might be forthcoming, the witnesses are concerned that it will come down to a legal interpretation, especially if a decision is challenged, and they do not feel competent and confident to make such judgments? Is that a potential concern for you in the context of the bill’s progress?

Maree Todd

It is obviously a concern if stakeholders are saying that they do not feel confident about the process. I will ask my legal official to try to clarify the situation.

Gemma Grant (Scottish Government)

As the minister said, the two-part test is well established and has been approved in multiple decisions of the Supreme Court, including in the case that was referred to in the letter from the Faculty of Advocates, that is, R(L) v Commissioner of Police of the Metropolis.

The leading judgment in that case was delivered by Lord Neuberger, who commented that if the test was only one of relevance for the purpose of the disclosure, it would be insufficient to meet the proportionality test in the context of article 8 of the European convention on human rights. He said that the requirement for the chief officer to go on to consider whether the information ought to be included is a necessary part of the test for establishing proportionality.

Lord Neuberger gave examples of factors that would be considered as part of a decision about what ought to be included; they include:

“the gravity of the material involved, the reliability of the information on which it is based, whether the applicant has had a chance to rebut the information, the relevance of the material to the particular job application, the period that has elapsed since the relevant events occurred, and the impact on the applicant of including the material”.

A decision maker who is applying the tests must comply with those established principles, to ensure that the decision is lawful and proportionate.

The Faculty of Advocates said in its letter:

“We support the Minister’s comments”—

in a previous letter to the committee—

“that the test will be informed by case law from the Courts and reflected in guidance.”

It is worth making the point that, in preparing the bill, a balance has had to be struck between the need for foreseeability, which we recognise is a key component of making legislation that is consistent with ECHR requirements, and the need to allow for flexibility, which I think that witnesses have recognised is an important part of a rights-based approach. A nuanced approach, particularly in relation to childhood convictions, has been supported by a number of witnesses.

Liz Smith

Obviously, Police Scotland, Disclosure Scotland and any independent reviewer will be cognisant of the law as it stands and of the two tests. However, I think that some of the people who run organisations that have volunteers are concerned that the judgment that they must make about what is relevant information and what ought to be disclosed requires specialist information, and is therefore quite difficult.

The minister said that there would be extensive engagement with stakeholders. What will be done to ensure that the guidance that will be given to those who have to make a judgment about relevant information and what ought to be disclosed is clear and offers them an assurance about what they must do?

Gerard Hart (Disclosure Scotland)

That is an important consideration as the bill progresses. There are two on-going strands that will help with that. The current police arrangements in England and Wales have a quality assurance framework that provides a decision making framework that helps chief constables to make decisions in line with that two-part test. I hope that, as the bill progresses, we will produce similar guidance for Scotland in order to provide a framework and structure.

At the same time, we have another strand called Scotland works for you. It involves engaging employers across the country to talk about how they can use disclosure information effectively to make balanced and proportionate decisions about allowing people with previous convictions safely back into work.

We think that a twin-track approach is needed with regard to the bill. There is the decision-making process about how to put the information into the disclosure system fairly and accurately; the other strand is about how to equip employers to use the disclosure information better. Without that latter strand, it would perhaps be more difficult to build the necessary knowledge base and attain the desired strength of decision making.

Liz Smith

That is an interesting point. I am not at liberty to disclose the name of the person whom we spoke to in private session. However, they were an employer, and they said that the information that is given to the employer is different from the information that is on the self-disclosure form. With regard to what you have just said, I would say that that is a potential problem. How would you address that?

Maree Todd

On the issue of separation between self-disclosure and state disclosure, we recognise that the two have to match, and we are working on solutions, particularly with regard to children.

Liz Smith

What will you do to make sure that they tie up?

Gerard Hart

As the minister has just said, the individual must be able to predict what they have to disclose. When there is no immediate, obvious or identical duty on the individual because of the operation of the rules in the “always” list with regard to what might be removed on appeal, there is a presumption that the individual does not have to disclose those matters until those appeals are exhausted. The duty of an individual to self-disclose crystallises when the state decides what will be disclosed. That principle defaults to protect the rights of the individual, rather than going the other way, so that the duty would somehow hang over the individual until the state makes a different decision.

We will do a lot of stakeholder engagement and online work to make the process clear, and that includes the calculator. We still have to work with stakeholders on how to get that message across most effectively. However, the individual will not be in an adverse position in terms of having to disclose things that they might not have to disclose later if they were successful in an appeal against having to disclose a conviction.

Liz Smith

That is helpful. I just think that there are issues about the fact that, when an employer wants to take somebody on as a volunteer, there is the potential for some information to have been disclosed by the person who wants to volunteer. That is quite an important issue, and I ask you to consider it in your engagement.

Gerard Hart

That is a possibility. However, I think that the stakeholder engagement piece of work has to be around preparing employers to interact with the legislation in a positive and progressive way.

Daniel Johnson (Edinburgh Southern) (Lab)

Following on from Liz Smith’s line of questioning on the two tests, can you provide an example of information that would meet the relevance test but fail the “ought” test?

10:15  



Gerard Hart

I could have a stab at answering that.

Daniel Johnson

I was rather hoping that the minister would answer the question.

Maree Todd

I think I will ask my officials to answer that. You can see that we are all slightly baffled by the question.

Daniel Johnson

In some ways, your response illustrates the difficulty that we have been having. Although I accept that the test is well established in the courts, there might be a lack of clarity for people who are applying the tests and are considering what is to be disclosed, and for those who are undergoing the checks. Can you comment on the fair degree of consensus that there has been on the part of witnesses about the suggestion that it would be a good idea to establish in the bill the principles that will be applied to that “ought” test? In particular, the Law Society and the Howard League for Penal Reform gave good examples of the sorts of principles that could be included in the bill and suggested how they could maintain the element of flexibility.

Maree Todd

An obvious example of a situation in which there might be a question about whether a conviction ought to be disclosed later in life is that of an extremely early childhood conviction—say, when someone was aged 10. I would like to think that that would be carefully considered.

I will ask Gemma Grant to comment in more detail on the legal specifics that you have asked for. This is a really complex area, and I want to be absolutely sure that we get on record the accurate situation and provide you with the correct answers to your questions, so that we can move forward and develop the legislation in the simplest way possible, so that it serves the people it is meant to serve.

Gemma Grant

I will reiterate some of the factors that the Supreme Court has said would be pertinent to the decision about what ought to be included. In line with the example that the minister has given, one factor could involve the length of time that has elapsed since the conviction was accrued by an individual. On the face of it, a conviction that might be relevant to the role that a person is applying for ought not to be disclosed because it is a historical one and there has been no pattern of offending behaviour in the interim period. A further factor that might come into play in that regard might be the severity of the conviction, because, even after the passage of time, such a conviction might still be relevant and ought to be disclosed.

That aspect of the test is what ensures proportionality, as does the issue of the interference with the rights of an individual. Although the courts have recognised that, in certain circumstances, there should be bright-line rules, this is one of the areas in which it is difficult to have such bright-line rules, because it is inherent in the nature of this type of decision that having flexibility supports the rights of individuals and might, in some circumstances, allow them to move on from past offending.

Daniel Johnson

My slight issue with that is that, in the Supreme Court judgment that you cited, the judge provided a set of criteria that were similar to the ones that were suggested to us by the Howard League, and included criteria such as the circumstances of the offence, the number of offences, the age at the time of the offence and how recently the offences were committed. Why would you not include those criteria in the bill, particularly if you made them amendable by either affirmative or negative procedures, as the Law Society has suggested? That would provide welcome clarity as well as flexibility, which, rightly, you reference as being important.

Maree Todd

We are open to dialogue about whether codification could improve clarity. It might be helpful if I put the issue into context by saying that there are bright lines around the vast majority of the decisions that are made. Last year, only 600 disclosure certificates contained information relating to convictions accrued between the ages of 12 and 17. Further, of the 275,200 PVG certificates that were issued in 2018, only 401—that is, 0.15 per cent—contained ORI. Only a small number are affected by the two-part test.

Daniel Johnson

That depends on your frame of reference. In my view, 400 people sounds like a lot.

I recognise the Supreme Court judgments, but I note that those judgments apply English law in English cases. Although I understand that the courts up here accept Supreme Court judgments as guiding their decisions, would such judgments have an impact in respect of the legal status of the two tests in the bill?

Maree Todd

No, I do not think so. That would not give me any concern at all. Obviously we pay a great deal of attention to the UK Supreme Court’s judgments, whether in Scottish cases or in cases relating to other parts of the UK.

Daniel Johnson

But those judgments are not binding if they are made according to English law, even if they are judgments of the Supreme Court.

Gemma Grant

It is correct to say that they are not binding, but in this case they would be highly persuasive because the statutory test is set down in precisely the same terms.

Dr Alasdair Allan (Na h-Eileanan an Iar) (SNP)

I am keen to come in briefly on the back of the minister’s example of how the system would work for someone who committed an offence when they were 10 years old. The committee has heard a lot of anecdotal evidence—I will put it that way—about the problems that someone in that situation would face if they had accepted offence grounds in a children’s hearing. In some cases, if someone does not have legal representation, they might not understand the offence grounds. Are you satisfied that the new system will deal more understandingly—if that is an adverb—with people in that situation?

Maree Todd

We understand that it is difficult for children to understand offending behaviour, and that the acceptance of offence grounds can have lifelong consequences for employment opportunities, for example. That is why the Age of Criminal Responsibility (Scotland) Act 2019, the Management of Offenders (Scotland) Act 2019 and the bill have all sought to reduce the scope for such information to be disclosed.

The ACR act raised the age of criminal responsibility, and it provides that behaviour under the age of 12 can be disclosed only as other relevant information. The Management of Offenders (Scotland) Act provides that children’s hearings disposals become spent immediately, which means that they will never appear at disclosure level 1, which is the lowest and most common level.

The bill ends the automatic disclosure of childhood convictions and replaces it with an individual case-by-case approach. That is a real improvement on the current situation. The two 2019 acts and the bill interact to form a cohesive approach to a difficult issue that concerns us all.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Minister, I want to ask about the lists of offences, particularly the criteria that are used for the timescales for disclosure and the content of those lists. The Children and Young People’s Commissioner Scotland stated in written evidence that:

“An approach based on lists of offences is a blunt instrument which does not allow for a proper assessment of risk of future harm”,

and raised a point about whether there should be separate lists for childhood and adult offences.

The Centre for Youth and Criminal Justice raised concerns with us about

“wilful fire-raising as a List A offence”

and offences that can accrue to care-experienced children in specific circumstances. What criteria were used to decide on the content of the lists, how they were split and the timescales for disclosure?

Maree Todd

We are aware that some of the respondents to the consultation on the bill, and some witnesses to the committee, have suggested that there should be different lists for children. However, that would increase complexity, which we want to avoid. All that the lists do is act as a filter. They remove from the scope convictions that are irrelevant for state disclosure.

For convictions that are automatically non-disclosable, as a result of that filtering process the inclusion of childhood conviction information is subject to case-by-case assessment, first by ministers and then, if necessary, by an independent reviewer. We consider that tailored approach to be much more proportionate than introducing a separate list of offences in relation to childhood convictions.

Rona Mackay

We have heard concerns about the content of such lists possibly being out of proportion or not compatible. Would you work with other stakeholders to refine that?

Maree Todd

We are always willing to work closely with stakeholders. In the evidence that has been given previously, the committee will have heard just how closely Disclosure Scotland does the same. Much of the content of the bill has come about as a result of such close engagement and working together.

There are strong policy justifications for having the two different lists. Without them, there would be no distinction between offences such as public indecency, which is a list B offence, and rape, which is a list A offence. Both offences are relevant and serious, which justifies the need to be able to disclose such convictions after they become spent. Having just one list would fail to acknowledge that we are dealing with a spectrum of offences, as was acknowledged by the Law Society of Scotland in its evidence.

Rona Mackay

Are you still of the view that childhood offences that have been committed by care-experienced children should be treated the same as others, or would consideration be given to the external circumstances in such cases?

Gerard Hart

The lists are not an articulation of a wish to treat such cases the same way. The process behind the operation of the lists will allow the unique and individual circumstances of each person who is affected to be considered fully. Disclosure Scotland has been very cognisant of care-experienced young people and their increased propensity to be convicted as children, which is a very serious problem. We work in partnership with Who Cares? Scotland and other organisations, including the CYCJ, on trying to address that.

The lists are probably better seen as a way of saying what is not disclosable. The vast majority of stuff will not be disclosed because it is not on the lists. They kick-start a process whereby a nuanced and individual look is taken at the material so that a proper, fair and balanced decision can be made. There are some young people whose offending will indicate a serious propensity to go on to cause serious harm as adults, but the vast majority of them do not go on to perpetrate such behaviour in adulthood—even those who, in childhood, evince sexually harmful behaviour.

There is no way that we can have a process other than a completely nuanced and qualitative one that would really sift through such information to ensure that we attach disclosure status only to those who genuinely need it and that the vast majority of young people do not have to face the persistent disclosure of their childhood problems.

Rona Mackay

I am concerned about how the detail of that approach will appear in the bill. Will it be worded so as to make it clear that such cases are not viewed in black and white?

Gerard Hart

The guidance that will be produced for our staff in the Scottish Government, the independent reviewer and the police will have, at its very heart, the balance that has to be struck between fairness to the individual and protection of the public. It will have to take full cognisance of the serious and evidence-based concerns that exist about young people who are looked after and accommodated, and the trajectory that they can have in their lives because of the persistence of disclosure requirements. That will be absolutely central to writing good guidance, which we will prepare with stakeholders so that it is as shared as much as possible in both its conception and its operation and is made subject to regular review.

Gemma Grant

On your question about the wording of the bill, I add that a conviction that is non-disclosable because of the operation of the lists cannot be a childhood conviction. A non-disclosable conviction is not disclosable at all, does not go through the decision-making process and is not subject to the statutory tests; it just falls off the disclosure. That is a feature of the bill as it is currently drafted.

Rona Mackay

With regard to the proposed timescales, what general criteria did you use?

10:30  



Kevin Lee (Disclosure Scotland)

The bill does not set out timescales, because we wanted to engage with stakeholders to set appropriate timescales. We do not want to set something that does not give individuals enough time to engage in the process. By the same token, we do not want to set timescales that are too long for organisations from which we might need information, because we obviously want to ensure that the process works as quickly as possible. We are aware that delays could be seen as a proxy for something else that is going on. With our approach, we think that we can deliver the number of applications involved in a matter of days. We are not talking about months, which is how long it takes just now. An application to get a conviction removed from a disclosure by a sheriff can take months, if not over a year. We certainly believe that the approach that we have taken will radically improve the situation for people who want to apply to get information removed from their disclosure.

Rona Mackay

You are confident that it will speed up the process.

Kevin Lee

Yes.

Gail Ross (Caithness, Sutherland and Ross) (SNP)

Good morning. I want to follow up on a point that Gemma Grant made about childhood convictions automatically falling off. Does that mean that they are there but not disclosed, or does it mean that they are permanently deleted and there is no record of their having happened?

Gemma Grant

If somebody had had a conviction in childhood that had become non-disclosable because of the passage of time, it would not be included in any of their disclosure products under the bill. However, I would need to check with my Disclosure Scotland colleagues on the matter of record keeping and whether that information would still be held.

Gerard Hart

We disclose from the police record. Obviously, the police have a criminal history system, the police national computer and other systems that they maintain for the purposes of law enforcement and the apprehension of offenders, from which we disclose. We process that information when we take it from the police and apply the disclosure rules to it.

The police would still hold the information, but they have their own weeding and retention rules, which are commonly referred to as the 20:40:70 proportionality rules; it is the chief constable who applies those. The information that we process is drawn from the police systems. The police would therefore still know about a conviction, unless they had weeded it, but it would not be disclosed by the state on a disclosure.

Gail Ross

Thank you.

I want to move on to what Gemma Grant said earlier about article 8 of the ECHR. Of the system that is proposed in the bill, Alison Reid of Clan Childlaw said in her written submission:

“A system so complex as to mean there is the lack of foreseeability, is at risk of being incompatible with Article 8 of ECHR.”

Furthermore, in a recent letter to the committee, the Faculty of Advocates said that

“the disclosure would ‘represent an unwarranted invasion’ of an individual’s article 8 rights.”

What is your view of that evidence? Is there a genuine concern there?

Gemma Grant

I can certainly confirm that, in order for laws to be compatible with the ECHR, their effects need to be foreseeable. That means that they need to be accessible to the people who are affected by them and must not be arbitrary. If a piece of legislation gives a decision maker discretion, there has to be sufficient clarity about the way in which that discretion will be exercised. What the case law does not say, though, is that decision makers and public bodies are not permitted to have such discretion in making decisions; it is just a question of having a set of parameters that are based on guidance or already known and established legal principles so that the application of those rules is reasonably foreseeable in practice.

The Scottish Government’s position is that what is set out in the existing legislation and in the bill is sufficiently foreseeable, and that that will also be informed by the guidance that is to be developed in consultation with stakeholders.

Gail Ross

Alison Reid commented on that aspect when she gave evidence to the committee. She said:

“We are trying to explain the scheme to young people who potentially have complex mental health issues, who have experienced physical and emotional abuse or trauma or who have been exposed to neglect.”

She said that “really complex concepts” had to be explained. That is possibly at odds with what you said about it being foreseeable. I asked her how we could make things simpler. She said:

“In relation to the way that childhood offending behaviour is addressed, our view is that it should not be treated as a conviction.”—[Official Report, Education and Skills Committee, 9 October 2019; c 8-10.]

Do you have any opinions on that?

Maree Todd

Discussion is absolutely vital to balancing public protection and rights. That is well established in the process of self-disclosure and state disclosure. I will ask Gerard Hart to give the committee more detail on how we intend to engage with stakeholders to ensure that they understand the process clearly and that there is material available on how decisions might be made and how that might impact on people’s future prospects.

Gerard Hart

As the minister said, the concept behind the bill is to try to provide the right tools to ensure that anyone who has a criminal record that could be disclosed can have access to fair and proportionate ways for their case to be looked at on an individual level. There are two poles: we could have a system in which everything is disclosed—that is kind of where we were before the UK Supreme Court ruling in 2014 and our subsequent convention compliance order in 2015—or we could have a system in which nothing is disclosed and everything is protected. There are camps of opinion for both. We are trying to strike the right balance between those two positions and that necessarily drives a degree of discretion into the consideration process.

We have tried to solve that through some of the things that we have talked about today. What we call the rules list and the always list—the lists in schedules 8A and 8B to the Police Act 1997—give a clear articulation of what is never disclosed and what could be disclosed, and the new appeal processes that are being put in place give ready access to justice for people who want those things to be looked at.

The imposition of the independent reviewer across the process adds a new layer of proportionality and fairness, but that brings with it a degree of complexity, because it is a complex problem. We are trying to solve a complex problem that needs an individual and nuanced approach. To counter that, we have to write really great guidance that is fantastically clear so that everyone can understand it. We must do that in partnership with all our stakeholders and have great online services that enable people to access those things easily. We are determined to do that and to have that kind of openness and clarity in the process.

Maree Todd

The Government is confident that the bill will help to deliver a system of disclosure of childhood convictions that is fairer and more individualised, and that it strikes a more proportionate balance between someone’s ability to move on from past behaviour and the need for wider public protection.

One thing that we have not highlighted so far in our evidence is the fact that the bill will enable those with childhood convictions to provide representations that include details about the wider context of their previous behaviour to ministers before any disclosure to a third party is made. That is a significant change from the current system, and I think that it improves proportionality and privacy for individuals who need to use the disclosure system.

Dr Allan

We might have touched on some of what I am about to discuss, but not all of it. I am interested in the context around convictions. Will the bill allow for context to be disclosed, when that is relevant? Can you say a bit more about how context informs decisions about disclosure?

Maree Todd

The decision-making framework where the two tests are applied enables people to consider that context and seek further information to help them to make a decision about whether something needs to be disclosed. As I said, that applies in relation to ORI and when disclosing information to ministers or the independent reviewer.

That is where context will be sought, so that people can make a good and informed decision about whether something is relevant and ought to be disclosed. They will have access to suitable context for those decisions to be made.

Dr Allan

Can you say a bit more about the role of ministers in the system and whether you see it increasing or decreasing? Will the proposed system be an improvement on what is there now? How much discretion or involvement are ministers likely to have at any stage in this process on any cases?

Maree Todd

In simple terms, ministers make the first decision on whether something needs to be disclosed; Disclosure Scotland makes that first judgment on behalf of the Scottish ministers. There is then a process of ensuring that the person about whom information is to be disclosed has an opportunity to see that, if they are a child, and to make an appeal to the independent reviewer.

I will ask one of my colleagues to provide some more detail on how the system works.

Dr Allan

I understand that decisions will be made on behalf of ministers, but are there any circumstances in which decisions could end up on the minister’s desk?

Gerard Hart

It has happened. We have consulted ministers. The Carltona principle, which applies across the civil service, means that when we make decisions, we do so on behalf of the minister, as if the minister had made them herself, and she is accountable for those decisions. We obviously have to do that with full cognisance of what that might mean. When there is a particularly difficult matter, it is sometimes right to let the ministers see those cases, and we do that from time to time.

It is also sometimes right to disclose the context of something so that it can be understood by the person who is going to use the information. Running the PVG barring service, from time to time, I might see, for example, a murder case from 30 years ago, the file on which just says, “Murder. Life imprisonment”, and because records have been deleted, we do not know what the details are.

In a curious and helpful way, what we are doing now through the disclosure of information that covers much more than just a bland conviction allows for some of the context around behaviour to be set out so that it will be accessible further on down the line. For example, if an awful murder has been committed, or perhaps a rape and murder, and the circumstances are horrible, at present, that might be disclosed as, “Murder. Glasgow High Court. Life”, whereas, in 30 years’ time, the disclosure might include information about the context of the murder, which will give the person who uses the disclosure a bit more information than they will get at the moment. Focusing more on the task for which the information is being provided will improve public protection.

We have thought through how we can provide context as part of the bill process.

Gemma Grant

As far as the provisions in the bill on providing context are concerned, representations will be at the heart of all the review mechanisms, so individuals will have the opportunity to provide that context themselves. There are also wide information-gathering powers for ministers in exercising their functions under the bill and for the independent reviewer to ask third parties to provide context-specific information.

Dr Allan

On the other side of the equation, which is about education and awareness, do you think that individuals will have the confidence to work out when they are required to self-declare information—for example, when they are applying for a job? Will people continue to be aware of that, or will they need education?

Maree Todd

Education will always be needed for that aspect of self-disclosure. As I said earlier, there is a principle that self-disclosure should synchronise with state disclosure, and we are certainly working to ensure that that is the case through the bill.

Iain Gray (East Lothian) (Lab)

A couple of times, we have touched on the interaction between the bill and existing legislation and, in particular, the consistency—or lack of consistency—between the self-disclosure and state disclosure regimes. There are probably three pieces of legislation that are relevant here: the Rehabilitation of Offenders Act 1974, the Age of Criminal Responsibility (Scotland) Act 2019 and the Management of Offenders (Scotland) Act 2019, all of which have some contradictions with what is proposed in the bill.

Minister, in your letter and this morning, you have indicated that you intend to lodge amendments to the bill in order to resolve that. Will you give us a bit more detail on those amendments and explain exactly how you intend to resolve the contradictions?

10:45  



Maree Todd

We are still considering that, so I cannot give you any detail today, but I certainly promise to provide details in as timely a manner as possible, so that the committee has time to consider those details before we reach stage 2.

Iain Gray

The matter is quite pressing, because we are at the end of our stage 1 consideration of the bill. When will you be able to show us how you intend to amend the bill?

Kevin Lee

Right now, the self-disclosure regime, which is covered by the Rehabilitation of Offenders Act 1974, and the state disclosure regime, which is governed by the Police Act 1997 and the PVG scheme, are broadly aligned. The real issue is the treatment of childhood convictions, because the bill says that they will be assessed on a case-by-case basis. If we did nothing to the 1974 act as it applies at the moment, the act would compel a person to disclose a conviction from under the age of 18 while it is unspent, yet the bill proposes that the state will take a case-by-case approach. Therefore, we could have a situation in which a person is required to disclose under ROA, but the conviction is not disclosed by the state. The provisions in the bill would be of no use to that person in those circumstances, and that is the issue that we need to fix.

It is a complicated area, because although the Rehabilitation of Offenders Act 1974 is not in our policy area, it has necessary connections with what we are doing under the bill. Work is on-going with our justice colleagues to resolve the issue and to prepare amendments, and we will make the committee aware of them at as early a stage as we can.

Iain Gray

The obvious way to fix the inconsistency would be to amend the Rehabilitation of Offenders Act 1974. Are you saying that you do not know whether you will be able to do that?

Kevin Lee

It is our intention to make consequential amendments to the 1974 act.

Iain Gray

You implied that you are still discussing whether you could do so.

Kevin Lee

We are discussing how, not whether, we can do so.

Gerard Hart

We are working to the principle that the systems should be aligned, and if they fail—by which I mean, if there is any ambiguity whatsoever—they should fail on the side of fairness to the individual. We have a number of policy models for how that can be solved, which ministers are considering. The minister will indicate how quickly she intends to address the matter, but we are advanced in our thinking on how to deal with it.

Iain Gray

Minister, you say in your letter that the bill does not amend the Age of Criminal Responsibility (Scotland) Act 2019 or the Management of Offenders (Scotland) Act 2019 because, at that point, neither of the bills had received royal assent, so the acts were not on the statute book. Do you intend to lodge amendments to the bill that will amend those two acts?

Gemma Grant

A number of consequential amendments are required to the Age of Criminal Responsibility (Scotland) Act 2019. The disclosure mechanisms that were introduced for under-12s’ behaviour were based on the provisions of the Police Act 1997 being in force, so the 2019 act will require to be updated.

Iain Gray

When will you be able to tell us what those amendments are?

Maree Todd

We will do so as soon as we can.

Iain Gray

That is not much of an answer.

Maree Todd

The Management of Offenders (Scotland) Bill was passed only this year. When I wrote to the committee, the two bills had not been enacted. The acts are very recent pieces of legislation. However, the Government is taking a cohesive approach across the three pieces of legislation to try to solve some of the challenging issues that have taxed and vexed us all for many years. I am actively working on all those issues and I will provide details of the amendments as timeously as I can. I want the committee to understand and be able to scrutinise what we are doing, but I could not provide that detail before the two bills were enacted.

Iain Gray

Will it be before the committee enters stage 2 of the bill proceedings?

Maree Todd

I am keen to make sure that the committee has all the information that it needs before it enters stage 2—yes.

Iain Gray

It probably requires more than being keen, but thanks very much.

Ross Greer (West Scotland) (Green)

Let us turn to the minimum age and how under-16s will relate to the scheme. Minister, in your opening remarks, you mentioned the situation in England, Wales and Northern Ireland, where the fact that under-16s do not have to take part in the equivalent schemes seems not to impact on their ability to participate. I am not familiar with the schemes in the rest of the UK. Is that a result of changes that were similar to those that are proposed in the bill? Concerns have been raised about the impact that a change in the system could have in relation to participation. If that has always been the case in the rest of the UK, it is not particularly comparable.

Kevin Lee

They made the change more recently.

Maree Todd

Yes—the change was made more recently, so the situation is similar to the situation here. We are keen not to discourage volunteering among children and young people. They volunteer more than adults do and they contribute a huge amount to Scotland by doing so. We want to make sure that it is still possible for them to do that.

The committee heard evidence from organisations that already consider children differently as volunteers and that do not require them to have PVGs or take on responsibility for performing roles that we would consider to be regulated work. I am confident that we will still be able to provide plenty of opportunities for children to volunteer. I do not think that the change will be as significant as we might imagine, because it has already happened throughout the rest of the UK without great consequence.

Ross Greer

I absolutely agree that organisations submitted evidence that they distinguish between those who are over 16 and those who are under 16. That is best practice, but we cannot make law on the basis of assuming that everyone will follow best practice. There are concerns that the combination of the offence of undertaking a regulated role without appropriate disclosure and the movement to an under-16 system could lead smaller organisations in particular, which are often volunteer led and have less infrastructure, to feel that the safest position to take is not to have under-16s participating in such work. I accept that that is not the intention, but there is concern that that will be the effect.

What problem is being solved by 16 being set as the minimum age? Is it an issue of proportionality?

Maree Todd

I think that it is an issue of privacy for under-16s in that it is not necessary for them to have those things disclosed. Ross Greer has articulated the challenge for us to have really good engagement with stakeholders and produce really good materials in order to ensure that everybody who uses the disclosure system in Scotland is clear about how it operates and what their responsibilities are. We are aware that we need to do a good job on that, and we certainly intend to do so.

As I mentioned, many of the people who gave evidence to the committee talked about the level of engagement with Disclosure Scotland. We are keen to continue to engage intensively with everyone that we need to engage with in order to make sure that the system works at the end of the day.

I ask Gerard Hart to say a little more on that.

Gerard Hart

We have been exploring with stakeholders a number of underpinning issues in relation to that matter. First, we are not saying that under-16s cannot get a disclosure. It is about the fact that joining the PVG scheme means persistent monitoring—every single day—of the person and of the potential for their being considered for listing and being barred if something comes on to their scheme record. Any kid whose behaviour is causing that level of concern should be getting managed under the getting it right for every child framework through all the various aspects that might surround them, such as the police, social work, health and education. There is an expectation that those systems will manage risk and threat for children who might be at risk of having the extreme behaviours that the PVG scheme is there to stop.

The bill provides for children who cannot join the PVG scheme to get what will, in effect, be an enhanced disclosure, so it will still be possible to get a check done. However, because of the protections that I have just mentioned, that should be necessary in only a very small number of cases. The idea is that, in normal circumstances, children ought not to be subjected to that kind of state scrutiny unless there is a really good reason, and even then it should be as an enhanced disclosure or a lower, level 2 disclosure rather than a PVG disclosure.

When they turn 16 or 17 and start to work and be part of the workforce, it will be appropriate for them to join the official regulated roll, but it is not appropriate for them to do so earlier. Stakeholders told us again and again in different contexts that they do not want children who are under 16 to be drawn into the web of state disclosure through the PVG scheme.

Ross Greer

What you have just touched on relates to concerns that have arisen that are underpinned by the idea that the PVG scheme is seen as the be-all and end-all, particularly by smaller organisations that are less familiar with the detail of the system and see the PVG scheme as the only product that is on offer.

I understand how the system would work in relation to the small number of young people who are listed, but there is a larger group of young people whose behaviour might arise. If they are over 16, their behaviour might be disclosed even though they have not reached the threshold for listing. My understanding of what is proposed is that that situation would be managed through the GIRFEC process, but there is concern that that is not perfect. We would all acknowledge that, particularly when young people move between local authorities, situations that are dependent on local authority social work services can create a lot of pressure and people sometimes fall through the cracks. However, given what you have just said, Mr Hart, is that an example of the situations where enhanced disclosure would be the appropriate product?

Gerard Hart

It is everyone’s job to ensure that children and protected adults are safe, which means that the system has to join up across all its different aspects. Disclosure is not a panacea that reduces or limits all risks. We saw in the youth football abuse situation that there has to be a real coming together of different parties in order to make safeguarding work. Disclosure is part of that, but not all of it. We can eliminate risk by having joined-up systems, which is what GIRFEC aims to do. That is the point of the Government’s policy on joining up children’s services and having that focus on the child.

On the sexually harmful behaviours that we are talking about, my experience as a former social worker and former social work inspector with the Social Work Inspection Agency is that the really good services across Scotland that are dealing with such behaviours are joining up on, for example, information exchange and passing on child protection messages and so on. We anticipate that the collective goodness of the system will be sufficient for us to deal with the risks, rather than our having to try to crack a nut with a sledgehammer.

Jenny Gilruth (Mid Fife and Glenrothes) (SNP)

I want to address some of the technical concerns that Scottish Women’s Aid raised in its written submission, which relate to section 76 of the bill. You might be aware that SWA expressed concern about the proposal

“to redefine the meaning of ‘protected adult’”

because

“This listed vulnerability through ‘disability or illness’”.

It says:

“focussing ... on disability or illness created a loophole, as this definition would not automatically cover women experiencing domestic abuse”.

Has the Government considered that?

Maree Todd

The Scottish Government’s experience of operating the PVG scheme has highlighted challenges with the current definition. The policy intention is to move away from the current lengthy and complex definition to focus on the range of issues that affect a person’s wellbeing, capabilities and capacity and mean that they require additional safeguarding protections. I agree with the stakeholder comments that the simplification and improvement of the clarity of the process must not be to the detriment of the protection of vulnerable groups and that efforts to make the definition easier for users to navigate must be balanced with safeguarding. We are listening carefully to the stakeholders and we will certainly consider how to move forward in the light of their views.

11:00  



Jenny Gilruth

Scottish Women’s Aid also says:

“section 76 limits the protection of the legislation to adults regarded as being vulnerable due to a ‘personal’ condition. This is defined as a mental or physical disability, illness or old age”.

It goes on to say:

“this is a specific issue for ... women experiencing domestic abuse who are accessing refuge accommodation”.

It asks for section 76 to be rewritten to include

“the full spectrum of services within which regulated roles in respect of ‘protected adults’ would exist.”

I appreciate that you said in response to Iain Gray’s question that you are not quite ready to give us the detail, but is the Government actively considering amendments in that area, specifically with regard to women?

Maree Todd

I acknowledge that there is a question around whether the definition of protected adults is appropriately scoped. My officials have met Scottish Women’s Aid to discuss its concerns about the new definition and we are reflecting on any gaps that it might have created. We will certainly consider lodging amendments of the kind that you suggest. As you said, I cannot tell you now exactly what we will do at stage 2, but we are considering our approach.

The Convener

Beatrice, did you want to come in?

Beatrice Wishart (Shetland Islands) (LD)

The issues that I intended to raise in relation to children’s hearings and the long-term consequences have been covered.

The Convener

Ms Harris?

Alison Harris (Central Scotland) (Con)

I am in the same position—most of the issues that I wanted to raise have been covered.

The Convener

Minister, I have a couple of final questions. Thank you for your helpful letter to the committee, in which you say that a formal consultation will be carried out on fees. Will the changes in the bill ensure that organisations do not rely too heavily on the PVG scheme as the be-all and end-all when it comes to decision making?

Maree Todd

The committee has heard from numerous stakeholders. I reiterate my concern that there is sometimes a perception that the PVG scheme is a catch-all and that, as long as a PVG check has been carried out, people will be safe. I think that everyone in this room would be concerned about perpetuating that myth. In my role as Minister for Children and Young People, I make it absolutely clear that there is more to safeguarding than simply PVG checking and that safeguarding children is everyone’s responsibility.

The Convener

I know that you are going to consult on fees, but will you explain how volunteers who move into paid work will be charged under the PVG scheme? Currently, organisations can apply free of charge.

Maree Todd

I ask Gerard Hart to take that question.

Gerard Hart

The policy idea is that people should be able to take ownership of their PVG scheme membership and use it in a way that benefits their career and helps the economy to function even better. That applies in the paid work sector and the volunteering sector. We will need to decide how the fee structure will apply when someone crosses the Rubicon between paid work and voluntary work, and we will address that in the consultation on fees. If we have any proposals on how that will be done, we will engage with stakeholders and carry out user research on how we can make sure that that Rubicon can be crossed with ease. A lot of that will involve digital and online provision and making things easy to access, but the detail is still to be developed, and we will do that with our stakeholders.

The Convener

If somebody who is in a volunteering role becomes paid, how will you ensure that the organisation and the person understand that the move into regular work will mean that a failure to receive a PVG check will become an offence? How will you ensure that that is dealt with proportionately? There is concern about that.

Gerard Hart

When an individual wants to work for an organisation, the safeguarding payload of the scheme lies in us knowing that they are working for that organisation. As part of the registration of the transaction for us to know that the person wants to work for organisation A, the status of the work will have to be disclosed to us. If it is voluntary, there will be no fee, whereas if it is paid work, there will be a fee. It is necessary for us to register the organisation in order to deal with the transaction of giving the disclosure, and a by-product of that is that we will be able to identify whether the transaction should be paid for or free.

Liz Smith

One witness raised a potential anomaly. Given that there is usually one person in an organisation who is responsible for looking after disclosure information and passing it on to the relevant authorities, what would happen if a complaint in relation to the PVG scheme was made about that person?

Gerard Hart

In circumstances in which the countersignatory becomes the subject of consideration for barring, the Scottish Government will write to the person’s employer under section 30 of the current legislation, stating that the person is under consideration for barring. That is not unheard of, but it is very rarely the case that the individual who co-ordinates the disclosure process is at the top—or even close to the top—of the organisation. We would notify their superior in the organisation of their status, which would allow them to take any relevant action to safeguard—

Liz Smith

Will the new legislation cover that?

Gerard Hart

The current legislation covers it.

Liz Smith

I am sorry—I am asking whether the new legislation will cover it.

Gerard Hart

Yes. The existing arrangement will continue in the future. As part of the disclosure process, we vet those people who are logged with us as countersignatories. They have to go through separate checks, which are quite rigorous, to make sure that they are suitable persons to receive disclosure information. That is done as an extra safeguard.

The Convener

That concludes questions from the committee. I thank the minister and her officials for their attendance.

Next week, we will take evidence from the Cabinet Secretary for Education and Skills on the progress that has been made in relation to the recommendations in the committee’s report on Scottish national standardised assessments, subject choices and the exam diet in 2019.

11:07 Meeting continued in private until 11:19.  



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4 September 2019

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9 October 2019

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6 November 2019

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13 November 2019

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20 November 2019

What is secondary legislation?

Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:

  • bring a section or sections of a law that’s already been passed, into force
  • give details of how a law will be applied
  • make changes to the law without a new Act having to be passed

An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).

Delegated Powers and Law Reform committee

This committee looks at the powers of this Bill to allow the Scottish Government or others to create 'secondary legislation' or regulations.

Read the Stage 1 report by the Delegated Powers and Law Reform committee published on 2 October 2019.