Call for Evidence on law to fix problem with disclosure regime

09.10.2017

Committee of MSPs to examine a law to fix problems identified by the courts with the disclosure regime.

The courts have identified an incompatibility with the European Convention on Human Rights (ECHR) in the current disclosure regime, which this proposed law seeks to fix.

This proposed change fixes a previous fix to the disclosure regime made in 2015.

The Delegated Powers and Law Reform Committee would like to hear your views on these proposed changes.

Graham Simpson MSP, Convener of the Committee said:

“We all want a disclosure system that is legally robust and has public confidence. The Committee wants to examine these changes to see if they meet the concerns raised by the court.

This is a fix to fix a fix. We will be applying thorough scrutiny. We don’t want to find ourselves back here again and we want to make sure that these proposed changes could deliver a disclosure regime that is capable of being operated compatibly with ECHR”.

Further information regarding this inquiry is available via this link.

Background information

Details of the consultation process being carried out by the Scottish Government and the Proposed Draft Order itself can be found below:
Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order 2018 - Proposed Draft Order (643KB pdf)

The proposed changes would amend the higher level disclosure regime (as set out in the Police Act 1997 and in the Protection of Vulnerable Groups (Scotland) Act 2007) by extending the right to apply to a sheriff against disclosure of spent convictions.

In light of the Committee’s interest in the Proposed Draft Order the Committee would be keen to obtain views on whether the proposed changes would address the issues of ECHR incompatibility identified by the court in the case of P v the Scottish Ministers and would be capable of being operated compatibly with ECHR rights.

More specifically the Committee would be keen to obtain views on:

  • Whether the period of time which must pass before the disclosure of Schedule 8A spent conviction information may be appealed to the sheriff (15 years from the date of conviction, or 7.5 years if the individual was under 18 on the date of conviction) is proportionate?
  • The lack of any provision allowing the disposal of the conviction to be taken into account in determining whether an appeal to the sheriff against disclosure of a Schedule 8A conviction is appropriate.
  • Whether there are any concerns about the sheriff appeal procedure as it currently applies to the disclosure of schedule 8B convictions?
  • The transitional provision set out in the Proposed Draft Order dealing with the transition from the existing regime to the proposed new regime.