About the Inquiry
The Scottish Government laid the proposed draft of the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order 2018 (“the Proposed Draft Order”) before the Parliament on 11 September.
The Scottish Government has brought forward the Proposed Draft Order in response to the judgement of the Court of Session in P v the Scottish Ministers.
In that case, the Court of Session ruled that certain provisions of the Police Act 1997 and of the Protection of Vulnerable Groups (Scotland) Act 2007, as they applied in that case, were incompatible with Article 8 of the European Convention on Human Rights (ECHR).
What does the Proposed Draft Order do?
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. The right to apply to the sheriff against disclosure, which currently arises in respect of spent convictions for offences listed in schedule 8B of the Police Act 1997, would be extended to cover also spent convictions for offences listed in schedule 8A of that Act, in certain circumstances.
What is the process for consideration of the Proposed Draft Order?
The Proposed Draft Order is made under a power in section 12 of the Convention Rights (Compliance) (Scotland) Act 2001. This power allows the Scottish Ministers to make changes to legislation in order to remedy an incompatibility with rights protected by the ECHR. An order making such changes is known as a ‘remedial order’.
Where the Scottish Ministers propose to make a remedial order under section 12, they must lay a proposed draft of the order before the Scottish Parliament for 60 days, together with a statement of their reasons for proposing to make a remedial order (as distinct from taking any other action). The Scottish Ministers must also consult on the draft order. The Ministers must have regard to comments made within the 60 day period.
The Scottish Ministers must then lay the finalised draft remedial order before the Parliament subject to the usual affirmative procedure (a further 40 day period). This must be accompanied by a statement summarising all the comments received and specifying any changes made to the draft order as it was originally laid.
The Proposed Draft Order is therefore laid before the Parliament at this stage for scrutiny and comment during the initial 60 day period.
Details of the consultation process being carried out by the Scottish Government and the Proposed Draft Order itself is below:
Why is the DPLR Committee looking at the Proposed Draft Order?
The remit of the Committee is engaged in respect of remedial orders in light of the specific requirement on the Committee (set out in the Standing Orders) to consider whether any instrument before it raises a ‘devolution issue’.
A devolution issue arises where there is a doubt as to whether the instrument is within the legislative competence of the Parliament, or where there is a doubt as to whether the purported exercise of a function by the Scottish Ministers is compatible with ECHR rights.
It is therefore the role of the Committee to consider the changes which would be introduced by the Proposed Draft Order, and which aim to address the issues of ECHR incompatibility identified by the court in the case of P v the Scottish Ministers, in the light of those questions. The Committee is required to consider whether the proposed changes are capable of being operated compatibly with ECHR rights, and particularly with Article 8.
What does the Committee want to hear about?
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.
What will happen next?
The Committee will take oral evidence on the Proposed Draft Order from the Scottish Government and Disclosure Scotland. The Committee will consider whether it wishes to take any further oral evidence based on the written evidence it receives.
Should you require alternative formats of this information or further assistance in making a written submission to the Committee, please do not hesitate to contact the clerking team of the Committee via the email address below or by telephone on 0131 348 5212.
The closing date for responses was Friday 20 October 2017 and the written submissions received are listed below:
1. Scottish Independent Advocacy Alliance (SIAA) (183KB pdf)
2. Faculty of Advocates (234KB pdf)
The Committee took oral evidence on the Proposed Draft Order from Scottish Government officials at its meeting on Tuesday 31 October. The Official Report of that meeting can be found here.
At its meeting on Tuesday 21 November, the Committee agreed its response to the Scottish Government's consultation on the Proposed Draft Order. The response was submitted to the Scottish Government that same day and can be read below: