Disclosure (Scotland) Bill

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.

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.

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.

The Deputy Presiding Officer (Christine Grahame)

The next item of business is a debate on motion S5M-20452, in the name of Maree Todd, on the Disclosure (Scotland) Bill at stage 1.

The Minister for Children and Young People (Maree Todd)

I am pleased to open the debate on the general principles of the Disclosure (Scotland) Bill. I thank everyone who has contributed to developing the bill so far.

The bill is ambitious and touches on complex and diverse matters. Input from private individuals, employers, advocates, regulators and many others has been absolutely invaluable to understanding what they need and what we can achieve with the bill. We have been listening since its introduction. We have listened to the evidence that was given to the Education and Skills Committee and have engaged with more than 700 individuals, including children and young people, through events held by Disclosure Scotland and Volunteer Scotland. We have worked hard throughout to discover how we can make state disclosure work better for everyone.

I know that the proposals in the bill represent a significant change. To get all the benefits of the changes, we will need to maintain that engagement as we work towards implementation. I believe that the evidence that was given to the committee reflects the level of constructive cross-sector engagement that there has already been with a view to getting the bill right.

I also thank the members of the Education and Skills Committee for their considered approach to stage 1. In particular, I welcome the committee’s support for the general principles of the bill. I have taken time to consider its recommendations, and I am just as committed as it has been in providing a constructive response.

In recent years, the Scottish Government has worked to improve the justice, rehabilitation and disclosure systems. The Disclosure (Scotland) Bill is the next step in ensuring that we can continue to support safeguarding Scotland’s most vulnerable people while recognising the right of people to move on from their past behaviour. It is in that context that I am considering the committee’s recommendations.

The bill introduces new and reformed processes to allow certain information that could be disclosed to be fairly assessed. The current system provides only limited opportunity for people to challenge what is included in their disclosure. The reforms will ensure that people can interact with the disclosure process and expect it to take account of their circumstances. That does not mean that we will stop disclosing information that is relevant to safeguarding; it simply means that our disclosure system will be better able to take into account the individual circumstances surrounding offending behaviour.

That is particularly important when considering childhood offending. The bill will afford new protections to people who, as children, came into contact with the justice and hearings systems. The provisions allow the full context of childhood behaviour to be considered before a decision is made about whether to disclose such information to a third party.

I welcome the committee’s recognition of the particular needs of care-experienced people and our duty to listen carefully to their voices in developing policy. In evidence, we heard from Robert Dorrian, a care-experienced young person who described how a childhood conviction, for which he was admonished, followed him through his education and limited his opportunities as a young adult. That must change. It is vital that people who have experienced adversities in childhood are not further held back as they try to move on as adults.

Daniel Johnson (Edinburgh Southern) (Lab)

The minister’s point about how such incidents can affect future chances is very well made. However, a concern was raised about whether sufficient consideration had been given to whether information on such behaviour might be disclosed as other relevant information, even though it would not be disclosed as a childhood offence. What consideration has been given to that concern?

Maree Todd

We have given a great deal of consideration to the committee’s concerns about the disclosure of other relevant information, or ORI. I assure Mr Johnson that we are not planning to change the process of disclosure—how we make those decisions. What we are planning to do is to communicate better how those decisions are made.

We also seek to reform the process by which some spent convictions can be removed from a higher-level disclosure. There are many sensitive roles for which it is accepted and proportionate that convictions that would otherwise be forgotten still get disclosed. That allows employers to properly consider past conduct before putting someone into a position of responsibility. The Supreme Court has accepted that it is appropriate for us to set out clear thresholds regarding offence type and severity. Having lists and criteria against which disclosure happens enables a proportionate and foreseeable system that can be delivered within reasonable operational limits.

Currently, removing convictions requires a summary application to the sheriff. We have been told that the process is time consuming, expensive and intimidating for potential applicants. The bill will change that, and the new first step will be to make a simple review request to Disclosure Scotland. If Disclosure Scotland decides that the information should be included, the applicant can opt for independent review. I recognise and accept the committee’s position that allowing subsequent reviews of the same information at a later date would enhance proportionality. That means that a state decision to include a conviction could be changed later as time passes or circumstances change. I will therefore lodge a stage 2 amendment to that effect for the committee’s consideration.

As I said, I know that concerns have been raised surrounding ORI and the bill. It is important to remember that the provision of ORI is not something new that is being introduced by the Disclosure (Scotland) Bill. Inquiries following the Dunblane massacre in 1996 and the Soham murders in 2002 highlighted that we needed to better manage information about individuals about whom there are valid safeguarding concerns.

Liz Smith (Mid Scotland and Fife) (Con)

I entirely agree with the minister about the sensitivities over the issue—what she has just said is absolutely right.

One issue that was put to the committee is that sometimes we end up with a situation in which the person who has information disclosed about them is not able to see the full extent of the information that goes to the employer or a reviewer. Does the minister have any concerns about that?

Maree Todd

The bill proposes that an individual who requests a disclosure certificate will see the information about them that is to be disclosed before the employer does, and they will have the opportunity to have that information reviewed by the independent reviewer. It is planned that the independent reviewer will give some feedback on the decision, so the person who is applying for the disclosure certificate will be significantly better informed under the new system than they were under the old system

ORI has a vital role in safeguarding, and continuing with that approach is necessary for public protection. I am confident that Police Scotland and other United Kingdom police forces exercise the utmost rigour before deciding to include ORI. The purpose of the name changes that we are making is to mirror the arrangements that exist in the rest of the UK, which means that people will have the opportunity to dispute ORI’s inclusion before a potential employer receives it and will have a right of review by the independent reviewer. Statutory guidance on deciding whether to include ORI will also be issued to the chief constable. The changes will ensure that the information that may be included is more foreseeable, without diminishing the capability to share relevant information.

The committee has recommended that we include in the bill

“guiding principles ... which should apply to all decision making”.

Although the existing parameters have a very strong basis in the relevant case law, I accept the case for including more detail in the bill to assist with foreseeability and clarity. I am carefully considering the recommendations and how best to include those principles, but it is important that they do not compromise the flexible approach that is necessary in fully considering each individual’s circumstances.

I also recognise the concerns around how the Disclosure (Scotland) Bill will interact with the rules on self-disclosure in relation to childhood convictions. There are a number of challenges in ensuring that we get the balance between safeguarding and proportionality right. At stage 2, I will lodge amendments to ensure that no one will have to self-disclose a childhood conviction that would not be disclosed by the state.

The Scottish Government’s experience of operating the protection of vulnerable groups scheme since its introduction has highlighted the challenges in identifying eligibility for that scheme. The past eight years have demonstrated that the term “regulated work” is poorly understood and overly complex. The bill seeks to address those concerns. Discussions with stakeholders on the definition of “regulated work” indicated that many felt that it needed to be much clearer. It was also evident that, to ensure a robust PVG system, the definition of “regulated work” needed to go further and to include those who have the ability to exercise power or influence over vulnerable groups.

We have consulted on which day-to-day activities result in power or influence over vulnerable groups. Those activities and the definition of “contact” are set out in schedules 3 and 4 to the bill. Many stakeholders have told us that the new schedules offer more clarity, but I am conscious that clear and accessible guidance will be required to support them fully. We are committed to working with stakeholders, including smaller businesses and voluntary organisations, in developing the guidance.

I have noted the concerns that were raised by Scottish Women’s Aid and the committee regarding the proposed change to the definition of “protected adult”. The intention was 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. However, I recognise that, in doing so, some of the nuance in relation to those who are vulnerable due to their circumstances may have been lost. I thank Scottish Women’s Aid for highlighting that issue, and I will lodge a stage 2 amendment to ensure that such people remain within scope.

The bill is founded on extensive and on-going engagement with a broad range of stakeholders. We have listened carefully to diverse voices from across Scotland at each stage of the bill’s development, and we look forward to continuing that approach as we progress. If there is one message that I ask members to take into the debate, it is that I am listening and I will consider carefully what more might need to be done. I acknowledge that we may have different views on the best way to make progress on some aspects of this innovative bill, and I welcome the constructive discussion that we have had so far. I commit to working together with stakeholders and with members of the committee and the wider Parliament to ensure that we get the bill right for our communities, for vulnerable groups, for businesses and for charities in Scotland.

I look forward to the debate and to hearing more views from members across the chamber.

I move,

That the Parliament agrees to the general principles of the Disclosure (Scotland) Bill.

The Deputy Presiding Officer

I call Clare Adamson to speak on behalf of the Education and Skills Committee.

Clare Adamson (Motherwell and Wishaw) (SNP)

As the convener of the Education and Skills Committee, I thank the committee members and the clerking team for their support during the stage 1 deliberations on the Disclosure (Scotland) Bill. The bill has the potential to be transformative for some people who find themselves in the disclosure system.

I was pleased that the minister mentioned Robert Dorrian. It is important that members understand fully the impact that the bill may have on young people such as Robert, so I will quote him. He said:

“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.”—[Official Report, Education and Skills Committee, 13 November 2019; c 5.]

Those words highlight that it is vital that the bill is fit for purpose and works for everybody who interacts with the disclosure scheme.

That said, it is a complex and technical bill. As the convener of the committee that was charged with scrutinising it at stage 1, I believe that the evidence that we heard provided us with encouragement about the positive aspects of the bill but highlighted areas where the committee believes that further work is needed to ensure that the bill has optimal impact. I will try to cover those areas in my speech.

Before I do so, I thank all those who gave evidence to the committee, whether as part of our focus groups on the bill, by providing written submissions or by attending the committee to give oral testimony at evidence sessions. As we did in our report on the bill, I acknowledge the Government’s extensive engagement before drafting the bill. We heard from a wide range of witnesses, including many smaller voluntary groups and charities that interact regularly with the disclosure scheme. The lived experience of those giving evidence was particularly helpful in illuminating for the committee the potential practical challenges and opportunities in the bill as drafted.

I also thank the bill team from Disclosure Scotland, whose detailed pre-introduction consultation and constructive co-operation with the committee throughout stage 1 was very much appreciated. I welcome the Scottish Government’s constructive and detailed response to our stage 1 report, which was received on Tuesday.

I will focus my comments on some of the recommendations in our stage 1 report. I will not have time to pick up on everything in the report, but hopefully I will give colleagues some food for thought ahead of stage 2, when we expect to consider amendments on a range of the bill’s provisions.

I mentioned that some people view the bill as complex and technical, and that is certainly the case in relation to its interaction with other pieces of legislation. We were very concerned by some of the discrepancies between the bill as drafted and related acts that have been recently passed by the Parliament, such as the Age of Criminal Responsibility (Scotland) Act 2019 and the Management of Offenders (Scotland) Act 2019.

In our stage 1 report, we asked the Scottish Government to address those discrepancies at stage 2, and I note that the Government committed to doing so in its response. I welcome the Scottish Government’s reassurance that the bill was drafted with the principles of the United Nations Convention on the Rights of the Child in mind, which was another concern raised by the committee.

Another challenge that was addressed by the committee is the two-part test in relation to level 2 disclosures. The two-part test concerns whether the information ought to be included in the disclosure and whether it is relevant for the purpose of disclosure. We heard from a number of witnesses, including the Law Society of Scotland, who felt that further clarity was needed on the operation of those tests, particularly in relation to childhood convictions and the disclosure of other relevant information. Daniel Johnson has already raised that issue this afternoon.

In our report, we welcomed the Scottish Government’s commitment to develop guidance in collaboration with stakeholders, but we recommended that the Scottish Government consider the suggestion from the Law Society of Scotland that a set of guiding principles or criteria be included in the bill. I am encouraged by the fact that the Scottish Government has stated in its response to our report that an appropriate stage 2 amendment will be lodged on that issue.

As members can infer from the testimony of Robert Dorrian, the bill seeks to reform how offences that are committed by young people aged between 12 and 17 are disclosed. The policy memorandum to the bill states that one of the policy goals of the bill is

“recognising adolescence as a unique phase of life by ending the automatic disclosure of convictions accrued while aged between 12 and 17 years and introducing an assessment by Disclosure Scotland acting on behalf of Ministers as to whether convictions ought to be disclosed”.

That goal was welcomed by a number of witnesses, but I will focus, in particular, on people such as Robert Dorrian, who are care experienced. Who Cares? Scotland told the committee that,

“although those who have been in care make up an estimated 0.5% of the population, they make up 33% of Scotland’s youth offender population and 31% of Scottish adult prison populations”,

which makes them much more likely to be impacted by decisions that are taken about the disclosure scheme.

I have spoken about the potential to provide the context for offences. On that issue, our report stated that more could be done to provide opportunities for any information related to childhood offences that is included in a disclosure to be set in context. That is particularly important for care-experienced people, given their disproportionate level of engagement with the justice system. We hope that that is at the forefront of everybody’s minds as the bill progresses.

The disclosure scheme is also about enabling individuals to take on roles in which they can work with vulnerable groups. One concern that the committee holds is over the current proposal to prevent under-16s from obtaining PVG scheme membership. Sarah Latto of the Scottish Volunteering Forum told us 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.”

In our report, we recommend that the Scottish Government conduct a review of the change to measure any negative impact on volunteering rates among young people, as well as developing guidance and supporting organisations to continue to offer volunteering opportunities to those under the age of 16.

Finally, the committee considered the financial memorandum to the bill—in particular, the fee structure for those applying for disclosure products. We recommended the waiving of fees for volunteers obtaining any disclosure product, not just PVG scheme membership. The Scottish Government has committed to a wide-ranging consultation on fees, which I am sure we will all follow with interest.

It would be remiss of me not to mention the recent section 22 report on Disclosure Scotland’s information technology system. The committee has exchanged letters with the bill team to obtain assurances that the findings of the report will not affect the bill’s financial memorandum.

The committee considered other areas that I am sure will be picked up elsewhere in the debate, such as the use of other relevant information and the change from regulated work to regulated roles. However, as I am rapidly running out of time—

The Deputy Presiding Officer

No, no—you can have a bit of extra time if you need it. I saw you looking anxiously at the clock, but we have a little time in hand.

Clare Adamson

I will conclude by reiterating that the committee supports the general principles of the bill. However, we believe that there are several areas of the bill that will require further clarification and consideration at stage 2 to ensure that the bill delivers on its aims in full. We look forward to considering amendments at stage 2 to strengthen this vital component of our protection of vulnerable groups.

I repeat my thanks to the many organisations that engaged with the Government’s consultation and the committee. Their input has got us to the position of having a robust stage 1 report. I look forward to hearing the rest of this afternoon’s debate and, in particular, how we might progress at stage 2.

The Deputy Presiding Officer

There is a little time in hand, so I will not be too restrictive on timing—within limits.

Liz Smith (Mid Scotland and Fife) (Con)

I put on record the fact that I hold a current PVG certificate.

The Disclosure (Scotland) Bill was introduced in Parliament on 12 June 2019, and it is clear that its general principles are warmly welcomed. I have heard of no concerns among stakeholders that the bill should not be happening. Indeed, it is a very bold move by the Scottish Government to try to improve and work through the complexities of the system, with all the sensitivities that go with it. Generally speaking, it is a good move. That said, the more that we look into the matter, the more complexities appear. I am not yet convinced that we have a way through some of the considerable problems, which I will come to in a minute.

The general approach of simplicity is warmly welcomed. The move away from the four different classifications that we currently have has been warmly welcomed by all the stakeholders, and the Scottish Government is right to try to address that problem. We also warmly welcome the progress towards a more digital system, which, in theory, will be more like the non-paper-based environment that we all live in today.

The minister mentioned that there is a need to recognise adolescence as a particular phase in someone’s life. I am sure that we would all agree with that. It is both important and appropriate that common sense can be applied to judgments should someone have fallen foul of the law in the past, whether they went through the justice system or the children’s hearings system.

I will address some of the fundamental problems of the bill as it stands, which I see not as party-political issues but as practical discrepancies that have been raised consistently by stakeholders—the Law Society of Scotland, Children in Scotland and Recruit with Conviction, to name but a few—throughout the past several months of evidence.

If we allow the bill to proceed beyond stage 1, as I believe we should, it is the Scottish Conservatives’ recommendation that some fundamental changes be made to avoid further complicating an already complicated landscape on what is often a sensitive issue. The committee’s report captures those concerns, and we welcome the general thrust of the comments that Clare Adamson just made.

Although a central theme of the bill is simplicity, the Scottish Government must state clearly how the Disclosure (Scotland) Bill will fit in with other primary legislation and statutory instruments. For example—this has been highlighted several times by various stakeholders—the Management of Offenders (Scotland) Act 2018 directs self-disclosure and the provision for under-18s is based on the date of conviction. The Disclosure (Scotland) Bill, however, contains provisions for state disclosure and includes provisions for a date of offence. Members will see immediately how that might have unintended consequences and cause legislative conflict. It is important that much greater thought is given to the necessary coherence of different pieces of legislation.

Maree Todd

Since the Rehabilitation of Offenders Act 1974 was developed, the period of disclosure has always been set from the date of conviction and based on the disposals upon conviction. That is the most straightforward approach to take. In the period between offence and conviction, there is nothing to protect an individual from, because they are not yet carrying the status of a person with a conviction.

We decided to take a different approach, following the model in the Age of Criminal Responsibility (Scotland) Act 2019. Doing that will ensure that we deliver on our commitment to treat childhood offending as being different from adult offending behaviour. So, in the Disclosure (Scotland) Bill, as in the Age of Criminal Responsibility (Scotland) Act 2019, we are using the date of offence.

The presumption that is provided for in section 41 of the bill is there to deal with borderline cases in which the behaviour was committed under the age of 18 but the conviction occurred after the individual had turned 18. I hope that that reassures the member that we have considered that complexity and made the appropriate choices.

The Deputy Presiding Officer (Linda Fabiani)

That was a long intervention. I can give you extra time, Ms Smith.

Liz Smith

That is a welcome clarification, and I fully understand the rationale behind what the minister has just said. It is encouraging that that has been considered. Nonetheless, we know what happens when there is a discrepancy in the language that is used in legislation and in different statutory instruments, and when a different interpretation is put on things. Therefore, it would be helpful if we could have some clarity on that point in the guidance.

The Professional Standards Authority is responsible for the accredited registers programme, which accredits the voluntary registers of practitioners who are not regulated by law, and it has made the same point about the need for coherence, particularly in relation to groups of volunteers that are not governed by a particular professional code of conduct. There are issues there, particularly if we want to encourage more volunteers to come into the process. It is an area that we need to consider at stage 2.

The Government has, quite properly, acknowledged that there are issues about coherence. It is a difficult situation, because the bill falls between portfolios. The Parliament has often been challenged on that, and we know what happens if we pass bad legislation and end up having to undo a lot of good things. It is, therefore, worth spending a lot of time on getting the bill right at stage 2, so that there is consistency.

There is perhaps an issue with the timescale for stage 2, which I understand is just a couple of weeks away. That is quite a short time in which to deal with some of the issues. The minister might like to think about that.

The most difficult issue, however, is legal as opposed to legislative. At the committee’s evidence session on 20 November, I asked the Minister for Children and Young People about the nature of the two disclosure tests—the “relevant” and the “ought to be disclosed” tests—because, as yet, I do not think there is enough clarity regarding the criteria that are to be used by decision makers. I know that other members—I think that Daniel Johnson is one of them—share that concern.

In line with what the Law Society of Scotland and the Howard League have advised, it is surely essential that there is clear guidance that is firmly rooted in the law and the foreseeability of outcomes. Members know only too well what happens when that is not the case. As things stand, the decision-making provisions in the bill remain quite complex, and there are a lot of issues with them that we must tie up before we move to stage 2.

How much longer do I have, Presiding Officer?

The Deputy Presiding Officer

I can quite happily give you another minute or so.

Liz Smith

Thank you. These are important points.

I turn to volunteering, which my colleague Brian Whittle will focus on. The purpose of the bill must be about trust in the system. We must ensure that, when parents take a youngster to scouts, a sports group, a Duke of Edinburgh award group or whatever it might be, there is absolute trust not just in the integrity and probity of the person who is in charge and will be looking after the group but in the system that backs them up. That is absolutely crucial. We must ensure that we have a lot of volunteers, because communities depend on the strength of volunteers. The argument about what is defined as “regulated work” as opposed to “regulated roles” is therefore very important, and I am thinking about stage 2 amendments that might clarify some of that.

Sometimes in Parliament we are presented with a bill that deals with what looks like, in theory, a very straightforward issue but that, in practice, turns out to be incredibly difficult. I think that this is one of those bills, and I think that the minister thinks that, too. We must be united as a Parliament to overcome all the practical difficulties. The committee has made a good start on that and the minister’s comments reflect that, but I do not think that it is going to be an easy bill. It is quite a challenging situation.

Iain Gray (East Lothian) (Lab)

I am pleased to join the welcome in the chamber for the bill, following the committee’s report. As members from other parties in the chamber will, my Labour colleagues and I will support the general principles of the bill.

It is worth spending a little time on the context of the bill. Last year, we celebrated the 20th anniversary of this Parliament, and there was a fair bit of debate about what has been the biggest, boldest or most controversial legislation that we have passed. Actually, a lot of what we have done has been consensual and has been passed quietly but with great care, and a lot of it has been about protecting people, especially children and vulnerable people—although Liz Smith was right to say that such legislation can be complex, even though it is consensual.

The first non-emergency act that the Scottish Parliament passed did just that. The Adults with Incapacity (Scotland) Act 2000, which I had the privilege of taking through Parliament with the Minister for Justice, Jim Wallace—happy days indeed—took incapacity legislation, some of which was centuries old, and replaced it with what was, at the time, the most modern legislation of the type in Europe. It was exactly designed to protect people who are rendered vulnerable by disability, illness or age.

The 2000 act has been notable for two things. First, it created a system that is unique to Scotland and Scottish needs, and secondly, although it is not often acknowledged in commemorations of our work, it has, in the intervening years, been used by almost every family in the country. Sometimes the quietest legislation is the most effective.

Disclosure is a bit like that. Over the years, we have taken the legislation that we inherited—the Rehabilitation of Offenders Act 1974 and the Police Act 1997—and built on it through the creation of Disclosure Scotland, the Protection of Vulnerable Groups Acts 2007 and various amendments to ensure compliance with human rights. We have worked, as a Parliament, quietly and without fanfare over time, to ensure that Scotland has the right processes to protect Scotland’s people. It is simply the next stage in that that brings us here today. Like the Adults with Incapacity (Scotland) Act 2000, these quiet legislative waters run deep.

The committee heard in evidence from Disclosure Scotland that the PVG scheme now has 1.2 million members. Therefore—this is especially the case for members of the committee—any time that we feel that this is all a bit dry, technical and complex, we need to remind ourselves of how important the system is in protection of vulnerable people in their contact with adults, in both professional and voluntary capacities, through every imaginable aspect of life and society.

As for the consequences of getting that wrong and the system failing, we need only to look across this city to the historical child abuse inquiry to hear exactly what happens when we fail to protect children and other vulnerable groups, and just how much hurt and suffering ensues. Those are not bad things that happened somewhere else—somewhere dangerous. They happened right here in Scotland, and in the very places that were supposed to be places of safety. That is a constant reminder that it is so important that we get the legislation right.

It is no wonder that a bill to modernise child protection laws and to strengthen protections for vulnerable adults has been welcomed—as members have said already—by a broad range of organisations that responded to the consultation and provided evidence to the committee.

As the convener has said, the committee supported the general principles of the bill, but said that

“there are a number of areas within the bill which will require further clarification and consideration”.

The question how the bill will interact with other legislation is crucial—in particular, acts that have recently been passed by the Scottish Parliament, including the Management of Offenders (Scotland) Act 2019 and the Age of Criminal Responsibility (Scotland) Act 2019. We still await answers to that question that will tell us, in detail, how the bill will do that. I think that the minister has, however, made a welcome commitment to lodge amendments at stage 2.

Labour will seek a commitment from the minister to publish an analysis of interactions with other legislation before the bill is enacted—assuming that it is passed into law. Ministers should also look again at the evidence that was provided to the committee, to ensure that the right balance is struck between protecting vulnerable groups, providing information for appointments to sensitive roles, respecting individuals’ rights to privacy, and allowing individuals to move on from offending behaviour. Sometimes the relationships between those things are difficult.

That is why we think—my colleague Daniel Johnson will say more about this—that consideration should be given to there being greater clarity about the principles that are to be applied. Again, I welcome what we heard from the minister earlier about that, although clearly we will have to see the detail on how she intends to try to deliver it.

It is also important that the bill ensures that the proposed changes to the system are user-friendly for organisations and for individuals, but it is clear from the evidence that we received that some work is still to be done. The disclosure system has to be easy to understand—in particular, the relationship between regulated work and regulated roles. As Liz Smith said, that was a clear theme in evidence to the committee.

At stage 2, I would like the committee to examine regulated roles further, so that organisations such as Shared Lives Plus, which supports adult carers, could be given parity with foster carers who care for children.

Next week will see the launch of the care review. Once the bill has been passed—as, I am sure, it will—we urge the Scottish Government to review the impact of the legislation on people who are care experienced. The committee convener spoke about one piece of evidence that we received, but we also heard other evidence about various aspects of the legislation and how they might have particular and disproportionate impacts on care-experienced young people who are building their lives and futures.

All that will be in the detail of the next stage, after 20 years of quietly but effectively improving protection of vulnerable Scots. We are sure that the bill will do that too, so the principle is certainly one that we will support this evening.

Ross Greer (West Scotland) (Green)

As a PVG scheme member, I found the stage 1 process interesting. Robust and efficient safeguarding procedures are essential for protection of vulnerable groups in our society, but those procedures will never be simple. A balance needs to be struck to ensure that vulnerable people are protected, while the rights—in particular, the right to privacy—of people who work with them are also protected to the greatest extent possible.

That is especially true when those are not two separate groups—when a person who is considered to be vulnerable, perhaps by dint of their age, wishes to take on a role that engages with other vulnerable individuals. That has been a consistent theme in the Education and Skills Committee’s consideration of the Disclosure (Scotland) Bill, so I will come back to it in a moment.

The interaction of the bill with the wider agenda of restorative justice, in particular in recently passed legislation, is complex, as Liz Smith outlined. It is neither just nor sustainable that everyone who has a past offence be branded for life, but clearly we need a system in which people who present a risk to vulnerable groups are not permitted to work with them.

The aims of the bill are sound and will have the unanimous support of Parliament. As a PVG scheme member, I welcome the bill’s intention to strengthen and simplify the system. For example, the proposals to introduce regulated roles should lead to clearer understanding of where PVG membership is required. There has, in the past, been confusion about whether certain roles and work require disclosure, so the examples that are associated with the bill are helpful.

The reduction to two tiers of disclosure should also simplify the system and ensure that only convictions for which there is a genuine need for disclosure must be revealed. That is a sensitive area of law in which it can be difficult to get the balance right and in which case law plays a key role. The bill seeks to incorporate new provisions that are derived from recent case law from both the UK Supreme Court and the Scottish Court of Session.

In scrutinising the bill, the Education and Skills Committee heard evidence from a range of stakeholders, including organisations that work with vulnerable groups and with ex-offenders. Feedback from those organisations was not unanimous in respect of views on some of the proposals—for example, setting a new minimum age of 16 for PVG scheme membership—but their contributions were extremely helpful and showed broad support for the aims and principles of the bill. A broad range of specific concerns were raised; I expect the Government to address them, as appropriate, during stage 2 or through implementation of the legislation, once it has been passed.

A particular concern that I share with those stakeholders, and which I pursued throughout our evidence gathering, is about the proposal to remove under-16s from the PVG scheme. The rationale behind that is that the very small number of under-16s who are barred from working with vulnerable groups should already be known to the system, and that it is therefore disproportionate to monitor continuously a few thousand under-16s as PVG scheme members. I accept that rationale, but in combination with the offence of engaging in restricted work without having gone through a disclosure process, that creates an anomalous and potentially confusing situation in which under-16s could engage in what would otherwise be considered to be restricted work but which, by dint of their age, is not treated as such.

I accept that under-16s should not undertake that kind of work unsupervised and that an adult with PVG membership should be present, but the concern is about unintended consequences—namely, that the participation of under-16s in volunteering will be depressed by a perception that their ineligibility for PVG membership means that they are also ineligible for the volunteering work. Organisations might adopt a policy of requiring all workers and volunteers to be PVG members, as would be implied by the law, without consideration for how that would affect volunteers who are under the age of 16.

There are, of course, other Disclosure Scotland products, but that is where communication is key. We are talking about small voluntary groups, not professionals. In addition, I believe that vulnerability is being created because other imperfect services, including social work and the police, are being relied on to ensure that the small number of under-16s who are a risk and are barred from engaging with vulnerable groups are prevented from doing so.

My specific concern is about a situation in which one such young person moves between local authority areas. In that scenario, communication between the public agencies that most commonly engage with them breaks down, even if just for a short time. I accept that the risk of that happening is small, but there was a thoroughness in the previous system, which encompassed under-16s, that will potentially be lost.

The committee struggled with those issues. We did not conclude that the proposal is inappropriate and needs to be changed, but the concerns that were raised were compelling enough to lead us to recommend that the Government review participation of under-16s in voluntary work, following an initial period of operation of the new disclosure system. I would appreciate a commitment from the minister that such a review—a reasonable request—will take place.

The other area that I have spent the most time on concerns the new powers for Disclosure Scotland. A two-part test is to be introduced that Disclosure Scotland will exercise in situations relating to level 2 disclosures. A number of factors are to be taken into account during a level 2 disclosure to determine whether it would be proportionate. However, the bill lacks a clear framework or guiding principles for decisions, which means that a substantial part of the new system—procedures that directly impact on the balance between safeguarding and privacy and rehabilitation—were not available for scrutiny at stage 1.

I appreciate that the Government has committed to working with stakeholders to develop a framework for decision making, but it is bad practice for Parliament to pass legislation when substantive supporting documents including guidance have not been available for scrutiny alongside the bill. That is necessary sometimes, but I fail to see why it is the case in this situation. Overreliance on secondary legislation or non-statutory guidance means that Parliament simply does not have the same opportunity to ensure that legislation is fit for purpose.

I ask the minister to provide further clarity on the points that are raised in the committee’s stage 1 report that I have repeated, and I give the Greens’ support for the principles of the Disclosure (Scotland) Bill.

Beatrice Wishart (Shetland Islands) (LD)

The process of disclosure rests on the ability to have both consistency and discretion so that the system is able to ensure both fairness and protection. I agree with what was said about a case against the Metropolitan Police Service:

“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’.”

Putting that into legislation is obviously a delicate and complex process. The Disclosure (Scotland) Bill is the first piece of legislation that I have had the opportunity to scrutinise since being elected to the Scottish Parliament, and I am glad to begin with such an important bill.

Legislative simplification is clearly necessary. Having patchwork legislation makes life harder for practitioners and for the people who work or live under the system. The disclosure process is useful only if it is effective and it is effective only if it can be understood. I support what Scottish Women’s Aid said, which is that simplification is

“welcome but only where this allows the same, or improved, levels of disclosure, coverage and protection for vulnerable people and does not inadvertently create loopholes capable of exploitation.”

Evidence heard by the committee about inconsistencies between this bill and others that have been passed by the Scottish Parliament in the same session was, therefore, concerning. Debbie Nolan, of the Centre for Youth and Criminal Justice, noted in committee that

“if those three pieces of legislation are not fully aligned, we run the risk of the benefits not being realised”.—[Official Report, Education and Skills Committee, 13 November 2019; c 6.]

If the Government cannot produce consistency across legislation produced in the same year, an expectation of consistent decision making by practitioners will already have been undermined.

I also note the need to create a regime that is able to stand the test of time. Other parts of the reforms were passed last year under the Age of Criminal Responsibility (Scotland) Act 2019. The Government’s response to new calls from the international human rights community and to amendments from my party mean that the new age of criminal responsibility already lags behind international expectations. Social Work Scotland said:

“It is critical that Scottish Government and its agencies have a coherent and comprehensive understanding of how all these parts piece together, with systems in place for managing risks, tensions and overlaps.”

I would be grateful to hear the minister’s understanding of how that would be ensured should this Parliament step up to the plate and raise the age of criminal responsibility in the future.

The relationship between employment and a criminal record is complicated, but the potential for rehabilitation that meaningful work can offer must be recognised. Although a job in itself might not trigger desistance, the stability and responsibility that it creates may actively stop a person tending towards reoffending. Research conducted last year by Beth Weaver of the Scottish Centre for Crime and Justice Research and the University of Strathclyde found that

“barriers to work engendered by attitudes towards people with convictions and disclosure of criminal histories may destabilise efforts to desist and cut off opportunities to sustain desistance, thus ironically undermining public protection.”

An overly restrictive disclosure regime is therefore in nobody’s interest.

In a similar vein, I would be grateful for reassurance that the safeguards that will be put in place to ensure that the new offence for those who fail to secure PVG scheme membership will not be used as a heavy-handed response to bad administration. A sentence of 12 months in custody may be appropriate where there is a deliberate intention to circumvent the scheme and to target vulnerable people, but I am not convinced that that is a proportionate response to other circumstances to which it might apply, such as what Community Justice Scotland called “a lapse in paperwork”.

There have already been reports of delays to PVG scheme membership applications at Disclosure Scotland as a result of hiccups with the new information and communications technology system. The Scottish Government has responded in part to concerns, but I would be grateful for further reassurances about IT capacity in light of 1.2 million people perhaps needing to reapply for PVG scheme membership as the renewal system gets under way.

Overall, although I do not think that it is quite ready yet, the bill has the potential to make genuine, positive changes to the disclosure process. I confirm that the Scottish Liberal Democrats support its principles.

The Deputy Presiding Officer

That concludes the opening speeches. We move to the open debate. Speeches should be about six minutes, please. I have a little bit of time in hand for interventions.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I am happy to speak in this stage 1 debate. I consider it necessary to introduce the bill at this time. Perhaps the best way to explain why is by quoting the purpose of the bill from the policy memorandum:

“The provisions of this Bill will deliver a range of positive and proportionate reforms to the disclosure regime in Scotland whilst also strengthening the barring service to maintain the Scottish Government’s ability to protect the most vulnerable in society.”

In essence, the bill is being introduced to modernise and improve proportionality in the disclosure system. It aims to balance public protection with the right to move on from past offences. It is split into two parts. Part 1

“creates the legislative framework for the new disclosure products for criminal history and other information”

and part 2

“makes a number of amendments and insertions into the PVG Act.”

As we have heard, the bill is complex. Amendments will be required at stage 2 to achieve the desired purpose of making the disclosure scheme less complex. The current legislation provides for 10 disclosure products, which stakeholders find confusing, and the system is mainly paper based. The bill contains proposals to allow ministers to offer stakeholders online services that are not possible under the existing legislation, while recognising that online access will not work for everyone and alternatives will be offered.

The number of disclosure products will decrease, reducing confusion, and improved digital services will guide employers and applicants to the right level of disclosure.

Crucially, as we have heard, the bill will give individuals greater control over their disclosure data. They will decide whether disclosure information will be released to a third party, without eroding the vital safeguarding role of disclosure. That is especially important for childhood convictions, when offences were accrued while under the age of 18. Those will no longer be automatically disclosed. They will be eligible for independent review, which, if successful, will allow the young person to move on without being hampered by a childhood offence. That aspect is probably best illustrated by the quote that the convener cited from Robert Dorrian of Who Cares? Scotland, a witness to the committee, who was also mentioned by the minister.

As the convener Clare Adamson, and Liz Smith, Iain Gray and others have said, the committee was concerned about the impact and interaction of the bill with the recently passed Management of Offenders (Scotland) Act 2019 and Age of Criminal Responsibility (Scotland) Act 2019, along with the proposed legislation incorporating the United Nations Convention on the Rights of the Child.

The Government has noted that and the minister addressed the issue in her response to Liz Smith. As I said, the Government will lodge amendments at stage 2 to remedy the matter. I am also pleased with the reassurance that the drafting of the bill took account of the UNCRC.

The committee welcomed the role of the independent reviewer, but was keen that support services would be in place by the time the bill came into force, which the Government has agreed with. The Government has also agreed that draft guidelines for the two-part test must be provided and that training must be part of that and be widely consulted on.

We were also concerned that an unsuccessful review of a list A offence cannot be reviewed for the same purpose twice, which could result in a lifetime of disclosure for the individual.

There was some confusion about how the review processes would work and how individuals could engage with the process. Those issues must be addressed. The Government has committed to considering a set of guiding principles in that regard, and the minister has outlined the situation in relation to reviews.

As Daniel Johnson and Liz Smith mentioned, the concept of other relevant information was a big issue for the committee to try to understand. There was confusion about who was responsible for that judgment, and what criteria would be used. The committee was concerned that, by allowing employers to access the information despite the conviction itself being withheld, ORI would not allow individuals to move on from past offending behaviour, particularly in the case of childhood offending and care-experienced people. The minister outlined the sensitivity of the situation, and that she plans to clear up the confusion around it. ORI is a key aspect of the disclosure scheme and does not erode the power that can lead to barring under the PVG scheme or discrimination in employment. However, it is understood that Police Scotland and authorities must reflect very seriously when deciding whether to include ORI. Although the committee supports the continuing existence of lists of offences, some anomalies will have to addressed. For example, “fraud” and “embezzlement” appear in different lists, which was also highlighted in the Law Society of Scotland’s helpful briefing.

Changes to the PVG scheme are an important part of the bill. The committee supports mandatory membership, and the move away from lifetime membership to a renewable five-year membership. That means that those who no longer need the accreditation will not need monitoring, which will reduce the administrative burden.

Iain Gray reminded us of just how important and popular the PVG scheme is. Liz Smith mentioned that there was a bit of uncertainty around regulated work and regulated roles. That has led to confusion about who should—and should not—become a PVG scheme member, which I hope will be addressed. As Ross Greer said, that happens under the existing scheme. With regard to under-16s—whom Ross Greer featured heavily in his speech—we expressed concern that the proposal for non-registration could contribute to a decline in volunteering opportunities, depending on how people and companies interpret the legislation. I take the points that Ross Greer made, and I am sure that the Government will address the issue. It has said that the number of under-16s who apply to join the existing scheme is low, and that there is automatic listing for those with a serious offending background.

The strong message that we got from witnesses is that the PVG scheme is only one of a number of monitoring and screening processes, and that safeguarding will always be the top priority. As such, with important amendments that will be lodged at stage 2, the Disclosure Scotland Bill is a huge step forward in many areas, and I am happy to support its general principles.

Brian Whittle (South Scotland) (Con)

I remind Parliament that I currently hold a PVG certificate, primarily because I am still active in coaching all age groups, and vulnerable groups. I am pleased to have the opportunity to speak in the debate. If I may, I will use my time to focus on the volunteering sector.

I think that we would all agree that every precaution must be put in place to ensure the safety of the young and the vulnerable. As Iain Gray highlighted, there are far too many high-profile cases in which the vulnerable have been let down, and we must do everything that we possibly can to make sure that every protection is in place. We know about the lifelong impact of adverse childhood experiences, which has been well documented in this place. As such, the need for a robust PVG check is apparent.

Having said that, I also highlight the need for the volunteering sector to be accessible to those who are so minded. Volunteering is crucial in so many areas, especially in enabling communities to access activities that tackle issues around isolation, health, education, and social interaction. The Deputy Presiding Officer knows that I have a real passion for that kind of preventative agenda, and such community activities have a central role to play in improving the health and wellbeing of our nation, and reversing a worrying trend in preventable ill health. Moreover, volunteering can have such a positive effect on the lives of the volunteers. As such, we need to ensure that opportunities exist, and are accessible, while ensuring that the highest standards of protection are not compromised.

I want to raise a specific issue that is illustrated by the case of a friend of mine against whom a vexatious allegation was made. It was eventually proved to be unfounded, but the impact on him as a coach and on his charges was profound. I recognise that such situations are very difficult to address, but address them we must. It is not a situation in which the person is innocent until proven guilty: they are removed from the situation immediately an allegation is made. How we should tackle that is an extremely difficult question, but I suggest that, in such situations, the coach could become supervised, potentially by another coach, to ensure that there is still protection.

When I renewed my PVG certificate recently, the process was not exactly simple or seamless. It required me and the club to fill in the forms and submit them to the governing body, and then we had to fill them in and submit them again when something went awry in the process. I then had to wait six weeks for clearance. It is a cumbersome process. I welcome the move to a digital system, which Liz Smith mentioned, as it should allow for a much more user-friendly experience. When a PVG certificate is renewed, all that is really being asked is whether anything has changed since the previous issue. A digital communication and collaboration platform should be able to access that data routinely. Such a system should also be much more effective in the on-going monitoring of those who already hold a PVG certificate, and it should be swifter in raising potential breaches. I look forward to the implementation of that system.

I also highlight that, at one time, I held three separate disclosure certificates for different organisations in order to work with the same sorts of vulnerable groups. There is surely no need for such duplication. Perhaps the bill will allow us to tidy up that situation.

The caveat that I want to highlight is that PVG checking should be seen not as an intrusive experience but as an enabler. It should be welcomed by all those who participate and it should keep parents satisfied that their children are being effectively supervised. On that point, members will know about the continuing petition on the subject, which the Public Petitions Committee is considering, as well as the Health and Sport Committee’s investigation of child welfare in sport. Those committees have certainly highlighted the issues, and it would seem that they are now being addressed. I hope that the outcomes of those investigations and actions will be positive. It is imperative that sports’ governing bodies implement the highest duty of care for their members. The work that those committees have done and continue to do demonstrates that there has been considerable variation in implementation of duties of care across governing bodies, so I would be interested to hear from the minister how the Scottish Government will ensure that there is full compliance with the legislation and how that will be monitored.

I was also interested in the points that Liz Smith made about PVG provision for former young offenders who have demonstrated a period of good behaviour. They brought to mind a scheme in Kilmarnock prison where inmates were offered the chance to take their football and rugby coaching exams. I took a parliamentary football and rugby team there to play the inmates and prison guards at football and rugby, which we all survived. It was a great opportunity to highlight that those people are still members of society and that, having served their due sentences for the crimes that they committed, they will be expected to reintegrate into society. It is clear to me that a coaching certificate allows such people the possibility of making a positive contribution to their community and their subsequent acceptance back into that community.

Of course, without the requisite disclosure certificate, they will not be allowed to deliver that coaching. I can definitely see the issues here. I am a parent who has all the same concerns that any other parent has, be they perceived or otherwise. However, if we are to create opportunities for those who have previously fallen foul of the law, we need to consider how the skills that they have learned during their sentences can be used in the community. Perhaps that will involve them working in partnership with other coaches and starting with the least vulnerable groups. Again, I would be interested to hear the minister’s thoughts on that.

Outside sport, I am working with a constituent in relation to allegations of historical childhood rape in schools. It is an extremely sensitive subject. It is part of a petition at the moment, and it has now gone to court. I would never comment on a particular court case, but the teacher in question at that time was just moved to another area and the PVG check did not follow him. Again, the bill perhaps gives us an opportunity to close what is, I think, a fairly major loophole in the law.

As has been outlined, the Disclosure (Scotland) Bill attempts to simplify the complex disclosure system in Scotland. That is very welcome. The reservation that has been expressed today, which I share, is that it does so in a complex manner. Evidence from the Law Society of Scotland, Children in Scotland, and Recruit with Conviction, concurs with that concern. I will not repeat that evidence, as it has already been highlighted.

Conservative members will support the bill at stage 1 but, in doing so, we recognise that there is a fairly hefty amount of work required to make it fit for purpose at subsequent stages. I urge the Scottish Government not to lose sight of the objective, which must be to ensure that the application process for a PVG certificate is user-friendly and does not deter those who wish to volunteer, all the while maintaining protection for those in our society who are most at risk. I am more than willing to work with the Government on that, should it see fit.

Alex Neil (Airdrie and Shotts) (SNP)

I welcome the bill. Over the past 20 years or so, the Parliament has passed very few bills that will impact on as many people in Scotland as the Disclosure (Scotland) Bill will.

As Iain Gray pointed out, there are 1.2 million people registered with Disclosure Scotland. As Brian Whittle has just shown, registration can be a good experience, or not such a good experience; nonetheless, it impacts on people’s ability to serve their community in the way that they wish.

However it is not just about the 1.2 million people who are registered with Disclosure Scotland. We should think about all the people that those 1.2 million are actually responsible for. By the time we add up the number of children that teachers are responsible for; the number of people that registered social workers, social care workers and health workers are responsible for; the number of people that all the sports organisations in Scotland and third sector organisations are responsible for, we see that it is not 20 per cent of the Scottish population; it is probably nearer to double that figure. In other words, probably between 35 and 40 per cent of the Scottish population will be impacted by the bill. The bill is a major piece of work, and it is extremely important that we get it right.

There are two issues that I would like to raise with the minister. The first was mentioned by Liz Smith and concerns the Parliamentary Bureau and the Education and Skills Committee. It would not be the first time that when the Parliament passed primary legislation too quickly, we had to introduce corrective primary legislation because we did not do a thorough enough job the first time around. With such an important and complex bill, let us take our time to make sure that we get it right.

I understand from the convener of the committee that the timetable is not quite as tight as Liz Smith said. However, I say to the committee and to the Parliamentary Bureau that if it takes a bit longer to get it right, let us take that time. Otherwise, we could adversely impact the lives, not only of those who are registered, but of members of vulnerable groups in our society.

I make my other point as a member of the Public Audit and Post-legislative Scrutiny Committee, which has dealt with umpteen issues of IT systems in the public sector that have gone wrong. If we add up the number of those IT systems, and the total cost of not getting it right, over the past 20 years, we see that the cost runs well into hundreds of millions of pounds. More important, not getting things right can destroy the improvement that is intended in service delivery, because of the time that it takes to correct the systems that have gone wrong or have not been properly planned. I say therefore to the minister and Disclosure Scotland to do whatever they can, and everything that they can, to ensure that they get the IT system right.

Brian Whittle is absolutely right: we want to make sure that people do not need to wait six weeks for the process to be completed. People do not want to have to resubmit their application because the IT system is faulty. If we are really to make big improvements, by planning them, and by making sure at the project management stage that we get it right, we will save a lot of heartache, agony, and money, at a later stage. That is extremely important.

It would be a great tragedy if we were to pass this excellent bill, which still requires amendment and further consideration, as I said, and it were then to fall foul of those practical issues, which would undermine its purpose, scope and intention accordingly. It is better to take our time and get it right.

There are a number of specific issues that I want to raise. I will repeat many things that have already been said, including what Rona said about simplification, which is extremely welcome.

For those people who got into a bit of trouble in their teens and perhaps ended up getting a criminal record, but who are not bad people and have moved on in life, I particularly like the fact that they will not have to go through the rest of their lives being penalised. They will not have to miss opportunities to help others or have their potential or actual careers ruined because Disclosure Scotland is legally obliged to cast up information about something that happened many years ago, possibly in extenuating circumstances, and which did not involve a serious criminal offence. I am delighted that we can make life not as miserable for those people who have moved on and want to help others, rectify their mistakes and serve the community. They should be allowed to do so, so those progressive elements of the bill are very welcome.

The minister and the committee must listen to representations that are made to them by outside bodies, as Rona said. I do not always agree with the Law Society of Scotland, but in its submission, it requested further amendment to protect human rights and asked that we deal with the list of offences, as there are issues with it that clearly need to be sorted at stage 2. We have to take those comments seriously.

However, we also have to look at potential impacts on other aspects of the bill as amendments are considered. The bill must be seen in its totality. When considering amendments, we cannot look only at the sections that would be amended. With a bill of this complexity, we need to take a comprehensive view and consider the impact on and potential unintended consequences for other provisions of the bill.

The points that were made by the Law Society and a number of other organisations that made submissions are important.

I congratulate the Government on the bill and I congratulate the committee on its excellent work. There is a bit more work to be done, but by the time that we get to stage 3, I hope that we will have a bill of which we can all be proud.

The Deputy Presiding Officer

I remind members to always use colleagues’ full names when they refer to them in their speeches. I know that we are all pals, but it is useful for the official report and broadcasting staff.

Mary Fee (West Scotland) (Lab)

I thank the Education and Skills Committee for its work throughout stage 1, which has provided us with an informative stage 1 report. I also express my gratitude to all the individuals and organisations who provided such valuable input to the committee’s inquiry and, prior to that, to the Scottish Government’s consultation on its proposed changes to the disclosure scheme.

As my colleague lain Gray said in his opening speech, we welcome the ambitions for the bill and will vote in favour of it at decision time.

The stage 1 report offers a wide range of recommendations to strengthen the bill, and I note from the Scottish Government’s response to the report that it will lodge amendments at stage 2 to strengthen the bill further. Those recommendations and the Government’s commitment to act on some of them are welcome in ensuring that the bill continues to meet the ambitions behind its introduction.

Simplifying the disclosure regime is necessary to reduce the complexities that many people face when navigating the system, as they must if they want to perform paid or voluntary work with children or people with complex needs, who are often vulnerable.

The reduction in the number of disclosure levels from four to two and in the number of products that are offered from 10 to four received significant support from respondents to the consultation, thus strengthening the arguments for simplifying the scheme. As Community Justice Scotland rightly pointed out in its submission:

“Simplification of this landscape is critical to ensure that people with convictions are afforded opportunities to move on with their lives.”

On many occasions in the chamber, I have argued for better rehabilitation for prisoners, and I believe that such simplification could support their rehabilitation into society and allow people whose offending behaviour lies in the past to live constructive and rewarding lives and put past events and behaviour behind them. Protecting the most vulnerable people in our society is a fundamental duty of any Government, and I believe that the bill continues to meet that duty while making it simpler for people to engage with the disclosure scheme.

I welcome the provision to introduce digital applications, which will make it easier for the applicant and reduce the administration for Disclosure Scotland and for employers who submit applications, but it is right that a non-digital system will remain in place for people who do not have access to a computer or the necessary skills to apply online. I also welcome the point raised by the criminal justice voluntary sector forum that people in the justice system are more likely to have speech, language and communication needs, lower educational attainment and higher rates of learning difficulties. It is very important that, regardless of need, people have the right support and access to information on disclosure.

Although I am supportive of the principles behind the bill, I have one area of concern, which surrounds the use of other relevant information. Assurances have been provided that a Scottish quality assurance framework will be developed in relation to Police Scotland sharing other relevant information, but I remain concerned about the sharing of information on behaviour that an applicant might have displayed during their childhood.

Alistair Hogg of the Scottish Children’s Reporter Administration said:

“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.”—[Official Report, Education and Skills Committee, 13 November 2019; c 11-12.]

I fully agree with Mr Hogg’s point. That is where my reservations lie with regard to the sharing of other relevant information, especially for people who have come through the hearings system.

The Education and Skills Committee pointed out that

“the potential for disclosure of other relevant information held by the police undermines one policy objective of the Bill, which is to allow individuals to move on from past offending behaviours.”

I read carefully the minister’s response on the concerns that have been raised about the use of other relevant information, and I take on board the points that she made. However, I will observe with interest how the issue develops at stages 2 and 3.

I also support the ending of lifetime membership of the PVG scheme. There was widespread support for that part of the bill, because it will reduce some of the administration and monitoring of people who will no longer be required to be in the scheme. In evidence, the Church of Scotland raised concerns about how the transition from lifetime membership to five-year renewable membership would be managed. As the bill progresses, I look to the Government to set out clearly how that transition will be managed.

My only reservation in that regard is about the penalising of those who fall foul of the new term limits. I would not want anyone to be criminalised for failing to reapply, and I do not want people on low incomes who have to pay to reapply every five years to be financially burdened. I note that the current cost of an application is around £60. Therefore, I ask the minister to proceed with caution when she sets the fees in the future and to think of those low-paid workers and volunteers who pay for their membership themselves. The scheme cannot be a tax on people who perform valuable caring and support roles, or a barrier to them continuing in those roles.

Jenny Gilruth (Mid Fife and Glenrothes) (SNP)

I thank the Education and Skills Committee clerks, the bill team and all the witnesses who provided evidence ahead of the publication of our stage 1 report.

As we have heard today, the Disclosure (Scotland) Bill’s focus is on reforming how individuals’ past behaviour is recorded by the state. Furthermore, it makes provision for a number of changes to the PVG scheme, of which, as Iain Gray advised, there are more than 1 million members in Scotland.

As Rona Mackay outlined, the policy memorandum notes:

“The provisions of this Bill will deliver a range of positive and proportionate reforms to the disclosure regime in Scotland whilst also strengthening the barring service to maintain the Scottish Government’s ability to protect the most vulnerable in society.”

Part 1 of the bill considers the disclosure of unspent criminal convictions and other relevant information. Part 2 makes amendments to the Protection of Vulnerable Groups (Scotland) Act 2007. Other relevant information is information that currently can only be disclosed in an enhanced disclosure or a full PVG scheme record check. For example, it might include allegations that are held on local police records regarding an applicant’s behaviour, as Mary Fee outlined.

The bill proposes to reform the provision of ORI by ending the current process of disclosures being issued to employers before the applicant has had an opportunity to challenge the disclosure of any ORI. Furthermore, the bill will end the automatic disclosure of convictions that were accrued between the ages of 12 and 17. As Liz Smith pointed out, one of the key policy objectives of the bill is the acknowledgement of

“adolescence as a unique phase of life”.

As the centre for excellence for looked after children in Scotland noted in its submission:

“The disclosure of childhood information disproportionately affects young people and adults with care experience, who are more likely to have had contact with the police, and to have been involved in formal processes which lead to recording of behaviour.”

The Howard League Scotland agreed, saying:

“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.”—[Official Report, Education and Skills Committee, 6 November 2019; c 26.]

The committee highlighted our concerns about the potential for disclosure of ORI to prevent individuals from moving on due to past offending behaviour. The issue was felt to be of particular concern with regard to childhood offending and for those who are care experienced. I was therefore glad to hear the minister refer to that specific point in her opening speech.

The Government’s response notes Police Scotland’s evidence to the committee, in which it asserted that all information is rigorously considered before any disclosure of ORI is made. The response also highlights provisions in the bill that give an applicant the opportunity to submit representations prior to the release of ORI.

Part 2 makes amendments to the 2007 act, and section 76 amends the meaning of “protected adult”. In its written submission to the committee, Scottish Women’s Aid raised some concerns, highlighting that the proposal to redefine “protected adult” will list vulnerability through “disability or illness”. In its submission, Scottish Women’s Aid stated that

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

It goes on to state that the change to the definition that is provided for in section 76 is too limited and could create

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

Scottish Women’s Aid has requested that section 76 be amended to include

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

I raised that point with the minister in our evidence session and I know that Government officials have met Scottish Women’s Aid to discuss the organisation’s concerns, so I was absolutely delighted to hear the minister confirm that she will lodge amendments on the matter at stage 2.

One of the key aims of the bill is to simplify and modernise the disclosure system for users and organisations. The committee heard evidence that, for some people, the application process can provide further barriers to entering the labour market. As Robert Dorrian from Who Cares? Scotland explained in evidence,

“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.”—[Official Report, Education and Skills Committee, 13 November 2019; c 21.]

Robert Dorrian was keen to point to the obligations that Disclosure Scotland has towards those with a care-experienced background, and to the role of corporate parents in ending what he described as “secondary discriminatory practices'” against care-experienced people. I note from the Government’s response that Disclosure Scotland is going to mount a major communications exercise in advance of any of the reforms that we are discussing today. I hope that the campaign will look to effectively consider the needs of care-experienced young people in particular, who might be reluctant to engage in the disclosure process through no fault of their own.

The committee was also cognisant that non-digital means of applying to the disclosure process should be maintained. As such, we welcomed the confirmation in the policy memorandum that, although a move to digital services will happen as part of the reforms, they will not fully replace non-digital ways of applying.

Today’s stage 1 debate is the start of a process of simplifying and modernising the disclosure system, with a focus on balancing public protection with the right to move on from past offences. As the committee heard, that is particularly pertinent to young people and those who are care experienced, who in the past may have ended up labelled for life.

I again thank those who provided the committee with evidence. I look forward to the next stage of our deliberations, in which we will focus on delivering a fairer disclosure system for the most vulnerable.

Maurice Corry (West Scotland) (Con)

I welcome this first stage of the Disclosure (Scotland) Bill, and I thank the members of the Education and Skills Committee and the clerks for their efforts in producing the committee’s stage 1 report. I should declare that I am the holder of a PVG certificate and that I have a daughter who works at Disclosure Scotland.

The disclosure system in Scotland is undoubtedly complex and presents many areas that call for caution, clarification and improvement. The bill seeks to address those issues, and so, in principle, I support it at this stage.

The system that is delivered by Disclosure Scotland is designed to offer a layer of protection to vulnerable groups in society, which include children and protected adults. The system ensures that the recruitment process allows only suitable individuals to work with people in those groups; however, the bill needs to take a balanced approach. In seeking to protect vulnerable groups in our communities, it must also respect every individual’s right to privacy and recognise the right point at which rehabilitated individuals are entitled to move on from a past offence.

I appreciate the bill’s aim of simplifying the disclosure system. I hope that, by making it more user friendly, we will remove long-standing complexities in the system, making it easier to navigate. By streamlining the current four disclosure products of basic, standard, enhanced and PVG to two levels, which will cover basic disclosure and more serious offences, the bill will offer users and organisations much-needed simplified options.

Connected with that is the digitisation of the disclosure system, which is most welcome, as it will allow users to make applications and view their disclosures online. That will make the process quicker overall. However, I agree that a paper-based system should continue alongside that service, as we should be mindful of those who may not be computer literate and those who are based in areas without reliable internet connections. As my party’s spokesperson on veterans’ affairs, I am keen to highlight the submission of Royal Blind and Scottish War Blinded, which welcomed the idea of PVG membership cards as a sound alternative option to the digital process and sought greater clarification on how that might be implemented.

I know that I am not alone in having concerns about legislative overlap and discrepancy regarding the way in which the updated disclosure process will work in practice. The Centre for Youth and Criminal Justice, Social Work Scotland and Community Justice Scotland were just some of the organisations that highlighted that issue to the committee.

When the bill is linked with the Management of Offenders (Scotland) Act 2019 and the Age of Criminal Responsibility (Scotland) Act 2019, we are presented with inconsistencies regarding how childhood convictions should be treated and whether that is under a self-disclosure or a state disclosure regime. As has been mentioned, there is further confusion as to whether it is the date of the offence or the date of conviction that will be taken into account under the bill. I recognise that, as the minister has confirmed today, those discrepancies are being actively considered, but I hope that a logical solution will be found before stage 2. I fully agree with the valid points that Alex Neil made in that regard.

The move from lifetime membership of the PVG scheme to a renewable five-year membership will reduce the number of individuals who are monitored when that is no longer required and so ensure people’s right to privacy. At the same time, it will keep the system up to date and more manageable. As has been mentioned, the PVG scheme currently has more than 1.2 million members, and not all of those individuals are still carrying out regulated work. However, the evidence to the committee spoke of a need for clarity surrounding the transition period before the proposal is implemented. Such a period is needed to allow organisations to adhere to the change in a more feasible timeframe and with greater understanding.

Moreover, I join others in suggesting that, in relation to situations in which an individual has, by mistake, failed to renew their membership, further consideration should be given to moving away from penalties or short sentences, which are inconsistent with the sentiment behind the bill and the current legislation.

As has been mentioned, further clarity and guidance are needed before stage 2 on the change in concept from “regulated work” to “regulated roles” under the revised PVG scheme. That change, which will describe the work that is being undertaken, will offer greater accuracy. Despite that, many smaller businesses and organisations are uncertain about what may or may not be included under that description.

In the same thread, there may be scope to expand how the bill defines vulnerable groups. For instance, its definition of a protected adult arguably centres on protecting those with health-related needs, inadvertently missing out other vulnerabilities that may need protection, such as old age and homelessness. That is worth exploring, and I look forward to seeing whether it will be improved after further consideration by the minister and the committee.

It is clear that some areas of the bill need further detail to make it a workable improvement on the complicated system that we currently have. Although I support its key principles, further consideration is needed to address those issues, particularly as it is such an important piece of legislation.

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

I add my thanks to the clerks, my fellow committee members and everyone who has given evidence to the Education and Skills Committee, both in writing and in person. It has been thorough and, at times, complicated, such is the depth and importance of the legislation that we are dealing with.

The bill will help to protect some of the most vulnerable people and groups in our communities and, as Alex Neil pointed out, it is imperative that we get it right the first time. The bill was introduced in the Scottish Parliament by the cabinet secretary last June, and it aims to simplify what is, as we have seen, an overcomplicated system of disclosure.

During scrutiny of the Protection of Vulnerable Groups (Scotland) Act 2007, the Government said that it would review the PVG scheme. As the scheme has been in place since 2011 and the Parliament has recently passed other, related pieces of legislation such as the Management of Offenders (Scotland) Act 2019 and the Age of Criminal Responsibility (Scotland) Act 2019, the decision was made to review and update the whole disclosure scheme.

As we have heard—this is what happens when you go last: everybody has said everything before you—various changes are being made, one of which is reform of the current suite of disclosure products. Currently, there are four types of disclosure checks: basic, standard, enhanced and PVG. The proposal is to replace those with level 1 disclosure, which would be the equivalent of basic, and level 2 disclosure, which would replace everything else. Responses to the Government’s consultation show that there is significant support for that reduction. Other feedback said that the complexity of the system lies not only in the suite of products that are available but in a lack of understanding of the underpinning legislation and difficulty in navigating the system.

The bill also makes changes to enable people to apply for and receive disclosures digitally. It is hoped that that, too, will simplify the system, but it is worth noting that there will still be a paper-based system for those who require it. That is in line with responses to the consultation that expressed support for the move to digital with the provision of a non-digital alternative. The committee also recommended full engagement with organisations that cannot access a digital platform. I am sure that the Public Audit and Post-legislative Scrutiny Committee will give that IT system proportionate and thorough scrutiny when the time comes.

One of the other major changes will be the ending of lifetime membership of the scheme and its replacement with a five-year renewable membership. Disclosure Scotland told the Education and Skills Committee that as many as 20 per cent of the 1.2 million people who are currently on the scheme no longer do regulated work. It considers it important that the scheme membership accurately represents the number of people in Scotland who undertake regulated roles. However, the committee was concerned about the proposed penalty of a short custodial sentence for those who fail to renew their membership, and it recommends that the Scottish Government look again at whether that is proportionate. I also agree with my colleague Mary Fee, who asked about people on low incomes. I am interested to hear from the minister whether there will be any help with funding for those individuals.

As I said, the bill does not stand alone. Like most of my colleagues, I love a package deal when it comes to legislation. It is our duty as legislators to ensure that the laws that we make fit together seamlessly, and a number of witnesses noted what they see as discrepancies between the bill and the Management of Offenders (Scotland) Act 2019 and the Age of Criminal Responsibility (Scotland) Act 2019. Organisations such as the Centre for Youth and Criminal Justice, Social Work Scotland and Community Justice Scotland all expressed concern. Their concerns included state disclosure and self-disclosure, the date of the offence versus the date of the conviction and how the new acts will align with the new disclosure system. The Scottish Government has confirmed that it will lodge amendments at stage 2 to deal with any discrepancies. I also welcome the explanation that the minister gave to Liz Smith, which was extremely helpful in addressing such concerns. The committee recommended that any future legislation, such as the legislation incorporating the UNCRC, should work well together with the bill, and I was glad to see that the minister, in the Government’s written response, confirmed that that will be the case.

There was also broad support for the moves to reform how offences that are committed by young people between the ages of 12 and 17 are disclosed and to bring about the end of automatic disclosure. I will share a quote from Community Justice Scotland. It said:

“This, at a stroke would reduce the likelihood that people will experience discrimination based on events that happened when they were a child, which have no reflection on their current or future potential to work or study as fully rehabilitated adults”.

I have no doubt that, like any legislation that comes before us at stage 1, the bill will be amended at stage 2. However, the underlying aim of simplifying the disclosure scheme is entirely sensible—or, to use Ross Greer’s word, “sound”. The committee supports the general principles of the bill, and I urge other members to do the same.

The Presiding Officer (Ken Macintosh)

We move to closing speeches.

Daniel Johnson (Edinburgh Southern) (Lab)

I would like to begin as other members have, by thanking the clerks. We have had a thorough debate. Our stage 1 evidence was also thorough, and that is possible only because of the hard work and diligence of our clerks.

I also thank my fellow committee members. As Gail Ross has just outlined, we have done our jobs thoroughly, both in public and private discussion. That reflects—as does today’s debate—that sense of shared responsibility to get it right. We have no greater collective duty than to protect the welfare and wellbeing of our children and vulnerable people. There is also our responsibility in terms of the raw numbers: as Iain Gray pointed out, one in five people is in the PVG scheme. For those reasons, the bill is important.

It says a great deal that there was so much overlap between the opening speakers in the debate. We all share the minister’s sentiment that we should make this bold reform. In doing so, there are several things that we must do. First, we must balance the responsibility for protection with the right of the individual to move on from any past crimes or issues that they have had in their lives. Reform must be based on those principles and must provide simplification and predictability of the system.

Another issue, which was touched on by several speakers, and Ross Greer in particular, is about the perception of how the system will operate technically. That is why the two-stage test is so important. It is with a degree of trepidation that I am going to talk about this. I do not think that I have ever spoken in a debate in which so many people have predicted what I will say. The topic is an issue of concern for me. In itself, the two-stage test is sensible. Indeed, there is case law that establishes what it is and how it should operate at a high level. However, if we are seeking predictability, clarity is important.

Clan Childlaw was very clear that it would find it difficult to provide advice to people who have information disclosed under the bill on the basis of the two-stage test. If legal bodies and organisations such as Clan Childlaw cannot provide that, then the understandability of the law and how it will be operated is in question.

I would like to provide a counter-factual. Before I do that, I will make a small apology to the minister. When she was giving evidence, I set her the rather unfair test of being able to explain what the difference might be between “relevant” and “ought”. The key test is to be able to explain a situation in which information would be relevant but ought not to be disclosed—where the information would pass one hurdle but not the other.

Here is the issue. Relevance is easy to understand. It is about a situation or information that directly relates to the job that is being undertaken by the individual. The “ought” test is more complicated. “Ought” always relies on another underlying value in order to test it. I apologise if I sound like a philosophy graduate, but I am one, and I think that this is incredibly important. It should be informed by factors in the case law such as the time and context of the incident in question. The issue is that, if we are talking about proportionality or risk, one person’s proportionality is not the same as another’s. That is why we have to elaborate further.

I accept that the minister is saying that much of that will be laid out in guidance but, because those tests are so pivotal, it is very difficult to scrutinise the legislation without seeing that guidance if those values are not further explained in the bill. That is why I welcome the minister’s willingness to look at amendments at stage 2 to provide those tests. I urge her to examine the suggestion by the Law Society that we provide high-level principles, albeit amendable through secondary legislation and backed up by statutory guidance. That way we can scrutinise and understand how this law will operate. Importantly, the people who are potentially subject to it will also be able to understand it.

I will mention some issues that have been raised by members. The issue of other relevant information, which was mentioned by Mary Fee, Rona Mackay and others, is critically important. The glib analysis is that the conditions in the bill for disclosure of convictions are lengthy but section 18, on other relevant information, is very short. However, the reality is that, because of the volume of information that could be disclosed, the volume of other relevant information may be greater than the volume of conviction information. Counterintuitively, the other relevant information might also provide the very insight into those convictions that would not be disclosed because of the age of the individual but which might be disclosed as other relevant information. We need to examine that further and make sure that there are no such contradictions or loopholes.

Ross Greer’s examination of under-16s and the impact of volunteering highlights the point that I made at the beginning. It is important to understand the difference between how the provisions operate technically and how they are perceived. That is at the heart of that issue. We do not want to put off under-16s from volunteering, both because of the contribution that they can make and because of how valuable volunteering is for them.

I will touch on the issues with other legislation. It has been interesting for me, as a committee member, to examine this bill after spending some time on the Justice Committee during the passage of the Management of Offenders (Scotland) Bill. A number of members have identified an interaction between the two bills. It is also interesting to see how this bill fits with other legislation and how the Government plans for legislation. There are overlaps. I appreciate that the minister has said that she will bring forward guidance, but that is critical, because it comes down to confusion. Many people have made the point that, when you have confusion, you get overdisclosure, and that can exacerbate the stigma that is faced by individuals.

I urge the Government to think carefully about interactions when it plans legislation. We have three bills that have passed through this place in quick succession, yet we are questioning how those interactions will work and whether there are unintended consequences from different acts that have been passed within months of each other.

I will end by reflecting on the points that Alex Neil made. Let us take our time. If we need to take further evidence at stage 2 and contemplate those interactions and whether we have had adequate information from the Government, let us do that. Let us get this right. As so many people have pointed out, the bill will impact on the welfare and wellbeing of our children and so many people in Scotland who undertake invaluable volunteering work.

Alison Harris (Central Scotland) (Con)

I declare that I, too, hold a PVG certificate.

I am pleased to be closing for the Scottish Conservatives in this stage 1 debate. As my colleague Liz Smith said in her opening speech, we support the principles of the Disclosure (Scotland) Bill. We all agree that protecting the most vulnerable people in our society is crucial, and if we can make the administration of that more efficient, we should.

The Education and Skills Committee’s stage 1 report expressed the committee’s view that it is “very concerned” with certain aspects of the bill. As Clare Adamson, Ross Greer and other members said in their speeches, one of those concerns is the impact that the bill could have on volunteers who are under the age of 16. The contribution that young people make through volunteering in any capacity cannot be overstated. Committee evidence revealed many concerns about the combination of the minimum age requirement of 16 and mandatory PVG membership for regulated roles. Indeed, one organisation stated that it is likely that the bill will

“be interpreted to mean young people under 16 cannot undertake regulated roles.”

I appreciate that the Scottish Government acknowledges that concern, but the area will require further clarity as the bill progresses.

Another issue that was highlighted in the committee was how the proposal to move away from lifetime PVG memberships to a five-year renewal period would be implemented. There needs to be a proper transition so that organisations do not end up with a huge budget commitment at the same time every five years due to current PVG members renewing on the same day. The minister suggested a couple of options for addressing that issue in her response to the committee’s report, and I look forward to debating them at stage 2.

I turn to the bill’s promise to digitise the disclosure system. The end goal is to increase efficiency, which would be a welcome outcome, but there are grave lessons to be learned from the recent move to the new IT system, which is known as PASS, or protecting and safeguarding Scotland. In the chamber in June, I raised with the minister concerns about the robustness of any IT system tied to the Disclosure (Scotland) Bill. In response, the minister said:

“we are confident that the system is at an appropriate stage and will be completed in time for the delivery of the new services.”—[Official Report, 13 June 2019; c 69.]

Disclosure Scotland has a target to complete 90 per cent of disclosure checks within 14 days, but in September last year, the percentage of PVG checks completed within that target fell to 47.8 per cent, and in October it fell again, to just 12.5 per cent.

I heard at first hand about the huge delays to disclosure checks from childcare providers who were unable to put staff in place to work due to PVG checks taking twice as long as they should. At the end of October, I wrote to the Minister for Children and Young People, and in her response, she told me that the delays were partly due to seasonal pressures causing an increase to workloads and partly due to the “bedding in” of the new digital PASS system, which went live in September 2019.

The recent Audit Scotland report on Disclosure Scotland highlighted a reduction in its performance in November. That report made for very interesting reading. It included a summary of the transition to the PASS system, which showed that Disclosure Scotland’s June 2015 proposal to the Scottish Government to take the digital contract out of BT’s hands was rejected for its high cost: £77.2 million over the transition period of 2015-16 to 2022-23. According to the Audit Scotland report, four months later, Disclosure Scotland returned with a second proposal, stating a projected cost of £34.1 million. The Scottish Government accepted the revised offer. However, in the years since, there have been several revisions to the budget forecast, and in November 2019, the costs were higher than the original figure of £77.2 million that was rejected by the SNP Government.

The bottom line is that the PASS system is over budget. It was not ready to be fully rolled out in September, and, as I previously stated, lessons have to learned from that, especially in the light of digital updates being required with the passing of the disclosure bill. At this stage, I acknowledge the very pertinent comments that Alex Neil made about IT systems.

The final issue that I will discuss today is the bill’s coherence with other legislation that has been passed by the Scottish Parliament. As other members have mentioned, several recent parliamentary acts have legislated on similar issues to the ones on which this bill legislates. Those acts include the Age of Criminal Responsibility (Scotland) Act 2019 and the Management of Offenders (Scotland) Act 2019—very recent acts that may need to be amended to correct the contradictions and discrepancies that could arise because of the introduction of the bill.

I agree with the Education and Skills Committee's conclusion about the importance of ensuring that no more discrepancies arise when incorporating the United Nations Convention on the Rights of the Child into Scots law. The minister's response to the stage 1 report stated that the disclosure bill was designed with the principles of the UNCRC in mind, but it did not confirm that changes to the bill would not be required when incorporating the UNCRC into Scots law. Instead of taking a piecemeal approach to legislation, it is important to ensure that those pieces of legislation work well together, as Beatrice Wishart mentioned in her speech.

I reiterate that we will support the bill at stage 1. However, we fully believe that amendments and clarifications are required at stage 2 on the issues that have been raised in the chamber today—more issues than I have been able to cover—such as ORI, which I know that Mary Fee and Daniel Johnson have mentioned. I also appreciate that, in her opening speech, the minister said that there is a need for clarification and discussion on those.

Several MSPs have discussed the new lists of offences and regulated roles, and those are areas requiring close consideration going forward. For the continued protection of vulnerable groups—which everyone in the chamber acknowledges is essential—we need this legislation to be right.

Maree Todd

I thank the members for their contributions. I am very pleased that there is support throughout the chamber for the general principles of the bill.

The debate has been constructive, so I want to make it absolutely clear that I am committed to continuing to work together in this complex area. I have listened carefully to the debate and will consider the issues that have been raised today and in the committee’s report, as we proceed.

The bill will enhance existing protections and close potential safeguarding gaps, thereby creating a more robust disclosure system. The bill refocuses the PVG scheme on people who have power or influence over children and protected adults.

It was evident from the Health and Sport Committee’s consideration of child protection in sport—in particular, when it discussed the role of football scouts—that many people who were involved at senior level did not appreciate the power imbalance that exists between clubs and children. I reiterate my appreciation to the stakeholders who have engaged with us on the change to regulated roles, and who continue to provide feedback. It is absolutely vital in ensuring that the legislation provides sufficient coverage to protect vulnerable groups.

My priority is the continued ability of the disclosure system to support protection of the most vulnerable people in society. People who, because of their past conduct, are unsuitable for undertaking such roles must still be prevented from doing so.

However, it is important that children are treated as children. The children’s hearings system and the focus on early and effective intervention provide a proportionate and flexible response to harmful or criminal behaviour by children. The disclosure system must be able to take a proportionate approach to including information from that meek period of life, and I believe that the bill allows us to do so.

It is important that we have a disclosure system that gives all applicants greater control over their information. Some people’s past conduct makes them unsuitable for roles with vulnerable groups or valuable assets. However, that must not be used to prevent all people who have convictions from accessing employment, which we know helps to reduce reoffending. To do that would also deny our communities the value of such people’s skills and experience. For most people with convictions, the passage of time and living a law-abiding life provides a basis for them to access work and make a great contribution to society.

I recognise that that can be difficult for employers, so I encourage anyone who wants to learn more about employing people with convictions to access the free “Scotland works for you” training that is offered by Disclosure Scotland. That initiative helps employers to understand how to make risk assessments on conviction and rehabilitation.

Legislation gives us the levers to reform disclosure. However, in order for individuals truly to be able to access their rights, comprehensive and accessible guidance about the disclosure system must be available, so the Scottish Government is committed to delivering that. Guidance will be provided in various formats for a range of audiences, and will be developed in conjunction with users and stakeholders, including children and young people and organisations that advocate for them. We already have interest from a range of groups that want to support Disclosure Scotland in developing the guidance.

I will pick up on a number of issues that were highlighted during the debate by multiple members. I assure members that if I do not manage to respond to particular issues, my door is always open, and I am more than willing to meet members and to facilitate access to officials, if they want further clarity.

On coherence, I refer members to the Government’s written response to the committee’s stage 1 report, which highlighted that

“The Government progressed all three pieces of legislation—the Age of Criminal Responsibility (Scotland) Act 2019, the Management of Offenders (Scotland) Act 2019 and the Disclosure (Scotland) Bill—by adopting a joined up policy model, sharing ideas, information and team members, ensuring policy coherence uniting the three.

Each Act (or Bill) has had its own parliamentary journey and the provisions of each are absolutely consistent with each other in broad policy terms”.

Liz Smith

The minister is right that the Scottish Government has gone into considerable detail. I hope that it has done that with legal advisers on some of the definitions. The challenge that we face is in getting things across to some stakeholders—practitioners who will have to operate the system—because the language is complex. I ask the minister to reflect on that point.

Maree Todd

Certainly. I hope that members acknowledge that our work with stakeholders has been thorough and committed. We will continue that work and make sure that we respond to concerns that they raise during the progress of the bill.

When the bill was introduced last year, the other two connected pieces of legislation had not yet been enacted, so it is inevitable that there will be procedural and technical inconsistencies between them that require to be remedied. We foresaw that and are committed to bringing everything fully into line by stage 2. I reassure the committee that the bill was drafted with regard to the UNCRC principles and the Children and Young People (Scotland) Act 2014.

Another frequently raised issue was decision making and the two-part test. As I set out in my opening remarks, I accept the calls to include more detail in the bill on decision making around the tests for relevance and what ought to be included. I am carefully considering the recommendations on how best to include those principles without compromising the flexibility that is necessary to give full consideration to each set of circumstances.

It is helpful to be clear about the type of information that we are talking about. The two-part test of whether something is relevant to the purpose of disclosure and ought to be included in the disclosure applies to three separate categories of information: other relevant information, childhood conviction information and removable convictions. Although the wording is the same, the tests will be applied in different contexts, depending on the information in question and the stage in the review process. Maintaining the same wording is absolutely crucial.

Daniel Johnson

Will the minister reflect on the fact, which I accept, that the test will apply differently in those different contexts, and consider whether that underlines the need for greater clarification and, perhaps, for including it in the bill?

Maree Todd

Certainly. As I set out in my opening remarks, I will lodge a stage 2 amendment to address the committee’s recommendation to include the principles in the bill.

We have begun engagement with stakeholders to develop guidance that is to be used by decision makers. The crux of the issue is to make the outcome of any assessment or review process more foreseeable and accessible to disclosure applicants. User-friendly guidance is essential not just for applicants, but for those who support them.

A number of members talked about how challenging and complex the bill is. However, I have confidence that Parliament can rise to meet the challenges, and that our close working with stakeholders will enable us to communicate about the legislation once we have completed it.

Disclosure Scotland’s digital transformation is paving the way for the work that will take forward the bill’s provision’s; many of the innovative changes in the bill could not have been implemented using the previous IT system. PASS is already dealing with all Disclosure Scotland’s current business, and we will work with our customers to ensure that there are solutions for delivery of the bill that meet everyone’s needs. Lessons have been learned from implementation of the original PVG scheme in 2011 and the current digital transformation at Disclosure Scotland. The digital functions that will be required to implement the bill will be developed using Agile, as set out in the financial memorandum. Disclosure Scotland will begin the discovery phase for bill implementation in the coming months.

With regard to the Auditor General for Scotland’s section 22 report, Disclosure Scotland will consider the report’s findings and take appropriate action to address the points that have been raised. In fact, it has already made a number of changes to improve clarity of governance, including creation of a change delivery advisory panel to provide critical challenge, support and assurance.

The Presiding Officer

Can I take a moment to ask members to keep their conversations to a minimum? Thank you.

Maree Todd

Thank you.

The introduction of a minimum age on disclosure is not unique. The Disclosure and Barring Service introduced a lower limit of 16 years of age back in 2012 and AccessNI did the same in 2015. The legislation that we are introducing is therefore coming into line with what already occurs in the rest of the UK. I am conscious of the concern that an unintended consequence of the measure would be a reduction in volunteering opportunities for children. Disclosure Scotland will work with Volunteer Scotland disclosure services and across the Scottish Government to ensure that organisations that offer volunteering to under-16s understand the changes and continue to offer opportunities to children.

Ross Greer

Will the Government agree to the review that the Education and Skills Committee has asked for into the bill’s impact on participation of under-16s in volunteering?

Maree Todd

Certainly. As I said, we are more than happy to work with bodies that represent volunteers in Scotland to see whether there is a change in the level of volunteering. As Mr Greer does, I understand just how significant children and young people’s volunteering is. In fact, children and young people volunteer at about twice the rate of adults, so volunteering is important not only for children but for Scotland, so we must ensure that they are able to continue to volunteer and that we do not introduce any barriers to that.

On penalties for the offence under the bill, I reassure members that when we introduce a mandatory scheme, it can be effective only if it is supported by a criminal offence for non-compliance. However, the penalties in the bill are consistent with provisions in existing legislation. Although the legislation currently includes the penalty of imprisonment, there has been no sentencing to prison of people who have not navigated the system appropriately since the legislation was introduced.

All those issues are important. I thank members for raising them throughout the debate. Although we are focusing on the general principles at this stage, I again reassure members that the discussion with stakeholders on the proposals in the bill, on implementation and on planning will continue.

I again offer to meet members from all parties. I am open to discussing the detail of the bill and taking the time that is needed to work through the complexities.

I consider that the committee’s approval of the principles and the general tone of today’s debate are indicative of a shared view across the parties that we need to reform the disclosure system. Together, we can ensure that it continues to protect the most vulnerable people in our society, while also being rights-respecting and proportionate. I look forward to taking our next steps together.

The Presiding Officer (Ken Macintosh)

The next item of business is consideration of motion S5M-19992, in the name of Derek Mackay, on the financial resolution for the Disclosure (Scotland) Bill.

Motion moved,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Disclosure (Scotland) Bill, agrees to—

(a) any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act, and

(b) any charge or payment in relation to which Rule 9.12.4 of the Standing Orders applies arising in consequence of the Act.—[Derek Mackay]

The Presiding Officer (Ken Macintosh)

The first question is, that motion S5M-20452, in the name of Maree Todd, on stage 1 of the Disclosure (Scotland) Bill, be agreed to.

Motion agreed to,

That the Parliament agrees to the general principles of the Disclosure (Scotland) Bill.

The Presiding Officer

The next question is, that motion S5M-19992, in the name of Derek Mackay, on the financial resolution for the Disclosure (Scotland) Bill, be agreed to.

Motion agreed to,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Disclosure (Scotland) Bill, agrees to—

(a) any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act, and

(b) any charge or payment in relation to which Rule 9.12.4 of the Standing Orders applies arising in consequence of the Act.

The Presiding Officer

The final question is, that motion S5M-20456, in the name of Fergus Ewing, on the Direct Payments to Farmers (Legislative Continuity) Bill, be agreed to.

Motion agreed to,

That the Parliament agrees that the relevant provisions of the Direct Payments to Farmers (Legislative Continuity) 2020 Bill, introduced in the House of Commons on 9 January 2020, bringing the legislation governing the 2020 CAP direct payment schemes into domestic law, granting powers to fix deficiencies in that legislation and to keep pace with changes in EU law during the Implementation Period, so far as these matters fall within the legislative competence of the Scottish Parliament or alter the executive competence of the Scottish Ministers, should be considered by the UK Parliament.

The Convener (Clare Adamson)

Good morning, and welcome to the fourth meeting in 2020 of the Education and Skills Committee. I welcome Oliver Mundell, who is substituting for Alison Harris. I congratulate Jenny Gilruth on her promotion, as she has become a Scottish Government minister. Jenny’s experience in teaching has been a great asset to the committee over the past few years. We thank her for her contribution and wish her all the best in her new role.

I remind everyone present to turn their mobile phones and other devices to silent for the duration of the meeting.

Agenda item 1 is an evidence session on the Disclosure (Scotland) Bill with the bill team. I welcome Kevin Lee, the bill team leader, from Disclosure Scotland; and Gemma Grant, a lawyer with the Scottish Government’s legal directorate. As the committee is aware, we arranged this additional session between stages 1 and 2 to assist our consideration of potential amendments. Today, we will hear from the Scottish Government bill team on the Government’s intentions for stage 2 amendments. I invite Kevin Lee to make an opening statement on the planned amendments before we move to questions from the committee.

Kevin Lee (Disclosure Scotland)

Good morning, and thank you for inviting us to provide further evidence on the Disclosure (Scotland) Bill. The policy note that the minister provided to the committee explains how the bill interacts with the Rehabilitation of Offenders Act 1974 and the recently passed Age of Criminal Responsibility (Scotland) Act 2019 and Management of Offenders (Scotland) Act 2019.

In considering the note, it will be helpful for the committee to keep in mind that the changes that we propose to the 1974 act are principally concerned with the rules on self-disclosure of unspent convictions under that act and how those rules relate to the content of a level 1 disclosure. At present, the rules for self-disclosure and the content of a basic disclosure, which is equivalent to a level 1 disclosure, are broadly aligned. The disclosure system therefore backs up the duty to self-disclose unspent convictions, as it can be used by organisations to verify that the person has told the truth when disclosing previous convictions.

As the committee will be aware, there are separate rules for what is referred to as the higher-level disclosure regime, which is to be replaced with level 2 disclosures under the bill. There are special rules on the self-disclosure of spent convictions after they have appeared on a level 2 disclosure. The changes that are described in the policy note do not affect those particular rules, as they are contained in secondary legislation.

As the policy note sets out, we need to amend the 1974 act in order to give full effect to the bill’s provisions on childhood convictions. If we did not do that, people would have to self-disclose unspent childhood convictions for minor offences that would be unlikely to appear on state disclosure if there was a case-by-case consideration of what ought to be disclosed. To protect individuals from overdisclosure of unspent childhood convictions, the rules for self and state disclosure need to mirror each other more closely.

As is the case now with basic disclosures, a level 1 disclosure will be available to any individual for any purpose. Such disclosures tend to be used for general employment purposes but not for jobs with access to high-value assets or for work with vulnerable groups. The biggest users of that level of disclosure at present are agencies that offer to process disclosure checks for businesses that are recruiting in industry—for example, in the construction, retail and hospitality sectors.

Outside the proposed mandatory PVG—protecting vulnerable groups—scheme, there is no obligation on organisations to obtain a state disclosure for any particular role. Some employers and organisations in the insurance industry do not obtain state disclosures as a matter of course. That means that the duty to self-disclose might be the only safeguarding measure that should ensure that organisations find out about past convictions when a person is applying for a job or for insurance. For that reason, we cannot end the duty to self-disclose unspent childhood convictions entirely, as it could lead to employers and insurers making uninformed risk-based assessments.

We therefore need bespoke rules on the self-disclosure of unspent childhood convictions, and we need to ensure that those rules are generally reflected in the rules on state disclosure so that individuals are not at risk of overdisclosing their criminal past.

Under the approach that we have set out in the policy note, the majority of childhood convictions will become spent immediately. The same approach was taken under the Management of Offenders (Scotland) Act 2019 in relation to children’s hearings disposals. As a level 1 disclosure can include information only about unspent convictions, there will be no disclosure of childhood convictions in the vast majority of cases. Making most childhood convictions spent immediately will make it clear to young people what they must self-disclose.

That general provision is subject to the clear and understandable exceptions that are described in the policy note, ensuring that public protection is served and that individuals will know their legal duties.

My colleague and I would be pleased to take any questions.

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

I have a relatively self-contained or simple question about how the disclosure process might affect voluntary organisations, particularly religious groups. I was recently lobbied by the churches. They pointed out that they are very supportive of the changes but that, at one point in the process, they are asked to categorise their activities as leisure activities. People are probably not quick to take offence, but some might hesitate to bracket their faith organisation alongside a golf club. There might be an equality issue to look at in that respect.

The churches’ more substantial question is whether it would be simpler to have a box that could be ticked for religious or faith groups, to avoid confusion in that part of the process—and they already have to deal with quite a bit of confusion when it comes to how people fill in the forms. Does the Government intend to respond to that self-contained question from some organisations about one bit of the process?

Kevin Lee

Schedules 3 and 4 describe what regulated roles are. The intention was never to describe in forensic detail every possible role that could exist across Scotland. We opted for a broad description of some activities to capture what we mean by regulated roles. That sits alongside the meaning of contact, because the two parts must come together.

We can certainly look at the feedback from the religious establishments and consider whether there is a better way to cater for their interests.

Gemma Grant (Scottish Government)

The Government intends to publish guidance to sit alongside the less core activities that are set out in the schedules. Perhaps the point can be addressed in guidance, so that religious groups will know which categories in the schedules apply to their particular activities.

Daniel Johnson (Edinburgh Southern) (Lab)

I want to follow up on the codification of the principles underlying the two-part test. I see from the Government’s note that it intends to lodge amendments that would add that to the bill while making it amendable by secondary legislation. It is welcome to have that commitment, but is there the possibility of getting additional clarity? Obviously, a number of different approaches could be taken and, indeed, there are different ways in which those principles could be fleshed out. Can you provide additional information at this time?

Kevin Lee

I can confirm that, as we have set out in the correspondence that has been sent to the committee, the intention is to lodge amendments at stage 2 that address the committee’s recommendations on having codified principles in the bill that can be amendable by secondary legislation. Those principles will be based on and reflect the case law that we have discussed in previous sessions, but the intention is not to limit them in that way. We have committed to producing statutory guidance, which we will consult stakeholders on. Factors could come out of that piece of work, including what should be in the statutory guidance. There could also be other relevant matters to take into account when applying the two-part test.

Daniel Johnson

The commitment is to make the principles amendable by secondary legislation. I assume that that would be through the affirmative procedure rather than through the negative procedure. However, altering the principles could have a significant impact on the effect of the legislation. Is it the Government’s intention to make the legislation amendable through the affirmative procedure?

Gemma Grant

The intention is to have the codified principles as a set of two lists of principles that decision makers may take into account when applying both parts of the two-part test, which relate to relevance and whether something ought to be disclosed. That recognises that the principles for each test are slightly different—they overlap to an extent, but there are different factors.

As Kevin Lee said, the lists are not intended to be definitive; they are simply principles that may be taken into account. Any proposals to amend the lists by way of secondary legislation would be made in order to reflect any significant developments in case law and to give the Government flexibility around that.

Daniel Johnson

One of the key concerns about how the two-part test might impact or be implemented relates to other relevant information, or ORI. There is a particular issue with situations in which an offence is not disclosable because it occurred when the individual was a juvenile but it might be disclosable as other relevant information. Will there be an attempt to capture or codify that within the principles? To paraphrase, the Government’s response is, in essence, that we should trust the probity and robustness of the decision making by the Government and the police. That is reasonable, but it makes sense to try to capture the principles of that in the codification of the two-part test. Is it the Government’s intention to do that?

Kevin Lee

Yes. The intention is to apply the codification to all relevant decision makers—to Disclosure Scotland, on behalf of ministers, the chief constable and the independent reviewer. The independent reviewer has similar functions under the Age of Criminal Responsibility (Scotland) Act 2019, so the intention is to apply the codified principles to the decisions that the independent reviewer has to make under that act. Likewise, the chief constable has duties to provide ORI under the Protection of Vulnerable Groups (Scotland) Act 2007 in relation to what goes on a scheme member’s account. The intention is to apply the codified principles across all three pieces of legislation so that there is a consistent approach.

Daniel Johnson

I assume that that will deal explicitly with the concept of adolescence being a particularly sensitive period of life, as is set out in the policy memorandum.

Kevin Lee

Yes. When Sheena Brennan gave evidence on behalf of Police Scotland, at the beginning of stage 1, she confirmed that the police take into account the person’s age at the time in deciding whether to provide ORI.

Just to be clear, as the committee will be aware, there is nothing new in relation to ORI. There is nothing regressive in the bill on that; it is actually progressive in that it gives individuals a better opportunity to challenge such information before it goes on a level 2 disclosure to an employer, for example.

To answer your question, the intention is to cater for the issues that have been addressed across the board for all decision making.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

The policy note states that you will

“introduce a clear set of rules into the 1974 Act which explain which types of childhood convictions will become spent immediately and which ones should be subject to the usual disclosure periods”.

What criteria are you using for that, and when will we know what those offences are?

Kevin Lee

As we set out in the policy note, the intention is that the majority of childhood convictions will be spent immediately, and there is only a small category of excepted sentences that will follow the normal rules in the 1974 act. Those are sentences of over 48 months—which the Management of Offenders (Scotland) Act 2019 refers to as “excluded sentences”—and, for sexual offences, anything that resulted in imprisonment for more than 12 months. The category of excepted sentences has been set out in the policy note, and that will be reflected in the amendments that are made to the 1974 act.

Rona Mackay

The policy note also states:

“If an employer has not asked Disclosure Scotland for a disclosure the individual will still be obliged to tell their prospective employer about these types of convictions in all cases.”

What will be the consequences if an individual does not do that?

Gemma Grant

There are certain protections under the 1974 act. Once a conviction becomes spent, if somebody is asked about it and an employer subsequently finds out about that conviction, the person is protected from prejudice resulting from their not having disclosed it. Those protections do not apply when convictions are unspent. It would be for an employer potentially to take action against an employee if they had not complied with their legal duty to self-disclose and if that had had consequences for recruitment decisions that the employer had made.

Rona Mackay

Are you saying that it is a matter between the employer and the employee?

Gemma Grant

Yes.

Liz Smith (Mid Scotland and Fife) (Con)

I have a question that arose in the evidence that we took during the private discussion groups that we had with stakeholders. It is about a potential situation in which a complaint is made to the person in a group or society who is in charge of the PVG link and the complaint relates to them. What happens to the disclosure procedure within that group? Who is responsible for taking that forward if the complaint is made about the person who is technically responsible for overseeing the disclosure procedure in that group?

Kevin Lee

Do you mean in the context of consideration for listing?

Liz Smith

The question was put to us by a lady representing quite an important group—I will not name it—who said that, within any group or society, there will be somebody who is responsible for overseeing the PVG management of any members who are working with children or whoever it may be. If a complaint was made about that responsible adult, what would happen? It is not clear what that situation would entail.

Kevin Lee

Regarding consideration for listing, if the complaint involved the person who was at the top of the tree and if there was a professional regulatory body, the regulator would be notified. If the complaint was made in a voluntary setting, and depending on the content of the complaint, the police might have a role to play if it was a public interest disclosure.

Liz Smith

If a serious complaint was made about a person and that person rightly decided to take a back seat while the complaint was investigated, there would obviously be a responsibility within the association or group to continue ensuring that vulnerable children were protected. Who would take over that role while that inquiry took place? I can see some loopholes in the legislation if that is not carefully thought about.

Gemma Grant

Would that individual possibly be acting as the lead signatory if the organisation was an accredited body?

Liz Smith

Yes—and let us say that it was.

Gemma Grant

Organisations can nominate a substitute or a replacement lead signatory, so it might be able to nominate another person.

Liz Smith

Is there an obligation to do that, or does that happen only when something arises? I am concerned that there is a loophole, because there could be a time factor. If a serious allegation was made about somebody, that person would normally step back for the period of the investigation. However, if there was nobody to take over the responsibilities of that person, there would be a gap. I am concerned about that, and I am asking how that would be addressed.

Kevin Lee

Concerning the protection of children and of protected adults, the bill proposes that ministers can impose conditions on scheme members who are under consideration for listing. In the circumstance that you describe, ministers might impose conditions to ensure that children and protected adults were safeguarded. In relation to the person’s function as someone who is able to countersign level 2 disclosures and process that information, there are procedures by which ministers can say that that function has to be taken over by another lead signatory.

Liz Smith

I understand that. We have to accept that these situations sometimes arise. If a serious complaint is made, it happens right there and then, when the matter is exposed in one way or another, and there is a short timescale for action. We cannot wait for ministers to intervene in a particular case; we must have a process whereby somebody within the association, who is in charge of signatures or whatever it might be, knows what they have to do in such circumstances. We cannot leave it to Government ministers; we must have a watertight procedure just in case something else happens when the person who is responsible for managing people’s PVG membership is not there.

Gemma Grant

In the legislation as it is currently framed, it is more of a matter of individual organisations satisfying themselves that they have their own contingency measures, so that they have the power to nominate a substitute lead signatory or to nominate one or more countersignatories who can continue to countersign applications—

Liz Smith

So, there will be guidance on it.

Kevin Lee

Yes.

Gemma Grant

Yes, there will be guidance on that.

Kevin Lee

Those arrangements—a code of practice and so forth—exist now, under the auspices of the registered persons system, which is changing to an accredited bodies system under the bill. The information-sharing arrangements that exist for higher-level disclosures are not changing fundamentally.

Liz Smith

I ask that the Government take some notice of the issue, because the person who raised it was very exercised about it, and I understood exactly why. We have an obligation to make things absolutely watertight in any situation in which a complaint is made against the lead person.

The Convener

It comes back to some of the evidence that we heard from smaller organisations, which do not have a big capacity. Quite often, when they seek help in such circumstances, they are just directed to the guidance, which is very technical. There perhaps needs to be consideration of how the guidance could be simplified to make it absolutely crystal clear and easy to access. Also, support should be provided for smaller organisations that find themselves in such a situation.

Liz Smith

I agree with that.

Iain Gray (East Lothian) (Lab)

The committee raised some concerns about the bill’s definition of a “protected adult”. In the Scottish Government’s response, the bill team says that the Government intends to lodge amendments to deal with some of the issues around that definition. Can you provide any more detail of how you intend to do that?

Kevin Lee

Our intention is to fully address the concerns that were raised, particularly by Scottish Women’s Aid, which made valid points about what it identified as gaps in the revised definition.

Iain Gray

Have you consulted those stakeholders as you try to do that?

Kevin Lee

Yes. I have spoken to Scottish Women’s Aid about that particular issue.

Rona Mackay

When will we see those Government amendments?

Kevin Lee

They will be lodged by noon on Tuesday 25 February.

Rona Mackay

We will see them then. Thank you.

The Convener

Those are all the questions that members had this morning. I thank the witnesses very much for coming along—it has been very helpful. I will suspend the meeting briefly to let the witnesses leave the room.

The Convener

Our next agenda item is stage 2 of the Disclosure (Scotland) Bill. I welcome to the committee Maree Todd, who is the Minister for Children and Young People, and her officials.

Everyone should have a copy of the bill, the marshalled list of amendments, which sets out the amendments in the order in which they will be debated, and the groupings of amendments.

It might be helpful to explain the procedure briefly. There will be one debate on each group of amendments. I will call the member who lodged the lead amendment in the group to speak to and move that amendment, and to speak to other amendments in the group. I will then call other members who have lodged amendments in that group. Members who have not lodged amendments in the group but who wish to speak to amendments should indicate that by catching my or the clerk’s attention. The debate on the group will be concluded by me inviting the member who moved the lead amendment in the group to wind up.

Following the debate on each group, I will check whether the member who moved the lead amendment in the group wishes to press it to a vote or seek to withdraw it. If they wish to press the amendment, I will put the question on it. If a member wishes to withdraw their amendment after it has been moved, they must seek members’ agreement to do so. If any member objects, the committee will immediately vote on the amendment.

If a member does not want to move their amendment when it is called, they should say, “Not moved.” Please note that any other member present may then move the amendment. If no one moves the amendment, I will immediately move on to the next amendment in the marshalled list.

Only committee members are allowed to vote. Voting is by a show of hands, so I urge everyone to keep their hands clearly raised until the clerks have recorded the vote. The committee is required to indicate formally that it has considered and agreed to each section of the bill, so I will put the question on each section at the appropriate point.

Our aim is to complete part 1 of the bill today. I refer members to the marshalled list.

Section 1—Level 1 disclosure

The Convener

Group 1 is entitled “Level 1 and Level 2 disclosures: childhood convictions: alignment of state and self-disclosure provisions”. Amendment 1, in the name of the minister, is grouped with amendments 2, 5 to 17, 20, 21, 52, 53, 58, 62, 90, 92, 98 and 201.

The Minister for Children and Young People (Maree Todd)

Good morning, convener. I am pleased to be moving the Government’s amendments to the Disclosure (Scotland) Bill this morning. They reflect the level of engagement that has continued since the bill was introduced, and the committee’s constructive scrutiny of the bill.

The first group of amendments is concerned with the rules on self-disclosure of unspent convictions under the Rehabilitation of Offenders Act 1974 and how those rules relate to the provisions in the bill on state disclosure of childhood convictions.

When we introduced the bill, we were aware that further changes would be needed in order to align the disclosure rules in the bill with the self-disclosure regime under the 1974 act, in relation to childhood convictions. If an unspent childhood conviction is not disclosable by the state, the individual should have the right to treat a question from prospective employers and others about previous convictions as excluding that relevant childhood conviction. We were therefore conscious that there would have to be symmetry in the provisions of the state and the self-disclosure regimes in order to give full effect to the policy intent of the bill.

As was explained to the committee at the outset, our intention was always to address that through stage 2 amendments, once changes to the 1974 act that were made by the Management of Offenders (Scotland) Act 2019 had been enacted. The main challenge arises in relation to unspent childhood convictions, particularly in sectors that do not routinely use the disclosure system to verify the existence of unspent convictions. If individuals had to disclose only what had been included in a disclosure product they would, in effect, be exempt from self-disclosing any childhood convictions, provided that they never had to apply for a disclosure.

The policy intention of the amendments addresses that potential safeguarding gap while providing a truly transformative opportunity for people who have offended in their childhood, which is consistent with the policy thrust of the bill. Through our amendments, the majority of childhood convictions will immediately become spent under the 1974 act. They would therefore not be capable of being disclosed as unspent convictions in either level 1 or level 2 disclosures, and the individual would not have to self-disclose the convictions if an employer were to ask about any past offending behaviour. That change is similar to changes that were made to the self-disclosure rules relating to children’s hearings disposals by the Management of Offenders (Scotland) Act 2019.

However, that general provision will be subject to important exceptions. Public protection will be served by provisions that draw a line around the most serious forms of criminality during childhood. That most serious behaviour will remain eligible for state disclosure, and there will be a corresponding duty on the individual, for as long as the conviction remains unspent, to self-disclose such criminality when asked by an employer. The conviction will appear automatically on a level 1 or level 2 disclosure as an unspent childhood conviction. That exception would be for individuals who have a conviction that resulted in a custodial sentence exceeding 48 months—known as an “excluded sentence” under the 1974 act—and, in the case of a sexual offence, a conviction that resulted in a custodial sentence exceeding 12 months.

That approach means that many of the provisions in the bill that relate to childhood convictions for level 1 disclosures can be removed entirely. There will no longer be a decision-making process by ministers in relation to childhood convictions for the purposes of a level 1 disclosure, because the small category of childhood convictions that will remain unspent will be disclosable automatically, without any exercise of discretion, for as long as they are unspent.

The effect of the proposal will be to remove all negative consequences for individuals that were caused by the 1974 act with regard to childhood convictions, save for convictions for the most serious types of offending. Such individuals are a very small minority of all those who are convicted in childhood. The vast majority of childhood convictions will become immediately spent and will not be disclosable, either by the individual or by the state, in any circumstances.

Taken together, the amendments in the group will successfully align the rules on self-disclosure and state disclosure of unspent childhood convictions, and they will deliver the benefit of allowing individuals to move on from their childhood offending behaviour while ensuring a suitable level of public protection for vulnerable groups.

I urge committee members to support the amendments. If members want me to discuss them in more detail, I will be happy to do so.

I move amendment 1.

Daniel Johnson (Edinburgh Southern) (Lab)

I thank the minister for that explanation. Broadly, the amendments make an awful lot of sense in aligning the bill with other recent legislation, but I want to check my understanding, because I am not a lawyer.

We are talking about how childhood convictions will be treated. The vast majority of childhood convictions, although not the most serious ones, will be immediately spent. I just want clarification on that and to ask whether the minister could explain further. I understand that that will not need ministerial discretion and that a conviction’s not being spent will be by dint of the level of seriousness of the offence.

Is removal of that discretion entirely, along with some of the routes for appeal to the independent reviewer, clear cut? Are we saying that there are no grey areas because of how the law will now work for childhood convictions? My query is whether it is safe to make removal of childhood convictions purely automatic with no ministerial discretion, and safe to remove routes for review and appeal?

Maree Todd

First, the convictions will become spent, and secondly, there will be no grey area. That is reasonable.

We gave a great deal of thought to where the line should be drawn. There is a fine balance to be struck between the policy of helping people to move on from offending and the need to ensure that the disclosure system gives sufficient protection.

As I have said, the changes to the 1974 act are primarily concerned with level 1 disclosures, because there are separate rules for level 2 to ensure protection of vulnerable groups. We need to make provision for a limited set of rules on self-disclosure in order to cover people who have been convicted of the most serious offences. In doing that, we must remember that the same rules have to apply to state disclosure. The more rules we add, the further we would move from ending automatic level 1 disclosure of childhood convictions.

There is no straightforward answer about where to draw the line; I accept that there might be different views about where the balance has been struck. Committee members will agree that the excepted sentences that I propose in the amendments cover very serious offending behaviour. I have carefully balanced that against the principles of article 40.1 of the United Nations Convention on the Rights of the Child, which states the requirement to promote

“the child’s reintegration and the child’s assuming a constructive role in society.”

I am listening to members’ views and will work with them to ensure that we have provisions that allow people to move on from their childhood offences.

Amendment 1 agreed to.

Amendment 2 moved—[Maree Todd]—and agreed to.

Section 1, as amended, agreed to.

Section 2—Provision of Level 1 disclosures

The Convener

Amendment 3, in the name of the minister, is grouped with amendments 4, 22, 50, 51, 68 to 89, 97, 102, 121, 125, 126, 200, 205 and 206.

Maree Todd

The amendments are grouped as minor and drafting amendments and are primarily intended to assist clarity in reading and understanding the legislation or are a consequence of other amendments.

Amendments 102 and 68 to 88 are minor technical changes that will replace the words “individual” and “scheme member” with “applicant” in the relevant sections. The amendments will support consistency for those following a notional application through processes that are provided for in the legislation.

Amendments 4 and 50 clarify that an individual can apply for a disclosure only in relation to themselves. That will remove potential ambiguity in interpretation of the legislation.

Amendment 3 will insert language that will clarify that ministers can refuse to issue a level 1 disclosure product under the bill when it is more appropriate that the information that would be contained in the disclosure could be obtained in the form of a disclosure product from another competence authority, such as a basic disclosure that is obtained from the Disclosure and Barring Service. The current wording of the bill might have implied that an actual level 1 disclosure product could be obtained from a person other than the Scottish ministers: that is not the case.

Amendments 51 and 89, similarly to amendment 3, will insert language to clarify that the purpose of a level 2 disclosure must be one in relation to which the protections against self-disclosure under the Rehabilitation of Offenders Act 1974 have been excluded by an order that has been made by the Scottish ministers. That means that, when any of the protections were excluded for other purposes by an order that has been made in another part of the United Kingdom, any disclosure application for those purposes should be directed to the appropriate UK disclosure service.

Amendment 22 will introduce wording to make it clear that the definition of “non-disclosable conviction” includes a conviction for a list B offence. Previously, the definition referred only to a list B offence, but it is the existence of a conviction for such an offence that brings a matter within the definition.

Section 29(4)(a), as drafted, is inconsistent in referring to the “purposes” of the disclosure in the plural. All the other provisions refer to a singular “purpose”, and that is what is used in the defined term in section 70. Amendment 97 will bring that reference into line.

Amendment 121 will remove paragraph (c) from section 69 of the bill, which defines what is involved in consideration of suitability. The wording in paragraph (c) was intended to underpin section 57(4) and the provision of advice from an umbrella body to a personal employer. However, in terms of section 57, it is still the personal employer making the suitability assessment and thus they are covered by paragraph (a) of section 69, which renders paragraph (c) unnecessary.

Amendment 125 will substitute for the definition of “spent conviction”, a new definition of “spent” and “unspent” that will apply to all convictions, including childhood convictions and cautions. That will avoid the need to add a separate definition of “spent childhood conviction”. The introduction of a definition of “unspent” in relation to convictions will enable some simplification of the amendments relating to disclosure of childhood convictions in section 1 and the definition of “criminal disposal” in section 13(3).

Amendment 126 provides a definition of “type of regulated role”, which is a phrase that is used in a few places in part 1 of the bill. There is no new definition in broad terms under amendment 126, which simply makes it clear that the definition of the term in the Protection of Vulnerable Groups (Scotland) Act 2007 applies for the purpose of the references in part 1 of the bill.

Amendment 200 will amend the PVG act to ensure that the Scottish ministers must issue guidance, and that the chief constable must have regard to that guidance in the exercise of their functions under part 1 and part 2 of the PVG act. The bill currently provides that only in relation to the chief constable’s functions under part 1 of the bill. Amendment 200 will improve consistency in the approach by which information is provided by the chief constable.

Amendments 205 and 206 will fix an error in the drafting of schedule 5, on minor and consequential amendments. The amendments are intended to ensure that the power to make regulations prescribing fees covers applications to renew membership of the scheme and that, if a fee that is prescribed for an application is not paid in the manner that is provided for in the regulations, the application need not be considered. The bill currently makes that amendment in the wrong place in section 70(4) of the PVG act; the amendments will make sure that the amendment is made in the correct place in section 70(4).

I move amendment 3.

Amendment 3 agreed to.

Amendment 4 moved—[Maree Todd]—and agreed to.

Section 2, as amended, agreed to.

Sections 3 and 4 agreed to.

Section 5—Level 1 disclosures: childhood conviction information

Amendment 5 moved—[Maree Todd]—and agreed to.

Section 5, as amended, agreed to.

Section 6—Level 1 disclosure: application for review

Amendment 6 moved—[Maree Todd]—and agreed to.

Section 6, as amended, agreed to.

Section 7—Review of accuracy of information by the Scottish Ministers

Amendment 7 moved—[Maree Todd]—and agreed to.

Amendment 8 moved—[Maree Todd]—and agreed to.

Section 7, as amended, agreed to.

Section 8—Review of childhood conviction information by the independent reviewer

Amendment 9 moved—[Maree Todd]—and agreed to.

Section 8, as amended, agreed to.

Section 9—Independent reviewer: information and representations

Amendment 10 moved—[Maree Todd]—and agreed to.

Section 9, as amended, agreed to.

Section 10—Notification of independent reviewer’s decision

Amendment 11 moved—[Maree Todd]—and agreed to.

Section 10, as amended, agreed to.

Section 11—Appeal against independent reviewer’s decision

Amendment 12 moved—[Maree Todd]—and agreed to.

Section 11, as amended, agreed to.

Section 12—Provision of new Level 1 disclosure on conclusion of review proceedings

Amendments 13 to 16 moved—[Maree Todd]—and agreed to.

Section 12, as amended, agreed to.

Section 13—Level 2 disclosure

Amendment 17 moved—[Maree Todd]—and agreed to.

The Convener

Amendment 18, in the name of Maree Todd, is grouped with amendments 23, 49, 54 to 57, 59 to 61, 63 to 65, 91, 93 to 96, 99 to 101, 105, 113, and 122 to 124.

Maree Todd

The amendments have been lodged in response to evidence that was given to the committee by a number of groups that have commented on the disclosure of children’s hearings disposals. The bill as introduced treats offending behaviour that has been addressed in the children’s hearings system as a childhood conviction for the purposes of state disclosure. A number of groups have said that that is not in keeping with the ethos of a welfare-based system.

The proposed amendments mean that children’s hearings disposals would not be categorised as convictions for the purposes of the bill but should otherwise be treated in the same way as spent childhood convictions in terms of the rules on when they should be included on a level 2 disclosure. They are treated as spent childhood convictions because the changes that were introduced by the Management of Offenders (Scotland) Act 2019 mean that all children’s hearings outcomes become spent immediately.

Amendment 122 inserts a definition of “children’s hearing outcome”. It draws on section 3 of the Rehabilitation of Offenders Act 1974 and therefore ensures a consistent approach to the definition of “conviction” in the bill, which also points to the 1974 act. That approach reflects the link between the system of state disclosure in the bill and the system of self-disclosure in the 1974 act.

Amendment 123 carves “children’s hearing outcome” out of the definition of “conviction”.

Amendment 49 replicates section 14 of the bill, such that we still have provision for children’s hearings outcomes that should be non-disclosable. We do not need to replicate section 14(1)(a) as all children’s hearings outcomes will be immediately spent because of the Management of Offenders (Scotland) Act 2019. Amendment 124 is consequential. Amendment 23 deletes section 14(3) as a consequence.

Amendments 18 and 54 add a provision into sections 13 and 17 respectively, which, when read with the consequential amendments 55 to 57, 59 to 61 and 63 to 65, effectively treat children’s hearings outcomes in the same way as spent childhood convictions for disclosure purposes, albeit that they will be clearly badged separately from childhood convictions in any disclosure certificate.

Amendments 91, 93 to 96, 99 to 101, 105 and 113 are consequential and ensure that children’s hearings outcomes are treated in the same way as spent childhood convictions for the purposes of the review and appeals processes, and for the purpose of the power in section 40 to modify other disclosure enactments.

I move amendment 18.

Amendment 18 agreed to.

The Convener

Group 4 is on level 2 disclosure: other relevant information. Amendment 19, in the name of the minister, is grouped with amendments 66, 67 and 203.

Maree Todd

The amendments relate to the disclosure of other relevant information—ORI—on a level 2 disclosure and as vetting information for the purpose of the protecting vulnerable groups scheme.

Amendment 19 provides that ORI from an overseas police force is a category of information that may be disclosed on a level 2 disclosure. The amendment ensures that overseas ORI can continue to be disclosed as is currently the case under the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007.

Section 18 of the bill already permits ORI that is provided by the chief constable of Police Scotland to be included in a level 2 disclosure. The Scottish Government will use a section 104 order under the Scotland Act 1998 to replicate the bill provisions for ORI provided from other UK police forces, so that the same applies to the chief officers of police forces across the rest of the UK. However, that order will not be able to deal with the disclosure of ORI from overseas police forces. Amendment 19, together with amendment 67, will address that issue.

Subsection (1) of amendment 67 places a duty on the Scottish ministers, before providing a level 2 disclosure to an applicant, to request the chief officer of every relevant overseas police force to provide ORI that meets the two-part test. The Scottish ministers cannot compel the chief officer of an overseas police force to engage in a statutory review process. It would not be within the competence of the Scottish Parliament to legislate for Scottish ministers to do so.

Together, subsections (2) and (4) of the amendment provide that overseas ORI may be included in a level 2 disclosure only following a direct review to the independent reviewer, including, if taken, an appeal to a sheriff against the independent reviewer’s decision.

Subsection (5) of amendment 67 provides the Scottish ministers with the power to make regulations about the procedural aspects of the direct review. That includes the opportunity for the applicant to make representation to the independent reviewer and an appeal to a sheriff against the independent reviewer’s decision. Under the existing disclosure legislation, ORI from overseas police forces is very rare. Given how infrequently we anticipate that the review process will be utilised in practice, the procedural aspects of the review process are considered to be too detailed to be in the bill.

Subsection (6) provides a power to prescribe “relevant overseas police forces”, in keeping with the approach under the existing law.

Amendment 66 inserts new subsections into section 18. The amendment clarifies that information relating to a time when the applicant was under 12 years of age can be provided by the police as ORI only after a determination has been made by the independent reviewer under the Age of Criminal Responsibility (Scotland) Act 2019. That reflects similar provisions that the ACR act inserted into the disclosure provisions of the Police Act 1997 and the PVG act, which will now be superseded and repealed by the disclosure provisions in the bill.

Amendment 203 is a consequential amendment to the PVG act. Section 97(5) of the PVG act defines “relevant police forces” with reference to the Police Act 1997. As the bill repeals that act, it is necessary to substitute the reference to it with reference to section 50(7) of the bill. The range of relevant police forces remains the same, which ensures that the arrangements under the PVG act for obtaining ORI as vetting information remain the same.

I move amendment 19.

The Convener

Do any members wish to come in?

Daniel Johnson

I have a bit of a speculative question. Initially, I was concerned that the amendments cast a very wide net by talking about overseas police forces, so I read and reread the section.

Then I realised that those overseas police forces will be defined as the ones in the Channel Islands, the Isle of Man and so on. However, that gave rise to a question. I accept that a line has had to be drawn on what can be done practically, but given that Police Scotland has access to intelligence systems such as that of Interpol, what consideration did the Government give to intelligence and information that Police Scotland might hold or be able to access but which have been gained from police forces beyond the overseas police forces as they will be defined in the bill?

Maree Todd

For clarity, are you talking about information that is accessible to Police Scotland, in relation to which disclosure would be for Police Scotland in the circumstances that we are talking about?

Daniel Johnson

It struck me that an individual might well have committed offences or have come into contact with police forces outside the jurisdictions of the forces that are set out in amendment 67. Such information might be of concern and relevant, given the considerations, but it will not be caught by the provisions of the bill. Given that the Government has expanded the number of police forces and jurisdictions from which Police Scotland can draw disclosable information—albeit that it has done so only to include the Channel Islands and so on—was consideration given to looking at conviction information from other jurisdictions, as part of the work that went into this group of amendments?

Maree Todd

Yes, it was. Overseas information goes through a single police force in the UK—Hampshire Constabulary—and is then used in the system, as is described in the legislation.

Daniel Johnson

That was a helpful clarification.

Iain Gray (East Lothian) (Lab)

Also on a point of clarification, if someone was applying for disclosure and other relevant information had been provided, and if they had the opportunity to have the appropriateness of the information reviewed, would they know the source of the information?

Maree Todd

Yes, they would.

Jamie Greene

Those were interesting comments. If information is not captured through the relevant authority—I think that you said that that is the Hampshire force, minister—and, after disclosure, further information comes to light, perhaps from a police force that is not linked to the system, what powers of revocation will be available?

Maree Todd

Such a situation will be covered by the on-going monitoring requirements of PVG scheme membership.

Amendment 19 agreed to.

Amendments 20 and 21 moved—[Maree Todd]—and agreed to.

Section 13, as amended, agreed to.

Section 14—Non-disclosable convictions

Amendments 22 and 23 moved—[Maree Todd]—and agreed to.

Section 14, as amended, agreed to.

Schedule 1—List A offences

The Convener

We move to the next group, “List A and List B offences: miscellaneous amendments”. Amendment 24, in the name of the minister, is grouped with amendments 25 to 35 and 37 to 48.

Maree Todd

The amendments in the group relate to the offence lists in schedules 1 and 2 of the bill. They are also known as lists A and B.

Convictions for offences in schedules 1 and 2 will continue to be disclosed in level 2 disclosures until a successful review or, in the case of a conviction for an offence that is listed in schedule 2, an offence becomes non-disclosable under section 14.

The amendments update the offence lists in the schedules with recently amended or newly created statutory offences. The amendments to schedules 1 and 2 also respond to requests from the Crown Office and Procurator Fiscal Service and on behalf of the Judicial Appointments Board for Scotland that offences relating to dishonesty, the administration of justice and integrity be moved to schedule 1. The changes cover dishonesty offences against an individual, breach of trust or responsibility, and misconduct in a position of authority. Moving those offences from list B to list A will mean that they are disclosable for longer, even after they are spent, which is intended to promote the integrity of the justice system in Scotland.

Separately, a number of recently amended or newly created statutory offences have recently received royal assent and warrant inclusion on the offence lists. They have been situated in the lists alongside similar offences that are currently in schedule 1 or 2, taking into account the factors that are described in paragraph 119 of the policy memorandum.

I move amendment 24.

Amendment 24 agreed to.

Amendments 25 to 35 moved—[Maree Todd]—and agreed to.

The Convener

Group 6 is on “PVG Act: carrying out a regulated role without being a scheme member”. Amendment 36, in the name of the minister, is grouped with amendments 146 to 149.

Maree Todd

The amendments in the group relate to offences to be inserted into the 2007 act by the bill, in connection with the mandatory PVG scheme.

Amendment 36 is consequential, so, although it leads the group, I will discuss it last.

Amendment 146 removes the words “seek or” from the offence in new section 45C(1) that is to be inserted into the 2007 act by section 74 of the bill. That is necessary to make it clear that the act of applying for a job before being a scheme member will not be regarded as a criminal offence. The amendment does not adversely impact on the requirement for those carrying out a regulated role to be in the mandatory PVG scheme. It will also be an offence for an individual to agree to carry out a regulated role without being a PVG scheme member.

Amendment 147 inserts a new provision into new section 45C of the 2007 act. In relation to the offence under 45C(1) of agreeing to carry out a regulated role without being a scheme member, the amendment makes it clear that an individual is not deemed to have agreed to carry out a regulated role if that agreement is subject to the individual joining the PVG scheme for that role. There is a similar provision in new section 45D(2) for employers, and it is only right that the same treatment is extended to individuals, so that they may apply for a role without being a scheme member, although they may agree to take up employment and start in the role only once they have successfully joined the scheme.

Amendment 148 provides the Scottish ministers with a regulation-making power to prohibit organisations from permitting an individual to carry out a regulated role and to require organisations to remove an individual from a regulated role, when the individual is not a scheme member. That is to address organisations continuing to employ someone to carry out a regulated role when that person is not or is no longer a scheme member. Regulations may impose prohibitions or requirements in relation to particular types of organisations or in relation to particular kinds of regulated roles. Section 45DA(3) makes it an offence for an organisation to fail to

“comply with regulations made under subsection (1)”,

although it will be a defence for an organisation to prove that it did not know, and could not reasonably be expected to have known, that the individual was not a scheme member.

Amendment 148 ensures that there will be an onus on organisations to check whether their employees remain scheme members. It ensures that there is a consequence for any organisation that does nothing following receipt of a notification under the new section 45B, which states that a scheme member’s membership has lapsed.

Under the bill, as introduced, when a scheme member’s membership has lapsed and they continue to carry out a regulated role, only the individual would be committing an offence. Amendment 148 means that there would be an equivalent offence for organisations that fail to comply with any prohibition or requirement imposed by regulations.

Amendment 149 applies the same penalties to the new offence created by amendment 148, and they are set out in the new section 45F of the 2007 act. That is appropriate, as all the offences that are introduced by section 74 of the bill deal with the same conduct, namely evading the mandatory PVG scheme.

The offences in the new sections 45C, 45D and 45E, which are inserted by the bill into the 2007 act, are all included in the list of offences in schedule 1—the list A offences, which can continue to be disclosed on level 2 disclosures, even after they are spent.

For consistency, amendment 36 adds the new offence that is proposed by amendment 148 to schedule 1.

I move amendment 36.

Iain Gray

I might be at fault for not reading properly, and I accept that you alluded to the matter, but I want more clarity on the sanctions that would be available when those powers are used against an organisation that has continued to use individuals in regulated roles without membership of the scheme.

Maree Todd

As I said, amendment 149 applies the same penalties to the new offence that is created by amendment 148. The sanctions that we are introducing today align with the sanctions to which I previously alluded.

New section 45F sets out the penalties for offences relating to regulated roles performed by individuals who are not in the scheme. It says:

“A person who commits an offence under section 45C, 45D or 45E is liable ... on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both)”

or

“on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both)”.

Iain Gray

Presumably, in the case of the organisation or employer, rather than the individual, that would apply to the legal entity of the organisation, depending on what its structure was.

Maree Todd

There is a provision in the 2007 act concerning corporate offences, which is where that would apply.

Jamie Greene

Please accept my apologies if this matter was covered at stage 1, but how much of a shift in the status quo does the introduction of those new penalties represent? Does it give ministers additional powers to hold organisations to account more than individuals, or does it give them greater powers to create offences that concern individuals rather than the umbrella organisations within which they sit?

What parliamentary scrutiny would be afforded to the committee or the Parliament when ministers create the regulations under new section 45DA?

Finally, what guidance would be given to organisations that are perhaps currently made up of a mix of PVG and non-PVG personnel? Will there be any changes in their perception of how the regulations will affect them? Could you specifically address concerns about changes in the law?

Maree Todd

The balance between the individual and the organisation is pretty similar. The requirements are introduced by the fact of the scheme becoming mandatory. A great deal of guidance will be issued to ensure that everybody is aware of the change that is coming and what duties are required.

Reminders will also be built into the system. Our intention is not to criminalise a large number of people, but to have a secure scheme that is easily operable and understood by the general public. We will endeavour to deliver that.

Did you also ask about scrutiny of guidance?

Jamie Greene

Yes. If, for example, ministers change the details of the types of organisation or roles that the offences cover, what scrutiny will be afforded to those decisions?

Maree Todd

They will be regulations made under the negative procedure.

Jamie Greene

Thank you.

Amendment 36 agreed to.

Schedule 1, as amended, agreed to.

Schedule 2—List B offences

Amendments 37 to 48 moved—[Maree Todd]—and agreed to.

Schedule 2, as amended, agreed to.

After section 14

Amendment 49 moved—[Maree Todd]—and agreed to.

Section 15—Provision of Level 2 disclosures

Amendment 50 moved—[Maree Todd]—and agreed to.

Section 15, as amended, agreed to.

Section 16—Level 2 disclosure applications: countersigning and purposes

Amendment 51 moved—[Maree Todd]—and agreed to.

Section 16, as amended, agreed to.

Section 17—Level 2 disclosures: childhood conviction information

Amendments 52 to 65 moved—[Maree Todd]—and agreed to.

Section 17, as amended, agreed to.

Section 18—Provision of relevant police information

Amendment 66 moved—[Maree Todd]—and agreed to.

Section 18, as amended, agreed to.

After section 18

Amendment 67 moved—[Maree Todd]—and agreed to.

Section 19—Further information for certain purposes: non-PVG scheme members

Amendments 68 to 80 moved—[Maree Todd]—and agreed to.

Section 19, as amended, agreed to.

Section 20—Further information for certain purposes: PVG scheme members

Amendments 81 to 88 moved—[Maree Todd]—and agreed to.

Section 20, as amended, agreed to.

Section 21 agreed to.

Section 22—Level 2 disclosures: Crown employment

Amendment 89 moved—[Maree Todd]—and agreed to.

Section 22, as amended, agreed to.

Section 23—Level 2 disclosure: application for review

Amendments 90 and 91 moved—[Maree Todd]—and agreed to.

Section 23, as amended, agreed to.

Section 24 agreed to.

Section 25—Review of childhood conviction information by the independent reviewer

Amendments 92 to 96 moved—[Maree Todd]—and agreed to.

Section 25, as amended, agreed to.

Sections 26 to 28 agreed to.

Section 29—Review of removable convictions by the independent reviewer

Amendment 97 moved—[Maree Todd]—and agreed to.

Section 29, as amended, agreed to.

Section 30 agreed to.

Section 31—Independent reviewer: information and representations

Amendments 98 to 102 moved——[Maree Todd]—and agreed to.

Section 31, as amended, agreed to.

Section 32 agreed to.

Section 33—Appeal against independent reviewer’s decision

The Convener

The next group is on “Level 2 disclosure: process after independent review”. Amendment 103, in the name of the minister, is grouped with amendment 104 and amendments 106 to 110.

Maree Todd

The amendments seek to introduce a right to subsequent review for disclosure applicants when there was a previous decision to include information. That ability—which was recommended by the committee at stage 1—will be provided through amendment 106.

The purpose of section 33(5), as originally drafted, was to ensure that, following a successful review, the same information would be excluded from a subsequent level 2 disclosure. However, its effect would have meant that there was no recourse to subsequent review of the inclusion. Amendment 106 will allow such a subsequent review in appropriate circumstances.

Amendments 103, 104, 107 and 108 relate to the chief constable’s right of appeal against a decision by the independent reviewer and how that would affect the timescale for the reviewing process coming to an end. When the chief constable has a right to appeal to the sheriff against the decision of the independent reviewer to remove ORI from a level 2 disclosure, the chief constable can inform ministers that they will not be pursuing such an appeal and therefore allow the earlier conclusion of review proceedings. That mirrors the existing ability in the bill for the applicant to notify ministers that they do not intend to pursue an appeal.

Amendment 109 is consequential to amendment 110. Together, the amendments relate to how information that is removed after a review is treated for the purposes of the PVG scheme. Amendment 110 will introduce language clarifying that ministers must remove the information from the applicant’s scheme record and that the excluded information will no longer amount to vetting information within the meaning of section 49(1) of the Protection of Vulnerable Groups (Scotland) Act 2007. The significance of that is that vetting information can trigger a consideration for listing under section 12 of the 2007 act. Amendment 110 will ensure that the information that has been removed from a level 2 disclosure following the review process cannot be used to commence a consideration for listing.

I move amendment 103.

Amendment 103 agreed to.

Amendments 104 and 105 moved—[Maree Todd]—and agreed to.

Section 33, as amended, agreed to.

Section 34—Provision of new Level 2 disclosure on conclusion of review proceedings

Amendments 106 to 110 moved—[Maree Todd]—and agreed to.

Section 34, as amended, agreed to.

After section 34

The Convener

The next group is on “Level 2 disclosure: spent childhood convictions and children’s hearing outcomes: disapplication of section 4 of the Rehabilitation of Offenders Act 1974”. Amendment 111, in the name of the minister, is the only amendment in the group.

Maree Todd

Amendment 111 seeks to insert a new section into the bill. It is modelled on section 8 of the Age of Criminal Responsibility (Scotland) Act 2019. The amendment provides that, for any referral to the independent reviewer made under section 25 of the bill in respect of spent childhood convictions or children’s hearings outcomes, the protections against self-disclosure under section 4 of the Rehabilitation of Offenders Act 1974 would be disapplied for the purpose of that referral, including any appeal to a sheriff under section 33.

In broad terms, that means that a person who has asked for a review has to answer questions and provide information about their spent childhood convictions or their children’s hearing outcomes for the purposes of the review process.

I move amendment 111.

Amendment 111 agreed to.

The Convener

The next group is on “Disclosures: principles for decision making”. Amendment 112, in the name of the minister, is grouped with amendments 208, 221 and 202.

Maree Todd

These amendments have been lodged in response to feedback from stakeholders and the committee’s recommendation in its stage 1 report on including a set of guiding principles or criteria in the bill for the application of the two-part test for inclusion of certain information in disclosure certificates. In particular, I thank Daniel Johnson for his close scrutiny of the matter. The fact that we have both lodged amendments that seek to achieve similar policy outcomes demonstrates that the Scottish Government has listened and responded to his calls for more detail on the two-part test to be in the bill.

Amendment 112 provides two lists of matters that may be taken into account when the two-part test is applied by the Scottish ministers, the independent reviewer or the chief constable for the various purposes to which it applies in the bill. The matters listed are based on and seek to reflect the factors that have been highlighted in significant case law. As there are two parts to the test—whether something is “relevant” and whether something “ought to be included”—there is considerable overlap between subsections (2) and (3) of the new section that is added by this amendment. That aspect is already acknowledged in the case law on which the factors are based.

There is broad discretion for decision makers about how to take account of those matters in practice. Subsections (2) and (3) are both framed as matters that may be taken into account. There is no duty to take account of all the matters that are listed. That is particularly important, as not every factor will necessarily be pertinent to every decision that is made under the two-part test and we do not want to create a duty for decision makers to have to consider or rule out every factor. Such an outcome could prolong the disclosure application process, which is a situation that the Scottish Government is keen to avoid.

Subsections (2) and (3) also provide that the matters that are listed in each subsection are non-exhaustive. That ensures that other relevant matters can be taken into account, so that the discretion of the decision maker is not fettered. That is vital in the context of the guidance that will be developed in collaboration with stakeholders. I am certain that stakeholders will have views on other factors that should form part of the decision-making process and will want them to be part of the guidance. It is crucial that the provisions do not shackle that engagement and the guidance or prevent decision makers from taking a targeted approach to each case that is before them.

Subsection (4) explains that references to “other information” mean ORI.

Subsection (5) enables both sets of matters to be amended by secondary legislation. That regulation-making power will come under section 87(4) of the bill and will therefore be subject to the negative procedure. The Scottish Government considers that to be appropriate, as it will allow ministers to respond quickly and flexibly to any significant developments in case law.

Amendment 202 extends the application of new decision-making factors in amendment 112 when the chief constable is considering the same two-part test in relation to the provision of ORI for inclusion in a person’s scheme record under the Protection of Vulnerable Groups (Scotland) Act 2007.

In addition, the independent reviewer applies the same two-part test under the Age of Criminal Responsibility (Scotland) Act 2019 in relation to a decision about the inclusion of pre-12 behaviour as ORI in the disclosure certificate.

Amendment 204, in my name, which we will come to in a later group, will ensure that the decision-making principles are applied consistently across all three pieces of legislation.

I urge members to accept the amendments in my name in this group.

As I said, Daniel Johnson’s amendments would achieve similar policy outcomes to my amendments. There are two main areas of difference. First, amendment 208 would impose a duty on decision makers to

“have regard to the matters in subsections (4) and (5)”

whereas amendment 112 gives them discretion about which matters to take into account. The Scottish Government considers that allowing that flexibility is more appropriate, as not all the matters will necessarily be relevant to every decision.

The second issue on which we take a different view is the manner in which the decision-making principles can be amended through secondary legislation. Daniel Johnson proposes in amendment 221 that the matters will be amendable by affirmative procedure, whereas my amendment proposes that they be amendable by negative procedure.

Essentially, the regulation-making power is an administrative function of ministers. To ensure that the principles keep pace with any development in jurisprudence, we consider it appropriate to have that power subject to the negative procedure. The default rule in section 87(4) of the bill would therefore apply.

I ask Daniel Johnson not to move amendment 208. I hope that he can see that I have taken into account his close scrutiny of the issue, and that the amendments in my name address his concerns about the two-part test. Moreover, my amendments are all connected and ensure that the decision-making principles are applied equally across the bill, the Age of Criminal Responsibility (Scotland) Act 2019 and the Protection of Vulnerable Groups (Scotland) Act 2007.

I urge members to support amendment 112 and all my other amendments in this group. Should members be required to vote, I ask them to reject Daniel Johnson’s amendments in the group.

I move amendment 112.

Daniel Johnson

I thank the minister for acknowledging the issues that I have raised and for meeting me to discuss those matters.

I will be relatively brief. As the minister has pointed out, her amendments and mine largely do the same work and have the same effect, so I will not move amendments 208 and 221.

It is important to put the principles in the bill in order to provide clarity and certainty, and the amendments in the minister’s name achieve important flexibility. It is important to recognise that these matters cannot be rigid and that they will evolve. Therefore, it is important that whatever we do in that regard reflects that, which the minister’s amendments do.

I will make two small points. First, as an Opposition back bencher, I will always advocate the use of the affirmative procedure over the use of the negative procedure. There is an important and substantive point in that regard. Given how the decisions will be made, I think it important to ensure that there is adequate parliamentary scrutiny of the principles should ministers propose to alter them. However, that is essentially a matter of detail, which I will certainly not die in a ditch over today.

Secondly—this point is more one of reflection—I was interested to note similarities between the minister’s amendments and mine. One slight difference is that my amendments expand on the materiality decisions. Subsection (4)(a) of amendment 208 elaborates on the material considerations in relation to the nature of the conviction, and I recognise that subsection (2)(a) of the minister’s amendment 112 provides largely the same thing.

However, I wonder whether my elaboration is helpful in relation to the nature of the crimes that are considered. The test whether something is “relevant” is, I think, essentially about whether the materiality—the nature—of the crime is relevant to the considerations at hand, whereas whether something “ought to be included” is about whether it is pertinent to disclose the circumstances.

I am not of a fixed view that the elaboration necessarily makes my proposed amendments significantly better, but I wanted to highlight it as a point of difference, and it may be something to consider at stage 3. Otherwise, I am happy with the Government’s amendments, and I will not move mine.

Maree Todd

We can certainly expand on the points that Daniel Johnson has raised in the guidance that we produce. I am more than happy to work with him between now and stage 3 to make sure that we arrive at something that we are all happy with.

Amendment 112 agreed to.

Sections 35 to 39 agreed to.

Section 40—Childhood information: power to modify other enactments

Amendment 113 moved—[Maree Todd]—and agreed to.

Section 40, as amended, agreed to.

Sections 41 to 50 agreed to.

Section 51—Removal of registration on other grounds

The Convener

The next group deals with accredited bodies. Amendment 114, in the name of Maree Todd, is grouped with amendments 115 to 120.

Maree Todd

The amendments relate to the role of accredited bodies. Amendments 114 and 115 introduce a sanction: the removal from the register of an accredited body that does not comply with the duty to have a lead signatory. A duty without such a sanction would render the provisions in section 51 less effective.

Amendment 118 gives an applicant for registration in the register of accredited bodies the power to nominate one or more countersignatories instead of requiring it to nominate countersignatories.

Amendments 116 and 117 are consequential drafting amendments. They ensure that the existing duty under the bill to nominate a lead signatory remains in place, while accommodating the conversion of the duty to nominate countersignatories into a power to do so.

Amendment 119 is a consequential amendment. It removes sections 52(8) and 52(9). Section 52(8) imposed a requirement to have at least one countersignatory, but given that the only duty will now be to have a lead signatory at all times, with a power to nominate countersignatories, that subsection is not appropriate. Section 52(9) is redundant, as the definition of lead signatory under section 52(1) makes it clear that the lead signatory has authority to act as a countersignatory.

Amendment 120 reframes the duty on an accredited body acting as an umbrella body when it is deciding what information may be shared with an organisational employer. Instead of requiring the accredited body to be satisfied that the individual is suitable to have access to the information, the accredited body will need to be satisfied that disclosure to that person would comply with the code of practice that will be published under section 56. That will make it clearer to accredited bodies what is expected of them.

I move amendment 114.

Amendment 114 agreed to.

Amendment 115 moved—[Maree Todd]—and agreed to.

Section 51, as amended, agreed to.

Section 52—Lead signatories and countersignatories

Amendments 116 to 119 moved—[Maree Todd]—and agreed to.

Section 52, as amended, agreed to.

Sections 53 to 56 agreed to.

Section 57—Sharing of Level 2 disclosure information by accredited bodies

Amendment 120 moved—[Maree Todd]—and agreed to.

Section 57, as amended, agreed to.

Sections 58 to 63 agreed to.

After section 63

Amendment 208 not moved.

Sections 64 to 68 agreed to.

Section 69—Definition of consideration of suitability

Amendment 121 moved—[Maree Todd]—and agreed to.

Section 69, as amended, agreed to.

Section 70—Interpretation of Part 1

Amendments 122 to 126 moved—[Maree Todd]—and agreed to.

Section 70, as amended, agreed to.

The Convener

That ends day 1 of consideration of the bill at stage 2. Our next meeting will be on Wednesday 11 March, and our target is to complete this stage of the bill on that day. Any further amendments to the remaining provisions of the bill must be lodged with the clerks in the legislation team by 12 noon on Thursday 5 March.

The Convener

Agenda item 3 is stage 2 proceedings on the Disclosure (Scotland) Bill. I welcome to the committee Alex Cole-Hamilton MSP and Liz Smith MSP, who might contribute to the proceedings but will not have a vote. I also welcome Maree Todd, who is the Minister for Children and Young People, and her officials. Everyone should have a copy of the bill, the marshalled list of amendments, which sets out the amendments in the order in which they will be debated, and the groupings of amendments.

Section 71—Participation in Scheme

The Convener

The first group of amendments is on the Protection of Vulnerable Groups (Scotland) Act 2007: participation of persons ages 12 to 15 in the scheme. Amendment 209, in the name of Jamie Greene, is grouped with amendments 210 to 212.

Jamie Greene (West Scotland) (Con)

I ask members to bear with me, because I did not participate in the stage 1 proceedings, but I have done my homework and I thank my colleague Liz Smith for working with me on handing over some of that work.

This group of amendments seeks to strike a balance on the evidence that was heard at stage 1 and the concerns that a number of stakeholders raised, including the third sector and voluntary organisations, which have been in touch since I joined the committee.

Members will recall that, during the stage 1 evidence, several witnesses raised concerns about the bill’s proposal to implement a mandatory protection of vulnerable groups scheme membership for those aged 16 or over who “carry out regulated roles”. Several witnesses were concerned that, under the current proposals, by setting 16 as the minimum age for obtaining disclosure, those who are under 16 might be unable to obtain a PVG, although they can currently get one. Members might be aware that around 300 people under the age of 16 are currently part of the scheme and undertake what might be considered as regulated roles.

To put together some evidence on that, I spoke to a number of organisations that got in touch and would like me to express the following comments from them. I will pass the quotes to the Official Report afterwards. The first is from Interest Link Borders, which said:

“Volunteering organisations like ourselves will not involve anyone who might have a criminal record in regulated roles, unless they have a PVG membership. So the actual result of the bill will be to prevent those under 16 being in regulated roles.”

The Scottish Volunteering Forum, which a number of members work with, noted other concerns:

“Given that there is a proposal to make the PVG scheme membership legally 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 voluntary groups.”

A third organisation, the Royal Yachting Association, which does a great deal of good work in my region, got in touch to say:

“There is a lack of clarity in the messages from the information being promoted. We believe the contradiction between a club being required to ensure that a volunteer is a scheme member, if the role is regulated, and an under-16-year-old undertaking a similar role not being permitted to join the scheme, will create confusion. This could well deter clubs like ours from involving young volunteers and as a consequence adversely affect the opportunities for young people instructing and coaching our club-based activities, as well as those of other sports with similar developmental roles.”

When my colleagues and I approached the issue of the spectrum of possibilities for a mandatory scheme for those who are over 12 and under 16, we found a middle ground that would give ministers the ability to allow under-16s to carry out a regulated role if it appears to ministers

“from the information contained in the application that it is appropriate”

for them

“to participate in the Scheme.”

That is the rationale behind amendment 209. It would give Disclosure Scotland the flexibility to allow under-16s to apply to participate in the PVG scheme in specific circumstances. It would not involve a blanket or mandatory reduction of the minimum age, but it would allow organisations some flexibility if they would like an extra level of vetting of their young volunteers, as is currently the case, and thereby give them the reassurance that under-16s can undertake regulated roles.

I move amendment 209.

Daniel Johnson (Edinburgh Southern) (Lab)

I very much understand the reason for amendment 209. Voluntary work is hugely important, as is young people’s involvement in voluntary work. However, I have a number of concerns about Jamie Greene’s amendments. First and foremost, the bill is intended to deal with regulated roles and is structured as such. Roles that require to be regulated are those that permit, and necessarily require, unsupervised access to vulnerable adults and children. Therefore, the question that occurs to me is whether it is ever appropriate for people who are under the age of 16 to have such unsupervised access, in particular to children.

Based on what Mr Greene said, we are mainly talking about coaching and other sporting and leisure activities. In those circumstances, the key question is who is providing the supervision of the activities? As the amendments are set out, my understanding is that the supervision would be provided by someone who is over the age of 16 and is a member of the PVG scheme, which would still permit people under the age of 16 to be involved. However, the reverse of that situation—permitting someone under the age of 16 who is not so supervised, whether or not they are in the PVG scheme—is questionable in my view. Although I understand the motivation for the amendments, they run contrary to the intention of the bill and potentially allow for a practice that I question the advisability of having in the first place. I hope that that makes sense.

Ross Greer (West Scotland) (Green)

I echo much of what Daniel Johnson has said. I have a couple of questions for Jamie Greene and one for the minister.

I would appreciate further details, as I am still not entirely clear on the scenarios or roles for which Jamie Greene imagines that a minister would judge it appropriate that a 12 to 15 year-old should be a member of the PVG scheme. Why is the PVG scheme appropriate for those young people? We heard that proportionality is key to this debate. PVG is a system of on-going monitoring, so why not have another disclosure product rather than the PVG scheme?

Mr Greene very fairly mentioned the confusion around the participation of under-16s in what would otherwise be regulated work, and we took evidence on that issue. My concern is that, were Mr Greene’s amendments to be agreed to and that system introduced, it would create further confusion. We would have some 12 to 15-year-olds who are in the PVG scheme and some who are not. Therefore, there would be further lack of clarity over who could and could not participate in that kind of work.

I would appreciate it if the minister could provide some absolute clarity around the committee’s recommendation on the matter. The committee struggled to come to a clear conclusion, because the evidence was relatively finely balanced. However, we concluded that we would ask the Government to ensure that, after an initial period of operation of the new scheme, a review is conducted into the participation rate of under-16s. If the minister makes it clear that that will definitely take place, I urge Jamie Greene not to press his amendments.

The Minister for Children and Young People (Maree Todd)

I understand the intention behind Jamie Greene’s amendments, and I appreciate the committee’s close scrutiny at stage 1 of the introduction of a minimum age. However, in response to Ross Greer’s point, I say that I do not think that it is ever appropriate for children who are under 16 to be subject to on-going monitoring, and it is generally not appropriate to subject them to criminal record checks. The bill’s approach to the disclosure of childhood behaviour will mean that very few disclosures will contain information on children in that age range, which will have direct consequences for disclosure applicants who are under 18.

As I previously highlighted to the committee, when children might pose a risk that could have led to disclosure there are other, more appropriate, measures available to manage that. Evidence from organisations such as the Convention of Scottish Local Authorities and Police Scotland echoed the view that bringing children back into the PVG scheme is not a suitable response to manage that risk. As has been repeatedly highlighted by stakeholders, care-experienced children are disproportionately represented in the justice and children’s hearings systems. That means that any impact of children being asked to join the PVG scheme would fall hardest on that group. We have heard from Who Cares? Scotland that young people already self-exclude from opportunities due to disclosure requirements.

I share the committee’s concern that children could be denied volunteering opportunities. However, it is already the case that voluntary organisations do not routinely allow children to undertake regulated roles without being supervised. My view is that introducing a minimum age for PVG scheme membership will encourage organisations to build on those good working practices, while also opening doors to children who might otherwise not participate. I want to stress that the perceived risk of organisations misinterpreting the change should be handled through training and guidance—not by continuing to subject children to on-going criminal record checks as part of the PVG scheme. Again, I am happy to provide my assurance that the Scottish Government will communicate on that to ensure that children are not disadvantaged in gaining volunteering opportunities.

Amendments 209 and 210 risk introducing uncertainty for children and organisations as to when they should or could seek PVG scheme membership for children, and they could create inconsistencies in approaches across the country. As the committee knows, a key element of the bill is to introduce a mandatory PVG scheme for those who are carrying out regulated roles. That means that, unlike level 1 and level 2 disclosures, those aged 16 and over and doing regulated roles must be in the scheme. To suggest that some children, or some roles that are undertaken by children, should be in the PVG scheme but others should not risks creating confusion that some roles in the scheme are more regulated than others.

A two-tier scheme might also be created if adult scheme membership were mandatory and childhood scheme membership were discretionary. That undermines the policy aim of the mandatory scheme. It would also compromise the training and guidance that we can provide as part of the transition to the mandatory scheme, and it might result in more organisations requesting scheme membership for 12 to 15-year-olds than do at present, as a precautionary measure.

I am also concerned about the amendments to the offence provisions. The effect of amendment 211 is to amend section 45C(3) of the Protection of Vulnerable Groups (Scotland) Act 2007, which is inserted by section 74 of the bill, to apply the offence of doing a regulated role without being a scheme member to 12 to 15-year-olds in circumstances in which ministers have permitted them to be in the PVG scheme. However, as section 45C applies only to those who carry out or agree to carry out a regulated role while not a scheme member, and the 12 to 15-year-olds who would participate in the scheme under Jamie Greene’s proposed new subsection (4) of section 45 would be scheme members, the amendment would have no effect. Under-16s still would not need to be scheme members to carry out regulated roles unless they had already been accepted into the scheme. That seems circular.

The effect of amendment 212, which amends section 45D(3) of the PVG act, which is inserted by section 74 of the bill, is to apply the offence of employing someone who is not a scheme member to do a regulated role to an organisation that offers a regulated role to a child aged 12 to 15, when ministers have permitted the child to be in the PVG scheme under section 45 participation in the scheme. However, as new section 45D will apply only to the offering of a regulated role without confirming scheme membership, and Jamie Greene’s proposed new subsection (4) of section 45 would involve an organisation seeking scheme membership for a child aged 12 to 15, amendment 212 would have no effect in this respect.

I am proud that Scotland has the PVG scheme, which provides not only the snapshot disclosure of criminal record that is offered by Police Act disclosures but the on-going monitoring of people who come into contact with the most vulnerable in society. That is why the Scottish Government is ensuring that it can offer more robust support to safeguarding through the bill.

However, there is a reason why other countries have a minimum age for state disclosure. That is because, as we have frequently seen in the Scottish Parliament, it is appropriate to treat children differently from how adults are treated.

We are in the unusual situation in which a Conservative member is arguing for continued divergence from the rest of the United Kingdom and the Scottish Government is arguing for our remaining aligned with the rest of the UK. It is already the case in the rest of the UK that organisations cannot obtain standard and enhanced disclosures on children under 16. Those changes were made some time ago—back in 2012—in England and Wales by the Disclosure and Barring Service, and in 2015 in Northern Ireland. The changes were made in recognition of concerns about compatibility with the United Nations Convention on the Rights of the Child.

In response to Ross Greer’s concerns, I can say that the Government is more than happy to work with bodies that represent volunteers in Scotland to see whether there is a change in the level of volunteering, as I said at stage 1. There has not been a detectable change in volunteering rates since the changes were made in the rest of the UK.

I understand the significance of children and young people’s volunteering; indeed, children and young people volunteer at about twice the rate at which adults do. Volunteering is important not only for children but for Scotland and we must ensure that children continue to volunteer. We must not introduce barriers to children volunteering. As I said, I would not want any child to be denied the opportunity to volunteer because of the stigma associated with a disclosure, and I am concerned that subjecting children to the PVG scheme could present barriers.

I ask Jamie Greene not to press amendment 209 and not to move any other amendment in the group, for the reasons that I set out. If he presses amendment 209 and moves the other amendments, I ask the committee to resist the amendments.

Jamie Greene

I thank members for their helpful and constructive comments and feedback. I agree with Daniel Johnson that there are questions about whether it is appropriate for under-16s to be in unsupervised situations in regulated roles. However, the reality is that a number of young people who already participate in a form of PVG scheme membership might be in that situation—it is impossible to cover all scenarios. We often talk about the ideal world, in which that would never happen, but it might happen. My point is that the volunteer organisations that got in touch said that they have young people under 16 in that situation, performing the same role as people over 16 perform. They asked what we are doing about such young people.

I thank Ross Greer for his feedback. He mentioned other disclosure schemes—he perhaps has the benefit of understanding such approaches better than I do. If there are other options for under-16s and organisations would like that additional comfort in relation to specific roles, so be it. It would be helpful to know what those options are and for that to be communicated to voluntary organisations, which might not be aware of them.

I thank the minister, who made some very helpful comments. I think that we all share the view that volunteering is extremely positive and we want to encourage it. The amendments in this group are not intended to create confusion; they are trying to address confusion that currently exists. If volunteer organisations are saying that they might interpret the bill as meaning that people under 16 can no longer do voluntary work with vulnerable groups, we need to listen.

The point of these amendments is not to create confusion but to provide clarification where confusion currently exists. In response to Ross Greer’s question on what happens after the bill is passed, I say that this is stage 2 and we have an opportunity to better communicate with the voluntary sector about the consequences of the bill for them and those who are under 16 and currently volunteer for those organisations. If there is confusion, let us listen to their feedback and respond positively with clarification.

I do not want to create further confusion. On the basis that the minister is happy to work with me and other members to ensure that some progress is made before we get to stage 3 and to provide reassurance to those organisations, I will withdraw amendment 209 and will not move the other amendments.

Amendment 209, by agreement, withdrawn.

Amendment 210 not moved.

Section 71 agreed to.

Section 72—Duration of Scheme membership

The Convener

The next group is on the PVG act and the renewal of scheme membership. Amendment 127, in the name of the minister, is grouped with amendments 128 to 145.

Maree Todd

In written evidence to the committee, the Scottish Social Services Council highlighted its need to be notified of any change to a member’s status in the PVG scheme. I am pleased to move several amendments that ensure that regulatory bodies are notified when a scheme member’s membership is due to lapse and where they have failed to renew membership. Having reviewed the provisions, I have also lodged amendments that will further enhance safeguarding for individuals who employ PVG scheme members in the context of personal arrangements, where an organisation is not involved, such as an individual who is arranging their own personal care through self-directed support and employs a PVG scheme member to carry out a regulated role for them. The amendments allow ministers to notify individuals of changes to the membership status of their employee.

I move amendment 127.

Amendment 127 agreed to.

Amendments 128 to 134 moved—[Maree Todd]—and agreed to.

Section 72, as amended, agreed to.

Section 73—Failure to apply for renewal of Scheme membership

Amendments 135 to 145 moved—[Maree Todd]—and agreed to.

Section 73, as amended, agreed to.

Section 74—Compulsory Scheme membership

Amendments 146 and 147 moved—[Maree Todd]—and agreed to.

Amendments 211 and 212 not moved.

Amendments 148 and 149 moved—[Maree Todd]—and agreed to.

Section 74, as amended, agreed to.

Section 75 agreed to.

Schedule 3—Schedule to be substituted for schedule 2 of the PVG Act

The Convener

The next group of amendments is on regulated roles with children or adults in relation to elected representatives and political activities. Amendment 222, in the name of Alex Cole-Hamilton, is grouped with amendments 223 to 231.

Alex Cole-Hamilton (Edinburgh Western) (LD)

I am grateful for the opportunity to be here today to speak to amendments 222 to 231.

Before I start, I note that I am aware that discussions have been had about my motives for lodging the amendments. I assure the committee that it is not about showboating, virtue signalling or weaponising the process to embarrass political parties into voting one way or the other. It comes from a deeply held belief in child protection that comes after working in children’s services, children’s rights and child protection for 13 years before my election to the Scottish Parliament.

I was heavily involved in the consideration of the original Protection of Vulnerable Groups (Scotland) Act 2007. I was recruited to the Government’s voluntary sector issues unit, which met over the course of eight months to ascertain the practicalities of the implementation of the new scheme as it was rolled out. That politicians have an exemption was a loophole that I identified and raised at the time, but we were unable to close the political gap and change it. Now we have an opportunity to right that wrong.

I open my remarks on the amendments with specific reference to the policy memorandum, which states:

“The Scottish Ministers consider that roles for which PVG membership is a mandatory requirement should have at their core the capacity or opportunity to exert significant power or influence over a child or protected adult.”

I agree, which is why, when the bill was first introduced to Parliament in June 2019, I asked whether the Government would extend the provisions to include elected representatives. The minister will remember that she answered my question with positivity and suggested that she would be happy to assess whether parliamentarians fell into that category. My task today is to persuade the committee that they do.

Whether politicians are elected or in senior party positions, they have the capacity to change lives. They can offer help and solve sometimes intimate problems through their casework. They dispense patronage through employment and mentorship, and can offer schoolchildren work placements that are unlike any other.

In today’s personality-driven culture, politicians can sometimes seem like celebrities. There is no question but that they have power and influence. The recognition of that power and influence is almost universal outside this Parliament, so it is unsurprising that, with that recognition, comes a basic assumption that the PVG scheme already applies to politicians. That assumption turns to astonishment when people learn that politicians are exempted. One Edinburgh teacher recently said:

“The fact you have received several thousand votes isn’t any sort of guarantee of somebody’s suitability to be alone with or in the presence of vulnerable people”.

Given the protections that are rightly in place for teachers and others, the fact that nothing should apply to powerful people who encounter the same young people is a double standard and has the potential for serious abuse.

I know that many elected members take steps to ensure that they are never alone with a vulnerable constituent or a child, which is to be commended. However, there is no requirement for members to take such steps. It is conceivable that an MSP might be alone with a protected adult. For example, that might happen if that adult specifically asks for a private meeting or if a staff member is suddenly unable to attend a home meeting—life gets in the way. An MSP could find themselves alone with a young person who is on work experience, driving them around the constituency. That might not be considered good practice and it would certainly expose the elected member to risk, but they are in no way prohibited from doing it.

My central point is that, because politicians have influence and access, should they wish to have it, they are at liberty to have that access unencumbered by safeguarding of any kind. Put simply, we are trusting that, because an individual has persuaded a body of people to elect them to office, their intentions and conduct will be assured. I am sorry, but I cannot accept that that is sufficient. As we know and as the committee has heard throughout stage 1 of the bill, PVG checks are not a magic bullet and do not flag everyone who needs to be flagged. The checks offer only one layer of safeguarding, but it is an important one.

The first draft of my amendment sought simply to remove the exemption for elected representatives, and the Government rightly pointed out the grave constitutional implications of making the entirety of an elected position a regulated role. It would have meant that, should a sitting MSP, for example, fail a PVG check, a minister could theoretically unseat that MSP.

My amendment 224 therefore seeks to regulate one aspect of the work of elected representatives—and one alone—which is the occasions when they might have cause to be alone and unsupervised with children or vulnerable adults. There is widespread precedent for elected representatives being put through PVG checks in recognition of certain aspects of their role. Local authorities currently require a PVG check for councillors who sit on children and families committees, because of the likelihood that they might inspect children’s homes and have other unsupervised contact in that regard. Amendment 224 applies to that small but conceivable function of the role of an elected member, and it explicitly states that it is limited to such engagement.

To deal with the situation in which a sitting elected representative fails a PVG check and is found to have been barred from working with children or vulnerable adults, proposed paragraphs 32A and 32B, which would be inserted by amendment 226, would give ministers the power to work with elected institutions to build procedures so that such an elected representative could not undertake that specific kind of regulated work on an unsupervised basis. The person would continue to be an MSP and could continue to meet all the people that they would have done without a PVG check, but safeguards and protections that do not exist at present would be in place.

Jamie Greene

Will the member take an intervention?

Alex Cole-Hamilton

Yes.

The Convener

I am sorry. I will let Jamie Greene come in later, but we do not have interventions in this part of the debate.

Alex Cole-Hamilton

Okay. I am happy to come back to Jamie Greene later.

I cannot understand why we would not want to have that level of reassurance. PVG checks set a standard and, if people do not meet that standard, provision needs to be made to protect those who need to be safeguarded.

As with any other area of work, the knowledge that background checks reveal would be wholly restricted. The PVG scheme is rooted in privacy. The electorate or media would not know, and would not have the right to know, any details. Under data protection law, only the managing organisation is entitled to such information. However, the electorate and the media would at least have the knowledge that someone who did not have a PVG check would not be allowed to be alone with children, and safeguarding provision would be put in place. People can have no such confidence or reassurance of that at the moment.

My amendments cover every level of elected office in Scotland. The Scottish Government contends that that rides up against the Scotland Act 1998 in so far as it places requirements on Scottish MPs. To address those concerns, I say that child protection is entirely devolved. If we do not feel that we can put the same safeguarding requirements on Scottish MPs, no other democratic institution is empowered to do it for us. MPs do not have diplomatic immunity in Scotland and, when operating in Scotland, they have to abide by every law that is passed by the Scottish Parliament.

Amendments 225 and 227 stretch the provisions to cover people who hold positions of responsibility in political parties. The amendments are self-contained and stand alone. Right now, it is an offence for a political party to ask for a PVG check for anyone who is not undertaking regulated work, as it is currently defined. However, we know how things can be. A target-seat candidate is at the centre of everyone’s attention for the seven or eight weeks of an election campaign. They might end up working long into the evening in campaign offices with a range of volunteers who might fall into either category. Influence in politics can be magnetic, and we need to recognise the combination of influence and access, wherever that might exist.

A PVG check is not a barrier or a bar to candidacy but, along with other safe recruitment practices, it would help political parties to make better-informed decisions about allowing candidacies to progress. My amendments have been drafted so that all the provisions stay within devolved competence in relation to child protection and the protection of vulnerable adults. The amendments exist primarily to change the culture of expectation around the checks that people have to undertake in pursuit of a political career. Some people have said that that might present a barrier to those seeking election, and that a PVG check costs money, which is certainly true. I agree with the principle that there should be no financial impediment to standing for election, but that can be sorted through regulations. There is precedent for fees to be waived—for example, that happens with Volunteer Scotland disclosure services. We could define political activity as a public service, and there are straightforward ways in which that could be arranged.

We all need to learn the lessons of the independent inquiry into child sexual abuse. There are painful lessons for every party—mine included—and a multitude of institutions. The IICSA warned about putting reputation above child protection and about what can happen when there is no robust safeguarding. Indeed, if we are to take anything at all from the inquiry, it should be a recognition of the aura that politicians can carry, the deference to them that can occur, the assumptions that people make about their probity and the idea that they will self-police. To assume that election to office is the only element of safeguarding that we need is an attitude that will unquestionably put our children in danger, and it is an attitude that history has shown us opens the door to people who are determined to abuse others. It is time to shut that door.

In recent years, we have made huge progress towards creating a safeguarding culture in every other workplace and sector. Many are significantly better than they once were. Why, therefore, are elected politicians exempt from that process of improvement, when history and inquiries show that they should not be?

Voting against the proposal would send an awful message to every profession and sector in which people are working diligently and putting safeguarding at the centre of everything that they do. If members have concerns about the structure of the amendments, I am happy to work with the committee to tighten them up so that we can offer reassurance on how the proposal will work.

However, it has been more than a decade since we last updated disclosure law and there is a risk that, if we put nothing in the bill in that regard at stage 2, the window for getting something appropriate into the bill at stage 3 reduces massively. It might be another decade before we look at the issue again and to miss this opportunity to amend the bill would be to extend the exemptions that politicians currently enjoy, unencumbered by safeguarding. We are talking about a simple check that already applies to more than 1 million people in Scotland and which would trigger straightforward safeguards if necessary.

There is a gaping loophole, and we must close it.

I move amendment 222.

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

I thank Alex Cole-Hamilton for bringing this extremely important topic to the committee. The fact that he spent so much time talking about the amendments tells us something about the gravity of the situation. I think that this is far too big an issue for our committee to deal with at this point. We have taken no evidence on it. If we were going to address the matter, we would have to spend a lot more time on it. It is an issue for the whole Parliament to discuss.

Alex Cole-Hamilton

Will the member take an intervention?

The Convener

We are not going to have interventions, Mr Cole-Hamilton. You will have an opportunity to sum up at the end of the debate.

Gail Ross

I agree that it is anomalous that people in positions such as ours, with the powers and responsibilities that we have, are not subject to PVG checks or something similar. However, having listened to what Mr Cole-Hamilton had to say, I am not any clearer about how the proposal would work in practice. He noted that, in councils, the test pertains to people who sit on committees that might deal with vulnerable groups. However, I do not agree that that relates to MSPs. Certainly, I would never put myself in a position in which I was alone with a child or vulnerable person in that way; I would always make sure that someone else was there. Life might get in the way, as Mr Cole-Hamilton said, but some adjustments have to be made to ensure that that never happens.

I sympathise with the intention behind the proposal, but the fact is that we need to go into the issues in a lot more depth. It is an issue of parliamentary standards and should therefore be discussed by the whole Parliament rather than dealt with by us in half an hour.

The Convener

Mr Greene, do you want to contribute?

Jamie Greene

Yes, and I apologise for any confusion about procedure.

I have a few questions for Mr Cole-Hamilton, which he can respond to in summing up. Would the proposed test take place before, during or after election periods? What would happen in the case of any snap elections such as the ones that we have had over the past few years? Would the test apply only to candidates who are standing in Scottish seats, even if they are members of other institutions?

Would the provisions apply to MPs who were elected in England and who were working in Scotland temporarily or otherwise? If a member of any elected body refused a PVG check at any point, would they be committing an offence? If they failed a PVG check, how would that affect their ability to carry on with their duties? Alex Cole-Hamilton said that they could not be unseated but would be restricted to undertaking certain types of role unless adjustments were made or they were supervised. I see gaping holes in that analysis.

I ask those questions in a positive spirit because, like Gail Ross, I think that there is a lot to be said for the member’s approach, and his long-standing interest in the subject is obvious. We share the member’s concerns, but the issue seems a much bigger one that will have ramifications outside this room and, indeed, the Parliament. To do the proposal full justice, therefore, it should go through a due process of scrutiny. We simply do not have time to do that in the short time that we have for scrutiny in stage 2 proceedings.

The Convener

A number of members want to speak. Mr Johnson is next.

Daniel Johnson

Mr Cole-Hamilton began by raising the question of his motives. I do not question those for a moment. Mr Cole-Hamilton’s commitment to child protection and children’s issues is beyond question. He should not be questioned or criticised for his attempt to shift the boundaries of what we attempt to do with the bill and generally with the legislative process. He is right that we must ensure that we have the highest levels of scrutiny and protection with regard to roles in which people have the opportunity to exert control over and influence children and young people.

However, he said a number of things about the nature of our role that I would question and, indeed, think are questionable and dangerous to state. He stated that, by virtue of our roles as MSPs, we can gain unsupervised access to children should we wish to have it—I think that that was how he put it. I categorically state that that is incorrect. Anyone who thinks that, by virtue of being an MSP, they have a right to have unsupervised access to children or an expectation of it is categorically wrong, and it is a dangerous assertion to make. We should be looking at what is an appropriate way for us to undertake our business. I do not think that we should conduct our business in a way that requires unsupervised access.

As I said in talking about Mr Greene’s amendments, we need to look at why and when people are required to have a PVG check under the bill. The bill seeks to rationalise that around roles, which is correct. We do not want to have a situation whereby PVG checks are required whenever someone might happen to have fleeting contact with children. The bill seeks to structure its requirements around situations in which someone has necessary and unavoidable unsupervised contact with children or has the ability to manage and administer the systems in which such contact takes place.

I do not believe that that situation pertains to MSPs. What is more, I do not think that it is advisable for it to do so, and I would challenge a comment that Mr Cole-Hamilton and other members made in that regard. Whether we are talking about a child or a vulnerable adult, it is not sufficient simply to have a staff member present. For practical and communication purposes, we need someone present who is responsible and has caring duties for that individual. If we have a surgery meeting with a child or vulnerable adult, it is important that a responsible carer is present so that we can confirm that our understanding of the case is what was intended to be communicated. However, that is not always straightforward. Therefore, before we even get to the question of whether it is appropriate to have unsupervised access, I do not think that that is a sensible or good way to get information or to communicate. However, I also consider that it is not sensible or appropriate for us to have such access.

In that regard, our role is substantially different from the role of councillors. Councillors may require PVG checks not by virtue of their role as elected representatives or the fact that they may hold surgeries, such as we do, but because they are responsible for administering many of the social work and education institutions, organisations, systems and schemes that have direct responsibility for looking after, caring for and supervising children in local authority areas.

Ultimately, we need to consider what the PVG scheme is for. It is to inform employers and those organising the supervision of children. It is there not to be a system of vetoes or to debar people but to provide relevant information to those who administer the systems.

I cannot understand where the information on elected representatives would go in order to allow someone to make an informed choice. We are in an odd and unusual position, as we do not have a boss—we are not employed in that sense. We do not have an employer or manager who can use a PVG check to decide how to structure our role. A PVG check would therefore be used as a veto, in precisely the way that we do not want those checks to work.

It would be dangerous to use a PVG check as a passport that gives access to vulnerable people. Using it in those circumstances and in that way runs the risk of doing that. Furthermore, given that the scheme is administered formally by the Government, we would be placing ministers in an invidious position of presiding over and having access to information on fellow elected representatives that is provided in the PVG certificate as well as information that is not included in it. That has serious constitutional implications, which we should not take lightly.

I have spoken directly to a number of organisations that are interested in these matters and that have provided evidence to the committee on the bill. They agree with me that, although the motivations are worthy and understandable, the consequences and other considerations are serious, so they have significant concerns.

Moreover, it is not appropriate for us to expect to carry out unsupervised contact in that way, let alone to do so. The thought that somehow we expect that—if it exists—should be challenged. That is a matter for the Standards, Procedures and Public Appointments Committee. I strongly suggest that, if there is any question of that being the case, a rule that we are not to have unsupervised contact with vulnerable people should be added to the code of conduct for MSPs.

Mr Cole-Hamilton talked about work experience. That is the one other situation in which such contact could conceivably happen. Unfortunately, work—whether paid or unpaid—is excluded from the bill’s provisions. There is a bigger question about whether work experience should be considered further. However, the consequences and the implications of requiring all those who are involved with people doing work experience in their businesses or organisations to have PVG checks would be far beyond the scope of what we have taken evidence on or considered.

For those reasons, with regret, I cannot support the amendments at this time.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

My colleagues have covered much of what I was going to say. I support and agree with them. I have one question. Mr Cole-Hamilton said that he thought that not taking this action would be a lost opportunity for a decade. I do not believe that that would be the case. Will the minister, in summing up, confirm that that will not be the case?

Alex Neil

There is almost consensus among committee members. I, too, do not question Alex Cole-Hamilton’s sincerity or motivation. I know that he has a long background in this area of activity, and it is quite right for him to air his concerns.

I have several points to make. First, I think that the proposal is alien to the purpose of the bill. If there is a case for registering elected members, there is almost a case for having the whole population on the PVG register. That would totally dilute and divert resources away from the areas in which we need to focus resources. It is contrary to the main purpose of the bill.

Secondly, if we include the provision in primary legislation, there is a real danger that it will become a political football for people to kick—not just against their political opponents, but perhaps even against people in their own party. That would do no service to children or other vulnerable people.

Thirdly, to pick up on Daniel Johnson’s point, it is fair for us to ask the Standards, Procedures and Public Appointments Committee to review the code of conduct for MSPs and to establish whether there is any need to amend or add to it. The code of conduct is legally enforceable and we are all subject to the law; at the end of the day, if we do anything untoward or even if we are suspected of doing anything untoward in relation to children or other vulnerable people, the law can take care of that and I am absolutely sure that it would.

I totally respect Alex Cole-Hamilton’s motivation and sincerity, but I think that this is the wrong way to tackle what might become an isolated incident. To the best of my knowledge, in 21 years in this place, no issue of this nature has arisen. That is not to say that it could not arise in the future, but that is a matter for the SPPA Committee to look at by reviewing the code of conduct and making sure that any loopholes are addressed. That would be a proportionate way of dealing with the issue rather than including the proposal in the bill.

Ross Greer

Like colleagues, I respect the work that Mr Cole-Hamilton has put into this. I am a PVG scheme member and, like Mr Cole-Hamilton, I have undergone safeguarding training for the purposes of youth work. I therefore appreciate what he is trying to achieve. I do not want to repeat points that colleagues have made, because I think that there is an area of consensus on the committee.

There are a couple of additional issues that are worth raising. The very short debate that has been had on the issue so far has essentially conflated the role of all elected representatives. However, these are all distinctly separate roles; the issue of MSPs’ competence to legislate on the matter has already been touched on. I would like to distinguish between the role of an MSP and that of a councillor. The Parliament does not run schools; we do not run care homes; and we are not responsible for the inspection of such facilities. That is not to say that, for that reason alone, MSPs should not be required to undergo something similar to a PVG check. However, it comes back to the core point that a number of members have made. This is an incredibly complicated debate with significant repercussions and we have simply not had the opportunity to explore all the issues sufficiently.

I appreciate what Mr Cole-Hamilton is trying to do. Staff have raised concerns with me about what the implications might be for MSP staff. Again, such issues could be teased out and thrashed out. Those concerns included whether additional responsibility or expectation would be put on staff. Also, would additional resource be deployed if an MSP were to fail a PVG check? If additional resource had to be deployed, how could that possibly be kept confidential in the public environment that we work in? Those are all questions to which there might be entirely satisfactory answers, but this is not a setting in which we can satisfactorily thrash all that out.

If Mr Cole-Hamilton wants to pursue the proposal, I urge him not to press it now but to work on it with others. I would be particularly interested in hearing the position of the Children and Young People’s Commissioner Scotland, the Law Society of Scotland and Clan Childlaw, but there also needs to be a much wider debate for Parliament and for our public institutions as a whole. Despite what I have said about a commitment to thorough safeguarding procedures, we should always be instinctively sceptical of anything that would create a barrier to elected office, even if it was a cultural barrier that came about as an unintended consequence of a valiant effort such as this.

As I said, I urge Mr Cole-Hamilton not to press his amendments today.

Iain Gray (East Lothian) (Lab)

I agree with the comments that colleagues have made about application of the PVG scheme to elected members. I will not exercise those arguments again, but I want to focus for a moment on the amendments that would extend the requirement to cover political activities. In the first contribution to the debate on the group of amendments, Gail Ross made the point that, although the principle seems straightforward and worthy, the more we examine the amendments, the greater the consequences that flow from them appear to be. For that reason, they need careful consideration, which we will not be able to provide properly at this stage.

I have three questions for Mr Cole-Hamilton about the development of the amendments. First, what consultation has he undertaken with councillors, the Convention of Scottish Local Authorities, MPs, MSPs, the Electoral Commission and other bodies that will have an interest in a requirement being placed on candidates? Secondly, how would his proposed system operate for those who stand for election as independents and not as members of political parties? That is relatively unusual in parliamentary terms, but there are local authorities where almost all the contests are between independents.

My third question is on competence. I appreciate that Mr Cole-Hamilton has said that, in his view, this is an issue of child protection, which is devolved, but it seems to me that there is a strong counter-argument in that the amendments would place a requirement on candidates in UK elections, over which we do not have competence. What independent legal advice does Mr Cole-Hamilton have to support the position that he has put to us?

Liz Smith (Mid Scotland and Fife) (Con)

I record my thanks to Alex Cole-Hamilton, who is, I believe, pursuing his proposal with the best intentions. I sat on the committee at the time—in 2008 or 2009—when he provided us with information on the subject as a witness, and I understand where he is coming from.

My concerns relate to where the responsibility and, by definition, the accountability of the Parliament and the political parties would stand. In that regard, I will cite my role: I have been in the job of chief whip for only three weeks, but I can see a lot of contradictions and concerns—and perhaps a conflict of interest—between the role that the Parliament would have and the role that political parties would have with respect to who was responsible for making decisions about PVG checks and how that information would be passed from one to the other. I foresee a lot of difficulties with that.

I agree with Iain Gray that it is incumbent on us all to ensure that there is legal advice. I am not sure whether Mr Cole-Hamilton has taken specific legal advice, as opposed to advice from the children’s commissioner, on how his proposals would work. However, I am not convinced that they are workable. The issue for me is about the responsibility that people would have to take with regard to PVG checks and any information that was forthcoming from them, especially should someone not live up to the standard and fail the test. Would that come down to the political parties? In most cases, they are responsible for deciding whether people are fit to stand for office. Alternatively, would it be a decision for the Parliament, which would then report to the political party? I think that there are a lot of complex tensions there.

I agree with the points that have been made about the implications of the amendments for MPs and other jurisdictions. I am not in a position to vote on the amendments, but I have grave reservations about their workability. There are serious concerns that they could make this Parliament’s workings more complex than they need to be, and they raise a lot of issues to do with how the proposal relates to political parties. That is my big concern.

The Convener

Before I bring in the minister, I will make a comment. Mr Cole-Hamilton gave the specific example of an elected representative travelling with someone who was on work experience. My local authority’s guidelines make that impossible, because we are specifically instructed not to be alone with a young person who is on work experience. I highlight that to illustrate again that there is a lot of work to be done on the matter. We need to work with COSLA and other organisations to get it absolutely right. However, I thank Mr Cole-Hamilton for bringing the issue to the committee.

I invite the minister to comment.

Maree Todd

The amendments are well intentioned in their aim, and I thank Alex Cole-Hamilton for raising an important issue. I have listened very carefully to the debate and am grateful for the opportunity to explain the Scottish Government’s position.

The amendments present a number of challenges that have very significant constitutional implications. They have not been subject to consultation with the public or with the Parliament, and I firmly believe that it would be better if Alex Cole-Hamilton raised the matter with the Standards, Procedures and Public Appointments Committee, or even with the Presiding Officer, so that that committee or the Presiding Officer could look at it on behalf of the Parliament. I am absolutely prepared to work with the Parliament to find a solution, but I do not think that the provisions of the bill are the appropriate place to do that.

Criminal record checks are a vital tool to support and inform recruitment. For that reason, I am sympathetic to the rationale behind calls for including elected representatives in the PVG scheme. It is important to remember that the scheme is specifically for people who work with vulnerable groups and that there is no pass or fail to disclosure. The presence of disclosure information does not automatically mean that somebody is unsuitable to work with children and protected adults.

Committee members will be aware that there are non-PVG level 2 disclosures as well. In broad terms, the other forms of level 2 disclosure offer the same disclosure information that the PVG equivalent does. However, they do not bring people into the scheme, which requires ministers to bar an unsuitable person from regulatory roles. Non-PVG level 2 disclosures are used for judicial appointments, for instance.

If there is a desire in the Parliament to allow an identified body to have access to non-PVG level 2 disclosures for elected representatives, I am open to discussing how that can be implemented. To achieve that, we would in all likelihood change the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013 to cover elected representatives. That could be done through secondary legislation instead of the bill, but it would require very careful consideration of who would be appropriate to receive a disclosure and make decisions about the suitability of elected representatives to hold office.

As I have previously said, criminal record checks can be only one aspect of safeguarding, and no organisation should ever be solely reliant on them in protecting vulnerable people. I agree with Mr Cole-Hamilton that there are very painful lessons to be learned from the independent inquiry into child sexual abuse.

It is worth while for us to take a moment to reflect on the lessons that we have learned from the case of Cyril Smith MP. That case clearly illustrates an inadequate institutional response to allegations of child abuse. As such, it shows us precisely the kind of problem that Alex Cole-Hamilton is trying to solve.

Cyril Smith was never convicted in his lifetime, but allegations of child abuse, including reports to the police, were made against him over four decades. It is possible that a criminal record check would have contained other relevant information relating to that, but it is also possible that it would not. When we reflect on his case, it is very clear that safeguarding children is about much more than a criminal record check. It is everyone’s responsibility to protect children, and a key part of safeguarding is recognising and responding to allegations of abuse.

What are the responsibilities of all of us when allegations are made? In Cyril Smith’s case, it is clear that people around him did not feel that it was their responsibility to respond to allegations. It is not at all clear that a criminal record check would have protected children in that case. A different response from those to whom allegations were made would have protected children.

That is why I would advocate a more holistic response to the problem than just a criminal record check. I agree with the members who have said that in most situations it is best practice to have at least two adults present when they are working with children and young people. I question whether there is ever any need for children to be unsupervised while with an elected representative and I advocate that we should work together as a Parliament to ensure that safer working practices are in place to avoid that.

I turn to Mr Cole-Hamilton’s amendments. He said that he wants all elected representatives in Scotland to be subject to a PVG check and membership. The amendments also seek to bring into the PVG scheme people who hold positions of responsibility in political parties. However, the amendments will not achieve their aim for elected representatives, because they will not bring all elected representatives into the PVG scheme in relation to both the children’s and adults’ workforces.

In relation to children, some elected representatives may never carry out the activities that are described in proposed new paragraph 30A. They could organise their constituency and other business so as not to have unsupervised contact with children. Many of us have stated that that is what we currently do. Even if an elected member has contact with children, they must take steps to ensure that the session or event always takes place in the presence of a responsible person, meaning that the child would not be unsupervised. If contact with the child is not unsupervised, amendment 222 means that the activity is not within the scope of the PVG scheme.

Similarly, the amendments will not have the effect of bringing all elected representatives into the PVG scheme in relation to carrying out regulated roles with adults. Again, it is entirely possible that the elected representative will never engage in the activity described because they may choose not to run sessions or events involving protected adults. There is the completely unacceptable risk that protected adults would have fewer opportunities to engage with their elected representatives—for instance, by being excluded from events run by elected representatives who were not scheme members and were concerned about the implications of inviting them. There is also the question of how the elected representative would know whether any given session or event included a protected adult, since the definition relies primarily on private and intangible characteristics.

With amendments 226 and 229, Alex Cole-Hamilton appears to recognise that there are constitutional problems with his proposals. The amendments propose that ministers should make regulations to disapply the offence provisions with regard to elected representatives so that the amendments could apply effectively to elected representatives. However, I have noted that those amendments do not extend to political activities, meaning that, for example, a decision by Scottish ministers exercising their barring functions under the PVG act could in effect prevent a barred individual from standing as a candidate for election in the first place.

The committee should note that the existing powers in the PVG act to disapply the offence provisions for particular types of regulated work have been used only once before. There are regulations that disapply the offence provisions in the context of permanence orders, so that an administrative decision by Disclosure Scotland’s protection unit on behalf of Scottish ministers cannot override a court decision made in the best interests of a particular child by listing an individual who happens to be a foster carer of a child on a permanence order. That is to prevent the individual and the council from committing a serious offence by following the order of the court and allowing the child to remain with the individual beyond the date of the listing decision

That exception clearly applied to a particular situation that was entirely different from the proposed approach for elected officials. The amendment neither delivers PVG membership for all elected members as a certainty, nor necessarily covers the activities that a member might undertake with children as it is simply dependent on whether the children are unsupervised during those activities, making it ambiguous to an elected representative whether they were required to join the PVG scheme and, if so, in relation to which workforce.

Disapplying the offence provisions would remove the benefits of the barring arrangements under the PVG scheme. On that basis, there is no justification for requiring elected representatives to participate in the PVG scheme, because all we would be left with is the state issuing disclosure records. As I have said, if there is a desire in the Parliament for non-PVG level 2 disclosures to include representatives, I am open to discussing how that can happen.

Like other members, I am unclear to whom a disclosure should be made. The amendments make no comment on who would be an appropriate person to assess the suitability of MSPs for a regulated role. There are also difficulties with regard to the public’s understandable expectation of transparency with respect to their elected representatives. The body that would receive the information would not be able to share the disclosure information, including information about listed status more widely.

I invite Mr Cole-Hamilton not to press his amendments but to take up the matter with the Standards, Procedures and Public Appointments Committee. I urge committee members to reject the amendments if they are pressed to a vote.

Alex Cole-Hamilton

I have been asked a lot of questions, and I have a lot to unpack, so forgive me if I take a bit of time.

At the start of my remarks, I referred to my time on the voluntary sector issues unit of the Government implementation group for the Protection of Vulnerable Groups (Scotland) Act 2007. We met weekly for eight months to iron out the kinks of the roll-out of what was a considerable bureaucratic exercise of retrospective checking.

A very charismatic chief executive of a voluntary sector organisation who was an expert in child protection was on that group. Half way through that process, he was convicted of being part of one of the most egregious paedophile rings in Scotland’s history. The man would not have been flagged by the PVG scheme. I mention the case because it shows that with status comes an assumption of probity. He could have gone on to have a political career. Although the PVG scheme might not have caught him in that circumstance, it provides a level of assurance and safeguarding that we currently do not have for any elected member.

Most members have asked about self-policing and said that they would never put themselves in such a situation. I understand and respect that; I also applaud them for it, as it shows that they have safeguarding at the forefront of their minds. However, as politicians, we need to legislate for people as we may occasionally find them, not as we would wish them to be. As such, we have to accept that there are politicians who will not have that probity and that desire for safeguarding, because they might have nefarious intent—and we have heard examples of politicians who have been found wanting in that regard.

Jamie Greene asked several questions, including one about snap elections. My proposals—we have discussed the work around this—are that the checks would form part of the regular vetting process that parties employ in the selection of candidates. I would hope that parties already vet candidates. Under my proposals, someone who is to become a target-seat candidate—or any candidate—in an election, would go through a vetting process. It would be much the same as when someone joins a Scout group or works in a Sunday school, in as much as a PVG check would form part of the usual recruitment and selection process.

On the roll-out of my proposals, that is all open for discussion, and a lot of that could be swept up in that time.

Jamie Greene asked whether the requirement would apply only to Scottish seats. Yes, it would; we have the power to legislate only within Scotland. It would not apply to visiting members of Parliament from other jurisdictions. Why? Because it is not reasonable to expect that they would have cause, during a visit, to have unsupervised contact with either children or protected adults.

What would happen if somebody refused to undergo a PVG check? That is certainly possible; people might take umbrage at being subjected to that manner of check. I would hope that the culture would change such that they are seen as just being part of political life. However, if someone refused a check and went on to undertake regulated work—as we would define it through my amendments—they would be committing an offence and would be subject to the full force of the law.

If someone fails a PVG check, my amendments would allow ministers to make arrangements with the democratic institutions concerned. That is an important point, and several members have asked about it. We are not reinventing the wheel here. There are clear rules of engagement and strata in existing voluntary organisations, including large organisations, as to who receives the information about disclosures or barring certificates. In the Parliament, it would not be the Presiding Officer, because the Presiding Officer is a member of the Scottish Parliament and therefore one of our peers. The chief executive, who is the organ of the Scottish Parliament, would work with the Scottish Parliamentary Corporate Body, and possibly with the Standards, Procedures and Public Appointments Committee, to make provisions to cover the unlikely event that an MSP fails a check.

On Dan Johnson’s remarks about protected adults, it is important that we are careful on that aspect, because the definition of a protected adult is a lot broader than one might think. Someone who is a protected adult does not automatically have a communication support need and they do not necessarily even have a carer. Somebody who is of advanced years and who has comorbidities or a range of conditions would be considered to be a vulnerable adult, but there might be no one else in their life, so it might not be appropriate to suggest that they should be supported by a carer or representative to help with their communications.

When we are elected, we are given no guidance on the rules of engagement that we should employ in the normal course of our work. For example, there is nothing to say that we should not be alone with people, whether we should have the door open or closed and who should sit by the door. No such information is given to MSPs—or, if it is, I have probably not seen it. We should have that information. However, even if there was guidance, there would be no prohibition on the access that we can enjoy. We all have power in our offices. We can all say, “This is going to be a sensitive meeting, so I should take this one alone,” and our staff will not demur. We know the culture in which we find ourselves.

Alex Neil said that my amendments are

“alien to the purpose of the bill”

and would, in a sense, dilute it. He asked why, if we extend the scheme to elected members, we should not then extend it to the whole population. In response, I simply say that the whole population does not have the power and influence that we have as elected members. That is important. People come to us to receive a service—they want us to help them and they need us. Sometimes, they are in abject desperation. Other members of the public never have that leverage over vulnerable individuals, so I reject that argument.

Alex Neil and Dan Johnson suggested that the issue could be swept up by the Standards, Procedures and Public Appointments Committee or through the code of conduct. The code of conduct really only matters after the fact; it kicks in only if we breach it. Therefore, if a member is alone with somebody or has unscrupulous contact with a person, that will be dealt with through the code of conduct only if the code is breached. Using the protecting vulnerable groups scheme would give people confidence that those who serve them as their elected members had been through the check and that there was a level of safeguarding. It would not be foolproof, but it would be there, and it would be more than we currently have.

Ross Greer said that the difference between councillors and members is that we do not run schools or children’s services. That is entirely accurate. However, we visit schools regularly, and we do so with a bit of pageantry. There is quite a lot of excitement and we are made to feel the centre of attention. We have an influence in the rooms that we visit.

Ross Greer and other members said that the proposal is too big for the bill and that we have not consulted on it. It is not big. It would close a small loophole in the original act—the Protection of Vulnerable Groups (Scotland) Act 2007—that made an exemption for politicians and elected members. If the committee wants to take additional evidence on the issue, please do so. If the committee rejects my amendments, please open up evidence again between stages 2 and 3. If my amendments are not agreed to, as I rather suspect will happen, I will write formally to the committee to request that.

The committee still has the time and the necessary parliamentary levers to take the evidence that it needs to in order to test the proposal to get it right. We need to get this right. I get the point that we do not want to put up barriers to people being elected, but people already believe that this barrier exists and are really surprised and shocked to learn that it does not. People understandably assume that, because sports coaches and Sunday school teachers have to get a PVG check, the process already applies to MSPs.

Iain Gray asked me very specific questions. I have carried out a range of consultation activities in my party and I have spoken to council leaders, councillors, members and office bearers in the strata. I have not taken legal advice other than the discussions that I have had with Parliament clerks. Amendment 222 comes from a good place—from my experience, as someone who has done work in the field for a good number of years.

On the question about independent candidates, I understand that there are loopholes and problems, but if we define regulated work as having specific criteria—as I do in my amendments—independent candidates who did not have a PVG certificate and undertook such work would also be committing an offence and so would be subject to the full force of the law. I am certain that there would very quickly be an expectation that such candidates would have a PVG check—if everyone else has gone through a PVG check it would become the norm. Even someone who was running as an independent candidate could expect to undertake that, too—perhaps with guidance from the returning officer. However, I accept that there is a question mark over that one.

Several people have asked about competence. I say it again: Scottish MPs operating in Scotland do not have diplomatic immunity. If, as a Parliament, we say that we cannot impose a requirement on Scottish MPs to have PVG checks, they shall forever have no PVG checks, because no one else is empowered to insist it of them. The House of Commons cannot insist on child protection measures for their MPs that are different from the ones that we have in Scotland. That would be an offence right now because we have not defined their activities as regulated work in a Scottish context. As I say, we are not reinventing the wheel—it is not as complex as some people suggest.

Finally, the minister suggested that my proposal comes out of the blue and that there had been no consultation. However, I raised the issue in Parliament in June 2019, and I raised it subsequently, at the turn of the year, as we started consideration of the drafting of amendments to the bill. The minister brought up Cyril Smith and I understand why she did. As I said at the top of my remarks, this issue affects every party—and, on the basis of that case, my party more than most. Cyril Smith would not have been caught by the PVG scheme, but a PVG check would be one more layer than we have right now. Other relevant information might have tipped off the authorities in his political party that he was an unfit person to field as a candidate.

The minister also asked what would happen if a member had accidental unsupervised contact—if they did not have a reason to believe that there was a protected adult or child and suddenly found themselves in what we have defined as regulated work. The bill already covers that. Section 74 introduces the new section 45C, which provides a defence for when someone did not have a reason to believe that they would be in the proximity of children or a protected adult.

If, in a few years, something happens in a car park at a constituency surgery or behind closed doors in a council office and there was prior evidence that the elected representative concerned posed a threat to vulnerable adults, it would be utterly indefensible for the Parliament to have said, “We don’t need to do that check”—a check that would have raised a red flag to say that that person should not be alone with children or protected adults; it is hard to imagine the fury that would rain down on this place in such circumstances.

We are talking about a simple check that, as I have said previously, is applied to millions of our fellow countrymen and women. It should apply to elected members. I press amendment 222.

The Convener

The question is, that amendment 222 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Wishart, Beatrice (Shetland Islands) (LD)

Against

Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)

The Convener

The result of the division is: For 1, Against 10, Abstentions 0.

Amendment 222 disagreed to.

Amendment 223 moved—[Alex Cole-Hamilton].

The Convener

The question is, that amendment 223 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Wishart, Beatrice (Shetland Islands) (LD)

Against

Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)

The Convener

The result of the division is: For 1, Against 10, Abstentions 0.

Amendment 223 disagreed to.

The Convener

The next group of amendments is on miscellaneous provisions in relation to regulated roles with children or adults. Amendment 150, in the name of the minister, is grouped with amendments 151 to 162, 213, 163, 214, 164 to 176, 215, 216, 177 to 179, 217, 180 and 218 to 220.

If amendment 213 is agreed to, amendment 163 is pre-empted, and if amendment 217 is agreed to, amendment 180 is pre-empted.

Maree Todd

One of the key reforms that the bill makes to the PVG scheme is to replace the concept of “regulated work” as the eligibility criterion for scheme membership with “regulated roles” as a trigger for mandatory membership of the PVG scheme. The shift to “regulated roles” addresses the complexity within the current system and offers certainty about who needs to be in the scheme. It also contributes to the aim of refocusing the scheme on roles that give the postholder an opportunity to exert power or influence over children or protected adults. These amendments have been lodged to ensure that schedules 3 and 4 of the bill are appropriately scoped and that they draw people into the PVG scheme when it is necessary and appropriate. In the main, the same amendments have been lodged for both schedules. To avoid repetition, I will discuss the amendments that occur first in the group, which are mostly in relation to schedule 3 for children; I will highlight the corresponding amendments that relate to schedule 4 for adults.

Amendments 150 to 154 narrow the scope of the exceptions to regulated roles with children

“in the course of a personal relationship”.

In the bill as it was introduced, there is an exclusion for activities that are

“carried out in the course of a family or personal relationship.”

That would mean that a friend who provides paid adult personal care services to another friend would not have to be in the scheme. That is wider than the existing exclusions in the PVG act, which require that, for the family or personal relationship exclusion to apply, there should be no “commercial benefit”. The amendments ensure that the provisions are consistent with the existing exceptions in the PVG act and prevent a potential gap that could be exploited to circumvent the mandatory PVG scheme.

Amendments 164 to 170 make the same adjustments to the exceptions for regulated roles with adults. As I mentioned at the outset, a key driver of the shift from “regulated work” to “regulated roles” is to draw into the PVG scheme those roles where power or influence is exercised over vulnerable groups. Amendments 155 to 157 and 171 to 173 insert into the bill a definition of “exercising power or influence over” children or protected adults. That definition is inserted into the meaning of “contact”, in place of existing references to making decisions that affect children; in conjunction with the activities in schedules 3 and 4 of the bill, it will make it easier to identify whether a role is within the scope of the scheme.

Amendment 158 removes the word “employability” and references to “health or wellbeing” from paragraph 11 of schedule 3 and inserts the word “education”. That refocuses the activities in paragraph 11 to those that are more relevant to services for children. That will ensure that we do not inadvertently bring jobcentre staff into the PVG scheme.

Amendment 174 amends schedule 4 in a similar fashion in relation to protected adults.

Amendment 159 removes “exclusively” from paragraph 20 of schedule 3. The purpose of that is to ensure that, where the premises listed are used by vulnerable groups and non-vulnerable groups, individuals carrying out domestic services in them would still need to join the scheme. Under the bill as introduced, it is only where the premises in paragraph 20 are used exclusively by children that an individual would be required to join the scheme. Where they are used by adults as well as children, an individual would not be required to participate in the scheme. Amendments 159 and 175 address that anomaly.

Amendments 160 and 161 modify paragraph 24 of schedule 3, removing “support services” and replacing those words with a reference to

“advice or guidance in relation to health or wellbeing”

to prevent a wide interpretation of paragraph 24 drawing administrative or backroom staff into the mandatory scheme. Amendments 177 and 178 make the same adjustment in schedule 4.

To address a similar concern around administrative staff, amendments 162 and 163 amend schedule 3, and amendments 179 and 180 amend schedule 4. Those amendments bring in more direct language around providing the various types of activities and services described. That will ensure that the regulated roles are those that are directly involved with children and protected adults rather than those that are involved in making payment arrangements to allow those activities to take place. At present, it could be argued that “contact” includes written communication, if people in such administrative roles sent letters to children or protected adults. Those amendments will avoid drawing such roles into the scheme where that is not necessary or appropriate.

I thank Dr Allan for lodging amendments 213, 214, 217 and 218, as they point to an important observation with regard to schedules 3 and 4. I agree that the insertion of a separate heading for religious activities is helpful. I also note that Dr Allan’s amendments 214 and 218 will, apart from the insertion of the new heading, have the same effect as amendments 163 and 180 in my name. I am not opposed in principle to Dr Allan’s amendments. My officials brought the matter to my attention after Dr Allan raised it with them at the evidence session prior to the stage 2 proceedings, and it was our intention to ask the parliamentary clerks to arrange for headings and italics to be inserted into the schedules administratively, as printing changes to the bill. That would have allowed us to insert a heading and italics above paragraph 27 of schedule 3 and paragraph 19 of schedule 4, creating a separate category of religious activities as distinct from leisure activities. However, Dr Allan’s amendments pre-empt and are consistent with our plans. For further clarity, we can request a new italic heading before paragraph 28 of schedule 3 and paragraph 20 of schedule 4 to denote that they concern sports activities.

I thank Iain Gray for amendments 215, 216, 219 and 220. Amendment 215 will make it explicit in the bill that individuals providing support to a protected adult under a shared lives scheme are carrying out a regulated role. Amendment 220 provides definitions of “shared lives agreement”, “shared lives carer” and “shared lives scheme” for the purpose of amendment 215. In his evidence before the committee, Ben Hall from Shared Lives Plus drew parallels between shared lives carers and foster carers. Mr Hall acknowledged that shared lives carers will be brought into the mandatory PVG scheme by some of the other activities in schedule 4. I agree with that position, but I recognise that Iain Gray’s amendments offer a helpful addition that captures the uniqueness of the shared lives model of care. Accordingly, I have no objections to amendments 215 and 220.

Amendments 216 and 219 will bring other individuals aged 18 or over into the mandatory PVG scheme by dint of who they live with. Under the current legislation, an enhanced disclosure with suitability checks—that is, a check of the barred list—can be required for an individual over the age of 16 who resides in the same household as an individual who is being assessed as to their suitability to be a foster carer within the meaning of section 96 of the Protection of Vulnerable Groups (Scotland) Act 2007. Amendments 216 and 219 go much further than that. They would have the effect of bringing individuals aged 18 or over into the PVG scheme due to who they live with rather than as a result of the role that they actively carry out. Therefore, I do not consider amendment 216 to be appropriate.

I agree that there should be parity between individuals who reside in the same household as a foster carer or a shared lives carer, and that the latter should be eligible to receive a level 2 disclosure. Eligibility for level 2 disclosures without PVG membership is not set out in the bill; instead, it will be a matter for secondary legislation and will be achieved through an amendment to the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013 as part of the implementation process for the bill. I would be happy to speak further to Iain Gray if he would like to discuss how that work might be progressed.

If Dr Allan moves his amendments 213, 214, 217 and 218, I ask committee members to support them.

If Iain Gray moves his amendments 215 and 220, I ask committee members to support them.

I urge Iain Gray not to move his amendments 216 and 219. However, if those are pressed to a vote, I ask committee members to reject them.

I move amendment 150.

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

Amendments 213, 214, 217 and 218 in my name deal with two relatively minor but nevertheless important issues. As the minister said, the amendments are to schedules 3 and 4 to the bill, where, at present, religion is classed under leisure activities. I am attempting through my amendments to address, first, an equalities issue, in that members of faith groups are unlikely to think of their activities as being in the same bracket as, say, a golf club, so the term “leisure activities” is probably unhelpful. Secondly, and more practically, a number of faith communities have contacted me to say that that classification risks causing confusion when people engage with the legislation in future and that it would be easier to correct the categorisation of religious activities.

With that in mind, my amendment 213 would strike the religious activities paragraph under the leisure activities section of schedule 3, which is at line 21 on page 82 of the bill. Amendment 214 would add a new religious activities section at the end of schedule 3, at line 22 on page 82. Amendment 217 would strike the religious activities paragraph under the leisure activities section of schedule 4, at line 22 on page 87. Amendment 218 would add a new religious activities section at the end of schedule 4, at line 24 on page 87.

By adopting my amendments, I hope that we can simplify and make more efficient the process of disclosure within our faith communities. As I said, those are small points, but I hope that my amendments will be helpful. If nothing else, minister, I think that we have learned about the importance of italics in legislation and will watch out for them in future.

Iain Gray

The minister has largely already covered the purpose of amendments 215 and 220, which, as she indicated, arose from evidence given by Ben Hall of Shared Lives Plus in the course of the stage 1 scrutiny of the bill. Shared Lives Plus’s concern was that the care model that it pursued should be properly caught by the legislation. It saw that as largely paralleling the arrangements for foster families, with the difference being that, in its model, on which 15 schemes now operate in Scotland—the number grows each year—those who live with families are not children but are often adults with learning disabilities or, increasingly, adults who suffer from dementia in their later years.

I have listened carefully to the minister’s comments, on the basis of which I am prepared to not move amendments 216 and 219 when the time comes. I am also prepared to work with her and with Shared Lives Plus, prior to stage 3, to ensure that we achieve that objective. If the minister thinks that that could be done better through regulations, I am sure that the organisation would be prepared to discuss that.

The Convener

As it appears that no other member wishes to comment, I ask the minister whether she wishes to wind up.

Maree Todd

No, convener—other than to say that I would be very willing to work with Iain Gray, Shared Lives Plus and other stakeholders to ensure that we get those amendments right.

Amendment 150 agreed to.

Amendments 151 to 162 moved—[Maree Todd]—and agreed to.

The Convener

I remind members that if amendment 213, in the name of Dr Allan, is agreed to, amendment 163 is pre-empted.

Amendments 213 and 214 moved—[Dr Alasdair Allan]—and agreed to.

Amendment 224 moved—[Alex Cole-Hamilton].

The Convener

The question is, that amendment 224 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Wishart, Beatrice (Shetland Islands) (LD)

Against

Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)

The Convener

The result of the division is: For 1, Against 10.

Amendment 224 disagreed to.

Amendment 225 moved—[Alex Cole-Hamilton].

The Convener

The question is, that amendment 225 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Wishart, Beatrice (Shetland Islands) (LD)

Against

Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)

The Convener

The result of the division is: For 1, Against 10.

Amendment 225 disagreed to.

Amendment 226 not moved.

Schedule 3, as amended, agreed to.

Schedule 4—Schedule to be substituted for schedule 3 of the PVG Act

Amendments 164 to 176 moved—[Maree Todd]—and agreed to.

Amendment 215 moved—[Iain Gray]—and agreed to.

Amendment 216 not moved.

Amendments 177 to 179 moved—[Maree Todd]—and agreed to.

The Convener

I remind members that if amendment 217 is agreed to, amendment 180 is pre-empted.

Amendments 217 and 218 moved—[Dr Alasdair Allan]—and agreed to.

Amendments 227, 228, and 219 not moved.

Amendment 220 moved—[Iain Gray]—and agreed to.

Amendment 229 not moved.

Schedule 4, as amended, agreed to.

Section 76—Meaning of “protected adult”

The Convener

Group 5 is on the meaning of “protected adult” in the PVG act. Amendment 181, in the name of the minister, is grouped with amendments 182 to 185.

Maree Todd

The existing definition of “protected adult” in the PVG act relies on a person being in receipt of a particular type of service, which can be a health, social, community or welfare service. Experience of operating the PVG scheme has shown that that definition is challenging in practice. Accordingly, when the policy for the bill was being developed and consulted on, it was proposed to amend the definition of “protected adult” in section 94 of the PVG act and insert a new schedule 3 to the PVG act. That will allow the new definition of “protected adult” to tie in with the new concept of regulated roles, which will replace regulated work.

However, stakeholders’ responses to the bill have indicated that the move away from references to specific types of services and replacing those with references to the characteristics of the individual who is in receipt of them—illness, old age, physical or mental disability and a resulting impaired ability to protect oneself from harm, or a requirement for assistance with the activities of daily life—may lead to some people falling outside the definition in the amended section 94 who would have been caught by the current section 94.

Amendment 181 replaces the words “old age” with “infirmity or ageing” as a factor that, if it results in an individual having an impaired ability to protect themselves from physical or psychological harm, or in an individual requiring assistance with the activities of daily living, will mean that they meet the definition of “protected adult”. Stakeholders reported concerns about the adverse connotations of the term “old age”. The revised wording of “infirmity or ageing” clarifies who may be brought into the scope of being a protected adult.

Amendment 182 removes the word “significantly” from the test of whether the person’s ability to protect themselves from physical or psychological harm is impaired. Scottish Women’s Aid raised concerns that reference to a significant impairment would lead to vulnerable people being excluded from protection. Amendment 182 responds to that concern.

Similarly, amendment 183 responds to feedback that individuals who are homeless or affected by domestic abuse should be included in the definition of “protected adult”. Amendment 183 brings such individuals within the meaning of “protected adult”, but in relation only to a regulated role that involves the carrying out of the activities that are mentioned in paragraph 16 in schedule 4 to the bill, which include provision to protected adults of counselling, therapy and advice or guidance in relation to health or wellbeing. That restriction is necessary to ensure that we do not disproportionately draw people into the scheme.

As noted, the definition of “protected adult” is complicated and has been difficult for PVG users to navigate in practice. Amendment 184 affords ministers a degree of flexibility and future proofs the bill so that amendments can be made to the definition of “protected adult” to ensure that sufficient coverage is provided by the PVG scheme. The amendment lists the same types of services that are currently provided for under section 94 of the PVG act.

Amendment 185, which is technical, provides a meaning for “domestic abuse” and, as such, is consequential on amendment 183. It also contains consequential amendments to provisions in section 94 of the PVG act that define certain terms, to ensure that those definitions continue to work in the light of amendment 184. The definitions themselves would not be altered in any way. However, we have listened carefully to the views of stakeholders and I am aware that there are still some concerns about the amendment. I am interested in hearing members’ views and I am happy to work with members to find a solution before stage 3. I will not move amendment 185.

I move amendment 181.

Beatrice Wishart (Shetland Islands) (LD)

I note that the minister has said that she will not move amendment 185. I am a trustee of Shetland Women’s Aid, which comes under the umbrella of Scottish Women’s Aid. On amendment 185, there is still concern about the definition of domestic abuse, so I am encouraged by the minister’s comments that work will continue on that issue.

Jamie Greene

I echo Beatrice Wishart’s comments, and I thank Scottish Women’s Aid for its submission to members, which I found helpful. Originally, the Scottish Conservatives had planned to support amendment 185 if it was moved by the minister but, in light of the comments that have been made, it feels as though there is still some work to be done.

That raises a wider issue on the redefinition of vulnerable individuals. For example, after my initial glance at amendment 185, I had questions about proposed new section 94(2A)(a) in the PVG act, which refers to an individual who “has experienced” abuse. I was asked a question about a person who had, historically, unfortunately been the victim of abuse, as defined in the amendment, being caught under the current definition of a vulnerable person, even if the abuse took place many years or decades ago and the person wished to move on in life and not to be defined as a vulnerable person.

I wonder whether amendment 185 as drafted encompasses all scenarios, although I appreciate that it is difficult to encompass all individual circumstances in legislation. We all want to get this right, but we do not want to catch people under the definition in legislation of those who are vulnerable or need to be protected simply by default due to historical circumstances. I ask the minister to reflect on that.

The minister mentioned flexibility, specifically in relation to amendment 184. I appreciate that flexibility seems to be required, but what scrutiny will be afforded to the committee or the Parliament if ministers seek to use that flexibility to redefine any of the definitions that she detailed?

Maree Todd

Officials have discussed this group of amendments with Scottish Women’s Aid. I am aware of its comments, and I acknowledge its concerns that the drafting of amendment 185 could be unduly narrow compared with people’s common understanding of what might amount to domestic abuse. It is important for us to provide a definition in the bill because, without that, there would be uncertainty about who is covered by amendment 183.

On amendment 185, we sought to tap into definitions that are used in existing legislation to help to define the term, and such definitions are intended to be broad. In view of stakeholder feedback and today’s debate, I will not move amendment 185. I will instruct my officials to continue to engage with relevant stakeholders, including Scottish Women’s Aid, ahead of stage 3 to see whether we can lodge a revised amendment. As ever, I am more than happy to work with any committee member who wishes to be involved in finding an appropriate solution that addresses the concerns that stakeholders have raised.

Amendment 181 agreed to.

Amendments 182 to 184 moved—[Maree Todd]—and agreed to.

Amendment 185 not moved.

Section 76, as amended, agreed to.

Section 77—Conditions imposed on scheme members under consideration for listing

The Convener

The next group is on consideration for listing. Amendment 186, in the name of the minister, is grouped with amendments 187 to 195.

Maree Todd

Section 30 of the PVG act provides that ministers must inform certain persons of a decision to consider someone for listing, to list someone or, as the case may be, not to list someone. Those persons are the individual concerned, organisations for which the individual undertakes regulated roles and relevant regulatory bodies.

As it stands, the bill will allow ministers to notify an individual who employs others but not in the course of business that a scheme member is being considered for listing and has standard conditions imposed. Those personal employers, as they are known, are typically individuals who, for example, pay for their child’s music tutor or employ a carer in the context of self-directed support. However, the bill and the PVG act, as they stand, do not provide for ministers to notify those same personal employers of the final outcome of the consideration process; that is, whether someone carrying out a regulated role for them has been listed.

The amendments address what I consider to be a potential safeguarding loophole and improve the protections for private individuals who employ PVG scheme members. On a related issue, the amendments make it clear that personnel suppliers are covered by the section 30 notification provisions in the PVG act.

There are technical amendments in the group to ensure that personal employers are not criminalised under the bill in relation to a failure to ensure that a scheme member complies with the conditions that are imposed on them. The amendments make it clear that personal employers are not covered by those offences, which is consistent with the other offence provisions for employers under the PVG act that apply only to organisational employers and personnel suppliers.

I move amendment 186.

Amendment 186 agreed to.

Amendments 187 to 190 moved—[Maree Todd]—and agreed to.

Section 77, as amended, agreed to.

Section 78—Notice of consideration for listing

Amendments 191 to 193 moved—[Maree Todd]—and agreed to.

Section 78, as amended, agreed to.

Section 79—Withdrawal from Scheme when under consideration for listing

Amendments 194 and 195 moved—[Maree Todd]—and agreed to.

Section 79, as amended, agreed to.

Sections 80 to 83 agreed to.

After section 83

The Convener

The next group is on the PVG act and removal from the lists. Amendment 196, in the name of the minister, is grouped with amendments 197 and 198.

Maree Todd

The amendments concern elements of the PVG act barring service and how they can be improved. The amendments are principally concerned with ensuring that the right people remain on or are removed from the barred lists.

Amendment 196 changes the test in section 25 of the PVG act relating to applications for removal from the lists, so that it more explicitly reflects the filtering nature of the provision. Disclosure Scotland’s experience of applying the competence test under section 25(3)(b) of the PVG act is that the threshold for when ministers should consider the application is insufficiently clear. That is because there can be changes in circumstance that would not be relevant to a determination by ministers about whether the applicant was no longer unsuitable to carry out regulated roles with children or adults.

For instance, if an individual changes their career, that is a change of circumstances, but not one that is relevant to the decision that ministers must make under section 26 of the PVG act on whether the individual is no longer unsuitable to carry out a regulated role with children or adults. An application that includes details of such a change in circumstances would be incompetent, as it would not meet the threshold test under section 25(3)(b). On the other hand, where a change of circumstances is relevant to the test applicable under section 26, the threshold is cleared, and that application should be properly determined under section 26 on the merits of the specific change. Amendment 196 makes it clearer that a change in circumstances must be relevant to the determination that is to be made under section 26 of the PVG act.

Subsection (4) of the new section introduced by amendment 196 repeals sections 25(5) and 25(6) of the PVG act. Disclosure Scotland’s experience is that sections 25(5) and 25(6) might serve to confuse applicants and that they create a false impression that a conviction being quashed will automatically lead to a person’s removal from the list. That is not the case, since there are different standards of proof for a criminal finding of guilt beyond reasonable doubt and the civil standard for listing decisions, which is the balance of probabilities. Therefore, although a conviction being quashed might be a relevant change in circumstances that would lead to a competent application for determination under section 26 of the PVG act, it would not always be relevant. The revised explanatory notes will make that clear.

Amendment 197 expands the possibility of late representations or additional information being used after a listing decision is made, so that ministers will have the option to remove that person from the list if they are satisfied that they are not unsuitable to carry out regulated roles of the type that they were listed for. That addresses our concern that some people fall into the gap in the removal provisions in the PVG act and that there is no way for them to be removed from the list, even if Disclosure Scotland thinks that they should be.

For instance, an individual who is invited to make representations, but who did not do so for whatever reason, has no basis for asking ministers to remove them unless they can establish a change in circumstances and make an application for removal under section 25. That is because the test under section 29(1)(b) of the PVG act is that ministers must be

“satisfied that the individual should not have been listed.”

The test of whether someone “should” not have been listed is not necessarily the same as a test of whether they “would” not have been listed if the information had been available at the time of the original decision. As it stands, the only remedy for someone in such a situation would be to appeal against listing, under section 21 or section 22 of the PVG act. We are seeking to eliminate that step so that, should late representations or additional information become available subsequently, ministers have the discretion to remove that person from the list if they are satisfied that they are no longer unsuitable to carry out regulated roles of the type that they were listed for.

Amendment 198 relates to the information-gathering powers that are available to ministers under sections 18, 19 and 20 of the PVG act. The power to obtain information ends when the initial listing decision has been taken, except where there is a formal application for removal from the list under sections 25 and 26 of the PVG act. In other circumstances where there is any future consideration by ministers regarding whether an individual ought to be removed from the list, including under new powers that are provided for in amendment 197, ministers have no power to obtain information from the police or any other bodies.

The new provision broadens the powers to obtain information to apply in relation to all decisions that are to be made by ministers, including decisions about whether someone should stay on the list at a later date. It is appropriate for ministers to have information-gathering powers when they are making a decision at a later date—when considering, for instance, an appeal against listing, an application for removal from one of the lists or whether to remove an individual from one of the lists. Ministers’ role at those subsequent stages of decision making is the same in substance as it is when the original decision to list an individual is made. The information-gathering powers are necessary and appropriate in the context of ministers’ statutory functions to operate the PVG scheme and barring service.

Amendments 196 to 198 should therefore be seen as a package of changes that ensure that the right people remain on the barred lists and the right people are removed from those lists.

I move amendment 196.

The Convener

Jamie Greene has a question.

Jamie Greene

Thank you for affording me some time to briefly ask the minister a question. There was quite a lot to take in. Members would probably benefit from reading the minister’s comments, rather than listening to them, because they were so technically intense. However, any time I spot the words “ministers’ powers” in legislation, they jump out at me. Are the powers to remove people from the lists ones that the minister can exercise already under the existing legislation, or are they additional ministerial powers?

Using phrases like “where ministers consider it appropriate” or “at ministers’ discretion” injects an element of subjectivity into the process by default. I would have assumed that Disclosure Scotland is fairly watertight. What are the additional powers and why do you need them?

Maree Todd

They are additional powers that align with the powers available to ministers to gather information at the time when the original barring decision is made. We think that it is appropriate for ministers to also be able to gather information when decisions are made whether to remove someone from the list.

I think that that answers your question, but if you have a concern, I am more than happy to consider that between now and stage 3. The powers are simply those required to operate the system as we hope that it should operate.

Amendment 196 agreed to.

Amendments 197 and 198 moved—[Maree Todd]—and agreed to.

Sections 84 and 85 agreed to.

After section 85

The Convener

Group 8 is on offences outside Scotland. Amendment 199, in the name of the minister, is the only amendment in the group.

Maree Todd

Amendment 199 is a technical amendment to ensure that jurisdiction for the new extraterritorial offences in the bill is conferred on the sheriff courts. The policy intent of the provisions in the bill is to bring overseas work that would have been a regulated role if done in Scotland into the PVG scheme where there is a relevant connection to Scotland—for instance, if the employing organisation sending the individual overseas is based in Scotland. It is intended to address situations in which, for instance, a Scottish charity sends aid workers to another country to do what would be considered a regulated role here. The Scottish Government’s intention is that those people should have to be scheme members.

The current drafting is such that the general rules on scheme membership, including the offence provisions, should automatically apply to such overseas roles. They would also apply when an organisation based outside Scotland sends someone to do a regulated role in Scotland. It is necessary to ensure that offences committed outside Scotland can be prosecuted here, to give full force to the new provisions. The amendment ensures that Scottish courts have clear jurisdiction over offences under the PVG act whether the behaviour giving rise to the offence takes place in Scotland or elsewhere.

I move amendment 199.

Amendment 199 agreed to.

Amendment 200 moved—[Maree Todd]—and agreed to.

Section 86 agreed to.

Section 87—Regulations

Amendment 221 not moved.

Sections 87 to 89 agreed to.

Schedule 5—Consequential and minor modifications

Amendments 201 to 203 moved—[Maree Todd]—and agreed to.

The Convener

Group 9 is on consequential amendments to the Age of Criminal Responsibility (Scotland) Act 2019. Amendment 204, in the name of the minister, is grouped with amendment 207.

Maree Todd

Amendments 204 and 207 make amendments to the Age of Criminal Responsibility (Scotland) Act 2019 that are consequential to parts 1 and 2 of the bill respectively. The Age of Criminal Responsibility (Scotland) Act 2019 makes reference to the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 and disclosures issued under those acts, mainly enhanced disclosures and scheme record disclosures.

The bill repeals some sections of the PVG act and part 5 of the 1997 act in its entirety. Amendment 204 replaces those repealed and superseded references with references to the new form of level 2 disclosures that are to be issued under the bill. The amendment also ensures that there is symmetry between the content of a level 2 disclosure and a PVG scheme record. Finally, where relevant behaviour information was originally provided as vetting information by the chief constable, but the independent reviewer determined that it ought not be included in a level 2 disclosure, that no longer amounts to vetting information for the purposes of the PVG act such that it could trigger consideration of listing.

Members will recall that amendments 112 and 202, which were in a previous grouping, introduced a codified set of principles to apply to decisions that are made in applying the two-part test of whether something is relevant and ought to be included in a disclosure certificate. Amendment 204 applies the same decision-making principles to decisions that are made under the Age of Criminal Responsibility (Scotland) Act 2019.

Amendment 207 makes a consequential amendment to section 26 of the 2019 act, so that the definition of “regulated work” is substituted with a definition of “regulated role”, in the light of the new terminology in the bill.

I move amendment 204.

Amendment 204 agreed to.

Amendments 205 and 206 moved—[Maree Todd]—and agreed to.

Amendments 230 and 231 not moved.

Amendment 207 moved—[Maree Todd]—and agreed to.

Schedule 5, as amended, agreed to.

Sections 90 to 94 agreed to.

Long title agreed to.

The Convener

I thank the minister and her officials for attending, and I thank the committee and all members who took part in our scrutiny of the bill at stage 2.

Given a lot of the discussion of amendments that we have had during today’s proceedings, we will be sending a copy of the Official Report to the Standards, Procedures and Public Appointments Committee.

The Presiding Officer (Ken Macintosh)

The next item of business is stage 3 proceedings on the Disclosure (Scotland) Bill. In dealing with the amendments, members should have with them the bill as amended at stage 2, the marshalled list and the groupings of amendments. I remind members that, as usual, the division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for that first division will be 30 seconds. Thereafter, there will be a voting period of one minute for the first division after a debate.

Section 29—Review of removable convictions by the independent reviewer

The Presiding Officer

The first group consists of minor and drafting amendments. Amendment 1, in the name of the Minister for Children and Young People, Maree Todd, is grouped with amendments 2, 3, 20, 21, 27, 28 and 30 to 34.

The Minister for Children and Young People (Maree Todd)

The amendments in this group are minor and drafting amendments, and they do not make any policy changes. They are required, as a consequence of amendments made at stage 2, to provide consistency in drafting between provisions.

Amendments 1 to 3 bring the drafting of sections 29(2), 29(3) and 31(5) into line with that of section 28(2), so that they refer to a review of “the inclusion of” the removable conviction, rather than to

“a review of the removable conviction”

itself or to

“a review ... of the details of a removable conviction”

Amendments 20 and 21 are minor consequential changes to section 73, adding a reference to a provision inserted at stage 2. They simply mean that the persons referred to in new section 45B(4) of the Protection of Vulnerable Groups (Scotland) Act 2007 are to be notified when ministers have decided to extend the scheme member’s participation in the scheme for the discretionary membership period.

Amendments 27 and 28 make technical adjustments to the wording of section 82, which gives effect to amendments to the PVG act to bring that section into line with the drafting approach of other provisions that amend that act.

Amendments 30 to 34 are minor adjustments to the list of offences in schedule 2. They are consequential on amendments made to the offence lists at stage 2. In particular, there is no longer a paragraph 1 in schedule 2, which is a consequence of amendments made at stage 2. References to that paragraph in paragraphs 111 to 115 in part 3 of schedule 2 are redundant and need to be fixed. Amendments 30 to 34 correct those now obsolete references to paragraph 1 with references to paragraph 2, which is now the first paragraph in the schedule.

I move amendment 1.

Jamie Greene (West Scotland) (Con)

I thank the minister for coming back to the chamber with those amendments, which reflect much of the conversation at stage 1, the committee’s stage 1 report and feedback from the stage 2 proceedings. As we go into the stage 3 debate, I will speak further on the wider bill but, at this point, members from these benches will not comment further on groups 1, 2, 3, 5 and 6. We will support all Government amendments that are placed before us at stage 3. However, subject to comments or speeches that are made throughout the debate, we might interject as appropriate, specifically around group 4. The Government can enjoy our support for all the amendments today.

Amendment 1 agreed to.

Amendment 2 moved—[Maree Todd]—and agreed to.

Section 31—Independent reviewer: information and representations

Amendment 3 moved—[Maree Todd]—and agreed to.

Section 34A—Disapplication of provisions of section 4 of the Rehabilitation of Offenders Act 1974

The Presiding Officer

Group 2 is on level 2 disclosures. Amendment 4, in the name of the minister, is grouped with amendments 5 to 19.

Maree Todd

Section 34A was inserted into the bill by way of amendment at stage 2. It is modelled on section 8 of the Age of Criminal Responsibility (Scotland) Act 2019. Section 34A lifts the protections against the normal duty to self-disclose information about spent convictions that is afforded by section 4 of the Rehabilitation of Offenders Act 1974. That is so that someone who has applied for a review, under section 25, of the inclusion of

“a spent childhood conviction or children’s hearing outcome”

has to answer questions and provide honest and accurate information about that conviction or outcome for the purposes of the review. Our intention is to ensure that an individual who seeks review of the inclusion of a removable conviction, whether by Scottish ministers under section 28 or a review by the independent reviewer under section 29, is still required to answer honestly any questions that they are asked by ministers, the independent reviewer or a sheriff regarding the circumstances of their convictions, even after they are spent.

Amendments 4 to 19 cater for reviews of the inclusion of removable convictions in section 34A, bringing removable convictions into line with childhood convictions and children’s hearing outcomes in that section. Amendment 5 is the main amendment that achieves that. The other amendments in the group are technical, consequential amendments to the drafting and structure of section 34A, to reflect the reviews of the inclusion of removable convictions.

I move amendment 4.

Amendment 4 agreed to.

Amendments 5 to 19 moved—[Maree Todd]—and agreed to.

Section 73—Failure to apply for renewal of Scheme membership

Amendments 20 and 21 moved—[Maree Todd]—and agreed to.

Section 74—Compulsory Scheme membership

The Presiding Officer

Group 3 is entitled “PVG Act: power to require organisations to stop using individuals for regulated roles without scheme membership”. Amendment 22, in the name of the minister, is grouped with amendments 23, 24 and 29.

Maree Todd

Amendments 22 to 24 are technical amendments to ensure that there is consistency of approach in relation to the parliamentary procedure to which regulation-making powers are subject.

At stage 2, section 74 of the bill was amended to insert a new section 45DA into the PVG act, creating a new power in connection with the mandatory scheme. Section 45DA(1) provides Scottish ministers with the power to make regulations to require organisations to stop using individuals for regulated roles without scheme membership. It is an offence under section 45DA(3) for an organisation to fail to comply with such regulations.

Section 45DA closely follows the approach in section 35(2) of the PVG act, which provides Scottish ministers with the power to make regulations in respect of stopping organisations from using barred individuals for regulated work. Although section 45DA is based on section 35(2), there is a mismatch in the parliamentary procedure to which those regulations are subject.

By virtue of section 100(3) of the PVG act, any regulations that are made under section 45DA(1) are subject to the negative procedure. However, when read with section 100(4), regulations made under section 35(2) of the PVG act are subject to the affirmative procedure. That issue was highlighted in the supplementary delegated powers memorandum that was for the attention of the Delegated Powers and Law Reform Committee. Accordingly, amendments 22 to 24 have been lodged to resolve that inconsistency by making regulations that are made under new section 45DA(1) also subject to the affirmative procedure. I believe that that is the appropriate level of scrutiny, given that regulations that are made under that section relate to offence provisions.

Amendment 29 also relates to new section 45DA. Proposed new section 47G of the PVG act, which is to be inserted by section 85A(3) of the bill, ensures that Scottish courts have clear jurisdiction over the new offences that are inserted by the bill into the PVG act. That applies in circumstances in which work is done outside Scotland that would be a regulated role if it were carried out in Scotland, or in which an organisation that is based outside Scotland sends someone to do a regulated role in Scotland.

Amendment 29 adds section 45DA into new section 47G to ensure that the offence of an organisation failing to comply with regulations that are made under section 45DA can be prosecuted in Scotland. The amendment ensures that there is consistency between all the new offences that are inserted into the PVG act by the bill.

I move amendment 22.

Amendment 22 agreed to.

Amendments 23 and 24 moved—[Maree Todd]—and agreed to.

After section 75

The Presiding Officer

We turn to group 4, although I foresee a problem. Group 4 is on the PVG act: review and report on application of scheme to elected representatives and political activity. Amendment 39, in the name of Alex Cole-Hamilton, is the only amendment in the group. Alex Cole-Hamilton is not here, and no other member wishes to move the amendment on his behalf. [Interruption.] Mr Cole-Hamilton has arrived just in time.

Alex Cole-Hamilton (Edinburgh Western) (LD)

It gives me great pleasure to apologise to the chamber for a second time today. I had no idea that we would rampage through the earlier groups so quickly. I had to return an important telephone call, but I give my sincere apologies. [Interruption.]

The Presiding Officer

Let us hear Mr Cole-Hamilton.

Alex Cole-Hamilton

Members of the Education and Skills Committee will be familiar with the policy intention behind my amendment 39. Nobody else is allowed to be alone with children or vulnerable adults without a basic check being done first, but there is nothing legally to prevent MSPs from doing that. In fact, they and other powerful figures in politics are explicitly excluded from the provisions. That is wrong. There cannot be one rule for politicians and another for everybody else.

At stage 2, I was disappointed that the amendments that I lodged to change the position were not agreed to. I understand colleagues’ objections, but I hope that, in amendment 39, I have found a way through that might generate more support. Despite the way that the votes ultimately fell at stage 2, I was encouraged by committee members’ comments. There was overall agreement that the matter should be looked into.

Gail Ross agreed that

“it is anomalous that people in positions such as ours, with the powers and responsibilities that we have, are not subject to PVG checks or something similar.”—[Official Report, Education and Skills Committee, 11 March 2020; c 15.]

Iain Gray said that the principle seemed “worthy”. Ross Greer said that he appreciated what I was “trying to achieve” and asked for a “wider debate” to ensure that sensible questions can be given “satisfactory answers”. Jamie Greene told me that he shared my concerns and said that, to

“do the proposal full justice”,

we needed

“a due process of scrutiny.”—[Official Report, Education and Skills Committee, 11 March 2020; c 16.]

I hope that they and other members can see what I am seeking to do with amendment 39. In the current context, the approach in amendment 39 is the least burdensome that I can think of and achieves the objective of a proper discussion.

Ministers would have until the end of June 2021 to establish an expert working group, which could involve doing as little as deciding on its chairperson. Amendment 39 would not place any deadline on when the working group would report. Once it reported, ministers would have a year to reflect on that and report back to the Parliament, thereby giving enough time for further evidence to be taken or for consultations to be done, if that was deemed necessary.

I apologise again for my tardiness.

I move amendment 39.

Daniel Johnson (Edinburgh Southern) (Lab)

I begin by offering some personal advice: if someone is moving an amendment, it sometimes helps for them to sit through all the stage 3 proceedings. However, I will move on.

I had a number of concerns about and criticisms of the amendments that Alex Cole-Hamilton lodged at stage 2. My concerns were principally because the bill aims to simplify the system of PVG checks and prevent there being a simple, transferable passport that enables individuals to have unsupervised access to children. The focus on protected roles rather than protected work is very clear and useful, and his suggestions clouded the issues.

Furthermore, it is problematic to assume that someone has unsupervised access to children by dint of being an elected politician; that is a very dangerous proposition. However, I recognise that the position and office that we hold might lead others to assume that we might be allowed such access, which might lead unscrupulous individuals to infer that we do. Consideration is required, and therefore Alex Cole-Hamilton’s proposals at stage 3 are reasonable.

Whether MSPs should be subject to record checks is an appropriate suggestion, as is looking at whether proposals could be brought forward—

Alex Cole-Hamilton

I heard what Daniel Johnson said about it being very unlikely that members would have unsupervised contact with children. I also heard sedentary mutterings from members around the chamber that they never have unsupervised contact with children or vulnerable adults. However, that is the moral test that members set themselves and the moral threshold that they decide is appropriate.

I am not suggesting that anybody in the chamber would take such a risk. However, the provisions in my amendment are not about upstanding, law-abiding members of the public. We have to recognise that there are bad apples in politics—as there are in every walk of life—who might use their position of power to gain access to children or vulnerable adults. There is no legal, constitutional or procedural impediment in the Parliament to prevent us from having unsupervised contact with children or vulnerable adults, and I believe that the only safeguard that we can put in place is to have the same checking and disclosure system that we use for all other positions of authority.

Daniel Johnson

I thank Alex Cole-Hamilton for that intervention. However, I think that he somewhat repeated his initial proposition, which I find deeply problematic. It is not that there is no impediment; we simply should not have unsupervised access to vulnerable adults or children by dint of our being MSPs. That is quite simple and straightforward, and for him to repeat his point is somewhat dangerous.

Nonetheless, Alex Cole-Hamilton’s point about bad apples was well made. Our position is such that people could infer that we have such a right and, in that narrow regard, I think that his proposal for a working group to be created, a report compiled and propositions looked at is appropriate.

I am happy to support amendment 39.

Jamie Greene

I do not want to dwell on the arguments that we had at stage 2. Amendment 39 is different, and I give credit to Alex Cole-Hamilton for that. I also give him credit for bringing the issue back at stage 3 for the benefit of those who did not sit through the debate at stage 2.

I was a new member of the Education and Skills Committee during stage 2. Indeed, the bill was the first piece of legislation that I considered as a member of the committee. We had a very comprehensive debate on the issue, which we looked into in great detail. Across the committee, there was sympathy with the rationale behind what Alex Cole-Hamilton was trying to achieve—he picked up on that in his comments. There are circumstances where the proposed measures might have a beneficial outcome, but there was consensus that the bill is not the right mechanism to deliver the outcome that he seeks.

Amendment 39 is a substantial amendment, so it deserves our scrutiny in the chamber today. It asks ministers to set up a working group that will report back to ministers, after which ministers will report back to Parliament on their plans. I do not distrust ministers, but my problem with that approach is that it puts into the hands of politicians—indeed, into the hands of the politicians in whichever political party is in government—the power to recommend an alteration to the franchise in relation to who can be a member of this Parliament. Fundamentally, that puts the power into the hands of the wrong people.

I do not think that the amendment will have the outcome—it is a valid one—of dealing with the issue that Alex Cole-Hamilton is trying to address. Politicians are put in all sorts of circumstances in our constituency offices and in the course of our business—Daniel Johnson spoke at length about that and made some important observations in committee. I do not see how the amendment will deliver what Alex Cole-Hamilton is trying to achieve, but I am happy to give way to him if he wants to clarify that.

Alex Cole-Hamilton

I appreciate Jamie Greene’s kind words about what is my second attempt with these provisions. My issue with his remarks is that he suggests that the findings of a working group would somehow alter, as he describes it, the franchise relating to the people from whom we elect our parliamentarians or other elected members. That is certainly not the intention of the amendment; in fact, I do not think that it would be lawful to do that.

My amendments at stage 2 were about ascertaining whether a prospective candidate or a sitting parliamentarian was on the list of people who are barred from working with children or vulnerable adults. The working group might recommend that the Parliament has a duty to ensure that such people never have unsupervised contact—not that they should be barred from standing for elected office. That is an important distinction, which Jamie Greene has not recognised in his remarks thus far.

Jamie Greene

What is the point of such disclosure if it is not to prohibit any individual from standing as a candidate or becoming an elected member?

The second part of the amendment defines the legislation that Mr Cole-Hamilton would want ministers to introduce; it refers to

“a Bill for an Act of the Scottish Parliament”.

It also defines an “elected representative” as

“a member of the House of Commons, a member of the Scottish Parliament,”

or

“a councillor of a council.”

If we agreed to amendment 39, we would be encroaching on other pieces of legislation and, indeed, legislatures over which we have no control, so for that reason we will not support the amendment at the late stage at which it was introduced.

However, we commend Alex Cole-Hamilton for valiantly trying to bring the issue back to our attention. I am sure that the Government will reflect on it. I hope that we will hear more today about how the Government will approach the issue; if we do, the Government will have the support of all parties.

Iain Gray (East Lothian) (Lab)

Mr Greene was right that, at stage 2, there was a pretty comprehensive examination of the ideas that are encompassed in the amendment that Alex Cole-Hamilton has brought forward today.

Committee members identified a number of significant problems. One was the problem that Daniel Johnson referred to regarding the questionable or debatable idea of the appropriateness of the ways in which parliamentarians should go about their work. There were other problems, such as questions about the procedures that would have to be put in place for what would happen if something was disclosed in a PVG submission. There is a real danger that the position of ministers might be compromised by their having privileged access to information on MSPs in their own party or other parties. To be fair, the minister made it very clear that that was not a position in which ministers wanted to be placed.

Mr Greene also touched on one of the other problems with Alex Cole-Hamilton’s proposals: their breadth. They were not just proposals about MSPs, because they also encompassed councillors, many of whom, although not all, are members of the PVG scheme—for example, if they are on a council’s education committee. The proposals had not been discussed with councillors, who had not been consulted about them.

The amendment also covers members of Parliament. There was some debate in the committee as to whether that would stray into an area beyond our constitutional powers. Mr Cole-Hamilton argued that it would not, but I did not find that convincing.

Perhaps most difficult of all, the proposals strayed into mentioning party officials—a term that was poorly defined—and then on to candidates. There were genuine questions about how the democratic right to stand for election might be compromised.

Alex Cole-Hamilton

I am grateful to Mr Gray for giving way, and I will not take up much more of Parliament’s time.

My stage 2 amendments were clumsily drafted and Mr Gray has rightly questioned them. However, does he agree that the issue comes down to the potential for people in powerful positions—such as the chair of a selection committee, a local party chair or agent who has the power to make or break political careers—being able to use their power with nefarious intent? Does he recognise that that is, at present, a power that otherwise goes unchecked?

Iain Gray

I do not accept that Mr Cole-Hamilton’s amendment is the legal mechanism by which to deal with such a situation.

I have to accept the quotation ascribed to me by Mr Cole-Hamilton. I can see, with regard to MSPs—and only MSPs—that there may be a principle here: why should there be a requirement that we place on so many others but which is not placed on us? For that reason alone, we are prepared to support further examination of the proposals, although we do so in the full knowledge that those doing that examination may also struggle to reach an appropriate resolution to the problems that the committee identified.

Clare Adamson (Motherwell and Wishaw) (SNP)

As convener of the Education and Skills Committee, I take this opportunity to thank my colleagues for their diligence throughout the stage 2 proceedings on the bill.

I agree with much of what has been said today. We all support the intent behind the amendment. Nobody in the chamber has a monopoly on giving our communities and the wider public confidence that they are protected in the best way possible by the disclosure system. However, to suggest that amendment 39 solves the problem that Mr Cole-Hamilton has raised would be misleading and could lead to confusion that there is some sort of protection that has not been provided.

I hope that there is another mechanism by which we can take the issue forward, but I do not think that that should happen through the bill.

Maree Todd

I recognise Alex Cole-Hamilton‘s strength of feeling on the matter and I commend his persistence on such an important issue. It is also clear that he has reflected on the debate at stage 2 and has sought a solution.

However, I still do not think that the bill is the appropriate mechanism for what needs to be achieved. As members will be aware, at stage 2, Mr Cole-Hamilton lodged related amendments, which were intended to bring MSPs within the scope of regulated roles and the mandatory PVG scheme and which the members of the Education and Skills Committee debated and overwhelmingly voted against. They noted that, although the amendments were well intentioned, the issue was one for the whole Parliament to reflect on so that it could reach a consensus on matters that extend beyond the remit of the bill. It was clear at stage 2 that the bill is not the vehicle to bring about the changes that Alex Cole-Hamilton seeks. That remains my view.

The new proposals in amendment 39 would require the Scottish ministers to commission an expert working group to consider safeguarding in relation to elected representatives and political parties in the context of the disclosure system. Ministers would then be required to lead on deciding what legislation or other options could be brought forward in response to the expert group’s report.

Although I agree about the merits of creating a working group to look at the child protection issues around elected members, I do not think that it would be helpful to place the solution in the context of the bill and the disclosure regime. I agree with Jamie Greene that that would afford Parliament too little breadth of involvement, as the solution may lie in oversight of MSP conduct more generally and not simply in disclosure—I think that Labour Party members made the same point. Alex Cole-Hamilton made the point that the disclosure system is the only solution to the problem that he presents, but I profoundly disagree with that. The disclosure system is simply one part, albeit an important one, of the measures that exist to protect children and vulnerable adults from harm in Scotland.

Situating any review within the disclosure framework could limit the range of solutions that may flow from the working group’s recommendations. For instance, any legislative solution would simply take us back to the significant constitutional issues that I set out in response to Alex Cole-Hamilton’s stage 2 amendments on the issue. Alternatively, in an attempt to overcome the constitutional issues, the legislative response would in essence be toothless. Further, any legislative response in the context of disclosure would still have to overcome a number of practical issues, such as to whom a disclosure relating to an MSP would be made.

In respect of amendment 39, I would like to draw a few observations to members’ attention. If amendment 39 and the Government’s amendments 35 and 36, on the term “elected representative”, are accepted, that would result in two different definitions of the term in disclosure legislation.

Proposed new section 92A(10)(a), which amendment 39 would insert into the Protection of Vulnerable Groups (Scotland) Act 2007, provides that the meaning of “elected representative” includes

“a councillor of a council”,

but amendment 36, in my name, proposes the removal of that phrase from the bill. If my amendment was accepted, some councillors would continue to be within the scope of the scheme.

It is important to note that any proposal on elected representatives that was brought forward in response to the report of the working group to be set up under amendment 39 would likely encounter difficulties in finding a legislative solution, given that the definition of “elected representative” in proposed new section 92A(10)(a) would still include members of the House of Commons.

Alex Cole-Hamilton referred to a review one year on from royal assent being given to the bill, but I wonder whether he is aware that his amendment would amend the Protection of Vulnerable Groups (Scotland) Act 2007 and so would change measures that came in back in 2008. That muddle somewhat illustrates my point. Although the intention of the amendment is good, its execution is not.

As I said, amendment 39 is not the right solution to the undoubtedly important issue that it seeks to address. However, given the importance of the safeguarding issue, I want to offer an alternative solution that is wider in scope than the bill can provide for.

The Scottish Government proposes to commission and fund an independent review, to be chaired by ministerial appointment. The independent review, like the working group that Alex Cole-Hamilton proposes, would consider the issue of safeguarding in relation to elected representatives. The review could then make recommendations to the Parliament and the Government, as it sees fit. However, the remit of the review could be much wider than simply looking at the disclosure system, so any recommendations could be of further reach and could be more effective. A wider range of voices could contribute and solutions outside disclosure could be considered.

Alex Cole-Hamilton

I am grateful to the minister for her remarks and I am encouraged by her offer. My original proposal suggested that a review would be instructed after a year. Obviously, the minister cannot bind the hands of a future minister or Government, so will she commit to Parliament that, if she is to commission such a review, it would be done before the Parliament rises for dissolution?

Maree Todd

I can certainly commit to working at pace on the issue. However, given that we are on an emergency footing and responding to the Covid pandemic, I cannot commit to doing what Mr Cole-Hamilton asks for. I am as keen to make progress as he is, and to do so at pace.

I thank Mr Cole-Hamilton for his role in progressing this important safeguarding matter, but I invite him to not press his amendment and instead to accept the offer of a Government-commissioned independent review. I urge members to reject the amendment if it is pressed to a vote.

Alex Cole-Hamilton

I am grateful to all the members who have contributed to the debate and offered their considered reflections. The reality is that people are shocked that such basic safeguards in respect of MSPs do not exist already. A lot of the people whom I have spoken to, as well as people in the media, believe that those safeguards exist already, but they do not.

People have seen the inquiries that expose the danger of self-policing. They know that some people who work in politics use their status to manipulate, target and exploit vulnerable people—that goes for my political party as much as it does for any other. Other workplaces and sectors have made huge leaps forward in creating safeguarding cultures, and it is time for politics to start taking the issue as seriously as they do.

Parents should know that young people on work experience are with someone who can be trusted, no matter what. Carers should know that vulnerable adults who are attending a surgery are not going to be left with somebody who has not undergone any independent vetting whatsoever. [Interruption.] Again, I hear people from a sedentary position telling me that such things do not happen. They might not happen with them—they may not have nefarious intent—but they cannot speak to all the political classes and all their agendas.

I was disappointed with the reluctance that I encountered at stage 2, so I worked up amendment 39. I have taken heart from what the minister has said, although I am concerned that she is writing a cheque that will not be cashed in this parliamentary session. I very much hope—

Iain Gray

Does Alex Cole-Hamilton not agree that the minister’s offer is a good one? Even if his amendment is agreed to and becomes part of the bill, the truth is that, after the election, a future Government could decide to completely ignore any recommendations that the working group might make. It seems to me that the situation is not significantly changed by what the minister has said.

Alex Cole-Hamilton

I was coming on to that point. I agree with Iain Gray, and as such I will not press my amendment. I am grateful for the movement that the Government has offered and I look forward to the establishment of the review.

Amendment 39, by agreement, withdrawn.

Section 76—Meaning of “protected adult”

The Presiding Officer

Group 5 is on the PVG act: meaning of “protected adult”, definition of “domestic abuse” and consequential amendments. Amendment 25, in the name of Maree Todd, is grouped with amendment 26.

Maree Todd

Amendments 25 and 26 relate to the meaning of “protected adult” for the purpose of the Protection of Vulnerable Groups (Scotland) Act 2007. At stage 2, amendments were made to the definition of “protected adult” to ensure that it is appropriately scoped and that sufficient coverage is provided by the PVG scheme. Included in the group was an amendment to make explicit in the bill that, in relation to a regulated role with adults that involves the carrying out of the activities that are mentioned in paragraph 16 of part 2 of schedule 3 to the 2007 act, an individual aged 18 or over who

“is homeless”,

or

“has experienced, is experiencing or is at risk of experiencing domestic abuse, is a protected adult.”

Although that amendment was moved and agreed to, I did not move the amendment that would provide a definition of “domestic abuse”. Prior to stage 2, Scottish Women’s Aid expressed concerns that the definition that was lodged could be unduly narrow compared to people’s common understanding of domestic abuse. Accordingly, I instructed my officials to further engage with Scottish Women’s Aid on the matter, with a view to bringing forward another amendment at stage 3. As a result of that engagement, amendment 25 offers a revised definition of “domestic abuse” for the purpose of the broader definition of “protected adult”. I take the opportunity to thank Scottish Women’s Aid for its feedback and support on the matter.

In amendment 25, proposed section 94(2A) of the PVG act provides that “domestic abuse” means

“behaviour (whether or not amounting to a criminal offence) that ... is perpetrated between partners or ex-partners, whether in the home or elsewhere or by means of electronic or other forms of communications, and ... involves any form of physical, verbal, sexual, psychological, emotional or financial abuse of one of the partners or ex-partners by the other.”

Proposed section 94(2B) of the PVG act makes clear that an individual is a person’s “partner” if they are

“married to each other, ... civil partners of each other, ... living with each other as if they were married to each other, or ... otherwise in an intimate relationship with each other”.

“Ex-partner” is to be construed accordingly. For consistency, subsection (2B) mirrors the definition of “partner” and “ex-partner” in section 11(2) of the Domestic Abuse (Scotland) Act 2018.

Including a definition of “domestic abuse” in the bill gives certainty to those who use the PVG scheme. That is of particular importance given the offences that are connected with the mandatory scheme that is introduced by the bill. Having a definition of “domestic abuse”, as with having a definition of “homelessness”, means that we will not inadvertently criminalise people who should not be included the scheme. It improves safeguarding by leaving no room for doubt about who should be a scheme member.

When read with the activities mentioned in paragraph 16 of part 2 of schedule 3 to the PVG act, the bill ensures that advocacy support services for those who report domestic abuse are covered by the PVG scheme.

Amendment 26 is technical in nature. It contains consequential amendments to provisions in section 94 of the PVG act that define certain terms for the purposes of the definition of “protected adult” to ensure that those definitions continue to work in the light of amendments that were made at stage 2 to the “protected adult” definition. The provisions in amendment 26 were part of the amendment that was lodged but not moved at stage 2.

I move amendment 25.

Iain Gray

I acknowledge the work that was done by the minister and her officials to engage with Scottish Women’s Aid to address this point. I know that Scottish Women’s Aid is content with amendment 25, which the minister has moved.

Scottish Women’s Aid has some continuing concerns, which it hopes will be addressed during the development of regulations and guidance. I would like the minister to commit that the engagement will continue in order to reach a resolution.

The Presiding Officer

Before I call the minister, I want to double-check that Mr FitzPatrick pressing his button was a mistake. [Laughter.] It is just a button. I call Maree Todd to wind up on the group.

Maree Todd

Mr Gray is correct. Scottish Women’s Aid has expressed on-going concern about the definitions in schedules 3 and 4, and we will take action to address that. Further engagement will be undertaken on a range of matters that require non-statutory solutions or might require secondary legislation. If necessary, further changes to the schedules can be made under secondary legislation using the existing powers in the PVG act.

Amendment 25 agreed to.

Amendment 26 moved—[Maree Todd]—and agreed to.

Section 82—Removal of references by court

Amendments 27 to 28 moved—[Maree Todd]—and agreed to.

Section 85A—Offences outside Scotland

Amendment 29 moved—[Maree Todd]—and agreed to.

Schedule 2—List B offences

Amendments 30 to 34 moved—[Maree Todd]—and agreed to.

Schedule 3—Schedule to be substituted for schedule 2 of the PVG Act

The Presiding Officer

Group 6 is on regulated roles—definition of “elected representative”. Amendment 35, in the name of the minister, is grouped with amendments 36 to 38.

Maree Todd

As debated earlier in the proceedings, Alex Cole-Hamilton lodged an amendment at stage 2 on elected representatives, which specifically sought to bring MSPs and MPs into the scope of the PVG scheme. Mr Cole-Hamilton’s new amendment, which proposes the creation of an expert group to consider safeguarding in relation to elected representatives and political parties, was subject to debate in a separate grouping, and I will therefore limit my comments on it.

The amendments in group 6 relate to the definition of “elected representative” that was provided for in schedules 3 and 4 to the bill. Both schedules deal with the change from “regulated work” as defined in the PVG act to “regulated roles” with children and protected adults, respectively.

Within the schedules, reference is made to an “elected representative” in a number of the activities that give rise to regulated roles with children and adults. They relate to the ability to directly influence decisions about the safety and welfare of a child; the ability to directly influence the operational delivery of education, medical or care services for children; and the ability to directly influence the operational delivery of medical or care services for protected adults.

Where those activities are a necessary part of an individual’s role and there is the opportunity to have contact with the child or protected adult, those who undertake them must participate in the scheme, except where they are an elected representative—that is, a member of the House of Commons, a member of this Parliament, a member of the European Parliament who was elected in the United Kingdom or a councillor of a council.

As it is drafted, the bill therefore excludes from the PVG scheme members of councils who, as a necessary part of their role, have the ability to directly influence decisions or the operational delivery of education, accommodation, social services or healthcare services. That is an unintended departure from the current arrangements under the Protection of Vulnerable Groups (Scotland) Act 2007.

Under the 2007 act, councillors who are members of certain committees or joint committees that are concerned with the provision to children or protected adults of education, accommodation, social services or healthcare services are eligible to join the PVG scheme. Indeed, many councils across Scotland make use of those provisions. During stage 2, members of the Education and Skills Committee recognised the unique role that such councillors have in influencing such services and confirmed the appropriateness of some councillors being members of the PVG scheme.

In making the change from regulated work to regulated roles, we have inadvertently removed councillors on those committees from the scope of the PVG scheme. Amendments 36 and 38 have been lodged to preserve the status quo and ensure that councillors on the committees that I mentioned are required to be PVG scheme members.

I want to be clear that, with the amendments, PVG scheme membership is required only for members of committees who have the ability to directly influence decisions or the operational delivery of education, accommodation, social services or healthcare services to children and protected adults. Barred individuals will not otherwise be prevented from being elected as councillors or holding positions on committees that do not deal with the provision of services to children or protected adults. That is because of the narrow framing of the activities in paragraphs 7, 9 and 25 of schedule 3 and paragraph 17 of schedule 4, which make reference to the exclusion of elected representatives, meaning that only councillors with the ability to directly influence certain services for children and protected adults will be within the scope of the scheme.

I mentioned earlier the stage 2 debate and the constructive discussions on elected representatives. During that debate, it was recognised that, despite both being elected representatives, there is a clear difference between MSPs and councillors due to their roles and responsibilities. Daniel Johnson helpfully noted:

“Councillors may require PVG checks not by virtue of their role as elected representatives or the fact that they may hold surgeries, such as we do, but because they are responsible for administering many of the social work and education institutions, organisations, systems and schemes that have direct responsibility for looking after, caring for and supervising children in local authority areas.”—[Official Report, 11 March 2020; c 17-18.]

Amendments have been lodged to remove “councillor of a council” from the definition of “elected representative” in recognition of that difference and the importance of preserving the status quo under the existing legislation.

Amendments 35 and 37 remove references to members of the European Parliament who were elected in the UK from the definition of “elected representative”. Following the United Kingdom’s withdrawal from the European Union on 31 January this year, those references are obsolete, and accordingly they should be removed.

I move amendment 35.

Amendment 35 agreed to.

Amendment 36 moved—[Maree Todd]—and agreed to.

Schedule 4—Schedule to be substituted for schedule 3 of the PVG Act

Amendments 37 and 38 moved—[Maree Todd]—and agreed to.

The Presiding Officer

That concludes consideration of amendments.

As members will be aware, at this point in the proceedings, I am required under standing orders to decide whether, in my view, any provision of the bill relates to a protected subject matter—that is, that it modifies the electoral system and franchise for Scottish parliamentary elections. In my view, the bill does no such thing, so it does not require a supermajority at stage 3.

I am conscious that some members have been here throughout the afternoon, so we will take a short break. I suspend the meeting for two minutes.

The Deputy Presiding Officer (Linda Fabiani)

The next item of business is the stage 3 debate on motion S5M-21976, in the name of Maree Todd, on the Disclosure (Scotland) Bill.

We are already late in starting, so if members would like to finish, as discussed, for seven o’clock—or even earlier—it is entirely in their hands as to how they manage their contributions.

The Minister for Children and Young People (Maree Todd)

I am pleased to open the stage 3 debate on the Disclosure (Scotland) Bill. First, I thank the members and clerks of the Education and Skills Committee for their sincere and constructive scrutiny of the Bill. I also thank stakeholders for their input throughout the process. I am particularly grateful to those who have been able to engage with us amid the uncertainty of the past three months. The bill is important and I am glad to be able to progress it at this time. That would not have been possible without their engagement before and throughout the parliamentary process.

Safeguarding the most vulnerable in society is at the heart of what Disclosure Scotland does, and that has been at the forefront of my mind in these challenging times. The system that we have today is in direct response to the tragic Soham murders of August 2002; we must never forget why the service is so important.

Part 2 of the bill delivers a range of reforms to the protecting vulnerable groups scheme. It strengthens that service to protect the public from those whose past conduct makes them unsuitable to carry out roles with children and protected adults. We will introduce a mandatory PVG scheme for people who carry out such regulated roles. There is overwhelming public support for such a measure, to close the current gaps in the scheme, and I am pleased to deliver the provision.

We will also provide stronger protections to those who engage the services of another in a personal capacity—for example, to those who arrange self-directed care—by ensuring that their employees are included in the PVG scheme. That complements the adjusted referral arrangements for Police Scotland, and new referral powers for local authorities, to support a safer Scotland.

This Government is committed to policies that balance public protection with the right to move on from past offences. As I have said before, those are not contradictory aims; both can be achieved. Last year, the Parliament passed the Age of Criminal Responsibility Act 2019 and the Management of Offenders Act 2019. Part 1 of the bill further delivers on those aims by making vital reforms to state disclosure. Together, all three pieces of legislation provide a transformed disclosure system that can better account for individual circumstances.

As a Government, we want to offer opportunities for everyone to flourish. That includes creating a strong, sustainable workforce, and making sure that no one faces unnecessary barriers to opportunity. Disclosure Scotland will continue to identify people who, given their past behaviours, are unsuitable for regulated roles, and will ensure that they are legally prevented from carrying one out. However, we must also allow people whose history is no longer relevant to move on.

We must give particular consideration to those who were involved in the justice system during childhood. That is especially true for care-experienced people, who are still disproportionately represented in the system. It is widely recognised that having a criminal record can significantly impact on future life chances and outcomes. Since becoming Minister for Children and Young People, I have heard powerful testimony from young people who have had to overcome significant trauma and who should not be haunted by mistakes that were made in their childhood. We have to do more—not only to prevent such experiences from happening in the first place, but to limit the damage that is done in the long term to individuals, families and communities. Those children must not be left behind.

Throughout the bill’s progress, we have heard evidence of care-experienced young people self-excluding from roles that ask for disclosure. Whether they exclude themselves due to childhood mistakes or uncertainty around how to navigate disclosure, the bill will transform their access and allow their voices to be heard.

Under the bill, there will be no disclosure period for the vast majority of childhood convictions as they will be immediately spent under the Rehabilitation of Offenders Act 1974 in Scotland. Public protection will be served by provisions that draw a line around only the most serious criminal behaviour in childhood. That most serious behaviour will remain eligible for state disclosure and a duty will remain on the individual to self-disclose it, when asked by an employer, while it is unspent.

I am absolutely committed to ensuring that the reforms in the bill are clearly communicated to young people and those who support them. I recognise that, even with the reforms, the disclosure system can be intimidating and difficult to understand. I look forward to working with our stakeholders to ensure that everyone is able to access their rights.

The Education and Skills Committee recommended at stage 1 that the bill include guiding principles for decision making. Working together, we have ensured that those are included and apply to decisions under the bill, the Protection of Vulnerable Groups (Scotland) Act 2007 and the Age of Criminal Responsibility (Scotland) Act 2019. That will provide helpful legal clarification on how decisions are made.

Once again, I am very proud to be moving the motion on the bill at stage 3. At the heart of every justice reform that the Government has introduced is our absolute belief that people are capable of change. Over the past three months, tens of thousands have volunteered to support their communities in these incredibly challenging times. Some of them may even have committed offences in the past, but today they are positively contributing to our national effort. The bill maintains and strengthens the safeguarding offered by state disclosure. However, it also recognises that people should be able to move on from their past. I move,

That the Parliament agrees that the Disclosure (Scotland) Bill be passed.

Jamie Greene (West Scotland) (Con)

I thank members for their patience this evening. We have got to a stage at which the legislation has been appropriately amended and can be passed. I was new to the Education and Skills Committee during the bill’s passage, and I thank Liz Smith for dumping the bill on my desk on my first day of taking over the education brief.

It was clear during stage 1, and from the events leading up to the production of the committee’s stage 1 report, that the legislation was complex and that its effects and consequences required detailed analysis. That complexity is demonstrated by the large number of technical and tidying up amendments at stage 3, which show how difficult it was even for those drafting the bill to get it into a good place.

I will not comment much about our previous discussions on what the legislation will achieve. It is, however, important that we thank those who gave evidence to the committee and that we reflect on the importance of the bill. The whole point of the disclosure process since it was first established has been to protect children. The Parliament has made great strides in doing so through legislation in various guises. The bill will add to the collection of legislation on which I think that we will all have been proud to have worked during this parliamentary session. I also thank the minister for steering the bill through Parliament and for reflecting on some of the feedback that members gave.

The legislation is important because, as the minister said, we are on the cusp of a revolution in volunteering. As a result of the coronavirus, many people are helping out and getting involved in the third and voluntary sectors. It is important that we strike the balance between protecting children’s safety and welcoming people into the system.

I lodged an amendment at stage 2 about people under the age of 16 who are keen to engage in the voluntary sector. At issue was whether they would require vetting. We had a good debate about that. It is important that we invite and encourage everyone and anyone who wants to get involved to do so, but the process behind that needs to be robust, transparent and accessible.

At stage 1, the committee raised concerns about moving to a digital-only system and whether that would work for all groups and organisations. The Government has reflected on that. In the current situation, we want to encourage people into environments in which they will interact with children and vulnerable people. For example, there is talk about getting retired teachers into the education system quickly and efficiently. We also want to encourage people into social care—we know that that sector requires more people—the third sector, nurseries and other environments where disclosure checks are important. How do we that? How do we use the disclosure system to ensure that the large numbers of people who are coming forward are able to access services quickly?

The only other point that I want to pick up on in my brief comments is what has changed in the bill. During the stage 3 amendments, the minister commented on Alex Cole-Hamilton’s suggestions about how we further protect those who we have to, including anyone who is involved in political life. The minister briefly mentioned setting up an independent review—I believe that that was the language that was used. That is very welcome, but I ask the minister to write to the Parliament or the Education and Skills Committee with more detail on that. Now is not the time to go into that, but I invite the minister to do that so that all members can read more about what the remit and timescales of the review will be and the expectations around it.

I will end my remarks in the interests of time. I thank members for their input on the bill. It has been a pleasure to work on my first piece of education-related legislation in the committee. I know that the committee’s hard work will continue as we look to improve outcomes for all children throughout Scotland.

Iain Gray (East Lothian) (Lab)

I draw members’ attention to my entry in the register of members’ interests, which says that I am the chair of the Hibernian Community Foundation.

In our stage 1 debate on the Disclosure (Scotland) Bill, I spoke a little bit about it being the latest stage of a road on a map of protection legislation that goes all the way back to the start of the Scottish Parliament and the Adults with Incapacity (Scotland) Act 2000, which was the first such legislation that we passed. The road on that map has passed through things such as the protection of vulnerable adults legislation, and this evening brings us to the end of this bit of the road. Although it was a bit bumpy at stage 2, we have reached a pretty good place. The minister and her officials have tried carefully to respond to the concerns of the committee and the witnesses, and that has been good to see.

I have made a point about how wide-ranging such bills are. Early on in the committee’s evidence taking, it was revealed to us that there are 1.5 million members of the protecting vulnerable groups scheme, so it is certainly legislation that affects many of our citizens. That was, of course, one of the reasons why there was a move in the legislation to having membership renewable every five years. The committee considered practical issues around that—for example, repeat fees and people having to remember that they have to renew their membership of the scheme—but the important thing is that the approach enables Disclosure Scotland to work more efficiently and effectively to monitor members of the scheme by enabling it to not have to monitor a significant number of members who are not using their PVG scheme membership. That is quite important and effective.

The early acts are all good examples of how having our own Parliament allowed us much more readily to catch our legislation up with other legislation, the modern world and other changes. We should not be surprised that, having set the disclosure scheme in place, we have come to a point at which it is necessary to clarify, simplify and modernise it. It had to take account of other legislation that we have passed, such as the Age of Criminal Responsibility (Scotland) Act 2019 and the Management of Offenders (Scotland) Act 2019. At stage 2, a great deal of work went into trying to ensure that that happened, and we have got there now.

That will not, of course, be the end of the process. For example, the Government recently recommitted itself to the incorporation of the United Nations Convention on the Rights of the Child, which may well mean a legislative change that will come back to some of the measures on children and childhood offences. That would in turn mean that we would have to come up with another iteration of the scheme.

There is more immediate and quite important work—and not only the setting up of the group that was promised to Alex Cole-Hamilton earlier on. In the discussions, there were concerns—Jamie Greene mentioned this—about the fact that anyone under 16 could not be a member of the scheme, as that might make it difficult for people under 16 to volunteer at all. I think that the Government has committed to monitor that and ensure that that is not the case.

Similarly, the Children and Young People’s Commissioner Scotland expressed concerns about the impact of the legislation on care-experienced young people. I think that the Government has also committed to monitor that; I hope that it will be able to do so, perhaps as part of the care review implementation.

There is some immediate work to be done there, but the biggest piece of immediate work is for Disclosure Scotland. As colleagues will remember, when the original scheme was introduced, there was a period when it took quite a long time for disclosure checks to come through, which caused great difficulty for many voluntary organisations and workplaces. Disclosure Scotland made us promises that it could make the legislation work. Let us hope that it is right. I think the legislation in now a place where Disclosure Scotland should be able to make it work. We will certainly support the bill at decision time.

Ross Greer (West Scotland) (Green)

I start by reminding members that I am a current member of the PVG scheme, through the Church of Scotland.

Rehabilitation and reintegration into society for people who have committed offences in the past is a key part of creating a more just and safe society, but it must be balanced with safeguarding vulnerable people against those who might still pose a risk.

Getting that balance wrong has serious consequences. A system that is too punitive creates cycles of reoffending, because people with past convictions face obstacles to mainstream employment and are instead pushed to the periphery of society. That is still very much part of the reality here in Scotland, despite our efforts. There are no shortage of examples of more punitive systems, in which reoffending rates are even worse.

Being too lenient, however, could leave people, especially vulnerable people, at risk, so we would be failing in our duty to safeguard their wellbeing.

The disclosure system must balance those issues and set out robust procedures for when past convictions should be disclosed. Over time, the system has become pretty complicated. Its legal framework stems in large part from the Rehabilitation of Offenders Act 1974, but since then a significant volume of further legislation and statutory instruments by the United Kingdom Parliament and then the Scottish Parliament, as well as court cases, have created new rules and schemes.

As a PVG scheme member, I certainly welcome the bill’s aim of simplifying and strengthening the system. That is not an easy task, as the Education and Skills Committee saw at stages 1 and 2. Although the committee was broadly supportive of the aims of the bill, a number of issues were raised about aspects of the current system and about proposed changes that required to be addressed.

I was not the only one to express concerns about the impact of barring under-16s from PVG membership—which Iain Gray and Jamie Greene mentioned—while still permitting them to engage in regulated work, and simultaneously making it an offence for anyone aged 16 or over to engage in regulated work without PVG membership.

Currently, several hundred under-16s are engaged in such roles, mostly on a voluntary basis. My primary concern was that organisations—often small voluntary groups—might understand the message to be that under-16s could no longer engage in such voluntary work or that, even if they were technically allowed to, the legally safest option for the organisation would be to avoid that.

Another concern that is worth noting again is that the small number of under-16s who present a risk and are barred by ministers from working with vulnerable groups could slip through the net, were the PVG scheme not to apply to them.

I appreciate the Government’s position that having under-16s in a continuously monitored scheme is disproportionate and that, in any case, they should not be engaging in regulated work without an adult present who is a PVG scheme member. I also understand that other disclosure products are available. The argument was finely balanced for me, but I am content with the Government’s commitment to monitor the impact of the changes on young people’s participation in volunteering, and to communicate clearly the other available disclosure products. I note that the introduction of the offence of engaging in regulated work without PVG membership will not apply to those young people.

I acknowledge that the literal handful of under-16s who are barred and who pose a risk should be monitored by other statutory services, thereby preventing their engaging with vulnerable groups. However, as I said at stage 1, reliance primarily on overstretched social work departments is far from perfect, particularly when individuals may move between local authorities, which is when communication between services often breaks down.

The other substantive concern that I raised at stage 1 related to the two-part test for level 2 disclosures, to be established at a later date following consultation of stakeholders. Although I appreciate the importance of such consultation, the arrangements could have left parts of the system dealing directly with balancing privacy and safeguarding, without any parliamentary scrutiny. I am pleased that the Government lodged amendments at stage 2 to address that issue by