Justice Committee

Meeting date: Tuesday, April 24, 2018

Official Report 532KB pdf

---

Management of Offenders (Scotland) Bill: Stage 1

Agenda item 4 is an evidence-taking session with the Scottish Government bill team for the Management of Offenders (Scotland) Bill. I refer members to paper 3, which is a note by the clerk; paper 4, which is the Scottish Parliament information centre briefing on the bill; and paper 5, which is a private paper.

I welcome from the Scottish Government Neil Devlin, who is the bill team leader from the community justice division; Nigel Graham, who is a policy adviser from the criminal justice division; and Craig McGuffie, who is a principal legal officer in the directorate of legal services. Neil Devlin will give us an overview of the bill.

Thank you for the opportunity to provide you with evidence. The Management of Offenders (Scotland) Bill introduces a number of reforms that are designed to deliver on the Scottish Government’s commitment to continue to reduce reoffending, thereby ensuring that Scotland’s justice retains its focus on prevention and rehabilitation, while enhancing support for victims. The substantive provisions of the bill are contained in three parts: part 1 expands and streamlines the uses of electronic monitoring; part 2 modernises and improves the provision of the Rehabilitation of Offenders Act 1974; and part 3 delivers some of the aims of the parole reform programme to clarify the role of the Parole Board for Scotland.

The expansion of electronic monitoring supports the broader community justice policies of preventing and reducing reoffending by increasing the options that are available to manage and monitor individuals in the community, and to further protect public safety. The bill’s EM provisions are designed to provide an overarching set of principles for the imposition of electronic monitoring. The bill provides clarity as to when and how electronic monitoring can be imposed by the courts through criminal proceedings, or by the Scottish ministers in relation to release on license from detention or imprisonment. It also creates a standard set of obligations that clearly describe what is required of an individual who is subject to monitoring.

The bill also empowers ministers to make regulations to specify the types of devices that can be used for monitoring. The introduction of new technologies, such as global positioning system technology, may present opportunities to improve the effectiveness of electronic monitoring through, for example, use of exclusion zones, which could offer victims significant reassurance and respite.

The Rehabilitation of Offenders Act 1974 reforms will reduce the length of time for which most people with convictions must disclose their offending history, bring more people within the scope of the protections not to disclose, and make the regime more transparent and easier to understand. The provisions in part 2 are designed to achieve a more appropriate balance between, on the one hand, the rights of people not to disclose their previous offending and thus to move on with their lives and, on the other hand, the need to ensure that the rights of the public to be protected can be effectively maintained. Those progressive reforms will help to unlock untapped potential in Scotland’s people by helping them to move on more quickly from their offending behaviour in order to assist the economy and improve their life chances, and will help to reduce reoffending rates.

The Parole Board for Scotland reforms will deliver on the Scottish Government’s commitment to

“improve the effective rehabilitation and reintegration of people who have committed offences and complete the implementation of the parole reform project to modernise and improve support for the vital work of the Parole Board.”

The measures in part 3 aim to simplify and modernise processes and support consistency of approach in parole matters. The provisions amend the tenure of Parole Board for Scotland members to bring it into line with other tribunals, reinforce the independence of the board, and provide for the administrative and accountability arrangements of the board to be set out in secondary legislation.

The 2016 report “Electronic Monitoring in Scotland Working Group Report” included a range of recommendations, a number of which are in the bill, but what is the Scottish Government doing, with stakeholders, to implement the recommendations that are not in the bill?

As you say, a number of the expert working group’s recommendations are not in the bill. In some cases, provision may be made for them in future legislation. The intention is that the bill will provide an overarching framework that lays the groundwork for future use of electronic monitoring. One of the provisions in the bill is to allow Scottish ministers to make regulations that will extend the ways in which electronic monitoring is used currently or as laid down in the bill, which would allow us in the future to introduce alternative means for which no provision is currently made. That would allow measures that were suggested by the working group but are not in the bill to be brought forward at a future time.

There are also a number of recommendations that do not require legislation to bring them into effect; that could be done in collaboration with the Scottish Prison Service or with local authorities. That work is being done by the Government, but it falls outwith the provisions of the bill.

Are there recommendations that the Government does not intend to take forward?

We fully support the basic ethos of the report’s recommendations—that electronic monitoring could be used more creatively and more effectively. It is fair to say that the report expresses disappointment that the way in which electronic monitoring is currently used is purely restricted to radio frequency monitoring of a curfew. It suggests that there are better ways in which electronic monitoring could be embedded in the support that is provided to individuals, and that it does not work as a stand-alone service but should be more integrated. That is something that we have tried to carry forward into the underlying principles of the bill. I do not think that there are any specific recommendations that I could point to and say, “We definitely don’t think that’s worth taking forward.” Those that are in the bill are the ones that we think could have the most immediate impacts.

The working group report highlighted concerns about geographical variations in use of electronic monitoring. How have those been addressed?

To an extent, it is beyond the capabilities of the bill to address that question. I know that on-going concerns about differences in geographical provision have been raised in a number of the responses to the committee’s call for evidence. The current RF technology could be used anywhere, by and large, and GPS technology is improving all the time, so it, too, could be used around the country. With the bill, we are trying to create a system that could be used anywhere and that has equality of impact, but I am aware that there are other measures that need to be taken forward to ensure that that happens.

Do you consider the bill to be—to use a much-used term—future proofed for technology?

The bill’s aim is to ensure that the ways in which technology can be deployed are in no way restricted. We fully intend to continue using the RF technology that is currently available, because it has proved to be useful and has a definite place. The enabling powers to allow the Scottish ministers to specify new devices were envisaged such that if technology comes along that is better or more useful, we can use it and not be restricted to the technology that is available in 2018.

I will follow up on John Finnie’s line of questioning. As well as future proofing, the expression “island proofing” has entered the political lexicon, of late. In remoter parts of the country, there have been technological issues with radio frequency tagging. Some sheriffs or judges have also been reluctant to allow release, because of concern that some islands have no police presence, which means that the response time for incidents is likely to be longer.

In developing the bill, have you considered issues that are more pronounced in island settings, although they do not arise just there? Those issues are partly about technology and partly about public safety—about whether GPS can operate without giving rise to unacceptable risks.

Public protection is at the heart of the bill. The idea is that expanding electronic monitoring will enable a greater range of sentencing disposals while ensuring that public protection is considered.

The committee may be aware that the Scottish Government recently released a prior information notice about our intention to issue a new contract for the technology. The contract with the current service provider runs until the end of March 2020, so we will need a new contract to take us forward. In the new contract, we will look for information that relates to the technology’s ability to work in remoter areas, to ensure that it is fit for purpose and that it addresses the particular difficulties of island and remote communities.

It appears from the financial memorandum that the expectation in the initial stages is that use of electronic monitoring will not expand greatly as a result of the shift from RF to GPS monitoring. What levels of use are expected? What timeframes are envisaged in the first three to five years of the new provisions being brought into force?

I have to put my hands up and say that we do not know. One of our difficulties when putting together the financial memorandum was that the increase or otherwise will be determined by how much sentencers and other decision makers use the new provisions.

It is fair to say that we expect a shift, in the short term, from the current position, in which monitoring a person who is subject to a community payback order requires a restriction of liberty order at the same time. It is intended that the bill will provide sentence makers with the ability to monitor somebody who is on a CPO without the need for a concurrent RLO. The information from our contract provider is that about 1,000 cases a year are in that position. We expect the shift to increased use of CPO monitoring to be offset by a decrease in the use of stand-alone RLOs.

11:45  

The anticipated costs in the financial memorandum are based roughly on a 10 per cent increase across the different forms of monitoring that can be used. We think that that is a realistic first estimate of the increase, but I say again that it will depend on the amount of use of the disposal by sentencers and other decision makers. We are also aware that new technologies will require a lead-in time, following the bill’s passage, which means that we are hampered in estimating uptake until things actually start to happen.

It is envisaged that electronic monitoring will not operate in isolation; in many instances, it will run alongside efforts to assist and support those to whom it is applied. Can you provide clarity on the estimated costs of such support measures?

That question is slightly difficult to answer. The bill is intended to ensure that electronic monitoring, rather than being seen as a stand-alone service that is provided outwith the regular criminal justice and social work system, sits wholly within an ethos of person-centred and tailored disposals. That is happening now, as individuals who are subject to CPOs already receive support from local authorities. The idea is that electronic monitoring should be another tool that enables people to work with those individuals to help them to rehabilitate.

The bulk of the costs that are associated with electronic monitoring will be covered by the Scottish Government’s contract with the service provider. We recognise that there will be an increase in the amount of work for local authorities, but the work is, to some extent, captured in work that they already do.

Is it expected that the application of GPS monitoring, whether through local authorities or under a contract with third sector parties, could allow savings to be made? Is that built into the assumptions that have been made?

That is not built into the figures that the financial memorandum provides. It is intended that the extension of electronic monitoring will allow savings to be made throughout the justice system, but those savings will not necessarily be realised in the same places in which the outlay is made.

Is that not slightly problematic? The organisations that make savings would like very much to have such money reinvested in them in order to allow them to do other things that will help to make the system a success overall. However, if those savings are clawed back and are instead used to benefit other parts of the system, we will end up with an overall set-up that does not necessarily deliver the outcomes that we seek.

That is a difficulty. There will always be tension between different parts of the justice system, given, for example, that savings in expenditure by the Scottish Courts and Tribunals Service may be experienced as savings for the Scottish Prison Service further down the line. As the cabinet secretary mentioned in his evidence earlier today, the idea behind block funding for the criminal justice service is that part of it can be made available to local authorities, which have the discretion to decide how best to spend that money. Savings that result from use of electronic monitoring could be moved around within the system in order to allow local authorities to spend money in areas in which they may not always have been active. We will need to look at that, further down the line.

We might end up with the perverse situation in which electronic monitoring disposals being used frequently in one local authority would free up savings that would be deployed in other parts of the country. There might be a legitimate call on that funding, but at the same time organisations that operate in the local authority area that is using electronic monitoring extensively may say, “We’re under pressure, too, so that funding could be deployed better here.” I presume that there is not really a way, through the bill, to guard against such a situation.

My colleagues in community justice who deal with finances would be better placed to explain how that might be guarded against, but I do not think that it would be possible to put something in the bill to guard against such situations.

We have touched on some of the new technologies that might emerge and the powers for ministers to ensure that we can keep pace with those changes. I have a couple of questions, first of all about transdermal alcohol monitoring. I am curious to find out what conditions the courts would set at the moment in which that would be required. What does the technology involve and how far off is it from being implemented?

I will answer your second question first, which is a slightly odd way to take things.

A number of different alcohol monitoring systems are available. One of those systems is transdermal alcohol monitoring, which is an ankle bracelet that monitors the level of alcohol in someone’s sweat. Much like a current tag, it is designed not to be removable and it monitors 24/7. There are also a number of available systems that are, in essence, breathalyser kits that monitor alcohol at certain points in time and can be fixed in a home or carried around. They are very much like the breathalysers that police use. The data from them can be sent to the monitoring service.

On how far off the technology is, alcohol monitoring is probably further off than GPS. We could quickly introduce the GPS products that we are aware of, which are tried and tested. More work needs to be done before we are able to say that we are definitely ready for alcohol monitoring to be used within the current legislative set-up. That is why we hope to provide the ability to run pilots, as the cabinet secretary said earlier. We definitely do not want to run before we can walk. The idea is that we have pilots that allow us to work out how such monitoring devices would best fit within the current legislative system and then, if those pilots were successful, to roll out those devices more widely. However, that will not happen as soon as the bill comes into force.

Can you answer the initial part of my question as well? It was on the conditions that require alcohol monitoring to take place.

There is nothing specific in legislation just now about the court’s ability to impose a condition that an offender must not take alcohol. However, the power to make sexual offences prevention orders and their replacement—sexual harm prevention orders—includes a general power to impose conditions on an offender. In theory, one of those conditions could be that the offender must not take alcohol.

Such a condition is less likely to be imposed in that setting than in the custodial setting. If a prisoner is released early from prison, licence conditions regularly include the condition that the offender must not take alcohol, whether they are on temporary release or on parole. In those situations, it is more likely that there would be a restriction on a prisoner’s intake of alcohol.

If transdermal alcohol monitoring is introduced once the technology is ready and we take whatever legislative steps are necessary, the bill would allow us to specify devices that monitor transdermal alcohol and to add to the lists in the bill any other court disposals or forms of early release to which we can attach electronic monitoring.

You said that the technology might be a bit further off than GPS. What would be its main benefits over the radio frequency electronic monitoring that is used at the moment?

The current radio frequency technology is limited to showing whether a person is present in a particular place. Typically, a box is placed in the house of an individual who is subject to a curfew between 7 pm and 7 am. The individual wears a tag on their ankle that tells the monitoring system whether they are in the required area within the curfew times. If they are not, the system sends an alert.

The GPS monitoring system is more wide ranging. As well as specifying an area in which a person must stay for certain periods, it can deal with an area that a person cannot go into. In theory, that is possible under the current system, but it would involve having a box in the place where the person could not go. The difficulty of that is that, if a person could not go to more than one place, more than one box would be needed. GPS allows areas to be drawn on a map to show exclusion zones so that, if the tag is present in an exclusion zone, it triggers an alert.

The working group report recommended extending the use of monitoring to be an alternative to remand—the committee has been looking at remand in quite a lot of detail. The bill gives the Scottish ministers the power to expand the list that electronic monitoring covers, but the bill refers to things that are done in relation to “an offender”. Will that be clarified further? Someone who is on remand has not been convicted of a crime. Will the language be made clearer?

We can look at that at stage 2. The difficulty in drafting the provisions relates to the term of art to describe a person. In the context of electronic monitoring, we already refer to a designated person, and some disposals refer to a supervising officer, who is from criminal justice social work.

I appreciate the problem, which we can consider at stage 2.

I would like to probe what was said about the disclosure of convictions. An analysis of responses to the Scottish Government’s 2015 consultation paper noted calls for more substantive reforms of disclosure. What was sought and to what extent are those views reflected in the bill?

When we had the engagement events and published the discussion paper, nobody had a particular view on what an appropriate disclosure period should be. In organisations such as Nacro, Unlock, Recruit With Conviction and Positive Prison? Positive Futures, the majority of people accept that the disclosure periods that are in the 1974 act are too long. However, what they should be is open to question.

The Scottish Government proposes a balanced approach. Some bodies wanted to go as far as the recommendation in the Home Office-led “Breaking the Circle” report of 2002 that the disclosure period for all custodial sentences up to but not including life imprisonment should be the length of the sentence plus two years. In relation to general disclosure—the bill has no impact on the higher-level disclosure system—one view is that there may be a point at which no disclosure should take place. Should someone disclose a fine before working in an office, a garage or a shop? If the balance is right for public protection, should the approach rely on standard disclosure, enhanced disclosure or, in relation to the regulated care of adults or children, the Protection of Vulnerable Groups (Scotland) Act 2007?

One view is that, under basic disclosure, there should be no disclosure at all. The insurance industry’s view is that far more should be disclosed under basic disclosure, because it assesses risk only on the basis of unspent convictions. A variety of other people sit somewhere in between.

When we had the engagement events, the initial view was, “Oh—that should be this length.” When we asked how the arrangements would affect someone or their brother, son, daughter, husband or wife, most people wanted to move to less disclosure, but the question is about what society can take, given that the disclosure periods under the 1974 act have never changed.

The Government’s approach is to get an appropriate balance of the views of those who want no disclosure, those who want less disclosure and those who want more disclosure. The Government has adopted that balanced approach in part 2 of the bill.

12:00  

Will you outline that approach? What are the Government’s proposals if you are trying to strike a balance?

The Government’s proposal is to reduce the disclosure periods. Currently, the disclosure period for a fine is five years, so the proposal is to reduce that to one year. The disclosure period for admonishment is, currently, five years and the proposal is to reduce that to zero. For an absolute discharge, the disclosure period is six months and the proposal is to reduce that to zero. The period for a children’s hearings disposal that, under a special provision, is classed as a conviction or sentence to provide protection is currently six months for a discharge and 12 months, or the length of the order, for a compulsory supervision order. Both of those will be zero.

We are also reducing the disclosure periods for custodial sentences while increasing the scope to 48 months and creating three sentence bands. There will be a sentence band of zero to 12 months, which will have a period of the length of sentence plus a two-year buffer period. A sentence of more than 12 months and up to 30 months will have a disclosure period of the length of sentence plus four years. The new sentence band—more than 30 months and up to 48 months—will have a disclosure period of the length of sentence plus six years. The reason for that six-year buffer period is that the Government’s proposal is also to maintain the current 10-year maximum disclosure period for a sentence that can have a finite period of disclosure.

Will that be widely accepted by stakeholders and the community?

The evidence that you have received so far shows that the majority are supportive of it. Some insurance companies have come back and said no. Police Scotland is supportive of it, as are Unlock, Nacro, Recruit With Conviction and, from what I have read, Positive Prison? Positive Futures. The feedback that we received from the consultation is supportive of it because we have based the approach on consultation, on letters that I have received over the past number of years from individuals and from MSPs and Scottish MPs on behalf of their constituents, and on the parliamentary questions that have been asked over the years.

We are taking a balanced approach. There will always be somebody who would want more or less disclosure. However, remember that we are dealing with the system of basic disclosure. It is not the system of high-level disclosure, in which there is a standard disclosure, an enhanced disclosure and the provisions under the Protection of Vulnerable Groups (Scotland) Act 2007.

Thank you. That is helpful.

The conclusions that were reached on the basis of that consultation seem to mirror relatively closely, with a few exceptions, the approach that has recently been taken in England and Wales. Was that a factor? Were the people to whom you spoke looking to whatever consultations happened there?

The view was that we should have a system that was at least equivalent to that in England and Wales because of the cross-border movement for employment—people moving and travelling and companies that might have employees who work in Scotland as well as employees who work in England and Wales. We considered the system there but we also have to consider the conditions in Scotland and the Scottish Government’s view on disclosure. The system of high-level disclosure in Scotland is more progressive than that in England and Wales.

As well as looking at conditions and considering current policy, we have tried to understand where each disposal fits on the spectrum of seriousness. Life sentences are at one end, compared with police warnings at the other. How do we fit all those disposals together meaningfully? There is no such thing as an optimum disclosure curve. We cannot put down a line and say that, if we have a disclosure at a certain point, it will reduce reoffending by a certain amount.

It is about looking at what is happening in England and Wales, looking at the feedback that has been received, listening to the conversations that we had at engagement events on the discussion paper and trying to come to an appropriate balance that reduces disclosure, allows people to move forward and still allows employers to have information at a particular point to make employment decisions for general disclosure purposes. The Government is trying to take such a balanced approach.

Your point about people who move back and forth across the border and businesses that want to have a degree of consistency throughout the country suggests that the Scottish ministers, officials and wider stakeholders would have wanted to feed into the process that was gone through in England and Wales. Was that the case?

That is certainly an aspect of how things have worked. The UK Government looked at the Home Office-led report, “Breaking the Circle”, which is about trying to match the custodial sentence length more closely with the disclosure period. That is why we have sentence bands plus a buffer period in order to match the disclosure period more appropriately.

We looked at the recommendations in “Breaking the Circle” that seemed appropriate. We also considered the evidence that we received following the publication of the consultation paper, and in the responses to our discussion paper and our engagement events. That information suggested that it would be better if the time periods were more aligned. Whether the outcome was perfect—or, indeed, whether we can ever get a perfect system—is open to question, but we have tried to strike a balance that feels appropriate and which considers all aspects. One could easily say, “We’ll just copy what they’ve done in England and Wales”, but it is better to investigate and listen to what people say, and to look at all the reports and the evidence.

We went right back to the Gardiner committee’s 1972 report “Living It Down: The Problem of Old Convictions”, which led to the Rehabilitation of Offenders Act 1974. We looked at the founding principles behind the 1974 act—for example, the principle that the disclosure period should be based on the sentence—and considered whether those principles are consistent with new research. The UK Government and the “Breaking the Circle” report said that disclosure should still be based on sentence. The evidence that we received from the consultation on our discussion paper suggested that, although the current system is imperfect, disclosure should still be based on sentence, because that is an easier way to consider it. In addition, the courts can, in determining a sentence, consider all the available information, which may cover culpability, the seriousness of the offence and the person’s previous convictions. In all those instances, we had to determine whether sentence should determine disclosure, and we looked at a lot of different factors in order to come to a conclusion. The Scottish Government’s conclusion was that that approach is still appropriate.

Good afternoon, panel. With regard to the armed forces, the bill does not propose any changes to disclosure periods for sentences that are imposed under the legislation.

That is right.

What is the reason for that?

That area is reserved.

Ah. Thank you—that answers my question.

Do you have another question, Mr Corry?

One of the bill’s aims is to make the rules of disclosure easier to understand. To what extent will the changes that the bill sets out achieve that? Could more be done to simplify the system?

I am sure that the Government will be open to any proposals to improve that aspect. In order to increase accessibility, the bill removes redundant provisions. The key changes that stakeholders asked for concern sections 5 and 6 of the 1974 act. Section 5 sets out the disclosure periods, and section 6 sets out the rules that apply when someone gets more than one conviction. We have removed all the redundant provisions, and we have set out clearly and accessibly exactly what the disposal will be in each case. For example, if it is a fine, it will be on table A, which shows that the relevant period will be 12 months, or six months if the person was under 18. It should now be easy for anybody to go and have a look at section 5. They might say, “I got a CPO—what will be the length of the order?”, and they will see that the time period is 12 months. They can work their way through the information.

One of the provisions deals with the way in which section 1(1) is constructed in order to address what is called the sentence rule. At present, if someone gets a disposal such as a fine and, before the disclosure period ends, they receive an excluded sentence—currently, that is a sentence over 30 months—both will be disclosed forever. We did not think that that was right. We thought that excluded sentences should be outwith the rules in the 1974 act so that, if someone gets an excluded sentence, they know that they will always have to disclose it. Someone may, as a consequence of getting subsequent sentences later on, eventually get an excluded sentence. If a person gets a consecutive custodial sentence—if the sheriff turns round and says, “I’m going to sentence you to two years and three years to run consecutively”—the sentences are added together. Two plus three equals five, which is greater than 48 months, so it will therefore be an excluded sentence. There is still the possibility that the person will get a further excluded sentence, but that should not impact on the rules in the 1974 act.

We appreciate that section 6 of the 1974 act is probably one of the most difficult sections to work out. Because we are changing some definitions and changing the excluded sentence rules, we can change the language, so we are updating subsections (1), (2), (4), (5) and (6). That will make the rules easier to understand. We will also publish guidance on the Scottish Government’s website to explain how the rules will work more effectively.

You mentioned terminology. The policy memorandum notes that the rules on disclosure are not intended to suggest that a person who has unspent convictions is always unsuitable for employment, and the bill will change terminology in the hope of clarifying that for employers. Is anything else being done to clarify that for employers?

The cabinet secretary is clear that changing the law is not enough in itself. I work in criminal justice, but Neil Devlin works in community justice, where a lot of work is going on with employers on an employer support network to develop an understanding of why employers might have an unconscious bias that means that they do not employ someone who has an unspent conviction. A person might not be employed because they are not, or are not deemed to be, rehabilitated.

Organisations such as Virgin, BT and Marriott hotels are positive about employing people who have convictions and recognise that barring an individual just because they have an unspent conviction—or even a spent conviction under higher-level disclosure—is not necessarily good for those organisations, because they are cutting off their employment pool.

Community justice colleagues are discussing with employers and with organisations such as Recruit with Conviction and Positive Prison? Positive Futures how we can best encourage employers to take an approach of thinking that it is best to have a dialogue with someone and to consider that the person who has a conviction may be the best person for the job. If that person has all the skills, will employers ignore them?

We are making legislative change to the language and we want to remove the unconscious bias that lots of people do not realise that they have. We are immersed in justice issues, but someone who works in a small business and sees a person who is not rehabilitated might not want to employ that person and might ignore them.

We are changing the language so that we say that it is just about disclosure and nothing under the 1974 act prevents anybody from having a job. It is about disclosure for a period of time, and if a conviction is still unspent, employers can have a dialogue, so that there is that opportunity. Community justice colleagues are working with employers, in addition to the change in the law.

I understand. You talked about basic disclosure and three other categories at a higher level that require more disclosure. The bill does not change higher-level disclosures, but the committee understands that the Scottish Government is to consult on changes to higher-level disclosure. Will you give us more details on that?

We will consult shortly on such disclosure and the protection of vulnerable groups.

What is the interest there?

I am not a spokesperson on the Protection of Vulnerable Groups (Scotland) Act 2007 or on the higher-level disclosure system, and I am conscious that the consultation paper has not been published yet, so I am limited in what I can say.

The key point is that the paper will ask questions about how the PVG act works and the number of disclosures that are available under it. The consultation will look at what standard disclosure and enhanced disclosure mean. Standard disclosure involves spent and unspent convictions and enhanced disclosure involves not only spent and unspent convictions but part V of the Police Act 1997, under which the police are allowed to provide other relevant information, such as non-conviction information—soft information. That differs from the PVG act arrangements, under which, if someone is a part of the vetting and barring scheme, they are monitored for life. That act concerns regulated work with children and adults. Questions will be asked about what that means.

The consultation looks at the whole system of higher-level disclosures. It recognises that, as a result of case law in the Supreme Court, that system has changed. The paper brings that together and asks questions so that legislation might be introduced in the future.

12:15  

I appreciate your difficulty; let me rephrase the question, to see whether we can get a clearer answer. Do you know—

Well, I am limited in what I can say about another policy, which is outwith the remit of the bill. The consultation paper has not been published, and I do not want to get into detail on something that is not my policy area.

I understand that, but do you have a sense of the Government’s current thinking? Does the Government think that the system is working?

The current thinking of the courts is less disclosure.

Less disclosure in relation to higher-level checks.

And that is what has happened.

I understand. Thank you.

I think that we just got there—but no further.

On the changes to the Parole Board for Scotland, I am conscious that as the bill was being prepared, the Worboys case in England came into sharp public focus. To what extent did people reflect on the case and the lessons that might be gleaned from it? Will the proposed changes address the issues that the case raised? Might changes be needed that are outwith the scope of the bill?

It is fair to say that the changes that are proposed in the bill have been in train—and in gestation—for some time and are designed to address specific difficulties that have been identified.

On the issues that the Worboys case raises, it is important to say that there are distinct differences between the way in which the Parole Board for Scotland operates and the way in which the Parole Board for England and Wales operates. However, if additional issues are identified during the course of the committee’s investigations into the Parole Board, I see no reason why we would be against seeing whether we can address other difficulties while this legislative vehicle is available to us.

If there is one lesson to be drawn from the case, it is that there is a really bad public perception of how the Parole Board for England and Wales operates—or certainly of how it operated in that case.

Changes to the tests for release are to be implemented. The Parole Board for Scotland suggested in its submission that greater clarity on the tests that are applied would improve the bill. Have you reflected on the suggestion? What is your reaction to it?

Part of the issue in that regard is that it is difficult to identify what a common test might look like. I do not think that there is, at large, an agreed position on what a common test could look like. If such a common test were to be identified and thinking on it was sufficiently far along, I see no reason why we could not look at it.

A central point in the Parole Board for Scotland’s submission is about the board’s independence and how appointments to it are made. I understand the substantial points about changing the board’s composition; the point that the Parole Board makes is that greater assurances could and should be given about the independence of appointments. Indeed, the board suggests that the Judicial Appointments Board for Scotland should make appointments. Was such an approach considered and dismissed, and if so, why? If not, could it be considered during the passage of the bill?

There are a number of competing demands in relation to the way in which the current system works, which involve the regulator and how appointments might be made in future. We are perfectly happy to continue to consider such matters during scrutiny of the bill, and if an agreeable compromise can be reached whereby we can identify a way forward, we will be happy to consider it.

Does that include the specific point about appointments being made by the Judicial Appointments Board?

We would probably need to discuss that with the Scottish Courts and Tribunals Service, but I am more than happy to get back to you on that point.

The Parole Board also says that it should be explicitly set up as a “Tribunal NDPB”. Will you consider that point during the bill process?

The Scottish Government’s position is that the bill is designed to reinforce the independence of the Parole Board. We feel that the provisions as drafted are sufficiently strong in that regard. If, during the course of evidence, it becomes apparent that that is not necessarily the case, we would not dismiss that suggestion out of hand. However, our position is that the independence of the board is enshrined in the bill as drafted.

I have one final question, which is on the composition of the Parole Board. Under the Prisoners and Criminal Proceedings (Scotland) Act 1993, the membership of the Parole Board must include a High Court judge and a psychiatrist. Why have those been omitted from the new composition under the bill?

I understand that the board’s position is that there is sufficient breadth of expertise in the current board members, so specific requirements are no longer necessary. Our intention is to ensure that there is a wide range of expertise on the board. Certain administrative difficulties arise because of the requirement to have those specific members, which can be overcome by its removal from the legislation.

Can you be a bit more specific about what those difficulties are?

I am afraid that I do not have that information to hand, but I can certainly get back to you on that.

The board looks at very serious cases, so it seems sensible to include a High Court judge and the particular expertise of a psychiatrist. I would welcome further information on that.

That concludes our questioning. I thank the witnesses for attending.