Education, Children and Young People Committee

Meeting date: Wednesday, December 8, 2021

Official Report 655KB pdf

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Subordinate Legislation

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Protection of Vulnerable Groups (Scotland) Act 2007 (Applications for Removal from List and Late Representations) Amendment Regulations 2021 (SSI 2021/379)

Good morning, and welcome to the 12th meeting in 2021 of the Education, Children and Young People Committee.

We have received apologies from Oliver Mundell, and we welcome back Meghan Gallacher, who is joining us as one of our substitute members. We have also received apologies from Willie Rennie.

The first item on our agenda is evidence on Scottish statutory instrument 2021/379. Oliver Mundell has lodged a motion to annul the instrument. The motion will be moved by Meghan Gallacher.

As is the usual practice in such circumstances, we will first have a brief evidence session with the Minister for Children and Young People, to allow members to ask questions and seek clarification.

I give a warm welcome to Clare Haughey, the Minister for Children and Young People. The minister is accompanied by Lynne McMinn, who is the director of policy, customer engagement and communications at Disclosure Scotland; Rachel McLean, who is the Disclosure (Scotland) Act 2020 implementation manager at Disclosure Scotland; and Rosie MacQueen, who is a solicitor in the Scottish Government legal directorate.

I am here in place of Rosie MacQueen, who is not here this morning.

Good morning, Denise, and welcome. Are you also a solicitor from the Scottish Government legal directorate?

That is correct.

We got that bit right. It is good to have you here with us. I invite the minister to make some short opening remarks.

Thank you for inviting me to speak to the regulations. I will not go into the technical detail of what they do, because that has already been explained in the accompanying documents that have been produced by Scottish Government officials, which are complemented by the Scottish Parliament information centre paper.

I point out that the Protection of Vulnerable Groups (Scotland) Act 2007 has always included provision to allow barred individuals to make an application to be removed from the barred lists. Removal is contingent on ministers being satisfied that the applicant is no longer unsuitable to work with vulnerable groups.

To be absolutely clear, I point out that the policy proposal allows people aged 18 to 25 to apply to be removed from the barred lists sooner, but such an application does not lead to automatic removal. A thorough and well-established process for considering removal applications, which replicates the process for inclusion in the barred lists, is carried out by Disclosure Scotland’s protection services. The proposal in the regulations is also consistent with the situation in the rest of the United Kingdom, where individuals are able to ask for a review of a barring decision by the disclosure and barring service.

The system of state disclosure that we have today is in direct response to the tragic Soham murders of August 2002. This Government will never forget why the service is so important. Indeed, my predecessor introduced the bill that became the Disclosure (Scotland) Act 2020. Once fully implemented, the 2020 act will deliver a range of reforms to the protecting vulnerable groups scheme to strengthen the national barring service.

The Scottish Government is committed to giving everyone a better chance of overcoming early adversities, including youth offending, in order to allow people to become productive and valued citizens in adulthood. Our policy proposal in the regulations is in keeping with the wider reforms that have been achieved by the 2020 act, and it strikes a balance between safeguarding and proportionality by enabling people with offending in their past to move on—where safeguarding considerations allow it—into work, employment or volunteering.

Disclosure Scotland has been engaging with relevant academics and experts in the formulation of policy supporting the measure. There is a clear association between age and desistance from crime, and the evidence supports recognition in policy of that association. However, in every case it is right that the individual circumstances be considered in order that a safe decision can be made about whether it is right to remove a person from the barred list.

We know from the responses to the 2018 consultation on protection of vulnerable groups and disclosure of criminal information that there is stakeholder support for the changes that the amendment regulations will make—particularly for how they will benefit care-experienced individuals, who are more likely than their peers to have experiences with the criminal justice system. Who Cares? Scotland said in its consultation response, which can be viewed on the citizen space website, that it welcomes the change, which is

“motivated by an understanding that those who commit crimes at a younger age are often trying to move on when coming into contact with PVG processes.”

I invite Ms Gallacher, on Mr Mundell’s behalf, not to move his motion to annul. If the motion is pressed, I ask members not to vote in favour of it.

We will start with questions from Meghan Gallacher, who has just been mentioned.

Will the minister outline the justification for amending the legislation? Where does the five-year limit originate from?

The regulations will amend the prescribed period that must pass before a person has the right to make an application. They will increase the age threshold for what is referred to in the principal regulations as the shorter prescribed period from under 18 to 25 and under . That means that an individual who is included in the barred list when they are aged between 18 and 25 will be able to apply to be removed after five, rather than 10, years have passed since the date of inclusion.

I make it absolutely clear that the amendment regulations will not lead to individuals being removed automatically from the barred list; they will simply amend the circumstances in which an application for removal will be competent. As I said in my opening remarks, the proposed changes are consistent with the approach that is taken in the rest of the United Kingdom to when individuals can ask for a review of the Disclosure and Barring Service’s decision.

Why is the age of 25, rather than 24 or 26, proposed?

The proposed threshold is consistent with that in the rest of the UK, where the ability for individuals to ask for such a change applies up to the age of 25. It is also in line with corporate parenting responsibilities as they apply under the Children and Young People (Scotland) Act 2014, because we in Scotland acknowledge that parenting does not stop at the age of 18. That is why the age of 25 was chosen.

To be honest, I am still not clear about that. I hear what you say about the rest of the United Kingdom, but we have a devolution settlement and we can differ in Scotland, as is right on many occasions. Why was the specific age of 25 chosen? I am not sure that I heard an answer to that.

To answer Ms Gallacher’s question, the five-year period is already in statute. When we did our pre-engagement and early engagement with stakeholders, and during the consultation, there was no consensus about changing from the periods of five years and 10 years that are prescribed in regulations, so we felt that there was no need to change those periods. We feel that five years and 10 years provide the right balance between proportionality and safeguarding.

We picked the age of 25 for a number of reasons. In the consultation, we provided a number of age points between 18 and 25. The majority of the respondents favoured increasing the age limit, and the majority who favoured an increase were in favour of the age of 25.

As Ms Haughey said, as a matter of policy, the threshold of the age of 25 is already in legislation for our corporate parenting approach. The 2014 act recognised that care-experienced people need access to services until they are 26 because of their life experiences, because they do not have the support systems that their peers have and because they are more likely than their peers are to interact with the justice system. That is also, as Ms Haughey said, in line with the rest of the UK.

Would the introduction of the regulations make it easier for people between the ages of 18 and 25 who are identified as having harmed children being allowed to work with vulnerable groups sooner? Is there a risk in making the process more accessible?

We all have a responsibility to ensure that children, young people and vulnerable adults are safeguarded. As I said in my opening remarks, the process of barring someone is robust and the process that someone would have to go through to have that barring lifted will be just as robust.

We want to ensure that we protect children, young people and vulnerable people. The changes in the regulations for people who were placed on the barred list when they were under the age of 25 is about recognising that young people move on from lifestyle choices and behaviours that have been harmful in the past. Denise McKay or Lynne McMinn might want to comment on the legalities around the process.

I will just emphasise that the changes in the regulations will not make the process easier. Under the current regulations, people over the age of 18 need to wait 10 years to make an application to be removed from the barred list. They can apply sooner than that if they can independently evidence that there has been a change to the circumstances that led to the barring in the first place.

As Ms Haughey said, the process of removing someone from the barring list is as robust as the process of adding someone to the list is. An application for removal does not mean that someone will be automatically removed. There is a robust process, and our caseworkers have the same information-gathering powers that they have under the current system of adding someone to the barred list. They go through an evidence-based process to make determinations case by case.

In the past 11 years, we have had 19 applications for removal, of which 13 have been successful. Of those successful applications, two have involved someone under the age of 26.

I ask Michael Marra to come in at this point, as he has a supplementary question.

The “robust” process has been mentioned a few times. Can you say a bit more about what that entails, so that we can have some confidence in the process? You mentioned evidence gathering.

The protection unit carries out a casework process. It follows guidance from a casework manual, which was developed in 2014 and was co-produced with clinical psychologists. It was peer reviewed by other psychologists and it went to a committee of experts—academics, psychologists, care workers and unions.

It is not up to one individual to make a decision; each case is triaged and looked at by multiple people before a decision is taken. Information is gathered from the Scottish Courts and Tribunals Service and Police Scotland. Information can also be gathered from social workers and educators. The unit can get specific reports on risk assessment and clinical psychological reports. The unit has wide information-gathering powers, which allows people to gather whatever information they feel is necessary to make a decision.

That is helpful. Thanks, convener.

How do you think the victims who have had such crimes committed against them would feel if someone could go through the system, be approved and be able to work with vulnerable groups sooner? There is a risk that the legislation could favour the perpetrator over the victim, in this instance.

09:45  

We recognise the need for victims of crime to be respected and to feel that they have received appropriate support, regardless of how the person who perpetrated the crime is punished.

It is worth recognising that the change in regulation will affect young people and that there is a robust process to look at whether they should be removed from the barred list. Lynne McMinn has explained the process that people would go through. We can be assured that anyone who is removed from the barred list is suitable to work with groups that they had previously been barred from working with. None of us would want to remove from the lists anyone whom we felt was not suitable for work with children and young people or with vulnerable adults.

I want to ask about the right to rehabilitation. Can you explain where that rationale comes from? Has it been supported by evidence from agencies such as Who Cares? Scotland?

It is important to acknowledge that there was wide consultation when the legislation was proposed and was going through Parliament. In my opening remarks, I mentioned the support that has been given by Who Cares? Scotland. There were other supporting voices, including Recruit With Conviction. We had a joint response from the Children and Young People’s Centre for Justice and the improving life chances implementation group, who also expressed their support for increasing the age threshold to the highest age that was offered. There is widespread support from stakeholders for the change in regulation.

Can you give us some information about automatic listing? What does it entail? What percentage of people on the barred list have been automatically listed? How many of those have ever been taken off the list?

Lynne McMinn can give some information about the process of automatic listing.

The serious offences that we refer to as automatic listing offences are set out in statute. They include offences such as the murder of a child or rape. A person who is convicted of one of those offences is automatically listed.

It will take me a moment to find the statistics, but I can tell you that we have never removed an automatically listed person from the barred list. I think that automatically listed people make up about 26 per cent of the more than 8,000 people who are barred in Scotland.

Anyone who is mentally ill or who lacks capacity at the time of their conviction would also automatically be added to that list.

We are putting on record the circumstances in which people’s names appear on the barred list. Other than in cases of the automatic listing that we have just heard about, what are the other circumstances that lead to people being on the list?

Other offending behaviour can lead to a person being considered for listing and, after investigation, being put on the list. There is the issue of the proximity of behaviour to the regulated work that a person might be doing, for example.

There are also referrals from employers. Someone might be working in regulated work and have behaved in a manner that was deemed to be not appropriate. The employer can make a referral to Disclosure Scotland. An investigation would take place and the person could be listed.

A person does not necessarily need to be convicted of a crime to be listed. Police Scotland can also push in other relevant information, which might be information about a person’s conduct that could result in their being considered for listing and, possibly, after investigation, being put on the barred list.

It is not just criminal convictions that could result in a person being barred.

We are talking about a situation in which an individual, in the course of doing regulated work, has

“harmed a child … placed a child at risk of harm ... engaged in inappropriate conduct involving pornography ... engaged in inappropriate conduct of a sexual nature involving a child”

or a protected adult or has

“given inappropriate medical treatment to a child”

or a protected adult. That is how people end up on the list.

Yes.

When you speak about a change in circumstances, what does that mean? How do you define a change in circumstances? We are talking about a serious misdemeanour whether somebody is 16, 24 or 34.

Not everybody who is on the list will have committed those offences. It could be that they have committed a series of offences over a period, such as theft. If such a person wants to go and work in a care home, the proximity of that offending to their wanting to do that work could be factored in. Not every listing relates to the serious offences that you mentioned.

A change in circumstances could be that an individual was convicted of an offence and then appealed it and it was quashed. It could be that the behaviour that led to them being barred was the direct result of addiction to alcohol or drugs and they can evidence some time down the line that they have sought treatment, the behaviour has desisted and it is no longer of concern. However, if someone makes an application because they claim that their circumstances have changed, it will still go through a thorough investigation before consideration is given to whether they should be removed from the list.

If someone was convicted of an offence that put them on to the barred list and that conviction was overturned, would they still have to wait 10 years?

No, they could apply—

Could they do that now?

Yes.

So, in the circumstances that you have just described, there is no need to change the threshold to five years. An overturned conviction would take someone off the list anyway.

No. As I said earlier—

It is a separate issue.

Yes. As I said earlier, there are two tests—

It is separate from the regulations that we are considering.

Yes.

That is fair enough. You answered Michael Marra’s question on process. Who handles the process? Is it Disclosure Scotland? I apologise—I should direct that question to the minister, because she is the lead person.

There is a protection unit in Disclosure Scotland, which was set up in 2011. It does the work on behalf of ministers to determine whether somebody should be added to the list and whether somebody should be removed from it.

Does it then make a recommendation to ministers?

It makes decisions. Occasionally, depending on the circumstances, it might go to the minister.

So, it is done in the name of the ministers.

It is done on behalf of the Scottish ministers.

You act on behalf of the ministers. I am with you.

I will ask the minister and her officials two simple questions for clarification.

Is it right that, before any individual is removed from the barred list, there is, must be and will continue to be a full and robust consideration of whether that person remains unsuitable and, moreover, that these regulations will not change that? At the moment, there is a robust test of detailed, careful consideration, and that will remain the case if the regulations are not annulled. Is that correct?

Yes, I can confirm that.

Secondly, is it the case that what we are doing here will, in effect, bring Scotland into line with England, which will mean that the same hurdles and time provisions apply?

Yes, I can also confirm that.

Thank you, minister.

It is not essential that we are in line with England.

No, convener, but I think that it gives some context.

It seems to be a rather strange conversation in the political context.

It just gives us some context for the changes and shows that we are not just doing something—

Because it is being done in other parts of the United Kingdom.

Yes.

That is not a good reason to change anything in Scots law.

Consistency across borders is helpful because, if someone is barred in Scotland, they are also barred in the rest of the UK, and if they are removed from the barred list in Scotland, they could well be removed from the barred list in the rest of the UK. If the barring service in England and Wales deems someone to be unsuitable when they have applied there, they will be barred in Scotland and the rest of the UK.

I do not think that we have any other questions. We have given the regulations a fair airing. I appreciate the candour and willingness to answer our questions that the minister and her colleagues have shown.

At this point, and unless anyone objects, we will move to our next item, which is consideration of motion S6M-02353. I ask Meghan Gallacher to move the motion.

I will move the motion on behalf of Oliver Mundell.

Currently, those aged 18 to 25 who wish to apply to be removed from the children’s or adults’ list, as set out in the Protection of Vulnerable Groups (Scotland) Act 2007, can apply to do so after 10 years. Individuals who are on the lists are on there because it has been decided by ministers that it would be inappropriate for them to work with children or vulnerable adults. Reasons for referral can include engaging in child sex offences, among other things.

The regulations would lower the threshold by five years for 18 to 25-year-olds, meaning that they could apply to be removed from the children’s or adults’ list five years after being placed on it. That is concerning, because it might allow people who have been identified as harmful to children to work with children sooner as they could reoffend and then reapply to be removed from the list within five years instead of 10. That might also reduce competence in the disclosure system if the individual who was on the children’s or adults’ list has been removed.

There are also concerns about victims who might feel that the Scottish Government is favouring the perpetrator. What happens if they are living in the same community? There could also be wider issues there.

As has been discussed this morning, the sorts of offences and cases involved are too wide. That would need to be looked into further for the regulations to be approved. There are also concerns about the five-year limit and the overall justification for amending the regulations today. Moving the limit is a serious cause of concern and it should not be done, for the reasons that I have listed today and for the other reasons that members have raised.

I move,

That the Education, Children and Young People Committee recommends that the Protection of Vulnerable Groups (Scotland) Act 2007 (Applications for Removal from List and Late Representations) Amendment Regulations 2021 be annulled.—[Meghan Gallacher]

Thank you. Do members have any comments to make on the motion?

10:00  

Can we confirm that this is not about letting someone leave the barred list but is only about allowing them to make an application? There seems to be some confusion here. It is as if we are saying that people would be automatically free from the bar after five years.

The minister might address that in the remarks that I will ask her to make shortly.

Yes, I can.

The issues that Meghan Gallacher has raised are worthy of the airing that we have given them. It is hard to understand why it is felt necessary at this point to reduce the 10 years to five, given that there are already the flexibilities that were highlighted by Lynne McMinn in her response to the question that I asked about overturned convictions. Although it is true that a variety of convictions or behaviours can result in someone being on the barred list, those who are on the list have usually committed fairly serious indiscretions in relation to children or to vulnerable or protected adults.

I am commenting as an individual member of the committee, not as its convener. I think that I am allowed to make my opinions known without prejudicing my role as chair.

I have a brief point about the seriousness of the offences that might result in an individual ending up on the list. It is very unlikely that an individual who had committed some of the very serious offences that we have been talking about would be in a position whereby their application for removal from the list would be granted. However, we have heard the example of an individual who might have committed theft and who wishes to work in a care home. That is the sort of circumstance that we talk about when Parliament debates the rehabilitation of offenders, acknowledging the adverse childhood experiences that affect some young people and the connection that that can have to care-experienced young people.

We are not talking about a mechanism for allowing those who are guilty of the most serious offences to get themselves removed from the list. The likelihood is that those who would be able to make a successful application would not be those who are guilty of the serious offences that you have mentioned; it would be those who have done something of far less gravity. They may have been placed on the list for something that is not a criminal offence. It is important to put that on the record.

Understandably, a lot of our debate has focused on the minority of people who are on the list because they have committed very serious offences. The mechanism that the regulations would allow will not commonly be applied to those cases. It will be far more common for it to be applied to cases that are far less serious and that absolutely fit into the category of the rehabilitation of offenders. We have discussed that many times in Parliament and we passed legislation on that—I believe, unanimously—during the previous session.

Fergus Ewing wants to come in, to be followed by Stephanie Gallacher. I am sorry—I mean Stephanie Callaghan. I am mixing up my Gallachers and my Callaghans.

I endorse what Ross Greer has just said and have a couple of points to add. My understanding of the officials’ response is that, if the regulations are passed, there will be no change to the test that is applied, which protects the public from those who have committed more serious offences. There will be no change at all.

The only alteration is that people will be allowed to make an application at an earlier age. An application that would be refused would also be refused when they are younger. Any suggestion that there is an increased risk is nothing short of scaremongering. I am sure that no one would wish to do that. It is particularly disappointing to hear those arguments when we have already heard that one of the benefits will be a consistency of approach throughout the UK. That means that children who succeed in an application that is made in Scotland would be able to move south to take up advantages there, and vice versa. There may be practical benefits. For those reasons, I will vote against the motion to annul.

Yes, I hear what you say, Fergus.

Stephanie, I invite you to speak. I apologise for getting your surname wrong earlier.

I agree with Ross Greer and Fergus Ewing.

I challenge the assertion that it is all about serious offences. It is certainly not. For example, often, young men who are unable to find a toilet after being out at a nightclub can end up with indecent exposure offences. I have experienced that in my work with young people.

It is important to bear in mind that we have all supported keeping the promise and that care-experienced young people are more likely to be involved with the law. The five-year period is a key time for them when they are considering employment or further training, for instance. We must give people the opportunity to move on and have success in life. Right now, care-experienced young people are statistically not nearly as likely to be successful and we must do all that we can to support their success without putting people at risk. Proper safeguards are in place.

I will ask the minister to confirm for the record that there is no risk at all attached to the change.

I came into the discussion wanting to listen to the minister and her officials with a fairly open mind about the matter. I have heard that there are strong safeguards and a robust process across agencies to ensure that the public are protected. The practical effect of the change seems to be that we go through the same process but in a timeous manner that enables people to have a chance in their lives if the process comes to a positive conclusion for them.

I am also satisfied that the numbers of people on the barred list who are making applications for removal are almost vanishingly small. Therefore, there should be sufficient capacity to ensure that the processes are robust.

I have listened to the arguments and am convinced that the regulations take a reasonable step with a robust process to protect the public.

I say to Fergus Ewing that it is not fair to accuse a colleague of fearmongering if they have genuine concerns about the increased risk that a change in legislation might create, even for one person who might then reoffend with disastrous results for the lives of others. It is rather unfair to accuse colleagues of that on the basis of legislative scrutiny.

I call the minister, who is only too ready to respond to the points that have been made.

I have listened carefully to the debate and am grateful to have had the opportunity to explain the Scottish Government’s position on the SSI.

On James Dornan’s point, I am absolutely clear that the regulations do not automatically lead to individuals being removed from the barred list. They simply amend the circumstances in which an application for removal is competent in that they change the timescales.

As I said in my opening statement, I invite Ms Gallagher not to press Mr Mundell’s motion. However, if it is pressed to a vote, I will ask members to vote in favour of the regulations.

I do not have much to add to the debate, but I will touch on one or two points that colleagues made.

I reiterate the point that I am absolutely not scaremongering. The concerns are legitimate. We need to weigh up risks and I am not convinced that the regulations would eliminate the risks that we have spoken about.

Stephanie Callaghan mentioned an assertion that it was all about serious offences. That is not what I said and I think that she has picked me up wrongly. I said that there was a wide-ranging list of offences. That is where another concern comes in. It could be something minimal or it could be something more serious. It is a matter of weighing up what would be approved and what would not be approved. We need to have more discussions about that instead of approving the legislation as is.

I want to touch on the barred list. I understand James Dornan’s point. However, as we heard earlier, 13 out of the 19 applications were successful. That shows that there is a sway in respect of applications being approved. That is okay if they have gone through robust processes, but it adds a further element of risk.

The question is, that motion S6M-02353, in the name of Oliver Mundell, be agreed to. Are we agreed?

Members: No.

As we are in a hybrid meeting, I invite members who are attending virtually to vote via the chat function. Members who are in the committee room can vote by raising their hand. Please keep your hand raised while the clerks record your vote.

For

Gallacher, Meghan (Central Scotland) (Con)
Kerr, Stephen (Central Scotland) (Con)

Against

Callaghan, Stephanie (Uddingston and Bellshill) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Greer, Ross (West Scotland) (Green)
Marra, Michael (North East Scotland) (Lab)
Stewart, Kaukab (Glasgow Kelvin) (SNP)

The result of the division is: For 2, Against 7, Abstentions 0.

Motion disagreed to.

The committee must now produce a report on the draft instrument. Is the committee content to delegate responsibility to the deputy convener and me to agree that report on behalf of the committee? It will be a brief factual report with a link to the Official Report of today’s meeting.

Members indicated agreement.

I thank the minister and officials for their time. We will have a two-minute suspension to allow the witnesses to leave.

10:12 Meeting suspended.  

10:14 On resuming—  

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Disclosure (Scotland) Act 2020 (Commencement No 1 and Transitory Provision) Regulations 2021 (SSI 2021/380)

Welcome back. Our next agenda item is consideration of SSI 2021/380, the Disclosure (Scotland) Act 2020 (Commencement No 1 and Transitory Provision) Regulations 2021.

Since no members have indicated that they wish to comment, are we agreed that the committee does not wish to make any recommendations in relation to the instrument?

Members indicated agreement.