Education and Skills Committee

Meeting date: Wednesday, September 4, 2019

Official Report 506KB pdf

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Disclosure (Scotland) Bill: Stage 1

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.

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.

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?

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.

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?

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.

Would you say that, largely, it is an administrative measure to avoid the scheme ballooning out of control?

Yes.

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?

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.

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.

I am sorry, but what do you mean by that?

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.

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?

Yes.

You are not replacing daily monitoring.

No.

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?

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.

Is that at a cost to the individual?

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.

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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.

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.

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.

Convener, it would be helpful if that information could be shared with the committee.

If you could provide that information, we would be delighted.

Yes—I am happy to do that.

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.

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.

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.

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?

In the Management of Offenders (Scotland) Act 2019, the rehabilitation period—or the disclosure period—is based on the date of conviction.

Yes.

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.

I am still slightly confused. Which comes first when making a decision? Is it the date of the behaviour?

In decisions about whether to disclose a conviction, we will look at the date of the behaviour.

Not the date of conviction.

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—

So a judgment is made on the behaviour.

Yes.

Okay. Thank you.

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?

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.

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.

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.

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?

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.

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?

I cannot answer that question at the moment.

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.

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.

10:30  

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.

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?

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.

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?

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.

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.

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?

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.

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.

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.

10:36 Meeting suspended.  

10:38 On resuming—