Contents
- Attendance
- Decision on Taking Business in Private
- Disclosure (Scotland) Bill: Stage 1
Disclosure (Scotland) Bill: Stage 1
Agenda item 2 is our second evidence session on the Disclosure (Scotland) Bill. We heard in September and October from the bill team and from a range of organisations with an interest in the bill. Today we will hear from two panels of witnesses. The first panel consists of organisations that interact with the Disclosure Scotland scheme. I welcome Ben Hall, Scottish development manager at Shared Lives Plus; Oisín Murphy-Lawless, policy, parliamentary and programme support officer for the Coalition of Care and Support Providers in Scotland; Adam Dillon, convener of the safeguarding committee for the Church of Scotland; Florence Witherow, national secretary of the Scottish Youth Football Association; and Sarah Latto, chair of the Scottish Volunteering Forum and volunteer development manager at Shelter Scotland. I invite you all to give opening statements.
I am the convener of the safeguarding committee for the Church of Scotland. I have overall responsibility for safeguarding for the Church of Scotland, which is one of the larger voluntary organisations in Scotland. We have 38,000 members of the protecting vulnerable groups scheme. Specifically, I also deal with managing those who pose a risk within our communities and the recruitment of folk with convictions into paid positions and volunteer positions.
I am from the Scottish Youth Football Association, which is responsible for grassroots youth football across the whole of Scotland. We cover age groups up to and including under-21s. The PVG scheme is a crucial part of our safe selection process. We are a major user of the PVG scheme, providing about 5,000 applications last year and about to hit the 5,000 mark again for 2019. It is a major part of our operations.
I am the chair of the Scottish Volunteering Forum. I am also the volunteer development manager for Shelter Scotland. The Scottish Volunteering Forum is a collaborative group of cross-sector organisations whose purpose is to use their collective experience and expertise to implement the strategic landscape for volunteering. In my role at Shelter Scotland, I am responsible for about 120 volunteers at any given time, and I champion innovative approaches that promote inclusion.
I have worked in volunteer support roles for more than 10 years, and I appreciate the vital role of the disclosure system in safeguarding vulnerable groups. However, I feel that the current system has some significant barriers to volunteers and that some of the proposals could also produce some barriers. Processing checks is quite complicated and takes some time. In particular, the proposals to remove PVGs for under-16s and to change the definition of regulated work could pose significant barriers to volunteers.
I represent the charity Shared Lives Plus and its members. The shared lives scheme is a unique model of social care whereby a vulnerable adult goes to live with or visits regularly a paid shared lives carer in their own home, where they share home and family life. It is a very stable form of care, with arrangements sometimes lasting for decades, and at times it has an astonishing impact on people’s lives. Shared Lives Plus is the network body and we represent our members from across the United Kingdom and Ireland. We have about 6,000 members, of which about 400 are in Scotland. Our members are either shared lives carers or the organisations that deliver shared lives services—they might be local authorities or third sector providers in Scotland. There are 15 shared lives schemes in Scotland, all of which are members of Shared Lives Plus, and they supported about 545 people in total last year.
Our members welcome the bill. They like the simplicity and clarity that it brings and the streamlining of the processes. They would like us to highlight two areas where changes could be made. First, being a shared lives carer is not identified as a regulated role, although shared lives is clearly covered by some of the activities as defined. In comparison, foster care, which is an analogous type of service, is defined as a regulated role. The analogy is that, in both cases, care and support is provided in people’s private homes and within family life over a long time. Secondly, our members have long campaigned and long asked us to try to find a way for the family members of a shared lives carer to be subject to an enhanced disclosure check. Those people are not paid to work and provide direct care, but they are living in a privileged position with vulnerable people over a long time. We are very happy to explore those areas with you.
Thank you very much for having CCPS along to provide evidence at this session. I am the policy, parliamentary and programme support officer for CCPS, which is a members’ organisation representing 80 of the largest third sector care providers in Scotland. As such, we find ourselves in an interesting position in so far as we rely on PVG because many of the people our members work with and support may fall into one of the categories of vulnerable adults or vulnerable children.
On the other side of things, many of our members work to bring people back into the system and back into employment, and they support better living choices for them. We are aware of the challenges posed by PVG in relation to people with offending convictions coming back into regular life.
We welcome the streamlining of the legislation, but we would like further clarity on how fees work within the system, on how membership cards—the non-digital interaction with the new PVG scheme—work and the impact on recruitment of other relevant information and the review process. We have a concern that it may present challenges for our members as employers.
Thank you. We move to questions for the panel. We have two panels today, so we are quite tight for time. Please answer only if you have something to contribute, but we do not want to lose any of your valuable knowledge in this area.
I have a question that is specifically for Ben Hall. In your submission, you not only express some concerns about the nature of the bill but suggest amendments to the bill. How would you like to see the bill amended to address the issues that you raised in your preamble?
There are two themes to the feedback that we get from our members. The first is the question of family members who are part of the shared lives household, who are most likely to be the spouses of the shared lives carers. They do not take part in the delivery of the care, so they are not subject to any police check or disclosure process, but they are clearly in a privileged position—they are sharing a private house over many years. Our members have always wanted the opportunity to ask that those people be subject to an enhanced disclosure check, just to close the circle of protection for the vulnerable adults.
Would that make the situation for the model that you are talking about for adults the same as the position of the families of foster carers?
It would. I understand that all the adults in a fostering household are subject to a police disclosure check, and our proposal would bring us into line with that.
There was a second theme.
There was a second theme, on which I was going to talk separately.
Rona Mackay wants to come in with a supplementary question on that area, first.
Do the vulnerable adults stay overnight or are they daily visits?
It is an alternative to residential care. Shared lives is a model that grew out of the closure of learning disability hospitals, when people went to live with carers. The adult placement regulations grew up to supervise that model, and it is inspected by the Care Inspectorate. People live with families. The model has evolved; there is also a short break model and a day support model, particularly for older people and people with dementia. However, probably about two thirds of the people live with the families over a significant length of time—it can be for decades. It is a very stable and heartwarming model.
You were going to continue with a second area.
The second theme is the idea of shared lives being a regulated role within the legislation. That is similar to the first argument, that the shared lives model of care is analogous to fostering. Fostering is defined specifically as a regulated role within the new bill, and there is no specific reason why fostering and shared lives should be seen differently within the legislation. Protection within shared lives, through the PVG check, operates within quite a wide protection mechanism. There is an extensive assessment—it may take three to four months—of people who want to be shared lives carers. An independent panel approves whether somebody can be a shared lives carer, and a review and monitoring process follows that. The PVG check is a core part of that process.
There has been quite a lot of growth in the area. About 70 per cent more people are supported within shared lives now than were supported three years ago. The nature of the growth presents a risk of dilution of the model. It is worth defining the model and having a regulated role so that there is no dilution and more people can benefit. It is a model of care that has a very low incidence of abuse, partly because of all the firm structures that we have for the supervision of care within a private household.
Are those checks and balances relevant to all organisations, or is your own organisation putting them in place?
We are the network body, so we do not deliver any shared lives services. They are delivered by our members, and all our members undertake all those processes. They are a core feature of a shared lives arrangement.
Is that process voluntary for them? How much of what they do is statutory?
The independent panel is a crucial part of the process. The length of the assessment is not set, but my experience is that all assessments take three months or longer. It is a similar process to fostering, with multiple visits by social workers, assessments and a report that goes to the independent panel for approval.
I have a couple of general questions for the panel. I will focus on the issue of removing under-16s from the scheme. Given that Sarah Latto mentioned that issue in her opening remarks, and given that it is dealt with in the Scottish Volunteering Forum’s written evidence, will she lay out the forum’s specific concerns about it?
Sure. The proposal is that PVG scheme membership be removed for anyone under the age of 16. However, our evidence suggests that a lot of volunteers are in that age range and they require PVG checks or are doing regulated work.
I am sitting next to Florence Witherow, and sport is a really popular volunteering activity among young people. They do regulated work with other young people and often require PVG membership. Our concern is that, if we removed that, given that there is also the proposal to make being a PVG scheme member mandatory for doing regulated roles, a lot of organisations would interpret that as meaning that people under the age of 16 would no longer be able to do any voluntary work with vulnerable groups. We think that that would be a real shame and that it would not reflect current circumstances and roles that young volunteers fulfil.
10:15I will give some statistics. In 2014, Volunteer Scotland conducted research that showed that over 50 per cent of school-age children volunteer. That is quite significant; the adult volunteering rate is 26 per cent. The 2018 Scottish household survey statistics show a slight decline in youth volunteering. That survey does not cover anyone under the age of 16, but it covers 16 to 24-year-olds. We have seen a decline in adult volunteering from 29 per cent to 26 per cent in the space of a year. The volunteering for all outcomes framework was launched by the Government this year, because it wants to promote volunteering from the earliest possible age. We think that the proposal would undermine those ambitions quite significantly.
I forgot to refer to my entry in the register of interests. I am one of the 38,000 Church of Scotland PVGs. I thought that it would be worth mentioning that before I ask a general question.
Sarah Latto mentioned the potential impact on under-16s participating in volunteering. I am interested in the thoughts of the rest of the panel on what impact there might be.
I am happy to offer my own opinion on that. I do not think that there would be a significant impact. We do not have a huge number of people under 18 who are PVGed, simply because we take the view that people under 18 are children and what we understand to be regulated work is reserved for an older age group. That does not preclude children from being involved in highly significant work, but that is an understanding of regulated work. We have concerns about people who are under 18 making mistakes or behaving in a way that would result in their being reported through the disclosure system and about the impact that that might have on their later lives. We take the view that children are children.
The Scottish Youth Football Association’s rules dictate that officials need to be over 16. From our point of view, that particular section of the bill would not have an impact because, as things stand, all our volunteers are over 16 years old.
I will speak more generally. Although we do not have a particular view on under-16s working in roles, it needs to be acknowledged that there would be a concern for our members about employers consistently erring on the side of caution in respect of the definition of regulated roles. I see our members being concerned that, if somebody did not require PVG membership, they would not necessarily feel confident about employing them. Sarah Latto has alluded to that.
To follow up on that, I will give a couple of examples of roles that young volunteers fulfil. One of our members is Befriending Networks, which is the national network for befriending in Scotland—it is worth mentioning it, as this week is befriending week. Interest Link Borders, which is one of its members, has 60 volunteers of school age. Children’s Hospices Across Scotland, which is another of our members, regularly involves young people in its hospices, and it thinks that the impact and the value that young people can bring should not be underestimated.
The proportionality argument has been made in the context of removing under-16s from the scheme. It has been argued that the approach is not proportionate to the number of under-16s, the risk and safeguarding management. What is the burden of administering the scheme for under-16s? What are your views on the proportionality argument? Is there any significant difference in administering PVG membership for someone under the age of 16?
From my personal experience, there is practically no real difference.
I have a specific follow-up question for Adam Dillon on the points that he made. The Church of Scotland’s policy is that anyone under the age of 18 is a child and should be treated as such. When you have people under the age of 18 doing work that you would view as regulated work if they were over 18 and that is defined as regulated work, what are the church’s safeguarding policies in relation to the vulnerable groups with which those young people might work?
First, I would like to clarify something. It is not about people under 16 taking on roles that would be perceived to be regulated work; rather, it is suggested that it would not be appropriate for them to move into a specific role that involves regulated work until they had passed a certain age. That does not mean that they could not do similar work. It is about ensuring that they have appropriate supervision and that they are with somebody who is, under the new legislation, in a position of trust in doing what we understand as regulated work. It is about ensuring that people are buddied up in that sense.
A number of panellists mentioned in their introductory remarks the streamlining of the process, but the flipside of that is that quite a broad range of information can be provided through a background check. Will the information that may be obtained under the proposed regime be sufficiently predictable compared with what can be obtained under the existing one?
More important, I understand that the proposed system will rely on the application of a twofold test that considers whether information is relevant and whether it ought to be provided. Are you clear about what that means?
I saw you express your concern about that in the committee’s previous evidence session on the bill, and I note that the representative from the Scottish Social Services Council remarked that it would be important to develop guidance with Disclosure Scotland to help to clarify that.
Although the bill does a good job in trying to simplify the scheme, that matter is definitely a concern for us. Our members work in a sector that is challenged in relation to recruitment, and it is harder for them to get the staff that they need and want to fill roles. The proposed system could be a bit of a barrier to that because potential employees could be concerned. The system is not necessarily clear, and in the previous evidence session, both the Convention of Scottish Local Authorities and the SSSC were quite keen for commitments to be made that there will be work to further clarify the system.
Speaking personally, with a human rights law hat on, I think that it is unfortunate that such cases are almost inevitably dealt with on a case-by-case basis. It is hard to provide guidance regarding foreseeability when individual cases are dealt with only as they come up. There is a body of work to be done to improve that. It would certainly help to alleviate our members’ concerns as employers, and on the other side it would help our members who are looking to bring people back into the workforce.
It seems that there are no other views on that.
If we consider the case law, the Government has referred us to the case of R(L) v Commissioner of Police of the Metropolis, in which the judge summed it up by saying that it is about proportionality. It will boil down to either Disclosure Scotland’s or Police Scotland’s understanding of the relevance of the information that it has in front of it to the role that you or others are looking to put the person into. Will Disclosure Scotland and Police Scotland have sufficient understanding of such roles to understand whether it is proportionate to provide the information that they have?
Again, speaking in a personal capacity, I think that we have to trust the public bodies to balance that test of proportionality. It is a fundamental test to do with the rights of the individual versus the protections that are required for society.
Speaking on behalf of our members, I note that we need to look at the review process of the independent reviewer to safeguard any differences in interpretation as to what might be relevant and what ought to be released, with a view to proportionality. Our members would be concerned that the review process should balance the need for a swift review of the information at the behest of the applicant against their getting a fair view.
We would like to see a commitment—I do not know whether the financial memorandum is the most appropriate place for it—that the review process will be sufficiently resourced and that there will be enough money and hours for the independent reviewer to consider any differing interpretations of what is relevant and what ought to be done.
Finally, I will, in a sense, turn Ross Greer’s questions on their head. The other side of the issue of people under the age of 16 volunteering is when concerns arise because people have convictions or, more particularly, the police are aware of other relevant information that falls below the level of a criminal conviction. The intent is clearly that adolescence should be treated as a special period in people’s lives. That is what the Government has stated. Is the bill clear enough about how and when information is relevant when someone is seeking to take up a protected role?
Another of the potential paradoxes in the disclosure scheme is that under-16s are still allowed to apply for other disclosure products; they are just not allowed to apply for a PVG. If someone is under 16, it is very unlikely that any information will be disclosed. They could be given the opportunity to get a PVG in order to do regulated work, as the only information that is really vital to make a decision on whether it is appropriate for somebody to do regulated work is whether they are on one of the barred lists. It is not necessarily about sharing the disclosure information or the conviction information; it is about whether they are barred.
Following on from the point about the potential removal of some of that information, I note that, for us, a key factor is the time element. When we get PVGs that contain stuff from when somebody was over 16 or other relevant information, but not a conviction, we have a rigorous and fairly time-consuming process for making a final decision on whether the person will be offered membership or invited along to our protection panel for further assessment.
Speaking on behalf of one organisation and thinking of the time that it takes for us when we already know the exact role that the person would be carrying out, I think that, if a generic group was doing that work, there could be some serious problems with how long it would take for reviews to be conducted.
10:30
I put on the record that I hold a PVG with regard to school sport.
Lawyers have told the committee that there is a potential difference between information that is relevant and information that ought to be relevant, and it concerns us that those could be two different things. A couple of you have hinted at that. Mr Murphy-Lawless, you said that guidance would be helpful. Would it be just as helpful to have a legal interpretation of those two terms?
Any clarity is to be welcomed. I understand that, in your evidence session with COSLA, the SSSC and Police Scotland, there was an extensive discussion about whether the bill should contain clearer principles. Any clarity that we can get on those terms would be welcomed by both our members, who are employers, and people who are applying for jobs.
In each of your organisations, you will have case history. You have to make judgments on whether people are suitable for a PVG, and you base your decision making on what has and has not worked for you. Do you feel that additional information would be helpful? You are nodding, Ms Latto. If you do feel that, will you explain what that additional information is?
I work for Shelter Scotland, which supports people who have been affected by homelessness and bad housing. A significant number of our volunteers have lived experience of homelessness and bad housing, and, as a symptom of that, a number of our volunteers have conviction histories. We have robust processes, but we also recognise that people who have convictions are entitled to have those considered. When we consider an applicant, we take a lot of time to consider in partnership with them the circumstances surrounding the conviction and the journey that they have travelled, recognising that volunteering is often part of a recovery journey.
A suggestion has come from one of our volunteers, who has a conviction. When she approached us to start volunteering, she was barred from working with vulnerable groups, and she successfully appealed that decision. She has suggested that, when conviction information comes through, it would be helpful if there was a free text box where people could share the circumstances surrounding their conviction history. She and a number of other volunteers have reported that continuously having to share their stories when they are trying to move on from the mistakes that they have made in the past can be quite traumatic as it involves constantly reliving the trauma.
We think that what that volunteer has suggested would be very helpful. One of the proposals is that, when somebody makes an application, the disclosure information will go to them first and it will be for them to decide whether they want to share it. It would be really nice if there was an opportunity for the applicant to share the circumstances surrounding that and what has happened in their life since it happened.
That is helpful. Ms Witherow, you mentioned that it is time consuming to make sure that you get judgments absolutely correct. Would the scope for further information to be added be a serious barrier to you in the context of how you go about making your judgments?
Not necessarily. As I mentioned in my introduction, the PVG is only one part of our safe selection procedures. If there is an item on somebody’s PVG that we would like to know more about, we will ask them to fill out a self-declaration form, which gives them that opportunity. I suppose that, in that sense, there is a delay at our end. If we take on Ms Latto’s suggestion and there is an opportunity before it goes to the organisation, there would not necessarily be that delay. It is just about the point at which the applicant is asked to provide the information.
That is helpful. On the cost of the PVG membership scheme, does anyone have concerns about the cost to those individuals who pay themselves instead of the organisation paying for them? Are you concerned that we might be putting people off coming forward as a result of that?
We are concerned that the cost is significant for low-paid workers. It is important to recognise that.
Our members would agree. We seek greater clarity specifically with regard to volunteers. It is not apparent whether volunteers will definitely be free of charges if they move out of volunteering and into the professional workforce, perhaps on the basis of their experience as volunteers—it is not clear whether they will be expected to contribute. We are looking at a five-yearly scheme, so people will be expected to renew regularly.
On the question of the fees and whether they are acting as a disincentive for people in low-paid work because they feel that they cannot apply for posts unless they have joined the scheme, the answer is yes—it is a further barrier to them.
Recruitment of shared lives carers is always a challenge. Although they are not voluntary roles but paid roles, we should keep that in mind and try to fight against any extra barriers.
We share those concerns. There is a lack of clarity around volunteers. At present, PVG membership is free for people who are volunteering for a qualifying voluntary organisation. We feel that it is unfair to expect people to pay if, as a result of their volunteering, they move into employment, particularly given that, if someone moves into a role that is relevant to the volunteer role that they had previously, it is likely to be quite low paid and at quite a low grade to begin with. Expecting them to pay seems a bit unfair and it does not recognise the value that they added as a volunteer up to the time when they applied for paid employment.
I am interested in panel members’ views about a related issue, which is the types of offences that the legislation does or should list, particularly where that impacts on the associated timescales for disclosure. The previous legislation talked about schedule 8A and 8B to the Police Act 1997 offences with associated timescales for disclosure. The new legislation talks about list A and list B offences. Do panel members think that the view that is taken about disclosure of list A and list B offences is appropriate? Are the timescales associated with those lists the right ones?
I cannot speak to the specifics of it but, from an inclusive perspective for volunteers, we would welcome the reduction in the length of time for which convictions are on people’s criminal records.
I did not mean to be too technical there—sorry. There are offences included in the lists and the Scottish Government has put forward a rationale as to why it has divided the offences up as it has. The policy memorandum sets out the Government’s view about the list of offences—those that resulted in serious harm to a person, those that represented an abuse of a position of trust or displayed a degree of recklessness, and so on. Building on what you have said, Ms Latto, is there anything that you would like to see changed in this part of bill that deals with timescales and the lists of offences?
As I explained, PVG operates in a significant assessment process within the shared lives scheme, so the context for offences would always be considered. The suggestions do not appear to be a threat to protected adults that we work with.
I echo that, because it falls under a much wider safe selection process. If something has been deemed no longer of relevance or if a set time period has passed, it would not seem to pose a risk to us.
We have no particular additional views on list A and list B, but I think it is because this falls into how we recruit, given the information. We are satisfied with the categorisation and the way in which there are list A and list B offences. It is down to a rigorous process in safe selection, which is the responsibility of our various organisations.
Following up on that—it also goes back to the ORI question—will your organisations have enough guidance to train people and recruit them under what is contained in the bill? The other question is whether you think that it clarifies the whole issue. An awful lot of it is down to judgment and is very subjective. Does it concern you that it will, in the end, be down to someone’s opinion in a lot of cases?
I am aware that I have made this statement a few times, but it is because we are keen to stress to all of our teams, clubs and leagues that are taking on volunteers that PVG very much has to be seen as just one part of that process. If we were to say, “Yes, as long as the PVG is all done, that is fine,” there would be the risk that you have suggested. Even before anyone can apply for their PVG, clubs or teams—or whoever it is they are volunteering with—expect to meet them, interview them and obtain two references from them, so I do not think that there is a risk there, simply because it is part of a much wider process. Ultimately the decision to grant membership to our volunteers lies with us as the national association. Again, there are so many steps in that. If we looked at PVG on its own, there could be the risk that you suggest, but because it falls under a wider process, I do not think that the risk is there.
The SYFA’s process belongs to one organisation. Thankfully, it sounds robust, but not every organisation may do the same.
Yes, that is a valid point. We might have it right, but there will potentially be other organisations out there that still view PVG as the be-all and end-all. It would be good if there could be an education process around the new legislation. There will obviously be lots of attention around it when it comes out, so if that opportunity and platform could also be used to explain to people the importance of taking those other steps, that could go a long way to reaching out to organisations that do not necessarily have all those steps in place at the moment.
I would echo that and probably give a very similar response, in that it is a judgment call. If it is not a judgment call, you are drawing very hard lines that create a natural injustice in any process. That judgment is an important part of assessing risk to protected adults.
When the PVG scheme was initially launched, I worked for a local third sector interface in Fife. A big part of my job was about exactly what Ms Witherow was describing and involved providing training to local voluntary organisations on the scheme and how to fit it into their wider safeguarding process. This obviously reflects only on the experience of volunteers, but it is worth mentioning that the status of volunteers is very different from the status of paid employees. The fact that there is no contractual relationship means that the recruitment and selection processes for them can be more of a journey than an event. For example, within Shelter Scotland we do not officially take our volunteers on until they have completed their training. It is interactive, participatory training to make sure that we feel we know them as well as the people who have provided references. The PVG or the disclosure check is just one very significant but quite small part of a much wider process.
10:45
It is important to recognise the concern that you are raising. The reporting system through PVG and disclosure is objective. The subjectivity comes from the organisations that have to consider it. When we meet once a month to consider recruiting either volunteers or paid workers for jobs, if they have any convictions, I rely on volunteers who have experience in police, social work, law and psychology and we sit together as a group. That shows a level of joined-up working, but it relies heavily on the expertise of my colleagues to paint out and understand the broader picture. We are committed to recruiting those with convictions safely.
It raises issues. I have been involved with other smaller voluntary organisations and I wonder how their safeguarding might stand up to that test, particularly when they get the information on PVGs. Not everybody will have the knowledge of what a particular charge means, the length of a particular punishment, whether that is commensurate with a minor offence or whether it is a much more serious situation. We have to recognise that we need a very robust system for this and it relies on the volunteers.
I will echo what the other members of the panel were saying. Our member organisations have safeguarding duties themselves. Because so many of the people they support and in some cases care for may also fall within the vulnerable categories, they take those responsibilities seriously. Like all the other panellists, our members will be looking at PVG as part of the system, but not as the be-all and end-all, because it is such a crucial part of considering whether somebody might be well suited to working in social care.
I think that that is it. Could I ask one final question? One of the areas of concern to the committee has been around care-experienced young people who, due to their circumstances, may well have proportionately higher conviction rates than the natural population. Do you have any experience of having to deal with care-experienced people? Do you track the number of care-experienced volunteers that you have within your organisations?
We do not track it. You say that people with care experience are more likely to have convictions. They are also more likely to experience homelessness or bad housing. To give you one example, we have two volunteers in our foundations first service in Paisley. Both of them are care experienced, both of them have experienced homelessness and one of them has convictions. She very bravely wrote a blog for us last year, which was called “volunteering with convictions” and it shared the value that she added but also the trauma that she went through as a result, because her conviction related significantly to the trauma of being in care. That highlighted to me the need for the disclosure system to treat people who have convictions with dignity and to recognise that they are individuals, and that often the circumstances surrounding their conviction are symptoms of their life experiences and have not necessarily been by their own choice.
As there are no other comments, I thank you all very much for your contributions this morning. It was extremely valuable to the committee. I will suspend for just a few moments to allow the panels to change over. Thank you.
10:50 Meeting suspended.10:52 On resuming—
We continue with our second panel of witnesses, with whom we will consider how the Disclosure (Scotland) Bill affects those with convictions. I welcome to the meeting Dughall Laing, director of Recruit With Conviction; Rose McConnachie, policy development lead with Community Justice Scotland; Dr Cynthia Marks, senior manager, operations and policy, Business in the Community; and Beth Weaver, vice-convener, Howard League Scotland. I invite the witnesses to say a few opening remarks, starting with Ms McConnachie.
I thank the committee for providing Community Justice Scotland with the opportunity to take part in this evidence session.
As the national body for community justice, we have a strong interest in having an effective disclosure system that protects vulnerable people while supporting people with convictions to access employment and education and reintegrate into their community. Our campaign, second chances, shows that access to employment, learning and volunteering are all routes to providing people with the opportunity to reintegrate successfully; they also aid their rehabilitation and ultimately reduce the likelihood of further offending. Work is a key factor in people’s desistance. Beyond wages, work provides a sense of purpose and a stake in society. Evidence indicates that, when used disproportionately, disclosure can lock people out of those opportunities.
We welcome the principles of the bill, particularly the measures around simplification, and recognise that the bill promotes a shift to a more progressive, proportionate and sustainable system for people with convictions while continuing to safeguard the vulnerable.
We are, however, concerned about the creation of a new offence of performing work that would be covered by the PVG scheme without a PVG or following a failure to renew scheme membership, thereby potentially criminalising more people. In particular, the proposed penalty of up to 12 months in custody for a summary conviction seems disproportionate for what may amount to a lapse in paperwork and is a substantial shift from the present system. Of course, a custodial sentence is also inconsistent with the recent extension of the presumption against short prison sentences.
In our evidence, we highlighted the need for accessible guidance to make the new system understandable to all who use it: people with convictions, employers and others.
I represent Howard League Scotland, which is Scotland’s only penal reform organisation.
We welcome the opportunity to give evidence, and we hope to build on the evidence that we have given previously in relation to the age of criminal responsibility and the Management of Offenders (Scotland) Bill. We also recognise that the proposed changes seek to achieve a much more proportionate and individualised process that balances safeguarding the public with the rights of individuals with convictions.
Our submission attended to four key areas: childhood convictions and the issue of individualised disclosure; uses of other relevant information; representation, review and appeal; and removable and non-disclosable convictions.
With regard to the first key area, we welcome the provisions that treat childhood convictions as a separate category and limit the disclosure of information relating to children and, in particular, the automatic disclosure of childhood convictions. We feel that that approach takes Scotland towards a more individualised and structured discretionary model of disclosure. With regard to the disclosure of convictions accrued in childhood, we question why such a model or approach might not be applied to adult convictions. However, we advocate for a more individualised approach to the disclosure of convictions in general.
We have suggested that, if ORI is to be disclosed, the implications of any disclosure need to be carefully evaluated in terms of proportionality and necessity in relation to the ends of public protection against the rights of individuals. We also believe that the bill should categorically rule out the disclosure of certain kinds of information that might be disclosed currently as ORI.
We welcome provisions relating to reviewable data, including rights of review, representation and appeal. While we welcome measures to include representations from the applicant, which can allow for a much more situated understanding, we propose that consideration is given to providing for an independent reviewer on first request for all reviews, rather than a review initially being undertaken by the body whose decision is to be reviewed.
We also welcome the provisions in the bill for reducing the period after which a conviction may become non-disclosable or an application for removal can be made. Drawing on research evidence produced by time-to-redemption studies, we still have questions about the disclosure of spent convictions for the purposes of public protection in circumstances where the evidence would suggest that that person is statistically no more likely than members of the non-convicted population to commit a crime in the future. We also question the rationale for continuing to disclose spent convictions if there is scope in the provisions of the bill to remove them before that point. If a conviction may be removed, that suggests that on-going disclosure is not required in the interests of protecting the public.
Finally, the onus seems to be on the individual to apply to have their conviction removed, which rather depends on their having both the knowledge and the means to do so. Ought not the responsibility properly reside with Disclosure Scotland to review the relevancy of continued disclosure of spent convictions? That the subject is required to pay a fee for consideration of removal of the conviction puts yet another barrier in the way of people with very limited means.
I thank the committee for giving us the opportunity to speak this morning.
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We welcome the direction of the Disclosure (Scotland) Bill, especially its focus on rehabilitation and the removal of barriers to work for people with criminal convictions. We feel that its aim of striking a balance between rehabilitation and safeguarding is also to be commended, as is the empowerment of individuals to have control over their data.
We have long been an advocate of removing barriers to employment for people with criminal convictions. With Walgreens Boots Alliance, we set up the national reducing reoffending through employment network in 2012, and we launched the ban the box campaign in the UK in 2013. Ban the box encourages employers to remove the tick box from application forms that ask about criminal convictions and to decide whether, when and how best to ask for that information later in the recruitment process. The campaign has gained traction nationally, with more than 140 employers currently signed up, covering more than 914,000 roles. It has been adopted by the civil service in England and features in the Ministry of Justice’s employer guide. The campaign was officially launched in Scotland on its fifth anniversary, in 2018, and is promoted as part of Release Scotland’s approach to recruitment.
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I am one of the directors of Recruit With Conviction. We work with employers and intermediary agencies that support the one in five adults in Scotland who has a criminal conviction. We welcome the chance to provide some input into the bill. We also welcome the proposed changes, including in relation to the development of a system that should be more proportionate and the growth of independent verification.
However, we have some concerns. In particular, we are concerned about access to the information that belongs to those individuals and the costs involved; the understanding of employers and individuals of how the system is used; and the unintended impacts through the management of the system—currently, the disclosure system does not perhaps operate in the way that people would expect it to. We would like to see some of those things strengthened in the bill. Finally, we are very keen to see more independence for the third-party verifier and to understand how that role is to be used to have an oversight of the process.
Thank you very much. We will move straight to questions from the committee.
You probably heard me asking the previous panel about key legal issues that have been flagged up to us. Specifically, do you think that full clarification on a legal basis is needed of what is relevant and what ought to be relevant, as they are potentially two different things? Would clarification from a legal perspective be helpful?
Yes, that would be very helpful. However, legal clarifications can sometimes be rather difficult to understand, and a lot of organisations—particularly smaller and newly started ones—might not have the background experience to translate a legal clarification, so it would be helpful to translate that into layspeak.
Would it be helpful to have the legal clarification and the guidance written in straightforward English, so that everybody would understand it?
Yes, it would.
The previous panel raised the issue that there will be circumstances in which people will want to find out more information. I think that your organisations will feel much the same about that. Will the bill allow you to have all the information that you need to make the right decisions?
One process that needs to be involved relates to the use of the information. Members of the previous panel talked about their own safeguarding systems and processes. PVG scheme membership is part of the process; it is not the be-all and end-all. Good clarification and good understanding of how information will be used will be vital. Small businesses do not have that information or the capacity to develop that, so guidance and good support for them need to be in place from the outset.
We second that. That is one of the roles for other organisations outside of what the bill can accomplish. There needs to be a wider piece of work to encourage more employers, regardless of which sector they are in, to develop such processes and to see that as one step, regardless of what sort of disclosure they are looking at or are required to get. A lot of employers will not have developed that sort of system on their own, so clarity and well-developed guidance with the bill and on the disclosures are essential.
Do you think that that might impose more time restrictions on some of your staff as a result of interpreting that and having staff training? Would that be another barrier to people acting as volunteers and helping?
Training and development for organisations is our bread and butter, and we have provided training on that for seven or eight years. There is an assumption by individuals and applicants that those to whom they submit their information understand things, but they quite simply do not. Even in large organisations in which there might be a human resources department that understands the PVG system, information is not relayed to decision-making managers on the front line. Therefore, there is a very emotive process in which people do not understand the information. If the information is not presented in the best fashion, people will not get through into the labour market, because it is quite simply easier for people to say no than to say yes.
Do you have any views on the financial cost of the proposed legislation?
We welcome the further guidance, and it has been suggested that there will be another consultation on the process. It needs to be proportionate for small employers, particularly any employer that is trying to be responsible and will be paying for things itself. With the potential of people moving into and out of regulated roles, a further consultation on that is absolutely essential.
I largely second that. It is worth considering the other point that was made during the earlier panel session about the resourcing of the independent reviewer. There is scope for that resource to be used more than four days a month, as was envisaged.
During the earlier panel discussion, the issue was raised that there will be transitions from volunteering to paid employment. One of our big concerns is that individuals can currently access their criminal record free under the general data protection regulation, and we would like a similar process to be maintained in the Disclosure (Scotland) Bill where the individual has pre-existing knowledge of what may or may not be disclosed to allow a judgment to be made. I know that a process is built in in which they will see that information before it goes to the employer, but that is too late. They really need to see it before that stage so that they can make an informed decision on whether they want to be part of the panel. Fundamentally, it is their information, and it needs to be protected.
I want to ask you further about that. We have talked about other information that may be disclosed. That information would be about someone’s conviction. Other information would not be relevant.
I suppose that that is where the balance is and where the art exists. The ORI and the other information that will be presented to employers will have a bearing on whether the person is selected. The conviction information is quite cut and dried, and people can currently access that for free. We are instituting a system in which that will no longer be the case for a large section of employment. We need to maintain that access, and ORI becomes a different piece in the whole process.
My line of questioning follows on from what I asked the first panel and, indeed, Liz Smith’s questions. Under the bill, is it sufficiently clear what information will be provided in what circumstances, given that we do not have sight of the guidance? Is that an issue for the panellists?
Yes. Greater clarity on those things and the development of good-quality guidance are vital. The guidance is intended to support people in making decisions in a liminal space. There will be fine judgments, and the guidance cannot be black and white, as that would result in people being locked out of the system.
We think that making robust, good-quality guidance available to everybody who is involved in the process is the key. They will not all be lawyers and specialists in risk assessment. We look forward to the development of that guidance, but I do not know how much of that information needs to be in the bill at the front end. We do not have a formal view on that.
I am interested in the view of Howard League Scotland. Its written evidence says that there should be
“a universal set of guiding principles to underpin the disclosure of ‘soft’ information”.
I wonder whether that is true of all the disclosures that might take place under the act.
That is certainly our position. We would advocate for a much more individualised approach not just to the use of other relevant information, but to the disclosure of convictions. Leaving to one side that spent convictions are not disclosed in continental Europe, there is scope in the bill to deal with the matter. A discretionary approach is taken to the disclosure of childhood convictions. What is the rationale for not adopting such an approach with adult convictions? An individualised approach would allow a case-by-case, structured approach to decisions to disclose, and that is really important in balancing rights to public protection and upholding the rights of individuals with conviction information. It has been suggested that schemes without the flexibility to permit that level of discretion cannot be compliant with article 8 of the European convention on human rights.
On the inclusion of non-conviction information, we would refer to some of Grace’s guidelines in 2014. He suggested tests that should apply to the disclosure of any such information. He asked:
“is the information indicative of the (alleged) commission of a sufficiently serious offence which it is reasonably certain was committed by the individual concerned, that is currently relevant to the purpose ... of public protection, and which the individual concerned has had an opportunity to comment meaningfully upon (where the information is of an allegation, caution, arrest, charge, or prosecution not resulting in a conviction)?”
Guidance is also available from the Equal Employment Opportunity Commission in the US. Although that is given to employers to help them to make sense of information that is disclosed, there are guidelines that might be extrapolated to inform a much more individualised approach to decision making on convictions. For example, three specific criteria are mentioned, which are referred to as the nature-time-nature test. You have to look at
“The nature and gravity of the offense ... The time that has passed since the offense, conduct and/or completion of the sentence”,
bearing in mind time-to-redemption studies, and
“The nature of the job held or sought.”
Further guidance is offered, which refers—the first panel talked about this—to attention to the “circumstances surrounding the offence”, the number of offences that the individual has been involved in and whether that suggests a pattern, and age at the time of conviction and/or release from prison. That allows for a much more situated approach to the disclosure of convictions.
That sounds like a set of principles that could be codified and put in the bill.
It does.
Does the panel agree with the Law Society of Scotland’s point that a set of principles—perhaps such as that just enunciated or similar—should be put in the bill?
Yes. A consistent set of principles would give everyone confidence in the process and a transparent understanding of what is taking place and how decisions were made. That would give employers more confidence, as well. If there was a published set of standards by which everyone came to decisions, that would give everyone clarity, so I absolutely think that that would be welcomed.
I would like to ask one final question, which is—
I want to ask a question on that issue.
Sorry.
It is important that a lot of heads were nodding, but that cannot be put in the Official Report.
Do all the panellists agree with that?
I agree with that. People presume now that the PVG system almost operates in that way, but that is not true. One of the big criticisms that employers and individuals make is that that process has not been gone through. We absolutely endorse a much tighter sense of principle at the outset.
I could not see our objecting to greater clarity and that positioning of underlying principles.
Do you agree, Dr Weaver?
Yes.
I am sorry to have interrupted Daniel Johnson, who has a supplementary question.
It is my final question, and again it follows on from what I asked the previous panel. The bill and policy memorandum are relatively clear that the intent is to treat adolescence as a special point in time, and there is clarity about the offences committed. I am concerned about whether there is a grey area around other relevant information that stems from people’s behaviour and contact with the authorities under the age of 16. Is the bill clear on how and when Police Scotland may disclose that information if someone, at a later stage when they are over 16, applies for a PVG?
To turn that on its head a little, one of our concerns is that, if we are removing information for all under-16s, as soon as there is anything on there, the individual will be deemed to be far too high a risk for any employer or organisation to take on. We welcome the approach of treating young people as young people, and there is a need for the measure, but it means that those who have information reported on them at a later stage will be far more stigmatised and the assumption will be that the behaviour involved was beyond any form of acceptable behaviour. It creates that dichotomy and contrast in the process.
That is my exact concern. Is it clear how and when such information might be disclosed?
It is not clear to me, but there are people in this room who are much more clever than I am.
I have no insight into how and when such information would be disclosed, based on the guidelines that have been provided so far.
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Does that concern you?
Yes.
We share that concern. The example of young people in care came up in the earlier panel. We know that young people in care experience greater contact with the police, often for things that, were they in a normal family setting, would perhaps not come to the attention of the police. We are concerned that ORI might have an unequal impact in that space. I do not think that that is the intended consequence, but we worry about that mechanism.
Dr Allan, do you want to ask about the lists again?
I have nothing to add about that.
The earlier panel were asked about the A and B lists. Does this panel have any comment on that area?
I have quite a lot of comments on it.
The 2015 amendments that were made to the list system genuinely were a great step that gave people the opportunity to move on from their previous offences. However, the list system in its current format has not worked in any way, shape or form. A report by colleagues at Community Justice Scotland has referenced the fact that those who have not made any form of representation into the appeal system are not having their appeals taken forward. The system is not being used appropriately. One big issue is a lack of comprehension among employers and applicants as to how the list system operates.
Under the existing system, people are finding that their convictions are not automatically removed, although that should happen. It should be a fairly straightforward weeding process for the vast majority of offences, but that is not happening. There is an issue with the accessibility of information and individuals’ ability to use the system. There is a real need to strengthen that as much as possible to ensure that it happens automatically and that the process is independent.
We often find that people assume that the decisions are made by human beings but, as I understand it, they are quite commonly made by programming. That is fine, but it means that that objective information is not brought to bear in the process.
We welcomed the 2015 amendments, which were a fantastic step at the time. However, the system needs strengthening and needs to be used on a much higher level so that people have their previous convictions removed.
Similarly, to go back to Beth Weaver’s point, the arbitrary period of 15 years for an adult does not reflect the information. The reduction by four years is welcome, but my understanding is that it is purely because of the reduction of four years relating to the bulk of offences under the Management of Offenders (Scotland) Act 2019 and that first level of disclosure. It becomes a bit arbitrary. I suppose our question is whether there is more scope to ensure that the period reflects the evidence, which Beth Weaver laid out, instead of simply deducting four years because that has been deducted from the period relating to community disposals.
Rose McConnachie mentioned care-experienced young people. Given that a disproportionate number of young people who are in care have engaged with the authorities and that, under the Children and Young People (Scotland) Act 2014, we extended local authority support to young people to the age of 25, is there a particular and special case to be made for care-experienced young people that what would be disclosed for them should be different from what might be done for other young people under the age of 16?
Somebody in the previous panel mentioned having a free-text box and a chance to explain. That could be a consistent process for everybody, which might help young people from a care-experienced background and perhaps others who have faced challenges to explain their situation. They might feel more comfortable doing that in the process of the disclosure than in a live interview. As was said in the previous panel, it is important to recognise that that is just one aspect of how we support care-experienced young people and other young people who face particular challenges, especially in supporting them into employment. Employers and support organisations can do a lot more outwith the bill to ensure that that kind of stigma is removed, but that might be an option for supporting them through the bill.
I have just had a thought about that. In reading about decision making around the disclosure of childhood convictions, I found that one of the circumstances in which childhood convictions might be disclosed would be when a pattern continued into adulthood. One of the difficulties is that people who are looked after or care experienced often have arrested development and less opportunity to move on in life compared to somebody who is perhaps engaged in an isolated offence at the age of 13. We also know that our prisons disproportionately rehouse, for want of a better word, a lot of people who are care experienced. Therefore, the likelihood of care-experienced people going on to develop a pattern of adulthood offending means that they are precisely the people whose childhood convictions, by implication, will be disclosed.
So, now that you have mentioned the issue, convener, I do have some concerns.
That is not my job, but never mind.
Care-experienced young people often feel disempowered by a lot of the experiences that they go through. Disclosure runs the risk of being further disempowering by taking away their agency over their information. However, there is something that could help empower about that. Supports and processes could be put in place to help empower people to take ownership of their journey and experiences and to help them explain where they have been, where they have come from or where they want to go. In these discussions, there is a risk that we are very deficit based, but we are talking about people with strengths and skills and there is an opportunity to help focus on that as part of how disclosure could be used.
Indeed.
There is a need to be much more proportionate about the information that we are using and how it is assessed and passed on. Because young people who are involved in the care system are observed in a structured fashion, we know that they are much more likely to be involved with the police. We need to stop singling them out as a group and start thinking about that wider issue.
Lesley McAra’s studies have shown that people’s socioeconomic background and where they come from have a high bearing on whether they pick up a conviction, even in like-for-like situations. Similarly, a lot of the people whom we are looking to protect are young people with additional needs. More and more, we are seeing that they are the people who are coming through who have convictions from when they were younger, perhaps because of their behavioural understanding and such issues. We almost need to institute a system that looks after not just kids who have been in care but those who come from poorer backgrounds and those who have additional learning needs, because they are all much more likely to end up in the criminal justice system and the implications for them go on for much longer.
There are no further questions from my colleagues. If you have not had the opportunity to discuss anything today but you particularly want to bring it to the committee’s attention, it would be helpful if you could provide information on it through the clerks. Thank you all for your attendance this morning. It has been very helpful.
11:23 Meeting continued in private until 11:47.