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Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2015 [Draft]
I reconvene the meeting and we move on to agenda item 7. Members have before them the draft order and a draft of the associated Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order 2015. The draft order was laid yesterday and was provided to members along with the draft of the remedial order shortly after it was laid. We have before us the Cabinet Secretary for Education and Lifelong Learning to enable us to scrutinise the draft order.
The proposed approach to the draft order, which we expect Parliament will be invited to agree this afternoon, does not allow for any detailed scrutiny of it. In the limited time that is available to the committee, we will do the best that we can to scrutinise it, but as we received it only yesterday afternoon and we have only this morning in which to consider it, it is clear that there are limits on the level of things that we can do.
The approach to the consideration of the draft order is, of course, a most unusual one, and we do not expect it to happen again very soon. Although we will do what we can in the time that is available to us to scrutinise the draft order, the committee recognises that we will have an opportunity to reflect further on it in scrutinising the remedial order, and we envisage taking that opportunity.
I welcome the Cabinet Secretary for Education and Lifelong Learning, Angela Constance. With her from the Scottish Government are Nigel Graham, who is a policy adviser in the criminal law and sentencing branch; Kevin Gibson, who is a solicitor in the criminal justice, police and fire division; and Ailsa Heine, who is a solicitor in the food, children, education, health and social care division. That sounds like a pretty wide remit to me. I also welcome Gerry Hart, who is head of protection services at Disclosure Scotland.
I understand that the cabinet secretary has a statement. I always wish such statements to be short, of course, but under the circumstances, I understand that it might not be. I invite the cabinet secretary to introduce the subject to us, please.
Thank you, convener. I will do my best to be brief.
Good morning, colleagues. Thank you for the invitation to attend the meeting to answer your questions about the draft affirmative order—the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2015—which we propose will form part of the amendments to the system of higher-level disclosures in Scotland. Before I briefly explain some of the background, I put on the record my thanks to Parliament, including a number of parliamentary officials and the business managers, who have been very accommodating as we have dealt with the unusual parliamentary scrutiny process for the draft affirmative order.
Let me explain the background. “Higher-level disclosure” is the phrase that is used to describe the overall system that allows for additional scrutiny of a person’s criminal convictions. Among other purposes, it is used where someone wants to work with vulnerable groups, such as in a nursery, as a medical professional or in a school, or where someone wants to work in a sensitive area, such as in offering financial advice. Those are just some of the areas in which higher-level disclosure is used.
The system operates, first, through the responsibilities of individuals to disclose conviction information, and secondly through Disclosure Scotland being able to issue certificates that contain conviction information that is held on central police records. Under that system of additional scrutiny, the information that must be disclosed by the individual and Disclosure Scotland includes convictions that have become spent under the Rehabilitation of Offenders Act 1974. That information would not ordinarily be disclosable to an employer, but it is disclosable under higher-level disclosures.
The operation of the two areas of disclosure can be seen as mutually reinforcing, with information that is given by the individual in, for example, completing a job application form able to be checked by an employer against the information that is contained in a higher-level disclosure, such as a standard or enhanced disclosure certificate or a protecting vulnerable groups—or PVG—disclosure that is issued by Disclosure Scotland.
It is helpful to place the higher-level disclosure system in context. For less sensitive roles—for example, supermarket checkout staff—Parliament has decided that a different level of scrutiny is merited, with people being required only to self-disclose any recent or serious convictions. Once a conviction has become spent under the terms of the Rehabilitation of Offenders Act 1974, it will not be disclosed in relation to less sensitive roles. The proposed changes affect only the higher-level disclosure regime, with no impact on disclosure relating to less sensitive roles.
Case law through various court judgments has found that the point at which someone’s conviction becomes spent is the point at which the information becomes part of the person’s private life. The system of higher-level disclosure, therefore, which requires disclosure even of spent convictions, requires the disclosure of private information about an individual.
In June 2014, the United Kingdom Supreme Court found that the system of higher-level disclosure as it operated in England and Wales breached a person’s article 8 rights under the European convention on human rights. Although the court fully accepted the need for additional scrutiny of a person’s background if they want to work with vulnerable groups or in a sensitive role, it indicated that the automatic indiscriminate requirement for disclosure of all spent convictions was not proportionate as no assessment was undertaken of the relevance of the information to the need for the disclosure.
The court suggested that a proportionate system of disclosure required the necessity for the disclosure to be assessed with reference to its purpose, and that assessment could include, among other matters, looking at factors such as the age of the conviction, the nature of the offence and the age of the offender. An amended system of higher-level disclosure that takes account of those factors will be partly delivered by the affirmative order, which amends the requirements for self-disclosure by individuals of their spent convictions.
As members will be aware, the reforms to the system of disclosures issued by Disclosure Scotland will be delivered in a forthcoming remedial order under the Convention Rights (Compliance) (Scotland) Act 2001, and that remedial order will be subject to separate consultation and parliamentary scrutiny in accordance with the procedure set out in that act. The amended system will restrict the requirement for disclosure so that not all spent convictions will require to be routinely disclosed. Moreover, certain spent convictions will become protected convictions, which will not be disclosed. Other spent convictions will still require to be disclosed because they will still be relevant for the purposes of the disclosure.
The Scottish Government is focused on ensuring that our system for checking the background of people who want to work with vulnerable groups or in other sensitive roles continues to protect the public. However, we must balance that public interest with the rights of individuals to have their private life respected, and we consider that the legislative package achieves that necessary balance.
Once again, I put on the record our thanks for the Parliament’s assistance and guidance in taking forward the draft affirmative order and, in due course, the remedial order. I am aware that you are likely to have questions about the legal and procedural issues surrounding the orders, and we are happy to answer any questions that you have.
Thank you, cabinet secretary. I think that your opening remarks probably answered my first question, which was about the problem that you are seeking to solve.
It is probably helpful if I say on the record and to my colleagues that we do not normally consider the policy behind the instruments that come before us—that is for the relevant policy committees. However, it is not just because, on this occasion, there is no policy committee, but because the entire purpose of the instruments is to satisfy the European convention on human rights that I suggest that everything that we would want to ask about falls within this committee’s remit. This has to be made to work, which means that every policy consideration is relevant to us.
On that basis, I hand over to John Mason.
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Good morning, cabinet secretary. Can you explain the timing of the amendment order? I think you said that the UK Supreme Court ruling came out in June 2014. Why have you chosen to introduce the order in September 2015?
It is a fair question. It is important to stress that, although the UK Supreme Court’s remit goes across the UK, its judgment related to a situation that had arisen in England and Wales in relation to the indiscriminate disclosure of cautions. In Scotland, we have alternatives to prosecution and not cautions, so there was no direct, easy read-over between the judgment and the law in Scotland. Furthermore, the judgment did not make any comment about Scots law. Therefore, we wanted to take the appropriate time to understand the UK Supreme Court’s judgment and to look at other case law in England, Wales and Northern Ireland.
I stress that, irrespective of how long our considerations took in getting to this point, because of the unique nature of what we are dealing with and trying to do, we are seeking Parliament’s co-operation in pursuing matters through this unusual scrutiny and expedited process. If we refine the higher-level disclosures system, we will have to cease the operation of Disclosure Scotland. It provides 1,000 higher-level disclosures a day, so we will need to minimise the disruption that will be caused by ceasing its activities.
The matter is urgent, but we wanted to have full deliberations to ensure that we understood the case law and the UK Supreme Court’s judgment in order to make all necessary adjustments to our policy and practice.
I totally agree that we should think things through and not be precipitate in our action. However, have there not been 15 months during which issues about people’s private lives may have been disclosed in contravention to the court ruling?
As I said, it is entirely appropriate for the Government to look closely at the UK Supreme Court judgment. There was not a direct read-over into Scots law. It is complex to change the higher-level disclosure system, and it must be done very carefully.
Gerry, would you like to add anything from a Disclosure Scotland perspective?
The issue that was raised about the time that it has taken to understand comprehensively the implications of the UKSC judgment for Scots law is important. Because the Scottish Parliament is not competent to act outside the ECHR, we could not simply look at the disclosure aspect of the judgment; rather, we had to look at and review the policy across the Protection of Vulnerable Groups (Scotland) Act 2007, the Police Act 1997 and the ROA act to identify potential areas for incompatibility right through the depth of the legislation, and that took time.
It also took time to devise and implement an operational solution in Disclosure Scotland that was capable of applying the amended regime and generating disclosures safely for the public so that the right information is disclosed to employers and other interested parties, as well as balancing fairness and making sure that the disclosures are accurate for individuals who request them. That took a number of months and it involved some quite complicated work at Disclosure Scotland. All of that added up to the period that was taken.
Do you know when England and Wales changed their system?
They changed their system prior to the UK Supreme Court judgment. However, there has been case law since then, particularly in Northern Ireland recently, which suggests that there may be question marks over whether the English and Welsh system is as compliant with ECHR as we would certainly want the Scottish system to be. Therefore, we have had to take cognisance of the developing case law and ensure that the Scottish system was fully compliant.
Stewart Stevenson has a further question.
It is on a technical point. Will the cabinet secretary repeat her statement about higher-level disclosures and give the per annum figure?
Yes. Do you mean in terms of the daily figure?
Yes. I heard you say something that took me by surprise and I want to be clear what the number is.
For every day that Disclosure Scotland is not issuing higher-level disclosures, 1,000 disclosures are not being issued. The parliamentary process means that Disclosure Scotland will not be issuing higher-level disclosures for three days, so that is 3,000. You will appreciate why we have pursued a more expedited parliamentary scrutiny process for what are—I hope the committee agrees—good and practical reasons.
Thank you. The number was higher than I expected, and I wanted to hear it again.
Indeed. The number seems surprisingly high, but if that is the case, so be it. John, do you want to pursue that?
Yes—I want to develop that question. Are there any other reasons for making the process such a swift one? There have been 15 months for consideration and two days for scrutiny. I appreciate the figure of 3,000 disclosures, or 1,000 a day, but are there any other reasons why this has to be done swiftly, or is that the sole reason?
It is important that we have public confidence in our disclosure system, and that is why it ceases to operate while we move to a more refined system of higher-level disclosures. While we are making changes, it would not be appropriate to issue disclosures on the basis of the system before it was amended or refined.
The committee might be interested to know that Disclosure Scotland handles 1.2 million disclosures a year. I note the committee’s questioning on the 15-month lead-up to this point, but it might interest members to know that the UK Supreme Court expressed in its decision some surprise that legislation for England and Wales had been made in advance of the court’s decision.
Given the complexities, the fact that the case in question did not have a direct read-over into Scots law and the fact that the judgment by the UK Supreme Court did not make any recommendations or comment on Scots law, we had to undertake a complex piece of work and a period of investigation to review our current system, as I and my officials have outlined. As a result of that review, we are now coming to the Parliament with proposed changes.
Although the affirmative order is going through a three-day process, as I intimated in my statement, there are two mutually reinforcing aspects of the disclosure system—the responsibilities of the individual, which is what the affirmative order is about, and the compliance order, which will be laid on Thursday, and which relates to the responsibilities of Disclosure Scotland. In essence, the responsibilities of the state and the responsibilities of the individual have to be complementary and married up in terms of the disclosure system.
The proposed new system cannot come into place until both the affirmative order that we are discussing today and the compliance order come into force, and they have to come into force on the same day.
The point that I am getting to—I apologise for the length of my answer, convener—is that, once the compliance order is laid, there will be a scrutiny period of 120 days. There will be a period for written considerations and the opportunity for the relevant policy committees to write reports, and then a statement will have to be laid in Parliament. If changes are deemed necessary after that point, they can be made. We would then have to amend the affirmative order. There is a process of scrutiny.
How will the figure that the cabinet secretary quoted and also outlined in correspondence, of 1,000 higher-level disclosures a day, be affected by the changes that are being proposed? Has any assessment been made of the number of disclosures that can be expected with the new proposals that are before us?
We do not expect the number of disclosures to change. The proposals are about moving to a system in which the decision-making process about what should be disclosed to an employer is more proportionate and reflects the learning that has taken place following the UK Supreme Court judgment.
I note what the cabinet secretary said about the decision-making process. It appears that, depending on the circumstances of the request for a higher-level disclosure, there will now need to be some assessment of what is put in it, particularly in relation to schedule B1 to the order. We will come to that in more detail later.
My question is very simple, but it is important to get this on the record. How well prepared is Disclosure Scotland for what, at least at this stage of the committee’s questioning, appears to be a more complex environment that may increase its workload? Has the preparation for those changes been part of what has justified the amount of time that it has taken to get to this point?
That is a pragmatic point. The system as it stands is that all spent convictions are disclosed under higher-level disclosures; there is a simplicity to that. We are moving to a system in which some very minor issues will not be disclosed. There will always be some spent convictions that will be disclosed and there is a list of offences that may—
Forgive me, cabinet secretary. We will come to that data a bit later. I would like to hear that Disclosure Scotland is prepared for the additional complexity in its decision making.
Yes. Just now there is a standard—a target, if you like—for 90 per cent of correctly completed disclosure applications to be completed within 14 days. We are confident that, given this amended or more refined system, that standard can still be met.
Thank you. We will come back to that, if we may. Now we have Mr Kelly with a question on alternatives.
I will come to my substantive point in a minute, but I want to return to the answer that the cabinet secretary gave previously regarding the 1,000 higher-level disclosures a day. She said that that figure would not change. I understand that there is a balance to be struck between complying with the ECHR and ensuring the protection of the rights of the organisations to which Disclosure Scotland has to provide the disclosures. However, if the effect will be that a number of spent convictions that are currently disclosed will not in future be disclosed, how can the cabinet secretary be confident that there will still be the same number of disclosures?
As I intimated, the issue is the decisions in and around what is disclosed to an employer. People will still have to make their applications. Gerry Hart will say a bit more about the Disclosure Scotland process.
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The number of disclosures is driven by the activity in the marketplace for new workers coming into regulated work or changing jobs; there is a frictional movement. That drives the number of applications that Disclosure Scotland receives for disclosure. Currently, and for the past couple of years, we have been doing a thing called retrospection, which is bringing on the existing regulated workforce into the PVG scheme in large numbers. That period will come to an end very shortly.
That is the main drumbeat that is driving the number of applications. A distinct point concerns what is actually in the disclosure, which is what is being affected. The incidence of disclosure should not be affected. After the change is made, employers might expect to see less information disclosed in relation to minor, aged and irrelevant convictions than would have been the case under the previous regime.
A balance must be struck—we have tried to do this in policy—between providing information that an employer really must see under the safeguarding imperative, which continues to drive the ethos of the disclosure regime, and taking into account an individual’s rights concerning their past conduct where it is no longer relevant to the kind of work that they are seeking to do.
We will come to that point in a minute—probably in some detail, because it is obviously relevant—so I wonder whether I can persuade James Kelly to leave it for the moment.
Sure—I will come back to some of those points.
It has been 15 months since the Supreme Court ruling. What was your logic in not going down the route of primary legislation?
I ask Ailsa Heine, as the lawyer, to answer that.
One of the main reasons for not opting for primary legislation was that the provisions in relation to the Rehabilitation of Offenders Act 1974 and the amendments to the 2013 order could not have been addressed in a bill because of the powers that we have under the 1974 act.
There is a Scotland Act 1998 order that gives us powers to make provision in the 2013 exclusions and exceptions order in relation to reserved areas, and that is the only way in which we can make those changes. It would not have been possible for us to do so in a bill, because it would have been outside our competence.
Although it would perhaps have been possible to address in a bill the provisions that are in the remedial order, there would still have been a requirement for two pieces of legislation that would have to operate and come into force in tandem. Given the powers that exist in the Convention Rights (Compliance) (Scotland) Act 2001, it was felt that that would be the appropriate way of making changes in relation to the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007.
I understand your point about process, but primary legislation would have given Parliament much more time to scrutinise what is clearly a significant piece of work. Was that taken into account?
It was taken into account. In considering a bill, we felt that it would have required a fairly expedited process because of the requirement to maintain public confidence in the system of disclosure as the changes were being made. We considered that, with a remedial order, the changes could be made and there would then be certainty as to what the law required. There is still a period of public consultation afterwards, after which we can reflect and consider whether any changes need to be made to the remedial order.
The approach that has been adopted will mean that the processes for higher-level disclosures will change as soon as the order and the remedial order are made. Presumably, cases that are as yet unprocessed and require a disclosure will be dealt with under the new scheme. Can you confirm that that will be the case?
Yes. Disclosure Scotland will cease operation of higher-level disclosures for three working days. The 3,000 applications that have not been processed will be processed under the new scheme. There are arrangements in place for Disclosure Scotland to work outwith its normal working hours to ensure that our standard of having 90 per cent of correctly completed applications dealt with within 14 days is met.
Forgive me for asking, but is it just 3,000 applications? For three working days we envisage that there will be a blank space. Are there other applications in the pipeline that will add to the 3,000 figure?
I checked this morning and the numbers that await processing are well within the parameters that we set out, so the backlog will not be bigger than we said it is. We will process it efficiently and as quickly as we can do. We have resources lined up, in place and ready to go when the law changes.
Before we move on to questions on the substance of your proposals, may I go back to the process of disclosure and the unit’s operation? As the cabinet secretary indicated, what is in which category and must or must not be disclosed has in essence been quite clear up to now, but once the orders that we are considering go through, there will still be outliers and there will be a group in the middle for which some kind of judgment will require to be made. You said that Disclosure Scotland provides 1,000 higher-level disclosures a day, and it is clear that 1,000 cases cannot come to the head of the unit every day for a discretionary view—that will manifestly not happen. I presume that somewhere there is a flowchart or paradigm that sets out the basis on which you will operate, in the hope that only a very small number will need managerial discretion. Will you share such a document with the Parliament?
I would not describe the system as involving “managerial discretion”. We are seeking the Parliament’s approval to agree a set of rules under which higher-level disclosures will operate, and when the compliance order has been laid there will be a 120-day period in which people can express their opinions on the rules that the Scottish Government has proposed.
I highlight that the police currently have the power to disclose information that they regard as relevant and pertinent, even if it has not led to a conviction, and that that power will remain unchanged. We are revising a system of rules in relation to disclosures, and that is what requires parliamentary scrutiny and approval.
Further to the convener’s question, am I correct in thinking that relevance to employment will become more of an issue than it has been? I would have thought that in that regard there will be some kind of managerial input. For example, in the financial area, there will be decisions about whether something is relevant to the role of finance director, mid-tier accountant or cashier. Will not more judgment be required in that context?
I probably used the wrong word when I said “managerial”. “Administrative” is the legal term; I think that in essence we are dealing with administrative law. Nonetheless, surely somebody in Disclosure Scotland will have to make an administrative decision about the relevance of something.
Operational processes and administrative decisions are based on the rules as laid down by the Parliament. Under certain circumstances, individuals can of course challenge the application of the rules via the sheriff court, but we are talking about a regulated process.
On Mr Mason’s question about types of job, the Parliament already recognises that different jobs require specific levels of disclosure. For example doctors, teachers, social workers and nurses require to be part of the PVG scheme; prison officers, people who work in young offenders institutions and members of prison visiting committees are subject to an enhanced disclosure scheme; and people in financial services are subject to a standard disclosure scheme. That part of the system already exists.
So it is not becoming more complex.
It is becoming more complex, which is why we are coming to the Parliament with a series of rules. I do not know when you want to explore this further, convener. There will be a list of offences that will always be disclosed and there will be a list of offences—
I am about to ask you about that.
—that will be disclosed depending on the age at the time the conviction was received and how long ago the conviction was. Obviously the nature of the offence is also reflected, in that there are two separate lists. There are a small number of very minor offences that would not be disclosed but are always protected, such as littering, motoring offences related to the lights on your car or drunkenness; when those are spent, they would not be disclosed. There are two substantive lists: offences that are always disclosed; and those that may be disclosed, depending on the age of the offender at the time, how long ago the conviction was received and what the offence was.
You have just taken us to that part of the agenda, and John Mason will take the questioning forward.
This is the real question: the last one was supplementary.
Would you give us some background as to the consideration that was given to the choice of offences? We have schedule A1 of offences that must always be disclosed and schedule B1 of offences to be disclosed subject to the rules. Would you give us the reasoning for what is in each group?
As the committee will appreciate, this is a complex area to which we had to give great thought.
A murder conviction is never spent and must always be disclosed. Offences that will be in schedule 8(a) of the remedial order and offences that are in schedule A1 of the affirmative order are offences such as assault to severe injury, assault with intent to rape or ravage, culpable homicide, extortion and rape.
In the other list, there are offences such as breach of the peace and culpable and reckless conduct. Depending on the age of the offender at the time of the offence and how long ago the conviction was received, those offences may not require to be disclosed. If someone at the age of 19 was convicted of a breach of the peace and 15 years had elapsed since the time of that conviction, that spent conviction would not have to be disclosed. If the person was under the age of 18, seven and a half years would have to elapse before that spent conviction would not have to be disclosed.
We are clear that offences such as murder and rape are obviously serious, and that some of the others mentioned, such as breach of the peace, might not be so much. It is the dividing line that is tricky. I see that one of the offences that must be disclosed is uttering threats and one of the offences that may not have to be disclosed is perjury. For a lot of people, perjury is a pretty serious offence. How did you distinguish between offences?
Obviously, we have looked at a wide range and multiple sources of information. You will see that we have been busy since the UK Supreme Court judgement. We have looked at the classification of crimes and offences, at every type of offence recorded in the children’s hearings system and the police national computer, at the disclosure and barring service, and at AccessNI, Northern Ireland’s filtering system.
We are looking at offences that have resulted in serious harm to a person or a significant breach of trust and responsibility; that have demonstrated exploitative or coercive behaviour or dishonesty against an individual; and in which people have abused a position of trust or displayed a degree of recklessness. That is why we have two lists of things that either will be disclosed or may be disclosed. Our thinking is informed by those factors, all of which are potentially of relevance to the offences on both lists.
12:30Ultimately, there are 120 days of post-compliance order scrutiny, and stakeholders and parliamentarians may well have views about the rules that we are trying to establish. Therefore, a very important part of the process will be receiving written considerations and committee reports. A further statement will have to be made in the Parliament and, if necessary, further changes will be made. We believe that we have a solution to the issues at hand, but that does not mean that there cannot be further reflection on whether the detail is exactly as it should be.
Given the timescales and everything, this is the proposal that we are going along with, but that does not mean that it is fixed in stone for ages and ages.
No. We have taken the time to explore the matters inside out, from a policy perspective and operationally in terms of the demands of Disclosure Scotland, and we are confident that this is the right solution. However, you are correct in saying that it is not set in stone. There is an important part of the process yet to come, and I assure you that there is a willingness on the part of the Government to listen acutely to the concerns of parliamentarians and stakeholders.
It is worth putting it on the record that, although we respect the judgment that you have just made, the law will change on Thursday and that will be the law for the time being—as it always will be.
Yes.
Given that there has been no public consultation or consultation with parliamentarians, how confident are you that you have got the balance right between the public interest and the rights of private individuals?
We are confident. As you highlighted, we have taken 15 months over our considerations. However, as I said to Mr Mason, we will listen acutely to parliamentarians’ views tomorrow and in the 120-day post-legislative scrutiny stage. We acknowledge that we are following an unusual procedure, but I assure the committee that we are pursuing it because we are absolutely sure of the necessity to do so.
If I understand the proposals correctly, the system is that, under the remedial order, a draft certificate containing a conviction can be appealed to the sheriff provided that that is done within six months of Disclosure Scotland being notified of the intention to do so. If somebody chooses to make such an appeal, time will elapse between the request for disclosure and the certificate eventually being issued, which may cause the employer to be suspicious that there is something going on in the background. Is there some way of preventing or protecting against that? The fact that the employer gets nothing back suggests that there is something hidden.
The issue is the potential to interfere with a person’s article 8 rights whenever a second certificate is sent to the employer. If there was something in the disclosure that should not have been there, by sending it to the person’s employer you have in effect interfered with the person’s article 8 rights. The policy intention behind this proposal is to ensure that there is no potential for that to happen.
Neither situation is ideal. A delay in the individual’s employer receiving the certificate will, as you say, flag up a potential concern. However, while we have a system of issuing two disclosures, to the individual and to the employer—a system that our feedback tells us is greatly valued by employers across the country—a compromise has to be struck in relation to whether we issue one and when we withhold it. What is the greater evil? Is it to send out the disclosure and to interfere with a person’s article 8 rights, or is to withhold the disclosure and not interfere with article 8 rights but leave the potential for uncertainty around what the employer might deduce from that? In policy terms, we have decided that the latter is the only appropriate response that we could possibly make because it would be simply unacceptable to interfere with article 8 rights or to potentially do so. That is the reason for the policy decision.
I understand your dilemma, but I wonder how things will work out in practice. If nothing comes back to the employer and the employer does not offer the job to the person, could the person then have a claim against Disclosure Scotland or try to make a claim?
With someone making a new disclosure application, they will get their certificate before the employer gets it and will then have 10 days to appeal to the sheriff. That is quite a tight timeframe. I appreciate that any delay might be undesirable, but there has to be some gap. Because the individual will receive the disclosure information first, they will have the opportunity to appeal to the sheriff within 10 days. That is within the target of completing 90 per cent of applications within 14 days, if they are correctly completed in the first place.
Does that mean that if I make an application for a relevant job, you would want to turn round my potential disclosure to me in four days so that I have 10 days to appeal it before you meet the target of 14 days to my potential employer? That seems unlikely, which is why I am asking the question.
We would not tie it up like that. The individual will receive their disclosure and they will know that spent convictions have been disclosed, if that has happened. Thereafter, they will have a period of 10 working days to intimate an intention to appeal. They do not actually have to make the appeal in those 10 days; they just have to tell us that they are going to do that. At that point, we will not issue the employer certificate. However, such cases are so few in number that they could not really impact on the general attainment of our service level agreement or target, if you like, of dealing with 90 per cent of cases within 14 days. We still have the spirit of that target to meet and we will strive to do that. It is in the individual’s gift to tell us if they want to initiate an appeal. If they do not, it will all issue in the normal fashion, but they will still have those 10 days to make their mind up.
So everyone who receives such a disclosure will know that they have 10 working days—in effect, two weeks—to appeal and they will know that their potential employer will not receive a disclosure until the two-week period is up, regardless of where we are on the aspiration of 14 days.
Yes.
Thank you—that is clear.
I concur with Gerry Hart’s characterisation of the process. I was perhaps a bit oversimplistic in the way that I articulated it.
That is okay. I understand that.
I recognise that we are dealing with small numbers here and that they probably will not impact on the statistics but we parliamentarians always worry about the individual and let the statistics take care of themselves.
We will move on to John Scott.
Before I come to my specific question, I want to ask a general one. Given that it is 15 months since the Supreme Court judgment, are there any people who will feel themselves to have been disadvantaged in the meantime because the law was changed in England and Wales prior to the judgment and, since then, elsewhere? Is it unreasonable or reasonable for people to feel that they might have been disadvantaged in the interim?
Although there is no direct read-over between the UK Supreme Court judgment and Scots law, it is reasonable for the Government to take action.
We are not saying that the existing system is not compliant. Ultimately, it is for the courts to decide those matters. However, of course, we want to ensure that our system is as robust as possible in light of UK Supreme Court judgments and other case law. As far as we can, without things being tested in court, we want to ensure that our processes are ECHR compliant, that we get the right balance and that public protection is at the heart of everything that we do.
That takes me nicely to my next question. In relation to non-protected schedule B1 convictions, the policy note says that the “starting point” is that such convictions will be included on higher-level disclosure certificates. Is it the intention that Disclosure Scotland will have discretion over inclusion of such convictions—for example, discretion to take into account the nature of the offence and its relevance to the employment or post applied for—or will discretion operate only at the level of the sheriff’s consideration, where the individual who is subject to the conviction chooses to apply to the sheriff court for removal of entries relating to such convictions?
I am not a lawyer, so allow me to explain how I understand the provision. Disclosure Scotland is not operating a discretionary scheme; the scheme is set out by rules that are, ultimately, approved by Parliament. Of course, people can take matters to a sheriff, who will consider the situation in terms of the existing law.
Gerry Hart can say a bit more about that.
The policy that determines whether something is or is not disclosed is still a policy decision that ministers have made, but it is set out and codified in a way that is applicable in the same way across different cases. The UK Supreme Court ruling in 2014 set out a number of tests that a reasonable person might apply when thinking about whether something should or should not be disclosed. The rules that are set out by the ministers try to accommodate those tests and apply them in a rational and coherent way.
However, we understand that there will always be cases in which the circumstances of the case, which is one of the tests that the court flagged up, are such that it would not be right to disclose them. That is why we have made provision for individuals to be able to make the case to the sheriff. We want it to be possible for account to be taken especially of unusual circumstances or particular background factors that mean that, in a particular instance, the general policy rules should not apply in the “may or may not disclose” rules list of offences. That is the thinking behind it.
The rules will be applied in a very black-and-white way. However, with regard to a disclosure of a spent conviction on the rules list, we must remember that, often, when offences are codified on police systems, they occur together in a single string of narrative. In those cases, we will disclose the matters around the same diet, when there has been a conviction. That is why there is a caveat in the words; if I picked you up correctly, that is what your question was about. It is not that the rules will be applied in a discretionary way by Disclosure Scotland, or that somebody will sit and make a judgment of Solomon about whether something should be disclosed. That will not happen. The only person in this process who will have that discretionary role will be the sheriff. The rules will be applied otherwise.
So—for the avoidance of doubt—there will be no discretion available to Disclosure Scotland.
That is correct.
Discretion will be available solely through the court.
Yes.
I will start off with an incredibly naive question.
Schedule B1 is headed “Offences which are to be disclosed subject to rules”. My question is this: where are the rules?
The rules concern what age the individual was at the time of the offence. I will ask Gerry Hart to talk about the technical aspects, but—in plainly spoken terms—we can clearly distil rules into whether the individual was over or under 18 at the time of the offence and how long ago the conviction occurred: was it 15 years ago or seven and a half years ago? The timeframe depends on the age of the offender. In terms of the nature of the offence, that is also reflected in the fact that there are two schedules.
I will ask Gerry Hart to explain about where the rules are.
12:45
As the cabinet secretary set out, the rules are simple. They are, for this middle group—
If I may intervene, I understood the timeline aspect and the two different lists. That is a set of rules. However, in evidence we have heard reference to a certain matter. I will create my own example. Item 9 in schedule B1 is embezzlement. Clearly, that will be an important matter to disclose if the employment relating to the disclosure request is in the financial services industry. However, it might not matter in the same way if the employment were in the care sector. In the evidence that we received, I got the sense that, if the application related to financial services, with regard to the offences in schedule B1, as a matter of rule there would be a list of offences that would be disclosed in relation to employment in the financial services sector and a different list relating to those that would be disclosed in relation to employment in the care sector. I see witnesses’ heads nodding.
In relation to that distinction between the different employments and which of the matters in B1 would therefore be disclosed as a matter of rule—as distinct from the court ruling and people applying—where are those rules?
We have considered those issues. Ailsa Heine will pick up on your example.
The rules are contained in the definition of what will become protected convictions. That is set out in the affirmative order and will be set out in the Police Act 1997, as it will be amended by the remedial order. The definition sets out what is a protected conviction, by reference to the offences that are listed in the two schedules.
I wonder whether the witnesses might help me by pointing at the relevant page in the material that is before us. I do not want to explore the matter in detail; I merely wish to know where the rules are. My reading of the instrument, as a lay person, did not lead me to understand the answer to that question.
In the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2015, the definition of protected convictions is in article 2(2), on page 2. That is the crux of where the rules are contained—
Forgive me—
I realise that it is complicated.
That is why I am asking.
Page 2 of the order sets out a definition of protected convictions.
I have that. The order will insert a section 2A, and there is some reference on the following page to children’s hearings and so on. However, I got from previous evidence the sense that in the case of someone who is operating in the financial services, some offences would be chosen from those that are provided by the menu—I will call it that informally—that is schedule B1, and some would not be.
I might be being hopelessly naive, but I get the sense that my colleagues are with me on this.
The rules are intended to apply across the whole spectrum of higher-level disclosures. It is not intended that a distinction will be made according to the job that is being applied for or the purpose of the disclosure. The rules apply across the board.
So—just to be clear and to make it easy for even me to understand—according to the process by which Disclosure Scotland will work, all the offences in schedule B1 will normally be disclosed.
Yes.
Right. That is helpful. It is possible that, when I was listening to some of the previous evidence, I confused myself into imagining that there was some difference.
A distinction seems to arise when the person about whom the disclosure is being made—for the sake of argument, they work in the care industry—suggests that a disclosure about embezzlement might not be necessary. Is that the only time when matters that are set out in schedule B1 are removed from the disclosure certificate?
Yes, although it is worth sharing with the committee a bit of additional information. When it comes to the specific aspects of what you are asking about, the chief constable has powers to give that sort of information in enhanced disclosures.
But that is non-conviction information, which we heard about earlier and which I understand.
Yes.
That is very helpful and simplifies things.
That was the basis of my question about administrative discretion. If what you are telling me is that the rules are that simple and that black and white, that addresses my question about who might be making these kinds of decisions, because it sounds as though they are not going to be made.
We will now move on to more detailed matters. To be blunt, I could not have asked the other suggested questions without understanding that matter, so please forgive me.
My first question is about the hard cases rule. Paragraph 4 in schedule B1 refers to breach of the peace, which is one of those very wide common-law offences that range up to quite severe things and down to relatively trivial matters. I wonder whether you will confirm something that I think I just heard. If someone under 18 is one month short of the seven and a half years that would exclude the conviction from having to be disclosed, can that individual ensure that the conviction is excluded only by appealing and going to the sheriff court? There is no other way of doing that, and it is not within the remit of Disclosure Scotland.
Yes.
Yes.
I think that we have covered that, so I do not need to spend any more time on it.
My next question is a bit more substantial. Article 3 of the draft order makes a distinction between judicial proceedings in which spent convictions may be protected and other tribunals and hearings where there is no such provision. There appears in what is before us to be no provision for going to the sheriff court to argue that something in schedule B1 should not be disclosed when somebody is in front of a tribunal and is asked to make a disclosure. Is that the Government’s policy intention, or has something in the drafting led to that difference in these different contexts? In other words, there are contexts in which, as far as the legal profession is concerned, things on schedule B1 do not have to be disclosed.
As we are straying into Kevin Gibson’s territory, I will ask him to reply to what is a good point.
The starting point is that convictions on the list in schedule B1 will always be admissible in the proceedings that are not listed. In other words, they cannot become protected.
I understand that—and that is why I have asked the question. Why has that distinction been made? Why, in certain contexts—the whole of schedule B1—is there no provision for something being deleted? Why is that different from disclosure to an employer?
We are talking about two separate categories of proceedings, the first of which is proceedings in which what is relevant or disclosable is set out in a separate context. In that case, we are talking about firearms proceedings and proceedings under the Gambling Act 2005. The founding legislation that sets up those proceedings describes what conviction information is relevant in the context of those proceedings, and all the 1974 act does in that respect is to ensure that policy in those particular areas is not upset by convictions becoming spent and therefore not disclosable in such proceedings.
So the Government is making a judgment and taking the view that, because the existing legislation in relation to, say, firearms certificates, gambling licences or whatever already has a comparatively narrow and specific focus, this provision does not breach the private rights of individuals under article 8 of the ECHR.
There are two things to say about that. One is that many of the proceedings that fall into that category are in reserved areas, and we could not affect the policy decision that has been taken by the UK Government about, for example, what is relevant to applications for gambling licences.
Forgive me; I am going to come in. You are not raising a red herring here by saying that you would legislate if we had the powers, are you?
Disclosure is already restricted under other legislation. The Gambling Act 2005 says that there are certain types of spent convictions that need to be disclosed. As that is set out in that legislation, to have a different type of disclosure in the bill would not make sense, because there already is restricted disclosure. We would not be breaching the ECHR, because disclosure is restricted already through the Gambling Act 2005.
I was just picking up the vires issue that was raised. Notwithstanding the fact that it would be ultra vires, there is no suggestion that you would want to legislate in areas that we were not competent to legislate in. We do not need to go any further than that.
The second element to pick up on is that the judicial authorities that determine what is and is not admissible in those proceedings will in large part be public authorities with their own ECHR obligations to respect. We have taken the view that, where a public authority has the decision as to whether a conviction or private information is admissible, it is right to allow that authority to exercise its discretion in that area.
What we are saying is that this court judgment, which is the spring for why we are here, is something that a number of public bodies will need to take account of when they have people appearing in front of a range of bodies that they are responsible for. Will that extend to the people who are appearing in front of those bodies? Will they understand that they are not required to disclose things?
There are two aspects to disclosure. There is the disclosure itself but also the reliance that is placed on the disclosure. That is where the responsibility of public bodies comes into play. They would not be in a position to rely on irrelevant private information to an individual’s prejudice.
To close off that issue—I am conscious that I may be going off-piste to a substantial extent—will the Government ensure that the bodies that are going to have to take account of the case in England and Wales, to which we are now responding in the Scottish context, are made aware of the implications that there may be for them and that will be for them to consider, so that there is not a gap in what they are doing? We are doing something, but there are things beyond that in other parts of public policy and practice. I want to be sure that the Government is making sure that that is drawn to the attention of those public bodies.
Yes. We have had discussions with various bodies on that point.
Sorry, I have quite extensive notes here—
In the meantime, I would like to ask a basic question. Are there any cost implications for businesses and companies? I was unable to read all the paperwork in time, so I am not aware whether that has been discussed. It would be helpful to know whether there are cost implications. There is no financial memorandum attached, is there?
There is an equality impact assessment and a business and regulatory impact assessment. There are no additional costs to businesses and individuals over and above what there currently are. Obviously, when a system is refined, there are organisational costs in and around that, but they are manageable. There is also the cost to individuals if they choose to appeal.
13:00
I am sorry, but I want to go back to schedule B1. I know that my colleagues are reassured, but I still have some queries about it. I will run through a practical example. Point 18 is on public indecency. Say that someone has a conviction for that. In the first instance, that has to be included on their certificate. What would be circumstances in which that would be taken off their disclosure certificate?
The rules that we have established are black and white. This is not Disclosure Scotland exercising personal discretion. The rules touch on the age of the individual at the time of the public indecency and how many years have elapsed. Thereafter, if that was on the individual’s record and they were not satisfied about that, it would be for them to appeal to the sheriff. I will check with colleagues that I have not missed anything.
The disposal in the case would also be relevant. If the person had received an admonition or an absolute discharge for that offence, it would never appear once it was a spent conviction.
I understand that, but if there is a conviction, it appears on the draft certificate and is then shown to the person. The person then has the facility to appeal that.
As long as it fulfils the 15-year requirement and it appears on the disclosure as a spent conviction, the individual would have to go to the sheriff and explain what the circumstances were or the particular context behind the offence in order for the sheriff to be satisfied that it should not thereafter be disclosed.
But it is not the case that, in the first instance, it would be on the certificate. If the conviction had fallen outwith the timescales under some of these rules relating to the age of the person at the time and the length of time since conviction, it would not be included on the certificate; it would simply not be there.
Yes. If it was a public indecency conviction when the individual was 19 and 15 years has elapsed, it is not disclosed. If less than 15 years has elapsed, it is disclosed and the individual can take that to the sheriff. I should add a point about employers on receipt of information. We know that some offences, whether breach of the peace or some sort of public indecency, are quite broad and can capture a range of behaviours. If the employer sees reference to a breach of the peace or public indecency offence, they can ask the individual for more information about that and the individual can speak about it. In some instances—this is a decision for the employer—the employer might say, “Well, that was 14 years ago and they’ve given an explanation and been of good behaviour.” I suppose that there is discretion for some employers in some cases, although not in all cases.
It is also worth mentioning that if that conviction was in the vetting information on the individual, it would come up to the protection services part of Disclosure Scotland, which would be able to make a decision as to whether it may be appropriate to consider that individual for barring in either the children’s or adults list, or both. While that information is presented to Disclosure Scotland, it would make that decision routinely, and does so currently on those kinds of cases. There is therefore an extra safeguard in the system, which is the purpose of barring under PVG.
But am I right in saying that there are certain public indecency offences that would be disclosed automatically under the current system that may not be disclosed automatically under the new proposals?
Subject to the rules having been applied and the necessary time having elapsed, yes. Forgive me, because I cannot recall the precise details of all the lists, but if that offence is on the rules list—
It is on the rules list—
—it is one that would not be disclosed after the relevant period of time had elapsed.
Are you comfortable with that, cabinet secretary, or is it a matter of concern?
I am a former forensic social worker. Of the offences that may be disclosed, a range of offences would always cause concern for individuals but, as regards particular roles, there is the added security of the PVG system, which places individuals with some sort of public indecency conviction, for argument’s sake, on the list of barred individuals. None of this is entirely comfortable for us as individuals but, as the Government, we are front and centre in this respect—it is a matter of public protection.
We have to learn from case law and the UK Supreme Court judgment in order to ensure that our system is more proportionate. There are offences that will always be disclosed, and there are offences that will be disclosed for a duration of up to 15 years—or less if the individual was under 18 at the time of the conviction.
I return to the issue of other proceedings—I have been looking at the quite long lists of proceedings that the committee has before it. There appear to be quite a number of proceedings in which convictions remain protected and self-disclosure is not necessary. One example is:
“Proceedings held in respect of an application for the grant, renewal, or cancellation of a licence to be a taxi driver or private hire driver.”
I want to be clear that the Government is taking the necessary actions to ensure that it is clear in proceedings of that character and in the other proceedings mentioned in what is quite a long list—those which are not ultra vires and which are within the powers of the Government—that there are protected convictions and self-disclosure is not necessary. I say that notwithstanding the fact that schedule B1 is headed “Offences which are to be disclosed subject to rules”—I know that the heading never has legal force; it is only informative. I want to ensure that the whole circle is being squared properly where the Government has the power to do that.
That is something that justice officials have spent considerable time on.
There is a distinction between the different types of proceedings, such as those that do not relate to employment and do not necessarily fall within the remit of the UK Supreme Court ruling and where high-level disclosures do not happen because an exempted question is not asked. That is to disapply section 4(2) of the Rehabilitation of Offenders Act 1974; the proceedings come in at section 4(1).
We may ask whether it is appropriate for the Parole Board for Scotland to have limited access to someone’s previous convictions, no matter how long ago they were. The decision that the Government agreed was that we need to have that information. The Scottish Criminal Cases Review Commission considers whether someone has maybe suffered a miscarriage of justice, and there may be reasons for it to investigate information about someone’s previous convictions in order to make an assessment of whether a miscarriage of justice might have happened.
The same is the case if the independent assessor is trying to find out the facts when someone has suffered a miscarriage of justice. If someone says, “I’ve never done anything wrong in my life. This is my first conviction, and I need £5 million”, the assessor has to be able to look at previous convictions. It might say, “Wait a minute, you have a previous history of things,” and such a level of compensation might therefore not be right.
There are different processes for the different proceedings. In those instances involving an explosives licence or a firearms licence, for instance, it may be felt to be appropriate to require a full disclosure for public safety reasons. As we said earlier, if we consider gambling, other legislation underpins that and there is therefore no point requiring such a disclosure because things are already restricted and protected.
Schedule 1 to the 2013 order, “Proceedings”, which relates to professions, links with the fact that schedule 4 of that order allows someone to be asked questions about their spent convictions in order to be part of those professions. Given the way in which that order is drafted, those concerned will not be treated any differently if they disclose a conviction that is not a protected conviction if it would not have been disclosed in a high-level disclosure through the appeal court. There are therefore underpinning protections.
The preceding section is particularly complicated because it is different: it is not about high-level disclosure because of excluded questions, and there are different reasons for proceedings and for court proceedings. That is what makes this part of the order complicated and is why certain rules apply, with some convictions in, some out and some protected.
Just to be clear, if something that did not require to be disclosed emerges during proceedings, it is perfectly proper—indeed, required—that the conclusions of the proceedings take no account of the information that has emerged.
There is no option for an appeal to the court because the person would not be issued with a higher level disclosure by Disclosure Scotland in the first place. The only rules that can apply will apply when it becomes protected. The tribunal or proceedings can only take things are not protected into consideration.
Okay.
I have a general question. Notwithstanding the differences between Scots law and UK law, are the two lists largely similar? If one is in a protected category in Scotland, is it largely similar in England, or will people who want to apply for a job in England have a different set of rules? Notwithstanding the legal terms, are the lists largely similar?
There are different names for different offences.
There are different rules in England and Wales under the Rehabilitation of Offenders Act 1974; they have different rehabilitation periods as well as a different set of rules. When a conviction becomes spent in England and Wales is different to in Scotland.
The England and Wales answer to the UK Supreme Court ruling is also different. I have not checked through every single offence list to see how England and Wales have dealt with the issue, but they have done a similar analysis and say that certain types of conviction should always be disclosed and certain types should always be protected. In England and Wales a conviction is protected after 11 years if the person has only one conviction. If they get another conviction, nothing is protected and everything is disclosed for ever. They halve the period for under-18s.
There are complications because we have drawn what we think is a proportionate line in the sand whereas England and Wales have taken a slightly different approach and said that, if someone is convicted more than once, they can forget about protection; it does not matter what or how serious the second conviction is.
A recent case in the Northern Ireland High Court concerned a lady who had a conviction for carrying a child in her car without using a seatbelt. Had there been only one child in the back of the car, the matter would have not been disclosed but, because there were two children in the car, there were two convictions and the matter was held on. The court found that that was not a proportionate interference with her human rights.
That filtration system, as it applies south of the border and in Northern Ireland, was developed before the UKSC ruling. The system that ministers are trying to put in place in Scotland was developed with full awareness of that ruling and subsequent case law, and we believe that it is a fair and decent attempt to strike the right balance.
Thank you.
The matter of different lengths of periods to be considered as spent has emerged between Scotland and England and indeed elsewhere. Paragraph 56 in schedule A, which is entitled “Corresponding offences elsewhere in the UK or abroad”, and refers to:
“offence under the law of England and Wales or Northern Ireland, or any country or territory outside the United Kingdom, which corresponds to any offence listed in paragraphs 1 to 55 of this Schedule.”
Would that require disclosure under the periods that are applicable in a non-Scottish jurisdiction? In other words, if it is 11 years in England—well, actually the period in England is shorter—
Yes, it is shorter in England. If a conviction is unspent, it will be disclosed; otherwise the rules will apply.
Therefore, the question whether a conviction is spent with regard to an offence committed outwith Scotland is determined by the local rules, not the Scottish rules. Is that right?
The Scottish rules apply to offences committed in England and Wales or—
Or elsewhere, then.
The offence is still a matter of Scots law if it is committed it in England and Wales.
So even if a conviction is spent after 11 years in England, it might still be required—
It becomes protected, not spent, after 11 years. In Scotland, for those over 18, the period with regard to protection is 15 years from date of conviction, while in England and Wales it is 11 years. If you commit an offence on the rules list in England and Wales and then move up to Scotland, the period in question will be 15 years from date of conviction.
Even though the offence was committed in England, where the period is 11 years.
Yes.
So the domicile is all-important.
It is all about residency.
That is fine. I am not seeking to challenge it—I just want to understand it. That is all.
13:15
That discussion implies that Scottish citizens might be ignorant about the rules that you are bringing in and might be very confused when they talk to the significant number of people who simply assume that English law and Scots law are the same. Is the Government proposing to bring in some guidance and make it clearly available?
We are very alert to the fact that the 1974 act as it stands is legislation from the 1970s and is very complex and confusing and that, for citizens, the current situation is not always easy to understand or navigate. As the committee has pointed out, we have added another layer of complexity with the affirmative and compliance orders, but we will certainly follow the parliamentary process and update the Disclosure Scotland website in order to explain the situation using layman’s terms and plain English.
We will also give consideration to other publications where such information should be sited; for example, the Scottish Government website would be important in that respect. Individuals seek advice on such matters from a variety of sources; they might go to an MSP or a citizens advice bureau or they might speak to someone at the job centre, a criminal justice social worker or a lawyer. There is a particular range of stakeholders we could be targeting, and we could make people aware that plain English guidance will exist. However, we will need to wait until the end of the 120-day period following the laying of the compliance order.
I just want to challenge that. After all—and assuming that it works—this will be the law from Thursday morning, and I respectfully suggest that having to wait three or four months to issue guidance will probably not be terribly helpful to the very large number of people who will want to know what happens in between.
We have already heard from committee members that it has been established that future changes are possible, pending the 120-day scrutiny period. We will of course fully consider ways of making the situation clear as of Thursday, but we will continue the matter as we move forward. There is a recognition that the landscape in this area is and has always been complex, and we take in good spirit the point that we need to ensure that clear guidance is available.
I think that we have an amended website that is ready to go, and we have a significant number of artefacts such as frequently asked questions, briefings for staff and other such lines that are all ready for this change. However, as the cabinet secretary has said, all of that will evolve as the consultation goes forward. We will need to keep in communication, because, given the way that this change has come through, it is very important that a dialogue develops. That is very much the spirit in which we hope to approach this issue.
That is good to hear. Of course, Parliament might be forced to change its mind and tack not because of a consultation but because of another court case turning up over which we have zero control.
I think that John Scott has a residual question.
There have been different treatments of the Supreme Court ruling in different parts of the UK. There is perhaps more than one way of skinning a cat, although I do not expect that that is a legal expression. The different treatments appear to put into practice what requires to be done, but are they all equally good in terms of ECHR compliance?
Ultimately, that is for the courts to decide. The starting point for all of us is that the legal system in Scotland is different from that in England and Wales. That is just a statement of fact; I am not giving an opinion about that. Given some of the on-going issues that colleagues elsewhere in the UK are tackling, I believe that the Scottish Government was judicious in waiting until after the Supreme Court judgment, following case law and taking a bit of time to see how things unfolded before coming to Parliament with its solution.
Thank you. I was not trying to catch you out; I was just trying to reassure myself.
If, following the process of parliamentary scrutiny and stakeholder engagement, the remedial order is modified in a way that also affects the disclosure by individuals of their convictions, it is likely that a further affirmative order under the Rehabilitation of Offenders Act 1974 will be laid in Parliament to incorporate similar changes, as has been discussed. What would be the process in that instance? Would a further instrument require to be afforded an expedited process? Also, what would be the implications for disclosures made under the draft order that is being considered today?
There is certainly a theoretical possibility that we would return to Parliament with another affirmative order, depending on the views and the issues that are raised in the post-legislative scrutiny of the compliance order. It is difficult for me to predict the issues that may or may not be raised in that process. I will hand over to the officials in a moment for them to give a more technical response.
I outlined two reasons why we had to have an expedited process for the affirmative order. One is the disruption. If we change the system, it is disruptive to Disclosure Scotland, which has to cease operation while we go through that process. In my mind, that necessitates an expedited process of some description. Also, if we are moving from one refinement to another, there needs to be public confidence in the decisions that are made. It is difficult to achieve public confidence and make the decisions when we are going from one system to a more refined system.
My instinct is that, should we need to lay another affirmative order—although I appreciate that it is unsatisfactory from a parliamentary point of view—we may well be looking at another expedited process. Do the officials have anything to add?
We will take into account later the observations that are made and take a view on whether there should be any changes to the remedial order. It covers different things from the draft affirmative order, particularly around disclosure and the way that the appeal process operates for both the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007. There could be changes in the remedial order that do not need to be reflected in the affirmative order.
In general terms, it seems to me that, given that the affirmative order has been expedited, if we need another one that will also be expedited, the parliamentary process will have become a little ungainly. I can put it no more elegantly than that. That is not something that the Parliament would necessarily welcome.
We hope that there will be confidence in the proposal that we are making to Parliament. However, it would be foolish of me to rule out the possibility that stakeholders and parliamentarians will raise matters that need to be considered. That means that, at this stage, we cannot rule out another affirmative order, although I am told that a second affirmative order would not be expedited.
Ah.
That is precisely the point that we were discussing.
On the basis that that is the justification for why you are here now, we would expect the same rules to apply. I think that we would be in the same position.
I am sorry that we have gone round the houses on that one.
That is okay.
What would be the implications for disclosures that are made in the interim, given that we will have to change this in 120 days’ time? The law that you propose, if implemented, will stand for 120 days. I presume that those disclosures will be valid in their own terms.
Any disclosures that are issued under the law as it applies from Thursday 10 September until a second remedial order is made—if such an order is made—would be valid under that law.
It is perhaps worth making the point that it is neither our job nor that of the Parliament to decide whether the order that we are considering is the one that we would have drawn up or whether we all agree with every single line in every list. I suggest that the issue that we must consider is whether the order is capable of being ECHR compliant, recognising that there is more than one way to approach such compliance. That is the evidence that we have been trying to tease out this morning.
We have reached the end of our list of questions, but there are a few things that I would like to pick up on. First, I ask Gerry Hart to go back to the point that he made about more than one conviction appearing at the same time and whether that would mean that a conviction for a protected offence would necessarily have to be disclosed with others that are not protected.
Each offence must be considered separately, but Gerry Hart can run through the process.
The decision has been taken that, where a spent conviction that is being disclosed appears as part of a concatenated body of text with other matters on the same diet, the process will be that they will all be disclosed. However, every conviction that is spent is processed as if it was the only one, so there is a proportionate inception process that does not group everything together in a pattern but takes things on their merits. The issue of disclosing matters around a spent conviction is offset by the fact that everything is processed separately. There is no direct correlation, but there is a link in that process.
Is that on the basis that the protectable convictions are, nonetheless, part of the narrative of the unprotectable one?
That is the policy intention. We believe that disclosing the matters around the non-protected conviction will give a context around the matter that is the central concern, and that that is fair and proportionate.
In that context, it would be a fair and proportionate use of information, although you would accept that such information is potentially private.
Indeed.
On another issue, as I understand it, it has always been said that the age of the offender is their age at the time of the offence, but the time is the time since conviction. Forgive me for not looking that up. Can you clarify that?
It is the age of the offender at conviction, not at the time of the offence.
That is how it works under the Rehabilitation of Offenders Act 1974, so the approach is consistent.
That is fine. That is at least a justification, and that is on the record.
It is worth pointing out that the statement does not always contain the age of the offender at the time of the offence.
13:30
I am with you there.
I want to ask about something else, just to put it on the record. My understanding of the 10-day period when information is disclosed to the applicant but not to the potential employer is that it is the Scottish Government’s defence with regard to the disclosure of private information. It gives the applicant 10 days’ notice that the information will be disclosed unless they say that they are going to appeal it. Is it as simple as that?
Yes.
What justification, as a matter of law, does the Government have for taking that view? I am not saying that it is unreasonable, but can you explain it?
The current order provides that justification. Section 4 of the Rehabilitation of Offenders Act 1974 says that, once an offence is spent, people do not need to disclose it. However, the Parliament turned around and said that the 2013 order allows that extended period of disclosure for certain types of employment and profession, so it is a consistent approach. The question is at what point we draw the line. We decided on 15 years, but there may be instances where somebody has done something that the sheriff court can—
That is about the 15 years defence. I am specifically concerned about the delay of 10 working days. Is there a statutory precedent for that? I am not saying that it is wrong—
Are you asking why the period is 10 days as opposed to 12 days or eight days?
Yes. I wonder whether there is a legal precedent for that. I am not arguing that it is unreasonable; it seems very reasonable and proportionate. I am just wondering whether there is anything else—
There is no particular legal precedent on which the time period is based. It is simply about trying to strike a balance between giving the individual a chance to consider the information—and whether they want to use the opportunity to appeal—and not prejudicing them, particularly by leaving a longer period in which an employer is left without a disclosure. It is about trying to strike a balance with regard to what is reasonable and what is a reasonable period of time for people to make a decision as to what to do.
It is a policy decision.
I think that we can finish on that point. I thank the witnesses for their patience and their lucid explanations. Forgive us if, to start off with, we got some things wrong, which I think will be manifest from the record. I think that we are now in the right place.
We will now move into private session.
13:32 Meeting continued in private until 13:55.