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Protection of Vulnerable Groups (Scotland) Act 2007 (Vetting Information) Regulations 2010 (SSI 2010/189)
Police Act 1997 (Alteration of the Meaning of Suitability Information relating to Children and Protected Adults) (Scotland) Order 2010 (SSI 2010/190)
Protection of Vulnerable Groups (Scotland) Act 2007 (Health Professionals) (Health Service Lists) Regulations 2010 (SSI 2010/191)
Protection of Vulnerable Groups (Scotland) Act 2007 (Prescribed Manner and Place for the Taking of Fingerprints and Prescribed Personal Data Holders) Regulations 2010 (SSI 2010/192)
Protection of Vulnerable Groups (Scotland) Act 2007 (Administration of the Scheme) Regulations 2010 (SSI 2010/193)
Protection of Vulnerable Groups (Scotland) Act 2007 (Unlawful Requests for Scheme Records) (Prescribed Circumstances) Regulations 2010 (SSI 2010/194)
The second item on the agenda is the fourth batch of Scottish statutory instruments on the Protection of Vulnerable Groups (Scotland) Act 2007 that the committee will consider. It is the final batch before the summer recess, with a further batch expected in early autumn.
Convener, thank you for giving me the opportunity to make an opening statement about these instruments, which, as you said, are the fourth batch to come before the committee in respect of the PVG scheme and the last batch before the summer recess. We will return in the autumn with a few Scottish statutory instruments dealing with cross-border provision, changes to how organisations register with Disclosure Scotland and some consequential amendments in respect of family health services. We would also be happy at that time to provide members with a briefing on progress with wider implementation, if that would be helpful. As members are, I hope, becoming quite familiar with the scheme, I will turn immediately to the instruments before you. This batch comprises six negative resolution instruments that all relate to PVG scheme membership, vetting and disclosure.
Thank you, Mr Mott. Do members have any questions?
I want to ask about SSI 2010/192, which deals with the taking of fingerprints. Ministers will make the decisions, but who will suggest to them that a fingerprint check is necessary?
It is quite clear in the Protection of Vulnerable Groups (Scotland) Act 2007 that the taking of fingerprints is the last resort if identity cannot be confirmed in any other way. We are talking about somebody saying that a conviction on their disclosure record is not theirs. If a fingerprint record is attached to the conviction on the police system, the individual can choose a police station in Scotland to go to in order to give their fingerprints, which can then be matched against those on the police system. That will prove one way or the other whether the conviction belongs to the individual. However, that will need to happen quite rarely. As I said, it is a last resort if there is no other way of confirming identity.
I take it that that power did not exist and therefore has not been used before.
It does exist under the current criminal records regulations for enhanced disclosure. The procedure will not be changed too much.
Has the power been used often?
I do not have the exact number of times that it has been used, but I have numbers for disputes—for people who have contested anything on a disclosure. In the 2009 calendar year, there were 324 vetting disputes that involved individuals contesting information on their disclosures. To put that in context, that is a rate of 33 per 100,000 disclosures, which is quite low. A process is gone through. Sometimes the individual is right and the data are corrected and sometimes they are wrong and the data are not corrected. Some 57 per cent of the 324 challenges were upheld and the information on disclosures was changed. I hope that that is evidence that there is currently a meaningful process that works and produces results. Information is changed as a result of it.
I want to ask about that, but let us stick with fingerprints for now. The minister must give permission for a fingerprint check, but who applies to the minister with a suggestion that such a check is necessary?
I will talk members through the process to put matters in context. Normally, if an individual who gets a disclosure back after an application is not happy with it, they will go to Disclosure Scotland and say that they do not agree with the information on it.
Would a fingerprint check probably happen in such situations?
Yes. It would happen only because an individual had contested something. The individual would raise the matter with Disclosure Scotland, which would write to the individual and to the registered body that had received the disclosure. It would say that there was disputed information. It would then say to the police or wherever the data came from that there was a problem and would ask for that problem to be looked into. In some instances, there will be no way of resolving the matter without a fingerprint test. The individual will then be asked to nominate a police station to go to in order to give their fingerprints.
So, in effect, it is Disclosure Scotland as opposed to the employer or the individual that makes the decision.
Yes.
The applicant must give their permission, but Disclosure Scotland will say, “This is the route we’ll take to resolve this identification.”
Yes.
I will move on to SSI 2010/193, which includes a three-month time limit. You mentioned the number of disputes in the system. Could you give a fuller description of the process by which anyone can appeal against or contest information that they believe is held on their record? If they apply for and are granted a disclosure, I take it that it is sent to them and to the organisation that will employ or use them at the same time.
Yes.
Will you talk us through what happens if someone disagrees with what they find in the record?
Certainly. Perhaps it is easiest if I start with the current process, after which I can talk about the elaboration for PVG if you would like me to do that. Basically, disputes divide into three types, the first of which is on identity. For example, a police record may be incorrectly matched to an individual. That means that everything on the record is potentially wrong. The individual’s police record may have six convictions and those are put on the disclosure record only for the individual to say, “None of these are mine.”
No, no—that is helpful, but I am sorry to say that your description has sparked more questions.
Okay. Carry on.
In speaking of Disclosure Scotland, you described the consideration case process. Is that an appeal process? When someone questions identity, accuracy of record or accuracy of other relevant information, is that—
I may have confused you. Let us put to one side for a moment the consideration case. If someone raises one of the three types of dispute that I mentioned—identity, accuracy of conviction or ORI—it is classed as a vetting dispute. That is dealt with by way of the dispute procedures that Disclosure Scotland goes through, which are slightly different depending on the type of dispute. If the individual questions their whole record, the matter is slightly different from what happens when someone questions one conviction or the description of a conviction in the record, in which case they normally have to go to the source system or local police force where the data originated to try to resolve it.
In the event of a dispute, is there an appeals committee or does an individual decide? Does Disclosure Scotland make the judgment?
Normally, the relevant police force is asked to resolve the dispute. For example, if an individual questions the accuracy or relevance of information that has been included on their disclosure as other relevant information, that was originally the decision of a police force, so the dispute would be raised with that police force—it would be asked to review what it had included. The police may or may not decide to change the information and the individual may or may not be happy with the outcome.
Let us say that the police decide not to change the information. In that case, does the individual have a right of appeal?
The individual is provided with contact details for progressing the issue. Disclosure Scotland will have raised the issue with the police. If the police say that they will not change the information, that fact will be communicated to the individual and the countersignatory. The individual will be told in a letter how to pursue the matter if they are not happy.
The person can pursue the issue with the individual police force but, if that is unsuccessful, do they have a legal right to challenge the decision? Can they take it to court?
It would be judicial review.
Yes, it would be by means of judicial review of the police force’s decision. There is no provision in the PVG act for Disclosure Scotland to have any process for that.
So Disclosure Scotland refers the issue back to the original providers of the information. If that reaches an impasse, Disclosure Scotland gives information on whoever the contact person is—such as the chief constable of the police force—to the individual, who then has to pursue the matter individually.
Yes.
You say that the police force is the only body that provides other relevant information.
Yes.
I believe that, if an employer is worried about an employee’s behaviour and is considering whether to take action, but the person leaves that employment before being sacked or before any disciplinary action, the employer has a duty to report that information.
Yes.
Who does that information go to?
You are describing the grounds for referral. If two conditions are met—broadly speaking, that the individual has harmed a vulnerable person and that, for that reason, the organisation has or would have dismissed them—the organisation should make a referral. To answer the question that I think you are getting at, that would not appear on the disclosure certificate. The organisation would provide that information to Disclosure Scotland, which may or may not lead to a consideration for listing case. However, the only information that would appear on the disclosure certificate is that the person is under consideration for listing, if that was the case. The fact that there has been a referral, or that there was a referral that was dismissed, would never be on a certificate, and nor would information on what was in the referral.
Can you give an example of the sort of information that a police force might supply under other relevant information?
It is sometimes about cases that are pending prosecution or cases that were abandoned. In the Ian Huntley case, which kicked off the whole process, there were nine serious pieces of information. I think that he had gone to court three times on rape charges, but the proceedings were abandoned because the witnesses withdrew. For Ian Huntley, the ORI should have been that he had been charged with rape in those cases and so on. ORI can be very serious information. The police apply what is called a five-by-five-by-five matrix to intelligence. That takes into account the reliability, the intelligence evaluation—how the source knows the information—and any restrictions on further sharing. The police apply a fairly high threshold before they release data. The information must be reliable and corroborated and its release must not, for example, jeopardise somebody else’s safety.
You have had 324 disputes. How do they break down by category: identity, accuracy of record or accuracy of other relevant information?
Of the 324, 62 related to identity, of which 49 were upheld—changes were made as a result—147 related to accuracy of convictions, of which 91 were upheld; and 115 related to the accuracy of other relevant information from police forces, of which 46 were upheld.
Have any cases that were not upheld been taken further, because someone has applied for a judicial review, for example?
I would have to look into that. I think that there have been cases in England and Wales where people have challenged what is on an enhanced disclosure issued by the Criminal Records Bureau. I can get you more information on that.
On the accuracy of record of convictions, my colleague Mike Pringle has drawn to the minister’s attention a case of a young man who accepted the grounds for referral under the children’s hearings system when he was 14, but was not aware that that would give him a criminal record when he turned 18. He then applied for a job in child care and the record was disclosed, but he was not able to contest it. What would you do in such a situation? Are we able to address the fact that because that young man accepted the grounds for referral when he was 14, that is treated as a conviction? Under the current system—before we change it—is judicial review the only means by which he can contest that record?
I admit that I am not best placed to answer that question. I know that there are discussions about that issue in the context of the Children’s Hearings (Scotland) Bill and the Criminal Justice and Licensing (Scotland) Bill, so I hesitate to offer an opinion. If you do not get the answer through those channels, I would be happy to try to get it for you.
We are introducing a three-month limit. If someone accepts the grounds for referral as a juvenile, that translates into a criminal record as an adult, which would be disclosed. In theory, a child would be aware of that, but perhaps they would not be.
The three-month time limit is rather different. It has nothing to do with when the conviction was recorded on the police systems. It has to do with the situation in which someone gets a scheme record disclosure back and they do not like the vetting information on it—any of the stuff that we have talked about. We are asking those people to come back within three months. There is a possibility of that period being extended on cause shown.
Three months is a very short time.
Getting a disclosure is normally the last stage of getting a job. A person can be successful in an interview, with the job offer being conditional on disclosure. Given that an individual requests a disclosure and expects to receive the information—it does not come out of the blue—we think that it is not unreasonable to give them three months in which to raise any concern about it. As I said, provision exists to allow that period to be extended for a shown cause.
Ministers can extend the period if they consider it reasonable to do so, so the time limit is not absolute. There may be a particular reason why someone cannot not raise a concern within the three months.
We set the period at three months after talking to Disclosure Scotland. Operationally, that is the window within which it is easier to try to resolve disputes.
Just for information then, if a 19 or 20-year-old discovers that they have a criminal record—although in theory they should have known about it at the age of 12, or whatever—can they challenge that record?
We need to keep two things separate. On the one hand, there is information that the police hold about convictions, and there are the Rehabilitation of Offenders Act 1974 rules about when convictions are disclosed and when they are not—all the legal infrastructure and systems that the police have for weeding data and ensuring that it is accurate. On the other hand, there is the Disclosure Scotland process. All that it does is to take information from source systems and—to put it crudely—print it. Often, it is only when somebody gets a disclosure and sees the information that is held on them that they have an issue with it. Disclosure Scotland is only a window on to that information. If there is a problem with the information, the individual raises a dispute with Disclosure Scotland, which then pursues it with the data owners. However, Disclosure Scotland and the PVG scheme cannot change the procedures for recording and that side of things—that is out of their scope.
Okay. There are any number of ways to address that, one of which could be that the disclosure scheme would not have to disclose all acceptance of grounds for children and young people under 18. In some cases, it might be a matter of a criminal record that should be disclosed. However, my understanding is that, when young people accepted grounds initially, that did not become part of their disclosure record; it was only the decision of a police force and a legal decision by Government lawyers that changed that practice. It is therefore a matter of practice rather than necessarily one of principle.
I am not familiar enough with all the detail of that to give you an intelligent answer. My best offer is that, if you are not getting the answers that you want through the Children’s Hearings (Scotland) Bill process or that of the Criminal Justice and Licensing (Scotland) Bill, please write in and we will answer your questions.
It is perhaps worth adding that under the Protection of Vulnerable Groups (Scotland) Act 2007, Disclosure Scotland or Scottish ministers are required to disclose certain pieces of information on a scheme record. That links back with the definitions of convictions set out in the Police Act 1997 and, as a result, Disclosure Scotland has no discretion over disclosing whatever falls within the definition of a conviction. That is why that information appears on a scheme record.
Indeed. However, in the past a child’s acceptance of grounds was not disclosed. Such disclosure has become a matter of practice without any parliamentary scrutiny of whether such a policy decision was a good one. The issue is certainly worth considering.
Do you have a question, Mr Allan?
I was going to ask about disclosure, but I think that Mr Macintosh has covered the matter. As no member has lodged any motion to annul the instruments, I see no need to say anything more.
Why was it felt necessary to introduce the so-called contractors and disclosure regulations? Moreover, how exactly will the provision work? I would have thought that if a contractor had an employee whose scheme record contained a disclosure that made them unsuitable to work with children or vulnerable groups, the company would no longer employ that individual or let them perform tasks that gave them access to those people. Would it not be breaking the law if it allowed that to happen?
The classic example of this relates to school buses. A bus company might employ a whole bunch of drivers to do all sorts of stuff, among which might be a contract with a local authority for school bus runs. Which drivers are employed on the school bus run? In most circumstances, the issue of disclosure and suitability is a purely a matter between the individual in question and their employer. However, the contractors and disclosure regulations allow the local authority, in this circumstance, to ask to see the disclosure records. They do not confer a right on the local authority in that respect, because the company or the individual can still refuse to grant the request.
On a point of clarification, who can apply to see disclosure information? Does the provision cover only local authorities or can individual schools, institutions, hospitals and so on make such applications? I can imagine that, for example, a school parent council might want to see those records. Is that how it would work or is it only the local authority or the health board that has the right to make such a request?
I should make it clear that the individual and the employer—that is, the bus company—would still be dealing with Disclosure Scotland and would get the disclosures back. As a result, there will be nothing different about the disclosure process. The issue, then, is who can ask to see the disclosure records that have been issued to the individual and the employer. I think that it is the council and the—
It would be the person who was contracting with the bus company to provide the service, not anyone else who had an interest in the transportation of the children. If, say, an individual school had contracted the service, it would ask to see the record; if the local authority had done so, it would make the application.
That concludes our questions.
That concludes the meeting.
On a wee issue about the clerk’s briefing on future meetings, I understand that there will be a meeting in the chamber on 30 June, which means that we will have to meet on 29 June. Will that be a morning meeting as usual?
I am happy to have this discussion in private—in fact, I was going to bring the point to the committee’s attention at the end of our meeting—and I suggest that we do so. There is no need to keep the official report here for it.