Subordinate Legislation
Police Act 1997 (Enhanced Criminal Record Certificates) (Protection of Vulnerable Adults) (Scotland) Regulations 2002 (draft)
I reopen the meeting, and thank everyone for their patience. We are now dealing with item 5, which is also on subordinate legislation, namely the draft Police Act 1997 (Enhanced Criminal Record Certificates) (Protection of Vulnerable Adults) (Scotland) Regulations 2002. I welcome the Deputy Minister for Justice, Richard Simpson, and his officials to the meeting. I ask the minister to speak to and move motion S1M-2934.
I thank members for their patience and apologise for being a couple of minutes late.
The draft regulations that are before us are an important part of a wider package of measures that we have been putting in place under part V of the Police Act 1997. Taken together, the measures will allow wider access than has hitherto been available to information about criminal convictions and to other criminal record information that might have a material bearing on a person's suitability for employment in certain posts or positions, either paid or unpaid. The measures place special emphasis on the protection of children and vulnerable adults, and are designed to enhance public safety and to help employers and voluntary organisations in Scotland to make safer recruitment decisions.
As the committee is aware, part V of the 1997 act provides for three types of certificate. The first is the criminal conviction certificate, which will show criminal convictions other than those that are spent or expired under the Rehabilitation of Offenders Act 1974. The second is the criminal record certificate, which records any convictions, including those that are spent, and any cautions from England and Wales. The third is the enhanced criminal record certificate, which records all convictions and any information that a chief constable considers might be relevant for the purpose for which the certificate is required—in other words for considering the suitability of an applicant for certain types of employment or position—and that can be disclosed on the certificate without harming the interests of the prevention or detection of crime.
The certificates will be issued on behalf of ministers in Scotland by Disclosure Scotland, which is a unit within the Scottish Criminal Record Office.
The enhanced criminal record certificate, or the enhanced disclosure, as it will be known, is available for those who care for children and young people up to the age of 18. We also want the enhanced disclosure to be available to those who work with vulnerable adults. The 1997 act left several detailed matters to be prescribed later in regulations. One of those is the issue that is before the committee today, which is the definition of positions involving work with vulnerable adults for purposes of enhanced disclosures.
It is appropriate that the highest level of check should be reserved for those at greatest risk. People who have disabilities would not, we believe, be categorised as vulnerable solely because they have a disability. As a result, the draft regulations, which are the result of a widespread consultation, seek to strike a balance that will ensure that those who are at particular risk will be afforded the greater protection that enhanced disclosure will provide. The regulations relate to people who are receiving specified services and who, because of their disability or condition, are heavily dependent on others, and to those whose ability to communicate is seriously impaired or who would have difficulty in protecting themselves. It is our clear view that such people require and deserve added protection.
Jim Wallace also pointed out that it is important to bear it in mind that a criminal record should not automatically be taken to mean that a person is unsuitable. The information that is released under the disclosure scheme needs to be handled sensitively and carefully. Furthermore, implementation of disclosure measures should not be seen as suggesting that all those in, or seeking, positions that would give them access to children and vulnerable adults would seek to abuse those people. The vast majority of people in such positions are, of course, responsible and dedicated people whose primary concern is the well-being of the young people and adults in their charge. However, we must accept that some people, albeit a small minority, will seek to exploit the vulnerability of the people they look after.
The extension of the enhanced certificate to those who care for vulnerable adults is therefore important and I ask the committee to approve the draft regulations.
I move,
That the Justice 2 Committee recommends that the draft Police Act 1997 (Enhanced Criminal Record Certificates) (Protection of Vulnerable Adults) (Scotland) Regulations 2002 be approved.
Thank you very much. Under the usual procedure, we should now move into a period of debate that can last up to 90 minutes. However, in the past we have tended just to raise questions with the minister, who has helpfully answered them. I do not imagine that the committee will want to take up 90 minutes.
I agree to the motion.
I have one or two points that I hope will not delay us too long. Do the regulations change voluntary organisations' liabilities? If such organisations are held to be better informed about volunteers and employees, will that create new liabilities and therefore mean new costs for them? Similarly, on liability, will the minister confirm that the public services will retain liability for the reliability and completeness of the information that is provided?
Secondly, on a related matter, to what extent will the change increase or decrease the costs that are associated with the operation of the voluntary organisations that make use of the certificates? Finally, I understand—this may not be correct or complete—that there is some differentiation planned between those who currently have access to certificates and those who will in future require certificates. I would welcome an assurance that any such difference will be eliminated and that a level playing field will be provided for all organisations that require access to criminal record certificates.
I will need to consult on that last issue.
I understand that there are two aspects to liability. Is Mr Stevenson talking about the liability that follows on from receipt of the information or about whether an organisation applied appropriately for the information in the first place?
The former.
Thank you for that clarification. My first impressions were correct. As confidentiality is involved, it is important to stress that it is the individual who makes the application to obtain the certificate. Organisations that hold information as a result of applications that have been made must use the information appropriately, or they will be liable. That applies to public services and voluntary organisations.
On the second question on costs, we have arranged for Volunteer Development Scotland to assist voluntary organisations in dealing with the matter. Otherwise, as many as 44,000 organisations might have been required to register individually. In the first instance, we have given about £1 million to VDS to handle the cost side centrally. That means that there should not be a cost to voluntary organisations.
On the third question, we do not believe that there is any difference. The point that was raised should not apply.
Thank you.
The minister dealt with the question of cautions by the English police. My question is for information only—there is nothing tricky in it. Will those cautions be administered after an admission of guilt?
Yes.
That is all that I was looking for.
I seek clarification about a matter that the Association of Scottish Colleges raised with me, which I should raise with you because there is confusion, which you might be able to clarify. The Association of Scottish Colleges has asked the committee to challenge the regulations on the basis that its students will not be exempt from the fees that are charged by Disclosure Scotland. That point might take us outwith the scope of the regulations, but I wonder whether you could clarify, on the record, whether the association is confused about the matter. Anything the minister might have to say on the subject would be helpful.
The convener rightly says that the question is outwith the subject that is being discussed today, but I am happy to deal with it. We are aware of the matter and have received correspondence on it. We will consider the position of students on placement, what problems might arise and whether the regulations would create a difficulty for such placements.
I know that social work students, for example, will go out on placements and work with adults who are covered by the regulations. Such students would need to be covered by the regulations—in fact, they would eventually need to be covered anyway, so the regulations anticipate what will happen to them when they qualify. Nevertheless, we understand that costs could be involved earlier than they might expect. The standard cost will be £13.60 which, although is not high, is an added burden for a student. Therefore, we will consider the position. That is a slightly long-winded answer, but we are considering the issue.
That answer is helpful. I have an interest in the matter. As a constituency MSP, I represent a number of students and am concerned that costs will be passed on to students. I would like to think that someone is considering the possibility that an extra burden will be placed on students on placements. I thank you for your answer.
I have a question about which I am not particularly vexed—it is a point of interest and might relate to the originating legislation. I wonder whether you can help me. I notice that the age that is used in the instrument is 18 years. Where does that come from? Was it chosen for the purposes of this legislation? Will you give us some insight into that?
I have just received confirmation of my suspicions that the age of a child is defined differently in different pieces of legislation. There is no uniform age. I think that it was felt appropriate to choose age 18 as the break point for this legislation because it involves protection. We decided to go for the broad group and the higher age rather than try to separate out vulnerable people at the age of 16.
So age 18 was felt to be appropriate for this legislation, but would not necessarily be appropriate in every circumstance.
The age is not uniform.
As there are no other questions, would you like to wind up on the motion, minister?
I thank the committee for giving me time to speak about the regulations, which are important, and I hope that we have dealt with the committee's questions. The issue has been addressed appropriately for the enhancement of protection and security of vulnerable adults in our community, which is worth while. I am pleased that we have reached the point at which we can present the regulations to the committee and I hope that members will accept that the regulations are appropriate and can be implemented.
I see that Alasdair Morrison agrees with the minister, but I must put the question formally to the committee. The question is, that motion S1M-2934, as printed on the agenda, be agreed to. Are we agreed?
Motion agreed to.
That the Justice 2 Committee recommends that the draft Police Act 1997 (Enhanced Criminal Record Certificates) (Protection of Vulnerable Adults) (Scotland) Regulations 2002 be approved.
I thank the minister.
The committee is now required to report to the Parliament, because the instrument is subject to affirmative procedure. The report need only be short. We will summarise the main points and the minister's answers. Members can approve the report by e-mail, but they know what will be in it.
I remind members that the next meeting of the Justice 2 Committee will be on Wednesday 24 April when we will hear evidence in respect of the Crown Office and Procurator Fiscal Service inquiry from the Lord Advocate and the Solicitor General. Members still have to hear about the arrangements for the next meeting on the budget. It will be helpful if members check their e-mail for clarification. I thank members for their patience.
Meeting closed at 12:48.