Justice 1 Committee, 19 Apr 2006

Meeting date: Wednesday, April 19, 2006

Official Report 272KB pdf

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Subordinate Legislation

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Police Act 1997 (Criminal Records) (Scotland) Regulations 2006 (SSI 2006/96)<br />Police Act 1997 (Criminal Records) (Registration) (Scotland) Regulations 2006 (SSI 2006/97)

We move on to item 2, which is our consideration of subordinate legislation. I welcome once again to the committee James Laing and Elizabeth Sadler from the Justice Department. Members will recall that we heard from them at our last meeting, when we first discussed the regulations. I raised concerns about the regulations, as did other members, and I put on record my serious concern that the Executive did not consult on the regulations.

The content of the regulations appears to be substantial. In addition to the fee increase, a number of other issues arise, including the extension of the scope of information that can be gathered and the number of posts that are covered. I notified James Laing and Elizabeth Sadler about a couple of issues in advance of the meeting as I thought that it might be helpful to the committee if they clarified the issues for us today.

At our previous meeting, we heard the officials say that the regulations do not extend significantly the range of posts that are eligible for checks. However, for the purposes of any report that we might make, I thought that we should be aware of the type of post that will be included. I also thought that we should know why the Executive did not consult on the level of the fee increase.

I note what the officials said in evidence, namely that the Scottish service is cheaper than that in England and that many organisations expected to pay a fee. However, it has been drawn to my attention that the fee has already been advertised. If my information is correct, the advert does not mention that the fee is levied under regulations that are subject to annulment by the Justice 1 Committee. People may think that the fee is a fait accompli, but annulment is always a possibility.

We have also been made aware of the Scottish compact between the Executive and the voluntary sector. The failure to consult may be a breach of that compact. I understand that any measure that affects the voluntary sector—which the regulations do—should be the subject of consultation.

Those are the kinds of issues on which we would like the officials to shed light. The answers will inform the committee; they will be helpful in our decision whether to let the regulations pass without comment or to seek to annul them.

Is it possible to drop the blind?

That is part of our interrogation technique.

I was a bit concerned about that. [Interruption.]

Is that better?

Yes, thank you.

I thank the convener for inviting us to attend another committee meeting and I am grateful to her for alerting us to the points that she has raised. Shall I respond to them in turn, convener?

Yes.

Right. The first point is on the extension to the range of posts that are eligible for checks. Scottish statutory instrument 2006/96 sets out the eligibility for enhanced disclosure checks. With two exceptions, the regulations cover the same categories of employment as section 115 of the Police Act 1997, which they replace. With the two exceptions, there should be no increase in the number of checks.

The regulations allow enhanced checks to be carried out for the full range of posts working, on a paid or unpaid basis, with adults who are at risk or with children, as defined in the regulations. Previously, only a standard check was possible for some of those posts. That is achieved by removing the requirement that only people who work with those groups on a regular basis are eligible for an enhanced check, which means that people in all posts working with adults at risk and with children, as defined in the regulations, are now eligible for an enhanced check. That allows a more comprehensive check to be carried out and removes a deficiency in the previous regulatory regime that Sir Michael Bichard identified in his report. He argued that the distinction involving a test of regular contact was unclear and had produced an inconsistency of approach between the standard and enhanced disclosure. He also felt that the distinction was wrong in principle because the true risk analysis was whether the person worked in a position where a child or an adult at risk was likely to trust that individual, not frequency of access.

For example, it is now clear that school crossing patrols and school janitors are eligible for enhanced checks, whereas previously some local authorities were requesting standard checks for those employees. That means that the overall number of checks should not greatly increase as a result of the regulations, although there will be an increase in the number of enhanced checks with a counterbalancing decrease in the number of standard checks. The two new groups of people who are eligible for an enhanced check—that is, to whom eligibility is extended—are those who sit on fostering panels or adoption panels. Those individuals take sensitive decisions about the suitability of people as foster and adoptive parents and it is important that they are fit and proper people to take those decisions. Between 400 and 500 people in Scotland sit on such panels and are now eligible for an enhanced check, which makes around 500 extra checks.

Do any members wish to pick up on that before I move on to the second point?

Would that eligibility extend to elected members who are also members of adoption or fostering panels?

If an elected member sits on a panel, they will be eligible for a check. The regulations create eligibility for a check, not a requirement to have one.

So it is only eligibility.

Did you say that school crossing patrols—lollipop people, as we call them—will have enhanced checks?

They will be eligible for an enhanced check. At the moment, it is for the employer to decide whether to carry out a check. The regulations apply to a person who is in a child care position, which a lollipop man or woman would be. Some local authorities have interpreted the fact that they have short working hours as meaning that they do not have regular access to children and were therefore requesting only a standard check. The regulations now allow for those post holders to have enhanced checks if their employers so decide.

That is interesting because, only today, the City of Edinburgh Council launched a scheme to try to get people to act as lollipop people because there is a desperate shortage of them. It seems to me that, if local authorities opted for an enhanced check, it would put more people off, but that is just an observation.

Who would decide whether to have an enhanced check for the fostering panel or adoption panel members? Who would be the employer? Would it be the local authority's head of social work?

It will be the local authority. I am not an expert on this, but I understand that each local authority has a panel of experts and has different arrangements for recruiting them and how their checks are organised. Ultimately, the chief executive of the local authority would be responsible.

Is there any advice or guidance from ministers to the effect that they would expect enhanced checks to be carried out routinely? Eligibility is just a grey area. What would make someone carry out an enhanced check? Would it be a feeling that something was not quite right or would they do it routinely? The regulations lack clarity and certainty about how those provisions would apply.

Our responsibility is for Disclosure Scotland and the way in which it operates. How individual employers and individual departments within the Executive implement their policy is not my area of expertise.

Our colleagues who work with fostering and adoption panels requested that panel members be brought within the scope of an enhanced disclosure check, partly because there is a risk—probably slight—that if people who wanted to harm children were on one of those panels, they could approve unsuitable people to become foster carers and adoptive parents. I imagine that, as a result of the regulations, they will issue guidelines on the procedures that they expect to be followed for an enhanced check to be carried out.

Thank you. I think that that ends the questions on that particular point.

The next question that you asked was why the Scottish Executive decided not to consult formally on the fee increase. Ministers recognised that the fee increase would be unwelcome. They also recognised that they had little or no flexibility for reducing the fee increase, given the need to allow both BT and ministers to recover their subsidy to date and to cover their costs over the rest of the contract. Ministers therefore decided that a consultation exercise was unlikely to achieve anything.

Ministers concluded that it was preferable to give users advance notice of the programme of changes, including the fee increase, and they took care to ensure that everyone was fully informed in advance. That included writing to the top 500 users of Disclosure Scotland on 8 February. That letter made it clear that the increase in fee was subject to the consent of the Scottish Parliament being obtained. Disclosure Scotland also alerted users to the planned fee increase when it issued its February invoices, and further details were provided on the Disclosure Scotland website. I understand that the website also made it clear that the fee increase was subject to the Scottish Parliament's approval.

As I mentioned, the fee is still significantly less than the £36 that is charged in England and Wales. We and Disclosure Scotland have, so far, had very little reaction to the fee increase, and the new fee was successfully introduced on 1 April.

This question is perhaps for ministers, but I put it to you anyway. I would not like this situation to arise again. I acknowledge that, over the four years, the number of cases that were predicted did not happen. By now, we should have some basis for knowing what the figures are likely to be. Can you say anything about what might happen in the future to ensure that there is an incremental increase rather than a substantial one?

The contract with BT allows the fee to be increased once every three years. The first fee increase was deferred last year because of the performance problems that Disclosure Scotland had back in 2004. We believe that the projections for the number of cases are now far more robust than the projections on which the original fee was set. On the basis of the likely volume of cases, we anticipate that any future fee increase will be to cover inflation only. Certainly, the figures for 2005-06 suggest that the current projections are pretty robust. However, we cannot account for any changes that might result from the Bichard proposals, which are some years away and could result in a fundamental change in the whole system anyway.

I am a lot happier today than I was a few weeks ago, knowing the kinds of posts that might be affected by this. I hope that we will not be in this situation in the future. I assume that the fact that I have not received lots of e-mails from affected organisations means that they are resigned to the fee increase, although I could be wrong.

The only issue that remains a concern for me, arising from the Bichard recommendations and the whole issue around the 1997 act, is that we should be careful to ensure that we get the balance right between protecting children and ensuring that we are not unnecessarily preventing adults from working with children when they are innocent parties. I believe that, when you previously gave evidence to the committee, you said that the regulations will, in Scotland, extend the scope of information that an enhanced certificate can gather.

The scope of information that can be gathered remains the same; however, the number of organisations from which it can be collected has been increased. Under the regulations, what is essentially non-conviction information can now be gathered from the armed forces, the Royal Military Police, the police on Jersey, Guernsey and the Isle of Man and Garda Siochána. It is unlikely that there will be many cases where information will be provided, but Bichard identified it as a potential gap in the existing system. For example, although an individual might have been subject to discipline in the armed forces for a relevant offence, that offence might not have reached the criminal record. Such matters might be relevant in considering a person's suitability for a post.

But, according to the Official Report, you told the committee:

"the regulations extend the scope of information that can be gathered for an enhanced check."—[Official Report, Justice 1 Committee, 29 March 2006; c 2782.]

I presume that, in addition to increasing the number of organisations from which information can be gathered, the regulations will allow more information to be gathered.

The only extension in that respect is more of a technical matter. Disclosure Scotland will now be able to seek information from the Driver and Vehicle Licensing Agency and the Passport Agency and to ask for national insurance numbers, but simply for the purposes of confirming identity. It will be able to check a database that shows, for example, that Elizabeth Sadler with passport number X, driving licence number Y and NI number Z is the same Elizabeth Sadler who lives at a certain address.

So that is what you meant when you said that the regulations extend the scope of information that can be gathered.

Yes.

Surely the fact that more organisations can be asked for information extends the scope of information that can be gathered. For example, if the person in question happened to be a major general, you would not be able to get information on him if you could not ask the Army for information.

We can ask the same information from the Army that we can ask from a police force.

Yes, but if the person in question was a soldier, there would not be much point in asking the police for information on him. The scope of information has been extended because you can ask more organisations for information.

I was trying to distinguish between the ability to ask for information from more organisations and the ability to ask for different information.

Yes, although as I said it might not be relevant to ask for information from an organisation that has had no contact with the individual in question.

Convener, the point is that this is simply a charade, because we are being bounced into making this decision. The reason why your postbag has not been full of representations from agencies is that they have already received letters saying that the fees are going to go up again and have simply accepted it. Quite frankly, we are just being used as a rubber stamp. Setting such a precedent is not desirable, and I certainly do not want the situation to be repeated. Organisations should not receive letters saying that something is going to happen, with a wee footnote saying that the Justice 1 Committee has to tick certain boxes first.

The committee has the option of not rubber-stamping the regulations, which is why I put the issue back on the agenda. I, for one, am not prepared to agree the regulations if I am not satisfied. We could have chosen to make no comment on them but, for reasons that all members have outlined, it is important that at the very least we receive assurances that this will not happen again. Some of the regulations make quite substantial changes to the current situation and it is my view that they should be dealt with when we consider the primary legislation that implements the Bichard recommendations. At least I have a bit more of an understanding of the issues. If eligibility is not being extended to that many additional posts, then I am not too concerned about that—I can see the point in that—if there is no real extension in the scope of the information that is gathered. However, I agree with Bruce McFee that extending the number of organisations from which information can be demanded extends the scope of the information. Perhaps the regulations will be seen as a forerunner of the Bichard recommendations when the Parliament comes to consider the implementation of those.

I have received e-mails about a couple of cases in which false allegations that appeared in enhanced certificates resulted in individuals being sacked. Therefore, I am concerned that the regulations as a whole do not protect everyone in the system. However, I do not think that the regulations before us would allow us to do anything about that. Probably, the primary legislation that the Parliament is still to consider will be more relevant in that regard.

I can reassure Bruce McFee that I will certainly not rubber-stamp regulations that I feel have wider implications. For that reason, I took the liberty of making a few calls to organisations that I thought might have an interest. My overall impression was, as has been said, that the organisations are not happy with the fee increase but that they are resigned to it. I have received no formal correspondence on the issue.

I did not suggest that the convener would rubber-stamp anything, but there seems to be an expectation that the committee would simply rubber-stamp the regulations. That is implicit in the fact that, before the increase was authorised, information was sent out suggesting that the changes would be implemented.

I want to return to the justification that Elizabeth Sadler gave for the increase in fees. Part of the justification was that the Executive had to recoup money. Is that correct?

Yes.

Can we get more detail on the figures? How much will the Executive need to recoup because it failed to get the estimates right in the first place?

The financial position to date is that BT, which made a significant capital investment at the start, will have a recurring deficit at the end of this year of somewhere in the region of £7.5 million. Year by year, the Executive has supported Disclosure Scotland to a total of about £4 million. Part of that money is spent on providing checks at no cost for volunteers. Thus, the total deficit so far is probably about £11 million or £12 million for the first four years of operation.

Although the committee is right to raise reservations about the assumptions that have been made about how the order will be dealt with, the extension of the eligibility for enhanced checks to people who work with, but do not have regular contact with, children or with adults at risk is an important change. I want that change to be put in place as soon as possible, because the issue should not be whether a person has regular contact, but the position that they hold. People in some positions—for example, a janitor—are automatically considered as people who can be trusted. We need only remember the Soham case. I very much welcome the fact that such positions will now be covered as a result of the order.

I have one further question. The Executive note on the regulations states:

"In September 2005, DTZ Pieda Consulting carried out research … This research showed that an annual total of around 500,000 applications could be expected for the remaining 8 years of the contract with BT. On that basis, and because the PPP Agreement requires that BT can recover its costs over the lifetime of the Agreement, Scottish Ministers have decided that the fee should rise."

This might not be a question for the Executive witnesses before us, but were public-private partnerships not supposed to remove the risk from the public sector?

The witnesses are not required to answer that.

The question may be outwith their remit and is probably better addressed to ministers.

The contract in question is a fixed-term contract. Under the terms of the contract, BT is allowed to recover only its costs. Ministers also have costs under the contract. The £20 fee is based on current projections of volumes for the remainder of the contract. We are confident that those projections are more robust than the original projections. A fee of £20 is required if the Executive and BT are to break even over the course of the contract. This is not a case of people making a profit, but of recovering their costs.

To be fair, the question should probably not have been directed to you. The principle that underlined PPP was that it was supposed to remove financial problems or risk from the public sector to the private sector, but, yet again, we have bailed out. Thank you for answering; political questions can be asked elsewhere.

Yes, please.

Do members want to produce a report or take other action? Having heard from the officials, I feel that many points about the regulations have been clarified. However, I suggest that we produce a short report that draws attention to the fact that no consultation has taken place, particularly with the voluntary sector. We can note the points that have been made about the costs that the Executive has borne for four years and the fact that the fee is £36 in England. Notwithstanding that, a point of principle is involved. The increase is also retrospective, because it applies from 1 April. Are members happy with that suggestion?

Members indicated agreement.

I will make one point about the voluntary sector. Ministers have made it clear that they will continue to cover the cost of disclosure for volunteers who work with children and with adults at risk. In the next few months, we plan to rationalise how free checks are processed by allowing voluntary bodies to register directly with Disclosure Scotland as registered bodies. That means that they will no longer have to use the central registered body in Scotland. The CRBS will continue to provide a service for processing free checks, particularly to smaller voluntary organisations, but we are discussing with the voluntary sector how to achieve that. I emphasise that we are in discussion with the voluntary sector about issues as they relate particularly to that sector.

That is helpful to know. Do members have any other points for our report? We will attach to it the Official Report of our meeting, which speaks for itself.

I thank both witnesses for appearing. I am sorry for dragging you along for a second time, but it was important to do so. Now that the committee has asked questions, we know at least a bit more about what the regulations are intended to do.

The committee's next meeting is on 26 April, when we will hear oral evidence for our inquiry into the Scottish Criminal Record Office and the Scottish fingerprint service.

Meeting closed at 13:13.