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Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2007 (Draft)
Good morning, and welcome to the fifth meeting in 2007 of the Justice 1 Committee. I apologise for keeping Johann Lamont and her officials waiting. The committee had some questions about subordinate legislation to discuss. All members are present, so no apologies need to be recorded.
Before I discuss the details of the draft order, I will set out the background to the Rehabilitation of Offenders Act 1974. The act sets out to improve the rehabilitation prospects of people who have been convicted of a criminal offence, have served their sentence and have since lived on the right side of the law. It provides that anyone who has been convicted of a criminal offence and sentenced to less than two and a half years in prison can be regarded as rehabilitated after a specified period with no further convictions. After that period, the original conviction is considered to be spent.
Thank you, minister.
I seek a piece of information, which I hope you or your officials may be able to supply. You spoke about the order applying to convictions that result in less than two and a half years in prison. Forgive my ignorance, but does it also apply to convictions where there is no prison sentence?
Yes.
So it applies all the way down to the most trivial criminal conviction?
Yes.
What consultation was undertaken on the order? Will you give the committee an idea of the types of people or bodies that were consulted?
I will ask officials to give the factual detail on that in a moment. It is fair to say that a significant amount of what the Executive has undertaken in laying the order has been done in response to the decisions of the Scottish Parliament and the Parliament at Westminster. Such tidying-up provisions include changing the name of the Gambling Board to the Gambling Commission. I ask officials to give more information on the consultation.
As the committee will have seen, a variety of policy areas are covered in the instrument. The work on each of those areas was developed in conjunction with the relevant Executive officials and, in most cases, the bodies themselves. For instance, the Scottish Criminal Cases Review Commission and Victim Support Scotland were involved in developing the content of the order.
Good morning, minister. My question is on the degree of retrospection in the instrument. What was the objective of that retrospection, particularly in relation to fire and rescue service staff? What assumptions did the Executive make of the effect of those changes?
The critical thing to say about fire and rescue service staff is the need to recognise the changing nature of the job. The staff recognise that—indeed, only yesterday, we met to discuss this very matter with the fire boards and union representatives. Those involved recognise the shift—it is a literal one—that has taken place from fire fighting to preventing fire and acknowledge that their work is now more educational.
As the minister explained, fire and rescue service staff who are already involved in working with children are covered by the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005—they go through vetting procedures under the act. The order will allow a spent conviction to be considered by employers more generally. An authority would therefore be able also to check individuals who might not, in most of their work, come into contact with children or vulnerable adults. As a result, it would allow checks to be carried out on those who are already in employment and allow the authority to determine the most suitable deployment for that member of staff.
I have listened to what—
His name is George Burgess.
I am sorry about that, Mr Burgess. I will try to wear my glasses next time.
In other words, could they be fired?
Yes. Could they be sacked?
The order's purpose is to give employers all relevant information about employees' previous convictions. It is really a tool for employers. However, an employer might well have cause for concern if they discovered that an employee had a spent conviction of a certain nature or if they felt that the employee was dishonest in not disclosing the conviction.
I am sorry, but we are in danger of confusing a couple of issues. On the point about a staff member being dishonest because they did not disclose a spent conviction when they did not need to—
That would not be dishonesty.
Precisely.
The technicalities of the matter can be dealt with. The point is that, in practical terms, the nature of the job has changed.
I understand that.
As a result, when they are deciding how to deploy fire service staff appropriately, an employer will have to take into consideration the fact that the job has changed, that the employee is being asked to do different things and that, given their conviction, it might not be appropriate for them to carry out certain aspects of it. The employer might well decide that it would be appropriate for the employee to carry out that new element of their job, but such a decision will have no implications for the old bit of their job, if you know what I mean.
That is the question. We are clear about the fact that this provision has been included to deal with the changing nature of the job. People might well feel that an individual with a spent conviction can never work with children. Leaving that argument aside, under the order, an employee who might have worked for the service for 20 years will be required to reveal a spent conviction, which will allow employers to choose not to put them into situations that might bring them into close contact with children and, instead, to keep them doing other parts of their job. Surely there is nothing to prevent an employer from sacking that employee once that spent conviction is disclosed.
In general, the fire service is content with the situation and recognises the changing nature of the job. I should also point out that, under other legislation, disclosure is required if an employee is asked to carry out particular work. That does not necessarily mean that, in this case, an employee would be vulnerable to being sacked. After all, because they are already doing a certain job, they would be protected by existing employment law.
Paragraph 2 of the Executive note, which sets out the policy objectives of the order, is crystal clear. It states:
The person would still have all the normal protections of employment law. In its normal operation, the Rehabilitation of Offenders Act 1974 prevents spent convictions from being disclosed. It goes further than normal employment law and makes absolutely clear that failure to disclose a spent conviction when there is no requirement for a person to disclose cannot be a ground for dismissing or not advancing them. You are thinking of a scenario in which someone is already employed by a fire and rescue service and has a spent conviction that they have not disclosed, because they did not need to do so. Under the new regime, they would be required to disclose it. I do not think that that would allow a fire authority to dismiss someone because they had not disclosed a conviction five or 10 years beforehand, when they were not required to do so.
I agree that the instrument would not allow that to happen, but the paragraph on policy objectives describes not just the failure to disclose a spent conviction, but having a spent conviction as a ground for dismissal. Is the Executive note wrong? It states that
An employer would have to justify a dismissal on the ground of a spent conviction. You have in mind a scenario in which someone has been doing mainstream fire service work for 10 years with a spent conviction. If their job has changed, they will have to be disclosed in order to do the new work. An employer would have to justify why in those circumstances it was proportionate for them to dismiss the person.
The order seems to say that someone could be dismissed for that reason. Will you clarify whether that is the policy objective?
The person continues to be protected by employment legislation.
The order may be at odds with such legislation. We need to be clear about the issue. Bruce McFee suggested to you that, according to the order, having a spent conviction is a ground for dismissal. That means that when employees who have not been required to reveal a spent conviction are required to do so, they may be dismissed.
There is no policy intention that anyone who is doing a job that they were doing before should be dismissed because they did not reveal something that they were not obliged to reveal. We know that spent convictions can be taken into account by employers, but presumably employers' reaction to them must be proportionate. I am aware that I am straying into technical territory around employment law. It might be helpful for us to reassure the committee by providing it with a definitive answer in written form.
We need that. It may not be the policy intention that having a spent conviction is a ground for dismissal. We are being asked to recommend today that the instrument be approved, but the policy objective that is stated in the Executive note suggests that there are two grounds for dismissal: having a spent conviction and failure to disclose one. Perhaps the note was not meant to be worded in that way, but it is.
We are getting into double negatives here. The Executive note to the order is a précis of the Rehabilitation of Offenders Act 1974, which does not create a ground for dismissing someone. The act does not state that if a person has a spent conviction that is required to be disclosed they can definitely be sacked as a result of not disclosing it. Rather, it works the other way round: it provides that if a person has a spent conviction that is not subject to the power requiring disclosure, failure to disclose the conviction definitely cannot be used as a ground for dismissal. The order would take away from that complete ban on taking spent convictions into account so that we return to what we might call the normal employment law situation.
Precisely. As a consequence of the order, an employee currently in post in the fire and rescue services could be sacked.
The person could be sacked only if that was a legitimate thing for the employer to do under employment law.
So that is nothing to do with the order.
It has everything to do with the order. The order would open up that possibility for existing staff. I understand the policy objective, which has been explained in straight terms, but there would be other implications if the requirement is to apply retrospectively.
My concern is about that retrospective element. I now understand the Executive's argument—it is the flip-side—about the ability to take such matters into account as a proper ground for dismissal. However, the policy intention of the Rehabilitation of Offenders Act 1974 was that, apart from in certain cases, people should not have to disclose a conviction after a certain time and should be given—I cannot remember whether this is the phrase that Unison used—a second chance to move on. For all we know, a whole lot of people in the fire service might now be required to disclose convictions that will potentially, once the information is known, result in their being dismissed.
Nothing in the order creates a ground for dismissal. Under employment law, having a spent conviction or any conviction does not of itself constitute a ground for being dismissed. We can confirm this, but I think that it would be very difficult for a fire authority to dismiss a member of staff because of a spent conviction that was not required to be disclosed when the person entered the service five years ago. If, after the order comes into force, a member of staff is asked to disclose any spent convictions and fails to do so, that might be another matter. However, if people were not required to disclose spent convictions when they entered the service and if they complied with the requirements at that time, I very much doubt that there would be grounds under employment law for dismissing them. As the minister suggested, it is probably best that we confirm that in writing for the committee.
I think that we have been drawn to that conclusion by the fact that the word "ground" is used in the Executive note, which states:
I want to ask about the thinking behind including two categories in particular within the professions that are excepted from the requirements of the act. Independent custody visitors are volunteers who can enter a police station at any time to look at the circumstances in which a prisoner is held. According to the Executive note, the eight police authorities currently recruit, select and appoint such visitors and carry out their own independent assessment of the suitability of those who volunteer. Is there a problem with that at the moment?
We have sought to reflect on all the issues that need to come under the order. Given the nature of the voluntary work concerned, the assessment of a volunteer's suitability must involve checking the person's background. At the moment, the precise format of those background checks and whether they should include an examination of the individual's criminal record for unspent convictions are matters for the discretion of the police authority or joint board. The policy intention is to formalise those arrangements by enabling questions about spent convictions to be asked as part of the assessment of a candidate's suitability for the occupation of independent custody visitor and by ensuring that spent convictions or failure to disclose such convictions may be considered as a ground for excluding a person from such a post. However, past offending will not be an automatic barrier to acceptance. The information will be used as part of the assessment.
If the system is working at the moment, why should we impose an additional burden that could deter people from volunteering to carry out a very important job? The police carry out their own assessment and appoint people and, as far as I am aware, there is not a problem. Why should this provision be included?
I suppose it is a matter of the order presenting the opportunity. It is also about consistency. There is always a broader argument about what deters volunteers and how to balance that challenge against protecting vulnerable groups where volunteering can be seen as a way in. That has been debated elsewhere in the Parliament and we know that it is a matter of balance and judgment. The view was taken that independent custody visitors could comfortably be included because that would formalise the arrangements and give consistency.
At the moment, the checks cannot include spent convictions, but the new order will allow them to be taken into account. It does not require background checks to be done; it allows them to be done. It does not impose an additional burden on local authorities or the volunteers. To be consistent with other areas such as protection of children, and because of the nature of the work that will bring custody visitors into contact with potentially vulnerable people, we think that it is sensible to give local authorities access to spent conviction information and allow them to take it into account.
My fear is that it will deter people who would make very good candidates for this important role.
That is not a matter for this order. The directive exists, so the order has to address it. There is a separate argument about how EU procurement law operates and the power of directors and all the rest of it. The fact is:
Presumably, we look through directives and decide whether there is something we want to comment on. Perhaps there is something we think would be unfair or would adversely affect the tendering process. What do you envisage coming under the order, which is not already covered?
If you are commenting on the directive, that is clearly a matter for the committee and the Parliament, and it might even be a matter for other committees. The provision in this order is in the order because the directive exists; you are trying to deal with a separate matter. The order is trying to ensure that it matches up to the legislation that has been passed here or has the power of a directive behind it.
Are you telling me that you have laid the order before the committee today but have no clear idea about one of the offences that might be covered?
I am not saying that. What I am saying is that regardless of what that is, it is in the order because the directive has already been—
Could you proffer an example of an offence that would be covered?
The directives concerned are reasonably new. As I recall, previous procurement directives did not include provisions on conviction information. The new directives say that certain categories of conviction must be considered and will bar economic operators from being considered as part of the tendering process. They also allow the tendering authority to take other types of offence into consideration. The United Kingdom is one of the few places in Europe where the concept exists of convictions having been spent. In a sense, therefore, our legislation allows some old convictions to be dropped off the list, which does not fit particularly well with legislation in the rest of Europe. The order will allow those spent convictions to be taken into account.
With respect, you still have not answered the question. You have not given me one example of something that would be covered.
Money laundering.
It is there already.
What we have is a conflict between bits of legislation. On the one hand, we have the European directive and the implementing domestic regulations that say, "These things are to be taken into account", and on the other hand we have the Rehabilitation of Offenders Act 1974, which says, "These things cannot be taken into account." The order brings the two into alignment.
Given that in any EU procurement exercise, or any other exercise that requires us to go to tender, it is often a limited company that tenders, at what level will the order apply—director, senior manager or shop-floor worker?
I believe that it will apply at the level of directors or any other person who has powers of decision making in or control of the candidate company. That is specified in the Scottish statutory instruments that govern public contract tendering.
So it could apply to any person on the board of directors or the management board.
If they satisfy that test, yes.
That is very wide. How does the order apply to foreign companies or foreign nationals who are directors of companies?
I imagine that it would apply to them in the same way.
How can we apply it to them? A company might be based in France, for example. That is not uncommon in EU procurement.
The legislation would apply equally. They would be required to disclose convictions on the same basis as people in this country would be. I think that you are getting at the practical difficulty of how we actually get—
Absolutely. How do we avoid potentially disadvantaging companies based in this country, where we can carry out checks? How do we apply the checking process to a foreign company or to a foreign national who happens to be a director of a company in this country?
We would need to check with our procurement colleagues just how the process works in practice. What the order does is ensure that spent convictions can be disclosed.
I understand the idea behind the order. My concern is about that potential disadvantage. Wonderful excuses can be used for not awarding contracts in certain situations.
The implication of what you say is that the existence of the Rehabilitation of Offenders Act 1974 causes such disadvantage.
You could argue that if, first, no such provision existed in any other country where there was a foreign competitor, and secondly, you had the ability to check.
The logic of that position is to debate whether we should have a rehabilitation of offenders act. Does it disadvantage us competitively?
No. I am sorry, but that is not the logic of my position; I simply gave two grounds for argument. The problem is that we cannot check. That is the difficulty.
I will take one more question on that area.
I want to be absolutely clear about whether convictions outwith Scotland and the United Kingdom are covered. If, for the sake of argument, someone who was resident in Scotland and who was party to a contract had a conviction in another EU country, would that require to be disclosed?
Are you referring to a spent conviction?
We have been told that there is no concept of spent convictions in the other countries.
Yes.
Such a conviction would require to be disclosed. There may be practical difficulties with establishing whether someone has such a conviction that should have been disclosed, but which has not been. However, that is a different issue, which I do not wish to explore.
To my knowledge, there is nothing in the directive that limits disclosure from the point of view of where the offence took place. It provides a level playing field; it would be unusual if it did anything other than that. In a tendering process that took place in this country, it would not matter whether the person was convicted here or in France, and in a tendering process in France, it would not matter whether the person was convicted there or here.
Sure. I am not trying to catch anyone out. I just want to have it on the record that the country in which the person was convicted is immaterial to the requirement to disclose—albeit that there may be practical difficulties in establishing that a failure to disclose has occurred, but that is a quite different issue, which I will not pursue.
That ends the questioning on that topic.
The last two lines on page 4 of the Executive note, which appear under the heading "Her Majesty's Inspectorate of Education", say:
That is not true. Paragraph 21, which is in the part of the note about HMIE, says that the wording of the 2003 order is not clear about whether seconded staff are required to disclose spent convictions—that is what is meant by "the current wording". The change is being made to allow spent convictions to be taken into account for people who come to work for HMIE on secondment. The position will be the same for people who come to work as social work inspectors on secondment. Once the draft order goes through, there will be parity.
Forgive me, but I want to check that I understood something that the minister said about fire and rescue staff, now that I have thought about it. I believe that she said that the staff who will be covered by the draft order's extension of the requirement to disclose will already have been checked under other legislation. That appeared to be the substance of what she said, but I would be grateful for clarification of that. I want to be clear about whether the draft order will draw in any new people to be checked.
It will draw in new people. At the moment, people in the fire and rescue service who work in what count as child care positions under the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 are required to undergo checks. Fire service staff who regularly work in schools and meet the tests in the 2005 act will be covered. The order will apply across the board for fire and rescue service staff.
Does that mean that we are checking staff who do not undertake any duties that, until now, require that they be checked?
The role of the fire service is changing and staff will increasingly come into contact with a range of different groups. After consultation, we recognised the logic of having an opportunity to look at spent convictions at the point of appointment, rather than at the point at which somebody was specifically doing child care work.
Might I suggest that that is not what you are doing? It would not greatly exercise the committee if you wished, from now on, to make those checks at the point of appointment. I shall put it to you in the following terms to see how you respond. I think that what is actually happening is that, for administrative convenience, you have decided to check everybody, even though the additional people you are checking are people who do not currently work with children and who, prior to the order, you would simply have checked at the point at which they started to work with children. Am I being unreasonable in characterising it thus?
I do not know whether you regard administrative convenience as always a bad thing if it rationalises systems and makes them logical.
Well, take away the label.
In certain circumstances, I would not necessarily baulk at administrative convenience. However, my understanding of the order is that it recognises the changing nature of the job and the fact that it will continue to change. Clearly, there are people who have been in the service for a long time and who have never worked with children before. If they were to work with children, they would have to go through certain legislative procedures. The view was taken that, given the changing nature of the job, increasing numbers of people will come into contact with vulnerable groups. It was therefore considered logical to consider spent convictions. However, there is no obligation on anybody to respond—
Hitherto, the disclosure process has taken place when the activities of a current employee changed such that they engaged with children and vulnerable people. The position at the moment is not that people who work with children and vulnerable groups are unchecked—that is not the issue. Potentially, there are people who have been employed in the fire service for a considerable period who have not been involved with children and vulnerable groups and who have not been checked. The effect of the order is that they will be checked, but because they do not work with children or vulnerable groups, that has no practical effect. I accept that if the check discloses something, they will never work with children or vulnerable groups—that would have been the case if the check was carried out at the point at which whether they should engage with such groups was being considered. However, the order means that information that has no relevance to their job is put unnecessarily into their file. Is that a fair observation?
It is not a case of "never". We are talking about information that the employer can consider. It is not that that person would then never work with any vulnerable groups. The information does not lead to compulsory consequences—
I have a final point. I think I have established, and I think we understand, that, for people who work with children and vulnerable groups, the check is done when their tasks—but not necessarily their job description—are changing. Therefore, vulnerable groups and children are currently protected. I accept that the order does not make the situation worse in any sense. I just do not know why we are taking the time and effort, and spending the money, to check in advance people who may never require to be checked. That is all that it boils down to.
That is not actually what the order does. The order does not require any check to be undertaken in respect of anyone. It does not require a fire authority to carry out any check that it does not already—
What about a current employee who does not work with vulnerable people or children?
If they work with vulnerable people or children, they already have to be checked and they will continue to have to be checked. Nothing in the order will force fire authorities in Scotland to start going through their payroll and undertaking background checks on all their employees.
Will you suggest to fire services that they do not carry out checks, except when they are required to do so?
I am sorry to interrupt, convener, but is the Executive note entirely wrong? Page 3, paragraph 11, line 5 says:
Was that the bit—
The Executive note says:
I would like the opportunity to reflect on what the committee has said and to respond in writing on some of the technicalities. I emphasise, however, that the policy intention is very positive. We consulted on the contentious bits, and the vast majority of what is left tidies up and supports a policy on which we would all agree—the rehabilitation of offenders in certain circumstances, with exceptions for those from whom we might need to protect vulnerable groups. Nothing in the order goes counter to the generally expressed view of the committee and the Parliament about the way in which we should deal with those matters. However, I would prefer to reflect on the technicalities and come back to the committee in writing about them.
That would be helpful. Having examined the issue, I get the sense that the committee is content with the provision on checking new people who apply to join these services. That is clear. The committee is also clear about why the Executive is taking this action. In a changing situation, the employer should be in possession of all relevant information, particularly now that the fire service is expanding into work with schools and children.
Yes, but there is a bit before that changes the meaning of "may".
We want to be clear about the Executive's policy intention on existing staff before we are content to recommend the approval of the draft order. Could you clarify that for us, minister?
Absolutely.
I have attempted to read the order and the terms "fire service" and "firemen" do not appear anywhere. Where does the order refer to them? We have been talking about the Executive note, which attempts to describe what the order does. I am just not sure where the order refers to those terms. This is my inability rather that yours, minister—it would be helpful if you could point to that reference.
The reference is found in proposed new paragraph 25 of part 2 of schedule 4, which says:
Where—
It is halfway down the page.
Okay. Thank you very much. That is helpful.
That just shows that Stewart Stevenson is not infallible.
Sometimes the simple things defeat us—I just could not see it.
We have reached the end of our questions. The minister's comments have been helpful, and we are clear about our point of concern. I do not think that we should deal with the motion until that point has been clarified. We have some timetabling issues next week, but the minister will need to come back at least to move the motion on the draft order before the committee can vote on it. I know that we have some accommodation problems next week, so we will liaise with the minister and try to resolve that.
I am at your service if you need to organise a meeting so that I can provide information on which the committee can reflect and make a decision. It is a matter of where and when the committee wishes to meet—we will ensure that we are there.
Thank you.
It is my understanding that we cannot meet in public session next week. No committee rooms are available on Tuesday and Wednesday because the Parliament is being used as a conference centre as opposed to what it should be used as, which is a parliament. There might be an issue about that, but I understand that only committees that meet in private can meet next week because we do not have the facility to record the meetings. As I said, next week the Parliament is not a parliament but a conference centre.
Mike Pringle has cleverly got on the record some members' feelings about events next week, which is fair enough.
Thank you.
Police (Injury Benefit) (Scotland) Regulations 2006 (SSI 2006/610)
Under item 2, the committee is invited to consider the Police (Injury Benefit) (Scotland) Regulations 2006. Members have a note from the Subordinate Legislation Committee keeping them up to date with its report on the regulations.
I hope that the Deputy Minister for Finance, Public Service Reform and Parliamentary Business will withdraw the regulations. He can re-lay them so that they will still come into force on the date on which they are currently due to come into force. I suggest that because the Subordinate Legislation Committee, as it always so comprehensively does, has identified a number of drafting defects. They are not simple, limited defects. In the Executive's response to that committee, it acknowledges six significant errors. For example,
I agree whole-heartedly with what Stewart Stevenson has just said. The regulations have been sloppily drafted—the Subordinate Legislation Committee flagged up the matter at its meeting on 16 January. The Executive has acknowledged the mistakes and has said that it intends to rectify the mistakes in the regulations by attaching amendments to another SSI.
On another topic.
Yes, on a completely different subject. The other instrument also relates to the police—that is about the only thing that the two instruments have in common.
Is anyone otherwise minded?
I agree entirely.
It is pretty clear that the committee would prefer the regulations to be withdrawn and properly drafted before they come before us again. I ask the clerk to remind me how we can suggest that.
If the committee wishes to pursue that action, the best thing to do is for the convener to write to the relevant minister, stating the committee's views and inviting him to withdraw the instrument. If, for whatever reason, the minister is unwilling to do so, as Mr Stevenson points out, a member can lodge a motion to annul the instrument. That would mean that the committee would have to deal with the matter again, next week.
What is the deadline for lodging a motion to annul the regulations?
The regulations will come into force on 1 February.
The deadline for the committee to report to Parliament on the regulations is 5 February.
So the matter will have to be dealt with by then.
It will need to be resolved next week.
But we cannot meet in public next week.
We hope to be able to make that possible.
What is the deadline for members lodging a motion to annul the instrument?
I defer to members on that.
The matter will be discussed at next week's committee meeting. I guess that we could accept a motion before that deadline, but the minister may agree to withdraw the regulations before that is necessary.
Indeed.
I suspect that a motion would need to be lodged by 4.30 on the day before the meeting.
That ends our public meeting. We will continue the meeting in private to discuss item 3, which is our Scottish Criminal Record Office inquiry.
Meeting continued in private until 13:20.