Children’s Hearings (Scotland) Act 2011 (Rehabilitation of Offenders) (Transitory Provisions) Order 2013 (SSI 2013/146)
Item 2 is an opportunity for members to question Scottish Government officials on the Children’s Hearings (Scotland) Act 2011 (Rehabilitation of Offenders) (Transitory Provisions) Order 2013. I welcome Daniel Kleinberg, team leader for youth justice and secure care; John McCutcheon, policy officer, from the children and families directorate; and Gordon McNicoll, divisional solicitor, and Roddy Flinn, senior principal legal officer, from the directorate for legal services. Good morning, gentlemen.
I will take three or four minutes to respond to some of the points that the committee suggested we might want to talk about today.
The committee will know that the intention had been to lay the relevant secondary legislation necessary to bring the new disclosure regime that is contained in the Children’s Hearings (Scotland) Act 2011 into effect as part of the wider go-live of the new children’s hearings system. That was intended to happen on 24 June 2013. However, earlier this year a question emerged about the legislative competence of one of the Scottish statutory instruments that would have achieved that result, as a consequence of officials becoming aware of discussions that had taken place between officials in other parts of the Scottish Government and the Parliament in connection with what is now the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013 (SSI 2013/50). As a result of that development, the relevant SSIs have not been laid as planned. Instead, we have a transitory order, which is what we are here to talk about today.
The disclosure provisions in the 2011 act reclassify certain children’s hearings disposals from convictions to alternatives to prosecution and provide Scottish ministers with the power to make an order under the Police Act 1997 that specifies the offences that Disclosure Scotland can access automatically while discharging its functions of providing criminal record checks for recruitment and other purposes. The police act order needs to be supplemented by an order under the Rehabilitation of Offenders Act 1974 to ensure that only those individuals with a children’s hearings alternative to prosecution in respect of offences set out in the police act order—which will be serious sexual and violent offences—are compelled to tell an employer that they have a spent children’s hearings alternative to prosecution.
The issue that is raised by the discussions to which I have just referred is a complex one. In essence, whereas we currently have the power to legislate generally for disclosure of children’s hearings disposals because they are classed as convictions, the effect of decriminalising those disposals and making them the equivalent of alternatives to prosecution is that we move into territory where we do not have the equivalent competence to act in so far as doing so would impact on reserved areas. The issue here is primarily the regulation of particular professions. That therefore requires us to seek an order from the UK Government under the Scotland Act 1998 to transfer those functions in so far as they will impact on reserved areas. The transitory order under the 2011 act, which you now have before you, is required to carry forward the existing disclosure provisions in respect of the new children’s hearings regime until the powers that we need are achieved.
We looked at the alternative option of delaying the new children’s hearings system, but that would not be desirable, given that this is only a small part of a significant overhaul of the children’s hearings system that is teed up to be operational from 24 June. To delay go-live would not make the process any swifter; it would simply postpone the other improvements that will be achieved under the 2011 act. The option of not providing for disclosure of a new compulsory supervision order is not acceptable either. That would mean that individuals with serious sexual and violent offending behaviour would not be subject to any disclosure.
Finally, we also looked at the option of bringing forward provisions only in so far as they did not impact on reserved areas. We did not do that, for two reasons. First, the criminal history system and disclosure procedures are extremely complex. The lead-in time for making changes and being confident about them is long. Secondly—and more critically, in this instance—it would be all but impossible to explain clearly to a child the potential impact that accepting grounds against them might have on their future need for disclosure and self-disclosure where that depended on the nature and type of job for which they were applying. We needed to keep the system understandable to children as they go through it.
To that end, the intention is to continue with the existing disclosure arrangements and to act as soon as possible after the proposed transfer of powers under the Scotland Act 1998 to allow for the changes to the disclosure procedure envisaged by the 2011 act. Obviously, the timescales for that depend on scheduling and on parliamentary decisions that will be taken elsewhere, but we hope to move that on as swiftly as possible. Although discussions with Whitehall counterparts are at a very early stage, our preliminary view is that the nature of what we are trying to achieve is unlikely to meet with any resistance from them. The nature of the changes that we are seeking to make were subject to official-level discussions with the Home Office, given that after a recent Court of Appeal decision, it is seeking to achieve something similar down south. That probably means that, although we can be confident about the likely progress of a Scotland Act 1998 order, there will be a wait of six to 12 months until we can bring forward the provisions that we had hoped to have in place in the next couple of months.
I am grateful for those comments. Please could you explain what the order is intended to do that gets round the problem?
In simple terms, the order keeps the system that we have just now as it relates to disclosure in effect for the new supervision orders that are coming in as part of a children’s hearings system. We already have those powers, but we cannot bring the new powers in as we decriminalise the outcome into children’s hearings disclosures. In effect, the measure is exactly what it says: a transitory one to hold the system in place until we have the powers that we need.
Is the effect of it then to avoid the decriminalisation?
In the short term, yes. It keeps the current system—
—and therefore retains the disposals in the children’s hearings system within the powers of the Scottish Parliament?
That is exactly right. It also retains the disclosure principles for both.
I am grateful. Thank you.
We have three regimes: the predecessor regime; the one that is going to be transitory, which is before us today; and the destination that we will reach when all the vires issues are, hopefully, satisfactorily dealt with. I am coming to the very edge of policy, which is not our concern as a committee. I just want to be clear that no individual whatever will be adversely affected by the transition from the existing regime to the transitional regime.
To the destination regime?
No, to the intermediate regime that we are talking about today. No one will be disadvantaged—they will be treated the same.
I will look to colleagues to correct me if I am wrong, but in effect the predecessor regime and the transitory regime are one and the same. The intention of the order is to keep it exactly as it is, so nobody ought to be adversely affected.
The adverse effect is limited simply to the fact that the change is postponed, which is clearly an adverse effect for some people.
Precisely right. Delaying the enhanced and better regime—in the view of the Parliament and my ministers—is frustrating but necessary.
Of course, that is from the point of view of the individuals whose convictions may or may not be disclosed. On the other hand, there are those to whom the disclosure is made. Is there any disadvantage to those to whom disclosure is made as a result of the existence of a transitory regime? Is the answer simply the same?
It ought to be the same. The advantage is that if we did not have this transitory regime, obviously you would not have those disclosures. We would not be able to apply them, so you would have the very negative effect that information on people who as children had criminal convictions that might be relevant, particularly those for serious sexual and violent offending, would not be available to those who were seeking to keep children safe.
I just want to understand the reason why it has been necessary to postpone things. You said that the vires issue arose earlier this year. You have had preliminary discussions with Westminster. Will you lay out the timescales? What does “earlier this year” mean?
It means Easter. Forgive me, but I have forgotten exactly when Easter fell.
Forgive me, I am not trying to pin you down to an exact date; I am just trying to get a greater degree of clarity.
If you forgive me, I forget the date, but it was the day before the Easter weekend. That is why it is burned in my memory; I got the sort of email that you would rather not find on the Thursday afternoon before Easter. That is when it became clear that we had a potential vires issue. Obviously, discussions with colleagues down south have taken place since then, but they had been on-going in any case because, as we were looking to change the system up here, they were similarly considering their own system down south. They had been in touch with us partly because I think they were thinking about moving in a similar direction themselves.
Have you a sense of when it might be possible to draw this to a conclusion and be ready to put before Parliament new regulations that will take us to the destination?
In effect, that depends on the procedure of the Scotland Act 1998 order, so we are in the hands of this Parliament and the Parliament down south. Typically, I think that it takes six to 12 months. We would have been ready for 24 June with a new regime. The orders that we would have had have been prepared and the practical arrangements have been made. The intention would be to move as quickly as possible when the power is in place.
Right, so it is a significant transition in terms of the duration for which it will apply. You have taken one particular approach. Did you consider any other approaches to managing the transition?
As I said in my opening statement, we looked at the option of carrying forward no disclosure, but that is really not practicable. Delaying the entire system would achieve no positive benefit at all; it would just delay other changes that are associated with the go-live date. As I said, the more complicated approach of operating a mixed economy, with a disclosure regime in which some parts were included, but not those relating to the reserved areas, would have been far too complicated. Frankly, the system is already very complicated to understand, especially for children who are at a difficult point and are considering whether to accept the grounds against them at a children’s hearing.
11:15
Although we are not here to consider the policy, I must say that leaving the system the way it was is actually a simple policy decision, which makes discussion of how you have done it much easier.
At the risk of asking questions that have already been answered in the opening statement and in answer to Stewart Stevenson, just for the record will you explain simply how the Scottish Government intends to resolve the competence problem permanently?
We intend to seek an order under the Scotland Act 1998. One of my Scottish Government legal directorate colleagues might want to say a bit more about that.
I will do my best to answer that. We start with the difficult background of the Rehabilitation of Offenders Act 1974, which is very convoluted. The intention is to seek an order under the Scotland Act 1998 to take powers that the Scottish ministers do not already have. At present, the Rehabilitation of Offenders Act 1974 sets out a scheme whereby convictions are spent after a while. We have the power to make exceptions to that, where that is thought to be prudent and sensible. For example, we want to ensure that exceptions are made regarding entry to a profession that involves the care of children or to the legal or medical professions. We therefore make an exception saying that a conviction might be spent for one purpose but certainly not for another purpose.
That is fine. The difficulty that we faced was that, when we sought to make exceptions that bit into reserved areas, we did not have the power. An example of that is the health professions. Where convictions are concerned, we got that power in 2003 in a Scotland Act 1998 order. In respect of alternatives to prosecution, the intention is to take similar powers by way of another Scotland Act 1998 order. At that point, we will be able to bring into force sections 187 and 188 of the 2011 act, which are the ones that bring in the alternatives to prosecution and, in effect, the decriminalisation so that children will no longer be criminalised by a conviction. Nevertheless, some of those alternatives to prosecution—those involving serious violent and serious sexual offences—will still have to be part of a disclosure. In effect, the current order is a patch until we get those powers.
How far progressed are the discussions with the UK Government on the transfer of competence to enable the Scottish Government to make exceptions to the Rehabilitation of Offenders Act 1974? You have probably covered that already—I see Mr Kleinberg nodding.
I think that all my other questions have been asked already, convener.
I want to press our witnesses on one issue. I understand that, as we all know, it takes a while to do things, but why will it take a year to do something when we all know precisely what we want to do?
That is simply because of the procedures that are required to achieve a Scotland Act 1998 order. Our hope and expectation is that we will talk to the UK Government and ask it to make representations in turn to the Parliament and then schedule the process as quickly as it makes sense to do so. We are dependent on that.
Experience tends to show that Scotland Act 1998 orders can appear deceptively simple but invariably take a long time, or significantly longer than we might hope, to pass through the system.
I am grateful for that. There is no point in pretending that something will happen in a hurry if history tells us that it will not.
Indeed.
It is extraordinarily frustrating, however, when we know what we need to do, but we cannot just do it.
On the back of that question, I want to ask whether there is any danger that we might fall foul of European legislation in what we are trying to achieve.
No. If there were to be an issue—I stress the word “if”, because I do not believe that there is an issue—it would be more likely to be under the European convention on human rights. However, there are no ECHR issues here because, as Daniel Kleinberg said, we are seeking to continue the existing regime, which we are satisfied is ECHR compliant, with a view to moving to a regime that decriminalises activity and is therefore, if anything, less challenging in terms of ECHR. Having raised that point, I should say that I am raising it only to say that I do not think that there is a problem.
Forgive me if this question has already been answered, but I want to follow up on what Mr Flinn said. To effect the change in the treatment of disposals from convictions to alternatives to prosecution, devolved matters could have been dealt with separately from reserved matters. Why, therefore, has the Scottish Government elected to postpone the transfer to the new arrangements both for devolved matters and for reserved matters?
Simply on the grounds of simplicity. Technically, that would have been extremely difficult to achieve because of the complexity involved. Doing that would also have led to procedure changes at quite short notice to a system that might not have been able to achieve them. That was one reason.
However, as I said in my opening statement, the primary reason is that we need to be able to explain to children at the time what the arrangements in the future will be and what they will need to disclose in future about their previous behaviour. The complexity of saying, “If you apply for this profession, you will need to say that you did this but not that you did that,” is such that it is far preferable to be able just to say, “Here is what you will have to disclose in the future and here is what you will not need to disclose.” The approach that we have taken will make things quite clear, as the issue will be determined by the offence rather than by the future context.
My question is on a slightly different area. In its written reply to the committee, the Scottish Government legal directorate acknowledges that there are errors in article 2(4)(a)(ii) of the order, where certain references to provision in the 2011 act have no effect. Could that cause confusion to readers—it certainly caused confusion to this reader—and to those who will operate the provisions?
The technical answer, I think, is that that caused me a bit of confusion for a couple of hours. John McCutcheon may be able to provide some clarity on the issue.
For the two provisions that the committee mentions, there is no acceptance or establishment of offence grounds, so in effect the provisions of the Rehabilitation of Offenders Act 1974 are not engaged and do not apply. At the moment, acceptance or establishment of a referral on offence grounds is classed as a conviction. However, section 94(2)(b) of the 2011 act relates to circumstances where the offence ground was not understood and section 114(3)(b) of the 2011 act relates specifically to circumstances where the offence ground has been discharged, so neither of those instances brings in the Rehabilitation of Offenders Act 1974.
Do you accept that that could cause confusion?
That could be confusing in trying to understand exactly how the order operates and works, which is why we will tidy it up in the future, but in practice, because the 1974 act will not be engaged, no children will find themselves being affected. It is right that the issue should be tidied up, but that is more about neatness than operation.
So people will be confused but not affected.
That brings me to the next part of my question. The Scottish Government has given an undertaking to amend the order to remove those references
“at the next available opportunity”,
which is an often-used phrase. Can you give us an idea of when that might be?
I turn to my colleagues from the SGLD.
As you say, amendment
“at the next available opportunity”
is the standard form of words. Ideally, we would want to tidy it up when we are next making changes anyway, although that might prove to be impossible because no changes are envisaged. The short answer is that we cannot say when it will be done because, by definition, we do not know when the next available opportunity will be. If the view is taken that concerns or difficulties are being caused, it might be that a bespoke instrument will be required to make the changes, and if it is not clear that there will be a next available opportunity in the reasonably foreseeable future, we might have to take it forward separately.
The short answer, I am afraid, is no. We do not know when the change will be made, but we will keep the matter under review and it will be tidied up as soon as we can reasonably do it.
Okay. Thank you.
Can I just—[Interruption.] I think that John Scott wants to comment. Perhaps he is going to express the same view as me.
I am probably going to say the same thing. We used to say about discussions, “If you’re not confused, you haven’t been listening.” Given the confusion that already surrounds the legislation, would it not be in everyone’s best interests to produce a complete and fully accurate order, which is what you intended to have, in the first instance and at this time?
The issue having been raised in the committee’s response, very helpfully, I think that we will want to stress test our assumption that nobody could be affected. If that is the truth, I think that the draft order could be tidied up, given that it will have a short life of between six and 12 months. Doing something bespoke and making demands of Government and parliamentary time for that is something that we would think about quite carefully. If people were potentially going to be affected or there is feedback from colleagues—for example, in the Scottish Children’s Reporter Administration—that concern could be caused even among those who are not affected, we would probably want to move more quickly.
Essentially, over time, the need for this will become redundant anyway.
Yes, because it is a transitory order, so it is of limited life, depending on the UK Government.
Thank you. I think that you will have got the message. One of our main concerns as a committee is that what comes before us should be correct. When we find something that is simply wrong and everybody knows that it is wrong and it should not be there, it is extremely unsatisfactory to us as a parliamentary committee to find that folk are saying, for understandable reasons, “We’re not going to change it.” If you were able to say that every copy that goes out will have a red pen line through it to say, “This doesn’t apply—take it away,” that would be fine, but of course you cannot do that. With versions on the net, again, you obviously cannot do it. I think that that is what we really want you to do. We would prefer that the legislation is correct, please, subordinate or otherwise.
With that, we have finished our questions. Thank you for your evidence. I will suspend the meeting briefly to allow you to go.
11:28 Meeting suspended.