Justice Committee

Meeting date: Tuesday, January 29, 2013

Official Report 432KB pdf

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Subordinate Legislation

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Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013 [Draft]

Item 2 is consideration of the draft Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013, which is an affirmative instrument. I welcome Kenny MacAskill, the Cabinet Secretary for Justice, who is here to give evidence on the instrument and move the motion for the committee to approve it. He is accompanied by Scottish Government officials Nigel Graham and Craig McGuffie. I invite the cabinet secretary to make an opening statement, if he wishes.

Thank you. The purpose of the draft order is to consolidate the current exclusion and exceptions order, which was made in 2003. There have been 16 modifying orders since 2003 and we think that it is correct to consolidate all the modifying orders into one fresh order. That will help make the legislation easier to use.

It is important to stress that nothing in the draft order or, indeed, in the Rehabilitation of Offenders Act 1974 itself, debars any person from undertaking any job or profession. However, the legislation helps to inform decisions that may be made about whether to employ specific persons in specific areas of employment.

We believe that it is appropriate that positions involving a particular level of trust, such as work in the childcare and health professions, should be exempt from the provisions of the 1974 act to ensure that there is adequate protection for children and vulnerable people in particular. It is important that we strike the right balance between supporting the rehabilitation of offenders and protecting the public. Employment can reduce reoffending, thereby cutting the cost of crime and helping to close the opportunity gap.

Along with consolidating the legislation, we are taking the opportunity to make some minor changes to the order’s content. For example, we are removing outdated references to independent schools tribunals, following separate legislative changes that were made back in 2005, and updating references relating to appeal procedures under the National Lottery etc Act 1993. The draft order also widens the conviction information that is available to the Financial Services Authority when it is authorising a person to carry out regulated activities, takes account of the commencement of the electronic money directive by the United Kingdom Government and provides for a new category of institution called payment institutions, which were created in 2009 following the implementation of the payment services directive by the UK Government. The draft order will also permit approved regulators under the Legal Services (Scotland) Act 2010 to consider spent convictions, where appropriate, as part of their assessment of the fitness of investors and those in certain named positions within licensed providers, and ensure that the court is able to have access to information relating to the spent convictions of anyone who is seeking to become a “lay representative” within the meaning of the 2010 act. We are also making consequential changes required by police reform and to reflect summary justice reform legislation and the role of signing justices of the peace, and we are altering the definition of actuary to reflect the merger of the Faculty of Actuaries and the Institute of Actuaries. Overall, we consider that the amendments are necessary to ensure that various agencies and bodies are able to continue to fulfil their functions effectively.

That is a quick run-through of what is a lengthy instrument. I am happy to answer questions.

Good morning, cabinet secretary. I would appreciate a bit of clarification on the legal services situation. You said that “approved regulators” would

“consider spent convictions, where appropriate”.

What is meant by “where appropriate” in that context?

Nigel Graham will respond to that.

It is to check to make sure, I suppose, that there is protection of the appropriate investments. Where appropriate, they have to make the checks. Solicitors and advocates are dealt with in exactly the same way to see whether they are actually fit and proper. I cannot say what would be appropriate; they have to determine what would be appropriate in order to make that decision. However, it is about protecting the public and ensuring that investors are appropriate people.

I think that you have just said that it is not appropriate to say what is appropriate, but I may have missed that. I feel like I am on “Yes, Minister.”

It is really for the Law Society of Scotland to decide what the criteria should be.

Yes. Are you happy with that, Rod?

I am not sure that I am any clearer, but I am happy to leave it there.

I am sure that I am not clearer, so I am a step ahead of you.

Cabinet secretary, you said that a primary concern is the protection of children and vulnerable people. I completely support and understand that in relation to the disclosure of spent convictions. However, the majority of the Scottish Government policy note does not relate to children or vulnerable people. There are several amendments in relation to the Financial Services Authority and legal services, and I am unclear about the changes in relation to independent schools tribunals and the national lottery—maybe you can explain them. Also, I do not see how there is a direct impact on children in relation to lay representatives on the Court of Session Rules Council—it is not as if decisions are being made about people who work in social services or schools.

Given that there is quite a big civil liberties issue, because disclosure of spent convictions is being extended, why did the Scottish Government decide not to undertake a full consultation? I would be more comfortable if the extensions were being made after a consultation.

There are two separate issues. In relation to independent schools tribunals and so on, there have been changes—as I said, there have been 16 changes since 2003. The draft order is an attempt to consolidate. The 16 changes were made by Scottish statutory instruments, which I or my predecessors made. Society has changed and some of the organisations have changed. For example, lay advisers are being brought in, so we must make arrangements for them. That is the situation. The draft order is meant to provide clarification and ensure that the law is as clear as it can be.

You asked about the broader issue of consultation. We are intent on consulting, and in the coming months we will go out to consultation on where the balance should lie in relation to the rehabilitation of offenders. The draft order is about getting the law as fit for purpose as it can be, given the significant changes—16 in nine years—that have been made. I think that the draft order will make things easier. However, you are right to say that there is a broader issue that has to be looked at, and we will go out to consultation in the coming months.

Are you saying that there will be a consultation before the Parliament signs off on the draft order?

No. The Parliament is being asked to sign off on the draft order so that we can make the law as clear as it can be at the moment, to deal with changes, provide for new arrangements and ensure that the system is easier for the people who operate within it. However, we recognise the more fundamental principles in relation to the rehabilitation of offenders and we are going out to consultation on those in the coming months.

Why did the Scottish Government not undertake a full consultation, given the broad extensions in the draft order?

The draft order presents an opportunity to tidy up the law. There have been changes. For example, the Institute of Actuaries and the Faculty of Actuaries have become one organisation. Such matters have been dealt with through some 16 SSIs over nine years, as I said. We are seeking to tidy up the law and address issues that the Lord President wanted us to address, by considering the new lay advisers.

However, we recognise that there is a broader issue of public concern about where the balance should lie in relation to the rehabilitation of offenders. We will go out to consultation on that.

It would be possible to leave the current morass as it is, but we were asked by many stakeholders to provide clarity and sort out matters, some of which are quite innocuous but doubtless have an effect—I am thinking about the nomenclature following the amalgamation of two bodies to form the Institute and Faculty of Actuaries. It is about getting that right, but that does not detract from the need for full consultation, to facilitate public debate on where the balance should lie.

May I clarify the process? If the committee recommends that the draft affirmative instrument be approved, it will go to the Parliament, which can vote to approve it. Where does the consultation fit in? Are you talking about a wider consultation on rehabilitation?

Absolutely. It is much wider—

I see. I appreciate that. The consultation is not about the instrument that we are considering.

No.

I wanted to clarify that.

Cabinet secretary, I think that you have a copy of the policy note, which was provided to us. Under “Persons appointed to assist the police”, paragraph 19 says that the Police (Scotland) Act 1967 will fall and that we will be subject to the Police and Fire Reform (Scotland) Act 2012. The paragraph says that

“section 26 of the 2012 Act is framed in a slightly different way from how section 9 of the 1967 Act”

was framed and that there are

“consequential changes”.

In what way is the 2012 act framed slightly differently?

The consequential changes in paragraphs 6 and 8 of part 2 of schedule 4 to the order reflect the forthcoming repeal of section 9 of the 1967 act. Overall, the policy behind those paragraphs in the order remains the same as that behind the equivalent paragraph in the 2003 order. We are reflecting changes in legislation.

The paragraph that I quoted says:

“section 26 of the 2012 Act is framed in a slightly different way from ... section 9 of the 1967 Act.”

Can anybody explain in what way and why the 2012 act is different?

I do not think that we can answer that precisely, but we are happy to write in greater detail.

I am obliged.

I, too, am interested in civil liberties, but I consider the proposals to be proportionate for the people who are not only directly but indirectly involved. Under “Consultation”, the policy note refers to detailed discussions with relevant bodies. Has any of those bodies expressed reservations about the proposals?

No. I spent last year speaking to stakeholders about the Rehabilitation of Offenders Act 1974. All the stakeholders that I have spoken to, including Apex Scotland and Sacro, are happy with the balance between reform—putting offending behaviour behind someone—and protecting the public.

All were happy with the principal purposes of the draft order and with the scrutiny of such an order, which must go through the committee and Parliament. Nobody said anything to me that suggested that they were concerned about what is in the draft order.

My question does not pertain to the draft order, but it follows on from the cabinet secretary’s comments about a consultation on the rehabilitation of offenders. Do I take it that primary legislation on the rehabilitation of offenders will be on the agenda at some point?

Primary legislation would be required. The consultation is a prelude to considering primary legislation.

You will know that the committee is looking into purposeful activity in prisons. We are obviously interested in how that helps to rehabilitate offenders, so it would help if you could give us an idea of the timetable for the forthcoming legislation.

The timetable will ultimately be for the Minister for Parliamentary Business, but it is fair to say that it would come at the end of the parliamentary session.

That gives us an opportunity to put forward our ideas, following our inquiry.

We intend to go out to consultation by the summer, and that consultation will take place over a period. That takes us into 2014, so a legislative vehicle would not be produced until near the end of the parliamentary session.

It is a matter for the committee, but the committee might want to respond to the consultation—that will depend on what the consultation says. That would put us straight into the statutory process, which would be in addition to our inquiry. That would be useful.

That would be helpful.

Under item 3, I invite the cabinet secretary to move the motion.

Motion moved,

That the Justice Committee recommends that the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013 [draft] be approved.—[Kenny MacAskill.]

I do not feel that I can support the waving through of extensions to the disclosure of spent convictions without a full consultation. As I said, there are far too many extensions for them to be waved through in a statutory instrument without proper consultation, so I do not support the motion.

I would be grateful if Jenny Marra outlined for my benefit the extensions that she thinks will be made, other than technical changes.

It is unusual for committee members to ask each other questions—usually, questions are for the cabinet secretary. Perhaps he could reply to the point. As we are in the debate, the cabinet secretary and not an official must answer.

10:15

As I indicated, the draft order is not about an extension. Changes have occurred to the Faculty of Actuaries, to how independent schools are regulated, to the national lottery and to the Police (Scotland) Act 1967, which is being repealed. Those things are not about an extension as such. The draft order clarifies the terrain, which has changed under our feet, and will make the law clearer for those who are involved in dealing with it.

There will be a further debate, on which we will be delighted to engage with the committee. We will welcome the committee’s views on that as we seek to set, as a society and as a Parliament, where the balance should lie. The draft order, however, is simply about trying to get the law up to speed so that it takes into account, for example, the introduction of lay representatives. The court needs to ensure that lay representatives are appropriate people to appear on behalf of individuals, so some information should be available to the judiciary so that they can be aware of whom they are allowing to appear before them.

Perhaps Jenny Marra can point the cabinet secretary to the specific extension that she is referring to.

Even as I look through the draft order, it occurs to me that by including the Financial Services Authority we are also extending the current exception to a new category of institution. As I pointed out earlier, the Financial Services Authority has no direct impact on children and vulnerable people, whom the cabinet secretary referred to in his initial explanation. Therefore, it seems to me that the draft order involves an extension of the disclosure of spent convictions that does not seem to match the original aim of protecting children and vulnerable people. As I said, there is a civil liberties issue involved in that extension.

I think that there is a need to protect vulnerable people—

Through the Financial Services Authority?

Actually, great frauds can be perpetrated that affect many people, especially the vulnerable, the elderly and those with dementia. Such matters are frequently raised with me by senior police officers, and I have no doubt that Mr Pearson will have experience of organised groups that operate in that way.

The circumstances have come about because legislation south of the border has introduced changes to financial services. We want to ensure that the law protects vulnerable people, including the elderly, and, indeed, ordinary Scots, who sometimes have to deal with financial services. We need to ensure that as much information as possible is available to those in the FSA who are charged with the responsibility of licensing people. We think that the draft order is an appropriate step to take to ensure that we get the law up to speed. Changes have taken place in financial services that have not been reflected in the rehabilitation of offenders legislation. If we do not make the order, people will not be required to disclose matters that they are required to disclose south of the border, and the protection of some people in Scottish society could be threatened or jeopardised in areas where protection is offered south of the border. We have not been in charge of the timetable for introducing legislation on the FSA and so on, but we have an obligation to ensure that we provide protection to the public by ensuring that the rehabilitation of offenders legislation is kept up to speed.

Do you accept that the draft order extends disclosure and is not simply retrospective?

Yes. That is done for the right reasons of providing protection by ensuring that those who are given the right to operate in the financial services world meet the criteria and of ensuring that those who regulate them are aware of who is seeking employment in the industry.

My point was that there should be no extension without consultation.

I seek clarity on what is being proposed. Is it the cabinet secretary’s position that, at some future date in the current parliamentary session, the wider issues pertaining to the balance between individual human rights and civil liberties will be analysed in the context of the disclosure provisions, so that the appropriate balance can be achieved and discussed more fully across the Parliament?

Yes, part of the consultation will be a widespread review.

I accept the point that those who seek employment within financial services gain access to vulnerable people, particularly the elderly, who are perhaps not as adept as others at making judgments about whom to trust. It would not be acceptable that people with any criminal background should be able to seek employment in financial services and thereby be authorised to conduct and transact such business.

I understand the threat that you identify, but the points that Jenny Marra made about the appropriate balance being achieved after consultation and discussion are important. I would be concerned if the point that you are making is that, in the interim, vulnerable sections of our community will be left vulnerable as we await the next debate. Is that your current position?

That is the point that I am making.

Paragraph 10 of the policy note says:

“The equivalent of the 2003 Order in England & Wales has been amended to address this issue”.

Did that go out to consultation in England or was the legislation just amended?

We are not able to say.

That point has had a good battering, as we might say.

The question is, that motion S4M-05457 be agreed to. Are we all agreed?

Members: No.

There will be a division.

For

Campbell, Roderick (North East Fife) (SNP)

Finnie, John (Highlands and Islands) (Ind)

Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)

Keir, Colin (Edinburgh Western) (SNP)

McInnes, Alison (North East Scotland) (LD)

McLetchie, David (Lothian) (Cons)

White, Sandra (Glasgow Kelvin) (SNP)

Against

Marra, Jenny (North East Scotland) (Lab)

Pearson, Graeme (South Scotland) (Lab)

The result of the division is: For 7, Against 2, Abstentions 0.

Motion agreed to,

That the Justice Committee recommends that the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013 [draft] be approved.

I thank the cabinet secretary and his officials for attending.

I will suspend the meeting briefly, but we will not leave our seats.

10:21 Meeting suspended.

10:21 On resuming—