Police Act 1997 (Criminal Records) (Scotland) Regulations 2006 (SSI 2006/96)<br />Police Act 1997 (Criminal Records) (Registration) (Scotland) Regulations 2006 (SSI 2006/97)
Good morning and welcome to the 10th meeting this year of the Justice 1 Committee. All members are present and as usual I ask everyone to switch off their mobile phones.
Thank you for inviting us to give evidence to the committee. I am head of the branch of the Justice Department that has responsibility for Disclosure Scotland. My colleague James Laing is also from the Justice Department and Alison Coull is from Scottish Executive Legal and Parliamentary Services.
Thank you. That is helpful. I am sure that members have questions. We will start with Stewart Stevenson.
I have one or two questions. Regulation 8(1)(i) of SSI 2006/96 includes in the list of relevant police forces the Garda Síochána and it is my understanding that regulation 8(1)(j) provides that any of the police forces named in regulations 8(1)(a) to 8(1)(i), including the Garda Síochána, can extend the list of relevant police forces. For the sake of fantasy, can you confirm whether it would be proper under the regulations for the Garda Síochána to decide that the police force in Albania should be included in the list?
If a relevant police force is aware that another police force holds information about the subject of an application for a check and the second police force is the owner of that information, we feel that it would be more relevant for that force to advise Scottish ministers of the information. Given that there is a data protection issue about who is responsible for the accuracy of the information, we felt that it would be inappropriate for that responsibility to fall on the force to which the request was made if it did not own the information.
I understand perfectly that that is your expectation. I was not seeking to make any criticism of the Garda Síochána, but it appears that the regulations will give that force such a power and I just wanted to be clear that that is the case. I think that your answer probably confirmed that.
The payment works the other way round in that it is for Scottish ministers to make a payment to the police force from which it asks for information. When the 1997 act was amended, it was not amended to allow Scottish ministers to make a payment to the police forces in the Channel Islands or the Isle of Man or to the Garda Síochána. That is why those bodies are not mentioned in regulation 17. When we make further amendments to the 1997 act, we intend to rectify that error so that Scottish ministers can make such payments because if we ask people to provide us with information, we should obviously pay for it.
I take it that the officials are responsible, either collectively or individually, for the Executive note. In relation to the financial effects part of that note and its reference on page 3 to DTZ Pieda Consulting, can you confirm that the numbers on which the financial projections are based imply that you envisage that 500,000 applications will be made each year for the remaining eight years of the contract? Is that correct?
Yes, that is right.
So you expect 10 per cent of the population of Scotland to be subject to disclosure.
Yes. So far, just over 500,000 checks have been carried out at all levels in 2005-06. The expectation is that that volume will continue for the rest of the contract.
I want to ask about the provisions in relation to adults at risk. Is this the first time that we have legislated on that issue in disclosure legislation or is there a reference to it in the 1997 act?
We have done so before. One of the instruments that is being revoked allows checks to be carried out in that regard. The term that is used in the existing legislation is "vulnerable adults". People working with such adults have been eligible for enhanced checks since 2002.
What is the difference between that regulation and this one?
The current regulation states that people who work with children or adults at risk are eligible for an enhanced check if they have regular access to them as part of their normal duties. The requirement for there to be regular access is being removed and, under the new regulation, posts in which someone has contact with children or vulnerable adults, whether regular or not, will be eligible for an enhanced check. People who were eligible for a standard check will now be eligible for an enhanced check. Under the Bichard proposals, there is likely to be a further extension of the definition of the adult at risk workforce, which would extend the scope for eligibility further.
I want to be clear about this. Two things are happening. First, a much wider range of people will be subject to the enhanced checks.
Yes.
That must mean that a lot of posts that were not covered previously will be covered.
SSI 2006/96 does not extend significantly the range of posts that are eligible for checks; it extends the scope of the eligibility for enhanced checks. The standard check allows for the disclosure only of convictions whereas the enhanced check allows for the disclosure of other relevant police information.
The increase in the fee to £20 is quite substantial. I have heard comments about the present level of the fee, so I am interested to know what the justification is for increasing it from £13 to £20.
The first thing to point out is that this is the first time that the fee has increased in the four years of the operation of Disclosure Scotland. The 1997 act places a responsibility on the individual to pay for the disclosure. It also places on Scottish ministers a responsibility to recoup the cost of the disclosure through the application fee. The current fee was set on the basis of projections that were made for the volume of applications before the 1997 act came into effect. However, the volume of disclosure checks has been significantly lower than was expected. Because the level of business has been lower, the fee income has been lower. As a result, Scottish ministers and their partner, British Telecommunications, have not recovered their costs in the first four years of the contract.
Has the Scottish Executive consulted on that increase?
No. The increase was announced as part of the Bichard proposals on 8 February, but there has been no formal consultation. There have been discussions with a number of the main users of Disclosure Scotland, who were alerted on 8 February to the fact that it would happen.
This is a question for Scottish ministers, so I will tread lightly. What has been the response of users to this fairly substantial increase? I take the point that you make. It is often said by organisations that put up their fees that they have not done so for four years. However, the people who pay the fees would probably have preferred an incremental increase to such a significant jump. Have you been in dialogue with the Executive on the main users' response to the increase?
There has been a very low rate of response from users. I doubt that many of them are happy, although my perception is that they were expecting an increase in the fee. In the comparable service in England and Wales, a standard disclosure costs £31 and an enhanced disclosure costs £35. At £20, the Scottish service is still significantly cheaper.
Does not the change to regulation 8 of SSI 2006/96, which reduces the required history period from 10 years to five years, consequentially reduce the amount of work that needs to be done to provide a disclosure? That suggests that, rather than going up, the price should fall and that, like other parts of government, the contractor—BT—should be looking to improve its efficiency. Given the reduction in the period over which the check extends, there is a case against the price rising in the way that is proposed.
We found that the 10-year history created more work, because many people were unable to provide details that went back that far. In his report, Sir Michael Bichard was content that a five-year address history should be used for the authentication of applicants. He believed that it was more reasonable for people to know their address history for that period.
So will the reduction from 10 years to five years lead to a reduction in the amount of work?
It should.
The criminal record information that is provided in the disclosure is not limited to five years. The five-year limit applies to referral of cases on which the Scottish criminal history system indicates the police have other relevant information. Such information exists in only 10 per cent of cases. For around 90 per cent of applications, the workload will be the same. The reduction relates only to cases in which other information is held by police forces in Scotland or elsewhere in the United Kingdom.
I think that Mr Laing said that the period between five and 10 years accounted for a substantial proportion of the work. I accept that there is other relevant information in only 10 per cent of applications, but that does not necessarily equate to 10 per cent of the work. What has been said suggests that it is somewhat more than that, although I am not in a position to say how much. I am not trying to be exact, but merely trying to establish the fact that a reduction in work stems from the change to regulation 8, which stipulates that addresses now need to be provided for a five-year rather than a 10-year period. From Mr Laing's response, it was clear to the committee that there is a reduction in the work involved.
There are two issues in which the five-to-10-year question crops up. In all cases, when an application is received, Disclosure Scotland has to verify the applicant's identity. Therefore the reduction in the required address history from 10 years to five years will lead to a reduction in the workload. The point that Elizabeth Sadler made concerns the 10 per cent of cases where Disclosure Scotland has to go to police forces for additional information. There will be a lesser drop in the workload in such cases. There are two areas in which work will decrease, but in the second area—the criminal record checking part—the reduction in work will be somewhat less than in the applicant authentication part.
Are you suggesting that the verification of the older five-year address information, which is now to be excluded from the application, does not constitute the most difficult part of the verification process? If that is not the case, why make the change? I am sure that you are making the change not just on the back of the Bichard recommendations but because it will reduce work—it will reduce work disproportionately. I do not want to go too far down this road, because the general principle that the change will reduce work is well established. Can you tell us anything else of use?
We check identity through the provision of a passport, driving licence and utility bill, in conjunction with which a five-year address history is sufficient to confirm identity. The extension of the databases from which Disclosure Scotland can ask for information and conduct an enhanced check might lead to an increase in workload, which will counterbalance the decrease that we have discussed.
I want to be sure that I understand the effect of the regulations. You mentioned removing unsuitable persons from the register. Are they people who should not have been on the register?
For a standard and enhanced check, before the check goes to Disclosure Scotland, it is countersigned by a registered body. The registered body has a role in helping to confirm identity and in satisfying itself that the post is eligible for a check. The checks reveal sensitive information about people, including convictions that would normally be spent under the Rehabilitation of Offenders Act 1974, and other police information.
You said that you are reducing the age for parental consent for fingerprint evidence from 18 to 16. Will you say more about that?
Yes. Disclosure Scotland put in place a number of safeguards to ensure that the information that it discloses to an individual is about the applicant. In response to Mr Stevenson's question I mentioned the checks against passports, driving licences and utility bills. Inevitably, in a small number of cases—there have been about 200 since Disclosure Scotland started operation—the person's name, date of birth and place of birth all check, but when the applicant gets the information back they say that it is not about them. SSI 2006/96 provides that when there is a dispute an applicant can go to a police station to have their fingerprint taken and matched against the fingerprint that is attached to the person's criminal record. That confirms whether the person about whom the disclosure is made is the same person as the applicant.
Did you read the comments that were made by the Subordinate Legislation Committee?
Yes.
You will know that that committee has some concerns, in particular about the use of certain words. It has drawn to the attention of the Justice 1 Committee, as the lead committee, the fact that it is concerned about the regulations
I think that
But you have accepted one of the committee's suggestions on SSI 2006/97.
Yes. We have accepted that there is a drafting error in one instrument, as there is a wrong statutory reference. We have offered to amend that at the next available opportunity. However, we do not think that the error affects the operation of the regulations, because what was meant will be clear.
We have no further questions. I invite members to make any final comments.
I support those comments. We should draw Parliament's attention to the substantial increase in the fee that is incorporated in the instrument, without there having been a formal consultation of users.
We can deal with the instrument at the next meeting, on 19 April, so we still have time. We will use the Official Report to assist us in drawing up our report to Parliament. I thank the witnesses for answering our questions.
Civil Partnership Family Homes (Form of Consent) (Scotland) Regulations 2006<br />(SSI 2006/115)<br />Abolition of Feudal Tenure etc (Scotland) Act 2000 (Specified Day) Order 2006<br />(SSI 2006/109)
We move to item 2. I refer members to the notes by the clerk on the two Scottish statutory instruments. Do members have any comments?
No.
On the Civil Partnership Family Homes (Form of Consent) (Scotland) Regulations 2006, members will be familiar with dealing with the numerous regulations that simply tidy up the primary legislation on civil partnership. I expect that this will not be the last such instrument that we see. It is quite straightforward.
By going to a smoke-free pub.
Strangely enough, I came across someone who still pays feu duty.
As I said, 31 March is the date on which all feudal tenure should come to an end, so perhaps you should make some representations on that case.