Justice and Home Affairs Committee, 31 Oct 2000

Meeting date: Tuesday, October 31, 2000

Official Report 125KB pdf

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Petition

The next item is further consideration of petition PE89 from Eileen McBride on enhanced criminal record certificates. We now have submissions from Barnardo's, the Scottish Police Federation and the Law Society for Scotland. An e-mail from Eileen McBride has been circulated. There is also a note outlining suggestions for the way forward.

When the petition first came before the committee, we had only a brief discussion on it. I said that I thought that the proposals should be welcomed. They tidy up what can happen in practice at the moment in a secretive way, with nudges and winks—what people know about someone and what they pass on. I can understand where the petitioner is coming from and the concerns that are being raised. However, a number of organisations have given us the other side of the argument and explained why the issue is so important.

One of the difficulties with criminal records checks is that they record only whether somebody has been convicted. For a variety of reasons, people can often not be convicted. I know of one case where the police had charged somebody under the wrong act. It was not that the person was not guilty, but that they were let off on a technicality and, therefore, did not have a criminal conviction. Such things can be recorded in the enhanced records check.

Criminal records do not debar someone from obtaining employment, but they can be used to ascertain whether someone is suitable for a post. Potential employers can use a variety of means to ascertain whether someone should be given a job, not just whether in the past their name was included in the enhanced records checks. As we know from the police and others, there are checks and balances. The petitioner has a point but, as Barnardo's has said, young people do not have a voice in society—we have to provide one for them.

Mrs McBride has done a tremendous job. She is right to bring this issue to the attention of MSPs, many of whom have been in touch with her. We have all had a chance to think carefully about the issues and, when everything is considered, I think that the most important requirement is the protection of the child. In its submission, Barnardo's mentions not only the European convention on human rights, but the rights of children. I appreciate that there will be conflict, but I hope that the rights of the children will be first and foremost in our minds.

The submission from the Scottish Police Federation makes one recognise a precedent in the situation with the licensing boards. That weighs heavily on my mind and persuades me that we are not breaking with a long-held Scottish judicial tradition.

The clerks have done a pretty reasonable job in putting together their recommendations for the committee. They have covered Mrs McBride's requirements to a degree, without meeting them in full. She will not be satisfied with this, but I believe that by adopting the recommendations we will go a long way towards allaying the doubts that she has sown in our minds.

It is clear from the e-mail that Mrs McBride has sent that nothing short of total repeal of the relevant sections of the Police Act 1997 will satisfy her. I think that the clerks have in fact done a very good job—I am sure that that is what Phil meant by "pretty reasonable".

I thought that the Law Society of Scotland's comments were interesting, because it is difficult to strike the right balance. Obviously, we want to protect children, and I defer to Scott Barrie's knowledge of the informal lists that circulate. It would be better if they were regularised. The Law Society makes provision for people who are blacklisted in this way. On the second page of its submission—which is included in the clerks' paper JH/00/31/10—it points out that the white paper, ‘On the Record in Scotland: Proposals for Improved Access to Criminal Records', states that the information

"should not include details which cannot be substantiated".

This is a difficult area. The Law Society is clear about what should happen in pending cases, but we are talking about people who have never been prosecuted and their associations or the information that the police have on them.

The next page of the submission deals with subsections of the Police Act 1997. It says:

"These subsections essentially allow the Scottish Ministers to permit the disclosure to a registered body or employer of sensitive or contentious information without advising the individual concerned about the nature of the information or that the disclosure itself is being made."

That is pretty hard stuff. It is interesting that, on the same page, the Law Society suggests that the act

"would not appear to provide for any facility through which an individual applicant could challenge the inclusion of information in the Enhanced Criminal Record Certificate before it is disclosed to the registered person or employer."

Those are issues that give me concern.

I will not go through the Law Society's points on appeals procedure in great detail, but it suggests mechanisms by which parties could be informed and thereafter have a right of appeal to an independent body against something being disclosed about them. The appeal would be not to Scottish ministers, as they have an interest, but to an independent body—a sheriff or an arbiter of some kind. The submission does not say whether the results of that appeals procedure should be final.

I feel that there should be a mechanism for appeals. If even one person is wrongly blacklisted, that is one person too many. I say that while whole-heartedly believing that young people should be protected from paedophiles.

I have some sympathy with Christine Grahame's points, but problems arise when we think through the realities of how we would let people know. In previous discussions in this committee, we have talked about holding information on people and about the problems of letting people know that they are on a list. As soon as the fact that disclosures had been made came to light through an enhanced records check, people would know about it and, if they felt that that was wrong, they would go through the appeals procedure. That is the way that it should be done, rather than using the slightly cumbersome process that Christine may have been suggesting. I do not think that the problem is quite as bad as Christine and the Law Society are suggesting.

I have a lot of sympathy with Christine Grahame's point that an appeal should be not to a minister but to an independent body. I am not absolutely sure about this, but I think that a minister's decision may be appealable—it may be made subject to judicial review. If it is—and I think that it probably is—there would be a further safeguard. Having to take an appeal to a Scottish minister may not therefore be as big a problem as we think.

As Gordon Jackson will see from the first paragraph on appeals procedure in the Law Society's submission, the applicant challenges

"the accuracy of the information contained in the Enhanced Criminal Record Certificate by making a written application to the Scottish Ministers."

That, of course, is only if they know that that information is held. I accept Scott Barrie's point about alerting people, but we should think more about this point. We are talking about people who do not have a criminal record but are being treated as if they did. That is a big step to take.

I agree.

There is some sympathy with what Christine Grahame says. However, the third recommendation on page 2 of paper JH/00/31/10 partly deals with her concerns. Would she like to come up with a modification to that recommendation, to make that reasonable attempt at an answer into a very good attempt?

The suggestion is that we ask the minister to review the appeals mechanism. We will write to the minister, but it might help us to focus our views if the clerks and I draft a letter and highlight the points that we have made—perhaps expanding on them slightly—and then bring that draft back to the committee. It is not essential that we dispose of this issue this week.

At the end of the letter, we might ask for the minister's views on the pros and cons of informing the party in advance of information being placed on a certificate. The Executive may not wish to take that route, but I would like to know its reasons for that.

We could include that in the draft letter.

Our position would then be more watertight.

Is it agreed that we should bring a draft letter to a future meeting?

Members indicated agreement.

We will discuss the next item in private.

Meeting continued in private until 11:18.