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I call this meeting of the Education, Culture and Sport Committee to order. We are now in public session. Would everyone please ensure that all mobile telephones and pagers are turned off?
I will make a brief introductory comment. COSLA welcomes the bill's principles and fully supports the aim of strengthening the vetting and regulating of people who work with children and vulnerable adults. I do not think that we can get a system that is guaranteed 100 per cent, but it is important to make a statement of intent at this point.
My first question will be to the ADSW. Thank you for your written submission. I was interested in your view that the standard for identifying people to be placed on the list has perhaps been set too high, which contrasts with some of the evidence that we have heard. If I understand you correctly, you want the standard to be an additional safeguard. You believe that the bill's proposed criteria for referral on to the list will identify people who are already identified by current processes. You are worried that the proposed criteria will not pick up on cases in which there is concern about an employee's actions. Can you expand on that and explain why you feel that the criteria are not wide enough?
Yes. Obviously, we must have regard to an individual's employment rights, but our worry is that the set criteria are too stringent in relation to information that an
It is the case, though, that a conviction is not required for entry to the list. In good employment practice, issues of concern are identified and raised with the employee concerned. The issues are discussed and addressed through training or another process. Does such a system, which relies not on a conviction but on a lesser body of evidence, allay some of your concerns?
Yes. Paragraph 3 of our submission welcomes the emphasis on the requirement for a continuing culture of vigilance. We think that other organisations should be aware of the need for careful recruitment and selection processes. There is an issue of clarification. When we move people from positions, as we do occasionally, they might not have
So you are concerned about the definition of harm and you want guidance on that.
Yes.
One concern in your submission that has not been mentioned to us before is about the discretion that the bill will give to the court to determine whether to refer someone, which will be based on the court's opinion of whether that person is likely to reoffend. Will you explain your concern about that?
We have a question about what guidance the courts might be given and what criteria will be set for the use of that discretion. As the bill stands, it appears that the judgment of the sheriff will be important, which is a difficult issue because we want a consistent approach. Also, we want to know whether there is a role for social work in providing reports and risk assessments and so on. That is why we raised the point in our submission.
I am interested in an outline of the checks that are carried out at present on people, particularly volunteers, who have access to children under the supervision of organisations.
There is concern that the bill might frighten away volunteers who would not be left unsupervised with children, such as parents or other casual volunteers in schools. That does not detract from the fact that we are keen to have the checks that are outlined in the bill.
It is important that there are clear checks on anyone who is likely to have unsupervised access to children. From my experience in schools, I know that it is equally important to encourage parents who want to give up half an hour a week to come along and to work with children. That support should not be marred because people feel frightened of having their background investigated. There is a delicate balance to be struck.
In the past, there have been barriers to parents' participating in schools. Are you concerned that the bill might make that worse? Helen Law said that volunteers probably would not be left alone with children, but I suspect that local authorities support a number of youth organisations that have youth workers who work alone with young people. What consideration has been given to that? Will councils' roles change? I am interested in barriers to parents, but also barriers to youth workers and other people who work with young people at present.
That is the difficulty of a two-tier system in which only those who are involved with child care or education come under the statutory check. Anyone who has an unsupervised role with children should be checked, but we do not have to go down that road for parents who help to cover books for a casual half hour a week and who are not left in charge of a class or a group of children. The key issue is whether people are supervised or unsupervised.
A major worry relates to organisations that use schools and facilities outwith school hours to run football or hockey clubs, for example. What criteria should be used for checking them? An article on the Scottish Executive website today quotes Cathy Jamieson and contains a checklist of what parents should ask an organisation that a child is going to join. Perhaps that approach could be turned around and local authorities could ask organisations such questions.
So good practice is important. I am interested in barriers to parents.
The division between supervised and unsupervised access is crucial. The point that you made about youth work is important. If we employ youth workers, we have them checked. Casual youth support—which may consist of only one helper for one session—is supervised and is therefore not the same.
I do not think that the list is any substitute for proper child protection practices, irrespective of whether the organisation is regulated. You seem to make a clear distinction, which I would like to capture. The issue for you is not whether an organisation is regulated, but whether someone has unsupervised access to children, irrespective of whether the organisation is voluntary or statutory. Do you therefore think that the bill should be clear and unambiguous in its intention and include voluntary groups, such as the scouts?
I think that the scouts, guides, sea cadets, air force groups and many other organisations should be accredited and therefore in charge of ensuring that the people who work for them are clearly checked. They should maintain a register that is accessible to people who hire out facilities to them, such as local authorities that allow their premises to be used. We could then be sure that everyone who works with children in a local authority area is checked centrally by the organisation. If an organisation had problems with that, at least we could work alongside it to ensure that its workers are checked. The bill could leave us in a limbo land, uncertain whether people who work with children have been checked.
One scout leader said to me that it appears that he would have to be checked many times, as he is involved with a local group, a regional group and other groups. If there were accreditation, such people would have to be checked only once and could then work in an organisation at different levels in different areas.
Yes. We want to avoid multiple checks. A check that would cover a variety of things in which people are involved would be sensible.
Unfortunately, although some authorities insist on that, not all do. A sane system has to be brought into force throughout the country. It would be helpful if there were such a requirement in the bill. That would mean that there would be a set standard.
In your experience, has anyone been put off unduly because they were asked to be SCRO checked?
Not in my experience. People might have been put off in the past, but because of the recent tragic cases involving children, I do not believe that anyone will be put off. I think that they will feel quite good that they are being checked and being given a clean bill of health to work with children.
The difficulty is knowing whether the organisation has the ability or the right level of clearance to do the checks itself. If the organisation is not accredited or recognised, how can we be sure that it is in the position to ask those questions of SCRO?
Do you not consider that the central registered body in Scotland, which is hosted by Volunteer Development Scotland and which acts as a central co-ordination body, could provide some of the solution, along with some of the larger intermediaries such as YouthLink Scotland?
That could provide some of the solution, as long as we know where the central reference point is and who is able to ask for such checks to be done.
Perhaps at the moment it is more important to establish the principle than the mechanisms.
From the schools' perspective, the bill will not change our responsibilities a great deal because those checks have been in place for a considerable time.
Your evidence emphasises that the bill is introducing an element of not checking—an element of what one might called justified suspicion, or evidence that is not strong enough or has not been taken to a court of law. Although I do not disagree with a lot of what you have said, it misses out one of the central elements of the bill. I want to ask you, Helen Law and Ronnie McColl some questions about that central element of the bill. Justified suspicion arises in circumstances in which an authority might decide that an individual should not work with children but no criminal action has been taken. What difficulties do you believe that an authority might get into with employment law?
There can be some difficulty, but the willingness of an authority to stand up and be counted is important. I am well aware of circumstances where there were teachers who should have been categorised or placed on a list, but where that has not happened because of the soft nature of the evidence. Those teachers have been quietly moved on to other schools or other authorities and things have gone from bad to worse elsewhere.
When dealing with soft rather than hard evidence, local authorities may find themselves in difficulties over employment law. Would it be easier if the case for inclusion on the register had to be made to a court rather than to the Scottish ministers? At our meeting last week the Scottish Human Rights Centre suggested that it might be better if the initial decision to list someone were taken by a court, rather than by a minister. The centre argued that, instead of individuals being included on the list on a provisional basis and having a right of appeal, they should be included on the list only after a court hearing. Today we received written evidence from the Baptist Union of Scotland supporting that argument.
This is a very difficult issue. Fife Council decided, on the basis of soft evidence, not to allow Thomas Hamilton to rent any of its premises. As I understand it, there was no case for seeking a police prosecution. Mr Hamilton appealed against the council's decision to the ombudsman, who found in favour of the council. Fife Council had to rely on soft evidence—it did not like Thomas Hamilton's methods, but it could not generate a charge against him.
Another problem with proceeding through the courts is the consistency of the courts in dealing with cases. It is hard enough to get the sheriffs in one area to deal with an issue consistently—let alone throughout the country.
There is genuine sympathy for the bill and its aims, but there are considerable problems with it regarding human rights. I do not doubt the soft evidence in important cases such as that of Thomas Hamilton, but all of us accept that mistakes may be made. The effect of such mistakes is profound. The procedures set out in the bill are not robust compared with normal judicial procedures. Have you considered alternative ways of handling listing?
Michael Russell mentioned the possibility of taking cases to court. How would such cases be handled? If the civil standard of proof—based on the balance of probability—were used, it would be no bad thing for cases to come before the courts. However, it would be very wrong to apply the criminal standard of proof. That would be to tilt the balance too far in favour of the person whose listing is sought. If an attempt is made to list an individual on the basis of soft evidence, that evidence should be able to stand up in a civil case. One should be able to prove on the balance of probability that the person concerned should be kept away from children.
We could write into procedure that such cases should be judged on the balance of probability, if they are decided by a court rather than by a minister. You are suggesting that an authority's decision to seek listing might be made on similar grounds. A court hearing would simply provide an outside check on a decision that an authority was required to make by law.
That is the sort of decision-making process that should be laid down. However, cases should not automatically be referred to the sheriff court. A person who is removed from front-line duties may have recourse to the procedure that I have outlined. In the first instance, it may be inappropriate to refer cases to the sheriff court. Rather than seeking to convict someone of a criminal offence, we should use the civil standard of proof—based on the balance of probabilities—to decide whether someone should be removed from circumstances in which they work with children.
The reference to general practitioners seems to have been lost from the bill. Would it not be worth retaining the provision for people to approach a GP with their concerns?
That is a valid point.
It is worth thinking about.
I thank the witnesses very much for their evidence. If anything else comes up, we will be back in touch.
I welcome the representatives from Children in Scotland. They are Margaret McKay, the chief executive of Children 1st, and Janet Law, who is policy officer for the Scottish Out of School Care Network. I invite the witnesses to make an opening statement before we ask you questions.
I am the national policy officer for the Scottish Out of School Care Network. On behalf of the network, I am very pleased to have been invited by Children in Scotland to submit evidence on its behalf.
I want merely to make a broad point. Children 1st is here today on behalf of Children in Scotland, which represents large and small organisations in the voluntary and statutory sectors. It is important that the bill and its proposals be seen in the wider context of an approach to child protection that encompasses the whole community. The Parliament and the Executive should, as a result of the various measures that exist, be trying to arrive at a position where child protection is seen as being everybody's business. Within that, there are specific responsibilities for employers and voluntary bodies that engage volunteers, but we should overall be trying to create a culture that views child protection as a positive feature, rather than a negative one in which checks are regarded as hoops to be jumped through or as negative balances. My plea is that the bill should be set in that context and that we should drive towards achieving that culture in all our communities. I see the bill as a plank within that overall objective.
I will start where I left off with the previous group of witnesses. My clear understanding is that the bill makes provision for checks to be carried out on organisations that will be regulated. However, there is a vast array of organisations that do a superb job in many of our communities, but which will not be regulated in the terms of the bill.
The care commission has recently decided which organisations will and will not be regulated as part of a kind of jigsaw of measures that have been put together. We are still in that process, in which things are becoming clearer than they were. I hope that, by the end of it, we will have a robust position on Jackie Baillie's question. It might be easier if we knew exactly how many organisations will not be regulated and whether there is any way in which those organisations can satisfy themselves that they have good child protection and recruitment processes in place. If such organisations were to be accredited, the bill would require significant amendment.
Let me come at the issue in a slightly different way. I am not suggesting that all such organisations—which are voluntary and do a very good job for us in our communities—should be regulated. That would be excessive. However, if anybody, irrespective of their status, has unsupervised access to children, should they be checked?
I think that people should be checked in every case.
In our experience, unsupervised access to children is the key issue. However, that is only part of my broader point about creating a culture in which ensuring the safety of children is seen as a positive thing, rather than as something oppressive. There are good practice arrangements whereby risk can be minimised.
At the start of Children in Scotland's presentation, you leaned heavily towards training. You spoke about areas such as employment law, awareness raising and the attitude shift that Margaret McKay has just described.
There is a definite need for organisations to have support and the opportunity to discuss within a supportive context their responsibilities under the proposed legislation. People will seek support from a variety of organisations—indeed, they do so already. A specific commitment to providing support for organisations would mean that people would know to whom they could turn.
I can give the committee the benefit of my experience with Children 1st. Our experience has led us to develop a joint child protection and sport initiative with sportscotland. Our approach to sportscotland arose out of our members' experiences in sports clubs and organisations. Members told us that they were unsure whether their concerns were legitimate.
It is good advice to say that people should trust their gut instincts. Where should the source of information be located in order for it to offer ease of access to the organisations about which we are talking?
It is likely in the real world that there will not be a single focus. It is often said that a single focus is ideal, because it makes life easier for everybody. People will turn to the organisations that they know and trust. For example, Disclosure Scotland is already carrying out that sort of function, but people will turn to Disclosure Scotland only if they are aware of its existence.
However, if I phone the fire brigade because there is a fire in my house, the fire brigade will come. If I am a volunteer secretary for an out-of-school care group and I pick up the phone to ask for information, I might be able to get somebody who could tell me how I could deal with the situation. People may need to ask for that kind of on-going support rather than simply to call for the fire brigade.
Absolutely. I was trying to illustrate the need for clarity on where people can take such concerns. People must initially be able to discuss and talk around the issue and then be clear about what steps and what action they should take following that.
Some of the evidence that we have heard today has suggested that small voluntary organisations might feel intimidated by the bill and that they would be reluctant to raise issues. Is there a possibility that organisations will not seek support and that they will not seek to have checks done?
From experience in the Scottish Out of School Care Network, I think it is likely that people will be keen to pick up on any issues. My concern is that people must have the support for dealing correctly with issues. Employment practices must be pre-emptive; they must not deal with issues simply in the fire-brigade sense. Good policies need to be put in place. Organisations could identify in their child protection policies where people should turn to discuss such issues. All organisations should do that.
I agree.
Perhaps the bigger risk is for ordinary members of the public rather than for organisations. One does not want volunteers to feel that they should not continue to work positively with children. We need the sort of culture that says that the bill's measures are positive. The provisions should not put people off volunteering. I think of the Olympics in Australia, where the process of vetting and training the thousands of volunteers was carried out successfully and was seen to be positive. The people who worked on that in Australia saw the vetting process as something to be valued; they did not see it as a reason not to volunteer for that huge event.
The bill's accompanying documents estimate that there might be 30 referrals each year to Scottish ministers and that 18 of those might end up as names on the list. Given the numbers of adults working with children, is the figure of 18 a year realistic? If it is realistic, are not we going to a lot of bother to find only 18 people a year who might be a danger to children? Despite the significant move that we are making, are we perhaps still not identifying sufficient numbers of people who may pose harm to children? What are your views?
I am not sure about the numbers. Obviously, I was interested to see the estimate of 30 that was made based on experience in England. The fact that there are 30 people about whom we might be concerned is extremely significant. It would be worth taking the bill forward even if we were protecting only one child.
I was playing the devil's advocate.
I thought that you were.
I agree with your sentiment, but I suspect that there are more than 18 people who need to be on the list. Are we putting the right system in place or are there other things that we can do, within the terms of the legislation, to identify the more than 18 or 30 that I suspect exist and who need to be listed?
It has been suggested that the procedures that were in place under local authorities' old registration and inspection procedures might have been able to identify individuals who were unsuitable to work with children but who would not necessarily be identified under the new system. It might be worth considering how organisations can be sure that the references that they receive are from the most appropriate people and how they can ensure that their recruitment procedures are as robust as possible.
I thank you for giving evidence today. If we have any more questions, we will be back in touch.
We will go on to questions after I have given a brief introduction. I have with me Jim Duffy of the Scout Association and Carol Downie from Youth Scotland. We are pleased to give evidence this afternoon.
You will have gathered that the theme that runs through my questions is whether the bill makes a false distinction between organisations that are regulated and people who have unsupervised access to children, irrespective of the status of their organisation. I suspect that it is Jim Duffy's fault that I started off down that road. In his submission to the committee, I caught his thought that the bill should apply across the board. I admit that I have some sympathy with that view, although it raises practical issues. As far as the principle is concerned, should the bill be extended?
In theory, it should be extended, but that would create many practical problems. We pointed out that organisations that have fairly robust vetting systems for adults who work with young people will automatically consult the index. At least, we believe that we will automatically consult the index through disclosure requests, although we would like clarification that a disclosure request will automatically trigger a check of the index.
I am well aware of the track record of the Scout Association, uniformed organisations and the wider youth movement in following good child protection policies. I am keen to explore your response that, in theory, you would extend the bill, but that that might cause specific difficulties. What are those specific difficulties? Does it come down to resources, or is something else involved?
Resources are an issue. The Scout Association has both a long history of developing its child protection policies and a highly centralised system that operates throughout the UK. We have a hierarchical structure, from local scout groups right through to the national operation and it will be relatively easy for us to operate the new system within that structure. However, it will be much more difficult for a voluntary youth organisation that operates in isolation at local level. Some of my colleagues may be able to speak about the experiences of such organisations in more detail.
Youth Scotland is a network of youth clubs and groups in Scotland. We have 683 groups throughout Scotland and resources are a considerable issue for us and we are considering police checks at present. We would like to be able to commit ourselves to conducting police checks and to consulting the index, but we are in the same situation that other organisations find themselves in. For example, Girlguiding Scotland believes that it will not have a robust system in place until 2004. It takes quite a lot of time to negotiate with local authorities because a range of issues is involved. That work impacts on organisations such as Youth Scotland, because youth groups cannot conduct the checks themselves, and the national headquarters organisation does not have the resources to conduct the checks for them. I set that comment against a backdrop of a cut in our grant from the Scottish Executive, as well as a cut in our training grant.
As I am not a member of the Executive, I assume no responsibility for that cut.
Yes.
Yes.
Yes, we have.
Is that view consistent across the sector or is it VDS's view only?
I confess that I was not consulted before that submission was made.
I make a distinction between large intermediary bodies such as those that the witnesses represent and smaller local groups that have few networks through which to obtain such support. The matter is interesting.
VDS did not consult YouthLink before the submission was made. We have concerns about the amount of work that will be taken on by organisations that are trying to come to terms with the difficult business of running checks and seeking disclosure certificates.
We have been here before, but if we said that the principle of indemnity was too important and that we wanted all children or all people working with children to be covered, what would be the outstanding indemnity issues?
Significant difficulties exist in encouraging voluntary organisations—particularly small voluntary organisations—to participate in referrals. Some attention must be paid to the idea that indemnity follows organisations, particularly when an organisation refers an individual to the index in good faith and a decision is subsequently made not to place that person on the index. It is conceivable that that individual might seek legal redress for the process that they had to undergo and the resulting potential damage to their reputation. Volunteers would be concerned about that. That problem already exists in relation to the use of disclosure information and decisions that are made on that.
I thank the witnesses for their evidence. I am sure that we will be back in touch while the bill progresses through the Parliament and through stage 2 with the committee.
Meeting suspended.
On resuming—
I call the meeting back to order. We will now take evidence from John Harris, who is head of the central registered body in Scotland, which is a unit within Volunteer Development Scotland, and Laura Baird, who is Volunteer Development Scotland's policy officer. Do you wish to make any introductory comments before we proceed to questions?
I will make some brief remarks. Volunteer Development Scotland, which is the national centre of excellence for volunteering, welcomes the invitation to give evidence to the committee. Some members might know that Volunteer Development Scotland is home to the central registered body in Scotland, which was set up through Scottish Executive funding. The central registered body in Scotland provides access to free police checks for volunteers in the voluntary sector who work with young people, children and vulnerable adults. We feel that we are particularly well placed to give evidence.
Thank you very much. Members will now ask questions.
I am interested in the role of the centre of excellence in considering further the Protection of Children (Scotland) Bill. How can VDS support small voluntary organisations that will have to consider their practice and look at the workers, both paid and unpaid, within their organisations? How will you be able to provide the kind of support that they will require?
We are already providing such support through the work of the central registered body in Scotland, which is in touch with the majority of child care organisations and other volunteer-involving organisations that deliver services to children. The CRBS works with national organisations and with small, grass-roots community organisations. The system is already in place to help to provide such organisations with advice, support and, to some degree, training in what is required to access free disclosures from Disclosure Scotland.
The position is that we administer the provision of free disclosures. The opposite side of that process is our provision of support, guidance and assistance to a large number of organisations. We deal with three main constituencies. The first constituency comprises large United Kingdom organisations based in London that have a large volunteer base in Scotland. That produces an interesting cross-border issue in relation to the bill. The second group consists of the Scotland-wide organisations. The third group, which is by no means the least important group, is made up of a large number of small but crucial volunteer-engaging organisations, which often operate in a specific locality. Our work so far in administrating the disclosure process has related not only to the formal process, but to the provision of advice, guidance and assistance to enable people to take advantage of the scheme.
How would you respond if I suggested that the small organisations sometimes feel that you are not listening to them and that you cannot support them in the way in which they need to be supported? There has been criticism that you have not consulted the people whom you speak about representing. What is your view on that?
I, along with my colleagues who are involved in the process, have detailed face-to-face contact with a large number of organisations on a routine basis. All the different constituencies come to the process with different needs. The requirements of the large UK organisations are different to the support and guidance needs of smaller groups. I do not doubt that, if we had the wherewithal to do all that we need to do, we could do more. We have 650 enrolled organisations, which represent many thousands of other, smaller groups. We are doing what we can within current resources.
Are you able to work effectively at local level within your current resources?
We would always want more resources to do the work. You would be surprised if I did not say that. When you consider that the unit is made up of nine people and that we are dealing with three important constituencies, it is remarkable that we are reaching out to as many groups as we are.
How could you support a small organisation that had a gut feeling that something was not quite right? Suppose that I was the secretary of a local organisation that was involved in summer play schemes and that I had a wonderful volunteer who did not feel quite right. If I wanted support in identifying some issues that I was concerned about, would you be able to help me with that?
In the first instance, we help people to understand what the process is able to provide for them. The process in which I am involved comes at the end of what I hope will have been a group's robust local recruitment and selection process.
I wish to push you further on those points. First, I am keen to get a sense of the stage of the process at which you become proactively involved. Do you do so right at the beginning when, for example, a management committee is about to start on the interview process by advertising a post, or do you get involved at the end, in interpreting information, or do you get involved following a request from an organisation?
On the first point, the Disclosure Scotland scheme is structured such that disclosure is requested only when the organisation wishes to engage a paid member of staff or a volunteer. At that stage, the applicant is asked by the organisation to fill in the form. Disclosure comes at that point and not earlier.
You are involved in the process only when an application is submitted to you, but the process in the bill means taking much more proactive measures than simply receiving an application. Your focus would change to being much more training-oriented and advice-oriented, and therefore you would be much more proactive than you currently are, which would have resource implications. You said earlier that the bill would simply extend what you currently do and that you could probably cope with current resources, and then you said that of course you would want more. Have you any idea of the difference that the bill will make to your organisation? How many more resources would you need to see it through, if we found favour with your proposals?
The bill would make us much more proactive. In response to an earlier question, however, we identified that that is needed, because we must enable organisations to get to the point where they can make maximum use of the service that is available to them. Even in the short span of time in which the CRBS has been running—less than nine months—we have learned from what organisations, and in particular the smaller ones, have told us about their requirements. There is a change of emphasis in what we are being asked to do, but I see it as being within the current framework.
The bill makes a distinction between regulated and unregulated organisations. Do you contend that that distinction is false and that the bill should apply to all adults who work unsupervised with children, irrespective of whether their organisation is regulated?
Yes. Our concern is that if the bill does not apply to all organisations that work with children, a loophole could be created. Organisations that are not regulated by the Scottish Commission for the Regulation of Care will want to make referrals, and in turn, will need support and advice to do that. Volunteer Development Scotland's view is that the bill should apply to all organisations that work with children, to close a potential loophole.
There are dangers. If we do not make the position universal, unsuitable individuals may gravitate towards organisations that are not subject to the requirements. I have serious concerns about that happening.
Paragraph 2.1 of your submission says:
That statement relates to the issues that are specific to volunteer-involving organisations. As the national centre for volunteering and the representative voice of volunteering, Volunteer Development Scotland would like to ensure that the bill and subsequent legislation will lead to good practice in volunteer management and the protection of children and will create no unnecessary barriers to people's involvement as volunteers.
That is a key issue. Almost every other submission has expressed some dubiety about the legal process that will be followed. Everybody supports the intention of the bill in general, as you say, but concerns have been expressed about the legal process. Those concerns are not mentioned in your submission. Will you expand on that?
The basis of the disclosure scheme is an individual's conviction of the offences that are outlined in schedule 1, which results in that individual's being notified that they are required to be put on the list. Under the Disclosure Scotland scheme, however, one element of information, known as non-disclosure information, is found on enhanced disclosures.
Surely such issues will not only crop up—surely they are at the heart of the process? You spoke first about the not proven finding. If I remember correctly, Sheriff Fulton said that the not proven finding is designed for cases in which the court is not convinced of the innocence of the accused. However, you are now talking about cases in which no verdict has been reached. Indeed, you mentioned cases in which the person was acquitted, and yet the non-conviction information continues to act as if that had not happened. Everybody wants to see the bill succeed, but what you describe is an undermining of the process of law. Does that sit easily with you?
I mentioned the specifics of the bill in response to the question. My main concern in respect of the evidence that the committee is taking today is the process in which we may or may not be involved in giving assistance to organisations. I would not be impudent enough to suggest to legislators how the framework of the bill might deal with the specific elements of offences.
I want to ask specifically about a system of accreditation for voluntary organisations, which Lord Cullen mentioned when he reported in the aftermath of Dunblane. I wondered whether your proposal to act as a one-stop shop for disclosure, advice, guidance, training and support might be considered a step towards the establishment of a system of accreditation? Would such a step be an appropriate way of making progress?
A big part of Volunteer Development Scotland's work is to promote good practice and high standards in the involvement of volunteers. Accreditation is a part of that work, but it is a part of that work only for individuals and organisations that seek such formalisation. Although Volunteer Development Scotland would be interested and willing to play a role in the development of such a system, there should never be an expectation that a volunteer would have to gain a qualification or accreditation unless they had a specific wish to achieve that. Accreditation for organisations would be worth considering as a matter of good practice.
You feel that, at the moment, an accreditation system would exclude too many organisations.
It is perhaps a little too early in the scheme of things, because we have heard concerns about the support that would be necessary to meet such requirements. Small, community-led groups, in particular, need a great deal of support in meeting legislative requirements. Further down the road, there could well be a place for accreditation.
One would probably need to deal with the issue in an incremental fashion, which would enable organisations, particularly the small ones, to gain the confidence and competence to take on such requirements. In response to questions about our proposal, we want to be able to support what will be a long-term process. One needs to look at the landscape of volunteering. A wide range of activities exists. Large and very small organisations have differing needs, which must be met to enable them to make use of the scheme that is there. It is also important for organisations to have a single point of contact with the processes that provides a comprehensive degree of support and assistance.
Given that many, if not all, of the organisations for which you work are carrying out police checks, if we applied your proposal across the board, would it increase inordinately the work load on those organisations?
On which organisations?
The organisations that are carrying out police checks.
As part of the enrolment process, the CRBS gives a great deal of information and advice to organisations. In our proposal, we would approach the index by including advice and support about that process and about how to make referrals. Extra work would be incurred for the organisations and the process would be an extra thing for them to know about. Organisations would need to understand their roles, responsibilities and obligations and would need to inform their volunteers. It is important to make the point that the nature of some of the large voluntary organisations means that even they are managed, ultimately, by volunteers—a board of directors or a council of management. Therefore, training, advice and support for those large organisations would be paramount to ensure that they could meet their obligations.
Would it not always be VDS's role to provide such training, advice and support for organisations that deploy volunteers?
That is always a role for Volunteer Development Scotland, but it is a matter of expanding on that role. To return to John Harris's point, having a single point of entry keeps everything neat, packaged and streamlined, and organisations know exactly where to come for advice, information and support on all aspects of disclosure and on making referrals to the Scottish ministers.
At present, we are offering advice to organisations on a number of key areas of legislation, including the Human Rights Act 2000 provisions covering the rehabilitation of offenders and data protection, and part V of the Police Act 1997. Those four areas of legislation are critical to the process in which we are engaged. It seems entirely logical and sensible to build from the foundation of the process—from the enrolment and identification of the lead signatory—an understanding of its implications for organisations. The necessary training and support also needs to be made available to them. We are working on that with respect to other legislation, so we see similar work in relation to the bill as a natural extension of our current activities.
You have described how you are engaged in all that work now—would extra work in relation to the bill not incur huge additional expenditure for you?
It will certainly incur additional costs for us, but it is difficult to be specific about it. We would need to examine that point in detail, and I am sure that, should we be asked to do so, we would be able to give some indication of the amount involved. We do not want to create a situation in which there is less of an element of eligibility. All the organisations concerned are able to obtain comprehensive support, which will enable them to make the maximum use of the facilities available to them, which in turn protects their client interests, their volunteers and the wider community.
I thank the witnesses for their evidence. We will be back in touch with you should we wish to raise anything else.
I thank the committee for inviting us to give oral evidence in addition to our written submission. We want to make some general points before answering any questions of detail. We broadly welcome the principles of the bill, as it will extend safeguards for children and young people.
I am convener of what we call the care commission, which trips off the tongue a little more easily than the Scottish Commission for the Regulation of Care. We welcome the opportunity to say that we are very much in favour of the approach that is taken in the bill.
Your point about other adults in households is well made. Such adults should be brought within the scope of the bill, because they can often have substantial, and in some cases unsupervised, access to children.
Consideration is being given to an extension over the coming year or two of the care services that are subject to regulation. Other provisions might be included in that, particularly in relation to home care services, I suppose.
I am talking about a wider level in the community, where a lot of informal voluntary organisations provide excellent services but, nevertheless, work unsupervised with children.
The inclusion of such organisations would extend the provision enormously. Having had the experience of trying to set up a new organisation with new regulations and legislation, I am aware that it is helpful to learn to walk before you can run. Many organisations that provide children's services, at least those that provide more than two hour's care a week, are covered by the arrangements of the central registered body for Scotland.
It would be worth the committee's while to explore that issue. We are aware that, the more that certain bodies and people are regulated, the more the people that we are talking about will try to find other avenues, which is why there is a concern about not including vulnerable adults in the provisions. Clearly, people who seek access to vulnerable people will choose avenues that are not regulated. There is a need to explore what organisations are outwith the legislation and how they might be brought within it, given that they might fall outwith the area that the commission and the council are currently able to regulate.
Jackie Baillie mentioned concerns about extending the bill to cover those who live with people who work with children, such as childminders or—as recent events have made us all too aware—janitorial staff, who often live in premises on the school grounds. Should the bill cover people who live in a family situation on school grounds with people, such as janitors, who work with children?
At the moment, such people would not be within the care commission's remit. The school premises are not subject to regulation by the care commission.
Nevertheless, it would be possible to have a system of regulating the providers of services to ensure that they have safe practices with regard to the people whom they employ as janitors and others who might live in the environment in which they look after children. It is possible to build those arrangements into our current regulatory system.
I would have thought that, if teachers and classroom assistants were included, it would be logical to ask the education authority to consider any other employed staff on the premises. We know of instances in which concerns have been expressed about janitors.
I would like us to talk only in general terms about janitors, given that the matter that is in everyone's mind is subject to court proceedings at the moment.
I will continue to speak generally. Support staff who work in schools, such as gardeners, do not usually have a house in the school grounds. I raised the issue of janitorial staff because their house is often in the school grounds. That is a difficult area that might make the extension of the bill harder to apply. Can you think of a way round that difficulty?
We face similar issues. We will have to regulate certain groups of staff, such as people who work in residential or day care services, but people will say that, if such people are being regulated, perhaps others such as drivers and cooks should be regulated. At the moment, those people do not fall within our remit, but the Parliament might be asked to consider adding them to it in the future. Mr Monteith is exploring a similar line of thought.
I said that we should not run before we can walk. It is important to have a credible system that works. The committee may want to consider having a staged process. Once the system is up and running, wider categories of people could be made eligible for referral to the list.
Are you concerned that the bill may raise expectations on which it cannot deliver? Might it be perceived that the bill will give protection that it is not possible to give?
Our aim is greater safety. It may be beyond human ability to achieve 100 per cent safety, but we can do more to improve safety by taking reasonable steps. If we overload the system, there is a risk that it will be unable to cope and that people will find ways round it.
It is important that people should understand that the measures in the bill are one of a number of processes that are needed to protect children, to ensure that children are safe and to minimise harm. Earlier today we talked about people's tendency to rely on police checks. People tend to think that if someone has been cleared by a police check, everyone is safe. The message is that people need to do different things as part of safe recruitment and selection. Support, development and supervision of staff contribute to safe practice. People should not think that the bill alone will guarantee safe practice.
If the bill is passed, will you work that message into training and support of staff?
The Scottish Social Services Council has the major task of communicating what it does and what it can guarantee. The council can register people. Before it does so, it requires them to have qualifications that fit them for the job or to be working towards such qualifications. Before registering people, the council carries out police checks on them and ensures that their employers have conducted a fair recruitment process, during which references were taken up. All the work must mesh together—the bill requires that. If there are gaps, that may cause difficulties.
In your written evidence, you say that other regulatory bodies should be included in the scope of the bill. You made that point again today. Let us assume that the committee regards that as a positive way forward. What other bodies do you think are missing from the bill?
Before the Regulation of Care (Scotland) Act 2001 was introduced, local authorities were able to pass vital child protection information to their staff who were registering and inspecting care services. Because the care commission is a separate legal entity, it does not have the right to receive that information. It is very important that the bill should fill that gap. Local authorities should be able to refer to the list.
Could you provide us with some written detail on that suggestion, so that we can raise it with ministers?
Certainly.
It would be worth adding the Health Professions Council, which regulates occupational therapists and other therapists, to the bill. Some occupational therapists work with children, so we may want to include them in the scope of the bill. We have suggested that the Nursing and Midwifery Council also be included.
Under the appeals process that the bill proposes, an individual has three months to appeal to a sheriff against listing. Others have suggested that a tribunal might have a role. What are the strengths of those suggestions?
Under our regulations, applicants to the register and registrants whose removal from the register is being considered have a right to appeal to the sheriff, so we would probably support the proposal that an appeal to the sheriff should be possible. That would send the right message about the importance and seriousness of the matter. It would also provide a measure of consistency, given some of the similar issues that sheriffs will have to examine. For instance, people who appeal against removal from the register might raise similar issues about being on the list.
The Scottish Commission for the Regulation of Care takes that position, too.
The position sounds logical. It has been suggested today and elsewhere that a judicial process before listing might not be out of order. What are your thoughts on that? Some have suggested that more than simply a referral by an employer to ministers should be required for listing and that the present proposal might not be in keeping with human rights legislation.
That is interesting, because we have just held a consultation on the rules that will govern how someone joins the register and how they are dealt with when they misbehave or when their removal from the register is being considered. Initially, our rules had procedures under which we made decisions without giving the person involved a right to representation. Virtually all the consultation respondents felt that that was inappropriate and that it should be possible for someone to be represented. It may be unfair that the first stage at which someone has the right to put their case is when they are before the sheriff. The committee can take that information for what it is worth, but that was a strong opinion.
I will follow up that extremely important point. Everybody wants the bill to succeed. In that small anecdote, Carole Wilkinson identified a feeling that fairness should apply in all circumstances. Given the work, including the supervisory work, that all the witnesses' organisations do, how will the concept of fairness be guaranteed under the bill for all bodies—particularly public bodies such as local authorities and health boards?
Our legal advisers suggested that we should have a statutory duty to refer, so that the test of fairness could rest in one body. The test of fairness would be with the people who hold the decisions about the names on the register. If many bodies had discretion to refer, they would have their own tests of reasonableness and fairness. We would be in danger of establishing many bureaucratic systems to follow due process for referring.
An individual's relationship with their employer must involve trust. How can an employee trust an employer that is prepared to make a referral on the basis of suspicion? Even if the bill were passed, would that be fair under employment law? I ask those questions because we will have to dig into them. Is that situation likely to damage trust generally between an employer and an employee? Is it uncaring for an employer to undertake that task? We should examine that, because we are dealing not with convicted people—we understand convictions—but with people who are under suspicion and with circumstances that make a body decide that an individual should not work with children, although no legal process has been followed.
I understand from the criteria and the recommendations in the explanatory notes that a referral would be based on much more than suspicion. In my practice, a relevant example would be a person who significantly lost their employer's trust by the damage that they did to an adult or a child but who could not be pursued further through the judicial process. The employers and the people who use care services have the right to be able to prevent that person from finding employment elsewhere. There are protections for the individual once the person is on the provisional list.
The starting point is the protection of children, which must be paramount. We need to ensure that at every stage the processes are spelled out clearly and that people understand what is happening. The processes must be as transparent as possible. I am not sure whether you are suggesting that at the point at which the referral is made the employer will not tell the person.
No, I am not saying that at all. That would become painfully obvious to the individual.
The process can be based on excellent employers' practice. However, I am not suggesting that it be based not on law but on suspicions and professional judgment. It is possible to go through open, honest and clear disciplinary procedures, but some of them might not come to a clear conclusion. Then we would be left with the knowledge that an individual really should not be working in child care. The bill would plug that gap, but we would have to have fair, honest and clear employers' practice.
The three words "fair", "honest" and "clear" are vital to us and we will return to them. Thank you.
I want to make a point that is not related specifically to what Mr Russell said, but which follows on from it. In our view, the best possible outcome at the end of an investigation process in which in the suspicions of an employer were not borne out would be that the individual who had been investigated would have his or her good name restored. How can that happen and how can the process help that to happen? The individual might have been challenged maliciously, or they might have been challenged on good grounds that on subsequent investigation were not found to have substance. The individual might be exonerated. What can the process do to ensure that that individual is reinstated? That is perhaps not quite so difficult, but how can the process ensure that there is no whispering campaign and that the press reports the outcome?
That is a very wise question to raise. If we turn the issue on its head, the question is how we can devise a process in which individuals are not put in such circumstances and maintain our intention to support the principles of the bill. If I thought that the bill, as drafted, would allow a person to reclaim their good name, I would be less worried than I am now.
Do we not then require clear guidance and procedures for referral, with an onus on the referrers, or the employers, to make it quite clear on what basis they are referring? There should be a system to sift at that stage, so that the investigation procedure could sift out the referral and it would go no further.
There are no perfect procedures. I accept that there must be very good procedures, but I do not know whether they can be perfect. The situation in a court of law is that even if the procedures are flawed, there is still a possibility that the outcome could clear somebody's name. In the case of suspicion, there is no such procedure. That is why we must think carefully about how we act in the context of wishing the bill to be enacted. The current structure is problematic.
Local authorities are aware of the problem of acting merely on suspicion, as are most other care providers. My background is in local authorities and only partly in the voluntary sector. The times when one has suspicions, but can do nothing about them, are legion. The odds are stacked against both younger children—who do not have much of a voice—and older ones. There can be malicious allegations as well.
Nobody would disagree with you. However, a difficulty remains. Nobody wants the balance to be tilted against children—that is what we are trying to avoid. Equally, in the name of justice, we must ensure that the balance is not tilted so far the other way that good individuals can suffer with no redress and, as Morag Alexander pointed out, with strong and positive loss of their reputation.
As there are no further questions, I thank you for your evidence. I am sure that we will be seeing more of you in the future.
Meeting closed at 16:16.