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Protection of Children (Scotland) Act 2003 Determination Regulations 2004<br />(SSI 2004/523)
Good morning. I welcome members to today's meeting of the Education Committee and apologise for a slightly late start. As we are meeting in public, I ask people to ensure that their mobile telephones and pagers are turned off.
I will briefly set out what the act does and what the regulations are intended to do. The act establishes the list of those people who are disqualified from working with children. In doing that, it sets out the main provisions on how organisations can refer people for placing on that list and it provides for the making of regulations on the procedures for determinations on referrals. That is what the regulations under consideration are about—they are the determination regulations. They set out the determination procedures to be followed when a referral is made. In particular, they set the timeframes within which certain things should happen so that the panel that makes a determination can reach a decision within six months of a provisional listing being made. The intention of that is to reduce any period of uncertainty for individuals and organisations during the referral process.
I will begin by asking a broad question, so that we can get a handle on the implementation of the 2003 act. A little while back, Disclosure Scotland said in evidence to us that it needed three months' notice to get itself ready to cope with the whole thing. Given that the Scottish statutory instrument on the commencement of the act—which is not the SSI that we are discussing—which was laid only about 10 days ago and gives the commencement date as 10 January, can you comment on what Disclosure Scotland told the committee about the length of notice that it would require? Until recently, the committee has not had any clear indication of precisely when the legislation was to come into effect.
Surely. The commencement order was laid on 2 December. When the act was introduced in March 2003, ministers gave a commitment that they would not commence the act before spring 2004 so that the voluntary sector in particular, and other organisations, would have a year in which to gear up for implementation. In letters that were sent to the committee in, I think, May and October, our ministers confirmed that they intended to commence the act between spring 2004 and the end of the year. It has always been made clear to the project board and to the other representational structures that we have had in place that it was our ministers' intention to implement the act between spring 2004 and the end of the year. Although the commencement order—the technical order that will commence the act—was laid only within the five-week period, much more notice has been provided.
I am concerned about all the problems that there have been with Disclosure Scotland. At our meeting on 27 October, Brian Gorman said:
There are two points to make in response to that. The first is that the commencement order defers commencement of section 11(3)(b) of the 2003 act. That is the paragraph that would require the retrospective checking, which was the issue that triggered the fears that up to half a million checks would need to be carried out on commencement. We have deferred commencement of section 11(3)(b) altogether, so the commencement order will not mean that retrospective checking has to be carried out; only the new checks will be required from 10 January.
As the committee may be aware, we have to report to the Parliament by 17 January, but we cannot do so until we have the final report of the Subordinate Legislation Committee, which we will not have until 21 December. The matter will, therefore, have to be considered at another meeting after the recess.
The regulations are about setting up the list of people who are disqualified from working with children. As the convener said, some of the concerns in the voluntary sector are about wider issues, some of which he mentioned. It has been brought to our attention that, although guidance has been produced, there has not been any consultation with the voluntary sector about the type of guidance that is required. The voluntary sector wants to know specifically who the "responsible person" is and wants some clarity about risk assessment. Some organisations feel that they must err on the side of caution when they are not quite sure how to assess the risk. They also want guidance on the regularity of checks and the length of their validity. Will any such guidance be produced for the voluntary sector in advance of the commencement date?
I have left a one-page note for distribution this morning about the guidance that is being produced. I will run through what has been produced and will then talk about what additional information might be needed.
Is it intended that all that guidance will be made available to individual groups and be active by 10 January?
Yes.
That is quite ridiculous, as there will not be time for people to digest it. The information may well have been sent to the main organisations by 10 January, but they will then have to send it out to the scout troops and other individual youth organisations.
As part of the period of gearing up, we have worked with the representative umbrella organisations to allow those national bodies 22 months in which to prepare their member organisations. While we have run national seminars—
The point is that the guidance is coming out two weeks before Christmas and the commencement order will come into effect on 10 January. How will voluntary groups be able to disseminate the information over the Christmas period? Of all periods in the year—bar, possibly, July—this is the most difficult time for organisations to get information out to individual groups and volunteers.
The photocopied version of the guidance pack has been available since August and September. The 800 people who have participated in the 10 national training seminars come from within the national and local voluntary organisations. We carried out a series of seminars of training for trainers and then conducted 10 seminars for people within the organisations themselves. They have had the photocopied version of the guidance pack; it is the final, loose-leaf ring-binder version that they have not received.
I would like to clarify two things on timing. You have talked about the guidance going to the printer in the next week. What is the deadline for the printer delivering it to the Post Office and when do you expect it to be posted?
The voluntary sector version is ready for distribution as of tomorrow. The printer is carrying out the final compilation of the ring-binder version today for the distribution tomorrow of 6,500 copies to the voluntary sector.
So your expectation—Christmas post allowing—is that it will be posted on 16 December. Is that right?
Yes.
It will not be compiled tomorrow, but will go to the Post Office tomorrow.
Yes. That is my understanding.
Therefore, the voluntary organisations will receive it on 22 or 23 December.
Yes.
Fine. Is there any respect in which the ring-binder version differs from the photocopied version that was sent to 800 people?
It does not differ in substance. The key difference is that, on the covering sheet for the photocopied version, there was a paragraph within which it was stated that one of the voluntary sector members of the consortium was seeking legal advice on the content of the pack in relation to the scope of the act. The covering sheet now states simply that access has been obtained to legal advice to guide people in understanding the full implications of the act as set out in the material. The substance of the material has not changed.
If the new version differs in no respect, why has it taken 10 weeks to print and distribute it?
It has taken about five to six weeks to get it printed and distributed, from the point at which the consortium gave it the final sign-off, pending its receipt of legal advice.
You are saying that the version that went out in September had a caveat, with the effect that the people who received it did not know whether it was the final version. Therefore, voluntary organisations will know what the final position is only when they receive the new version on 23 December.
The clear problem is that organisations such as YouthLink Scotland and the Scout Association have the information, but the practical issue is what happens at the level of the scout troop, youth organisation or parent-teacher association, some of which will not have been involved in the procedure to any significant extent. As I understand it, such organisations are still waiting for guidance. The guidance may just be a rehash of the 2003 act, but it ought to be a bit more than that and deal with the issues that the voluntary sector has been going on about for months, such as whether volunteers can be used pending the disclosure of applications that are under consideration. Is it the Education Department's view that all the measures can be implemented at the practical level by youth organisations on the ground by 10 January?
In setting up the structures, we have involved the voluntary sector all along, with the clear understanding that the national bodies in the voluntary sector have a role in helping to gear up local units. We have dealt directly with the umbrella organisations and we have also paid for, and facilitated the running of, 10 seminars throughout the country. We viewed the preparation for the implementation of the act as a partnership process, but we never intended to communicate directly with every scout group or guide pack.
We accept that entirely, but there must be a prediction of practicability. If we have learned one lesson in the Parliament, it is that it is one thing to pass a law and another to make it work on the ground. It is reasonably clear that some organisations are not involved in the national issues because they are not involved directly with the umbrella organisations, but even for those that are, you are saying that we blew the whistle and started the procedure towards activation only 10 days ago, albeit that we all knew that implementation was coming. Would it not have been realistic to think that that would be the point at which most organisations would begin to finalise their arrangements, given that they did not have the guidance and that the training booklet has only just been published?
Last Thursday, one of the representatives of the national voluntary agencies told me for the first time that they had not been working to prepare for implementation because they had been waiting for the announcement of a specific commencement date. They had not spoken to their local groups for fear of disturbing them even more in advance of commencement.
A lot of assumptions seem to have been made, including the assumption that Disclosure Scotland would be geared up, because its evidence was quite clear that it was waiting to hear from you when commencement would be.
That is an issue particularly in relation to the retrospective checks, which we have deferred.
The central issue in the 2003 act is risk to children. Children will be at risk because the retrospective checks are being delayed. The organisations that are meant to be implementing and supporting the new checks are not geared up to that, which is supposed to be starting in the next 10 days, because they do not have the information pack, which they expected to have. We seem to be failing on two counts. First, the retrospective checks have been delayed; we can understand the reasons, but there is a risk. Secondly, the country is not properly geared up for the implementation of the new checks.
I will ask Gordon McNicoll, who is from our solicitors, to step in if I get any of this wrong. Going for a later commencement date, which is in effect what you are asking about, would be technically and legally possible and relatively straightforward. The Executive would be required to revoke the commencement order and the regulations, because they are linked to the commencement date. We would either immediately lay a new commencement order and a new set of regulations, which would be the same in every respect except for the date, or we would lay nothing and there would be no commencement date in sight.
We understand that, but we are conscious that the perception is that the seriousness of the 2003 act will increase the anxiety and concerns of people working in the sector. Some of that anxiety is justified and some of it is people feeling the serious responsibility of risk that is probably in excess of the actual risk, and that is where information and guidance can help. Although the act and the regulations are separate pieces of legislation, they are related in the perception of people on the ground. We have to address our concerns about those people.
Part of the difficulty—and I struggle with this quite a lot—is that we talk about the voluntary sector as though it were one sector, but it has many different parts and there have been many different responses to the training. Although some individual organisations have said that they feared that the training was too detailed for very small organisations, the majority of the responses that we have had from the voluntary sector to the guidance and information pack and to the training sessions has been that they have been extraordinarily helpful and very clear. It is difficult to get to the heart of who is finding the implementation of the legislation difficult and how we can help those people, as opposed to holding up everything for the whole voluntary sector when a lot of people are telling us that the guidance and training are very useful and clear and that they want that.
The trouble is that the umbrella organisations are telling us that there are all sorts of problems. For example, we are being told that the ability of people who are awaiting disclosure to work with children while being supervised is causing all sorts of problems with insurance companies. That is not immediately to do with the legislation, but it is obviously a practical issue that produces the same result to all intents and purposes. The guidance is clearly crucial to our being able to assist in that area if voluntary organisations are not going to be landed with all sorts of intractable problems that handicap their activities. That is the kind of difficulty that emerges out of all this.
A paper called "Recognising Your Mistakes" was also circulated. In it, four key issues were raised, including the question of appointing someone to a supervised post pending a disclosure check that will allow them to be appointed to an unsupervised post. There is a perception that there is some kind of ban on that and that it cannot be done. We wrote back to the four organisations that submitted that paper and set out the position clearly. The act does not implement a ban, neither does anything else. Disclosure checks are a genuine part of what ought to be robust recruitment procedures for appointing people to work unsupervised with children. If an organisation has gone through all the procedures that would apply anyway—taking up references, interviewing, and checking what is known about an individual before they are appointed—and the disclosure check is the only element outstanding, it is perfectly possible to appoint someone to a supervised post pending checks, provided that the organisation does its own risk assessment. However, I understand that some of the voluntary organisations were reluctant to do that, particularly given that the disclosure checks were taking so long to come through. Part of the immediate answer was to get that backlog cleared.
I understand from what the organisations have told the committee or have told me in correspondence that officials in your department were giving them advice to the contrary on occasion. That might not be the situation generally, but it shows the extent of confusion. I do not know whether members want to explore the matter further. We will have to consider what we want to do about it. There will be technical questions about immediate issues.
Are you confident that the panel of three officials to whom ministers will delegate matters will be sufficiently objective and representative?
The chair of the panel will be a senior civil servant with responsibility for developing policy or advising ministers on issues affecting children and children's services. The definitions are quite long, but the other members will be a representative of the social work services inspectorate, which will become the social work services agency, and of Her Majesty's Inspectorate of Education. There will be nine members in total, because each official will have two deputies so that panels can sit in parallel if we get a glut of applications, and we can deal with people being on leave.
Can I take it that the chair of the panel would not be involved in discussions of the career prospects of the other two members?
Yes, absolutely.
Will all offences that someone commits against a child result in their inclusion on the list of those disqualified from working with children?
It depends what you mean by an offence. There are provisions in the 2003 act and in the regulations covering applications that are made frivolously or with malicious intent and applications for which there is insufficient evidence. We cannot include someone on the list on the basis of someone simply telling us that something has happened, without supporting evidence. A referral can be made only if an organisation has dismissed a person or has moved them away from a child care position. The evidence that they would need under employment law to dismiss somebody would be the evidence with which they would provide us for their referral to the list.
Will the case management system work effectively across both local authority and national boundaries?
I will ask Jan Raitt, who is the case manager of the system, to comment. She is infinitely better placed than I am to respond in detail to questions on case management.
The case management system is designed to help us manage cases daily. In addition, it creates the list of people disqualified from working with children and transmits the information on it to Disclosure Scotland daily. In time, the information will be transmitted to the Criminal Record Bureau, which carries out disclosure checking for England and Wales. England and Wales require legislation to allow them to take our list. The appropriate provisions will be in the Serious Organised Crime and Police Bill.
Thank you. We dealt earlier with retrospective disclosure checks. Will measures be in place to ensure that children's welfare is safeguarded while such checks are being carried out?
Indeed. The retrospective checks have been deferred for two reasons. The first reason is connected with the implementation of our legislation and the concerns that have been expressed by the voluntary sector and others about our system's ability to deal with retrospective checks. The other reason is to do with the recommendation in the Bichard report that there should be a single registration scheme for all those who are regarded as suitable to work with children. The Bichard recommendations, when we unpick them, have a big impact on the system that we need to have in place. The first thing that Scottish ministers and ministers at Whitehall recognised was that there must be absolute compatibility between systems and processes if we are to avoid creating loopholes that people could walk through between Scotland, Northern Ireland and England and Wales.
Do members have any other technical questions?
I have a question about timing and one about content. On timing, in response to Fiona Hyslop's question, you helpfully said that it is technically possible to revoke the regulations and lay new ones. Do you think that there is any merit in doing that as a way to alleviate anxieties and retain the good will of a number of organisations, which we risk losing?
A number of things can be done to return to a position of good will, partnership and co-operation. I know that my minister is happy to meet anybody from the voluntary sector or elsewhere, this week or next week, to talk through any anxieties. There may well be merit in what you suggest in terms of how people would perceive it, but it is doubtful whether moving the commencement date would impact substantially on the concerns that underlie those requests. The substantive issue that underlies the concerns is the fact that the scope of the act is wide—it captures all voluntary organisations—but Parliament intended the scope to be wide. Some organisations still take the view that we should narrow the scope, but we cannot do that in the guidance.
That point relates to my question on content, but on my question about whether we should revoke the regulations and recommence them later, is your answer no? I ask the question for the guidance of the committee as we will have a discussion on the matter afterwards.
I find it difficult to answer that question without talking to my ministers about it. It is not for me, but for the ministers to decide.
I will ask my other question, on content, as your answer might guide us. You mentioned that the panel that was involved in drawing up the detailed guidance had one representative from the voluntary sector. Who was that representative? How big was the panel, and why were there not more representatives from what could be described as coalface organisations as a way to diminish the anxieties that we are now trying to manage?
The project board for the implementation of the act considered the factual guidance. The voluntary sector support group, which drew up the specification for the draft guidance on the act included SCVO, VDS, YouthLink Scotland, Children in Scotland, sportscotland and Lead Scotland—I think that that is all. They nominated the representative from sportscotland to represent them on the project board. The other people on the project board represent all the other sectors that are involved in the implementation of the act. For example, the Convention of Scottish Local Authorities is represented. Jan Raitt will have to help me out on this, as I have had only one meeting with the project board.
My question is whether there was really any representative of the voluntary sector on the project board. Sportscotland is a non-departmental public body; it is not what people would commonly understand to be a voluntary sector organisation like Girguiding Scotland, the Boys Brigade or the Scout Association. Sportscotland is an NDPB that was set up and is core funded by the Government. Was there a single representative of the voluntary sector on the project board?
That was the voluntary sector support group's nomination. We did not select the sportscotland representative; we asked for a nomination and that is who the group nominated. The absolute answer is no, because the sportscotland representative was the voluntary sector support group's nominated rep.
I do not want us to go on for too long about the fiddly details. I think that we have got the general picture.
I would like some clarification. You say that implementation of part of the act is deferred.
Yes.
The regulations that are before us today are specifically about setting up the list, and I do not think that there is a major issue about that. Is it possible to decouple some of the other aspects of the guidance from the regulations and allow them to proceed, as long as the Subordinate Legislation Committee does not have any major issues with them? Can we defer the commencement of some of the other aspects of the act for a month or two to allow the voluntary sector sufficient time to digest and disseminate the guidance that it will receive just before Christmas?
I am not sure that I understand which aspects you want to defer. The act sets up a requirement that somebody is referred to the list if they are dismissed or moved, and an organisation has a duty to refer them if they dismiss them or move them.
So, there is not really any possibility—
Are you asking whether we could defer commencement just for the voluntary sector and introduce the provisions for everybody else?
I am just exploring whether there is any possibility of being a bit flexible in regard to the organisations that will have a problem in getting the information out to their members in time for the commencement.
Again, I ask Gordon McNicoll to jump in and correct me if I am wrong. The act introduces the requirements to refer to the list people who are dismissed or moved, and to check new appointees against the list. Aside from the deferment of retrospective checking, those are the two things that the act does. We would either defer the requirement for organisations to refer people to the list, in which case we would not establish the list, or defer the requirement for organisations to check new appointees, which they are doing anyway, by and large. Therefore, I think that it would be necessary either to defer the whole act or not to defer it at all. I do not think that we can defer it for specific sectors, as there is no power in the primary legislation to allow us to do so.
The concerns of the umbrella organisations for the voluntary sector are real, and I have not heard anything that has reassured me. I do not know how we can reassure those groups, which—quite rightly—feel that the scope of the act is not clear and that there is no consensus on it. They say that it is not clear who the "responsible person" is—you have talked about that, but it is still not clear to me—although you say that they have misunderstood.
The act does not define a "responsible person" within an organisation.
Why have they got all these concerns? They have concerns about risk assessment in relation to the supervised access of volunteer staff, about the length of time that they need to wait between checks and about the validity of checks. Why is there so much confusion, misunderstanding and concern? Many voluntary sector groups do not feel able to move forward to the new regime, yet we are hearing that that should not be the case. Why are there huge differences in understanding, unless there are real concerns that are not being picked up? I am confused. There seems to be a complete mess. There is a shortage of volunteers to work with young people. People who read the newspapers yesterday would simply say, "I'm going to walk away from this."
There are two separate issues—one is what the act does and the other is the raft of concerns that you mention. The act does not impact at all on the period of validity of checks. That is an issue for other legislation or processes for the issuance of checks by Disclosure Scotland and the ability or inability of Disclosure Scotland to have a process of updating.
If that is the case, why is there confusion? Why are there so many concerns? What can you do to allay such concerns as quickly as possible?
First, you ask why there are concerns. I think that the act has acted as a touchstone for all the concerns around child protection and its impact on the voluntary sector and others. Over two or three years, there has been growing concern about the impact of child protection measures more broadly and the act has been a touchstone, although none of the issues flows from the act.
I am well aware that the witnesses have had a baptism of fire this morning. I am sorry about that, but the issue is important and we must deal with it. Obviously, you will convey to the minister the concerns that have been raised, and the committee will want to consider what it should do. I thank you and your colleagues for the time being.
When is the Subordinate Legislation Committee due to consider matters?
On 21 December.
So we could have a report from the committee.
The report will be on the regulations only.
If we met next week, we could encompass some of that work.
We could kill two birds with one stone.
One way to proceed is to write to the minister before the meeting. I would like us to write to him about the content issue. I do not mind whether we meet him next week or on 12 January. The committee has no quarrel with the act's purpose, but guidelines do not mechanistically follow from the provisions of an act. The reason for guidelines is to address implementation issues in the context in which an act will be operationalised.
I do not think that we are at the stage of writing to the minister; the matter has become more urgent than that. The minister can read the Official Report of the meeting that will express both what you have said just now and what I and others have said in the course of the meeting. His officials will report back in any event. The committee needs to liaise with the minister, get a clear view of where we are going and perhaps indicate to him in pretty strong terms that the committee has major concerns that need to be addressed by more than reassurance. We need positive action on a series of detailed implementation issues, not least the issue of guidance.
I agree with your recommendations, which are appropriate. Can we also ask the clerks to look at the parliamentary procedure in this situation? Although the commencement order does not need to come before Parliament, the regulations do. The idea that we get to discuss the regulations two days after they come into force is a farce: if we had any concerns about the regulations we could do nothing about that. We are concerned about the commencement order, which is connected to the regulations and it is meaningless if the regulations are not approved. I am very unhappy about the timescale with which we were presented for what is a clearly contentious matter. The minister will know that the Parliament has concerns because of the evidence that we have been taking. I would like us to be aware of those issues, and if necessary, we should send a note to the parliamentary business managers about the process in connection with the regulations.
The regulations have come to us earlier than they would normally have done, because we should receive SSIs after the Subordinate Legislation Committee has looked at them. I asked for the matter to be put on our agenda sooner. Commencement is a different matter.
Exactly. What you describe even compounds the problem. There is also a concern from a policy point of view—perhaps we are trying to close the stable door after the horse has bolted.
The regulations come into force on 10 January. If we are to discuss with the minister the possibility of revoking the order, that date would be affected. We need to see him in advance of 10 January. We cannot have the order coming into force and then say afterwards, "By the way, it didn't really matter because it didn't really come into force." We need a decision prior to Christmas.
We seem to be heading towards a meeting of the committee next week, if that can be arranged. I ask Martin Verity how many days' notice we have to give.
There is plenty of time to give notice of the meeting; the agenda must be published in the Business Bulletin the day before the meeting.
Can we liaise with the minister now—we will see him later anyway—and see if we can get a date next week for such a meeting, preferably after he has had a meeting with the voluntary sector? If that is not the case, we will want to have the meeting anyway.
The difficulty with some dates is a potential clash with other committee meetings. A room will be available next Wednesday morning at the normal time.
Wednesday morning would be the most obvious choice.
That would not clash with members' commitments to attend other committee meetings.
Procedurally, if we wanted to do anything with this legislation, we would have to publish it in the Business Bulletin for Thursday next week.
Do you mean if we wanted to do anything with the regulations?
We need a note about the parliamentary procedure. We might not want to do anything with it, and I am not saying that we should, but we cannot be prevented from doing so.
Let us ask Martin Verity to produce the note. My recollection is that, although the committee can make a recommendation, it is up to an individual member to lodge a motion to annul under the negative procedure.
A member can lodge a motion to annul with the chamber clerks at any time. That motion would recommend to this committee that nothing further should be done under the regulations and the motion would then be debated at the committee meeting for up to 90 minutes. The deputy minister in charge of the regulations would be entitled to attend the meeting and participate in that debate. If the motion were agreed to by the committee, the Parliamentary Bureau would be required to lodge a motion in Parliament to propose that nothing further should be done under the regulations.
Would that have to happen before 10 January?
That is the point. Let us find out the position on the timescale of that. I am not suggesting that a motion to annul should be lodged, because we should not make a premature decision before we have heard from the minister, but if we decide to lodge such a motion and we have a meeting next week, will there be sufficient time for the motion to be considered by the Parliament before 10 January, given that the Christmas recess will start next week?
There is not sufficient time before 10 January. If the committee decides next week that it would be advisable for a member to lodge a motion to annul, the motion will come back to us on 12 January. That is after the commencement date, but that is normal with SSIs and we would be within the parliamentary timescale for consideration of the instrument. The committee could go ahead if it wanted to.
So there would be an element of confusion for a period, but the procedure would be technically correct.
Yes.
That was a tortuous session, one way and another. We had intended to deal with a preliminary, minor matter before the main business of the day.