Official Report 241KB pdf
Good morning. I welcome members to this meeting of the Education Committee. As always, when we are in public session, people should make sure that their mobile phones and pagers are turned off.
Thank you for meeting today; I welcome the opportunity to be here. As you say, I have had discussions with the voluntary sector.
I would like to clear up one or two preliminary aspects. You have said that the retrospective checks are not coming in at the moment, but the committee has longer-term concerns about that because of the sheer numbers of people involved. Could you undertake to discuss the matter with the committee before the commencement order is laid?
It is clear that we are going to have to have considerable discussion about retrospective checks. I intend to come back to the committee to explain what is eventually agreed.
Can you share with us the names of the organisations that you met recently? In last week's evidence, an issue was raised about the appropriateness of some of the organisations in terms of how representative they were of the interest groups involved.
On Tuesday, I met the Scottish Council of Voluntary Organisations. On Monday, I talked to a representative group comprising Mr Duffy from the Scout Association, Mr Thomson from Volunteer Development Scotland, a lady from YouthLink and two other groups—
Children in Scotland and sportscotland.
That group was as representative as we could make it, given that it was brought together at relatively short notice. However, the representatives brought with them the concerns of others.
If I understand correctly the evidence that we have heard, the substance of the matter falls into two bits. As you rightly say, there was a concern that everything should be in place so that the organisations on the ground and the headquarters offices had all the information. It was also felt to be important to ensure that account was taken of any organisations that do not fit into clear categories. That is helpful. However, questions were raised about whether the information would be adequate and whether the guidance would be appropriate in relation to such issues as working under supervision pending disclosure and so on. Can you give us a clear indication, on the question of guidance in particular, of the position regarding agreement with the voluntary groups on all of that? Is the voluntary sector pack in a finalised form?
I tried to summarise the position at the end of my statement. Deferring section 11(3)(a) of the 2003 act until 11 April 2005 will help us to ensure the physical distribution of appropriate material. For example, a summary document will be prepared for the major training pack, which I believe all committee members have received. Therefore, rather than have to read the whole pack—it took me about an hour and a quarter to do so and I found it to be a particularly good document—people will be able to read the summary quickly.
I want to press you on the key points for guidance. The two main issues that emerged in discussion at last week's meeting—and in private discussion with voluntary sector groups—were working under supervision and normal contact with children. One appreciates the variability of the circumstances for which additional guidance and help is required, particularly for small groups.
Absolutely. That guidance issue is, as you say, a cause for concern. We intend, with voluntary sector colleagues, to ensure that guidance is incorporated in the two-page guide so that there will be a clear statement of how one should proceed in the circumstances under question. The issue was, as you said, raised by the voluntary sector groups. We will discuss it with them to ensure that we get the appropriate advice and information across.
For the avoidance of doubt, can we be clear that those particular matters are to be discussed further and that the terms of the guidance are yet to be agreed?
Yes. As I said, the two-page leaflet has not yet been produced, but it will be. It is a response to the points that were made in the two meetings to which you referred.
I have a couple of further questions, but I have rather dominated questions so far. Therefore, I invite other members to ask their questions first.
I am sure that the committee is pleased to hear that progress has been made on the concerns that were raised during last week's meeting. Maureen Verrall advised me during that meeting that it would be necessary either to defer the whole act or not to defer it at all. Has the position shifted in terms of what is now possible?
Yes. Having discussed with the voluntary sector its concerns, we have found the means of taking out until 11 April the element in the act that they found most difficult. We are, in effect, striking a balance between those groups' concerns, the desire of organisations that are ready to proceed to do so, and our wish to commence the act, given that it is now 14 months since the act was passed. It was Parliament's intention that we do so. Therefore, by means of an amending order, we will take out section 11(3)(a) until 11 April. That will take out the element that gave most cause for concern to the voluntary sector. When speaking to them about whether that would be a way forward, we found that they welcomed the proposal, which we now intend to implement.
I also want to ask you about guidance. We were told last week that a separate set of general guidance was being produced for everybody. It was supposed to be on the Executive's website by the end of the week. Is that guidance there?
It is there.
We met representatives of Disclosure Scotland on 27 October, and we discussed guidance in respect of the Police Act 1997. It appeared that there was fairly little guidance about who needed to be disclosure checked and under what circumstances. It is clear that many authorities and other bodies are erring on the side of caution, owing to the lack of guidance. Brian Gorman told us:
Disclosure Scotland has been in regular contact with the Education Department, and has confirmed that it is in a position to proceed. For the purposes of accuracy, I will ask Maureen Verrall to give you some more detail.
The guidance that we are producing and the question of which positions need to be checked relate to the interaction between the Protection of Children (Scotland) Act 2003 and the Police Act 1997. The 1997 act effectively gives us the power to set aside the Rehabilitation of Offenders Act 1974 for certain positions in order to disclose information about spent convictions under certain circumstances.
I appreciate that, although people have been getting disclosure checked for some years now. The 2003 act brings in additional concerns, because there is a new criminal offence involved. The procedure for checks has been in place for some time, however, and there has been a fairly rigorous application of disclosure checks in some parts of the country. It is that additional anxiety, on top of people's experience of disclosure, that has created a problem.
The Police Act 1997 does not require anybody to be checked; it enables checks to be done if people consider that necessary. It is not the regulations under the 1997 act that define the positions that need to be checked; it is the 2003 act that does that.
So why have people been getting disclosure checked for several years?
There are of course some requirements under the Police Act 1997. However, in relation to the concerns that members are raising, the guidance that needs to be issued relates to the definition of child care positions under the 2003 act. It is the 2003 act that is relevant for people who are asking whether, when the act enters into force, they will have to check, for example, everybody organising walking buses, every member of a parent-teacher association—even if they never come into contact with children in that capacity—every member of a scout group or anyone who runs a disco at a school youth club, even if they are just there as a disc jockey, for example. As I understand it, what is being asked for is the guidance relating to the 2003 act coming into effect. The two acts are connected but I am not sure that separate guidance on the Police Act 1997 is what is required.
What I am proposing is general guidance for the lay person about when they need to be disclosure checked, and that the guidance should be in a relatively simple form so that people know if they need to be disclosure checked, whether they are in a local authority or a voluntary group or whether they are people such as councillors and MSPs who go to talk to children about their jobs. People are asking for a clear and simple form of guidance that indicates what needs to be done and when it might be a criminal offence not to have a disclosure check done. If that sort of guidance could be made available to everyone, it could prevent some of the rather ridiculous stories that we are hearing at the moment about people not being allowed to do things.
Indeed, and it is precisely that type of point that a number of the voluntary bodies have raised with me in the past three or four days. The purpose of producing what I characterise as two-page guidance is that that will be one of the objectives that the guidance will cover.
In the lift on the way up to this meeting, one of our colleagues told me and Wendy Alexander about a constituent who had a knife in his car when it was serviced, and now he is not allowed to go into his children's school. That is the type of thing I am talking about; people are getting over-anxious because they do not understand how the legislation should work. It is a crazy situation.
Indeed. There have been some headline-grabbing stories—some of which have involved Santa Claus—and we are well aware of those.
I have two questions for the minister. First, he will be aware that there is no motion to annul the order before the committee this morning, as far as I know. Does he accept that, in the past, ministers have often refused to interpret the law, saying that that is a matter for the courts? However because this is such a sensitive matter, does the minister accept that there is a case not just for guidance, but for guidance as to best practice? The danger is that local authorities, charities and voluntary bodies might be inconsistent in how they interpret the law. They might interpret it in several different ways. If guidance can be given as to best practice, that might be of considerable assistance.
I entirely agree with Lord James. Ultimately, it is up to the courts to decide as to scope and who is covered. However, I reassure him that we are talking to the Convention of Scottish Local Authorities directly about interpretation and we will address the points that he makes. We seek to ensure that the eventual guidance will point to how to proceed and, of course, to best practice. That must be the objective. Lord James is correct that it is up to the courts. In any legislation, it is the courts that will make the final decisions as to scope.
I thank the minister for his response.
Part of what we must do, moving ahead, is keep in close contact with all those organisations and their representatives, as we tried to do previously. The engagement will need to continue because of the retrospective checks and how we implement the will of Parliament in that regard. You can be assured that there will be development over the course of the next year.
I appreciate the minister's efforts to meet the voluntary organisations and discuss the issue, but I am sure that I am not the only member who has been contacted by volunteer centres that have concerns that I do not think are being answered. I will raise a couple with you.
What is your question, Rosemary?
My question is: what do I say to the organisations who come to me? What guidance do I point them to? What reassurances can I give them?
At the outset, I should say that we all value the immense contribution that the voluntary sector makes. The examples that you give are important and we would want there to be continuing clarity about how to proceed. That is why, at the request of the voluntary organisations, we have agreed the action that we are about to take—to suspend section 11(3)(a), to provide a three-month period in which there is no offence. Equally, that will give time for the leaflet that the voluntary sector has prepared to be distributed. It will also give time for the training pack to be distributed. Further, it will enable us to send out the additional leaflet that will assist people to make the initial assessment as to whether people are covered by the act.
The substance of Rosemary Byrne's point goes a bit further than that. The letter that I have had from the Volunteer Centre Edinburgh, which I think is the one Rosemary was referring to, says specifically that the centre is concerned about taking on young volunteers to help in the charity shop.
We are bound by what the act says, and it is my understanding that the act would cover that particular situation.
Is there anything we can do to have further discussions with people and to help them understand the situation? We could speak to representatives from YouthLink Scotland, for example, which is not one of the usual organisations.
I am happy to meet it early in the new year and to work on the way forward. However, you must understand that Parliament passed the act and that the Executive must implement the intention of Parliament.
I am stunned by the complacency that is being exhibited here and by the fact that the meeting that was hastily arranged in the past few days has resulted in a change that we were told only last week was legally and technically impossible.
I reject a number of the points that you have made. The first and most important thing is that officials, in all good faith, gave you advice and evidence last week. In fact, a way was found to address the specific concerns that were raised with us. That required some detailed work, research and legal advice, which was sought after last week's committee meeting and after the discussion with the voluntary sector. I would like to make it clear, as I did before, that a number of voluntary sector organisations—indeed, a number of organisations overall—are ready for 10 January. We have been able to achieve implementation of the act from 10 January, but with a suspension of the criminal offence element under section 11(3)(a). That is a simple, straightforward means of addressing some of the voluntary organisations' main concerns.
What lessons have you learned?
We have now reached a position where we will achieve implementation of the act from 10 January. We have addressed the concerns of some voluntary organisations, found a way forward and understood how we need better to engage with the voluntary sector, just as the voluntary sector needs to engage better with the process of implementing the legislation.
What specific lessons have you learned, minister? In particular, concerns were raised last week that volunteer-led organisations seemed to be missing from some of the debate and consultations that you have been having. Bearing in mind that we have been told by Disclosure Scotland that it anticipates one Scot in eight being caught by retrospective checks, the scale of our current concerns will be as nothing compared with what you have put off with regard to retrospective checking. So we need to—
Forgive me, but I am not quite clear about your line of argument. Is your proposal that we should not do what we have done and that we should implement the whole thing, including retrospective checks, from 10 January? What is your suggestion? I think that we have taken a sensible way forward. As I said, given what Parliament passed, the retrospective checks will be the subject of considerable further work. We have undertaken to do that with the voluntary sector. We always knew that some further discussion would be necessary. We also have to take on board the recommendations of Sir Michael Bichard. We shall need to factor those in as far as retrospective checks are concerned, and we intend to do that. I think that the way forward that we have come to is one that has commanded widespread support from the Scout Association, youth clubs and Girlguiding Scotland—those who are represented around the table.
I do not want to drift too much into the retrospective checks, to which we shall return on a future occasion, but I take the point that has been made.
I am pleased with the actions that the Executive is taking this week. In fact, I think it is slightly unfair of members to criticise the Executive for doing exactly what we have asked it to do, to try to cut through the confusion and ease some of the anxiety. Given that the Executive has shown some movement, I think that it should be congratulated rather than condemned. However, we are obviously in a difficult situation, and I and other members of the committee are worried about the anxiety and concerns that have been created. It is a difficult task that the Executive is engaged in. The act introduces a series of potentially severe penalties on the voluntary sector. We are trying to put those protections in place while not putting off volunteers from their efforts. There is undoubtedly a tension there.
There were a number of points in that question, and I shall try to cover them all. Volunteer Development Scotland reports in a recent survey that 83 per cent of people surveyed would not be put off by the need for the checks. I understand that the total number of volunteers actually went up last year, and that must be borne in mind. However, we will clearly look at the effects of the legislation. As I said to another member, the Executive fully values, as we all do, the immense contribution that volunteers and the voluntary sector make, so we will clearly have regard to on-going work to check the impact on volunteering numbers.
I had a point about who is penalised.
That is covered by section 20 of the act. I am advised that offences by bodies corporate, not by individuals, are covered and would be affected. However, because this is a legal matter, Mr McNicoll may be able to help us out on that specific point about section 20.
If an offence appears to be committed by a body corporate, section 20 of the act specifies who within that organisation is responsible for the offence. If the body is a local authority, partnership or association, the act sets out in each case which individual would be held responsible for the actions of the organisation. That is laid out in the act, it has clearly been determined by Parliament and is not open for change by way of regulations.
For the avoidance of doubt, could we be clear about what a body corporate is in that respect? It does not sound like the voluntary sector, although I am sure it is included in some shape or other. What is a body corporate?
The voluntary sector would be covered by the unincorporated associations. The section tries to cover every organisation that could conceivably be covered, and it starts off with a body corporate. However, you are quite correct to say that the provisions relating to unincorporated associations are probably the ones that are most applicable to the voluntary sector. Again, the act sets out who is responsible when an offence is committed by that association.
The point I was trying to get at is that there is a role for the Executive in sending out a message that, although it is a serious matter and the act creates a serious offence, the act is not aimed at penalising or criminalising members of the voluntary sector or volunteers who give up their time to work with young people or others. It is a difficult task to do, but I feel that there is room for guidance there. People who give up their time to volunteer do not have the energy to look through the legislation in detail and they may be slightly scared by the fact that they are getting themselves into deep water or unfamiliar territory, and they could fall foul inadvertently—because ignorance is no excuse before the law—of a very serious offence. There is room for the Executive to produce guidance that encourages people to volunteer and suggests to them that, although it is a serious matter, it is not looking to prosecute them for doing a very good job. I shall leave that point there.
That final point is an important one. In essence, it is the kind of concept that was put to me by the Scottish Council for Voluntary Organisations. I told the SCVO's chief executive that we could look at that kind of point in discussion with that organisation, and that we would then be better placed to carry out the sort of exercise that you are postulating. I would like to discuss with the voluntary sector in more detail the sort of concepts that are at issue and the practicality behind that. If it is helpful, convener, I could write to the committee or come back to report on our progress in the new year when I have had those discussions. One of the lessons that we can learn from all this would be about having a good process or template for future legislation. The SCVO is well placed to do that.
I have one technical point. The amendment that you are introducing to defer section 11(3)(a) is very welcome, but does it actually have to appear before us as a piece of subordinate legislation?
It is a commencement order, which any minister can sign. I believe that it is in draft form, and it has not been signed because I wished to come to the committee first to explain the proposal to you before any signature was applied to any piece of paper. It will be done either later today or tomorrow.
Before we leave the research point, I would like to be clear about what is being suggested. The committee had in mind some in-depth research of its own, but I think that we would be keen to encourage the Executive to undertake not just general research of the kind that shows that 83 per cent of volunteers hold a certain view, but in-depth research that involves discussion with parent-teacher groups, youth organisations and the like, to find out whether there have been examples on the ground of the different sorts of situations in which people might be put off. Charity shops have been mentioned this morning: that, too, is an area that could also be important.
Forgive me. I was not trying to pre-empt any work that the committee wanted to do. Nor did I want to pre-empt discussions with the SCVO. However, if the committee would like to involve a couple of members in that discussion, I am sure that the SCVO would be happy to include them.
It is actually the other way round. We were wondering whether the Executive proposes to do that kind of research at its own hand. You are better equipped than we are for that sort of process, and it clearly has to be done.
I have an open mind on that. I would like to have an initial discussion with the SCVO and then come back to you, either by letter or in person, to discuss that specific point.
Like other members, I welcome the delay, which will offer welcome relief to the brown owl who, among other things that she is meant to do tomorrow, will no doubt have to go to a post office to pick up a copy of the details, but at least she will discover that it does not have to be implemented before we return from our Christmas holidays.
Just so that we can be clear, YouthLink Scotland, Volunteer Development Scotland, the SCVO, Children in Scotland and the Scout Association were involved, and we felt that that was a fair cross-section. I take the point that you make. Hindsight is a perfect science. There was no intent to exclude or to downgrade the efforts of the voluntary sector. It was simply a process whereby people were available who represented national bodies, and one hopes that they represent—I am sure that they do—the broad interests around the table, but there was no intent to exclude anybody from that process. I take the point, and in future discussion others are welcome to be included if they wish to be included. If you have specific suggestions and feel that certain people have been excluded, please let me know.
The issue was that there should be a volunteer-led organisation. We heard last week that sportscotland, a non-departmental public body, was on the committee. We were just looking for an assurance that, in future, given the anxieties that have been expressed and the purpose of guidelines, a volunteer-led organisation would have a place in those discussions.
I think the person from sportscotland volunteered their services and others assented to that. I do not know; I was not party to the detail of that. However, your point is well made and completely taken.
I am happy to let that rest.
No. If we had, I think that we would have come to the Parliament or to this committee, or we would have sought a means of doing so through the appropriate channels. As we go forward in the light of experience, in circumstances that are as yet unforeseen it is always possible that we may choose to take an opportunity to do that. The committee itself could also recommend changes to Parliament.
Thank you. I shall leave it at that.
I would like to ask the minister a quick question, to which I do not necessarily expect an answer this morning. Will he consider the possibility of establishing the equivalent of a helpline for local authorities, charities and voluntary bodies, so that, in cases where there is doubt as to the most appropriate way forward, effective guidance on best practice can and will be given?
I am happy to say that there is a helpline, and I can give you the number: 01786 849777. There is also an e-mail address, which is on the leaflet. I shall leave the proof with the clerk and we shall distribute copies in due course.
We received this morning from the Scottish Parent Teacher Council a bundle of correspondence between Judith Gillespie and a number of local authorities. It is quite varied, but the issue of gold bottoming the legislation appears to arise out of it. The legislation is one thing, but what councils do in terms of allowing council lets, their attitude to boards and what they advise organisations to do is another matter.
Indeed.
You mentioned a discussion with COSLA and I wonder whether there is any way of resolving the issue in a way that is compliant with the terms of the act, that gives due recognition to the duties of councils, such as they are—I do not think that they have duties under the act in that context—and that allows sensible decisions to be made by groups such as parent-teacher associations.
You quoted a number of examples and I am advised that we are also aware of those examples. In the areas that you mentioned, some local authorities are not taking the line that is suggested. As I said, we are trying to establish a map across the 32 authorities that can tell us precisely who is doing what. We are in discussion with COSLA about that and we will develop those discussions to try to iron out some of the particular procedures that are in place and some of the formulations that certain authorities have placed on the way in which they need to proceed. That work with COSLA is developing to try to ensure greater consistency of approach.
I am a great believer in local authorities' discretion and independence, but in the context that we are discussing it seems ludicrous that there should be major differences of approach in different parts of Scotland. Does the Executive have the power to give instruction or guidance to local authorities on the matter? If you cannot enforce the approach and make it happen, there will be on-going difficulties.
I am pretty sure that we do not have powers to enforce, but I need to give that a bit more consideration. The discussion with COSLA will focus on exactly what you suggest and try to ensure that there is consistency of approach across the 32 local authorities. It is obvious that there is currently no such consistency and I want to ensure that there is, because inconsistency of approach will cause confusion, as you said.
The Scottish Parent Teacher Council might usefully be involved in the discussions. There are quite a lot of organisations that do not provide children's services in the way that the Scout Association or other youth groups do, which should nevertheless probably be involved.
Will the minister explore insurance and include insurance companies in the discussions? Organisations that seek lets from local authorities or other bodies are concerned about what is happening on the ground. Regardless of the legislation, organisations cannot secure insurance for what they do, because insurance companies' interpretations are tighter in practice than is required by the law. That is another barrier to progress on volunteering.
Issues to do with insurance obviously involve commercial decisions. I think that the matter has been raised with Executive colleagues outside the context of the 2003 act. The matter has certainly been raised with the Department of Trade and Industry, because insurance is a reserved matter. As you suggest, there have been rather strange examples—in one instance, a Santa Claus needed insurance and Disclosure Scotland checks. If it would help to have discussions with the insurance industry, we can talk to the Association of British Insurers—I knew the association's chairman, although I do not know whether he is still in post. I would be happy to engage with the current Scottish chairman if that is helpful. Ultimately, we cannot intrude into commercial decisions, but your point is well made and we will see what we can do.
Thank you for your evidence. In fairness, I should say that the agenda item has again generated somewhat lengthy and involved investigation by the committee. I do not think that anyone doubts that the issue is tricky. On one hand we are faced with the implementation of the 2003 act, which was passed in the first session of the Parliament and must be taken as the starting point for such matters. On the other hand, there is genuine concern in the committee about the implications of the act and its possible detrimental effects on volunteering and voluntary organisations in the youth field. The committee wants to leave you with the message that anything that can be done to reassure people, avoid unnecessary hassle and simplify the situation—we did not consider multiple checks this morning—would be extremely welcome. Thank you for the efforts that you have made on the matter and for your attendance. I also thank your officials, Maureen Verrall and Gordon McNicoll, for coming.
Thank you for giving me the opportunity to speak to the committee. I welcome our helpful discussions. For the purposes of accuracy, I should say that the deferment of section 11(3)(a) of the 2003 act would apply not just to the voluntary sector but to all sectors.
Under the next agenda item, the committee will continue its consideration of the Protection of Children (Scotland) Act 2003 Determination Regulations 2004 (SSI 2004/523), which we considered at last week's meeting, and consider another relevant instrument. Do members want to take further action as a result of the evidence that we heard this morning? We have received an assurance from the minister that various things will happen in relation to discussions on guidance and that he will come back to the committee to discuss the provisions on retrospective checks before they are implemented. We will have an opportunity then to take up particular issues. We could consider the matter at our meeting on 12 January, which is technically the final day on which we could deal with the subordinate legislation. However, the committee might think that we have had a good exploration of the issues today and at our previous meeting and that we could defer consideration until the minister reports back to us on retrospective checks and further guidance. Is that approach acceptable to members?
That would be an appropriate approach. The issue is not the content of the regulations but the process and management of the implementation of the 2003 act and the commencement order that we discussed at our meeting last week. The Executive has now offered an alternative route.
It might be sensible to put the matter on the agenda of one of our meetings in January or February, before the February recess, so that we can ascertain what has happened. Euan Robson promised to report to us on the provision of guidance, which might provide a useful opportunity for us to review the situation on what is a difficult issue.
The minister seemed to leave his options open on a number of areas—I think that any one of us would have done the same thing in the circumstances. Will the clerks take a careful look at his evidence and note for us, as an aide-mémoire, the issues on which the minister said that he would reflect or come back to us? I note that he said that the 2003 act is fit for purpose in all respects and will have no unanticipated consequences. At the root of the matter is the fact that large parts of the voluntary sector do not share that understanding, but at least the Executive's position is clear on that as well as on a variety of other matters. A brief aide-mémoire compiled from the Official Report would be enormously helpful.
I presume that the Official Report of the meeting will be available at some point during the Christmas recess, so we will be able to consider it in detail.
Your suggestion that we put the matter on our agenda is a good one, because otherwise such matters can slip. We should make a commitment to come back and consider the guidance.
That would be appropriate, but it might best be done in the context of the potential research that we or the Executive carry out, whereby we can drill down into the issues. Euan Robson said that 83 per cent of people said that they were not put off volunteering by the act—
That means that one in six people is put off.
Quite. We should drill down behind the figures, but we must have more than just anecdotal evidence and we should seek evidence at a later stage, when implementation has begun and we can see where we are going. If there have to be amendments to the act, the process will take a little time.
Some committees carry out post-legislative scrutiny.
Absolutely. I am just suggesting the context of our consideration of the 2003 act, which would fit in, first, with the minister's report to us and secondly and perhaps more relevant, with the research that we propose to undertake—under one heading or another—to give us material with which we can work. We are all struggling with the implications of the act.