Protection of Vulnerable Groups (Scotland) Bill: Stage 3
The next item of business is stage 3 consideration of the Protection of Vulnerable Groups (Scotland) Bill. In dealing with the amendments, members should have with them the bill as amended at stage 2, which is SP bill 73A, the marshalled list, which contains the amendments that I have selected for debate, and the groupings that I have agreed.
For the first division on an amendment, the division bell will sound and proceedings will be suspended for five minutes. The period of voting for that division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate; all other divisions will be 30 seconds.
Section 17—Information relevant to listing decisions
Group 1 is on findings of fact in relation to relevant inquiry reports. Amendment 11, in the name of the minister, is the only amendment in the group.
I lodged amendment 11 in response to concerns that the convener of the Education Committee, Iain Smith, expressed about the use of findings of fact of inquiries of the Scottish Parliament for the purposes of making listing decisions. In the bill as introduced, such findings of fact were one of several categories of findings of fact that could be relied on, and people would be barred from challenging them at a later point. The issue is whether an individual should be able to contest those findings of fact when they are under consideration for listing.
The bill identifies certain categories of findings of fact that cannot be contested by an individual who is under consideration for listing, such as findings of fact by a court or in proceedings by a regulatory body. It is important to say that all findings of fact, other than those on which convictions are based, can be contested on appeal against listing.
The point was made to the committee that a Scottish Parliament inquiry operates in a manner that is rather different from what happens in other situations in which findings of fact cannot be contested. For example, the way in which matters are deliberated on and evidence is selected for consideration is rather less like the judicial and quasi-judicial processes of findings of fact that the bill protects. Furthermore, the individual concerned may not have the opportunity to challenge the findings of a Scottish parliamentary inquiry.
Amendment 11 will take us to a sensible position whereby inquiries of the Scottish Parliament can form the basis of a referral to the central barring unit—it would be unacceptable if that possibility did not exist as a result of a major parliamentary inquiry—but findings of fact by that inquiry will be open to challenge by the individual concerned.
I move amendment 11.
Robert Brown has eloquently explained the purpose behind amendment 11, which was lodged in response to an amendment that I lodged at stage 2.
I want to put on record our appreciation of the positive way in which the minister has responded, through the amendments that he has lodged at stage 3, not only to the Education Committee's stage 1 inquiry, but to the points that were raised at stage 2. As a result, these stage 3 proceedings will probably be much easier than we feared they would be some months ago. I thank him for his responses and for accepting the point that I made at stage 2.
Amendment 11 agreed to.
Section 25—Application for removal from list
Group 2 is on removal from list: prescribed period. Amendment 29, in the name of the minister, is the only amendment in the group.
I thank Iain Smith for his kind words.
Amendment 29 clarifies, in response to concerns that Iain Smith expressed, arrangements for applications for removal from the list. As it is currently drafted, the bill allows ministers to prescribe minimum periods before individuals can apply for removal from the list. The committee's discussion of the matter showed that a certain ambiguity existed.
The amendment clarifies that such periods cannot be prescribed in relation to specific individuals. It means, for example, that ministers cannot specify that John Smith cannot apply for removal for seven years, but that Joe Bloggs has to wait only four years. It was never the policy intention to set specific time limits for particular individuals after listing them. I was therefore happy to lodge amendment 29, which puts the matter beyond doubt.
That said, the minimum period might depend on the circumstances relating to a listing decision. For example, the prescribed period for individuals who are listed for a childhood offence may be shorter than that for individuals who committed an offence as an adult. However, that will be achieved through regulations that will identify particular sets of circumstances in advance, rather than particular individuals in retrospect.
I move amendment 29.
The issue has exercised me throughout our consideration of the bill, and I am still not entirely convinced that the wording that the minister has come up with is entirely clear and that no areas of doubt exist.
Section 25(3) states:
"An application for removal from the list is competent only if … it is made after the end of such period as may be prescribed (beginning on such date as may be prescribed)".
I am still not entirely clear how amendment 29 relates to the words
"such date as may be prescribed".
The problem is that one may want to consider the date on which an offence was committed, rather than when the person was convicted, given that there could be a considerable time lapse between those two dates. If two people were in similar circumstances but one person was convicted more quickly than the other, the person who was convicted more quickly would be able to apply for removal from the list more quickly. There seems to be an inconsistency. I am not sure how one would apply the provisions in the section and the amendment to a time period and a
"date as may be prescribed".
Perhaps the minister will clarify the matter.
We are getting into a somewhat esoteric dispute about the amendment's wording, but the difficulty that Iain Smith mentioned does not arise.
The amendment states:
"A period may not be prescribed under subsection (3)(a) in relation to a particular individual."
That refers to both prescriptions. The distinction is that which I explained, between prescribing things at the time of listing an individual and laying down circumstances in advance that apply generally to certain classes of people.
Obviously, these matters will be the subject of regulations and any further issues relating to them can be explored during the consultation on the regulations. However, I do not think that the difficulty that Iain Smith fears arises.
Amendment 29 agreed to.
Section 34—Organisations not to use barred individuals for regulated work
Group 3 is on organisations not permitting barred individuals to do regulated work, et cetera. Amendment 1, in the name of the minister, is grouped with amendments 2, 32, 33 and 7.
Amendment 1 is a more substantive amendment, which relates to one of the key concerns and issues for debate during the bill's passage. Retrospective checking has been hotly debated and the subject of media dispute since the bill was introduced in September. I will therefore highlight what retrospective checking is and why it is such an important issue.
Essentially, under any scheme, such as the existing Protection of Children (Scotland) Act 2003 arrangements, people who come into the workforce are checked when they do so. Obviously, an increasing number of people will therefore be checked, but that still leaves a number of people who are already in the workforce and have not been the subject of checks. Some of those people may have been in the workforce for many years. Clearly, there will be an element of risk if they are not brought into the system, and the extent of that risk and how we should deal with the matter proportionately must be considered. It is reasonably clear that if we introduced retrospective checking within six months or a year of passing the bill, a bulge of people would be added to the system, which could cause a breakdown of arrangements for those at the Government end and for organisations and voluntary groups that must deal with the legislation. By the same token, if it took 20 years to introduce retrospective checking, the issue would be almost incidental.
The technical effect of the amendments will be to move the provisions on retrospection from being commenced by commencement order, in which parliamentary involvement would be very limited, to being commenced by regulations. That will allow us to deal with the issues that have been raised about logistics, administration and cost to organisations and the Executive of including existing employees within the scheme. The amendments follow up the commitment that I made to the Education Committee at stage 2. We have no interest in implementing the scheme in a way that damages voluntary organisations or other organisations.
I recognise that the phased introduction of including the existing workforce within the scheme will be an absolutely critical factor in the successful implementation of the bill. We have always been clear that all aspects of implementation of the bill will be carefully considered and consulted on. During the debates on retrospection at stage 2 and stage 1, we said expressly that whether and how to proceed, and at what rate and in what order, would be the subject of careful consideration and consultation. I hope that that assurance has been put clearly on record and in my correspondence with the Education Committee.
The amendments will mean that retrospective checking cannot begin until ministers have made regulations that have been approved by Parliament through the affirmative resolution procedure. That allows the maximum possible level of parliamentary scrutiny for what is undoubtedly the most significant issue of controversy in the bill for individuals and organisations across the country.
I am happy to move the amendments because it is in everyone's interest that retrospective checking is commenced in a way that commands widespread support and confidence. The fact that Parliament will be involved through the affirmative resolution procedure will, on top of the statements that I have already made, send a strong signal to whoever may be the minister in a future Administration that the matter can be sorted out only by going through a procedure that involves the parliamentary process and the Parliament's committees in a way that allows maximum scrutiny.
Against that background, I move amendment 1.
Amendment 1 is a key amendment in today's stage 3 proceedings as it cuts to the heart of the concerns that have been raised about the bill from the start. The bulk of those who work with children are already in post, but many of the provisions in the bill will affect only those who enter new positions.
Clearly, the issue of retrospective checking has been key to everybody who has been involved with the bill. In particular, the voluntary sector had severe concerns that the retrospection burden could be counterproductive to the needs of child protection and children's services, which are much needed throughout the country. I welcome the fact that the minister has responded to the committee's concerns about the issue.
The Scottish National Party's view was that the bill should have been kept back until the consultation on retrospection had been completed, so that we could see the matter in the round and would know exactly what we were legislating for. However, given that we are at the tail-end of the parliamentary session, we recognise that some of the provisions in the bill as it stands should be introduced.
A key issue regarding amendment 1 is that we expect the consultation to clarify what the costs will be on voluntary sector capacity. It is clear from the evidence that we received that the statutory sector is geared up and ready to implement retrospection, so I suspect that the regulations should allow the statutory sector to move forward on retrospection more quickly than the voluntary sector.
That cuts to the heart of the issue about what constitutes a proportionate response. The issue is how we ensure that we do not allow loopholes for people who are already in post while ensuring that we have a manageable child protection system. I reiterate that the establishment of a central barring unit for disclosure checks will not, of itself, stop people harming children, but it will prevent those who seek to do so from trying to exploit children in their workplace.
It is important, however, that we recognise the concerns about retrospective checking that were expressed by voluntary sector organisations such as the WRVS. I look forward to a very robust consultation process. The use of the affirmative resolution procedure will place a burden and responsibility on future committees, which will need to deal with the secondary legislation on retrospection as seriously as they deal with primary legislation.
I welcome the minister's response to the committee's concerns on the issue, but it is regrettable that we are in this situation. We know from the implementation of the Protection of Children (Scotland) Act 2003—which was passed at the tail-end of the previous parliamentary session—that retrospection is a problematic issue that needs to be resolved. However, we need to resolve it on an informed basis. The committee asked the minister not to proceed to stage 2 until information on regulations and a further consultation had been provided. Although that was not possible, I believe that any future consultation should be informed by the experience of those organisations, such as Fife Council, that have embarked on retrospection. We should look at the statistics on how many people such organisations have found, as a result of retrospection, who should have been prevented from working with children. We need to consider such issues if we are to come up with a proportionate response.
In that spirit, the SNP will support amendment 1. The amendment provides a positive way forward by ensuring that the Parliament is allowed to conduct proper scrutiny of retrospection when the regulations are laid before the Parliament.
I agree with everything that Fiona Hyslop said. I believe that the minister has done the Parliament, voluntary bodies and charities a service by ensuring that affected bodies are consulted on the timescale for introducing retrospective checking and the fundamental character of such checks. I hope that, in the next parliamentary session, the regulations are considered with particular care, as they will be very important.
Many of the issues around the bill are to do with proportionality. Rules that may be reasonable to impose on someone who has one-to-one contact with children or vulnerable adults and in situations in which great care needs to be taken should not be applied in exactly the same way to those who are only in the presence of a group of young people along with other adults. There seems to be no proportionality in that way. Can the minister assure us that proper consideration will be given to ensuring the need for proportionality? The role that the individual plays should be taken into account, so that people who are only marginally included in the system are not involved in a lot of bureaucracy.
Can the minister also assure us that the voluntary sector will be given a fair shout when the various people involved are consulted? As has been said, the professional public sector is geared up for retrospective checking because it has lots of officials who can organise such things, whereas many voluntary organisations do not. I would not like the local government sector to outvote the voluntary sector in any consultation. Small voluntary organisations find it harder to come to meetings during the day to discuss such things.
I have great confidence in the minister, but we are being asked to have great confidence in future ministers, and a future Government might have a slightly nutty minister from the flat earth party. We are also being asked to have great confidence in the civil servants. Recently, I was given examples of the rules that civil servants produced following a somewhat similar bill two or three years ago. All those rules were so bad that they had to be totally undone and rewritten. We are being asked to have great faith in people in whom I do not have faith.
Can the minister give some reassurance on those points?
In response to Mr Gorrie's comments, I think that he has missed the whole point of the amendments. I am extremely pleased to see amendment 1, as I lodged a similar amendment at stage 2 that I did not press because the Executive agreed to reconsider the matter. The entire reason for lodging the amendments in this group is to allow Parliament to have another look at the issue. In doing that, the Executive is responding to concerns that the voluntary sector raised with both the Finance Committee and the Education Committee. The reassurance that Mr Gorrie seeks is in amendment 1. That is the purpose of it.
The Finance Committee—of which I was a member at the time—had significant concerns about the costs that might arise if retrospective checking was introduced too early. The concern was not just about the cost to the voluntary sector but about whether the system would be able to cope and whether there might be increased costs on the Executive.
Amendment 1 provides all of us with another chance to consider the system that is being introduced. For the subject committee, the amendment reinforces the opportunity—which it would have had anyway—to scrutinise the matter when it considers the regulations. The successor committee to the Finance Committee will have another opportunity to consider the matter because of the powers that that committee has to look at statutory instruments. The committees of the Parliament will be able to reassure themselves about the scheme. The amendment will also allow the voluntary sector, which raised its concerns with us, to be consulted on the implementation of the scheme. For those reasons, I very much welcome the amendment.
I also welcome the fact that the regulations will be introduced under the affirmative procedure, so they will require the approval of the full Parliament. The matter will be considered not just by committees but by the full Parliament. I hope that that will reassure the voluntary sector that the Education Committee and the Executive have listened carefully and responded to the sector's concerns.
I am grateful for colleagues' comments, but there is an element of overstating the point. As Elaine Murray rightly said, the purpose of amendment 1 is to deal with the issue. I have made strong statements from the start of the bill process about what will happen in relation to retrospection, including the costs. As Fiona Hyslop is well aware, the costs will be consulted on. Nevertheless, perhaps because we are at the tail-end of the present session of Parliament, or perhaps because of wider issues, there is a feeling that, as Donald Gorrie put it, members of the "flat earth party" might take over from Hugh Henry and me in the next session. It is open to the new Parliament to pass a new bill and to take an altogether different approach, if that is what it wants to do. However, there is broad all-party sign-up to the bill's general direction of travel, which is an important reassurance. The statements that Fiona Hyslop, Lord James Douglas-Hamilton, Iain Smith, Elaine Murray and others have made during the bill's passage about the direction of travel show that there is an all-party commitment to the proposals on retrospection.
When one has been stung by a bee once—the Executive probably was stung by a bee when it was dealing with retrospection under POCSA, although I hasten to add that that was prior to my involvement in the Education Department—it is not a good idea to put oneself beside the bees' nest another time to be stung again. We are well aware of the issues that arise with regard to retrospection, which is a complex, difficult and technically involved procedure. We want to ensure that we get it right. We have given every possible assurance that we will get involved with all the stakeholders. We should bear it in mind that the voluntary sector is involved in the procedure because, when the POCSA arrangements were being considered, that sector wished to be involved and said that it wanted the same protections that were to apply to the statutory sector.
I say to Donald Gorrie that it is a bit of a mistake to think of the voluntary sector as one organisation or as a sector that is made up of organisations with similar characteristics. The voluntary sector is enormously diverse: it has large, national organisations with bureaucracies that are as big as local authority bureaucracies; and it has small organisations that have no bureaucracy at all and which operate locally. Therefore, it is not helpful to view the voluntary sector as one concrete sector that has the same characteristics across the board. The point is that the voluntary sector and other stakeholders, of whatever size and shape, will be involved in the consultation. That will not, as Donald Gorrie suggested, be a matter of voting; it will be about considering the value of the contributions and dealing with the effects on organisations. That is exactly what we have said about the consultation.
As the Education Committee knows, although we have not produced the relevant regulations, we have produced the policy information that will be used to determine the regulations. That has given all stakeholders a flavour of what might be involved. That information sets out the choices on costs, the way in which retrospection will be handled, the timescales and other issues.
The debate has been useful, but I do not want to overstate the issue. We will consult on the issues of retrospection, including whether and how to proceed with it, at what rate and in what order. Everybody who has something to say will be involved in the process. We will take the necessary time over the matter and, I hope, produce measures with which everybody who is concerned is comfortable. In addition, if my assurances as the current minister are not sufficient, we will have reinforcement, or a double lock, as a result of amendment 1, which will mean that the measures will receive the maximum parliamentary scrutiny. That ought to give as much reassurance as possible to anyone who has a concern about or interest in the matter. I hope that people will take as having considerable standing the assurances from Scotland's Parliament on how we will proceed.
Amendment 1 agreed to.
Amendment 2 moved—[Robert Brown]—and agreed to.
Section 37A—Restrictions on listing in children's list
Group 4 is on the independent barring board. Amendment 3 is grouped with amendments 4, 6 and 10.
The amendments are relatively technical. During stage 2 consideration, Iain Smith—that man again—asked me to reconsider the references to the independent barring board, which will make barring decisions for England and Wales and Northern Ireland, with a view to making those references easier to follow. Accordingly, the amendments will tidy up the references to the IBB. My briefing note makes considerable play of the difference between acronyms and initialisations, but I will not bore the Parliament with that. The issue is about the standing of initialisations and when the first reference that explains what they mean should appear in the bill.
I move amendment 3.
Amendment 3 agreed to.
Section 37B—Restrictions on listing in adults' list
Amendment 4 moved—[Robert Brown]—and agreed to.
Section 48—Correction of inaccurate scheme record
Group 5 is on the review of information in scheme records. Amendment 30 is grouped with amendment 31.
The issue goes to the heart of the Bichard recommendations. After the Soham murders, an issue was raised about the failure of police forces to share soft information that they had about people and which could have been used to ensure that those people did not work with children. There is a question whether the Soham murders would have been prevented if that information had been shared, but the issue was raised and led to the Bichard inquiry and thus to the recommendations. In Scotland, we already have ways of sharing such information: POCSA and the Police Act 1997 allow for enhanced disclosures to include some soft information from police sources, with certain assurances about the reliability of the information. We have heard about the 5x5x5 check that police forces carry out into the reliability and relevance of such information.
By definition, non-conviction or soft information has not been tested in court. Therefore, information may appear on an applicant's disclosure that the applicant did not previously know existed in police records. I have examples of that from my casework. One person who applied for an enhanced disclosure check found out when the certificate came back that there was information that they had been seen to be involved in buying or selling drugs in a pub. The person denies that that ever happened, but the police held the information. The information was not disclosed to the person because the police are always gathering information about drugs activities as part of wider inquiries to try to catch dealers, so the person did not have the opportunity to challenge the accuracy of the information until they found it on their enhanced disclosure certificate. I know that I am not alone in having dealt with such cases. That person may be able to prove that they were not even in the pub when the alleged incident took place. There may have been a malicious allegation. In other cases, the police may hold information that is relevant to child protection, but which is not reliable. For example, a person may have been seen hanging round school gates. That may be true, but they might have a perfectly good explanation for that—for all we know, they might be dating one of the teachers.
There is a lack of clarity about the nature of the appeals that are possible when such information appears on an enhanced disclosure certificate or, under the bill, a scheme record. I am pleased that at stage 2 the Executive lodged amendments to section 48, which is on the correction of inaccurate scheme records, to deal with some of the issues. Section 48 now provides a clear way in which people can deal with two types of situation. The first is when there are issues of factual accuracy. For example, if a person's scheme record says that they have a conviction for speeding, but they do not have such a conviction, they will be able to request that it be corrected and, if there is a refusal to correct the record, the issue can go to the Scottish information commissioner. The second situation is when an issue arises about whether a conviction is relevant to a person's suitability to work with a protected group. There is now a clear procedure in the bill under which such a matter can be referred back to the chief constable, who will review the relevance of the conviction or piece of information to working with the protected group.
A third situation is the one to which I referred earlier, when the issue is the reliability of the non-conviction or soft vetting information that the police hold. The purpose of amendments 30 and 31 is to establish that that type of information is also subject to review by the chief constable under sections 48(4) and 48(5). The intention is to clarify the situation and to ensure that people who think that the police have inaccurate information about them can challenge that information, have it reviewed by the police and, perhaps for the first time, put their case to the police as to why that information is not valid.
I move amendment 30.
Iain Smith's point is fairly substantive, and I am grateful to him for raising it. The Executive has had some discussions with him and the Education Committee during the passage of the bill to try to flesh out some of the issues on accuracy.
Through constituency cases, colleagues will be familiar with issues around the information that is provided on an enhanced disclosure. Iain Smith mentioned one or two of the issues that have been raised with him. The Executive lodged amendments at stage 2 to clarify the rights of individuals to review such information and no further amendments to the bill are required. However, I will give members a bit more information about how the system works.
First, national guidance—in the form of a code of practice and a national manual for the recording and dissemination of intelligence material—provides robust arrangements for governing the collection and retention of information. That guidance is the basis of the Scottish police service's policy for the creation, review and weeding of records on the Scottish intelligence database. Information that the police gather is added to the database only after it has been assessed using a standard grading system that is used by all police forces throughout the United Kingdom; the 5x5x5 system grades information according to the reliability of its source, its accuracy and whether the source needs protection.
The 5x5x5 system covers information that is used for police purposes. That is not quite the same as what will end up on a scheme record, but it means that the accuracy of the information has been assessed before it is added to the Scottish intelligence database. That does not mean that information that cannot easily be verified will not be put on the database, but it means that an operational officer who assesses the information will be aware of its reliability and accuracy and will be able to treat it appropriately for their purposes.
The police have agreed national guidance on the disclosure of non-conviction information under the bill to ensure a consistent approach. That approach is underpinned by a quality assurance framework, which is being piloted in Fife and which will be rolled out to the other seven forces in the coming months. Her Majesty's chief inspector of constabulary for Scotland will audit compliance with the quality assurance framework as part of his regular inspections of forces, the results of which are published.
The amendments that we made to the bill at stage 2 clarified the fact that individuals will be able to ask for a review of non-conviction information that is included on a scheme record on the basis that it is not relevant, as well as on the basis that it is inaccurate. The short answer to Iain Smith's question about whether individuals will be able to challenge inaccuracies of the kind to which he referred is yes. Chief constables will be required to review the information that has been disclosed. If an individual is unhappy with the outcome of such a review, he or she can ask the chief constable for a review under the Data Protection Act 1998. That act is reserved and therefore it is not open to us to amend it, but it is in the background of such situations. If the request to the chief constable for a review under the act fails, the individual can ask the information commissioner—not Kevin Dunion, but the United Kingdom information commissioner, whose job it is to oversee the operation of the Data Protection Act 1998—to conduct an assessment. If the individual's complaint is upheld, the information commissioner can direct the chief constable to amend or delete information if necessary.
That is the broad assurance on the matter, but it may be worth while saying a little bit beyond that. An individual has the right to ask the chief constable for a copy of all information that is held about them, for which a £10 fee is payable. An individual may find out that the police hold information about them by way of an enhanced disclosure but, at any time, they can get a copy of any information that is held on them.
The chief constable is under a duty to ensure that the information that is held about an individual is accurate and is held for purposes that are allowed under the data protection legislation. I have explained that an individual has the right to explain what is wrong with the information, that the chief constable must consider the request for review and that the case could go to the information commissioner for an assessment. If the commissioner thinks that the law has been broken, he will give the police advice and ask them to solve the problem. If there is any dispute, the information commissioner can issue an enforcement order that requires the police to solve the problem.
An individual also has the right to take the case to court for judicial review following the commissioner's decision. There may be circumstances in which personal data, although inaccurate, accurately reflect information obtained from a third party. In that situation, the court will consider whether the police took reasonable steps to ensure that the data were correct, having regard to the purposes for which they were obtained and processed, whether the individual has notified the police that the data were inaccurate and, if so, whether the data indicate that fact. The court may order the police to amend or destroy the data or may make an order that requires the data to be supplemented by a statement that relates the true facts.
I hope that that provides wider background to this complex and difficult area. My principal point is that there is a procedure, which involves an application to the chief constable to correct or otherwise amend information, then an overview by the information commissioner under the Data Protection Act 1998 and thereafter an appeal to the court.
I am conscious that the minister is coming to the end of his remarks. Will he assure me that the procedures through which members of the public who have concerns must go to make appeals will be covered by guidance?
I am happy to give that assurance. The matter is complex. We will come to guidance shortly, but it is entirely appropriate that the links with the Data Protection Act 1998 be referred to in guidance so that the appeal or review mechanisms are clearly described for those who have to operate the bill. That is a central part of the information that we should give people in the guidance that we will draw up on the bill.
My main purpose in lodging amendments 30 and 31 was to get on the record the information that the minister has given and an assurance that the issues will be covered in guidance. In the light of the minister's response, I wish to withdraw amendment 30.
Amendment 30, by agreement, withdrawn.
Amendment 31 not moved.
Section 60—Power to use fingerprints to check applicant's identity
Group 6 is on fingerprints. Amendment 12 is grouped with amendments 13 and 28.
During stage 2 consideration, I agreed to consider further the provisions in the bill that relate to the use of fingerprints to confirm the identity of scheme members and applicants to the scheme. The committee was rightly concerned to limit the taking of fingerprints to circumstances in which it was absolutely necessary. Such a power already exists in the Police Act 1997 in respect of enhanced disclosure but is used very infrequently. Amendments 12, 13 and 28 tighten the provisions in the bill and the 1997 act to allow ministers to use fingerprints for the purposes of identity checking only if the other forms of evidence that are provided are insufficient. In essence, fingerprints will be used only as the method of last resort for confirming identity.
I move amendment 12.
I thank the minister for responding to the issues that were raised at stage 2. My concern at that stage was that the bill could allow for the taking of fingerprints to confirm identity to become routine rather than remain the exception, and I am pleased that amendments 12, 13 and 28 clarify that it would be used only in exceptional circumstances in which no other means of identification was sufficient to guarantee that the person was who they said they were. I welcome the amendments.
Amendment 12 agreed to.
Amendment 13 moved—[Robert Brown]—and agreed to.
Section 64—Unlawful requests for scheme records etc
Group 7 is on unlawful requests for scheme records: permitted purpose. Amendment 35 is the only amendment in the group.
Despite the smallness of amendment 35, the matter that it addresses is not unimportant. Members of the Education Committee will recall that we lodged amendments at stage 2 to allow contracting bodies to ask to see disclosure certificates for a contractor's employees. Those amendments were made with school transport services in particular in mind. I do not know why East Renfrewshire is always central to such matters, but an example from there had been in the public domain.
The stage 2 amendments allow, for example, a council to ask to see the scheme record disclosures of the employees of a bus company that provides school bus services. However, as I informed the committee at the time, there will be no obligation on any individual to consent to such a request. As the power was only that contracting bodies could ask to see disclosure records, I considered that it was unlikely to be controversial. However, a number of voluntary sector service providers have since expressed serious concerns about the provision.
The minister has acknowledged that voluntary organisations that provide regulated care services on behalf of local authorities have raised concerns that powers in section 64 could be used to allow commissioning authorities to override their recruitment decisions. Such concerns have been raised with me as well. Will the minister reassure me that that is not the intention of the stage 2 amendment by clarifying what circumstances he envisages will be prescribed in future regulations?
I am grateful to Jackie Baillie for her intervention. It is not the policy intention to allow commissioning authorities to override recruitment decisions, and the bill provides no such mandate, with or without amendment 35.
A general issue that the Education Committee considered was how to prevent public authorities from gold plating the provisions in the bill as a self-protective mechanism. Something of that spirit lies behind some of the issues under consideration. I will explain further the background to amendment 35.
The voluntary sector service providers that have been in contact with me and with officials—and, I am sure, with Jackie Baillie and other members—have expressed particular concerns about the implications for compliance with employment law and contract renegotiation. A number of those concerns were valid, which is why we lodged amendment 35. However, we did not want to lose the bill's flexibility in its entirety because it is clear that there are some circumstances in which it is appropriate for the contracting body to be able to ask to see the contractor's employees' scheme records. We need to have detailed discussions on implementation with the Convention of Scottish Local Authorities and the service providers that have an interest in the issue before it can be finally resolved.
Amendment 35 will give ministers a power to prescribe in regulations the circumstances in which it would be appropriate for a person other than the employer to be able to ask to see scheme record disclosures. As is the case with other significant regulations in the bill, we will formally consult on any such regulations made under that power. The bodies that are consulted will include contracted service providers, councils and COSLA, in particular. That will give us the opportunity to consider a difficult and complicated area in full and to avoid unintended consequences.
I hope that members will support amendment 35, which the Executive lodged in response to the concerns of stakeholders. The development of the amendment is a good example of parliamentary consideration progressing the argument and arriving at a reasonably sensible outcome.
I re-emphasise that it is not the policy intent to allow recruitment decisions to be overridden. I do not want to prejudge the consultation, but it might be possible to make a distinction between transport providers, who might be said to have expertise in transport but not in child protection, and voluntary sector providers who provide a child protection or child enhancement service of some sort, in relation to which the issue is rather different. We are certainly not in the business of trying to implement a double lock, whereby double checks would be necessary. Our aim is quite the opposite—the thrust of the bill is about simplifying procedures and making the process more manageable and moveable for the people on the ground who will be affected by it. I hope that that provides members with reassurance on the background to amendment 35 and section 64.
I move amendment 35.
I welcome the minister's comments, which have clarified the Executive's policy intention. Further consideration of the matter will take place when the guidance is issued, which will deal with the prescribed circumstances in which such a request would be made. We will have to wait and see what comes out of that. The minister has clarified the policy intention.
The voluntary sector cannot be seen as one amorphous body, because in addition to small organisations that are about volunteering, it includes very large organisations that are commissioned by local authorities and health boards to provide services to children and to vulnerable adults. In that context, issues about the contract and servicing come into question, especially given that all the criminal sanctions in the bill relate to the responsibility of employers. In the circumstances that we are considering, the voluntary sector organisations are the employers and the statutory sector organisations are the commissioners. We must recognise that the thrust of the bill is to place on voluntary organisations the responsibility to ensure that they have their own records in place.
I suspect that, in commissioning services from the voluntary sector, the statutory sector would include as part of the service requirements that the voluntary sector organisation concerned should have robust child protection arrangements. However, again the issue comes back to trusting independent organisations in the voluntary sector not only to have robust recruitment procedures in place, but to have the vigilance, when providing services, to identify when an individual might pose a risk to a child or to a vulnerable adult.
The minister's comments will go some way to alleviating the concerns of the voluntary sector. He is right to say that the attempt to see off a specific concern about school transport—in relation to which child protection or support for vulnerable adults is not the prime aim of the organisations that provide such services—has kicked off another concern. The guidance on the subject will be vital and, again, the consultation on it will be imperative.
I want to make one observation in reply, which relates to the purpose of section 64. Section 64 does not open up all sorts of things. It says specifically:
"It is an offence to request provision of, or to otherwise seek sight of, a disclosure record for a purpose other than the permitted purpose."
In a sense, amendment 35 will widen the chink very slightly. We are not criminalising all requests for such information in circumstances in which that would not be appropriate.
The wider issue, which might not be covered directly by section 64, can be dealt with under the guidance and the prescribed permitted purpose. In addition to the issues that we have discussed today, that will cover the background in complex areas of employment law, tendering and service specification. Amendment 35 will give us the power to get the right balance, in consultation with the people in the sector who will be affected.
Amendment 35 agreed to.
Section 67—Fees
Group 8 is on fees. Amendment 36, in the name of Lord James Douglas-Hamilton, is grouped with amendments 14, 19 and 37.
Amendment 36 seeks to relieve the understandable concerns of the voluntary sector about the costs of the new scheme. Those concerns have been ably channelled through the Scottish Council for Voluntary Organisations.
The SCVO has asked for amendment 36, which would secure in statute the current free checks for volunteers. As a new development, it would also waive fees for vetting paid staff in the voluntary sector, which would be particularly welcome during the initial phasing-in period of retrospective checking because the set-up cost is a particular worry. On the basis that the phasing-in period is likely to be three years, the SCVO has estimated that the total set-up cost will be £24 million, £3 million of which will be to pay fees for vetting the 120,000 paid staff who work in the voluntary sector. Although the Executive disputes the total of £24 million, I understand that the forecast of £3 million for fees is perfectly reasonable. Given that £3 million is a lot of money for voluntary organisations to find over a short period and that, furthermore, it is part of a considerably larger cost, amendment 36 asks that it be eliminated.
Amendment 36 also seeks to have fees for on-going checks waived once new retrospective checking has been completed. I concede that fewer on-going checks may be conducted than is the case at present, but the cost of a check has increased by 47 per cent in the year since the introduction of the outgoing Protection of Children (Scotland) Act 2003 regime. The indications are that the introduction of the new system will, at a stroke, increase the cost of a full check by 30 per cent. On the basis that such increases may continue, I believe that there is a strong case for the voluntary sector to be considered for exemption.
I applaud the minister's commitment to continuing to pay the costs of checking volunteers who work in the sector, but I feel that the distinction between volunteers and the paid staff who work alongside them is somewhat artificial in the context of checks. In practice, any fee that is levied on a paid member of staff will still be borne by the voluntary group. It is a mistake to assume that if a voluntary organisation can afford paid help, it is somehow able to bear the same financial burden as a public sector body. Given the importance of the issue, and to safeguard against the actions of a future, less reasonable, minister, I ask that consideration be given to including the necessary provision in the bill.
Amendment 37 would introduce use of the affirmative resolution procedure for the adjustment of fees. That is of great importance to voluntary groups: it would ensure that any future changes to the fee structure or level would be subject to the affirmative resolution procedure, which would make ministers more accountable for, and would ensure greater scrutiny of, any such changes than would the use of the negative procedure, for which the bill currently provides. There must be provision for stronger scrutiny of future decisions, for which ministers should be firmly accountable. That is the case because the Executive has preferred to defer such decisions to future ministers, rather than to set out many of the details in the bill. The Executive has also frequently allowed its plans to speed ahead of the process of consulting those who will be affected by the bill. Amendment 37 represents a necessary safeguard.
I welcome amendment 14, in the minister's name, which will signal that fee inflation should be avoided. However, Executive amendments 14 and 19 do not negate the merits of amendments 36 and 37.
I move amendment 36.
I am grateful to Lord James Douglas-Hamilton for lodging amendments 36 and 37 on an issue that has interested him and other members of the committee from the beginning of the bill's progress. However, the amendments are based substantially on incorrect premises, which I will outline.
Retrospective checking and fees are intricately linked, because a sudden introduction of retrospective checking will create a considerable cost and administrative burden on the voluntary and other sectors. However, if retrospective checking is spread out, that burden will not be created to the same extent. We have always said that fees will be fully consulted on when the bill has been passed. That remains the position.
The fees that will be associated with the scheme were the subject of considerable discussion at stage 1, and of active committee consideration at stage 2, as is right. I am aware of the need to ensure that the charging regime is affordable and sensibly structured, so I repeat our on-going commitment to working closely with stakeholders to ensure that that is the case.
We are pretty clear about the cost of the regime. We have been through the experience of disclosure checks, when there were delays and more staff were taken on, and we have arrived at a plateau at which we can say that we know how the system works and what it costs. We know that the system is working fairly smoothly and that the new system will build on it to a large extent. We are offering the sector a variety of arrangements for dealing with fees and, as a result of the improvements that the bill will make, there will probably be a reduction in the total fees paid.
There has been much alarmist and unnecessary scaremongering and misinformation about fees, so I hope that there will be a more measured discussion as the Executive works up the details through consultation of stakeholders. I emphasise that the total cost of the scheme will be similar to that of the current scheme, on which it is based.
Amendment 36 would exempt paid and unpaid workers for voluntary sector organisations from payment of fees. The provision would go much further than the current policy, whereby free checks are provided for unpaid volunteers but not for paid workers. Amendment 36 would pre-empt the full and detailed consultation on fees in which we will engage later this year. Section 67 is broad enough to allow for the making of regulations to exempt paid staff in the voluntary sector from paying fees, should such an approach be the outcome of consultation.
On a point of principle, I say that I am not convinced that paid employees in the voluntary sector should be treated differently from paid employees in any other sector, given that many voluntary organisations enjoy the support of the public sector, whether statutorily or through grant and support. We can explore whether we should expand the scope of free checks as part of the consultation—it would be inappropriate to mandate such an approach in the bill because consideration would have to be given to how the costs of additional free checks would be met.
Amendment 37 would apply the affirmative resolution procedure to fees regulations, which would, for a number of reasons, be inappropriate. Most important, the approach would create practical difficulties in respect of modest inflation-linked rises in fees. For example, the Education Committee routinely deals with yearly changes for grant support for St Mary's Music School Trust Limited; such matters are uncontroversial and need not be dealt with through an elaborate procedure. I understand why Lord James Douglas-Hamilton seeks assurance on the matter, but the negative resolution procedure is appropriate and will provide proportionate parliamentary scrutiny. If a big issue emerges about a major change in fees, the negative resolution procedure will allow members to make an appropriate fuss and to bring the matter to Parliament.
In the 99 per cent of cases in which there will be only routine changes, the fairly elaborate affirmative resolution procedure will not be necessary. I am certain that when Lord James Douglas-Hamilton was a minister he would not have acceded to requests for the affirmative resolution procedure in relation to matters such as we are considering.
Is the minister aware that when his party and the Labour Party were in Opposition, they called for the affirmative resolution procedure in similar circumstances on many occasions?
I take the point about what Opposition parties ask for—it is entirely appropriate to make such points and draw out issues. However, on balance, we must take a sensible approach to the use of the affirmative resolution procedure. As I said in an earlier debate, I am more than happy for there to be the full panoply of parliamentary scrutiny through the affirmative resolution procedure if necessary. However, section 67 sets out a sensible and proportionate approach, which we do not need to broaden.
Executive amendments 14 and 19 were lodged in response to the debate in the committee about the basis on which fees will be set. It is in no one's interest to introduce a fee that will be a barrier to encouraging employment or volunteering. Amendments 14 and 19 will place a requirement on the Scottish ministers to have regard to a number of factors when they set fees, including the circumstances in which fees are payable and the desirability of maintaining a balance between quality, cost and revenue in the performance of ministers' vetting, barring and disclosure functions.
Amendment 19 will ensure that the scope of the Scottish ministers' consideration of the performance of their functions under the provisions in amendment 14 extends to disclosures that continue to be made under the Police Act 1997; for example, basic disclosures. That is important, because the agency will be running the whole disclosure operation and not just scheme record disclosures.
Lord James Douglas-Hamilton suggested that the 40 per cent fee increase for disclosure checks in April 2006 was an increase over the course of one year. That is not correct: the increase was the first since Disclosure Scotland began operating in 2002—four years earlier—and was due to unexpectedly low demand for disclosures during the first years of the scheme's operation. The background to the fee increase is more complicated than he suggested.
It was also disingenuous to suggest that the new scheme will push up the cost of disclosure by 30 per cent. It is anticipated that the scheme will, over 10 years, be somewhat less expensive to run than the current system. Of course, no decision on fee levels has been made because there will be consultation on the matter. Lord James Douglas-Hamilton did not make good arguments for changing section 67 in the way that is proposed in his amendments.
The minister has acknowledged the voluntary sector's concerns about fee levels for disclosure checks and the impact on their finances of large increases such as we have witnessed under the POCSA regime. However, he has dismissed such concerns rather too lightly.
The voluntary sector is under significant financial pressure as a result of developments such as the phasing out of European social fund support. Throughout our discussions on the bill we have said that we do not want increased pressure on the sector to have the unintended consequence of a reduction in services to the vulnerable adults and children about whom we are most concerned. The Scottish Commission for the Regulation of Care set fees to cover its costs without consulting the sector and it is feared that the central barring unit might follow that example. We accept the minister's reassurances about full consultation on the fees regime, but we need to build in to the system protection for the voluntary sector from inordinate rises such as we have witnessed.
There are also questions about the accuracy of the financial memorandum—it is unfortunate that the Executive has not rid itself of the habit of getting its sums wrong. In the circumstances, the least we can do is ensure that proposals for changes to fee levels are subject to full parliamentary scrutiny through the affirmative resolution procedure. Therefore, we support amendment 37.
I support the thrust of Adam Ingram's argument. Many voluntary organisations are greatly concerned about fees. I accept the minister's rebuke that we should not speak about the voluntary sector as though it were a homogenous globe, but many small organisations greatly fear that fees will go up. All history justifies that fear. POCSA was a complete shambles—it was a disaster in financial and administrative terms, so how will small organisations know that the new set-up will be any better? We have to assuage people's fears about future increases.
I have taken an interest in the procedures of Parliament; the notion that people who are worried about a particular matter can somehow have it discussed in Parliament is a complete illusion. We must have rules so that, if the Executive wishes to do something, it has to come to Parliament for a vote. It is reasonable to request that the issue that we are discussing in this group of amendments should automatically come before Parliament.
I want to make a wider point. The concept behind the fees is that the system should be self-financing. For lawyers or estate agents, for example, there should be a regulatory system to ensure that they operate honestly and within the rules and it is fair enough that those people should pay for that system out their fees. To impose the same sort of system on the voluntary sector, however, with its many different types of organisation, would be a serious policy mistake, based on a fallacy. People in those organisations give up their time to do exactly what Parliament and the Executive want. They organise good activities for young people, which—among other benefits—keep them out of trouble, and they organise help for older people, thus saving the health service and local authorities a great deal of money.
The organisations provide a public benefit at cost to themselves, so why should they be charged for people being studied to see whether they are fit to do the job? I accept that, at the moment, there is no charge for the individual volunteer, but the administrative costs to the organisations will be considerable. We should not have a charging regime that affects them; in fact, we should financially help the organisations that provide advice to smaller voluntary organisations on how to get through the bureaucratic jungle. That would enable those smaller organisations to help their local communities—which is what they want to do—rather than filling in forms. There is a lot wrong in the Executive's way of going about things.
I begin my remarks with a general caveat: I hope that the minister will continue to monitor the impacts and the costs of this bill and other measures on organisations in the voluntary sector, which are undoubtedly in a vulnerable financial situation.
I do not doubt Adam Ingram's concern—which is shared by all members of the Education Committee—for the voluntary sector, but I was rather amused to hear an SNP front-bench spokesman, who cannot seem to add up to £11 billion, talking about the Executive having problems with its sums. However, I will get back to the subject of this debate.
As Donald Gorrie reminded us, volunteers all have their disclosure costs paid for them, as is right. However, the voluntary sector ranges widely from what might be described as professional organisations through to the most ad hoc groups. The people about whom we are talking are paid staff; they are in the voluntary sector but they are paid employees. I am not sure that there is any logic in treating paid staff in the voluntary sector any differently from paid staff in the statutory sector—I do not see why a social worker who works for a voluntary organisation that provides a statutory service should be treated any differently from a social worker who works for a statutory organisation such as a local authority.
It is important that organisations in the voluntary sector recover their costs, and they should do so through the usual mechanisms—through their contract with the local authorities, the health authorities or whatever.
The member may recall a discussion that the Education Committee had with witnesses from the voluntary sector, who said that they expected to receive increased funding from the commissioning body in the statutory sector to cover the fees. However, the financial memorandum to the bill does not cover that. Will the member comment on that?
For local authorities, the costs of disclosures are met—they are included in the grant-aided expenditure for local government. All authorities that have contracts with voluntary sector bodies for provision of statutory services have a duty to meet those costs. That has to be built into the contract. The issue has therefore been addressed.
As I was saying, it is misleading to give anyone special treatment, but we have to be careful to ensure that the voluntary sector continues to play its vital role in providing services across the board, so we should continue to monitor the situation.
I want to speak about amendment 37 in particular. I tried to address the same issue with an amendment at stage 2. There is no doubt that the voluntary sector is genuinely anxious about the possibility of a radical increase in or realignment of fees. I accepted the Executive's arguments and reassurances at stage 2, but I mooted the option of using the affirmative procedure to govern future changes in fee levels. The Subordinate Legislation Committee looked into the matter, and we decided that the affirmative procedure would probably be a disproportionate and cumbersome parliamentary procedure when most increases will be routine inflationary rises. Any future rises in fee levels will still be subject to the negative procedure; in other words, any abnormal or radical increase will be subject to parliamentary scrutiny. I do not doubt the ability of the voluntary sector or of parliamentarians to use the negative procedure effectively to raise any concerns.
I echo Ken Macintosh's final comments. Having pursued the bill through the Education Committee, I am sure that the voluntary sector is more than capable of raising any future concerns over regulations that would significantly change the structure of fees.
We have to consider a number of key points. Adam Ingram rightly voiced concern that we might have a gold-plating system. The care commission might decide how massive an organisation it wants to have, because it knows that it has the right to charge fees that will cover costs. However, what I think amendment 14 says is that the central barring unit will not be able to do that, but will have to take account of the quality and cost of the service and the fees paid. The central barring unit will not be able to do the kind of gold plating that caused so much concern to the voluntary sector during discussions on the care commission. It is important that amendment 14 sets down that the central barring unit will be required to operate efficiently and effectively, taking into account the fee levels and the bodies that it is setting those levels for.
The debate is largely about the impact on the voluntary sector. Parliament has talked about retrospection before, and I do not dispute that if we required everyone to be checked retrospectively within a very short period, it would have a massive impact on finances in the voluntary sector. Fees and retrospection are linked. If there is not an immediate retrospective check of everyone involved, the financial impact on the voluntary sector will not be as great as has been feared. However, we should consider the fees to ensure that the voluntary sector is not put under unnecessary financial pressure. We have to acknowledge that the Executive is committed to maintaining the policy of paying the fees of volunteers within the voluntary sector. That is very important.
I am not convinced by the argument that says that people who work in the voluntary sector as paid employees should have their fees paid. Those costs should be included in any contractual arrangement for services that are provided for the statutory sector. If the costs are not covered by contracts, organisations should perhaps consider revising how they bid. It is important that workers, whether in the statutory or the voluntary sector, are all treated the same.
There are different categories of workers. There are workers who will be applying for the first time for any form of disclosure. It is fairly clearly set out in the financial memorandum that the fees for such people are unlikely to be very different from those that are currently paid.
Secondly, there are workers who can use their scheme record to passport to other applications. They must currently pay for an entirely new full-cost disclosure, but they will no longer have to do that. Because of the passporting arrangement, they will, at most, have a reduced cost short-scheme record to pay for. That bit of the equation is forgotten when we have talked about fees. Most people who are currently paying for disclosure check after disclosure check will no longer have to do that and their costs will be reduced. Ultimately, the cost to the voluntary sector will be reduced as a result.
The next category is those who may have an enhanced disclosure at present but who have not yet been retrospectively checked. When retrospection comes in, perhaps those who are already in the system under enhanced disclosure could be passported on to the new system at a reduced fee, rather than having to pay the full fee for a new check. The final category is those who have been in the system for many years and have had no disclosure check. They may have to pay the full initial cost.
The important issue about the fees is that they are affordable. There is no logic in having routine changes to fees for inflation purposes subject to affirmative resolution. If a major fee structure change were made, I would expect consultation to be carried out and that the Education Committee—or whichever committee was appropriate—would conduct an inquiry into any negative resolution. I support amendments 14 and 19 and reject amendments 36 and 37.
I have had a lot of sympathy for many of the points that have been raised by the voluntary sector, but I feel that amendments 36 and 37 are based on concerns about the bill as introduced rather than the bill as amended. Lord James Douglas-Hamilton referred to retrospection being phased in over three years, but we have already passed an amendment today to put that process into regulations that will be considered by Parliament under the affirmative procedure.
Bearing in mind that, for the reasons that have been stated by Dr Murray, retrospection and fees are inextricably linked, does not it make sense for retrospection and the fee level to be dealt with under the affirmative procedure?
I was going to talk about that later. I am considering amendment 36 at the moment. It falls into the trap of treating all voluntary sector organisations as identical. As many members, including Ms Hyslop, have said during the debate, they are not all the same. I therefore prefer the approach in amendment 14, which will allow the circumstances in which fees are payable to be considered, and allow a more flexible approach to the different types of organisations in the voluntary sector.
I want to comment on the idea that increases in fees should come back under the affirmative procedure. Like Ken Macintosh and Iain Smith, I feel that that is a disproportionate response. It is not necessary for every inflationary increase in fees to have to go through the affirmative procedure. Members have referred to future ministers being members of the "flat earth party". I wonder whether the same members feel that future Education Committee members will be devoid of brains, because I am sure that if a negative instrument that proposes a huge increase in fees for the voluntary sector comes before the committee, someone on the committee will notice that and comment on it. The shadow Secretary of State for Scotland has described some of his colleagues as "clueless". Perhaps that is being reflected in concerns about the composition of the future Education Committee.
The voluntary sector had serious concerns about how the bill as introduced would affect the sector. Those concerns have been addressed adequately, so amendments 36 and 37 are not necessary. I commend amendment 14 as the appropriate way forward.
Section 67 is important. I do not want to understate the importance of fee levels to the stakeholders, particularly those in the voluntary sector. I have a slight sense, however, that we have not been debating what the bill is currently about or, in the light of assurances from ministers during the passage of the bill, about the process. The discussion has to some degree been off to one side of the argument. We are dealing with the bill as it is—I hope that members will take that into account when they vote on the bill later.
The bill is a reform of and follow-up to the existing disclosure arrangements, which we already know about. It is not a new care commission situation; it is a situation in which we know what the existing costs are and can predict the possible ramifications of charging those costs slightly differently. That is something that the consultation will take on board.
We are not adding to the burdens on the voluntary sector, either—quite the opposite. We are, in fact, reducing the burden on it and, all being well, we are reducing the costs on the voluntary sector. That is the context in which we must consider the bill.
There are all sorts of genuine issues with regard to the way in which the voluntary sector is funded, but the question is whether the bill will create significant additional burdens or change how the voluntary sector is affected by charges. In total, it will not but, in practice, the detail is open for consultation. We are, after all, talking about a fee that is currently £20. We talked about various other computations that might be used, such as membership fees, annual fees, or a larger fee for the first disclosure and smaller fees for later ones. All of that is up for grabs. The fee structure must be seen as part of the wider recruitment process, which is what causes the cost to and the burden on the voluntary sector. The fees for disclosures are a small part of that.
I entirely agree with Iain Smith's comments on the contract costs—it is a matter of dealing with the local funding issues that affect individual voluntary sector organisations. Ken Macintosh mentioned the important issue of monitoring costs. If Parliament approves the changes in one of the later amendments, there will be an annual report. Assurances have been given in that regard, which should allow a sensible and reasonable decision when we come to the consultation arrangements about the fee situation, without our having to add in the rather cumbersome arrangements that are proposed by Lord James.
These matters will, after consultation, come up in regulations in the next session of Parliament. In view of what has been said, I will not press amendment 36. However, on account of the significance of the secondary legislation that will come in due course, I see the issue of affirmative resolution in a very different light. I accept the minister's suggestion that Governments often oppose affirmative resolutions and that Oppositions invariably support them—there is an element of truth in that. However, it is the context that makes the affirmative procedure so important in this case because it could, if we are not extremely careful, lead to far-reaching decisions, which could impact adversely on the voluntary sector. It is not just inflation issues that arise out of the consultation and the decisions that are to be made in that secondary legislation—as Ken Macintosh inferred, those issues will be covered—but policy matters. Affirmative resolution would be a valuable safeguard in that context and it would be of great importance to voluntary groups. For that reason, I will press amendment 37 on the affirmative resolution for adjusting fees.
Amendment 36, by agreement, withdrawn.
Amendment 14 moved—[Robert Brown]—and agreed to.
Section 69A—Consideration of suitability: supplementary
Group 9 is on fostering. Amendment 15, in the name of the minister, is grouped with amendment 18.
Members will understand the importance of ensuring that foster carers, who look after some of the most vulnerable children in society, are appropriately vetted. At stage 2, the Education Committee agreed amendments that brought some types of public and private fostering into the scope of the scheme. I indicated then that we would consider the issues again at stage 3, particularly those relating to permanent foster carers, because there were a number of issues to bottom out in that regard. Committee members supported the inclusion of foster carers in the bill and the intention to introduce further amendments at stage 3. Those amendments cover other legal provisions under which children can be placed with foster carers, such as the permanence orders that were established by the Adoption and Children (Scotland) Act 2007—it is odd to look back on some of the issues that we have discussed and to see them enacted—and the supervision requirements that may be the outcome of a children's hearing under the Children (Scotland) Act 1995.
I move amendment 15.
Amendment 15 agreed to.
Section 71A—Police access to Scheme information
Group 10 is on police access to scheme information. Amendment 16, in the name of the minister, is the only amendment in the group.
The bill was amended at stage 2 to give the police access to scheme membership information. The policy intention is that the police should have access only to the names of members, the type of regulated work that they do and sufficient information to allow the person to be identified. Concerns were expressed at stage 2 that section 71A would allow ministers to share an excessive amount of information with the police. Amendment 16 limits the use of scheme information that is shared with the police to confirming the identity of the individual in question. I hope that that narrowing of police access to scheme information will reassure members who had concerns about the potential scope of section 71A.
I move amendment 16.
I thank the minister for lodging amendment 16. I assure him that I am reassured.
Amendment 16 agreed to.
Before section 87
Group 11 is on guidance on the operation of parts 1 and 2. Amendment 5, in the name of the minister, is the only amendment in the group.
At stage 2, Education Committee members suggested various ways in which a guidance power might be useful at a number of points in the bill. In particular, Elaine Murray proposed a power in respect of section 18 concerning police information and Iain Smith proposed guidance about the meaning of "regulated work" in the context of the regularity and frequency of that work, which was one of the subjects of debate at stage 2.
In response, I made a commitment to lodge an amendment placing ministers under a duty to issue guidance on the operation of the scheme generally. We had always intended to have such a duty, and it is helpful to put the power in the bill. Accordingly, amendment 5 places a duty on ministers to provide guidance on such matters as they consider appropriate in relation to the operation of parts 1 and 2 of the bill.
I move amendment 5.
Amendment 5 is important because so much of the operation of the bill will come down to interpretation and reflecting on previous legislation. The understanding of what is or is not meant in certain areas of the bill is very important. Some definitions have to be clarified. The extent to which terms had to be defined in the bill or in guidance was considered at stage 2. We accepted in good faith the minister's understanding that the most commonsense and reasonable approach was to put much of the definition in guidance. Amendment 5 is a technical amendment, but it will be fundamental to the successful operation of the legislation.
Concerns arose at stage 1 and stage 2 about mythical stories about school discos and so on, but we also heard some real stories about people being required to provide disclosure checks in clearly inappropriate and unnecessary circumstances. I welcome the minister's intention to produce guidance on those issues that will, hopefully, clarify the circumstances in which a disclosure check or scheme record is and is not required, which is extremely important.
Could the minister, when he sums up, assure us that there will be wide consultation, not only on the forthcoming regulations but on the guidance? In particular, will the next Education Committee have the opportunity to consider any draft guidance before it is finalised?
I, too, welcome amendment 5. One of the concerns that was communicated to the Education Committee during consideration of the bill was the issue of people becoming risk averse, particularly when working with children. We have heard stories about, for example, parents not being allowed to get on to buses to fasten the seatbelts of their disabled children because they had not been disclosure checked. That sort of situation arises where there is confusion over when someone has to be a scheme member or needs to be disclosure checked. Organisations, rather than attracting blame, will tend to err on the side of caution and will seek the maximum level of disclosure to protect themselves. At one point, the bill was described as
"a protection of vulnerable organisations bill."—[Official Report, 17 January 2007; c 31097.]
Without the appropriate guidance, organisations will use the legislation to protect themselves from litigation and blame.
It is important that people have appropriate and robust guidance on who needs to be in the scheme and who does not. I welcome the fact that the Executive has lodged amendment 5 at this stage to make it absolutely clear that ministers will produce guidance and that there will be no excuse for such risk-averse behaviour under the new regulations.
I thank members for their comments on the amendment. The guidance will be useful in helping to implement the act. During my time as a minister and, before that, as a back-bench MSP, I have found that passing a good law is one thing, whereas implementing it is the rest of the iceberg—the real challenge—and no more so than with regard to the Protection of Vulnerable Groups (Scotland) Bill.
There will be wide consultation, specifically with the next Education Committee, on the guidance. We will want input, given people's considerable experience and knowledge of the system. We need to involve the education sector in that process, too.
In the background is a fear that people will adopt unnecessary or excessive approaches to the new legislation as they attempt to safeguard their organisations. We wish to avoid a gold-plating approach, as I have mentioned before. I think that, through guidance, we can do something to distil the sprit of what we are looking for. Elaine Murray mentioned the risk-averse nature of the debate surrounding the bill. That is an important point, and we need to consider that more broadly.
There are three levels at issue: the bill itself and its wording; the regulation and guidance that will support the bill; and advice, which I have mentioned a number of times. We will seek to provide advice—through the central registered body in Scotland and in other ways—to the small groups that will have to comply with the legislation so that they will have comfort and confidence in how the system will operate.
Amendment 5 agreed to.
Group 12 is on the annual report. Amendment 17, in the name of the minister, is the only amendment in the group.
Amendment 17 is important. The need for the Scottish Parliament to keep an eye on implementation has been a recurring theme throughout the parliamentary consideration of the bill. I obviously have no difficulty with implementation being subject to parliamentary scrutiny or with ministers being held to account. I have commented as such already this morning. I have given substantial undertakings to the Parliament as to how the Executive will run a detailed and inclusive consultation process with stakeholders to pre-empt and avoid any difficulties so that people are comfortable with the implementation of the act. I accept that the Parliament will seek something more than good intentions from current ministers—particularly at this stage in the electoral cycle. Lord James Douglas-Hamilton lodged an amendment at stage 2 to require ministers to report on the operation of the legislation. We had a lot of discussion about that, and there was a fair degree of support for the idea in general. I am grateful to Lord James Douglas-Hamilton for raising the matter at that stage.
We have always been clear about the need for a reporting mechanism of some sort between the Executive or organisation and the Parliament. We have discussed the way forward on that with solicitors. Amendment 17 places a duty on ministers to prepare and lay before Parliament an annual report detailing the performance of their vetting, barring and disclosure functions—effectively, the operation of the central barring unit. That reporting requirement will be useful in holding ministers to account to the Scottish Parliament on a regular basis, and it will allow members and committees to raise issues on fees and other subjects on an annual basis if they wish to do so, in line with reporting arrangements in other areas. That will keep minds focused on delivering a strong performance through the new agency. I view the move as a positive one, which I think should command the acceptance of the Parliament.
I move amendment 17.
The minister's initiative in response to requests from me at stage 2 is very welcome. Amendment 17 will provide for monitoring of the implementation of a scheme that, frankly, still has some uncertainties attached to it. If it emerges that there is dissatisfaction or discontent in certain respects, the arrangements can be revisited by means of a committee inquiry. The safeguard is necessary, and I thank the minister.
We might reflect that the future Education Committee will have its work cut out, given how many regulations it will have to consider, as well as the annual report. The current Education Committee has used its scrutiny and accountability powers for the annual reports of other organisations and, as Lord James Douglas-Hamilton has said, that will be a key role for the future committee in this case. I thank Lord James for bringing the matter to the committee in the first place, and I thank the minister for responding positively with amendment 17.
We might reflect, however, that we have not given great consideration to Disclosure Scotland becoming an Executive agency. The minister might wish to take the opportunity now to say what progress has been made in preparing for that and whether there are any issues that Parliament should be aware of. That clearly gives ministers more responsibility—in the sense of accountability—but it might be helpful if the minister could give us some indication of what the plans are.
The amendment is excellent but I would like the minister to tell us what would happen during the rest of the year, not just when the annual report is published. Experience shows that it is not always as easy as it should be for an MSP to get information from ministers about the operation of boards, quangos and so on that are carrying out Government policy but are not part of Government departments. When many people were coming to MSPs with information about the serious problems that were being experienced by Disclosure Scotland and the regulatory body that dealt with the voluntary sector's applications, we found that it was difficult to get those problems dealt with by the Executive. Could the minister indicate the degree to which ministers will be able to query during the year if apparent failures by the new regulatory system are brought to their attention?
I thank members for their welcome for the important and central amendment 17.
All sorts of organisations are obliged to submit an annual report to the Parliament. Most of those reports are not subject to debate or detailed consideration by committees, but some are. The reports provide committees with an opportunity to have a structured debate on the operation of the agency on the basis of solid information from officials.
During the introduction of the legislation, there will be consultation on the level of the bar, the level of the fees and the retrospection issue. On-going work will be done with the voluntary sector, stakeholder agencies and the next Education Committee on the details of those issues. There will be fairly close scrutiny of a series of aspects relating to the operation of the scheme.
Beyond that, it is open to members to hold ministers to account by way of parliamentary questions and press releases and, if the matter was felt to be important, through parliamentary debates. As well as the regular annual reports, there is a hillock of ways in which members can hold ministers to account.
The Parliament's Education Committee will have a central role in that work, as it is the committee that has the greatest expertise in the detail of the operation of the scheme. I am fairly certain that, given the information and experience that the current Education Committee has gained—indeed, that I and other ministers have gained—it will be vigilant in taking forward any concerns that members might have in that regard. That ought to provide solid reassurances on the questions that Donald Gorrie raised.
Amendment 17 agreed to.
Section 95A—Fostering
Amendment 18 moved—[Robert Brown]—and agreed to.
Section 96—General interpretation
Amendments 6 and 19 moved—[Robert Brown]—and agreed to.
Section 99—Orders and regulations
Amendments 32, 33 and 7 moved—[Robert Brown]—and agreed to.
Amendment 37 moved—[Lord James Douglas-Hamilton].
The question is, that amendment 37 be agreed to. Are we agreed?
No.
There will be a division. Since this is the first division in these proceedings, there will be a five-minute suspension.
Meeting suspended.
On resuming—
We will proceed with the division, which will be a 30-second division.
For
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Baird, Shiona (North East Scotland) (Green)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brownlee, Derek (South of Scotland) (Con)
Canavan, Dennis (Falkirk West) (Ind)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Gorrie, Donald (Central Scotland) (LD)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
Milne, Mrs Nanette (North East Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Petrie, Dave (Highlands and Islands) (Con)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Scott, John (Ayr) (Con)
Stevenson, Stewart (Banff and Buchan) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Tosh, Murray (West of Scotland) (Con)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 45, Against 56, Abstentions 0.
Amendment 37 disagreed to.
Schedule 2
Regulated work with children
Group 13 is on regulated work with children and protected adults. Amendment 20, in the name of the minister, is grouped with amendments 21 to 24 and 34.
Committee members will recall that Ken Macintosh lodged amendments at stage 2 that sought to replace all instances of "employment" with "work" in both schedules that define regulated work. The effect of these amendments was to reduce the scope of regulated work so as to exclude from regulated work individuals who work alongside children and protected adults who are themselves volunteers.
At stage 2, we agreed with the principle of making that change to paragraphs 2 and 3 of schedule 2 and to consider changes elsewhere in that schedule. Although I supported the amendments to paragraphs 2 and 3 in principle, they were pre-empted by Executive amendments so we agreed to lodge amendments with a similar effect at stage 3.
Executive amendments 20, 21 and 22 make the changes to paragraphs 2 and 3 as promised. Amendments 23 and 24, read with amendment 20, similarly reduce the scope of regulated work in respect of paragraphs 4 and 5 when the activity is carried out in relation to children aged 16 or 17 in the course of the children's work. We have not exempted work with children under the age of 16 who are doing unpaid work, because we consider that there is a strong case for that remaining within the scope of the scheme.
Amendment 34 makes a minor adjustment to schedule 3, on regulated work with adults. The amendment removes paragraph 5(a), which Ken Macintosh's amendment at stage 2 sought to modify. I am grateful to Ken for highlighting that provision because we have discovered that paragraph 5(a) is largely redundant, which is why we have introduced the amendment to remove it. We believe that scenarios caught by paragraph 5(a) will also be caught by paragraph 5(b). The practical effect is to make paragraph 5 easier to read, which is worth while.
I move amendment 20.
The SNP will support amendment 20.
The minister will be aware that, as far back as stage 1, I raised issues about young people aged 16 and 17 who are volunteering with people who may be vulnerable adults or who may have other difficulties and need support. There may be issues about police records for any one of those people.
I welcomed the stage 2 amendments that recognised that many young people volunteer. We should not create extra bureaucracy that may prevent people from encouraging young people aged 16 and 17 to work with them. We may reflect on the debate about the position of the young person who volunteers to take minutes for a community council, the main purpose of which is not necessarily to provide services to children, but we cannot get into the ridiculous situation in which young people are prevented from volunteering because of the legislation. I therefore welcome the spirit of amendment 20 and the amendments that were lodged at stage 2 to address the issue.
Common sense and practical considerations must have a role in our approach to child protection. We must also acknowledge that another issue is setting the age of majority at 16. Indeed, Iain Smith lodged amendments at stage 2 that suggested that we should consider a child to be someone under 16, but at that point we accepted the minister's arguments for keeping the age bar at 18. Amendment 20 goes some way towards recognising the particular responsibilities of young people aged 16 and 17 who are volunteering and it addresses the need not to introduce unnecessary bureaucracy for those who provide volunteering opportunities or paid employment opportunities for young people aged 16 and 17.
I add that the amendments that I lodged on behalf of the voluntary sector at stage 2 were designed to ensure that we do not create an artificial barrier between paid employment and work in the voluntary sector and by implication diminish the contribution made by our voluntary sector. I thank the minister for lodging the amendments today.
Amendment 20 agreed to.
Amendments 21 to 24 moved—[Robert Brown]—and agreed to.
Group 14 is on regulated work with children: unsupervised contact. Amendment 25, in the name of the minister, is grouped with amendment 26.
I thank Ken Macintosh for moving an amendment at stage 2 that clarified the scope of the scheme in respect of unsupervised contact with children. Committee members will recall that I supported, and they agreed to, his amendment. However, I said at the time that we would need to lodge a further amendment at stage 3 to give full effect to the suggested policy and make minor adjustments to the drafting. Amendments 25 and 26 fulfil that commitment.
Ken Macintosh's amendment at stage 2 gave children's parents and guardians the right to agree that a friend can supervise their child's contact with a worker and, by so doing, take that work out of the scope of regulated work. We had no difficulty with that, since it seems entirely reasonable for a parent to have the power to do that. We ought to recognise the central importance of the rights of parents in this context.
We noted at committee that Ken Macintosh's amendment should make it easier for those seeking to organise very informal voluntary activity. Amendment 25 extends the scope of his amendment by including not only personal relationships but family relationships. For consistency, amendment 26 ties the definition of family and personal relationships in amendment 25 to those used in section 95, which provides the definition of work.
I move amendment 25.
I again thank the minister for lodging the amendments. The issue is to make it easier for decisions to be made at the margins about what is voluntary work and to clarify what decisions it is appropriate for adults, and for parents in particular, to make. I thank the minister for recognising the strength of the amendments.
Amendment 25 agreed to.
Amendment 26 moved—[Robert Brown]—and agreed to.
Group 15 is on regulated work with children: providing advice and guidance. Amendment 27, in the name of the minister, is grouped with amendment 38.
Amendment 27 narrows the scope of paragraph 6 of schedule 2 so that the provision of advice or guidance to children is only regulated work if it is not incidental to the provision of advice or guidance to adults, which echoes Ken Macintosh's comments in the previous debate. The amendment brings the provision into line with paragraphs 2 and 3 of schedule 2, which deal with caring, teaching, instructing, training or supervising children, and which also have an "incidental" qualification.
Amendment 27 also responds to concerns that were raised by the Law Society of Scotland about the provision having a disproportionate impact on certain professionals, such as lawyers, as too many people might have been required to join the scheme as a result of them providing advice or guidance to children. I suppose that I should mention my membership of the Law Society of Scotland at this point.
Amendment 27 puts beyond doubt that, for example, a lawyer who has a small number of child clients as part of a service to the population more generally should not be considered to be doing regulated work. However, I do not accept the argument that no lawyer should ever be a scheme member because they are regulated by the Law Society of Scotland. Plenty of individuals who will be scheme members will also be regulated by a professional body of one kind or another. Scheme membership and professional body regulation have distinct purposes, which should complement each other, but they are not substitutes for each other. I also highlight that advice or guidance is restricted to that
"which relates to physical or emotional well-being, education or training",
therefore a criminal defence lawyer advising a 17-year-old about criminal charges would, in any event, fall outwith the scope of paragraph 6.
I would like to put it on the record that advice or guidance in relation to spiritual matters or spiritual well-being is included within the scope of paragraphs 6 of schedules 2 and 3. For children and adults, such advice on spiritual matters or well-being is considered to be captured by advice on emotional well-being. We had discussions with the Church of Scotland, in particular, on the matter, and it asked me to make the point clear on the record, which I am happy to do.
I believe that Lord James Douglas-Hamilton's amendment 38 is an alternative response to the Law Society's concerns. I hope that he will be reassured by my comments on the lead amendment. As I have said before, I do not agree with the basic tenet that any profession should be exempt from the scope of the bill on the basis that it is regulated in other ways. We should not exclude from the scheme simply because of their chosen profession individuals who have significant contact with children: we need to focus on risk and the level and type of contact that an individual has with vulnerable groups.
I reassure Lord James Douglas-Hamilton that schedule 2 can be amended by order if the provision turns out to have any adverse consequences for the legal profession or for the provision of legal services to children. On the basis of that reassurance, I hope that he will not move amendment 38.
I move amendment 27.
I mention that I am a non-practising Queen's counsel, but I am unlikely to have a direct interest in amendment 38. Amendment 38 comes from the Law Society of Scotland, which questions whether the Parliament agrees to the inclusion in the meaning of "regulated work" the work that professionals who are already regulated undertake on behalf of children. A few solicitors in specific roles are disclosure checked, such as those who are curators in court, but the Law Society is concerned that paragraph 6 of schedule 2 will affect solicitors who deal with children in more general roles.
Solicitors are considerably regulated with regard to the protection of children in such situations. The society has provided a guidance document entitled "Child Protection and Representation Principles for Children's Lawyers" and it updates information on what is required on its website. That guidance has been tailored to the unique nature of guiding children through complex legal situations and is more appropriate than any general regulatory regime could be.
Amendment 27 goes a considerable way towards assuaging concerns. It will exempt solicitors who give children incidental advice as part of their main job of advising adults, but the core issue remains that solicitors are already sufficiently regulated, as are others whom professional bodies govern.
Under amendment 38, the scheme would still include staff of telephone advice lines and agony aunts in children's magazines. Those are the only roles that are mentioned as examples in the explanatory notes to the bill. Those jobs are not currently regulated. Members of professional bodies, such as solicitors, operate in a different context. Initially, it was unclear whether ministers even intended the provision to extend to them. Amendment 38 would ensure that the provision did not apply to them and that their existing highly tailored regulatory regime would not be overridden by the general regime.
I intend to press amendment 38.
I do not have much to add. I responded to Lord James Douglas-Hamilton's observations when I said that incidental advice and some work would not be covered. There is no reason in principle for exempting lawyers as a category. Teachers, social workers and others are regulated by their own professional bodies, but they nevertheless require to be disclosure checked under present law.
The arrangements that we suggest in amendment 27 and in the power to amend schedule 2 by order if we have got the provisions wrong should reassure the Parliament sufficiently on the points that Lord James Douglas-Hamilton is right to raise.
Amendment 27 agreed to.
Amendment 38 moved—[Lord James Douglas-Hamilton].
The question is, that amendment 38 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brownlee, Derek (South of Scotland) (Con)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Petrie, Dave (Highlands and Islands) (Con)
Against
Adam, Brian (Aberdeen North) (SNP)
Alexander, Ms Wendy (Paisley North) (Lab)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fabiani, Linda (Central Scotland) (SNP)
Finnie, Ross (West of Scotland) (LD)
Gibson, Rob (Highlands and Islands) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
May, Christine (Central Fife) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (South of Scotland) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robison, Shona (Dundee East) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Wallace, Mr Jim (Orkney) (LD)
Watt, Ms Maureen (North East Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 13, Against 87, Abstentions 0.
Amendment 38 disagreed to.
Group 16 is on the power to disapply offences in relation to regulated work. Amendment 8, in the name of the minister, is grouped with amendment 9.
Amendments 8 and 9 are designed to allow flexibility in the development of fostering policy and compatibility with the Safeguarding Vulnerable Groups Act 2006 for England, Wales and Northern Ireland. They put beyond doubt ministers' power to create classes of regulated work whereby the individual is a scheme member and is subject to continuous vetting but is not caught by some or all of the barring offences in sections 33 to 36. The power can be used to extend the scheme and therefore to extend protection, but it will avoid the unintended consequences that can sometimes follow from the barring offences. That relates to the fostering matters that we dealt with earlier.
I move amendment 8.
Amendment 8 agreed to.
Schedule 3
Regulated work with adults
Amendments 34 and 9 moved—[Robert Brown]—and agreed to.
Schedule 4
Minor and consequential amendments and repeals
Amendment 28 moved—[Robert Brown]—and agreed to.
Schedule 5
Index
Amendment 10 moved—[Robert Brown]—and agreed to.
That ends consideration of amendments. As members are aware, the allocation of time for proceedings is an art rather than a science. Today, we have finished early. We will suspend the meeting until 11:40, when we will return for questions.
Meeting suspended.
On resuming—