The next item of business is a debate on motion S4M-14189, in the name of Angela Constance, on the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2015. Any members who wish to speak in the debate should press their request-to-speak button now.
17:00
Presiding Officer, I begin by thanking you, business managers, committee conveners and members and parliamentary officials for support and co-operation in facilitating an accelerated timetable for scrutiny of the order amending the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013. It is in the public interest to help minimise the disruption to the operation of higher-level disclosure checks and thereby minimise the risk to public safety.
Members might be aware that “higher-level disclosure” describes the overall system that allows for additional scrutiny of a person's criminal convictions. Among other purposes, it is used when someone wants to work with vulnerable groups such as in a nursery, as a medical professional or in a school, or when someone wants to work in a sensitive area such as offering financial advice.
There are two aspects to the higher-level disclosure system. First, it operates through individuals being responsible for disclosing information. Secondly, Disclosure Scotland issues certificates containing conviction information that is held on central police records.
Under the system of additional scrutiny, the information that must be disclosed by the individual and Disclosure Scotland includes convictions that have become spent under the Rehabilitation of Offenders Act 1974. Such information would not ordinarily be disclosed to an employer, but as things stand it comes under the higher-level disclosure system.
The operation of those two areas can be seen as mutually reinforcing, with information given by the individual in, say, completing a job application form being able to be checked by an employer against information that is contained in a higher-level disclosure such as a standard or enhanced disclosure certificate or a protecting vulnerable groups disclosure issued by Disclosure Scotland.
In June 2014, the United Kingdom Supreme Court found that the system of higher-level disclosures as it operated in England and Wales breached a person’s article 8 rights under the European convention on human rights. Although the court fully accepted the need for additional scrutiny of a person’s background if that person wants to work with vulnerable groups or in other sensitive roles, it considered that the automatic indiscriminate requirement for disclosure of all spent convictions was not proportionate because no assessment was undertaken of the relevance of the information to the need for the disclosure.
Although that decision related to the law of England and Wales, we have considered its relevance to the higher-level disclosure system in Scotland. Informed by developing thinking and case law in England and Wales and in Northern Ireland on how the balance of competing rights and interests should be struck, we have concluded that reforms should be made to Scotland’s system.
The order deals with one aspect of the reformed system—the responsibilities of individuals to self-disclose spent convictions—and it adjusts the existing law that governs those responsibilities.
The changes will be reflected and complemented by changes to the disclosure of spent conviction information by Disclosure Scotland. Those changes will be addressed by way of a remedial order using the urgent procedure that is provided for in the Convention Rights (Compliance) (Scotland) Act 2001, which allows for a period of public consultation and parliamentary scrutiny after an order is made.
Expediting the procedure in respect of this order will ensure that the responsibilities of individuals and Disclosure Scotland to disclose spent conviction information will be aligned from the outset of the operation of the amended system.
We believe that the proposed changes will put beyond doubt that the disclosure system in Scotland complies with the European convention on human rights while ensuring that vulnerable people and the wider general public are protected. Although not all spent convictions will be routinely disclosed under the system, spent convictions for offences that are sufficiently serious, recent or relevant will continue to be required to be disclosed by the individual in the circumstances that are set out in the 2013 order.
The proposed amendments to the 2013 order set out two lists of offences. One contains the most serious offences—including serious violent and sexual offences—that will continue to be disclosed indefinitely, even when spent, in relation to the types of work that are specified in the 2013 order. The second list contains offences in respect of which a new set of rules, to be set out in the order, will determine whether they are to be disclosed. Those rules take account of the period of time that has elapsed since conviction, the age of the offender on the date of conviction and the sentence imposed.
The order also adjusts rehabilitation legislation to take account of the amended system to be operated by Disclosure Scotland, in particular by ensuring that an individual need not disclose offences for which they may apply to a sheriff for an order to have them removed from a certificate, until that application to the sheriff is determined.
I reassure Parliament that members will have a further opportunity to scrutinise the underlying policy. Following the 60-day consultation after the remedial order is made, we will consider whether any changes are required. If changes are needed, they may also require to be reflected in the 2013 order. Any such changes would require to be made by a further affirmative order.
Presiding Officer, I hope that my remarks reassure you and members that Parliament will have a full and open role in the scrutiny process—albeit in an unusual format—with their views being listened to throughout. However, I also hope that members will agree that the amendments are necessary to ensure that our higher-level disclosure system continues to operate and helps to protect vulnerable people and the public more generally while balancing the rights of individuals.
I move,
That the Parliament agrees that the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2015 [draft] be approved.
We have a little time in hand, so I would appreciate members’ co-operation in helping me to get to 5.30.
I call Cara Hilton to speak for a minimum of six minutes, please.
17:08
Thank you, Presiding Officer. I will try to speak slowly, but that could be difficult.
Today’s short debate on the draft Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2015 is important in ensuring that our disclosure system is fit for purpose and that we strike the right balance between protecting the public and enabling people with past convictions to make a personal and economic contribution to our society.
As the cabinet secretary outlined, the debate was made necessary by a number of legal actions in England and Wales and ultimately by the Supreme Court judgment that concluded that our higher-level disclosure system was in breach of article 8 of the European convention on human rights. Scottish Labour appreciates that we must act speedily to ensure that Scotland is not in breach of human rights legislation.
It is pretty clear, too, that the system up to now has not been perfect, in that it has not always been proportionate. We want a disclosure system that ensures full and thorough scrutiny of people who work with vulnerable groups and protects our children and young people, but does not automatically require everyone to disclose convictions, which might have occurred a long time ago, regardless of the age of the offender at the time. The order aims to ensure that the right balance is struck, and we accept the Scottish Government’s case for change.
We are concerned about the speed with which the order is being implemented. Tonight, we are being asked to agree a draft order that was laid only on Monday 7 September—just two days ago—yet that is in response to a UK Supreme Court decision that was made back in June 2014. In theory, there has been 15 months for the matter to be properly considered. I know that that was an issue of contention at yesterday’s Delegated Powers and Law Reform Committee. This morning, The Herald described the Government’s approach as a
“scramble to change the law within two days”,
with no real time for proper scrutiny or debate. I do not think that that reflects well on our Parliament, and it is not the best way to amend legislation that touches virtually everybody’s lives.
One of the reasons that was given at the committee yesterday for the shortened timescale was that, because there are 1,000 disclosures a day, holding the process up for three days would mean that 3,000 disclosures would not happen or would at least be delayed, so the committee kind of accepted that it was acceptable.
That is a fair point, which I will come to in a couple of pages’ time. However, the public out there think that, as the court decision was made last June, surely the Parliament has had time to consider it before now. I think that it deserves much better scrutiny than we can give it in two days.
Central to our focus in the disclosure system should be our primary responsibility of ensuring that our system is robust and offers the best possible protection to children, young people and other vulnerable groups as well as the best service to organisations that require disclosures. It should not be about a rush to avoid legal challenge. Indeed, I echo the report of the Delegated Powers and Law Reform Committee, which states that the Government’s approach is
“most unusual”
and
“not one the Committee would wish to see becoming common practice.”
The cabinet secretary has acknowledged the widespread concern about the accelerated process both today and in her letters this week to the Justice Committee, the Delegated Powers and Law Reform Committee and the Education and Culture Committee. That is welcome. She has also agreed that Parliament will undertake
“retrospective scrutiny and an opportunity for a revised order to be laid to take account of any issues arising out of that retrospective scrutiny.”
However, as the Delegated Powers and Law Reform Committee concludes in its report, should Parliament approve the order today,
“this will be the law and further consideration by the Committee will be undertaken in that context.”
That aside, we are prepared to accept that the Scottish Government has had little option but to ensure the passage of the order as quickly as possible. Given that, as John Mason has pointed out, Disclosure Scotland has ceased issuing higher-level disclosures to ensure public confidence in the system, if today’s decision were to be delayed almost 1,000 certificates a day would not be processed or issued. Therefore, speed is of the essence. Delaying the decision would cause major hold-ups for people such as police officers, childcare workers and teachers who are going through the process at the moment, which is why Scottish Labour will support the order at decision time.
Our duty must be to do all that we can to keep our communities safe and the public protected, and that must be first and foremost when it comes to changes that affect children, young people and the most vulnerable groups. We also need to ensure that the system is proportionate and does not undermine the rights of people who have had less serious convictions in the past and are now looking to play a positive role in our society and our economy.
Until now, many of the disclosures that people have made have been unnecessary. An example that was given in the Supreme Court ruling was of a woman who was refused a job in a care home eight years after receiving a caution for shoplifting. We have all had constituents come to us and tell us about a job opportunity that they have been denied because of a speeding conviction many years ago or because they were involved in trouble as a youngster and, decades on, are still being made to pay the price.
For too long, rules that enforce blanket disclosure or the disclosure of irrelevant or unreliable information have blighted people’s lives. We all know that disclosure of even the most minor criminal convictions can have a huge impact on individuals when they seek employment. That impacts especially on men, who are three times more likely than women to have a criminal conviction. Having to disclose previous criminal activity can have an on-going impact on people’s ability to gain employment, attend university or college, volunteer or even open a bank account, while all the evidence suggests that the key to ensuring that people do not reoffend is ensuring that they have a stable job, access to education and positive family relationships, allowing them to move on and play a positive role. Those opportunities are being denied to some people because of the way in which the system operates at the moment.
That said, there will be public concern about the list of the types of offences that now might not be disclosed, which is maybe cast a bit too wide. For example, that list, which is contained in schedule B1, includes public indecency and perjury. I hope that, in the 120-day period that Angela Constance mentioned, there will be sufficient opportunity for retrospective scrutiny and for any concerns to be fully taken on board. I am sure that the Scottish Government will fully engage with all the Parliament’s committees, the relevant stakeholders and, indeed, the public during that period.
I would welcome assurances from the cabinet secretary that Disclosure Scotland and its staff will be fully resourced and trained to adapt to the changes that we will agree today.
Ultimately, the changes are about striking a balance between public protection and people’s right to have their privacy respected. Although I emphasis once more that we are a bit concerned about how the order has been handled and how that reflects on our Scottish Parliament, Scottish Labour will support the Government’s motion.
17:15
I am very pleased to participate in the debate on the amendment order, which was brought to our attention last week. I, too, would like to thank the business managers, the cabinet secretary and her officials and the Minister for Parliamentary Business for keeping members informed of the circumstances surrounding the proposed changes to the higher-level disclosure system.
Two issues need to be addressed. The first is the proposed reforms themselves; the second is the accelerated process that is required in order to achieve their implementation.
On the reforms, let me be clear that robust scrutiny of their backgrounds should be a prerequisite for individuals who are seeking employment in sensitive roles, with vulnerable groups, or in positions of trust and responsibility. If a conviction is spent but is sufficiently serious and relevant to the role’s remit, that should always be disclosed. The gold standard must be that we ensure the safety and security of people who are at risk. Therefore, rigorous tests need to be in place—we simply cannot condone a soft-touch approach on such an important issue.
Equally, the current system, which requires self-disclosures of all convictions, regardless of how old and potentially minor they may be, is undoubtedly anachronistic and, we accept, could in some cases be unfairly prejudicial. As the cabinet secretary said, in June 2014, the Supreme Court of the United Kingdom ruled to that effect, but the particular circumstances of the two cases that give rise to the ruling could not have occurred in Scotland. Nevertheless, it is right that the disclosure system is also under review north of the border.
Based on the evidence so far, the proposed changes seem to be proportionate and acceptable. However, when looking at schedule B1 on “Offences which are to be disclosed subject to rules”—Cara Hilton touched on the issue—we have concerns that individuals with previous convictions for offences such as fire-raising, fraud, housebreaking, theft and public indecency could end up working in sensitive roles and with vulnerable groups. Although I appreciate that non-disclosure of the offences will be dependent on a number of variables—for example, the disposal given and the passage of time since conviction—I very much hope that in practice it is exercised judiciously and sensibly.
It is also important that the public fully understand the forthcoming changes to the higher-level disclosure system and the implications that the changes will have on future employment, where applicable. The reforms are fairly technical, and the effect of such changes will need to be communicated clearly, transparently and accessibly.
I will turn briefly to the accelerated procedure necessitated by the affirmative order. I understand that Disclosure Scotland has ceased issuing higher-level disclosures to ensure public confidence in the system. That is obviously a cause for concern, given the sheer volume of disclosure certificates—around 1,000 a day—that will not be processed as the instrument is being scrutinised.
We support the action that has been taken today by the Government and we support the measures that have been outlined by the cabinet secretary in the debate. We ask the Government to monitor the situation closely to ensure that it has no adverse effects. We also ask that Parliament be kept fully informed about implementation and potential changes.
I call Nigel Don to speak on behalf of the Delegated Powers and Law Reform Committee. I would be obliged if you would continue until 5.25, Mr Don.
17:20
Thank you, Presiding Officer. I will be happy to try to do so.
I am grateful for the opportunity to speak on behalf of the Delegated Powers and Law Reform Committee about an extremely important statutory instrument that was published only on Monday afternoon. That meant that, when it came to my committee yesterday morning, we had had relatively little opportunity to scrutinise it. As other members have said, the instrument will change the rules on the responsibilities that individuals have to self-disclose. It will also adjust the rules on what information about an individual’s previous criminal activity can be used against that individual in various proceedings.
I thank not only the Government for keeping us informed of the possibility that the order might arrive, but my committee’s clerks and our legal advisers, who must have burned some candle wax in providing advice to us on it. I also thank members of the committee for their robust scrutiny of the order over an hour and 40 minutes yesterday morning, and I note that the office of the official report turned round its work very quickly so that not only our report but the Official Report of the meeting were published yesterday afternoon, thereby giving all members an opportunity to find out what had happened.
The exceptional circumstances and timing of the order have already been noted. As a committee, we would not expect such circumstances to arise very frequently, and I am sure that they will not.
In the limited time that has been available to my committee, we have not been able to draw quite as many conclusions as we do on all the other instruments that come before us, but we have drawn the conclusion that there is no reason why we should report the order. I will quote from the committee’s report:
“In the time available to it to consider the draft Order, the Committee has not formed the view that the instrument raises a devolution issue. Nor however can the Committee be confident that no such issue arises. The Committee considers that some of the policy choices which have been made in the draft Order require further investigation with regard to the tests laid down by the UKSC in the T and another case. Further, in the evidence gathered to date, Members recognised that within the range of potentially Convention-compatible solutions, distinct policy choices have been made which the relevant lead Committees will wish to explore”.
I appreciate what Nigel Don says, and I very much agree with the conclusion that the committee—of which I am the deputy convener—came to.
The UK Supreme Court raised the point that
“no assessment was undertaken of the relevance of the information disclosed to the purpose for which the disclosure was required.”
Does the member accept that there is a bit of uncertainty about that, because although there is a right of appeal, in a sense, Disclosure Scotland does not consider the purpose?
John Mason rightly and helpfully brings out the one point that was a slight concern to us. To put that in context, I make it clear that what the cabinet secretary laid before us was a set of rules. We accept that it needs to be a set of rules: we cannot have the circumstance in which anyone in Disclosure Scotland is required to exercise their discretion in coming to a view on applicability of the rules, because that would involve Disclosure Scotland acting as some kind of tribunal, which it is not.
The rules as laid down clearly pick out the different categories of offence, the time that has elapsed since the offence took place and the age of the offender at the time of conviction. However, as John Mason has pointed out, it is clear that they do not specifically cover the relevance, or otherwise, of a conviction to the job for which the individual is applying. I think that all parties will have to consider that, but I make it clear that that is not a reason for reporting the order.
The committee is entirely comfortable that the order satisfies the primary test and does not see why it should be reported. We believe that, fundamentally, it is capable of satisfying article 8 of the European convention on human rights, and we have reported accordingly.
17:25
I start by welcoming the very constructive contributions from Cara Hilton, Mary Scanlon and Nigel Don and the two interventions that John Mason made. Once again, I thank Parliament for agreeing to this accelerated process and pay tribute to members for understanding the position that we have had to start from, which is that the UK Supreme Court’s decision and the subsequent case law have caused us to consider the operation of higher-level disclosures. I appreciate members’ acceptance of and support for the Government’s conclusion that change is necessary.
We are of the view that changes should be made to ensure that disclosure of spent convictions is more proportionate, so the reforms seek to strike the right balance between public protection being first and foremost and, of course, the rights of individuals. The reforms will continue to ensure that vulnerable groups are protected and that a person’s background is assessed for relevant convictions.
It is also important to stress that the most serious convictions will always be disclosed and that under the Rehabilitation of Offenders Act 1974 some convictions, in particular for offences that have warranted a custodial sentence of 30 months or more, will never be spent. The reforms will allow people who have had minor criminal convictions to put their past offending behaviour behind them, thereby enabling them to become more productive members of society instead of being penalised for very old and minor convictions.
I have already acknowledged to Parliament that we have taken the time to understand the direct relevance of each element of the UK Supreme Court judgment, the emerging case law and how all that applies in a Scottish context. Mary Scanlon is right that the original case that went to the Supreme Court could never have happened in Scotland, but we have had to take a very careful and close look at standard and enhanced disclosures and at the protecting vulnerable groups scheme, and then to develop the complex policy and operational solutions that are needed to implement an amended disclosure regime for higher-level disclosures.
Will the cabinet secretary write to me about the exclusion relating to proceedings before the Mental Health Tribunal for Scotland or the Mental Welfare Commission for Scotland, because I found it very difficult to understand why there was still a disapplication in that respect.
I give that undertaking to Dr Simpson. At yesterday’s committee meeting, we began to focus on other aspects, including firearms and gambling legislation. We also need to address concerns that Dr Simpson might have with regard to mental health or the Mental Health Tribunal for Scotland; I give him my personal undertaking that we will do so in the fullest possible terms.
It is important to acknowledge that irrespective of the length of time that passed before we came to Parliament, we would always have sought an expedited process. We have used this unusual parliamentary process to ensure as little disruption as possible to the issuing of higher-level disclosures; indeed, as members have pointed out, each day that Disclosure Scotland does not operate means that another 1,000 higher-level disclosure applications cannot be processed. We have sought to minimise that disruption to three days because we all understand that disruption is undesirable and that it has an impact on an applicant’s ability to secure a job and an impact on an employer’s ability to fill vacant posts. Nonetheless, I reassure members that Disclosure Scotland is fully resourced and ready to deal with that three-day backlog as quickly as possible and that it is confident that it will still meet its targets in relation to completing 90 per cent of applications within 14 days.
My final point is about continued scrutiny. The Scottish Government will welcome continued scrutiny of all those matters. There are 120 days: 60 days for written views to be submitted and another 60 days for committee reports. There will have to be a further parliamentary statement. More fundamentally, we want to ensure that we have the right offences on the right lists, so we will work very closely with Parliament to ensure that the detail of the affirmative order is absolutely right.
The remedial order will be laid tomorrow, and it will come into force on the same day as the affirmative order. That allows for correction of potential incompatibilities and actual incompatibilities with the ECHR. We believe that the changes that we propose to Parliament will underpin a disclosure regime in Scotland that is compatible and complies with the ECHR and will continue to protect the public.
I am grateful to Parliament and seek its support for the draft order.
That concludes a very short debate on the draft Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2015.
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