Protection of Children (Scotland) Bill: Stage 3
We now come to stage 3 proceedings on the Protection of Children (Scotland) Bill. Members will need copies of the bill, the marshalled list and the groupings. Two minutes will be allowed for the first division following the debate on the first group of amendments. One minute will be allowed for divisions on the lead amendment in subsequent groups, should they be necessary.
Section 3—Reference by employment
agency etc
The first group of amendments relates to the duty to make a referral. Amendment 1 is grouped with amendment 2.
Amendments 1 and 2 will extend the duty to make referrals to employment businesses. That duty will be backed up by the offence that all organisations will commit if they fail to comply.
It is worth reminding members why we are lodging the amendments at this stage. Employment businesses employ staff who are deployed to work in other organisations. Employment agencies that operate simply as an introductory service will not be covered by the duty, because there are already provisions in the bill that will allow them to make referrals in appropriate circumstances.
An amendment that was lodged at stage 2 would have extended the duty to refer to all organisations. There is no reason to distinguish between employment businesses and other organisations that directly employ staff in child care positions. They have the same employment relationships with their staff and have responsibilities for disciplinary and dismissal action. It is therefore reasonable that the duty to make referrals should also apply to them. We must ensure consistency and close all potential loopholes.
I did not consider it appropriate at stage 2 to extend the duty to make referrals to employment businesses as there had been no opportunity to consult them. We have now contacted and consulted a range of employment businesses, and they do not object to the proposal.
We intend to produce comprehensive guidance during implementation to ensure that all organisations understand their new duties.
I move amendment 1.
I am not rising to speak against amendment 1. In fact, the SNP will not oppose any of the amendments that have been lodged at stage 3.
The stage 2 amendment to which the minister referred would have extended the duty to make a referral beyond registered child care agencies to all organisations. That provision was widely welcomed. However, the minister will recall that concern was expressed that it would increase the already heavy administrative and financial burden on voluntary organisations. It was reassuring to hear the commitment that the minister gave to putting in place support, guidance and training to ensure that the voluntary sector can fulfil its duties and responsibilities under the bill.
I seek further clarification from the minister on the level and nature of that training, support and guidance. When the minister is assessing what is required, will she take into account fully the practical and resourcing issues that many voluntary organisations will face, both when implementing part V of the Police Act 1997 and when dealing with the additional administrative and financial burdens that are imposed by the bill? I am sure that the minister will agree that it is very important that sufficient resources are made available to the voluntary sector to enable it to implement the legislation effectively.
I welcome Irene McGugan's commitment that the SNP will support the amendments that have been lodged. I hope that that is an example of good practice, because we discussed a lot of the issues fully at stage 2.
I state for the record the same information that I gave at stage 2. It is important to recognise that the voluntary sector comprises organisations of a range of types, sizes and natures. Some voluntary organisations have well-developed employment practices and disciplinary procedures and will be ready to pick up the small amount of additional work that might be required in relation to the bill. I am aware that many other organisations, particularly those that rely on volunteers rather than on paid staff, will need time to gear up and will need to be supported in the process.
I intend to work with representatives of a range of voluntary sector organisations in developing the appropriate guidance so that we can consider the nature of support that the organisations will need. I am happy to restate that commitment today.
Amendment 1 agreed to.
Amendment 2 moved—[Cathy Jamieson]—and agreed to.
Section 7—Provisional inclusion in list
The second group of amendments is on the extension of provisional listing. Amendment 3 is in a group on its own.
Amendment 3 will allow ministers to apply to the sheriff for an extension to the six-month limit on provisional listing. The sheriff would be able to grant an extension of no more than one period of up to six months if they were satisfied that there was a good reason for doing so.
We believe that provisional listing is an essential part of the safeguards for preventing unsuitable people from moving undetected from one post to another. We recognise the need to keep provisional listing to an absolute minimum to avoid any undue distress to the individual concerned. That is why we have said that a determination will be reached within six months. However, we must provide for cases where that will simply not be possible. There could be a case where an individual was in hospital and could not submit observations on the evidence submitted with the referral. It would not be appropriate to move to a determination without giving the individual the opportunity to comment, but nor would it be appropriate in all instances simply to remove the individual from the provisional list.
A non-Executive amendment at stage 2 removed the provision for any extension because of concerns about the scope for provisional listing running indefinitely. We have addressed those concerns in amendment 3. The provision will be used in exceptional circumstances once only and for a maximum period of six months. The amendment is essentially for practical purposes and I believe that it addresses the concern that was expressed by the Education, Culture and Sport Committee.
I move amendment 3.
I am grateful to the minister for moving amendment 3. I moved a large number of amendments at stage 2 and the amendment to which she referred is the only one that was successful. I am glad that the minister has come back with a sensible wording. There was considerable concern—and concern remains in many quarters—about the scope of provisional listing and the fact that, in essence, it makes people provisionally guilty, a concept that is unknown in law.
Even in the circumstances in which provisional listing might be justified, there needed to be a limit on an extended period. If there were no limit on the extended period, somebody could be in legal limbo indefinitely. As Irene McGugan said, we will support all the Executive amendments. Amendment 3 will ensure that the committee's views are honoured in the bill.
We, too, support amendment 3. We supported Mike Russell's amendment at stage 2 to remove provisional listing, but we are content that limiting it to one period of six months is the right step. It gives a degree of protection but also allows the Executive to keep provisional listing. The reasons that the minister outlined, both in the committee and today, to keep provisional listing with that qualification make sense.
I endorse the comments of the two previous speakers and I thank the minister for taking note of the committee's feelings. As the minister knows, I am hesitant about the whole idea of provisional listing. However, amendment 3 represents a sensible compromise that will help to protect children without infringing human rights to the extent that the original provision threatened to do.
I thank members for their support for amendment 3. I acknowledge the concerns about provisional listing that were expressed during stage 1 and stage 2. We must recognise that there is a fine balance between protecting children and highly vulnerable young people who might have no one to speak up for them and protecting the rights of individuals who could be subject to listing. Amendment 3 is the result of a commonsense compromise approach and I am glad to have members' support.
Amendment 3 agreed to.
After section 8
The third group of amendments deals with protection from defamation. Amendment 9 is in a group on its own.
Amendment 9 seeks to clarify the laws on defamation as they apply to the bill. Any information that is submitted with a reference for inclusion in the list of people who are unsuitable to work with children will attract qualified privilege. Observations that are made on the information that is submitted with such a reference will also be covered by qualified privilege. As a consequence, those who provide information in connection with the list will have a defence against defamation, unless they were motivated by malice.
During earlier stages, I listened carefully to the arguments for protecting people from being sued for damages as a result of referring individuals to the list. It is important that any obstacles are removed and that people can confidently pass on the information that we need to strengthen procedures for the protection of children. However, it would certainly not be appropriate to protect referrals that were made maliciously.
Amendment 9 puts it beyond doubt that qualified privilege will attach to communications relating to inclusion in the list and removes any doubt about whether the existing laws of qualified privilege would apply. Therefore, those who make statements in good faith will be protected. We have taken account of the concerns that have been raised and adopted a commonsense approach. Our compromise proposal seeks to clarify the existing legislation in the context of the Protection of Children (Scotland) Bill. Amendment 9 sets out the right level of protection.
I move amendment 9.
During stage 2, in response to my moving of an amendment, the minister made a commitment to reconsider the issue. I am grateful that she has returned with a solution.
The issue is particularly important in the context of the Protection of Children (Scotland) Bill. As the bill is based not on legal convictions, but on tribunals and decisions by employing authorities, it is possible that an allegation that is made might result in legal action against the person who makes the allegation. Amendment 9 moves us forward.
I hope that amendment 9 also sets a legislative precedent for tackling the difficulties that have arisen in the case in Dumfries of Michael MacKinnon, whose appeal in relation to a complaint that he had made on a teaching matter failed yesterday. I do not want to go into the merits or otherwise of that case, which many people still believe in strongly. It is vital to ensure that young people and their parents who come forward do not become the subjects of legal action on the ground of malicious allegation if the accusations that they have made are believed by the organisation that goes on to take proceedings. That is the key issue.
Malicious allegations should always be acted against but, if a body—in the case of Michael MacKinnon, a local authority—accepts certain allegations and, on the basis of those allegations, takes action, the individual who made the allegations should not find themselves in a difficult position.
I am grateful that amendment 9 represents a small initial step on that general issue. I hope that the minister will consider returning to the issue. We will return to the issue of providing additional privilege in those very special cases. Although we do not want to protect people who make malicious allegations from the consequences of their actions, if allegations are believed by a body that goes on to take action, the responsibility for those actions should devolve on that body, not on the individual who made the allegations. Amendment 9 takes us a step forward. In the context of the bill, it does exactly the right thing. I am grateful to the minister for lodging the amendment.
I support Michael Russell's position. The situation to which he referred is a difficult one. The arguments that Michael Russell has made are worthy of consideration. Although amendment 9 takes us forward in the context of the bill, there are wider issues that it would be worth while revisiting.
It would not be appropriate for me to comment at this point in time on the case that Michael Russell mentioned.
During stage 2 consideration of the bill, I gave a commitment that I would look at how we could strengthen the position in the bill and that is why I have moved amendment 9 today. I believe that the amendment is the right course of action. It would simply not be appropriate if the bill were to cover anyone who made any statement at all, whether maliciously or otherwise. It is important to get the balance of protection right, and I believe that the amendment achieves that. Once again, I am glad to have the support of the committee members and of the wider Parliament.
Amendment 9 agreed to.
Section 11—Searches of lists: amendment of Police Act 1997
Amendment 4 is grouped with amendments 7 and 8.
Amendments 4, 7 and 8 are technical amendments, which are consequential on the Education Act 2002.
Amendment 4 is a minor amendment, which would make it clear that amendments made by the Education Act 2002 to part V of the Police Act 1997 extend to Scotland. Amendment 4 will mean that information from the list and from equivalent lists kept for England and Wales will be released as part of a disclosure check under part V of the Police Act 1997 for a specified range of positions. It is essential that we provide for consistency across the UK.
It is also important to ensure that a person who has been banned from working in one part of the UK cannot obtain work with children in another part of the UK simply by crossing a border. Section 15 will mean that, if people are banned from working with children in other jurisdictions, the ban will extend to Scotland. The legislation that allowed the Secretary of State for Education and Skills and the National Assembly for Wales to keep lists of people who are barred from teaching and from other work that involves regular contact with children in a local education authority, a school or further education institution has been repealed and has been replaced by the Education Act 2002. Sections 15(1)(c) and 15(1)(e) are therefore obsolete and need to be deleted. Amendments 7 and 8 will do that. The new powers for maintaining the education lists are referred to at section 15(1)(d).
I move amendment 4.
Amendment 4 agreed to.
Amendment 5 is grouped with amendment 6.
Amendment 5 is a minor drafting adjustment, which will correct an error that has been noted in the amendments made to the Police Act 1997.
Amendment 6 will remove an unnecessary provision. Section 11(3) would have allowed Scottish ministers to lay regulations relating to part V of the Police Act 1997, but those powers already exist by virtue of the Scotland Act 1998.
I move amendment 5.
Amendment 5 agreed to.
Amendment 6 moved—[Cathy Jamieson]—and agreed to.
Section 15—Meaning of "disqualified from working with children"
Amendments 7 and 8 moved—[Cathy Jamieson]—and agreed to.
That ends our consideration of amendments.