Chamber and committees

Good morning, and thank you for inviting me to give evidence to the committee on two draft Scottish statutory instruments: the Police Act 1997 (Offences in Schedules 8A and 8B) Amendment (Scotland) Regulations 2022 and the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment (No 2) Order 2022. I hope that the following will be of help to committee members.

The instruments make amendments to the offence lists in the legislation covering disclosure. Those lists contain the offences that must be included when disclosure checks are carried out on individuals. The SSIs are required in order to ensure that there is consistency between state disclosure and self-disclosure.

Most of the amendments made to the offences lists by the instruments are intended to bring them into line with the equivalent lists passed by the Scottish Parliament in the Disclosure (Scotland) Act 2020. The changes made by the instruments will remain in place until that act is fully commenced.

If an offence is not included in the lists, a conviction for that offence cannot be disclosed on any level of disclosure once it is spent according to the Rehabilitation of Offenders Act 1974.

Higher-level disclosures are used for roles involving a high degree of sensitivity, or where there is an expectation of integrity, or for the purpose of public protection. The offence lists therefore serve an important safeguarding purpose by ensuring that information about serious and relevant spent convictions can continue to be disclosed once the convictions are spent.

The legislation contains two lists of offences: list A and list B. Offences in list B are for convictions that must be disclosed in accordance with the rules and include those such as fraud or theft. An individual can apply to have spent convictions from that list removed from their disclosure. To do that, the individual must apply to the sheriff court.

There are some offences that must be disclosed regardless of how long has passed since the conviction. Those are the offences in list A, which include serious offences such as rape and other sexual offences as well as certain terrorism and firearms offences. An individual can apply to have those offences removed only after a certain amount of time has passed and depending on their age at the time of conviction. That application must be made to the sheriff court.

When the offence lists were reviewed for the purposes of the Disclosure (Scotland) Act 2020, some offences were moved between list A and list B, some were removed entirely from list B and new statutory offences that had been created since the offence lists were established in 2015 were added to both lists. For example, the offence under section 1 of the Domestic Abuse (Scotland) Act 2018 of abusive behaviour towards a partner or ex-partner is specified in list A of the Disclosure (Scotland) Act 2020, but it is not specified in the offence lists in the legislation that is currently in force. That means that a spent conviction for such an offence cannot currently be disclosed on any form of higher-level disclosure. I have introduced the instruments in advance of the full commencement of the Disclosure (Scotland) Act 2020 to remedy that and to reduce any safeguarding risks that might arise in the interim period.

In addition to the changes made to align the existing legislation with the Disclosure (Scotland) Act 2020, some further changes are being made to the offence lists to take us through the interim period. Those changes relate to amendments that could not be made during the bill process due to the onset of the pandemic; new offences created since the Disclosure (Scotland) Act 2020 completed its passage through Parliament; and a general review of the offence lists. The factors that informed the creation of the offence lists and the review for the purposes of the Disclosure (Scotland) Act 2020 were revisited in order to classify offences as either serious, and therefore on list A, or less serious and on list B. Full details of the amendments are set out in the policy notes, which I believe members have.

Any corresponding amendments that are necessary to update the Disclosure (Scotland) Act 2020 offence lists will be made as part of the implementation of those provisions in 2024.

My officials and I are happy to take questions on the draft regulations and order.

We know that there are some areas of extremely good practice. Iona Colvin referenced one in North Ayrshire. There are great examples of shared multidisciplinary culture with a shared goal of improving services for children and families. In looking at whether children’s services should be in the national care service, we are considering the opportunities that that would give us to scale that up, to have national standards and to drive good practice in areas where it perhaps is not as good as it is in other areas that we can cite.

The points that Ross Greer raised about education and early learning are important. Ensuring that those linkages remain strong and are built on is absolutely key and really important. Of course, all of the Government’s work with children and young people is underpinned by the GIRFEC approach of getting it right for every child and, by extension into the care service, of getting it right for everyone. Those principles would remain the same. The care and support for a child and their family should be individualised for their needs in a wraparound service. Including children’s services in the national care service would give us the opportunity to expand that across the country by having national standards.

I think that Mr Stewart has covered it all.

I have a point to make in relation to Mr Marra’s question about schedule 3 of the bill and the acts that are mentioned there. All of those acts cover social work-related local authority functions and duties—that is why they are included in schedule 3.

We will give on-going consideration to what is in and what is out on the basis of the evidence, the consultation and the research that has been commissioned. This is not set in stone; we will continue to consider these matters.

We are talking about a national care service that might or might not have children’s services in it. I am sure that Mr Marra is aware that we are in negotiation with COSLA on that issue, and have been for some time. We are very keen to get a resolution to that. There would be a financial cost within that.

I do not think that Mr Stewart could answer that question at the moment, simply because he does not have the figures in front of him, but we are not waiting—we are working on those issues.

No—I am happy for you to move on.

I covered some of the primary legislation that Mr Dey has alluded to in answer to Mr Marra’s earlier question. The pieces of primary legislation in question, which are all listed in schedule 3 to the bill, relate to local authority social work functions and duties. We are in the process of identifying all the relevant Scottish statutory instruments that might be affected if those functions were to be transferred, and much of that work has already been done. Where adjustments to SSIs are needed to further reflect the transfer of functions, that can be done through the ancillary powers in section 45 of the bill. I hope that that will reassure Mr Dey a bit.

I am afraid, though, that I will have to ask him to repeat the second part of his question. I must apologise for not scribbling it down.

Good morning, and thank you for the committee’s invitation to be here.

Mr Stewart has spoken about what we hope to achieve with this reform of Scotland’s community health and social care system. I will speak about the impact that the national care service will have on services for children and young people.

The national care service will provide support for adults, including children’s parents, grandparents and adult siblings. The most important structure around children is their family and services must wrap around the family. Children become adults and transition between services, which is often a difficult process.

The current landscape is complex, with 31 integration authorities taking a variety of approaches to the integration of children’s services with adult, community health and justice services. We must ask ourselves whether the best way to help children is for those services to be together or apart. To answer that question, we have commissioned independent research to consider how children’s services are currently delivered across Scotland.

Making no change is not an option, so it would be too risky not to consider including children’s services now. However, I reiterate Mr Stewart’s point that no decision has yet been made about whether children’s services will be included in the national care service. The bill therefore provides a mechanism to include children’s services in the NCS by secondary legislation, if we ultimately decide that that is what is best for children, young people and families. The full detail of any proposal to include children’s services in the NCS will be available for scrutiny, consideration and consultation.

The independent care review told us that significant change is needed to improve the care and support that children and young people receive. All of us here, and across all the organisations that work with children and families, are committed to delivering the Promise. Building on our approach to getting it right for every child, we are continuing to make the improvements that we need to see in children’s services. That work will not pause because of the national care service. Strong links with other services that support children, such as education and early learning and childcare, must be maintained and strengthened, whatever the decision is.

I also recognise the challenges and demands that those working with children and families face every day. If we transfer children’s services to the national care service, that must improve the experience of the workforce.

We want to carefully consider whether it would be best to include services that support children and young people in the national care service. Meanwhile, we will make sure that the needs of children and young people are a key consideration in the development of the national care service.

To follow on from what my colleague has said, the independent review into adult social care made recommendations that are equally applicable to children’s services: fairness and equity; the removal of variation in eligibility in charging and commissioning; and removing unwanted variation across services, local authorities and integration joint boards.

Given the change that the National Care Service (Scotland) Bill will bring, if it is passed, it would be too risky not to consider the inclusion of children in the national care service. None of us would want to think of children as an afterthought. The interface between services for adults and children has been a critical consideration regarding the impact that the NCS could have on children’s services. As Mr Stewart and Iona Colvin mentioned in their evidence, we cannot view children in isolation. Children live as part of families; they do not live in silos, and their needs are not singular.

We are considering services in the round. The public consultation in 2021, which Mr Stewart mentioned, included questions on children’s social work and social care services. The responses to that consultation were mixed, and key stakeholders highlighted the need for more evidence, which is what we have set out to address.