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Chamber and committees

Meeting date: Wednesday, June 10, 2020

Meeting of the Parliament (Hybrid) 10 June 2020

Agenda: First Minister’s Question Time, Business Motion, Covid-19 (Tourism), Showing Solidarity with Anti-racism, Disclosure (Scotland) Bill: Stage 3, Disclosure (Scotland) Bill, Point of Order, Business Motion, Parliamentary Bureau Motions, Decision Time


Contents


Disclosure (Scotland) Bill: Stage 3

The Presiding Officer (Ken Macintosh)

The next item of business is stage 3 proceedings on the Disclosure (Scotland) Bill. In dealing with the amendments, members should have with them the bill as amended at stage 2, the marshalled list and the groupings of amendments. I remind members that, as usual, the division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for that first division will be 30 seconds. Thereafter, there will be a voting period of one minute for the first division after a debate.

Section 29—Review of removable convictions by the independent reviewer

The Presiding Officer

The first group consists of minor and drafting amendments. Amendment 1, in the name of the Minister for Children and Young People, Maree Todd, is grouped with amendments 2, 3, 20, 21, 27, 28 and 30 to 34.

The Minister for Children and Young People (Maree Todd)

The amendments in this group are minor and drafting amendments, and they do not make any policy changes. They are required, as a consequence of amendments made at stage 2, to provide consistency in drafting between provisions.

Amendments 1 to 3 bring the drafting of sections 29(2), 29(3) and 31(5) into line with that of section 28(2), so that they refer to a review of “the inclusion of” the removable conviction, rather than to

“a review of the removable conviction”

itself or to

“a review ... of the details of a removable conviction”

Amendments 20 and 21 are minor consequential changes to section 73, adding a reference to a provision inserted at stage 2. They simply mean that the persons referred to in new section 45B(4) of the Protection of Vulnerable Groups (Scotland) Act 2007 are to be notified when ministers have decided to extend the scheme member’s participation in the scheme for the discretionary membership period.

Amendments 27 and 28 make technical adjustments to the wording of section 82, which gives effect to amendments to the PVG act to bring that section into line with the drafting approach of other provisions that amend that act.

Amendments 30 to 34 are minor adjustments to the list of offences in schedule 2. They are consequential on amendments made to the offence lists at stage 2. In particular, there is no longer a paragraph 1 in schedule 2, which is a consequence of amendments made at stage 2. References to that paragraph in paragraphs 111 to 115 in part 3 of schedule 2 are redundant and need to be fixed. Amendments 30 to 34 correct those now obsolete references to paragraph 1 with references to paragraph 2, which is now the first paragraph in the schedule.

I move amendment 1.

Jamie Greene (West Scotland) (Con)

I thank the minister for coming back to the chamber with those amendments, which reflect much of the conversation at stage 1, the committee’s stage 1 report and feedback from the stage 2 proceedings. As we go into the stage 3 debate, I will speak further on the wider bill but, at this point, members from these benches will not comment further on groups 1, 2, 3, 5 and 6. We will support all Government amendments that are placed before us at stage 3. However, subject to comments or speeches that are made throughout the debate, we might interject as appropriate, specifically around group 4. The Government can enjoy our support for all the amendments today.

Amendment 1 agreed to.

Amendment 2 moved—[Maree Todd]—and agreed to.

Section 31—Independent reviewer: information and representations

Amendment 3 moved—[Maree Todd]—and agreed to.

Section 34A—Disapplication of provisions of section 4 of the Rehabilitation of Offenders Act 1974

The Presiding Officer

Group 2 is on level 2 disclosures. Amendment 4, in the name of the minister, is grouped with amendments 5 to 19.

Maree Todd

Section 34A was inserted into the bill by way of amendment at stage 2. It is modelled on section 8 of the Age of Criminal Responsibility (Scotland) Act 2019. Section 34A lifts the protections against the normal duty to self-disclose information about spent convictions that is afforded by section 4 of the Rehabilitation of Offenders Act 1974. That is so that someone who has applied for a review, under section 25, of the inclusion of

“a spent childhood conviction or children’s hearing outcome”

has to answer questions and provide honest and accurate information about that conviction or outcome for the purposes of the review. Our intention is to ensure that an individual who seeks review of the inclusion of a removable conviction, whether by Scottish ministers under section 28 or a review by the independent reviewer under section 29, is still required to answer honestly any questions that they are asked by ministers, the independent reviewer or a sheriff regarding the circumstances of their convictions, even after they are spent.

Amendments 4 to 19 cater for reviews of the inclusion of removable convictions in section 34A, bringing removable convictions into line with childhood convictions and children’s hearing outcomes in that section. Amendment 5 is the main amendment that achieves that. The other amendments in the group are technical, consequential amendments to the drafting and structure of section 34A, to reflect the reviews of the inclusion of removable convictions.

I move amendment 4.

Amendment 4 agreed to.

Amendments 5 to 19 moved—[Maree Todd]—and agreed to.

Section 73—Failure to apply for renewal of Scheme membership

Amendments 20 and 21 moved—[Maree Todd]—and agreed to.

Section 74—Compulsory Scheme membership

The Presiding Officer

Group 3 is entitled “PVG Act: power to require organisations to stop using individuals for regulated roles without scheme membership”. Amendment 22, in the name of the minister, is grouped with amendments 23, 24 and 29.

Maree Todd

Amendments 22 to 24 are technical amendments to ensure that there is consistency of approach in relation to the parliamentary procedure to which regulation-making powers are subject.

At stage 2, section 74 of the bill was amended to insert a new section 45DA into the PVG act, creating a new power in connection with the mandatory scheme. Section 45DA(1) provides Scottish ministers with the power to make regulations to require organisations to stop using individuals for regulated roles without scheme membership. It is an offence under section 45DA(3) for an organisation to fail to comply with such regulations.

Section 45DA closely follows the approach in section 35(2) of the PVG act, which provides Scottish ministers with the power to make regulations in respect of stopping organisations from using barred individuals for regulated work. Although section 45DA is based on section 35(2), there is a mismatch in the parliamentary procedure to which those regulations are subject.

By virtue of section 100(3) of the PVG act, any regulations that are made under section 45DA(1) are subject to the negative procedure. However, when read with section 100(4), regulations made under section 35(2) of the PVG act are subject to the affirmative procedure. That issue was highlighted in the supplementary delegated powers memorandum that was for the attention of the Delegated Powers and Law Reform Committee. Accordingly, amendments 22 to 24 have been lodged to resolve that inconsistency by making regulations that are made under new section 45DA(1) also subject to the affirmative procedure. I believe that that is the appropriate level of scrutiny, given that regulations that are made under that section relate to offence provisions.

Amendment 29 also relates to new section 45DA. Proposed new section 47G of the PVG act, which is to be inserted by section 85A(3) of the bill, ensures that Scottish courts have clear jurisdiction over the new offences that are inserted by the bill into the PVG act. That applies in circumstances in which work is done outside Scotland that would be a regulated role if it were carried out in Scotland, or in which an organisation that is based outside Scotland sends someone to do a regulated role in Scotland.

Amendment 29 adds section 45DA into new section 47G to ensure that the offence of an organisation failing to comply with regulations that are made under section 45DA can be prosecuted in Scotland. The amendment ensures that there is consistency between all the new offences that are inserted into the PVG act by the bill.

I move amendment 22.

Amendment 22 agreed to.

Amendments 23 and 24 moved—[Maree Todd]—and agreed to.

After section 75

The Presiding Officer

We turn to group 4, although I foresee a problem. Group 4 is on the PVG act: review and report on application of scheme to elected representatives and political activity. Amendment 39, in the name of Alex Cole-Hamilton, is the only amendment in the group. Alex Cole-Hamilton is not here, and no other member wishes to move the amendment on his behalf. [Interruption.] Mr Cole-Hamilton has arrived just in time.

Alex Cole-Hamilton (Edinburgh Western) (LD)

It gives me great pleasure to apologise to the chamber for a second time today. I had no idea that we would rampage through the earlier groups so quickly. I had to return an important telephone call, but I give my sincere apologies. [Interruption.]

The Presiding Officer

Let us hear Mr Cole-Hamilton.

Alex Cole-Hamilton

Members of the Education and Skills Committee will be familiar with the policy intention behind my amendment 39. Nobody else is allowed to be alone with children or vulnerable adults without a basic check being done first, but there is nothing legally to prevent MSPs from doing that. In fact, they and other powerful figures in politics are explicitly excluded from the provisions. That is wrong. There cannot be one rule for politicians and another for everybody else.

At stage 2, I was disappointed that the amendments that I lodged to change the position were not agreed to. I understand colleagues’ objections, but I hope that, in amendment 39, I have found a way through that might generate more support. Despite the way that the votes ultimately fell at stage 2, I was encouraged by committee members’ comments. There was overall agreement that the matter should be looked into.

Gail Ross agreed that

“it is anomalous that people in positions such as ours, with the powers and responsibilities that we have, are not subject to PVG checks or something similar.”—[Official Report, Education and Skills Committee, 11 March 2020; c 15.]

Iain Gray said that the principle seemed “worthy”. Ross Greer said that he appreciated what I was “trying to achieve” and asked for a “wider debate” to ensure that sensible questions can be given “satisfactory answers”. Jamie Greene told me that he shared my concerns and said that, to

“do the proposal full justice”,

we needed

“a due process of scrutiny.”—[Official Report, Education and Skills Committee, 11 March 2020; c 16.]

I hope that they and other members can see what I am seeking to do with amendment 39. In the current context, the approach in amendment 39 is the least burdensome that I can think of and achieves the objective of a proper discussion.

17:30  

Ministers would have until the end of June 2021 to establish an expert working group, which could involve doing as little as deciding on its chairperson. Amendment 39 would not place any deadline on when the working group would report. Once it reported, ministers would have a year to reflect on that and report back to the Parliament, thereby giving enough time for further evidence to be taken or for consultations to be done, if that was deemed necessary.

I apologise again for my tardiness.

I move amendment 39.

Daniel Johnson (Edinburgh Southern) (Lab)

I begin by offering some personal advice: if someone is moving an amendment, it sometimes helps for them to sit through all the stage 3 proceedings. However, I will move on.

I had a number of concerns about and criticisms of the amendments that Alex Cole-Hamilton lodged at stage 2. My concerns were principally because the bill aims to simplify the system of PVG checks and prevent there being a simple, transferable passport that enables individuals to have unsupervised access to children. The focus on protected roles rather than protected work is very clear and useful, and his suggestions clouded the issues.

Furthermore, it is problematic to assume that someone has unsupervised access to children by dint of being an elected politician; that is a very dangerous proposition. However, I recognise that the position and office that we hold might lead others to assume that we might be allowed such access, which might lead unscrupulous individuals to infer that we do. Consideration is required, and therefore Alex Cole-Hamilton’s proposals at stage 3 are reasonable.

Whether MSPs should be subject to record checks is an appropriate suggestion, as is looking at whether proposals could be brought forward—

Alex Cole-Hamilton

I heard what Daniel Johnson said about it being very unlikely that members would have unsupervised contact with children. I also heard sedentary mutterings from members around the chamber that they never have unsupervised contact with children or vulnerable adults. However, that is the moral test that members set themselves and the moral threshold that they decide is appropriate.

I am not suggesting that anybody in the chamber would take such a risk. However, the provisions in my amendment are not about upstanding, law-abiding members of the public. We have to recognise that there are bad apples in politics—as there are in every walk of life—who might use their position of power to gain access to children or vulnerable adults. There is no legal, constitutional or procedural impediment in the Parliament to prevent us from having unsupervised contact with children or vulnerable adults, and I believe that the only safeguard that we can put in place is to have the same checking and disclosure system that we use for all other positions of authority.

Daniel Johnson

I thank Alex Cole-Hamilton for that intervention. However, I think that he somewhat repeated his initial proposition, which I find deeply problematic. It is not that there is no impediment; we simply should not have unsupervised access to vulnerable adults or children by dint of our being MSPs. That is quite simple and straightforward, and for him to repeat his point is somewhat dangerous.

Nonetheless, Alex Cole-Hamilton’s point about bad apples was well made. Our position is such that people could infer that we have such a right and, in that narrow regard, I think that his proposal for a working group to be created, a report compiled and propositions looked at is appropriate.

I am happy to support amendment 39.

Jamie Greene

I do not want to dwell on the arguments that we had at stage 2. Amendment 39 is different, and I give credit to Alex Cole-Hamilton for that. I also give him credit for bringing the issue back at stage 3 for the benefit of those who did not sit through the debate at stage 2.

I was a new member of the Education and Skills Committee during stage 2. Indeed, the bill was the first piece of legislation that I considered as a member of the committee. We had a very comprehensive debate on the issue, which we looked into in great detail. Across the committee, there was sympathy with the rationale behind what Alex Cole-Hamilton was trying to achieve—he picked up on that in his comments. There are circumstances where the proposed measures might have a beneficial outcome, but there was consensus that the bill is not the right mechanism to deliver the outcome that he seeks.

Amendment 39 is a substantial amendment, so it deserves our scrutiny in the chamber today. It asks ministers to set up a working group that will report back to ministers, after which ministers will report back to Parliament on their plans. I do not distrust ministers, but my problem with that approach is that it puts into the hands of politicians—indeed, into the hands of the politicians in whichever political party is in government—the power to recommend an alteration to the franchise in relation to who can be a member of this Parliament. Fundamentally, that puts the power into the hands of the wrong people.

I do not think that the amendment will have the outcome—it is a valid one—of dealing with the issue that Alex Cole-Hamilton is trying to address. Politicians are put in all sorts of circumstances in our constituency offices and in the course of our business—Daniel Johnson spoke at length about that and made some important observations in committee. I do not see how the amendment will deliver what Alex Cole-Hamilton is trying to achieve, but I am happy to give way to him if he wants to clarify that.

Alex Cole-Hamilton

I appreciate Jamie Greene’s kind words about what is my second attempt with these provisions. My issue with his remarks is that he suggests that the findings of a working group would somehow alter, as he describes it, the franchise relating to the people from whom we elect our parliamentarians or other elected members. That is certainly not the intention of the amendment; in fact, I do not think that it would be lawful to do that.

My amendments at stage 2 were about ascertaining whether a prospective candidate or a sitting parliamentarian was on the list of people who are barred from working with children or vulnerable adults. The working group might recommend that the Parliament has a duty to ensure that such people never have unsupervised contact—not that they should be barred from standing for elected office. That is an important distinction, which Jamie Greene has not recognised in his remarks thus far.

Jamie Greene

What is the point of such disclosure if it is not to prohibit any individual from standing as a candidate or becoming an elected member?

The second part of the amendment defines the legislation that Mr Cole-Hamilton would want ministers to introduce; it refers to

“a Bill for an Act of the Scottish Parliament”.

It also defines an “elected representative” as

“a member of the House of Commons, a member of the Scottish Parliament,”

or

“a councillor of a council.”

If we agreed to amendment 39, we would be encroaching on other pieces of legislation and, indeed, legislatures over which we have no control, so for that reason we will not support the amendment at the late stage at which it was introduced.

However, we commend Alex Cole-Hamilton for valiantly trying to bring the issue back to our attention. I am sure that the Government will reflect on it. I hope that we will hear more today about how the Government will approach the issue; if we do, the Government will have the support of all parties.

Iain Gray (East Lothian) (Lab)

Mr Greene was right that, at stage 2, there was a pretty comprehensive examination of the ideas that are encompassed in the amendment that Alex Cole-Hamilton has brought forward today.

Committee members identified a number of significant problems. One was the problem that Daniel Johnson referred to regarding the questionable or debatable idea of the appropriateness of the ways in which parliamentarians should go about their work. There were other problems, such as questions about the procedures that would have to be put in place for what would happen if something was disclosed in a PVG submission. There is a real danger that the position of ministers might be compromised by their having privileged access to information on MSPs in their own party or other parties. To be fair, the minister made it very clear that that was not a position in which ministers wanted to be placed.

Mr Greene also touched on one of the other problems with Alex Cole-Hamilton’s proposals: their breadth. They were not just proposals about MSPs, because they also encompassed councillors, many of whom, although not all, are members of the PVG scheme—for example, if they are on a council’s education committee. The proposals had not been discussed with councillors, who had not been consulted about them.

The amendment also covers members of Parliament. There was some debate in the committee as to whether that would stray into an area beyond our constitutional powers. Mr Cole-Hamilton argued that it would not, but I did not find that convincing.

Perhaps most difficult of all, the proposals strayed into mentioning party officials—a term that was poorly defined—and then on to candidates. There were genuine questions about how the democratic right to stand for election might be compromised.

Alex Cole-Hamilton

I am grateful to Mr Gray for giving way, and I will not take up much more of Parliament’s time.

My stage 2 amendments were clumsily drafted and Mr Gray has rightly questioned them. However, does he agree that the issue comes down to the potential for people in powerful positions—such as the chair of a selection committee, a local party chair or agent who has the power to make or break political careers—being able to use their power with nefarious intent? Does he recognise that that is, at present, a power that otherwise goes unchecked?

Iain Gray

I do not accept that Mr Cole-Hamilton’s amendment is the legal mechanism by which to deal with such a situation.

I have to accept the quotation ascribed to me by Mr Cole-Hamilton. I can see, with regard to MSPs—and only MSPs—that there may be a principle here: why should there be a requirement that we place on so many others but which is not placed on us? For that reason alone, we are prepared to support further examination of the proposals, although we do so in the full knowledge that those doing that examination may also struggle to reach an appropriate resolution to the problems that the committee identified.

Clare Adamson (Motherwell and Wishaw) (SNP)

As convener of the Education and Skills Committee, I take this opportunity to thank my colleagues for their diligence throughout the stage 2 proceedings on the bill.

I agree with much of what has been said today. We all support the intent behind the amendment. Nobody in the chamber has a monopoly on giving our communities and the wider public confidence that they are protected in the best way possible by the disclosure system. However, to suggest that amendment 39 solves the problem that Mr Cole-Hamilton has raised would be misleading and could lead to confusion that there is some sort of protection that has not been provided.

I hope that there is another mechanism by which we can take the issue forward, but I do not think that that should happen through the bill.

Maree Todd

I recognise Alex Cole-Hamilton‘s strength of feeling on the matter and I commend his persistence on such an important issue. It is also clear that he has reflected on the debate at stage 2 and has sought a solution.

However, I still do not think that the bill is the appropriate mechanism for what needs to be achieved. As members will be aware, at stage 2, Mr Cole-Hamilton lodged related amendments, which were intended to bring MSPs within the scope of regulated roles and the mandatory PVG scheme and which the members of the Education and Skills Committee debated and overwhelmingly voted against. They noted that, although the amendments were well intentioned, the issue was one for the whole Parliament to reflect on so that it could reach a consensus on matters that extend beyond the remit of the bill. It was clear at stage 2 that the bill is not the vehicle to bring about the changes that Alex Cole-Hamilton seeks. That remains my view.

17:45  

The new proposals in amendment 39 would require the Scottish ministers to commission an expert working group to consider safeguarding in relation to elected representatives and political parties in the context of the disclosure system. Ministers would then be required to lead on deciding what legislation or other options could be brought forward in response to the expert group’s report.

Although I agree about the merits of creating a working group to look at the child protection issues around elected members, I do not think that it would be helpful to place the solution in the context of the bill and the disclosure regime. I agree with Jamie Greene that that would afford Parliament too little breadth of involvement, as the solution may lie in oversight of MSP conduct more generally and not simply in disclosure—I think that Labour Party members made the same point. Alex Cole-Hamilton made the point that the disclosure system is the only solution to the problem that he presents, but I profoundly disagree with that. The disclosure system is simply one part, albeit an important one, of the measures that exist to protect children and vulnerable adults from harm in Scotland.

Situating any review within the disclosure framework could limit the range of solutions that may flow from the working group’s recommendations. For instance, any legislative solution would simply take us back to the significant constitutional issues that I set out in response to Alex Cole-Hamilton’s stage 2 amendments on the issue. Alternatively, in an attempt to overcome the constitutional issues, the legislative response would in essence be toothless. Further, any legislative response in the context of disclosure would still have to overcome a number of practical issues, such as to whom a disclosure relating to an MSP would be made.

In respect of amendment 39, I would like to draw a few observations to members’ attention. If amendment 39 and the Government’s amendments 35 and 36, on the term “elected representative”, are accepted, that would result in two different definitions of the term in disclosure legislation.

Proposed new section 92A(10)(a), which amendment 39 would insert into the Protection of Vulnerable Groups (Scotland) Act 2007, provides that the meaning of “elected representative” includes

“a councillor of a council”,

but amendment 36, in my name, proposes the removal of that phrase from the bill. If my amendment was accepted, some councillors would continue to be within the scope of the scheme.

It is important to note that any proposal on elected representatives that was brought forward in response to the report of the working group to be set up under amendment 39 would likely encounter difficulties in finding a legislative solution, given that the definition of “elected representative” in proposed new section 92A(10)(a) would still include members of the House of Commons.

Alex Cole-Hamilton referred to a review one year on from royal assent being given to the bill, but I wonder whether he is aware that his amendment would amend the Protection of Vulnerable Groups (Scotland) Act 2007 and so would change measures that came in back in 2008. That muddle somewhat illustrates my point. Although the intention of the amendment is good, its execution is not.

As I said, amendment 39 is not the right solution to the undoubtedly important issue that it seeks to address. However, given the importance of the safeguarding issue, I want to offer an alternative solution that is wider in scope than the bill can provide for.

The Scottish Government proposes to commission and fund an independent review, to be chaired by ministerial appointment. The independent review, like the working group that Alex Cole-Hamilton proposes, would consider the issue of safeguarding in relation to elected representatives. The review could then make recommendations to the Parliament and the Government, as it sees fit. However, the remit of the review could be much wider than simply looking at the disclosure system, so any recommendations could be of further reach and could be more effective. A wider range of voices could contribute and solutions outside disclosure could be considered.

Alex Cole-Hamilton

I am grateful to the minister for her remarks and I am encouraged by her offer. My original proposal suggested that a review would be instructed after a year. Obviously, the minister cannot bind the hands of a future minister or Government, so will she commit to Parliament that, if she is to commission such a review, it would be done before the Parliament rises for dissolution?

Maree Todd

I can certainly commit to working at pace on the issue. However, given that we are on an emergency footing and responding to the Covid pandemic, I cannot commit to doing what Mr Cole-Hamilton asks for. I am as keen to make progress as he is, and to do so at pace.

I thank Mr Cole-Hamilton for his role in progressing this important safeguarding matter, but I invite him to not press his amendment and instead to accept the offer of a Government-commissioned independent review. I urge members to reject the amendment if it is pressed to a vote.

Alex Cole-Hamilton

I am grateful to all the members who have contributed to the debate and offered their considered reflections. The reality is that people are shocked that such basic safeguards in respect of MSPs do not exist already. A lot of the people whom I have spoken to, as well as people in the media, believe that those safeguards exist already, but they do not.

People have seen the inquiries that expose the danger of self-policing. They know that some people who work in politics use their status to manipulate, target and exploit vulnerable people—that goes for my political party as much as it does for any other. Other workplaces and sectors have made huge leaps forward in creating safeguarding cultures, and it is time for politics to start taking the issue as seriously as they do.

Parents should know that young people on work experience are with someone who can be trusted, no matter what. Carers should know that vulnerable adults who are attending a surgery are not going to be left with somebody who has not undergone any independent vetting whatsoever. [Interruption.] Again, I hear people from a sedentary position telling me that such things do not happen. They might not happen with them—they may not have nefarious intent—but they cannot speak to all the political classes and all their agendas.

I was disappointed with the reluctance that I encountered at stage 2, so I worked up amendment 39. I have taken heart from what the minister has said, although I am concerned that she is writing a cheque that will not be cashed in this parliamentary session. I very much hope—

Iain Gray

Does Alex Cole-Hamilton not agree that the minister’s offer is a good one? Even if his amendment is agreed to and becomes part of the bill, the truth is that, after the election, a future Government could decide to completely ignore any recommendations that the working group might make. It seems to me that the situation is not significantly changed by what the minister has said.

Alex Cole-Hamilton

I was coming on to that point. I agree with Iain Gray, and as such I will not press my amendment. I am grateful for the movement that the Government has offered and I look forward to the establishment of the review.

Amendment 39, by agreement, withdrawn.

Section 76—Meaning of “protected adult”

The Presiding Officer

Group 5 is on the PVG act: meaning of “protected adult”, definition of “domestic abuse” and consequential amendments. Amendment 25, in the name of Maree Todd, is grouped with amendment 26.

Maree Todd

Amendments 25 and 26 relate to the meaning of “protected adult” for the purpose of the Protection of Vulnerable Groups (Scotland) Act 2007. At stage 2, amendments were made to the definition of “protected adult” to ensure that it is appropriately scoped and that sufficient coverage is provided by the PVG scheme. Included in the group was an amendment to make explicit in the bill that, in relation to a regulated role with adults that involves the carrying out of the activities that are mentioned in paragraph 16 of part 2 of schedule 3 to the 2007 act, an individual aged 18 or over who

“is homeless”,

or

“has experienced, is experiencing or is at risk of experiencing domestic abuse, is a protected adult.”

Although that amendment was moved and agreed to, I did not move the amendment that would provide a definition of “domestic abuse”. Prior to stage 2, Scottish Women’s Aid expressed concerns that the definition that was lodged could be unduly narrow compared to people’s common understanding of domestic abuse. Accordingly, I instructed my officials to further engage with Scottish Women’s Aid on the matter, with a view to bringing forward another amendment at stage 3. As a result of that engagement, amendment 25 offers a revised definition of “domestic abuse” for the purpose of the broader definition of “protected adult”. I take the opportunity to thank Scottish Women’s Aid for its feedback and support on the matter.

In amendment 25, proposed section 94(2A) of the PVG act provides that “domestic abuse” means

“behaviour (whether or not amounting to a criminal offence) that ... is perpetrated between partners or ex-partners, whether in the home or elsewhere or by means of electronic or other forms of communications, and ... involves any form of physical, verbal, sexual, psychological, emotional or financial abuse of one of the partners or ex-partners by the other.”

Proposed section 94(2B) of the PVG act makes clear that an individual is a person’s “partner” if they are

“married to each other, ... civil partners of each other, ... living with each other as if they were married to each other, or ... otherwise in an intimate relationship with each other”.

“Ex-partner” is to be construed accordingly. For consistency, subsection (2B) mirrors the definition of “partner” and “ex-partner” in section 11(2) of the Domestic Abuse (Scotland) Act 2018.

Including a definition of “domestic abuse” in the bill gives certainty to those who use the PVG scheme. That is of particular importance given the offences that are connected with the mandatory scheme that is introduced by the bill. Having a definition of “domestic abuse”, as with having a definition of “homelessness”, means that we will not inadvertently criminalise people who should not be included the scheme. It improves safeguarding by leaving no room for doubt about who should be a scheme member.

When read with the activities mentioned in paragraph 16 of part 2 of schedule 3 to the PVG act, the bill ensures that advocacy support services for those who report domestic abuse are covered by the PVG scheme.

Amendment 26 is technical in nature. It contains consequential amendments to provisions in section 94 of the PVG act that define certain terms for the purposes of the definition of “protected adult” to ensure that those definitions continue to work in the light of amendments that were made at stage 2 to the “protected adult” definition. The provisions in amendment 26 were part of the amendment that was lodged but not moved at stage 2.

I move amendment 25.

Iain Gray

I acknowledge the work that was done by the minister and her officials to engage with Scottish Women’s Aid to address this point. I know that Scottish Women’s Aid is content with amendment 25, which the minister has moved.

Scottish Women’s Aid has some continuing concerns, which it hopes will be addressed during the development of regulations and guidance. I would like the minister to commit that the engagement will continue in order to reach a resolution.

The Presiding Officer

Before I call the minister, I want to double-check that Mr FitzPatrick pressing his button was a mistake. [Laughter.] It is just a button. I call Maree Todd to wind up on the group.

Maree Todd

Mr Gray is correct. Scottish Women’s Aid has expressed on-going concern about the definitions in schedules 3 and 4, and we will take action to address that. Further engagement will be undertaken on a range of matters that require non-statutory solutions or might require secondary legislation. If necessary, further changes to the schedules can be made under secondary legislation using the existing powers in the PVG act.

Amendment 25 agreed to.

Amendment 26 moved—[Maree Todd]—and agreed to.

Section 82—Removal of references by court

Amendments 27 to 28 moved—[Maree Todd]—and agreed to.

Section 85A—Offences outside Scotland

Amendment 29 moved—[Maree Todd]—and agreed to.

Schedule 2—List B offences

Amendments 30 to 34 moved—[Maree Todd]—and agreed to.

Schedule 3—Schedule to be substituted for schedule 2 of the PVG Act

The Presiding Officer

Group 6 is on regulated roles—definition of “elected representative”. Amendment 35, in the name of the minister, is grouped with amendments 36 to 38.

Maree Todd

As debated earlier in the proceedings, Alex Cole-Hamilton lodged an amendment at stage 2 on elected representatives, which specifically sought to bring MSPs and MPs into the scope of the PVG scheme. Mr Cole-Hamilton’s new amendment, which proposes the creation of an expert group to consider safeguarding in relation to elected representatives and political parties, was subject to debate in a separate grouping, and I will therefore limit my comments on it.

The amendments in group 6 relate to the definition of “elected representative” that was provided for in schedules 3 and 4 to the bill. Both schedules deal with the change from “regulated work” as defined in the PVG act to “regulated roles” with children and protected adults, respectively.

Within the schedules, reference is made to an “elected representative” in a number of the activities that give rise to regulated roles with children and adults. They relate to the ability to directly influence decisions about the safety and welfare of a child; the ability to directly influence the operational delivery of education, medical or care services for children; and the ability to directly influence the operational delivery of medical or care services for protected adults.

Where those activities are a necessary part of an individual’s role and there is the opportunity to have contact with the child or protected adult, those who undertake them must participate in the scheme, except where they are an elected representative—that is, a member of the House of Commons, a member of this Parliament, a member of the European Parliament who was elected in the United Kingdom or a councillor of a council.

As it is drafted, the bill therefore excludes from the PVG scheme members of councils who, as a necessary part of their role, have the ability to directly influence decisions or the operational delivery of education, accommodation, social services or healthcare services. That is an unintended departure from the current arrangements under the Protection of Vulnerable Groups (Scotland) Act 2007.

Under the 2007 act, councillors who are members of certain committees or joint committees that are concerned with the provision to children or protected adults of education, accommodation, social services or healthcare services are eligible to join the PVG scheme. Indeed, many councils across Scotland make use of those provisions. During stage 2, members of the Education and Skills Committee recognised the unique role that such councillors have in influencing such services and confirmed the appropriateness of some councillors being members of the PVG scheme.

In making the change from regulated work to regulated roles, we have inadvertently removed councillors on those committees from the scope of the PVG scheme. Amendments 36 and 38 have been lodged to preserve the status quo and ensure that councillors on the committees that I mentioned are required to be PVG scheme members.

I want to be clear that, with the amendments, PVG scheme membership is required only for members of committees who have the ability to directly influence decisions or the operational delivery of education, accommodation, social services or healthcare services to children and protected adults. Barred individuals will not otherwise be prevented from being elected as councillors or holding positions on committees that do not deal with the provision of services to children or protected adults. That is because of the narrow framing of the activities in paragraphs 7, 9 and 25 of schedule 3 and paragraph 17 of schedule 4, which make reference to the exclusion of elected representatives, meaning that only councillors with the ability to directly influence certain services for children and protected adults will be within the scope of the scheme.

I mentioned earlier the stage 2 debate and the constructive discussions on elected representatives. During that debate, it was recognised that, despite both being elected representatives, there is a clear difference between MSPs and councillors due to their roles and responsibilities. Daniel Johnson helpfully noted:

“Councillors may require PVG checks not by virtue of their role as elected representatives or the fact that they may hold surgeries, such as we do, but because they are responsible for administering many of the social work and education institutions, organisations, systems and schemes that have direct responsibility for looking after, caring for and supervising children in local authority areas.”—[Official Report, 11 March 2020; c 17-18.]

Amendments have been lodged to remove “councillor of a council” from the definition of “elected representative” in recognition of that difference and the importance of preserving the status quo under the existing legislation.

Amendments 35 and 37 remove references to members of the European Parliament who were elected in the UK from the definition of “elected representative”. Following the United Kingdom’s withdrawal from the European Union on 31 January this year, those references are obsolete, and accordingly they should be removed.

I move amendment 35.

Amendment 35 agreed to.

Amendment 36 moved—[Maree Todd]—and agreed to.

Schedule 4—Schedule to be substituted for schedule 3 of the PVG Act

Amendments 37 and 38 moved—[Maree Todd]—and agreed to.

The Presiding Officer

That concludes consideration of amendments.

As members will be aware, at this point in the proceedings, I am required under standing orders to decide whether, in my view, any provision of the bill relates to a protected subject matter—that is, that it modifies the electoral system and franchise for Scottish parliamentary elections. In my view, the bill does no such thing, so it does not require a supermajority at stage 3.

I am conscious that some members have been here throughout the afternoon, so we will take a short break. I suspend the meeting for two minutes.

18:04 Meeting suspended.  18:09 On resuming—