Meeting of the Parliament

Meeting date: Thursday, June 13, 2019

Official Report 1105KB pdf

---

Disclosure (Scotland) Bill

The next item of business is a statement by Maree Todd on the Disclosure (Scotland) Bill. The minister will take questions at the end of her statement, so there should be no interventions or interruptions.

14:31  

The Scottish Government is committed to policies that balance public protection with the right to move on from past offences. Those are not contradictory aims; both can be achieved.

Since November 2016, when the Deputy First Minister announced the review of Scotland’s disclosure regime, we have engaged extensively with stakeholders to achieve that balance. Last summer, following pre-consultation engagement with over 300 individuals and organisations and an online survey that generated more than 800 responses, we undertook the statutory public consultation on disclosure, which was distributed widely to stakeholders, including all organisations registered with Disclosure Scotland. The consultation received 353 responses from a broad cross-section of Scottish life, including individuals, charities, sports associations, advocacy groups and private sector businesses.

The views and experiences that respondents shared provided vital insight into ways in which the disclosure regime, including the PVG—protecting vulnerable groups—scheme, can be improved. Those with whom we engaged consistently highlighted the value of the service and the safeguarding that it provides. However, they stressed a real need to make it more proportionate and simpler to use. From the outset, the Government intended to capture the best ideas in striking a new balance between delivering a fairer disclosure regime and strengthening the ability to protect the most vulnerable in society.

Yesterday, the Scottish Government introduced the Disclosure (Scotland) Bill, and I take this opportunity to update Parliament on how the bill will deliver that balance. We must ensure that safeguarding the vulnerable in society continues to be at the forefront of our minds. We must never forget the reasons why the service is so important. The bill will deliver a range of reforms to the protection of vulnerable groups, ensuring a world-class service in protecting the public from those whose past conduct makes them unsuitable to carry out regulated roles with children and adults.

It is widely recognised, in the light of past tragic events, that there is a need for additional scrutiny of a person’s background if they want to work with vulnerable groups or in other sensitive roles. The intention behind the bill is for the focus to remain on having a system of robust disclosure checks for roles that involve such access. However, we recognise that the safeguarding purpose must be balanced with people’s legal right to have appropriate protection of their privacy and, indeed, the ability of people with convictions who now lead law-abiding lives to move on from their past. I believe that the bill achieves that.

The Disclosure (Scotland) Bill must be seen in the context of the wider Government strategy to make positive change to the justice and disclosure systems. That journey, which started with the Management of Offenders (Scotland) Bill and the Age of Criminal Responsibility (Scotland) Act 2019, continues with the proposals in the Disclosure (Scotland) Bill. If enacted, the legislation will represent a transformational improvement in the position of those who seek to move on from their past behaviour. The Government has been committed to ensuring that all three pieces of legislation are designed together for that larger purpose.

The bill contains provisions to introduce a mandatory PVG scheme for people who carry out regulated roles with children or protected adults. Although many organisations treat it as such, the scheme is not currently mandatory, which has made it difficult for individuals and employers to understand their responsibilities and legal duties under the current legislation. There is overwhelming support among stakeholders for the proposal, the need for which was also recognised by Parliament’s Health and Sport Committee, which concluded that there is a “compelling case” that the scheme be mandatory for those who work with children in sport.

We will simplify the process for determining what roles must be included in the PVG scheme. The public perception is that the current system is too complex, and we need to develop a system that makes the process easier, to ensure that the scheme focuses on those who hold power and influence over children and protected adults.

Our engagement with stakeholders has highlighted areas in which safeguarding can be improved, and we have sought to address those issues in the bill. We will provide better protections for individuals who employ or engage the services of another individual in a personal capacity—for example, those who arrange self-directed care. We believe that such provisions complement strengthened referral arrangements for Police Scotland and new referral powers for local authorities and will enable individuals who employ others to have even greater protections.

The bill will allow Disclosure Scotland to impose public protection conditions on scheme members who are under consideration for barring. Since the PVG scheme was enacted, there have been cases in which the ability to impose such conditions would have benefited safeguarding. Our engagement has supported that view, with organisations telling us that having that ability would assist them when they are managing risk in such situations.

As a Government, we aim to focus public services on creating a more successful country, with opportunities for all in Scotland to flourish. That includes creating a strong, sustainable workforce and making sure that no one faces unnecessary barriers to gaining opportunities. Of course, there will always be people who, given their past behaviours, will not be suitable for certain roles, which is why we need the disclosure regime. Disclosure Scotland will continue to identify such individuals and ensure that they are legally prevented from carrying out a regulated role.

However, we must give extra consideration to people who have found themselves involved in the criminal justice system during childhood or adolescence. That is especially true for care-experienced individuals, who we know are more likely to come into contact with the criminal justice system and end up with a criminal record. It is widely recognised that having a criminal record can significantly impact on future life chances and outcomes for young people, including access to education, training and employment. Their opportunities and horizons can be severely limited.

The Age of Criminal Responsibility (Scotland) Act 2019 ensures that harmful behaviour by children under the age of 12 cannot be criminal. However, the provisions that are laid out in the 2019 act change only the position for children under that age. We are learning more and more about the impact of trauma and adverse childhood experiences on life chances. We have to do more, not only to prevent such experiences from happening in the first place, but to limit the damage that is done to individuals, families and communities in the long term. The bill aims to address that issue by providing a system that takes into consideration the context surrounding childhood offences. The consultation strongly supported the idea that disclosure of such information should remain a possibility, but only after careful and informed consideration of its necessity for public protection.

Although it is vital to consider the impact of the changes on safeguarding functions and on people with convictions, the majority of certificates that Disclosure Scotland sends out will not contain any criminal history information. We want to simplify the system to make it accessible and easy to use for all, and to take a user-centred approach for individuals who access disclosure and for the employers with whom they need to share their information.

Our intention is to use a responsive digital first system that is better suited to those who prefer to carry out their business online. We are moving away from the slow and onerous paper-based system by increasing the extent to which applicants and employers can engage digitally with Disclosure Scotland.

Continuous engagement has been vital in shaping the bill that is now before Parliament. We will continue to listen to and engage with Parliament and members of the public to develop the best way to implement the proposals in the bill.

The Scottish Government is committed to ensuring that clear training and guidance materials are developed as we transition to any new provisions. As I previously stated, the aim of safeguarding must remain the focus of the disclosure system. Several of the proposed reforms will complement and improve the safeguarding tools afforded by the current regime.

Today, we will publish the Government’s response to the consultation analysis. The response has been provided to the Scottish Parliament information centre and will be sent to all key stakeholders, including every organisation registered with Disclosure Scotland. The response sets out the policy intent of the bill clearly and simply.

I commend the bill to the Parliament and look forward to constructive engagement in the months ahead. I would be happy to answer questions from members.

I have about 20 minutes in hand for questions.

I thank the minister for prior sight of her statement and put on record the fact that I am a member of the PVG scheme.

The Conservatives support the main thrust of the bill. It is right that we do all that we can to ensure that the PVG system works well and is as simple as possible to use. We are broadly supportive of the bill’s aims.

I have two questions for the minister. First, on making the system mandatory, how many more adults will become members of the system in comparison with the current system and what discussions have taken place between the Scottish Government and key stakeholders to measure the additional costs to organisations that choose to pay the £59 PVG fee?

Secondly, on page 17 of the Scottish Government response to the analysis, there is an acknowledgment that the transition from the current membership arrangements to the new system will

“pose challenges”

and will

“require a careful consideration of fairness”.

Will the minister comment on those specific challenges and what the Scottish Government is doing to address them?

I thank the member for that question and I welcome the broad support for the bill.

The member asked about the additional costs resulting from the mandatory nature of the scheme. The reason why we are making it mandatory is because there have been incidents in the past when we realised that it was not clear whether someone needed to be disclosed. As a result of those incidents, we realised that it was important to make it mandatory. The Scottish Parliament, through the recommendations of the Health and Sport Committee, also agreed that it should be mandatory.

As well as making the scheme mandatory, we are putting a five-year limit on membership—at the moment there is lifelong membership. The costs will balance out. At the moment, 1.2 million people are criminal-record checked daily. We suspect that there are hundreds of thousands of people in the system who currently have daily criminal record checks, for whom it is not necessary because they are not performing regulated roles.

I apologise, but I have forgotten the first question that the member asked, so perhaps she could repeat it.

My first question was specifically on the costs to organisations of the system being mandatory. As the minister knows, some organisations pay the £59 fee instead of the individual—[Interruption.]

The second question was on the statement on page 17 of the Scottish Government response, which says very clearly that the change from the old model to the new one may

“pose challenges”

and

“require a careful consideration of fairness”.

I am looking for some details on those challenges and on what the Scottish Government will do to address them.

Mr Gray, do not mump in my ear. It is very distracting and puts me off balance. We will get there—you will get your chance.

Many organisations, such as in health and education, already see the scheme as mandatory, so I do not think that there will be an extra cost for them. They will make decisions about whether they will continue to pay or whether individuals must pay for themselves—that is for them to work out.

On the complexities, the bill is very complex and technical and it will take a great deal of effort and engagement to work out how it will be implemented. That will be on-going; there has been a great deal of stakeholder engagement thus far, which we will continue.

Labour strongly welcomes the bill. We recognise that a lot of work has gone into getting it right and balancing robust protection for our children and young people with an easy-to-navigate system of disclosure that will allow people to get on with their jobs and others to continue with their voluntary work. I whole-heartedly welcome the long-overdue proposal to recognise that minor offences that were committed in a person’s youth should not necessarily be used in assessing their suitability for working with children.

Will the minister consider what support voluntary organisations may need because of the switch to the mandatory requirement? We want to make sure that there will be support. My biggest concern is that the minister did not mention in her statement a critical part of the change, which is the suggestion in the published document that there will have to be a renewal every five years. Will the minister confirm that that is still the intention and say why it was not mentioned in the statement? Will she consider whether five years might be thought, by some, to be quite a short period, and will she give a commitment to Parliament that, if that is the case, she will probe the issue to make sure that it does not become a barrier to people having their certificates renewed?

I broadly welcome the support for the bill, which I was pleased to hear about. We will certainly provide good training and awareness, so that the voluntary sector is able to navigate the new system well.

With regard to the five-year limit, Pauline McNeill will have heard me say to Liz Smith that more than 1.2 million people are members of the PVG scheme and undergo criminal record checks daily. That is not necessarily proportionate, because many of them no longer require that criminal record check or are not working in regulated roles. There is a huge cost associated with those checks, and we think that hundreds of thousands of people who are members of the scheme no longer need to be. It is important to provide an easy way to exit the scheme, and we think that the five-year limit is an appropriate balance. However, that will be a matter for the scrutiny of the bill as it passes through Parliament.

I lend Scottish Green Party support to the general direction of travel. There are a couple of mentions of simplification in the bill, and the statement included the comment that

“the public perception is that the current system is too complex”.

The public may well be largely unaware of the system unless they have been directly involved with it. Is there a danger that simplification will be seen as weakening? What steps will the Scottish Government take to reassure the public that the system will remain robust?

Simplifying the system will make it more robust because it will make it easier for people to engage with it and there will be greater clarity about which product is required. A number of simplifications are included in the bill: all the disclosures will be issued under one act; the number of disclosure products will reduce from 10 to four, which will reduce confusion; and the implementation of digital services will modernise and radically simplify the disclosure system. That means that somebody will not have to decide which disclosure product to look for before they apply; they will be able to go to a website and it will guide them to the appropriate disclosure product for the role that they will be performing. All those measures will strengthen protection because they will make the system much simpler for people to use.

Members will remember that the concept of regulated work has caused some confusion in previous years, so another great simplification is that the bill will allow us to refocus the membership of the PVG scheme on those who possess power over children and protected adults instead of using job titles to determine membership.

I am grateful for the early sight of the statement, and I offer the broad support of Lib Dem members for the bill.

Given that we, as parliamentarians, have regular access to vulnerable groups through case work and that we sometimes have access to young people through school work experience, will the minister take the opportunity that the bill offers to extend the disclosure scheme to parliamentarians and key members of staff who have regular unsupervised contact with vulnerable groups?

Members can certainly consider that as the bill progresses through Parliament. As I said in my response to John Finnie’s question, one of the simplifications in the bill is the removal of the concept of regulated work, so that a person’s need to be a full member of the PVG scheme relies not on their job title but on whether there is a power imbalance and whether the person holds power over children or vulnerable groups. I am more than happy to assess whether parliamentarians fall into that category as the bill progresses through Parliament.

I am pleased that the bill will build on the progressive reforms that are being taken forward in the Management of Offenders (Scotland) Bill, which the Justice Committee has been scrutinising. Does the minister agree with the research evidence that clearly shows that people’s having to continue to relive an offending past damages their chances of being able to move on and contribute meaningfully to society?

Yes, I whole-heartedly agree with that. For most offenders, the passage of time and the adoption of a crime-free lifestyle provide a basis for their accessing work and making a greater contribution to society. However, we recognise that the situation can be very difficult for employers. That is why I encourage employers who are wary of employing people with convictions to sign up to release Scotland and to avail themselves of the training that Disclosure Scotland offers to help them to understand how to evaluate convictions better.

Some people have offending backgrounds and past conduct that make them wholly unsuitable for roles with vulnerable groups or valuable assets. The disclosure system aims to protect the vulnerable in a very strong way but not to lock out from good employment all those with convictions, because we know that good employment reduces reoffending.

I declare that I am a member of the PVG scheme.

Can the minister guarantee that any online upgrade to the disclosure system will be implemented smoothly and that it will simplify the system enough to reduce the number of people who are dissuaded from applying for roles?

We are intensely focused on the digital programme, and we are confident that the system is at an appropriate stage and will be completed in time for the delivery of the new services.

Our transformation programme continued throughout 2018-19. Disclosure Scotland’s new PASS—protecting and safeguarding Scotland—technology platform began to process applications in June 2018, and, by the end of March 2019, it had taken in excess of 78,000 applications, with 45 per cent of all disclosures being channelled through that new service. Some 16,000 customers have given us feedback on PASS, and 96 per cent of them are very satisfied. That high level of satisfaction demonstrates how well we have listened to our customers and what they have told us they need as the new service has been developed.

I welcome the modernisation, but can the minister confirm, in recognition of the fact that online access will not work for everyone, that alternatives to digital services will still be offered? Does she agree that those alternatives are essential if the new membership scheme is to be truly inclusive?

Indeed. We fully agree that alternatives to the digital service must be provided. Although our engagement with counterpart services elsewhere in the United Kingdom has shown that the vast majority of people are able to access and use well-designed digital services, it remains vital that those who cannot do so are catered for. To that end, my officials will carry out full engagement with users to design with them alternative ways to use the disclosure system that meet their needs.

Will reductions in fees be applicable to those who reapply after five years, bearing in mind that moving from a system of one-off fees to repeat fees might curtail volunteers coming forward?

The fees are not set out in the bill; we are in the process of working out the fees that will be applied. I think that the member is asking about transitional arrangements between the lifetime membership and the five-year membership, and we are working carefully to ensure that that transitional system is fair.

Will the minister outline how the bill will build on the reforms that are introduced in the Age of Criminal Responsibility (Scotland) Bill and ensure that young people can move beyond their mistakes and fulfil their potential?

The proposals in the bill take forward the recommendation of the advisory group on the age of criminal responsibility that consideration be given to ceasing the disclosure of convictions that were accrued by someone before the age of 18. The Disclosure (Scotland) Bill contains proposals that childhood convictions will no longer be disclosed automatically and that, if ministers decide that the information about such a conviction should be disclosed, the applicant will be advised before disclosure to a third party takes place and will be offered the option of having ministers’ decision reviewed by the independent reviewer. That post was created by the Age of Criminal Responsibility (Scotland) Bill, as the member will recall, having been closely involved with that legislation.

I declare that I am a member of the PVG scheme, and I thank the minister for advance sight of her statement.

The minister says that, although it is vital to consider the impact of the changes on safeguarding functions and those with convictions, the majority of certificates that Disclosure Scotland sends out will not contain any criminal history information. Can the minister provide further detail on the number of certificates that will not contain criminal history information?

I will give the member some figures relating to the disclosure applications that Disclosure Scotland receives every year. In 2018, Disclosure Scotland processed 647,410 checks. In an average week, Disclosure Scotland processes 5,000 PVG applications, and it checks approximately 1.2 million criminal records on a daily basis, as I have said. Despite those incredibly high numbers, in 2017-18, Disclosure Scotland had an average processing time of 3.3 days, and 99.49 per cent of processing was done within 14 days. It is already coping with a huge number of applications and is processing them effectively.

How has stakeholder engagement shaped the bill?

Disclosure Scotland carried out three rounds of engagement before publishing a formal consultation in April 2018. To ensure a high level of stakeholder engagement, it used a number of channels and methods throughout the pre-consultation process. A wide range of participants took part in the pre-consultation engagement, and Disclosure Scotland engaged in person with more than 350 organisation representatives and individuals throughout Scotland, receiving feedback from 800 more through an online survey.

The evidence that was gathered during that intense period of engagement assisted Disclosure Scotland in the development of the proposals for formal consultation. There were responses to the formal consultation from a range of stakeholders with varying backgrounds, including judicial bodies, the legal sector, local government, voluntary organisations, the health sector and individual scheme members. The results of the consultation have informed further development of the policy and the bill’s provisions.

I draw members’ attention to my entry in the register of members’ interests, which states that I am the chair of the Hibernian Community Foundation.

The Age of Criminal Responsibility (Scotland) Bill was amended to allow the possibility of further appeals to the independent reviewer should the first appeal fail. Will the Disclosure (Scotland) Bill allow for similar further appeals in the context of disclosure?

I am sure that, on that issue as on many of the other proposals in the bill, Parliament will scrutinise the bill and members will lodge amendments that they wish to see in the final legislation. During the passage of the bill, we will see whether those amendments are appropriate.

I understand that the bill will replace the concept of “regulated work” with the concept of “regulated roles”. Does the minister feel that, although that will help to clarify around the edges, there will always be margins and grey areas?

In the past, the concept of “regulated work” has led to some confusion about who should or should not be a PVG member. That is why we are switching from the old system, which focused more on job roles and establishments, to a system that will allow us to evaluate a wider range of roles for the presence of power and influence. One example, which has been topical over the past few years, is the role of football scout. A football scout does not educate or supervise children, but they can hold make-or-break power over a child’s future. They will be covered by the revised scheme, but they were not eligible for the old one.

That concludes questions on the statement. We will have a brief pause to allow the members on the front bench to change over.