Section 34 — Organisations not to use barred individuals for regulated work

Protection of Vulnerable Groups (Scotland) Bill: Stage 3 – in the Scottish Parliament at 9:16 am on 8th March 2007.

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Photo of George Reid George Reid None 9:16 am, 8th March 2007

Group 3 is on organisations not permitting barred individuals to do regulated work, et cetera. Amendment 1, in the name of the minister, is grouped with amendments 2, 32, 33 and 7.

Photo of Robert Brown Robert Brown Liberal Democrat

Amendment 1 is a more substantive amendment, which relates to one of the key concerns and issues for debate during the bill's passage. Retrospective checking has been hotly debated and the subject of media dispute since the bill was introduced in September. I will therefore highlight what retrospective checking is and why it is such an important issue.

Essentially, under any scheme, such as the existing Protection of Children (Scotland) Act 2003 arrangements, people who come into the workforce are checked when they do so. Obviously, an increasing number of people will therefore be checked, but that still leaves a number of people who are already in the workforce and have not been the subject of checks. Some of those people may have been in the workforce for many years. Clearly, there will be an element of risk if they are not brought into the system, and the extent of that risk and how we should deal with the matter proportionately must be considered. It is reasonably clear that if we introduced retrospective checking within six months or a year of passing the bill, a bulge of people would be added to the system, which could cause a breakdown of arrangements for those at the Government end and for organisations and voluntary groups that must deal with the legislation. By the same token, if it took 20 years to introduce retrospective checking, the issue would be almost incidental.

The technical effect of the amendments will be to move the provisions on retrospection from being commenced by commencement order, in which parliamentary involvement would be very limited, to being commenced by regulations. That will allow us to deal with the issues that have been raised about logistics, administration and cost to organisations and the Executive of including existing employees within the scheme. The amendments follow up the commitment that I made to the Education Committee at stage 2. We have no interest in implementing the scheme in a way that damages voluntary organisations or other organisations.

I recognise that the phased introduction of including the existing workforce within the scheme will be an absolutely critical factor in the successful implementation of the bill. We have always been clear that all aspects of implementation of the bill will be carefully considered and consulted on. During the debates on retrospection at stage 2 and stage 1, we said expressly that whether and how to proceed, and at what rate and in what order, would be the subject of careful consideration and consultation. I hope that that assurance has been put clearly on record and in my correspondence with the Education Committee.

The amendments will mean that retrospective checking cannot begin until ministers have made regulations that have been approved by Parliament through the affirmative resolution procedure. That allows the maximum possible level of parliamentary scrutiny for what is undoubtedly the most significant issue of controversy in the bill for individuals and organisations across the country.

I am happy to move the amendments because it is in everyone's interest that retrospective checking is commenced in a way that commands widespread support and confidence. The fact that Parliament will be involved through the affirmative resolution procedure will, on top of the statements that I have already made, send a strong signal to whoever may be the minister in a future Administration that the matter can be sorted out only by going through a procedure that involves the parliamentary process and the Parliament's committees in a way that allows maximum scrutiny.

Against that background, I move amendment 1.

Photo of Fiona Hyslop Fiona Hyslop Scottish National Party

Amendment 1 is a key amendment in today's stage 3 proceedings as it cuts to the heart of the concerns that have been raised about the bill from the start. The bulk of those who work with children are already in post, but many of the provisions in the bill will affect only those who enter new positions.

Clearly, the issue of retrospective checking has been key to everybody who has been involved with the bill. In particular, the voluntary sector had severe concerns that the retrospection burden could be counterproductive to the needs of child protection and children's services, which are much needed throughout the country. I welcome the fact that the minister has responded to the committee's concerns about the issue.

The Scottish National Party's view was that the bill should have been kept back until the consultation on retrospection had been completed, so that we could see the matter in the round and would know exactly what we were legislating for. However, given that we are at the tail-end of the parliamentary session, we recognise that some of the provisions in the bill as it stands should be introduced.

A key issue regarding amendment 1 is that we expect the consultation to clarify what the costs will be on voluntary sector capacity. It is clear from the evidence that we received that the statutory sector is geared up and ready to implement retrospection, so I suspect that the regulations should allow the statutory sector to move forward on retrospection more quickly than the voluntary sector.

That cuts to the heart of the issue about what constitutes a proportionate response. The issue is how we ensure that we do not allow loopholes for people who are already in post while ensuring that we have a manageable child protection system. I reiterate that the establishment of a central barring unit for disclosure checks will not, of itself, stop people harming children, but it will prevent those who seek to do so from trying to exploit children in their workplace.

It is important, however, that we recognise the concerns about retrospective checking that were expressed by voluntary sector organisations such as the WRVS. I look forward to a very robust consultation process. The use of the affirmative resolution procedure will place a burden and responsibility on future committees, which will need to deal with the secondary legislation on retrospection as seriously as they deal with primary legislation.

I welcome the minister's response to the committee's concerns on the issue, but it is regrettable that we are in this situation. We know from the implementation of the Protection of Children (Scotland) Act 2003—which was passed at the tail-end of the previous parliamentary session—that retrospection is a problematic issue that needs to be resolved. However, we need to resolve it on an informed basis. The committee asked the minister not to proceed to stage 2 until information on regulations and a further consultation had been provided. Although that was not possible, I believe that any future consultation should be informed by the experience of those organisations, such as Fife Council, that have embarked on retrospection. We should look at the statistics on how many people such organisations have found, as a result of retrospection, who should have been prevented from working with children. We need to consider such issues if we are to come up with a proportionate response.

In that spirit, the SNP will support amendment 1. The amendment provides a positive way forward by ensuring that the Parliament is allowed to conduct proper scrutiny of retrospection when the regulations are laid before the Parliament.

Photo of Lord James Selkirk Lord James Selkirk Conservative 9:30 am, 8th March 2007

I agree with everything that Fiona Hyslop said. I believe that the minister has done the Parliament, voluntary bodies and charities a service by ensuring that affected bodies are consulted on the timescale for introducing retrospective checking and the fundamental character of such checks. I hope that, in the next parliamentary session, the regulations are considered with particular care, as they will be very important.

Photo of Donald Gorrie Donald Gorrie Liberal Democrat

Many of the issues around the bill are to do with proportionality. Rules that may be reasonable to impose on someone who has one-to-one contact with children or vulnerable adults and in situations in which great care needs to be taken should not be applied in exactly the same way to those who are only in the presence of a group of young people along with other adults. There seems to be no proportionality in that way. Can the minister assure us that proper consideration will be given to ensuring the need for proportionality? The role that the individual plays should be taken into account, so that people who are only marginally included in the system are not involved in a lot of bureaucracy.

Can the minister also assure us that the voluntary sector will be given a fair shout when the various people involved are consulted? As has been said, the professional public sector is geared up for retrospective checking because it has lots of officials who can organise such things, whereas many voluntary organisations do not. I would not like the local government sector to outvote the voluntary sector in any consultation. Small voluntary organisations find it harder to come to meetings during the day to discuss such things.

I have great confidence in the minister, but we are being asked to have great confidence in future ministers, and a future Government might have a slightly nutty minister from the flat earth party. We are also being asked to have great confidence in the civil servants. Recently, I was given examples of the rules that civil servants produced following a somewhat similar bill two or three years ago. All those rules were so bad that they had to be totally undone and rewritten. We are being asked to have great faith in people in whom I do not have faith.

Can the minister give some reassurance on those points?

Photo of Elaine Murray Elaine Murray Labour

In response to Mr Gorrie's comments, I think that he has missed the whole point of the amendments. I am extremely pleased to see amendment 1, as I lodged a similar amendment at stage 2 that I did not press because the Executive agreed to reconsider the matter. The entire reason for lodging the amendments in this group is to allow Parliament to have another look at the issue. In doing that, the Executive is responding to concerns that the voluntary sector raised with both the Finance Committee and the Education Committee. The reassurance that Mr Gorrie seeks is in the amendment 1. That is the purpose of it.

The Finance Committee—of which I was a member at the time—had significant concerns about the costs that might arise if retrospective checking was introduced too early. The concern was not just about the cost to the voluntary sector but about whether the system would be able to cope and whether there might be increased costs on the Executive.

Amendment 1 provides all of us with another chance to consider the system that is being introduced. For the subject committee, the amendment reinforces the opportunity—which it would have had anyway—to scrutinise the matter when it considers the regulations. The successor committee to the Finance Committee will have another opportunity to consider the matter because of the powers that that committee has to look at statutory instruments. The committees of the Parliament will be able to reassure themselves about the scheme. The amendment will also allow the voluntary sector, which raised its concerns with us, to be consulted on the implementation of the scheme. For those reasons, I very much welcome the amendment.

I also welcome the fact that the regulations will be introduced under the affirmative procedure, so they will require the approval of the full Parliament. The matter will be considered not just by committees but by the full Parliament. I hope that that will reassure the voluntary sector that the Education Committee and the Executive have listened carefully and responded to the sector's concerns.

Photo of Robert Brown Robert Brown Liberal Democrat

I am grateful for colleagues' comments, but there is an element of overstating the point. As Elaine Murray rightly said, the purpose of amendment 1 is to deal with the issue. I have made strong statements from the start of the bill process about what will happen in relation to retrospection, including the costs. As Fiona Hyslop is well aware, the costs will be consulted on. Nevertheless, perhaps because we are at the tail-end of the present session of Parliament, or perhaps because of wider issues, there is a feeling that, as Donald Gorrie put it, members of the "flat earth party" might take over from Hugh Henry and me in the next session. It is open to the new Parliament to pass a new bill and to take an altogether different approach, if that is what it wants to do. However, there is broad all-party sign-up to the bill's general direction of travel, which is an important reassurance. The statements that Fiona Hyslop, Lord James Douglas-Hamilton, Iain Smith, Elaine Murray and others have made during the bill's passage about the direction of travel show that there is an all- party commitment to the proposals on retrospection.

When one has been stung by a bee once—the Executive probably was stung by a bee when it was dealing with retrospection under POCSA, although I hasten to add that that was prior to my involvement in the Education Department—it is not a good idea to put oneself beside the bees' nest another time to be stung again. We are well aware of the issues that arise with regard to retrospection, which is a complex, difficult and technically involved procedure. We want to ensure that we get it right. We have given every possible assurance that we will get involved with all the stakeholders. We should bear it in mind that the voluntary sector is involved in the procedure because, when the POCSA arrangements were being considered, that sector wished to be involved and said that it wanted the same protections that were to apply to the statutory sector.

I say to Donald Gorrie that it is a bit of a mistake to think of the voluntary sector as one organisation or as a sector that is made up of organisations with similar characteristics. The voluntary sector is enormously diverse: it has large, national organisations with bureaucracies that are as big as local authority bureaucracies; and it has small organisations that have no bureaucracy at all and which operate locally. Therefore, it is not helpful to view the voluntary sector as one concrete sector that has the same characteristics across the board. The point is that the voluntary sector and other stakeholders, of whatever size and shape, will be involved in the consultation. That will not, as Donald Gorrie suggested, be a matter of voting; it will be about considering the value of the contributions and dealing with the effects on organisations. That is exactly what we have said about the consultation.

As the Education Committee knows, although we have not produced the relevant regulations, we have produced the policy information that will be used to determine the regulations. That has given all stakeholders a flavour of what might be involved. That information sets out the choices on costs, the way in which retrospection will be handled, the timescales and other issues.

The debate has been useful, but I do not want to overstate the issue. We will consult on the issues of retrospection, including whether and how to proceed with it, at what rate and in what order. Everybody who has something to say will be involved in the process. We will take the necessary time over the matter and, I hope, produce measures with which everybody who is concerned is comfortable. In addition, if my assurances as the current minister are not sufficient, we will have reinforcement, or a double lock, as a result of amendment 1, which will mean that the measures will receive the maximum parliamentary scrutiny. That ought to give as much reassurance as possible to anyone who has a concern about or interest in the matter. I hope that people will take as having considerable standing the assurances from Scotland's Parliament on how we will proceed.

Amendment 1 agreed to.

Amendment 2 moved—[Robert Brown]—and agreed to.