Section 48 — Correction of inaccurate scheme record

Protection of Vulnerable Groups (Scotland) Bill: Stage 3 – in the Scottish Parliament at 9:30 am on 8th March 2007.

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Photo of George Reid George Reid None 9:30 am, 8th March 2007

Group 5 is on the review of information in scheme records. Amendment 30 is grouped with amendment 31.

Photo of Iain Smith Iain Smith Liberal Democrat

The issue goes to the heart of the Bichard recommendations. After the Soham murders, an issue was raised about the failure of police forces to share soft information that they had about people and which could have been used to ensure that those people did not work with children. There is a question whether the Soham murders would have been prevented if that information had been shared, but the issue was raised and led to the Bichard inquiry and thus to the recommendations. In Scotland, we already have ways of sharing such information: POCSA and the Police Act 1997 allow for enhanced disclosures to include some soft information from police sources, with certain assurances about the reliability of the information. We have heard about the 5x5x5 check that police forces carry out into the reliability and relevance of such information.

By definition, non-conviction or soft information has not been tested in court. Therefore, information may appear on an applicant's disclosure that the applicant did not previously know existed in police records. I have examples of that from my casework. One person who applied for an enhanced disclosure check found out when the certificate came back that there was information that they had been seen to be involved in buying or selling drugs in a pub. The person denies that that ever happened, but the police held the information. The information was not disclosed to the person because the police are always gathering information about drugs activities as part of wider inquiries to try to catch dealers, so the person did not have the opportunity to challenge the accuracy of the information until they found it on their enhanced disclosure certificate. I know that I am not alone in having dealt with such cases. That person may be able to prove that they were not even in the pub when the alleged incident took place. There may have been a malicious allegation. In other cases, the police may hold information that is relevant to child protection, but which is not reliable. For example, a person may have been seen hanging round school gates. That may be true, but they might have a perfectly good explanation for that—for all we know, they might be dating one of the teachers.

There is a lack of clarity about the nature of the appeals that are possible when such information appears on an enhanced disclosure certificate or, under the bill, a scheme record. I am pleased that the Executive lodged amendments at stage 2 to section 48, which is on the correction of inaccurate scheme records, to deal with some of the issues. Section 48 now provides a clear way in which people can deal with two types of situation. The first is when there are issues of factual accuracy. For example, if a person's scheme record says that they have a conviction for speeding, but they do not have such a conviction, they will be able to request that it be corrected and, if there is a refusal to correct the record, the issue can go to the Scottish information commissioner. The second situation is when an issue arises about whether a conviction is relevant to a person's suitability to work with a protected group. There is now a clear procedure in the bill under which such a matter can be referred back to the chief constable, who will review the relevance of the conviction or piece of information to working with the protected group.

A third situation is the one to which I referred earlier, when the issue is the reliability of the non-conviction or soft vetting information that the police hold. The purpose of amendments 30 and 31 is to establish that that type of information is also subject to review by the chief constable under sections 48(4) and 48(5). The intention is to clarify the situation and to ensure that people who think that the police have inaccurate information about them can challenge that information, have it reviewed by the police and, perhaps for the first time, put their case to the police as to why that information is not valid.

I move amendment 30.

Photo of Robert Brown Robert Brown Liberal Democrat 9:45 am, 8th March 2007

Iain Smith's point is fairly substantive, and I am grateful to him for raising it. The Executive has had some discussions with him and the Education Committee during the passage of the bill to try to flesh out some of the issues on accuracy.

Through constituency cases, colleagues will be familiar with issues around the information that is provided on an enhanced disclosure. Iain Smith mentioned one or two of the issues that have been raised with him. The Executive lodged amendments at stage 2 to clarify the rights of individuals to review such information and no further amendments to the bill are required. However, I will give members a bit more information about how the system works.

First, national guidance—in the form of a code of practice and a national manual for the recording and dissemination of intelligence material—provides robust arrangements for governing the collection and retention of information. That guidance is the basis of the Scottish police service's policy for the creation, review and weeding of records on the Scottish intelligence database. Information that the police gather is added to the database only after it has been assessed using a standard grading system that is used by all police forces throughout the United Kingdom; the 5x5x5 system grades information according to the reliability of its source, its accuracy and whether the source needs protection.

The 5x5x5 system covers information that is used for police purposes. That is not quite the same as what will end up on a scheme record, but it means that the accuracy of the information has been assessed before it is added to the Scottish intelligence database. That does not mean that information that cannot easily be verified will not be put on the database, but it means that an operational officer who assesses the information will be aware of its reliability and accuracy and will be able to treat it appropriately for their purposes.

The police have agreed national guidance on the disclosure of non-conviction information under the bill to ensure a consistent approach. That approach is underpinned by a quality assurance framework, which is being piloted in Fife and which will be rolled out to the other seven forces in the coming months. Her Majesty's chief inspector of constabulary for Scotland will audit compliance with the quality assurance framework as part of his regular inspections of forces, the results of which are published.

The amendments that we made to the bill at stage 2 clarified the fact that individuals will be able to ask for a review of non-conviction information that is included on a scheme record on the basis that it is not relevant, as well as on the basis that it is inaccurate. The short answer to Iain Smith's question about whether individuals will be able to challenge inaccuracies of the kind to which he referred is yes. Chief constables will be required to review the information that has been disclosed. If an individual is unhappy with the outcome of such a review, he or she can ask the chief constable for a review under the Data Protection Act 1998. That act is reserved and therefore it is not open to us to amend it, but it is in the background of such situations. If the request to the chief constable for a review under the act fails, the individual can ask the information commissioner—not Kevin Dunion, but the United Kingdom information commissioner, whose job it is to oversee the operation of the Data Protection Act 1998—to conduct an assessment. If the individual's complaint is upheld, the information commissioner can direct the chief constable to amend or delete information if necessary.

That is the broad assurance on the matter, but it may be worth while saying a little bit beyond that. An individual has the right to ask the chief constable for a copy of all information that is held about them, for which a £10 fee is payable. An individual may find out that the police hold information about them by way of an enhanced disclosure but, at any time, they can get a copy of any information that is held on them.

The chief constable is under a duty to ensure that the information that is held about an individual is accurate and is held for purposes that are allowed under the data protection legislation. I have explained that an individual has the right to explain what is wrong with the information, that the chief constable must consider the request for review and that the case could go to the information commissioner for an assessment. If the commissioner thinks that the law has been broken, he will give the police advice and ask them to solve the problem. If there is any dispute, the information commissioner can issue an enforcement order that requires the police to solve the problem.

An individual also has the right to take the case to court for judicial review following the commissioner's decision. There may be circumstances in which personal data, although inaccurate, accurately reflect information obtained from a third party. In that situation, the court will consider whether the police took reasonable steps to ensure that the data were correct, having regard to the purposes for which they were obtained and processed, whether the individual has notified the police that the data were inaccurate and, if so, whether the data indicate that fact. The court may order the police to amend or destroy the data or may make an order that requires the data to be supplemented by a statement that relates the true facts.

I hope that that provides wider background to this complex and difficult area. My principal point is that there is a procedure, which involves an application to the chief constable to correct or otherwise amend information, then an overview by the information commissioner under the Data Protection Act 1998 and thereafter an appeal to the court.

Photo of Iain Smith Iain Smith Liberal Democrat

I am conscious that the minister is coming to the end of his remarks. Will he assure me that the procedures through which members of the public who have concerns must go to make appeals will be covered by guidance?

Photo of Robert Brown Robert Brown Liberal Democrat

I am happy to give that assurance. The matter is complex. We will come to guidance shortly, but it is entirely appropriate that the links with the Data Protection Act 1998 be referred to in guidance so that the appeal or review mechanisms are clearly described for those who have to operate the bill. That is a central part of the information that we should give people in the guidance that we will draw up on the bill.

Photo of Iain Smith Iain Smith Liberal Democrat

My main purpose in lodging amendments 30 and 31 was to get on the record the information that the minister has given and an assurance that the issues will be covered in guidance. In the light of the minister's response, I wish to withdraw amendment 30.

Amendment 30, by agreement, withdrawn.

Amendment 31 not moved.