Section 64 — Unlawful requests for scheme records etc

Protection of Vulnerable Groups (Scotland) Bill: Stage 3 – in the Scottish Parliament at 9:45 am on 8th March 2007.

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Photo of George Reid George Reid None 9:45 am, 8th March 2007

Group 7 is on unlawful requests for scheme records: permitted purpose. Amendment 35 is the only amendment in the group.

Photo of Robert Brown Robert Brown Liberal Democrat

Despite the smallness of amendment 35, the matter that it addresses is not unimportant. Members of the Education Committee will recall that we lodged amendments at stage 2 to allow contracting bodies to ask to see disclosure certificates for a contractor's employees. Those amendments were made with school transport services in particular in mind. I do not know why East Renfrewshire is always central to such matters, but an example from there had been in the public domain.

The stage 2 amendments allow, for example, a council to ask to see the scheme record disclosures of the employees of a bus company that provides school bus services. However, as I informed the committee at the time, there will be no obligation on any individual to consent to such a request. As the power was only that contracting bodies could ask to see disclosure records, I considered that it was unlikely to be controversial. However, a number of voluntary sector service providers have since expressed serious concerns about the provision.

Photo of Jackie Baillie Jackie Baillie Labour

The minister has acknowledged that voluntary organisations that provide regulated care services on behalf of local authorities have raised concerns that powers in section 64 could be used to allow commissioning authorities to override their recruitment decisions. Such concerns have been raised with me as well. Will the minister reassure me that that is not the intention of the stage 2 amendment by clarifying what circumstances he envisages will be prescribed in future regulations?

Photo of Robert Brown Robert Brown Liberal Democrat

I am grateful to Jackie Baillie for her intervention. It is not the policy intention to allow commissioning authorities to override recruitment decisions, and the bill provides no such mandate, with or without amendment 35.

A general issue that the Education Committee considered was how to prevent public authorities from gold plating the provisions in the bill as a self-protective mechanism. Something of that spirit lies behind some of the issues under consideration. I will explain further the background to amendment 35.

The voluntary sector service providers that have been in contact with me and with officials—and, I am sure, with Jackie Baillie and other members—have expressed particular concerns about the implications for compliance with employment law and contract renegotiation. A number of those concerns were valid, which is why we lodged amendment 35. However, we did not want to lose the bill's flexibility in its entirety because it is clear that there are some circumstances in which it is appropriate for the contracting body to be able to ask to see the contractor's employees' scheme records. We need to have detailed discussions on implementation with the Convention of Scottish Local Authorities and the service providers that have an interest in the issue before it can be finally resolved.

Amendment 35 will give ministers a power to prescribe in regulations the circumstances in which it would be appropriate for a person other than the employer to be able to ask to see scheme record disclosures. As is the case with other significant regulations in the bill, we will formally consult on any such regulations made under that power. The bodies that are consulted will include contracted service providers, councils and COSLA, in particular. That will give us the opportunity to consider a difficult and complicated area in full and to avoid unintended consequences.

I hope that members will support amendment 35, which the Executive lodged in response to the concerns of stakeholders. The development of the amendment is a good example of parliamentary consideration progressing the argument and arriving at a reasonably sensible outcome.

I re-emphasise that it is not the policy intent to allow recruitment decisions to be overridden. I do not want to prejudge the consultation, but it might be possible to make a distinction between transport providers, who might be said to have expertise in transport but not in child protection, and voluntary sector providers who provide a child protection or child enhancement service of some sort, in relation to which the issue is rather different. We are certainly not in the business of trying to implement a double lock, whereby double checks would be necessary. Our aim is quite the opposite—the thrust of the bill is about simplifying procedures and making the process more manageable and moveable for the people on the ground who will be affected by it. I hope that that provides members with reassurance on the background to amendment 35 and section 64.

I move amendment 35.

Photo of Fiona Hyslop Fiona Hyslop Scottish National Party

I welcome the minister's comments, which have clarified the Executive's policy intention. Further consideration of the matter will take place when the guidance is issued, which will deal with the prescribed circumstances in which such a request would be made. We will have to wait and see what comes out of that. The minister has clarified the policy intention.

The voluntary sector cannot be seen as one amorphous body, because in addition to small organisations that are about volunteering, it includes very large organisations that are commissioned by local authorities and health boards to provide services to children and to vulnerable adults. In that context, issues about the contract and servicing come into question, especially given that all the criminal sanctions in the bill relate to the responsibility of employers. In the circumstances that we are considering, the voluntary sector organisations are the employers and the statutory sector organisations are the commissioners. We must recognise that the thrust of the bill is to place on voluntary organisations the responsibility to ensure that they have their own records in place.

I suspect that, in commissioning services from the voluntary sector, the statutory sector would include as part of the service requirements that the voluntary sector organisation concerned should have robust child protection arrangements. However, again the issue comes back to trusting independent organisations in the voluntary sector not only to have robust recruitment procedures in place, but to have the vigilance, when providing services, to identify when an individual might pose a risk to a child or to a vulnerable adult.

The minister's comments will go some way to alleviating the concerns of the voluntary sector. He is right to say that the attempt to see off a specific concern about school transport—in relation to which child protection or support for vulnerable adults is not the prime aim of the organisations that provide such services—has kicked off another concern. The guidance on the subject will be vital and, again, the consultation on it will be imperative.

Photo of Robert Brown Robert Brown Liberal Democrat 10:00 am, 8th March 2007

I want to make one observation in reply, which relates to the purpose of section 64. Section 64 does not open up all sorts of things. It says specifically:

"It is an offence to request provision of, or to otherwise seek sight of, a disclosure record for a purpose other than the permitted purpose."

In a sense, amendment 35 will widen the chink very slightly. We are not criminalising all requests for such information in circumstances in which that would not be appropriate.

The wider issue, which might not be covered directly by section 64, can be dealt with under the guidance and the prescribed permitted purpose. In addition to the issues that we have discussed today, that will cover the background in complex areas of employment law, tendering and service specification. Amendment 35 will give us the power to get the right balance, in consultation with the people in the sector who will be affected.

Amendment 35 agreed to.