Before section 87

Protection of Vulnerable Groups (Scotland) Bill: Stage 3 – in the Scottish Parliament at 10:30 am on 8th March 2007.

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Photo of Trish Godman Trish Godman Labour 10:30 am, 8th March 2007

Group 11 is on guidance on the operation of parts 1 and 2. Amendment 5, in the name of the minister, is the only amendment in the group.

Photo of Robert Brown Robert Brown Liberal Democrat

At stage 2, Education Committee members suggested various ways in which a guidance power might be useful at a number of points in the bill. In particular, Elaine Murray proposed a power in respect of section 18 concerning police information and Iain Smith proposed guidance about the meaning of "regulated work" in the context of the regularity and frequency of that work, which was one of the subjects of debate at stage 2.

In response, I made a commitment to lodge an amendment placing ministers under a duty to issue guidance on the operation of the scheme generally. We had always intended to have such a duty, and it is helpful to put the power in the bill. Accordingly, amendment 5 places a duty on ministers to provide guidance on such matters as they consider appropriate in relation to the operation of parts 1 and 2 of the bill.

I move amendment 5.

Photo of Fiona Hyslop Fiona Hyslop Scottish National Party

Amendment 5 is important because so much of the operation of the bill will come down to interpretation and reflecting on previous legislation. The understanding of what is or is not meant in certain areas of the bill is very important. Some definitions have to be clarified. The extent to which terms had to be defined in the bill or in guidance was considered at stage 2. We accepted in good faith the minister's understanding that the most commonsense and reasonable approach was to put much of the definition in guidance. Amendment 5 is a technical amendment, but it will be fundamental to the successful operation of the legislation.

Photo of Iain Smith Iain Smith Liberal Democrat

Concerns arose at stage 1 and stage 2 about mythical stories about school discos and so on, but we also heard some real stories about people being required to provide disclosure checks in clearly inappropriate and unnecessary circumstances. I welcome the minister's intention to produce guidance on those issues that will, hopefully, clarify the circumstances in which a disclosure check or scheme record is and is not required, which is extremely important.

Could the minister, when he sums up, assure us that there will be wide consultation, not only on the forthcoming regulations but on the guidance? In particular, will the next education committee have the opportunity to consider any draft guidance before it is finalised?

Photo of Elaine Murray Elaine Murray Labour

I, too, welcome amendment 5. One of the concerns that was communicated to the Education Committee during consideration of the bill was the issue of people becoming risk averse, particularly when working with children. We have heard stories about, for example, parents not being allowed to get on to buses to fasten the seatbelts of their disabled children because they had not been disclosure checked. That sort of situation arises where there is confusion over when someone has to be a scheme member or needs to be disclosure checked. Organisations, rather than attracting blame, will tend to err on the side of caution and will seek the maximum level of disclosure to protect themselves. At one point, the bill was described as

"a protection of vulnerable organisations bill."—[Official Report, 17 January 2007; c 31097.]

Without the appropriate guidance, organisations will use the legislation to protect themselves from litigation and blame.

It is important that people have appropriate and robust guidance on who needs to be in the scheme and who does not. I welcome the fact that the Executive has lodged amendment 5 at this stage to make it absolutely clear that ministers will produce guidance and that there will be no excuse for such risk-averse behaviour under the new regulations.

Photo of Robert Brown Robert Brown Liberal Democrat

I thank members for their comments on the amendment. The guidance will be useful in helping to implement the act. During my time as a minister and, before that, as a back-bench MSP, I have found that passing a good law is one thing, whereas implementing it is the rest of the iceberg—the real challenge—and no more so than with regard to the Protection of Vulnerable Groups (Scotland) Bill.

There will be wide consultation, specifically with the next education committee, on the guidance. We will want input, given people's considerable experience and knowledge of the system. We need to involve the education sector in that process, too.

In the background is a fear that people will adopt unnecessary or excessive approaches to the new legislation as they attempt to safeguard their organisations. We wish to avoid a gold-plating approach, as I have mentioned before. I think that, through guidance, we can do something to distil the sprit of what we are looking for. Elaine Murray mentioned the risk-averse nature of the debate surrounding the bill. That is an important point, and we need to consider that more broadly.

There are three levels at issue: the bill itself and its wording; the regulation and guidance that will support the bill; and advice, which I have mentioned a number of times. We will seek to provide advice—through the central registered body in Scotland and in other ways—to the small groups that will have to comply with the legislation so that they will have comfort and confidence in how the system will operate.

Amendment 5 agreed to.

Photo of Trish Godman Trish Godman Labour

Group 12 is on the annual report. Amendment 17, in the name of the minister, is the only amendment in the group.

Photo of Robert Brown Robert Brown Liberal Democrat

Amendment 17 is important. The need for the Scottish Parliament to keep an eye on implementation has been a recurring theme throughout the parliamentary consideration of the bill. I obviously have no difficulty with implementation being subject to parliamentary scrutiny or with ministers being held to account. I have commented as such already this morning. I have given substantial undertakings to the Parliament as to how the Executive will run a detailed and inclusive consultation process with stakeholders to pre-empt and avoid any difficulties so that people are comfortable with the implementation of the act. I accept that the Parliament will seek something more than good intentions from current ministers—particularly at this stage in the electoral cycle. Lord James Douglas-Hamilton lodged an amendment at stage 2 to require ministers to report on the operation of the legislation. We had a lot of discussion about that, and there was a fair degree of support for the idea in general. I am grateful to Lord James Douglas-Hamilton for raising the matter at that stage.

We have always been clear about the need for a reporting mechanism of some sort between the Executive or organisation and the Parliament. We have discussed the way forward on that with solicitors. Amendment 17 places a duty on ministers to prepare and lay before Parliament an annual report detailing the performance of their vetting, barring and disclosure functions—effectively, the operation of the central barring unit. That reporting requirement will be useful in holding ministers to account to the Scottish Parliament on a regular basis, and it will allow members and committees to raise issues on fees and other subjects on an annual basis if they wish to do so, in line with reporting arrangements in other areas. That will keep minds focused on delivering a strong performance through the new agency. I view the move as a positive one, which I think should command the acceptance of the Parliament.

I move amendment 17.

Photo of Lord James Selkirk Lord James Selkirk Conservative

The minister's initiative in response to requests from me at stage 2 is very welcome. Amendment 17 will provide for monitoring of the implementation of a scheme that, frankly, still has some uncertainties attached to it. If it emerges that there is dissatisfaction or discontent in certain respects, the arrangements can be revisited by means of a committee inquiry. The safeguard is necessary, and I thank the minister.

Photo of Fiona Hyslop Fiona Hyslop Scottish National Party

We might reflect that the future education committee will have its work cut out, given how many regulations it will have to consider, as well as the annual report. The current Education Committee has used its scrutiny and accountability powers for the annual reports of other organisations and, as Lord James Douglas-Hamilton has said, that will be a key role for the future committee in this case. I thank Lord James for bringing the matter to the committee in the first place, and I thank the minister for responding positively with amendment 17.

We might reflect, however, that we have not given great consideration to Disclosure Scotland becoming an Executive agency. The minister might wish to take the opportunity now to say what progress has been made in preparing for that and whether there are any issues that Parliament should be aware of. That clearly gives ministers more responsibility—in the sense of accountability—but it might be helpful if the minister could give us some indication of what the plans are.

Photo of Donald Gorrie Donald Gorrie Liberal Democrat 10:45 am, 8th March 2007

The amendment is excellent but I would like the minister to tell us what would happen during the rest of the year, not just when the annual report is published. Experience shows that it is not always as easy as it should be for an MSP to get information from ministers about the operation of boards, quangos and so on that are carrying out Government policy but are not part of Government departments. When many people were coming to MSPs with information about the serious problems that were being experienced by Disclosure Scotland and the regulatory body that dealt with the voluntary sector's applications, we found that it was difficult to get those problems dealt with by the Executive. Could the minister indicate the degree to which ministers will be able to query during the year if apparent failures by the new regulatory system are brought to their attention?

Photo of Robert Brown Robert Brown Liberal Democrat

I thank members for their welcome for the important and central amendment 17.

All sorts of organisations are obliged to submit an annual report to the Parliament. Most of those reports are not subject to debate or detailed consideration by committees, but some are. The reports provide committees with an opportunity to have a structured debate on the operation of the agency on the basis of solid information from officials.

During the introduction of the legislation, there will be consultation on the level of the bar, the level of the fees and the retrospection issue. On-going work will be done with the voluntary sector, stakeholder agencies and the next education committee on the details of those issues. There will be fairly close scrutiny of a series of aspects relating to the operation of the scheme.

Beyond that, it is open to members to hold ministers to account by way of parliamentary questions and press releases and, if the matter was felt to be important, through parliamentary debates. As well as the regular annual reports, there is a hillock of ways in which members can hold ministers to account.

The Parliament's education committee will have a central role in that work, as it is the committee that has the greatest expertise in the detail of the operation of the scheme. I am fairly certain that, given the information and experience that the current Education Committee has gained—indeed, that I and other ministers have gained—it will be vigilant in taking forward any concerns that members might have in that regard. That ought to provide solid reassurances on the questions that Donald Gorrie raised.

Amendment 17 agreed to.