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Disclosure (Scotland) Bill: Stage 1

– in the Scottish Parliament on 16th January 2020.

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Photo of Christine Grahame Christine Grahame Scottish National Party

The next item of business is a debate on motion S5M-20452, in the name of Maree Todd, on the Disclosure (Scotland) Bill at stage 1.

Photo of Maree Todd Maree Todd Scottish National Party

I am pleased to open the debate on the general principles of the Disclosure (Scotland) Bill. I thank everyone who has contributed to developing the bill so far.

The bill is ambitious and touches on complex and diverse matters. Input from private individuals, employers, advocates, regulators and many others has been absolutely invaluable to understanding what they need and what we can achieve with the bill. We have been listening since its introduction. We have listened to the evidence that was given to the Education and Skills Committee and have engaged with more than 700 individuals, including children and young people, through events held by Disclosure Scotland and Volunteer Scotland. We have worked hard throughout to discover how we can make state disclosure work better for everyone.

I know that the proposals in the bill represent a significant change. To get all the benefits of the changes, we will need to maintain that engagement as we work towards implementation. I believe that the evidence that was given to the committee reflects the level of constructive cross-sector engagement that there has already been with a view to getting the bill right.

I also thank the members of the Education and Skills Committee for their considered approach to stage 1. In particular, I welcome the committee’s support for the general principles of the bill. I have taken time to consider its recommendations, and I am just as committed as it has been in providing a constructive response.

In recent years, the Scottish Government has worked to improve the justice, rehabilitation and disclosure systems. The Disclosure (Scotland) Bill is the next step in ensuring that we can continue to support safeguarding Scotland’s most vulnerable people while recognising the right of people to move on from their past behaviour. It is in that context that I am considering the committee’s recommendations.

The bill introduces new and reformed processes to allow certain information that could be disclosed to be fairly assessed. The current system provides only limited opportunity for people to challenge what is included in their disclosure. The reforms will ensure that people can interact with the disclosure process and expect it to take account of their circumstances. That does not mean that we will stop disclosing information that is relevant to safeguarding; it simply means that our disclosure system will be better able to take into account the individual circumstances surrounding offending behaviour.

That is particularly important when considering childhood offending. The bill will afford new protections to people who, as children, came into contact with the justice and hearings systems. The provisions allow the full context of childhood behaviour to be considered before a decision is made about whether to disclose such information to a third party.

I welcome the committee’s recognition of the particular needs of care-experienced people and our duty to listen carefully to their voices in developing policy. In evidence, we heard from Robert Dorrian, a care-experienced young person who described how a childhood conviction, for which he was admonished, followed him through his education and limited his opportunities as a young adult. That must change. It is vital that people who have experienced adversities in childhood are not further held back as they try to move on as adults.

Photo of Daniel Johnson Daniel Johnson Labour

The minister’s point about how such incidents can affect future chances is very well made. However, a concern was raised about whether sufficient consideration had been given to whether information on such behaviour might be disclosed as other relevant information, even though it would not be disclosed as a childhood offence. What consideration has been given to that concern?

Photo of Maree Todd Maree Todd Scottish National Party

We have given a great deal of consideration to the committee’s concerns about the disclosure of other relevant information, or ORI. I assure Mr Johnson that we are not planning to change the process of disclosure—how we make those decisions. What we are planning to do is to communicate better how those decisions are made.

We also seek to reform the process by which some spent convictions can be removed from a higher-level disclosure. There are many sensitive roles for which it is accepted and proportionate that convictions that would otherwise be forgotten still get disclosed. That allows employers to properly consider past conduct before putting someone into a position of responsibility. The Supreme Court has accepted that it is appropriate for us to set out clear thresholds regarding offence type and severity. Having lists and criteria against which disclosure happens enables a proportionate and foreseeable system that can be delivered within reasonable operational limits.

Currently, removing convictions requires a summary application to the sheriff. We have been told that the process is time consuming, expensive and intimidating for potential applicants. The bill will change that, and the new first step will be to make a simple review request to Disclosure Scotland. If Disclosure Scotland decides that the information should be included, the applicant can opt for independent review. I recognise and accept the committee’s position that allowing subsequent reviews of the same information at a later date would enhance proportionality. That means that a state decision to include a conviction could be changed later as time passes or circumstances change. I will therefore lodge a stage 2 amendment to that effect for the committee’s consideration.

As I said, I know that concerns have been raised surrounding ORI and the bill. It is important to remember that the provision of ORI is not something new that is being introduced by the Disclosure (Scotland) Bill. Inquiries following the Dunblane massacre in 1996 and the Soham murders in 2002 highlighted that we needed to better manage information about individuals about whom there are valid safeguarding concerns.

Photo of Elizabeth Smith Elizabeth Smith Conservative

I entirely agree with the minister about the sensitivities over the issue—what she has just said is absolutely right.

One issue that was put to the committee is that sometimes we end up with a situation in which the person who has information disclosed about them is not able to see the full extent of the information that goes to the employer or a reviewer. Does the minister have any concerns about that?

Photo of Maree Todd Maree Todd Scottish National Party

The bill proposes that an individual who requests a disclosure certificate will see the information about them that is to be disclosed before the employer does, and they will have the opportunity to have that information reviewed by the independent reviewer. It is planned that the independent reviewer will give some feedback on the decision, so the person who is applying for the disclosure certificate will be significantly better informed under the new system than they were under the old system

ORI has a vital role in safeguarding, and continuing with that approach is necessary for public protection. I am confident that Police Scotland and other United Kingdom police forces exercise the utmost rigour before deciding to include ORI. The purpose of the name changes that we are making is to mirror the arrangements that exist in the rest of the UK, which means that people will have the opportunity to dispute ORI’s inclusion before a potential employer receives it and will have a right of review by the independent reviewer. Statutory guidance on deciding whether to include ORI will also be issued to the chief constable. The changes will ensure that the information that may be included is more foreseeable, without diminishing the capability to share relevant information.

The committee has recommended that we include in the bill

“guiding principles ... which should apply to all decision making”.

Although the existing parameters have a very strong basis in the relevant case law, I accept the case for including more detail in the bill to assist with foreseeability and clarity. I am carefully considering the recommendations and how best to include those principles, but it is important that they do not compromise the flexible approach that is necessary in fully considering each individual’s circumstances.

I also recognise the concerns around how the Disclosure (Scotland) Bill will interact with the rules on self-disclosure in relation to childhood convictions. There are a number of challenges in ensuring that we get the balance between safeguarding and proportionality right. At stage 2, I will lodge amendments to ensure that no one will have to self-disclose a childhood conviction that would not be disclosed by the state.

The Scottish Government’s experience of operating the protection of vulnerable groups scheme since its introduction has highlighted the challenges in identifying eligibility for that scheme. The past eight years have demonstrated that the term “regulated work” is poorly understood and overly complex. The bill seeks to address those concerns. Discussions with stakeholders on the definition of “regulated work” indicated that many felt that it needed to be much clearer. It was also evident that, to ensure a robust PVG system, the definition of “regulated work” needed to go further and to include those who have the ability to exercise power or influence over vulnerable groups.

We have consulted on which day-to-day activities result in power or influence over vulnerable groups. Those activities and the definition of “contact” are set out in schedules 3 and 4 to the bill. Many stakeholders have told us that the new schedules offer more clarity, but I am conscious that clear and accessible guidance will be required to support them fully. We are committed to working with stakeholders, including smaller businesses and voluntary organisations, in developing the guidance.

I have noted the concerns that were raised by Scottish Women’s Aid and the committee regarding the proposed change to the definition of “protected adult”. The intention was to move away from the current lengthy and complex definition to focus on the range of issues that affect a person’s wellbeing, capabilities and capacity. However, I recognise that, in doing so, some of the nuance in relation to those who are vulnerable due to their circumstances may have been lost. I thank Scottish Women’s Aid for highlighting that issue, and I will lodge a stage 2 amendment to ensure that such people remain within scope.

The bill is founded on extensive and on-going engagement with a broad range of stakeholders. We have listened carefully to diverse voices from across Scotland at each stage of the bill’s development, and we look forward to continuing that approach as we progress. If there is one message that I ask members to take into the debate, it is that I am listening and I will consider carefully what more might need to be done. I acknowledge that we may have different views on the best way to make progress on some aspects of this innovative bill, and I welcome the constructive discussion that we have had so far. I commit to working together with stakeholders and with members of the committee and the wider Parliament to ensure that we get the bill right for our communities, for vulnerable groups, for businesses and for charities in Scotland.

I look forward to the debate and to hearing more views from members across the chamber.

I move,

That the Parliament agrees to the general principles of the Disclosure (Scotland) Bill.

Photo of Clare Adamson Clare Adamson Scottish National Party

As the convener of the Education and Skills Committee, I thank the committee members and the clerking team for their support during the stage 1 deliberations on the Disclosure (Scotland) Bill. The bill has the potential to be transformative for some people who find themselves in the disclosure system.

I was pleased that the minister mentioned Robert Dorrian. It is important that members understand fully the impact that the bill may have on young people such as Robert, so I will quote him. He said:

“I have experience of the disclosure process. I accrued an admonishment when I was 16. I have a very real interest in the bill, because it can effect change. There is a lot of conversation to be had about the intention behind the bill. My journey has been made more difficult than it had to be. Throughout my time, I have lost out on lucrative jobs, been passed over for consideration and have had to have more than one awkward conversation. That could and should have been avoided. Had the recommendations in the bill been enacted years ago, I might be in a different position from the one that I am in today.”—[Official Report, Education and Skills Committee, 13 November 2019; c 5.]

Those words highlight that it is vital that the bill is fit for purpose and works for everybody who interacts with the disclosure scheme.

That said, it is a complex and technical bill. As the convener of the committee that was charged with scrutinising it at stage 1, I believe that the evidence that we heard provided us with encouragement about the positive aspects of the bill but highlighted areas where the committee believes that further work is needed to ensure that the bill has optimal impact. I will try to cover those areas in my speech.

Before I do so, I thank all those who gave evidence to the committee, whether as part of our focus groups on the bill, by providing written submissions or by attending the committee to give oral testimony at evidence sessions. As we did in our report on the bill, I acknowledge the Government’s extensive engagement before drafting the bill. We heard from a wide range of witnesses, including many smaller voluntary groups and charities that interact regularly with the disclosure scheme. The lived experience of those giving evidence was particularly helpful in illuminating for the committee the potential practical challenges and opportunities in the bill as drafted.

I also thank the bill team from Disclosure Scotland, whose detailed pre-introduction consultation and constructive co-operation with the committee throughout stage 1 was very much appreciated. I welcome the Scottish Government’s constructive and detailed response to our stage 1 report, which was received on Tuesday.

I will focus my comments on some of the recommendations in our stage 1 report. I will not have time to pick up on everything in the report, but hopefully I will give colleagues some food for thought ahead of stage 2, when we expect to consider amendments on a range of the bill’s provisions.

I mentioned that some people view the bill as complex and technical, and that is certainly the case in relation to its interaction with other pieces of legislation. We were very concerned by some of the discrepancies between the bill as drafted and related acts that have been recently passed by the Parliament, such as the Age of Criminal Responsibility (Scotland) Act 2019 and the Management of Offenders (Scotland) Act 2019.

In our stage 1 report, we asked the Scottish Government to address those discrepancies at stage 2, and I note that the Government committed to doing so in its response. I welcome the Scottish Government’s reassurance that the bill was drafted with the principles of the United Nations Convention on the Rights of the Child in mind, which was another concern raised by the committee.

Another challenge that was addressed by the committee is the two-part test in relation to level 2 disclosures. The two-part test concerns whether the information ought to be included in the disclosure and whether it is relevant for the purpose of disclosure. We heard from a number of witnesses, including the Law Society of Scotland, who felt that further clarity was needed on the operation of those tests, particularly in relation to childhood convictions and the disclosure of other relevant information. Daniel Johnson has already raised that issue this afternoon.

In our report, we welcomed the Scottish Government’s commitment to develop guidance in collaboration with stakeholders, but we recommended that the Scottish Government consider the suggestion from the Law Society of Scotland that a set of guiding principles or criteria be included in the bill. I am encouraged by the fact that the Scottish Government has stated in its response to our report that an appropriate stage 2 amendment will be lodged on that issue.

As members can infer from the testimony of Robert Dorrian, the bill seeks to reform how offences that are committed by young people aged between 12 and 17. The policy memorandum to the bill states that one of the policy goals of the bill is

“recognising adolescence as a unique phase of life by ending the automatic disclosure of convictions accrued while aged between 12 and 17 years and introducing an assessment by Disclosure Scotland acting on behalf of Ministers as to whether convictions ought to be disclosed”.

That goal was welcomed by a number of witnesses, but I will focus, in particular, on people such as Robert Dorrian, who are care experienced. Who Cares? Scotland told the committee that,

“although those who have been in care make up an estimated 0.5% of the population, they make up 33% of Scotland’s youth offender population and 31% of Scottish adult prison populations”, which makes them much more likely to be impacted by decisions that are taken about the disclosure scheme.

I have spoken about the potential to provide the context for offences. On that issue, our report stated that more could be done to provide opportunities for any information related to childhood offences that is included in a disclosure to be set in context. That is particularly important for care-experienced people, given their disproportionate level of engagement with the justice system. We hope that that is at the forefront of everybody’s minds as the bill progresses.

The disclosure scheme is also about enabling individuals to take on roles in which they can work with vulnerable groups. One concern that the committee holds is over the current proposal to prevent under-16s from obtaining PVG scheme membership. Sarah Latto of the Scottish Volunteering Forum told us that,

“given that there is also the proposal to make being a PVG scheme member mandatory for doing regulated roles, a lot of organisations would interpret that as meaning that people under the age of 16 would no longer be able to do any voluntary work with vulnerable groups. We think that that would be a real shame and that it would not reflect current circumstances and roles that young volunteers fulfil.”

In our report, we recommend that the Scottish Government conduct a review of the change to measure any negative impact on volunteering rates among young people, as well as developing guidance and supporting organisations to continue to offer volunteering opportunities to those under the age of 16.

Finally, the committee considered the financial memorandum to the bill—in particular, the fee structure for those applying for disclosure products. We recommended the waiving of fees for volunteers obtaining any disclosure product, not just PVG scheme membership. The Scottish Government has committed to a wide-ranging consultation on fees, which I am sure we will all follow with interest.

It would be remiss of me not to mention the recent section 22 report on Disclosure Scotland’s information technology system. The committee has exchanged letters with the bill team to obtain assurances that the findings of the report will not affect the bill’s financial memorandum.

The committee considered other areas that I am sure will be picked up elsewhere in the debate, such as the use of other relevant information and the change from regulated work to regulated roles. However, as I am rapidly running out of time—

The Deputy Presiding Officer:

No, no—you can have a bit of extra time if you need it. I saw you looking anxiously at the clock, but we have a little time in hand.

Photo of Clare Adamson Clare Adamson Scottish National Party

I will conclude by reiterating that the committee supports the general principles of the bill. However, we believe that there are several areas of the bill that will require further clarification and consideration at stage 2 to ensure that the bill delivers on its aims in full. We look forward to considering amendments at stage 2 to strengthen this vital component of our protection of vulnerable groups.

I repeat my thanks to the many organisations that engaged with the Government’s consultation and the committee. Their input has got us to the position of having a robust stage 1 report. I look forward to hearing the rest of this afternoon’s debate and, in particular, how we might progress at stage 2.

The Deputy Presiding Officer:

There is a little time in hand, so I will not be too restrictive on timing—within limits.

Photo of Elizabeth Smith Elizabeth Smith Conservative

I put on record the fact that I hold a current PVG certificate.

The Disclosure (Scotland) Bill was introduced in Parliament on 12 June 2019, and it is clear that its general principles are warmly welcomed. I have heard of no concerns among stakeholders that the bill should not be happening. Indeed, it is a very bold move by the Scottish Government to try to improve and work through the complexities of the system, with all the sensitivities that go with it. Generally speaking, it is a good move. That said, the more that we look into the matter, the more complexities appear. I am not yet convinced that we have a way through some of the considerable problems, which I will come to in a minute.

The general approach of simplicity is warmly welcomed. The move away from the four different classifications that we currently have has been warmly welcomed by all the stakeholders, and the Scottish Government is right to try to address that problem. We also warmly welcome the progress towards a more digital system, which, in theory, will be more like the non-paper-based environment that we all live in today.

The minister mentioned that there is a need to recognise adolescence as a particular phase in someone’s life. I am sure that we would all agree with that. It is both important and appropriate that common sense can be applied to judgments should someone have fallen foul of the law in the past, whether they went through the justice system or the children’s hearings system.

I will address some of the fundamental problems of the bill as it stands, which I see not as party-political issues but as practical discrepancies that have been raised consistently by stakeholders—the Law Society of Scotland, Children in Scotland and Recruit with Conviction, to name but a few—throughout the past several months of evidence.

If we allow the bill to proceed beyond stage 1, as I believe we should, it is the Scottish Conservatives’ recommendation that some fundamental changes be made to avoid further complicating an already complicated landscape on what is often a sensitive issue. The committee’s report captures those concerns, and we welcome the general thrust of the comments that Clare Adamson just made.

Although a central theme of the bill is simplicity, the Scottish Government must state clearly how the Disclosure (Scotland) Bill will fit in with other primary legislation and statutory instruments. For example—this has been highlighted several times by various stakeholders—the Management of Offenders (Scotland) Act 2018 directs self-disclosure and the provision for under-18s is based on the date of conviction. The Disclosure (Scotland) Bill, however, contains provisions for state disclosure and includes provisions for a date of offence. Members will see immediately how that might have unintended consequences and cause legislative conflict. It is important that much greater thought is given to the necessary coherence of different pieces of legislation.

Photo of Maree Todd Maree Todd Scottish National Party

Since the Rehabilitation of Offenders Act 1974 was developed, the period of disclosure has always been set from the date of conviction and based on the disposals upon conviction. That is the most straightforward approach to take. In the period between offence and conviction, there is nothing to protect an individual from, because they are not yet carrying the status of a person with a conviction.

We decided to take a different approach, following the model in the Age of Criminal Responsibility (Scotland) Act 2019. Doing that will ensure that we deliver on our commitment to treat childhood offending as being different from adult offending behaviour. So, in the Disclosure (Scotland) Bill, as in the Age of Criminal Responsibility (Scotland) Act 2019, we are using the date of offence.

The presumption that is provided for in section 41 of the bill is there to deal with borderline cases in which the behaviour was committed under the age of 18 but the conviction occurred after the individual had turned 18. I hope that that reassures the member that we have considered that complexity and made the appropriate choices.

Photo of Linda Fabiani Linda Fabiani Scottish National Party

That was a long intervention. I can give you extra time, Ms Smith.

Photo of Elizabeth Smith Elizabeth Smith Conservative

That is a welcome clarification, and I fully understand the rationale behind what the minister has just said. It is encouraging that that has been considered. Nonetheless, we know what happens when there is a discrepancy in the language that is used in legislation and in different statutory instruments, and when a different interpretation is put on things. Therefore, it would be helpful if we could have some clarity on that point in the guidance.

The Professional Standards Authority is responsible for the accredited registers programme, which accredits the voluntary registers of practitioners who are not regulated by law, and it has made the same point about the need for coherence, particularly in relation to groups of volunteers that are not governed by a particular professional code of conduct. There are issues there, particularly if we want to encourage more volunteers to come into the process. It is an area that we need to consider at stage 2.

The Government has, quite properly, acknowledged that there are issues about coherence. It is a difficult situation, because the bill falls between portfolios. The Parliament has often been challenged on that, and we know what happens if we pass bad legislation and end up having to undo a lot of good things. It is, therefore, worth spending a lot of time on getting the bill right at stage 2, so that there is consistency.

There is perhaps an issue with the timescale for stage 2, which I understand is just a couple of weeks away. That is quite a short time in which to deal with some of the issues. The minister might like to think about that.

The most difficult issue, however, is legal as opposed to legislative. At the committee’s evidence session on 20 November, I asked the Minister for Children and Young People about the nature of the two disclosure tests—the “relevant” and the “ought to be disclosed” tests—because, as yet, I do not think there is enough clarity regarding the criteria that are to be used by decision makers. I know that other members—I think that Daniel Johnson is one of them—share that concern.

In line with what the Law Society of Scotland and the Howard League have advised, it is surely essential that there is clear guidance that is firmly rooted in the law and the foreseeability of outcomes. Members know only too well what happens when that is not the case. As things stand, the decision-making provisions in the bill remain quite complex, and there are a lot of issues with them that we must tie up before we move to stage 2.

How much longer do I have, Presiding Officer?

The Deputy Presiding Officer:

I can quite happily give you another minute or so.

Photo of Elizabeth Smith Elizabeth Smith Conservative

Thank you. These are important points.

I turn to volunteering, which my colleague Brian Whittle will focus on. The purpose of the bill must be about trust in the system. We must ensure that, when parents take a youngster to scouts, a sports group, a Duke of Edinburgh award group or whatever it might be, there is absolute trust not just in the integrity and probity of the person who is in charge and will be looking after the group but in the system that backs them up. That is absolutely crucial. We must ensure that we have a lot of volunteers, because communities depend on the strength of volunteers. The argument about what is defined as “regulated work” as opposed to “regulated roles” is therefore very important, and I am thinking about stage 2 amendments that might clarify some of that.

Sometimes in Parliament we are presented with a bill that deals with what looks like, in theory, a very straightforward issue but that, in practice, turns out to be incredibly difficult. I think that this is one of those bills, and I think that the minister thinks that, too. We must be united as a Parliament to overcome all the practical difficulties. The committee has made a good start on that and the minister’s comments reflect that, but I do not think that it is going to be an easy bill. It is quite a challenging situation.

Photo of Iain Gray Iain Gray Labour

I am pleased to join the welcome in the chamber for the bill, following the committee’s report. As members from other parties in the chamber will, my Labour colleagues and I will support the general principles of the bill.

It is worth spending a little time on the context of the bill. Last year, we celebrated the 20th anniversary of this Parliament, and there was a fair bit of debate about what has been the biggest, boldest or most controversial legislation that we have passed. Actually, a lot of what we have done has been consensual and has been passed quietly but with great care, and a lot of it has been about protecting people, especially children and vulnerable people—although Liz Smith was right to say that such legislation can be complex, even though it is consensual.

The first non-emergency act that the Scottish Parliament passed did just that. The Adults with Incapacity (Scotland) Act 2000, which I had the privilege of taking through Parliament with the Minister for Justice, Jim Wallace—happy days indeed—took incapacity legislation, some of which was centuries old, and replaced it with what was, at the time, the most modern legislation of the type in Europe. It was exactly designed to protect people who are rendered vulnerable by disability, illness or age.

The 2000 act has been notable for two things. First, it created a system that is unique to Scotland and Scottish needs, and secondly, although it is not often acknowledged in commemorations of our work, it has, in the intervening years, been used by almost every family in the country. Sometimes the quietest legislation is the most effective.

Disclosure is a bit like that. Over the years, we have taken the legislation that we inherited—the Rehabilitation of Offenders Act 1974 and the Police Act 1997—and built on it through the creation of Disclosure Scotland, the Protection of Vulnerable Groups Acts 2007 and various amendments to ensure compliance with human rights. We have worked, as a Parliament, quietly and without fanfare over time, to ensure that Scotland has the right processes to protect Scotland’s people. It is simply the next stage in that that brings us here today. Like the Adults with Incapacity (Scotland) Act 2000, these quiet legislative waters run deep.

The committee heard in evidence from Disclosure Scotland that the PVG scheme now has 1.2 million members. Therefore—this is especially the case for members of the committee—any time that we feel that this is all a bit dry, technical and complex, we need to remind ourselves of how important the system is in protection of vulnerable people in their contact with adults, in both professional and voluntary capacities, through every imaginable aspect of life and society.

As for the consequences of getting that wrong and the system failing, we need only to look across this city to the historical child abuse inquiry to hear exactly what happens when we fail to protect children and other vulnerable groups, and just how much hurt and suffering ensues. Those are not bad things that happened somewhere else—somewhere dangerous. They happened right here in Scotland, and in the very places that were supposed to be places of safety. That is a constant reminder that it is so important that we get the legislation right.

It is no wonder that a bill to modernise child protection laws and to strengthen protections for vulnerable adults has been welcomed—as members have said already—by a broad range of organisations that responded to the consultation and provided evidence to the committee.

As the convener has said, the committee supported the general principles of the bill, but said that

“there are a number of areas within the bill which will require further clarification and consideration”.

The question how the bill will interact with other legislation is crucial—in particular, acts that have recently been passed by the Scottish Parliament, including the Management of Offenders (Scotland) Act 2019 and the Age of Criminal Responsibility (Scotland) Act 2019. We still await answers to that question that will tell us, in detail, how the bill will do that. I think that the minister has, however, made a welcome commitment to lodge amendments at stage 2.

Labour will seek a commitment from the minister to publish an analysis of interactions with other legislation before the bill is enacted—assuming that it is passed into law. Ministers should also look again at the evidence that was provided to the committee, to ensure that the right balance is struck between protecting vulnerable groups, providing information for appointments to sensitive roles, respecting individuals’ rights to privacy, and allowing individuals to move on from offending behaviour. Sometimes the relationships between those things are difficult.

That is why we think—my colleague Daniel Johnson will say more about this—that consideration should be given to there being greater clarity about the principles that are to be applied. Again, I welcome what we heard from the minister earlier about that, although clearly we will have to see the detail on how she intends to try to deliver it.

It is also important that the bill ensures that the proposed changes to the system are user-friendly for organisations and for individuals, but it is clear from the evidence that we received that some work is still to be done. The disclosure system has to be easy to understand—in particular, the relationship between regulated work and regulated roles. As Liz Smith said, that was a clear theme in evidence to the committee.

At stage 2, I would like the committee to examine regulated roles further, so that organisations such as Shared Lives Plus, which supports adult carers, could be given parity with foster carers who care for children.

Next week will see the launch of the care review. Once the bill has been passed—as, I am sure, it will—we urge the Scottish Government to review the impact of the legislation on people who are care experienced. The committee convener spoke about one piece of evidence that we received, but we also heard other evidence about various aspects of the legislation and how they might have particular and disproportionate impacts on care-experienced young people who are building their lives and futures.

All that will be in the detail of the next stage, after 20 years of quietly but effectively improving protection of vulnerable Scots. We are sure that the bill will do that too, so the principle is certainly one that we will support this evening.

Photo of Ross Greer Ross Greer Green

As a PVG scheme member, I found the stage 1 process interesting. Robust and efficient safeguarding procedures are essential for protection of vulnerable groups in our society, but those procedures will never be simple. A balance needs to be struck to ensure that vulnerable people are protected, while the rights—in particular, the right to privacy—of people who work with them are also protected to the greatest extent possible.

That is especially true when those are not two separate groups—when a person who is considered to be vulnerable, perhaps by dint of their age, wishes to take on a role that engages with other vulnerable individuals. That has been a consistent theme in the Education and Skills Committee’s consideration of the Disclosure (Scotland) Bill, so I will come back to it in a moment.

The interaction of the bill with the wider agenda of restorative justice, in particular in recently passed legislation, is complex, as Liz Smith outlined. It is neither just nor sustainable that everyone who has a past offence be branded for life, but clearly we need a system in which people who present a risk to vulnerable groups are not permitted to work with them.

The aims of the bill are sound and will have the unanimous support of Parliament. As a PVG scheme member, I welcome the bill’s intention to strengthen and simplify the system. For example, the proposals to introduce regulated roles should lead to clearer understanding of where PVG membership is required. There has, in the past, been confusion about whether certain roles and work require disclosure, so the examples that are associated with the bill are helpful.

The reduction to two tiers of disclosure should also simplify the system and ensure that only convictions for which there is a genuine need for disclosure must be revealed. That is a sensitive area of law in which it can be difficult to get the balance right and in which case law plays a key role. The bill seeks to incorporate new provisions that are derived from recent case law from both the UK Supreme Court and the Scottish Court of Session.

In scrutinising the bill, the Education and Skills Committee heard evidence from a range of stakeholders, including organisations that work with vulnerable groups and with ex-offenders. Feedback from those organisations was not unanimous in respect of views on some of the proposals—for example, setting a new minimum age of 16 for PVG scheme membership—but their contributions were extremely helpful and showed broad support for the aims and principles of the bill. A broad range of specific concerns were raised; I expect the Government to address them, as appropriate, during stage 2 or through implementation of the legislation, once it has been passed.

A particular concern that I share with those stakeholders, and which I pursued throughout our evidence gathering, is about the proposal to remove under-16s from the PVG scheme. The rationale behind that is that the very small number of under-16s who are barred from working with vulnerable groups should already be known to the system, and that it is therefore disproportionate to monitor continuously a few thousand under-16s as PVG scheme members. I accept that rationale, but in combination with the offence of engaging in restricted work without having gone through a disclosure process, that creates an anomalous and potentially confusing situation in which under-16s could engage in what would otherwise be considered to be restricted work but which, by dint of their age, is not treated as such.

I accept that under-16s should not undertake that kind of work unsupervised and that an adult with PVG membership should be present, but the concern is about unintended consequences—namely, that the participation of under-16s in volunteering will be depressed by a perception that their ineligibility for PVG membership means that they are also ineligible for the volunteering work. Organisations might adopt a policy of requiring all workers and volunteers to be PVG members, as would be implied by the law, without consideration for how that would affect volunteers who are under the age of 16.

There are, of course, other Disclosure Scotland products, but that is where communication is key. We are talking about small voluntary groups, not professionals. In addition, I believe that vulnerability is being created because other imperfect services, including social work and the police, are being relied on to ensure that the small number of under-16s who are a risk and are barred from engaging with vulnerable groups are prevented from doing so.

My specific concern is about a situation in which one such young person moves between local authority areas. In that scenario, communication between the public agencies that most commonly engage with them breaks down, even if just for a short time. I accept that the risk of that happening is small, but there was a thoroughness in the previous system, which encompassed under-16s, that will potentially be lost.

The committee struggled with those issues. We did not conclude that the proposal is inappropriate and needs to be changed, but the concerns that were raised were compelling enough to lead us to recommend that the Government review participation of under-16s in voluntary work, following an initial period of operation of the new disclosure system. I would appreciate a commitment from the minister that such a review—a reasonable request—will take place.

The other area that I have spent the most time on concerns the new powers for Disclosure Scotland. A two-part test is to be introduced that Disclosure Scotland will exercise in situations relating to level 2 disclosures. A number of factors are to be taken into account during a level 2 disclosure to determine whether it would be proportionate. However, the bill lacks a clear framework or guiding principles for decisions, which means that a substantial part of the new system—procedures that directly impact on the balance between safeguarding and privacy and rehabilitation—were not available for scrutiny at stage 1.

I appreciate that the Government has committed to working with stakeholders to develop a framework for decision making, but it is bad practice for Parliament to pass legislation when substantive supporting documents including guidance have not been available for scrutiny alongside the bill. That is necessary sometimes, but I fail to see why it is the case in this situation. Overreliance on secondary legislation or non-statutory guidance means that Parliament simply does not have the same opportunity to ensure that legislation is fit for purpose.

I ask the minister to provide further clarity on the points that are raised in the committee’s stage 1 report that I have repeated, and I give the Greens’ support for the principles of the Disclosure (Scotland) Bill.

Photo of Beatrice Wishart Beatrice Wishart Liberal Democrat

The process of disclosure rests on the ability to have both consistency and discretion so that the system is able to ensure both fairness and protection. I agree with what was said about a case against the Metropolitan Police Service:

“The proportionality of the disclosure will inevitably require balancing the rights of individuals with the potential risk to members of society ... this balancing act is ‘of the greatest public importance’.”

Putting that into legislation is obviously a delicate and complex process. The Disclosure (Scotland) Bill is the first piece of legislation that I have had the opportunity to scrutinise since being elected to the Scottish Parliament, and I am glad to begin with such an important bill.

Legislative simplification is clearly necessary. Having patchwork legislation makes life harder for practitioners and for the people who work or live under the system. The disclosure process is useful only if it is effective and it is effective only if it can be understood. I support what Scottish Women’s Aid said, which is that simplification is

“welcome but only where this allows the same, or improved, levels of disclosure, coverage and protection for vulnerable people and does not inadvertently create loopholes capable of exploitation.”

Evidence heard by the committee about inconsistencies between this bill and others that have been passed by the Scottish Parliament in the same session was, therefore, concerning. Debbie Nolan, of the Centre for Youth and Criminal Justice, noted in committee that

“if those three pieces of legislation are not fully aligned, we run the risk of the benefits not being realised”.—[Official Report, Education and Skills Committee, 13 November 2019; c 6.]

If the Government cannot produce consistency across legislation produced in the same year, an expectation of consistent decision making by practitioners will already have been undermined.

I also note the need to create a regime that is able to stand the test of time. Other parts of the reforms were passed last year under the Age of Criminal Responsibility (Scotland) Act 2019. The Government’s response to new calls from the international human rights community and to amendments from my party mean that the new age of criminal responsibility already lags behind international expectations. Social Work Scotland said:

“It is critical that Scottish Government and its agencies have a coherent and comprehensive understanding of how all these parts piece together, with systems in place for managing risks, tensions and overlaps.”

I would be grateful to hear the minister’s understanding of how that would be ensured should this Parliament step up to the plate and raise the age of criminal responsibility in the future.

The relationship between employment and a criminal record is complicated, but the potential for rehabilitation that meaningful work can offer must be recognised. Although a job in itself might not trigger desistance, the stability and responsibility that it creates may actively stop a person tending towards reoffending. Research conducted last year by Beth Weaver of the Scottish Centre for Crime and Justice Research and the University of Strathclyde found that

“barriers to work engendered by attitudes towards people with convictions and disclosure of criminal histories may destabilise efforts to desist and cut off opportunities to sustain desistance, thus ironically undermining public protection.”

An overly restrictive disclosure regime is therefore in nobody’s interest.

In a similar vein, I would be grateful for reassurance that the safeguards that will be put in place to ensure that the new offence for those who fail to secure PVG scheme membership will not be used as a heavy-handed response to bad administration. A sentence of 12 months in custody may be appropriate where there is a deliberate intention to circumvent the scheme and to target vulnerable people, but I am not convinced that that is a proportionate response to other circumstances to which it might apply, such as what Community Justice Scotland called “a lapse in paperwork”.

There have already been reports of delays to PVG scheme membership applications at Disclosure Scotland as a result of hiccups with the new information and communications technology system. The Scottish Government has responded in part to concerns, but I would be grateful for further reassurances about IT capacity in light of 1.2 million people perhaps needing to reapply for PVG scheme membership as the renewal system gets under way.

Overall, although I do not think that it is quite ready yet, the bill has the potential to make genuine, positive changes to the disclosure process. I confirm that the Scottish Liberal Democrats support its principles.

The Deputy Presiding Officer:

That concludes the opening speeches. We move to the open debate. Speeches should be about six minutes, please. I have a little bit of time in hand for interventions.

Photo of Rona Mackay Rona Mackay Scottish National Party

I am happy to speak in this stage 1 debate. I consider it necessary to introduce the bill at this time. Perhaps the best way to explain why is by quoting the purpose of the bill from the policy memorandum:

“The provisions of this Bill will deliver a range of positive and proportionate reforms to the disclosure regime in Scotland whilst also strengthening the barring service to maintain the Scottish Government’s ability to protect the most vulnerable in society.”

In essence, the bill is being introduced to modernise and improve proportionality in the disclosure system. It aims to balance public protection with the right to move on from past offences. It is split into two parts. Part 1

“creates the legislative framework for the new disclosure products for criminal history and other information” and part 2

“makes a number of amendments and insertions into the PVG Act.”

As we have heard, the bill is complex. Amendments will be required at stage 2 to achieve the desired purpose of making the disclosure scheme less complex. The current legislation provides for 10 disclosure products, which stakeholders find confusing, and the system is mainly paper based. The bill contains proposals to allow ministers to offer stakeholders online services that are not possible under the existing legislation, while recognising that online access will not work for everyone and alternatives will be offered.

The number of disclosure products will decrease, reducing confusion, and improved digital services will guide employers and applicants to the right level of disclosure.

Crucially, as we have heard, the bill will give individuals greater control over their disclosure data. They will decide whether disclosure information will be released to a third party, without eroding the vital safeguarding role of disclosure. That is especially important for childhood convictions, when offences were accrued while under the age of 18. Those will no longer be automatically disclosed. They will be eligible for independent review, which, if successful, will allow the young person to move on without being hampered by a childhood offence. That aspect is probably best illustrated by the quote that the convener cited from Robert Dorrian of Who Cares? Scotland, a witness to the committee, who was also mentioned by the minister.

As the convener Clare Adamson, and Liz Smith, Iain Gray and others have said, the committee was concerned about the impact and interaction of the bill with the recently passed Management of Offenders (Scotland) Act 2019 and Age of Criminal Responsibility (Scotland) Act 2019, along with the proposed legislation incorporating the United Nations Convention on the Rights of the Child.

The Government has noted that and the minister addressed the issue in her response to Liz Smith. As I said, the Government will lodge amendments at stage 2 to remedy the matter. I am also pleased with the reassurance that the drafting of the bill took account of the UNCRC.

The committee welcomed the role of the independent reviewer, but was keen that support services would be in place by the time the bill came into force, which the Government has agreed with. The Government has also agreed that draft guidelines for the two-part test must be provided and that training must be part of that and be widely consulted on.

We were also concerned that an unsuccessful review of a list A offence cannot be reviewed for the same purpose twice, which could result in a lifetime of disclosure for the individual.

There was some confusion about how the review processes would work and how individuals could engage with the process. Those issues must be addressed. The Government has committed to considering a set of guiding principles in that regard, and the minister has outlined the situation in relation to reviews.

As Daniel Johnson and Liz Smith mentioned, the concept of other relevant information was a big issue for the committee to try to understand. There was confusion about who was responsible for that judgment, and what criteria would be used. The committee was concerned that, by allowing employers to access the information despite the conviction itself being withheld, ORI would not allow individuals to move on from past offending behaviour, particularly in the case of childhood offending and care-experienced people. The minister outlined the sensitivity of the situation, and that she plans to clear up the confusion around it. ORI is a key aspect of the disclosure scheme and does not erode the power that can lead to barring under the PVG scheme or discrimination in employment. However, it is understood that Police Scotland and authorities must reflect very seriously when deciding whether to include ORI. Although the committee supports the continuing existence of lists of offences, some anomalies will have to addressed. For example, “fraud” and “embezzlement” appear in different lists, which was also highlighted in the Law Society of Scotland’s helpful briefing.

Changes to the PVG scheme are an important part of the bill. The committee supports mandatory membership, and the move away from lifetime membership to a renewable five-year membership. That means that those who no longer need the accreditation will not need monitoring, which will reduce the administrative burden.

Iain Gray reminded us of just how important and popular the PVG scheme is. Liz Smith mentioned that there was a bit of uncertainty around regulated work and regulated roles. That has led to confusion about who should—and should not—become a PVG scheme member, which I hope will be addressed. As Ross Greer said, that happens under the existing scheme. With regard to under-16s—whom Ross Greer featured heavily in his speech—we expressed concern that the proposal for non-registration could contribute to a decline in volunteering opportunities, depending on how people and companies interpret the legislation. I take the points that Ross Greer made, and I am sure that the Government will address the issue. It has said that the number of under-16s who apply to join the existing scheme is low, and that there is automatic listing for those with a serious offending background.

The strong message that we got from witnesses is that the PVG scheme is only one of a number of monitoring and screening processes, and that safeguarding will always be the top priority. As such, with important amendments that will be lodged at stage 2, the Disclosure Scotland Bill is a huge step forward in many areas, and I am happy to support its general principles.

Photo of Brian Whittle Brian Whittle Conservative

I remind Parliament that I currently hold a PVG certificate, primarily because I am still active in coaching all age groups, and vulnerable groups. I am pleased to have the opportunity to speak in the debate. If I may, I will use my time to focus on the volunteering sector.

I think that we would all agree that every precaution must be put in place to ensure the safety of the young and the vulnerable. As Iain Gray highlighted, there are far too many high-profile cases in which the vulnerable have been let down, and we must do everything that we possibly can to make sure that every protection is in place. We know about the lifelong impact of adverse childhood experiences, which has been well documented in this place. As such, the need for a robust PVG check is apparent.

Having said that, I also highlight the need for the volunteering sector to be accessible to those who are so minded. Volunteering is crucial in so many areas, especially in enabling communities to access activities that tackle issues around isolation, health, education, and social interaction. The Deputy Presiding Officer knows that I have a real passion for that kind of preventative agenda, and such community activities have a central role to play in improving the health and wellbeing of our nation, and reversing a worrying trend in preventable ill health. Moreover, volunteering can have such a positive effect on the lives of the volunteers. As such, we need to ensure that opportunities exist, and are accessible, while ensuring that the highest standards of protection are not compromised.

I want to raise a specific issue that is illustrated by the case of a friend of mine against whom a vexatious allegation was made. It was eventually proved to be unfounded, but the impact on him as a coach and on his charges was profound. I recognise that such situations are very difficult to address, but address them we must. It is not a situation in which the person is innocent until proven guilty: they are removed from the situation immediately an allegation is made. How we should tackle that is an extremely difficult question, but I suggest that, in such situations, the coach could become supervised, potentially by another coach, to ensure that there is still protection.

When I renewed my PVG certificate recently, the process was not exactly simple or seamless. It required me and the club to fill in the forms and submit them to the governing body, and then we had to fill them in and submit them again when something went awry in the process. I then had to wait six weeks for clearance. It is a cumbersome process. I welcome the move to a digital system, which Liz Smith mentioned, as it should allow for a much more user-friendly experience. When a PVG certificate is renewed, all that is really being asked is whether anything has changed since the previous issue. A digital communication and collaboration platform should be able to access that data routinely. Such a system should also be much more effective in the on-going monitoring of those who already hold a PVG certificate, and it should be swifter in raising potential breaches. I look forward to the implementation of that system.

I also highlight that, at one time, I held three separate disclosure certificates for different organisations in order to work with the same sorts of vulnerable groups. There is surely no need for such duplication. Perhaps the bill will allow us to tidy up that situation.

The caveat that I want to highlight is that PVG checking should be seen not as an intrusive experience but as an enabler. It should be welcomed by all those who participate and it should keep parents satisfied that their children are being effectively supervised. On that point, members will know about the continuing petition on the subject, which the Public Petitions Committee is considering, as well as the Health and Sport Committee’s investigation of child welfare in sport. Those committees have certainly highlighted the issues, and it would seem that they are now being addressed. I hope that the outcomes of those investigations and actions will be positive. It is imperative that sports’ governing bodies implement the highest duty of care for their members. The work that those committees have done and continue to do demonstrates that there has been considerable variation in implementation of duties of care across governing bodies, so I would be interested to hear from the minister how the Scottish Government will ensure that there is full compliance with the legislation and how that will be monitored.

I was also interested in the points that Liz Smith made about PVG provision for former young offenders who have demonstrated a period of good behaviour. They brought to mind a scheme in Kilmarnock prison where inmates were offered the chance to take their football and rugby coaching exams. I took a parliamentary football and rugby team there to play the inmates and prison guards at football and rugby, which we all survived. It was a great opportunity to highlight that those people are still members of society and that, having served their due sentences for the crimes that they committed, they will be expected to reintegrate into society. It is clear to me that a coaching certificate allows such people the possibility of making a positive contribution to their community and their subsequent acceptance back into that community.

Of course, without the requisite disclosure certificate, they will not be allowed to deliver that coaching. I can definitely see the issues here. I am a parent who has all the same concerns that any other parent has, be they perceived or otherwise. However, if we are to create opportunities for those who have previously fallen foul of the law, we need to consider how the skills that they have learned during their sentences can be used in the community. Perhaps that will involve them working in partnership with other coaches and starting with the least vulnerable groups. Again, I would be interested to hear the minister’s thoughts on that.

Outside sport, I am working with a constituent in relation to allegations of historical childhood rape in schools. It is an extremely sensitive subject. It is part of a petition at the moment, and it has now gone to court. I would never comment on a particular court case, but the teacher in question at that time was just moved to another area and the PVG check did not follow him. Again, the bill perhaps gives us an opportunity to close what is, I think, a fairly major loophole in the law.

As has been outlined, the Disclosure (Scotland) Bill attempts to simplify the complex disclosure system in Scotland. That is very welcome. The reservation that has been expressed today, which I share, is that it does so in a complex manner. Evidence from the Law Society of Scotland, Children in Scotland, and Recruit with Conviction, concurs with that concern. I will not repeat that evidence, as it has already been highlighted.

Conservative members will support the bill at stage 1 but, in doing so, we recognise that there is a fairly hefty amount of work required to make it fit for purpose at subsequent stages. I urge the Scottish Government not to lose sight of the objective, which must be to ensure that the application process for a PVG certificate is user-friendly and does not deter those who wish to volunteer, all the while maintaining protection for those in our society who are most at risk. I am more than willing to work with the Government on that, should it see fit.

Photo of Alex Neil Alex Neil Scottish National Party

I welcome the bill. Over the past 20 years or so, the Parliament has passed very few bills that will impact on as many people in Scotland as the Disclosure (Scotland) Bill will.

As Iain Gray pointed out, there are 1.2 million people registered with Disclosure Scotland. As Brian Whittle has just shown, registration can be a good experience, or not such a good experience; nonetheless, it impacts on people’s ability to serve their community in the way that they wish.

However it is not just about the 1.2 million people who are registered with Disclosure Scotland. We should think about all the people that those 1.2 million are actually responsible for. By the time we add up the number of children that teachers are responsible for; the number of people that registered social workers, social care workers and health workers are responsible for; the number of people that all the sports organisations in Scotland and third sector organisations are responsible for, we see that it is not 20 per cent of the Scottish population; it is probably nearer to double that figure. In other words, probably between 35 and 40 per cent of the Scottish population will be impacted by the bill. The bill is a major piece of work, and it is extremely important that we get it right.

There are two issues that I would like to raise with the minister. The first was mentioned by Liz Smith and concerns the Parliamentary Bureau and the Education and Skills Committee. It would not be the first time that when the Parliament passed primary legislation too quickly, we had to introduce corrective primary legislation because we did not do a thorough enough job the first time around. With such an important and complex bill, let us take our time to make sure that we get it right.

I understand from the convener of the committee that the timetable is not quite as tight as Liz Smith said. However, I say to the committee and to the Parliamentary Bureau that if it takes a bit longer to get it right, let us take that time. Otherwise, we could adversely impact the lives, not only of those who are registered, but of members of vulnerable groups in our society.

I make my other point as a member of the Public Audit and Post-legislative Scrutiny Committee, which has dealt with umpteen issues of IT systems in the public sector that have gone wrong. If we add up the number of those IT systems, and the total cost of not getting it right, over the past 20 years, we see that the cost runs well into hundreds of millions of pounds. More important, not getting things right can destroy the improvement that is intended in service delivery, because of the time that it takes to correct the systems that have gone wrong or have not been properly planned. I say therefore to the minister and Disclosure Scotland to do whatever they can, and everything that they can, to ensure that they get the IT system right.

Brian Whittle is absolutely right: we want to make sure that people do not need to wait six weeks for the process to be completed. People do not want to have to resubmit their application because the IT system is faulty. If we are really to make big improvements, by planning them, and by making sure at the project management stage that we get it right, we will save a lot of heartache, agony, and money, at a later stage. That is extremely important.

It would be a great tragedy if we were to pass this excellent bill, which still requires amendment and further consideration, as I said, and it were then to fall foul of those practical issues, which would undermine its purpose, scope and intention accordingly. It is better to take our time and get it right.

There are a number of specific issues that I want to raise. I will repeat many things that have already been said, including what Rona said about simplification, which is extremely welcome.

For those people who got into a bit of trouble in their teens and perhaps ended up getting a criminal record, but who are not bad people and have moved on in life, I particularly like the fact that they will not have to go through the rest of their lives being penalised. They will not have to miss opportunities to help others or have their potential or actual careers ruined because Disclosure Scotland is legally obliged to cast up information about something that happened many years ago, possibly in extenuating circumstances, and which did not involve a serious criminal offence. I am delighted that we can make life not as miserable for those people who have moved on and want to help others, rectify their mistakes and serve the community. They should be allowed to do so, so those progressive elements of the bill are very welcome.

The minister and the committee must listen to representations that are made to them by outside bodies, as Rona said. I do not always agree with the Law Society of Scotland, but in its submission, it requested further amendment to protect human rights and asked that we deal with the list of offences, as there are issues with it that clearly need to be sorted at stage 2. We have to take those comments seriously.

However, we also have to look at potential impacts on other aspects of the bill as amendments are considered. The bill must be seen in its totality. When considering amendments, we cannot look only at the sections that would be amended. With a bill of this complexity, we need to take a comprehensive view and consider the impact on and potential unintended consequences for other provisions of the bill.

The points that were made by the Law Society and a number of other organisations that made submissions are important.

I congratulate the Government on the bill and I congratulate the committee on its excellent work. There is a bit more work to be done, but by the time that we get to stage 3, I hope that we will have a bill of which we can all be proud.

The Deputy Presiding Officer:

I remind members to always use colleagues’ full names when they refer to them in their speeches. I know that we are all pals, but it is useful for the official report and broadcasting staff.

Photo of Mary Fee Mary Fee Labour

I thank the Education and Skills Committee for its work throughout stage 1, which has provided us with an informative stage 1 report. I also express my gratitude to all the individuals and organisations who provided such valuable input to the committee’s inquiry and, prior to that, to the Scottish Government’s consultation on its proposed changes to the disclosure scheme.

As my colleague lain Gray said in his opening speech, we welcome the ambitions for the bill and will vote in favour of it at decision time.

The stage 1 report offers a wide range of recommendations to strengthen the bill, and I note from the Scottish Government’s response to the report that it will lodge amendments at stage 2 to strengthen the bill further. Those recommendations and the Government’s commitment to act on some of them are welcome in ensuring that the bill continues to meet the ambitions behind its introduction.

Simplifying the disclosure regime is necessary to reduce the complexities that many people face when navigating the system, as they must if they want to perform paid or voluntary work with children or people with complex needs, who are often vulnerable.

The reduction in the number of disclosure levels from four to two and in the number of products that are offered from 10 to four received significant support from respondents to the consultation, thus strengthening the arguments for simplifying the scheme. As Community Justice Scotland rightly pointed out in its submission,

“Simplification of this landscape is critical to ensure that people with convictions are afforded opportunities to move on with their lives.”

On many occasions in the chamber, I have argued for better rehabilitation for prisoners, and I believe that such simplification could support their rehabilitation into society and allow people whose offending behaviour lies in the past to live constructive and rewarding lives and put past events and behaviour behind them. Protecting the most vulnerable people in our society is a fundamental duty of any Government, and I believe that the bill continues to meet that duty while making it simpler for people to engage with the disclosure scheme.

I welcome the provision to introduce digital applications, which will make it easier for the applicant and reduce the administration for Disclosure Scotland and for employers who submit applications, but it is right that a non-digital system will remain in place for people who do not have access to a computer or the necessary skills to apply online. I also welcome the point raised by the criminal justice voluntary sector forum that people in the justice system are more likely to have speech, language and communication needs, lower educational attainment and higher rates of learning difficulties. It is very important that, regardless of need, people have the right support and access to information on disclosure.

Although I am supportive of the principles behind the bill, I have one area of concern, which surrounds the use of other relevant information. Assurances have been provided that a Scottish quality assurance framework will be developed in relation to Police Scotland sharing other relevant information, but I remain concerned about the sharing of information on behaviour that an applicant might have displayed during their childhood.

Alistair Hogg of the Scottish Children’s Reporter Administration said:

“The concept of ‘other relevant information’ is understandable, but disclosure of it, particularly in relation to behaviour that has happened during childhood or adolescence, needs a very high threshold.”—[Official Report, Education and Skills Committee, 13 November 2019; c 11-12.]

I fully agree with Mr Hogg’s point. That is where my reservations lie with regard to the sharing of other relevant information, especially for people who have come through the hearings system.

The Education and Skills Committee pointed out that

“the potential for disclosure of other relevant information held by the police undermines one policy objective of the Bill, which is to allow individuals to move on from past offending behaviours.”

I read carefully the minister’s response on the concerns that have been raised about the use of other relevant information, and I take on board the points that she made. However, I will observe with interest how the issue develops at stages 2 and 3.

I also support the ending of lifetime membership of the PVG scheme. There was widespread support for that part of the bill, because it will reduce some of the administration and monitoring of people who will no longer be required to be in the scheme. In evidence, the Church of Scotland raised concerns about how the transition from lifetime membership to five-year renewable membership would be managed. As the bill progresses, I look to the Government to set out clearly how that transition will be managed.

My only reservation in that regard is about the penalising of those who fall foul of the new term limits. I would not want anyone to be criminalised for failing to reapply, and I do not want people on low incomes who have to pay to reapply every five years to be financially burdened. I note that the current cost of an application is around £60. Therefore, I ask the minister to proceed with caution when she sets the fees in the future and to think of those low-paid workers and volunteers who pay for their membership themselves. The scheme cannot be a tax on people who perform valuable caring and support roles, or a barrier to them continuing in those roles.

Photo of Jenny Gilruth Jenny Gilruth Scottish National Party

I thank the Education and Skills Committee clerks, the bill team and all the witnesses who provided evidence ahead of the publication of our stage 1 report.

As we have heard today, the Disclosure (Scotland) Bill’s focus is on reforming how individuals’ past behaviour is recorded by the state. Furthermore, it makes provision for a number of changes to the PVG scheme, of which, as Iain Gray advised, there are more than 1 million members in Scotland.

As Rona Mackay outlined, the policy memorandum notes:

“The provisions of this Bill will deliver a range of positive and proportionate reforms to the disclosure regime in Scotland whilst also strengthening the barring service to maintain the Scottish Government’s ability to protect the most vulnerable in society.”

Part 1 of the bill considers the disclosure of unspent criminal convictions and other relevant information. Part 2 makes amendments to the Protection of Vulnerable Groups (Scotland) Act 2007. Other relevant information is information that currently can only be disclosed in an enhanced disclosure or a full PVG scheme record check. For example, it might include allegations that are held on local police records regarding an applicant’s behaviour, as Mary Fee outlined.

The bill proposes to reform the provision of ORI by ending the current process of disclosures being issued to employers before the applicant has had an opportunity to challenge the disclosure of any ORI. Furthermore, the bill will end the automatic disclosure of convictions that were accrued between the ages of 12 and 17. As Liz Smith pointed out, one of the key policy objectives of the bill is the acknowledgement of

“adolescence as a unique phase of life”.

As the centre for excellence for looked after children in Scotland noted in its submission,

“The disclosure of childhood information disproportionately affects young people and adults with care experience, who are more likely to have had contact with the police, and to have been involved in formal processes which lead to recording of behaviour.”

The Howard League Scotland agreed, saying:

“people who are looked after or care experienced often have arrested development and less opportunity to move on in life compared to somebody who is perhaps engaged in an isolated offence at the age of 13.”—[Official Report, Education and Skills Committee, 6 November 2019; c 26.]

The committee highlighted our concerns about the potential for disclosure of ORI to prevent individuals from moving on due to past offending behaviour. The issue was felt to be of particular concern with regard to childhood offending and for those who are care experienced. I was therefore glad to hear the minister refer to that specific point in her opening speech.

The Government’s response notes Police Scotland’s evidence to the committee, in which it asserted that all information is rigorously considered before any disclosure of ORI is made. The response also highlights provisions in the bill that give an applicant the opportunity to submit representations prior to the release of ORI.

Part 2 makes amendments to the 2007 act, and section 76 amends the meaning of “protected adult”. In its written submission to the committee, Scottish Women’s Aid raised some concerns, highlighting that the proposal to redefine “protected adult” will list vulnerability through “disability or illness”. In its submission, Scottish Women’s Aid stated that

“focussing ... on disability or illness created a loophole, as this definition would not automatically cover women experiencing domestic abuse”.

It goes on to state that the change to the definition that is provided for in section 76 is too limited and could create

“a specific issue for ... women experiencing domestic abuse who are accessing refuge accommodation”.

Scottish Women’s Aid has requested that section 76 be amended to include

“the full spectrum of services within which regulated roles in respect of ‘protected adults’ would exist.”

I raised that point with the minister in our evidence session and I know that Government officials have met Scottish Women’s Aid to discuss the organisation’s concerns, so I was absolutely delighted to hear the minister confirm that she will lodge amendments on the matter at stage 2.

One of the key aims of the bill is to simplify and modernise the disclosure system for users and organisations. The committee heard evidence that, for some people, the application process can provide further barriers to entering the labour market. As Robert Dorrian from Who Cares? Scotland explained in evidence,

“the stereotypical person engaging in the disclosure process may have had one or two moves, but what about the person who has had 14 or 16? The onus is on them to know about those changes, to know where they were at what time and to know about the support mechanism that is in place.”—[Official Report, Education and Skills Committee, 13 November 2019; c 21.]

Robert Dorrian was keen to point to the obligations that Disclosure Scotland has towards those with a care-experienced background, and to the role of corporate parents in ending what he described as “secondary discriminatory practices'” against care-experienced people. I note from the Government’s response that Disclosure Scotland is going to mount a major communications exercise in advance of any of the reforms that we are discussing today. I hope that the campaign will look to effectively consider the needs of care-experienced young people in particular, who might be reluctant to engage in the disclosure process through no fault of their own.

The committee was also cognisant that non-digital means of applying to the disclosure process should be maintained. As such, we welcomed the confirmation in the policy memorandum that, although a move to digital services will happen as part of the reforms, they will not fully replace non-digital ways of applying.

Today’s stage 1 debate is the start of a process of simplifying and modernising the disclosure system, with a focus on balancing public protection with the right to move on from past offences. As the committee heard, that is particularly pertinent to young people and those who are care experienced, who in the past may have ended up labelled for life.

I again thank those who provided the committee with evidence. I look forward to the next stage of our deliberations, in which we will focus on delivering a fairer disclosure system for the most vulnerable.

Photo of Maurice Corry Maurice Corry Conservative

I welcome this first stage of the Disclosure (Scotland) Bill, and I thank the members of the Education and Skills Committee and the clerks for their efforts in producing the committee’s stage 1 report. I should declare that I am the holder of a PVG certificate and that I have a daughter who works at Disclosure Scotland.

The disclosure system in Scotland is undoubtedly complex and presents many areas that call for caution, clarification and improvement. The bill seeks to address those issues, and so, in principle, I support it at this stage.

The system that is delivered by Disclosure Scotland is designed to offer a layer of protection to vulnerable groups in society, which include children and protected adults. The system ensures that the recruitment process allows only suitable individuals to work with people in those groups; however, the bill needs to take a balanced approach. In seeking to protect vulnerable groups in our communities, it must also respect every individual’s right to privacy and recognise the right point at which rehabilitated individuals are entitled to move on from a past offence.

I appreciate the bill’s aim of simplifying the disclosure system. I hope that, by making it more user friendly, we will remove long-standing complexities in the system, making it easier to navigate. By streamlining the current four disclosure products of basic, standard, enhanced and PVG to two levels, which will cover basic disclosure and more serious offences, the bill will offer users and organisations much-needed simplified options.

Connected with that is the digitisation of the disclosure system, which is most welcome, as it will allow users to make applications and view their disclosures online. That will make the process quicker overall. However, I agree that a paper-based system should continue alongside that service, as we should be mindful of those who may not be computer literate and those who are based in areas without reliable internet connections. As my party’s spokesperson on veterans’ affairs, I am keen to highlight the submission of Royal Blind and Scottish War Blinded, which welcomed the idea of PVG membership cards as a sound alternative option to the digital process and sought greater clarification on how that might be implemented.

I know that I am not alone in having concerns about legislative overlap and discrepancy regarding the way in which the updated disclosure process will work in practice. The Centre for Youth and Criminal Justice, Social Work Scotland and Community Justice Scotland were just some of the organisations that highlighted that issue to the committee.

When the bill is linked with the Management of Offenders (Scotland) Act 2019 and the Age of Criminal Responsibility (Scotland) Act 2019, we are presented with inconsistencies regarding how childhood convictions should be treated and whether that is under a self-disclosure or a state disclosure regime. As has been mentioned, there is further confusion as to whether it is the date of the offence or the date of conviction that will be taken into account under the bill. I recognise that, as the minister has confirmed today, those discrepancies are being actively considered, but I hope that a logical solution will be found before stage 2. I fully agree with the valid points that Alex Neil made in that regard.

The move from lifetime membership of the PVG scheme to a renewable five-year membership will reduce the number of individuals who are monitored when that is no longer required and so ensure people’s right to privacy. At the same time, it will keep the system up to date and more manageable. As has been mentioned, the PVG scheme currently has more than 1.2 million members, and not all of those individuals are still carrying out regulated work. However, the evidence to the committee spoke of a need for clarity surrounding the transition period before the proposal is implemented. Such a period is needed to allow organisations to adhere to the change in a more feasible timeframe and with greater understanding.

Moreover, I join others in suggesting that, in relation to situations in which an individual has, by mistake, failed to renew their membership, further consideration should be given to moving away from penalties or short sentences, which are inconsistent with the sentiment behind the bill and the current legislation.

As has been mentioned, further clarity and guidance are needed before stage 2 on the change in concept from “regulated work” to “regulated roles” under the revised PVG scheme. That change, which will describe the work that is being undertaken, will offer greater accuracy. Despite that, many smaller businesses and organisations are uncertain about what may or may not be included under that description.

In the same thread, there may be scope to expand how the bill defines vulnerable groups. For instance, its definition of a protected adult arguably centres on protecting those with health-related needs, inadvertently missing out other vulnerabilities that may need protection, such as old age and homelessness. That is worth exploring, and I look forward to seeing whether it will be improved after further consideration by the minister and the committee.

It is clear that some areas of the bill need further detail to make it a workable improvement on the complicated system that we currently have. Although I support its key principles, further consideration is needed to address those issues, particularly as it is such an important piece of legislation.

Photo of Gail Ross Gail Ross Scottish National Party

I add my thanks to the clerks, my fellow committee members and everyone who has given evidence to the Education and Skills Committee, both in writing and in person. It has been thorough and, at times, complicated, such is the depth and importance of the legislation that we are dealing with.

The bill will help to protect some of the most vulnerable people and groups in our communities and, as Alex Neil pointed out, it is imperative that we get it right the first time. The bill was introduced in the Scottish Parliament by the cabinet secretary last June, and it aims to simplify what is, as we have seen, an overcomplicated system of disclosure.

During scrutiny of the Protection of Vulnerable Groups (Scotland) Act 2007, the Government said that it would review the PVG scheme. As the scheme has been in place since 2011 and the Parliament has recently passed other, related pieces of legislation such as the Management of Offenders (Scotland) Act 2019 and the Age of Criminal Responsibility (Scotland) Act 2019, the decision was made to review and update the whole disclosure scheme.

As we have heard—this is what happens when you go last: everybody has said everything before you—various changes are being made, one of which is reform of the current suite of disclosure products. Currently, there are four types of disclosure checks: basic, standard, enhanced and PVG. The proposal is to replace those with level 1 disclosure, which would be the equivalent of basic, and level 2 disclosure, which would replace everything else. Responses to the Government’s consultation show that there is significant support for that reduction. Other feedback said that the complexity of the system lies not only in the suite of products that are available but in a lack of understanding of the underpinning legislation and difficulty in navigating the system.

The bill also makes changes to enable people to apply for and receive disclosures digitally. It is hoped that that, too, will simplify the system, but it is worth noting that there will still be a paper-based system for those who require it. That is in line with responses to the consultation that expressed support for the move to digital with the provision of a non-digital alternative. The committee also recommended full engagement with organisations that cannot access a digital platform. I am sure that the Public Audit and Post-legislative Scrutiny Committee will give that IT system proportionate and thorough scrutiny when the time comes.

One of the other major changes will be the ending of lifetime membership of the scheme and its replacement with a five-year renewable membership. Disclosure Scotland told the Education and Skills Committee that as many as 20 per cent of the 1.2 million people who are currently on the scheme no longer do regulated work. It considers it important that the scheme membership accurately represents the number of people in Scotland who undertake regulated roles. However, the committee was concerned about the proposed penalty of a short custodial sentence for those who fail to renew their membership, and it recommends that the Scottish Government look again at whether that is proportionate. I also agree with my colleague Mary Fee, who asked about people on low incomes. I am interested to hear from the minister whether there will be any help with funding for those individuals.

As I said, the bill does not stand alone. Like most of my colleagues, I love a package deal when it comes to legislation. It is our duty as legislators to ensure that the laws that we make fit together seamlessly, and a number of witnesses noted what they see as discrepancies between the bill and the Management of Offenders (Scotland) Act 2019 and the Age of Criminal Responsibility (Scotland) Act 2019. Organisations such as the Centre for Youth and Criminal Justice, Social Work Scotland and Community Justice Scotland all expressed concern. Their concerns included state disclosure and self-disclosure, the date of the offence versus the date of the conviction and how the new acts will align with the new disclosure system. The Scottish Government has confirmed that it will lodge amendments at stage 2 to deal with any discrepancies. I also welcome the explanation that the minister gave to Liz Smith, which was extremely helpful in addressing such concerns. The committee recommended that any future legislation, such as the legislation incorporating the UNCRC, should work well together with the bill, and I was glad to see that the minister, in the Government’s written response, confirmed that that will be the case.

There was also broad support for the moves to reform how offences that are committed by young people between the ages of 12 and 17 are disclosed and to bring about the end of automatic disclosure. I will share a quote from Community Justice Scotland. It said:

“This, at a stroke would reduce the likelihood that people will experience discrimination based on events that happened when they were a child, which have no reflection on their current or future potential to work or study as fully rehabilitated adults”.

I have no doubt that, like any legislation that comes before us at stage 1, the bill will be amended at stage 2. However, the underlying aim of simplifying the disclosure scheme is entirely sensible—or, to use Ross Greer’s word, “sound”. The committee supports the general principles of the bill, and I urge other members to do the same.

Photo of Kenneth Macintosh Kenneth Macintosh Labour

We move to closing speeches.

Photo of Daniel Johnson Daniel Johnson Labour

I would like to begin as other members have, by thanking the clerks. We have had a thorough debate. Our stage 1 evidence was also thorough, and that is possible only because of the hard work and diligence of our clerks.

I also thank my fellow committee members. As Gail Ross has just outlined, we have done our jobs thoroughly, both in public and private discussion. That reflects—as does today’s debate—that sense of shared responsibility to get it right. We have no greater collective duty than to protect the welfare and wellbeing of our children and vulnerable people. There is also our responsibility in terms of the raw numbers: as Iain Gray pointed out, one in five people is in the PVG scheme. For those reasons, the bill is important.

It says a great deal that there was so much overlap between the opening speakers in the debate. We all share the minister’s sentiment that we should make this bold reform. In doing so, there are several things that we must do. First, we must balance the responsibility for protection with the right of the individual to move on from any past crimes or issues that they have had in their lives. Reform must be based on those principles and must provide simplification and predictability of the system.

Another issue, which was touched on by several speakers, and Ross Greer in particular, is about the perception of how the system will operate technically. That is why the two-stage test is so important. It is with a degree of trepidation that I am going to talk about this. I do not think that I have ever spoken in a debate in which so many people have predicted what I will say. The topic is an issue of concern for me. In itself, the two-stage test is sensible. Indeed, there is case law that establishes what it is and how it should operate at a high level. However, if we are seeking predictability, clarity is important.

Clan Childlaw was very clear that it would find it difficult to provide advice to people who have information disclosed under the bill on the basis of the two-stage test. If legal bodies and organisations such as Clan Childlaw cannot provide that, then the understandability of the law and how it will be operated is in question.

I would like to provide a counter-factual. Before I do that, I will make a small apology to the minister. When she was giving evidence, I set her the rather unfair test of being able to explain what the difference might be between “relevant” and “ought”. The key test is to be able to explain a situation in which information would be relevant but ought not to be disclosed—where the information would pass one hurdle but not the other.

Here is the issue. Relevance is easy to understand. It is about a situation or information that directly relates to the job that is being undertaken by the individual. The “ought” test is more complicated. “Ought” always relies on another underlying value in order to test it. I apologise if I sound like a philosophy graduate, but I am one, and I think that this is incredibly important. It should be informed by factors in the case law such as the time and context of the incident in question. The issue is that, if we are talking about proportionality or risk, one person’s proportionality is not the same as another’s. That is why we have to elaborate further.

I accept that the minister is saying that much of that will be laid out in guidance but, because those tests are so pivotal, it is very difficult to scrutinise the legislation without seeing that guidance if those values are not further explained in the bill. That is why I welcome the minister’s willingness to look at amendments at stage 2 to provide those tests. I urge her to examine the suggestion by the Law Society that we provide high-level principles, albeit amendable through secondary legislation and backed up by statutory guidance. That way we can scrutinise and understand how this law will operate. Importantly, the people who are potentially subject to it will also be able to understand it.

I will mention some issues that have been raised by members. The issue of other relevant information, which was mentioned by Mary Fee, Rona Mackay and others, is critically important. The glib analysis is that the conditions in the bill for disclosure of convictions are lengthy but section 18, on other relevant information, is very short. However, the reality is that, because of the volume of information that could be disclosed, the volume of other relevant information may be greater than the volume of conviction information. Counterintuitively, the other relevant information might also provide the very insight into those convictions that would not be disclosed because of the age of the individual but which might be disclosed as other relevant information. We need to examine that further and make sure that there are no such contradictions or loopholes.

Ross Greer’s examination of under-16s and the impact of volunteering highlights the point that I made at the beginning. It is important to understand the difference between how the provisions operate technically and how they are perceived. That is at the heart of that issue. We do not want to put off under-16s from volunteering, both because of the contribution that they can make and because of how valuable volunteering is for them.

I will touch on the issues with other legislation. It has been interesting for me, as a committee member, to examine this bill after spending some time on the Justice Committee during the passage of the Management of Offenders (Scotland) Bill. A number of members have identified an interaction between the two bills. It is also interesting to see how this bill fits with other legislation and how the Government plans for legislation. There are overlaps. I appreciate that the minister has said that she will bring forward guidance, but that is critical, because it comes down to confusion. Many people have made the point that, when you have confusion, you get overdisclosure, and that can exacerbate the stigma that is faced by individuals.

I urge the Government to think carefully about interactions when it plans legislation. We have three bills that have passed through this place in quick succession, yet we are questioning how those interactions will work and whether there are unintended consequences from different acts that have been passed within months of each other.

I will end by reflecting on the points that Alex Neil made. Let us take our time. If we need to take further evidence at stage 2 and contemplate those interactions and whether we have had adequate information from the Government, let us do that. Let us get this right. As so many people have pointed out, the bill will impact on the welfare and wellbeing of our children and so many people in Scotland who undertake invaluable volunteering work.

Photo of Alison Harris Alison Harris Conservative

I declare that I, too, hold a PVG certificate.

I am pleased to be closing for the Scottish Conservatives in this stage 1 debate. As my colleague Liz Smith said in her opening speech, we support the principles of the Disclosure (Scotland) Bill. We all agree that protecting the most vulnerable people in our society is crucial, and if we can make the administration of that more efficient, we should.

The Education and Skills Committee’s stage 1 report expressed the committee’s view that it is “very concerned” with certain aspects of the bill. As Clare Adamson, Ross Greer and other members said in their speeches, one of those concerns is the impact that the bill could have on volunteers who are under the age of 16. The contribution that young people make through volunteering in any capacity cannot be overstated. Committee evidence revealed many concerns about the combination of the minimum age requirement of 16 and mandatory PVG membership for regulated roles. Indeed, one organisation stated that it is likely that the bill will

“be interpreted to mean young people under 16 cannot undertake regulated roles.”

I appreciate that the Scottish Government acknowledges that concern, but the area will require further clarity as the bill progresses.

Another issue that was highlighted in the committee was how the proposal to move away from lifetime PVG memberships to a five-year renewal period would be implemented. There needs to be a proper transition so that organisations do not end up with a huge budget commitment at the same time every five years due to current PVG members renewing on the same day. The minister suggested a couple of options for addressing that issue in her response to the committee’s report, and I look forward to debating them at stage 2.

I turn to the bill’s promise to digitise the disclosure system. The end goal is to increase efficiency, which would be a welcome outcome, but there are grave lessons to be learned from the recent move to the new IT system, which is known as PASS, or protecting and safeguarding Scotland. In the chamber in June, I raised with the minister concerns about the robustness of any IT system tied to the Disclosure (Scotland) Bill. In response, the minister said:

“we are confident that the system is at an appropriate stage and will be completed in time for the delivery of the new services.”—[Official Report, 13 June 2019; c 69.]

Disclosure Scotland has a target to complete 90 per cent of disclosure checks within 14 days, but in September last year, the percentage of PVG checks completed within that target fell to 47.8 per cent, and in October it fell again, to just 12.5 per cent.

I heard at first hand about the huge delays to disclosure checks from childcare providers who were unable to put staff in place to work due to PVG checks taking twice as long as they should. At the end of October, I wrote to the Minister for Children and Young People, and in her response, she told me that the delays were partly due to seasonal pressures causing an increase to workloads and partly due to the “bedding in” of the new digital PASS system, which went live in September 2019.

The recent Audit Scotland report on Disclosure Scotland highlighted a reduction in its performance in November. That report made for very interesting reading. It included a summary of the transition to the PASS system, which showed that Disclosure Scotland’s June 2015 proposal to the Scottish Government to take the digital contract out of BT’s hands was rejected for its high cost: £77.2 million over the transition period of 2015-16 to 2022-23. According to the Audit Scotland report, four months later, Disclosure Scotland returned with a second proposal, stating a projected cost of £34.1 million. The Scottish Government accepted the revised offer. However, in the years since, there have been several revisions to the budget forecast, and in November 2019, the costs were higher than the original figure of £77.2 million that was rejected by the SNP Government.

The bottom line is that the PASS system is over budget. It was not ready to be fully rolled out in September, and, as I previously stated, lessons have to learned from that, especially in the light of digital updates being required with the passing of the disclosure bill. At this stage, I acknowledge the very pertinent comments that Alex Neil made about IT systems.

The final issue that I will discuss today is the bill’s coherence with other legislation that has been passed by the Scottish Parliament. As other members have mentioned, several recent parliamentary acts have legislated on similar issues to the ones on which this bill legislates. Those acts include the Age of Criminal Responsibility (Scotland) Act 2019 and the Management of Offenders (Scotland) Act 2019—very recent acts that may need to be amended to correct the contradictions and discrepancies that could arise because of the introduction of the bill.

I agree with the Education and Skills Committee's conclusion about the importance of ensuring that no more discrepancies arise when incorporating the United Nations Convention on the Rights of the Child into Scots law. The minister's response to the stage 1 report stated that the disclosure bill was designed with the principles of the UNCRC in mind, but it did not confirm that changes to the bill would not be required when incorporating the UNCRC into Scots law. Instead of taking a piecemeal approach to legislation, it is important to ensure that those pieces of legislation work well together, as Beatrice Wishart mentioned in her speech.

I reiterate that we will support the bill at stage 1. However, we fully believe that amendments and clarifications are required at stage 2 on the issues that have been raised in the chamber today—more issues than I have been able to cover—such as ORI, which I know that Mary Fee and Daniel Johnson have mentioned. I also appreciate that, in her opening speech, the minister said that there is a need for clarification and discussion on those.

Several MSPs have discussed the new lists of offences and regulated roles, and those are areas requiring close consideration going forward. For the continued protection of vulnerable groups—which everyone in the chamber acknowledges is essential—we need this legislation to be right.

Photo of Maree Todd Maree Todd Scottish National Party

I thank the members for their contributions. I am very pleased that there is support throughout the chamber for the general principles of the bill.

The debate has been constructive, so I want to make it absolutely clear that I am committed to continuing to work together in this complex area. I have listened carefully to the debate and will consider the issues that have been raised today and in the committee’s report, as we proceed.

The bill will enhance existing protections and close potential safeguarding gaps, thereby creating a more robust disclosure system. The bill refocuses the PVG scheme on people who have power or influence over children and protected adults.

It was evident from the Health and Sport Committee’s consideration of child protection in sport—in particular, when it discussed the role of football scouts—that many people who were involved at senior level did not appreciate the power imbalance that exists between clubs and children. I reiterate my appreciation to the stakeholders who have engaged with us on the change to regulated roles, and who continue to provide feedback. It is absolutely vital in ensuring that the legislation provides sufficient coverage to protect vulnerable groups.

My priority is the continued ability of the disclosure system to support protection of the most vulnerable people in society. People who, because of their past conduct, are unsuitable for undertaking such roles must still be prevented from doing so.

However, it is important that children are treated as children. The children’s hearings system and the focus on early and effective intervention provide a proportionate and flexible response to harmful or criminal behaviour by children. The disclosure system must be able to take a proportionate approach to including information from that meek period of life, and I believe that the bill allows us to do so.

It is important that we have a disclosure system that gives all applicants greater control over their information. Some people’s past conduct makes them unsuitable for roles with vulnerable groups or valuable assets. However, that must not be used to prevent all people who have convictions from accessing employment, which we know helps to reduce reoffending. To do that would also deny our communities the value of such people’s skills and experience. For most people with convictions, the passage of time and living a law-abiding life provides a basis for them to access work and make a great contribution to society.

I recognise that that can be difficult for employers, so I encourage anyone who wants to learn more about employing people with convictions to access the free “Scotland works for you” training that is offered by Disclosure Scotland. That initiative helps employers to understand how to make risk assessments on conviction and rehabilitation.

Legislation gives us the levers to reform disclosure. However, in order for individuals truly to be able to access their rights, comprehensive and accessible guidance about the disclosure system must be available, so the Scottish Government is committed to delivering that. Guidance will be provided in various formats for a range of audiences, and will be developed in conjunction with users and stakeholders, including children and young people and organisations that advocate for them. We already have interest from a range of groups that want to support Disclosure Scotland in developing the guidance.

I will pick up on a number of issues that were highlighted during the debate by multiple members. I assure members that if I do not manage to respond to particular issues, my door is always open, and I am more than willing to meet members and to facilitate access to officials, if they want further clarity.

On coherence, I refer members to the Government’s written response to the committee’s stage 1 report, which highlighted that

“The Government progressed all three pieces of legislation—the Age of Criminal Responsibility (Scotland) Act 2019, the Management of Offenders (Scotland) Act 2019 and the Disclosure (Scotland) Bill—by adopting a joined up policy model, sharing ideas, information and team members, ensuring policy coherence uniting the three.

Each Act (or Bill) has had its own parliamentary journey and the provisions of each are absolutely consistent with each other in broad policy terms”.

Photo of Elizabeth Smith Elizabeth Smith Conservative

The minister is right that the Scottish Government has gone into considerable detail. I hope that it has done that with legal advisers on some of the definitions. The challenge that we face is in getting things across to some stakeholders—practitioners who will have to operate the system—because the language is complex. I ask the minister to reflect on that point.

Photo of Maree Todd Maree Todd Scottish National Party

Certainly. I hope that members acknowledge that our work with stakeholders has been thorough and committed. We will continue that work and make sure that we respond to concerns that they raise during the progress of the bill.

When the bill was introduced last year, the other two connected pieces of legislation had not yet been enacted, so it is inevitable that there will be procedural and technical inconsistencies between them that require to be remedied. We foresaw that and are committed to bringing everything fully into line by stage 2. I reassure the committee that the bill was drafted with regard to the UNCRC principles and the Children and Young People (Scotland) Act 2014.

Another frequently raised issue was decision making and the two-part test. As I set out in my opening remarks, I accept the calls to include more detail in the bill on decision making around the tests for relevance and what ought to be included. I am carefully considering the recommendations on how best to include those principles without compromising the flexibility that is necessary to give full consideration to each set of circumstances.

It is helpful to be clear about the type of information that we are talking about. The two-part test of whether something is relevant to the purpose of disclosure and ought to be included in the disclosure applies to three separate categories of information: other relevant information, childhood conviction information and removable convictions. Although the wording is the same, the tests will be applied in different contexts, depending on the information in question and the stage in the review process. Maintaining the same wording is absolutely crucial.

Photo of Daniel Johnson Daniel Johnson Labour

Will the minister reflect on the fact, which I accept, that the test will apply differently in those different contexts, and consider whether that underlines the need for greater clarification and, perhaps, for including it in the bill?

Photo of Maree Todd Maree Todd Scottish National Party

Certainly. As I set out in my opening remarks, I will lodge a stage 2 amendment to address the committee’s recommendation to include the principles in the bill.

We have begun engagement with stakeholders to develop guidance that is to be used by decision makers. The crux of the issue is to make the outcome of any assessment or review process more foreseeable and accessible to disclosure applicants. User-friendly guidance is essential not just for applicants, but for those who support them.

A number of members talked about how challenging and complex the bill is. However, I have confidence that Parliament can rise to meet the challenges, and that our close working with stakeholders will enable us to communicate about the legislation once we have completed it.

Disclosure Scotland’s digital transformation is paving the way for the work that will take forward the bill’s provision’s; many of the innovative changes in the bill could not have been implemented using the previous IT system. PASS is already dealing with all Disclosure Scotland’s current business, and we will work with our customers to ensure that there are solutions for delivery of the bill that meet everyone’s needs. Lessons have been learned from implementation of the original PVG scheme in 2011 and the current digital transformation at Disclosure Scotland. The digital functions that will be required to implement the bill will be developed using Agile, as set out in the financial memorandum. Disclosure Scotland will begin the discovery phase for bill implementation in the coming months.

With regard to the Auditor General for Scotland’s section 22 report, Disclosure Scotland will consider the report’s findings and take appropriate action to address the points that have been raised. In fact, it has already made a number of changes to improve clarity of governance, including creation of a change delivery advisory panel to provide critical challenge, support and assurance.

The Presiding Officer:

Can I take a moment to ask members to keep their conversations to a minimum? Thank you.

Photo of Maree Todd Maree Todd Scottish National Party

Thank you.

The introduction of a minimum age on disclosure is not unique. The Disclosure and Barring Service introduced a lower limit of 16 years of age back in 2012 and AccessNI did the same in 2015. The legislation that we are introducing is therefore coming into line with what already occurs in the rest of the UK. I am conscious of the concern that an unintended consequence of the measure would be a reduction in volunteering opportunities for children. Disclosure Scotland will work with Volunteer Scotland disclosure services and across the Scottish Government to ensure that organisations that offer volunteering to under-16s understand the changes and continue to offer opportunities to children.

Photo of Ross Greer Ross Greer Green

Will the Government agree to the review that the Education and Skills Committee has asked for into the bill’s impact on participation of under-16s in volunteering?

Photo of Maree Todd Maree Todd Scottish National Party

Certainly. As I said, we are more than happy to work with bodies that represent volunteers in Scotland to see whether there is a change in the level of volunteering. As Mr Greer does, I understand just how significant children and young people’s volunteering is. In fact, children and young people volunteer at about twice the rate of adults, so volunteering is important not only for children but for Scotland, so we must ensure that they are able to continue to volunteer and that we do not introduce any barriers to that.

On penalties for the offence under the bill, I reassure members that when we introduce a mandatory scheme, it can be effective only if it is supported by a criminal offence for non-compliance. However, the penalties in the bill are consistent with provisions in existing legislation. Although the legislation currently includes the penalty of imprisonment, there has been no sentencing to prison of people who have not navigated the system appropriately since the legislation was introduced.

All those issues are important. I thank members for raising them throughout the debate. Although we are focusing on the general principles at this stage, I again reassure members that the discussion with stakeholders on the proposals in the bill, on implementation and on planning will continue.

I again offer to meet members from all parties. I am open to discussing the detail of the bill and taking the time that is needed to work through the complexities.

I consider that the committee’s approval of the principles and the general tone of today’s debate are indicative of a shared view across the parties that we need to reform the disclosure system. Together, we can ensure that it continues to protect the most vulnerable people in our society, while also being rights-respecting and proportionate. I look forward to taking our next steps together.