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.