Disclosure (Scotland) Bill: Stage 1

Part of the debate – in the Scottish Parliament on 16th January 2020.

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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.