Disclosure (Scotland) Bill: Stage 1

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

Alert me about debates like this

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.