Hansard

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.