Hansard

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 are disclosed. 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—