Meeting of the Parliament 13 June 2019
The Scottish Government is committed to policies that balance public protection with the right to move on from past offences. Those are not contradictory aims; both can be achieved.
Since November 2016, when the Deputy First Minister announced the review of Scotland’s disclosure regime, we have engaged extensively with stakeholders to achieve that balance. Last summer, following pre-consultation engagement with over 300 individuals and organisations and an online survey that generated more than 800 responses, we undertook the statutory public consultation on disclosure, which was distributed widely to stakeholders, including all organisations registered with Disclosure Scotland. The consultation received 353 responses from a broad cross-section of Scottish life, including individuals, charities, sports associations, advocacy groups and private sector businesses.
The views and experiences that respondents shared provided vital insight into ways in which the disclosure regime, including the PVG—protecting vulnerable groups—scheme, can be improved. Those with whom we engaged consistently highlighted the value of the service and the safeguarding that it provides. However, they stressed a real need to make it more proportionate and simpler to use. From the outset, the Government intended to capture the best ideas in striking a new balance between delivering a fairer disclosure regime and strengthening the ability to protect the most vulnerable in society.
Yesterday, the Scottish Government introduced the Disclosure (Scotland) Bill, and I take this opportunity to update Parliament on how the bill will deliver that balance. We must ensure that safeguarding the vulnerable in society continues to be at the forefront of our minds. We must never forget the reasons why the service is so important. The bill will deliver a range of reforms to the protection of vulnerable groups, ensuring a world-class service in protecting the public from those whose past conduct makes them unsuitable to carry out regulated roles with children and adults.
It is widely recognised, in the light of past tragic events, that there is a need for additional scrutiny of a person’s background if they want to work with vulnerable groups or in other sensitive roles. The intention behind the bill is for the focus to remain on having a system of robust disclosure checks for roles that involve such access. However, we recognise that the safeguarding purpose must be balanced with people’s legal right to have appropriate protection of their privacy and, indeed, the ability of people with convictions who now lead law-abiding lives to move on from their past. I believe that the bill achieves that.
The Disclosure (Scotland) Bill must be seen in the context of the wider Government strategy to make positive change to the justice and disclosure systems. That journey, which started with the Management of Offenders (Scotland) Bill and the Age of Criminal Responsibility (Scotland) Act 2019, continues with the proposals in the Disclosure (Scotland) Bill. If enacted, the legislation will represent a transformational improvement in the position of those who seek to move on from their past behaviour. The Government has been committed to ensuring that all three pieces of legislation are designed together for that larger purpose.
The bill contains provisions to introduce a mandatory PVG scheme for people who carry out regulated roles with children or protected adults. Although many organisations treat it as such, the scheme is not currently mandatory, which has made it difficult for individuals and employers to understand their responsibilities and legal duties under the current legislation. There is overwhelming support among stakeholders for the proposal, the need for which was also recognised by Parliament’s Health and Sport Committee, which concluded that there is a “compelling case” that the scheme be mandatory for those who work with children in sport.
We will simplify the process for determining what roles must be included in the PVG scheme. The public perception is that the current system is too complex, and we need to develop a system that makes the process easier, to ensure that the scheme focuses on those who hold power and influence over children and protected adults.
Our engagement with stakeholders has highlighted areas in which safeguarding can be improved, and we have sought to address those issues in the bill. We will provide better protections for individuals who employ or engage the services of another individual in a personal capacity—for example, those who arrange self-directed care. We believe that such provisions complement strengthened referral arrangements for Police Scotland and new referral powers for local authorities and will enable individuals who employ others to have even greater protections.
The bill will allow Disclosure Scotland to impose public protection conditions on scheme members who are under consideration for barring. Since the PVG scheme was enacted, there have been cases in which the ability to impose such conditions would have benefited safeguarding. Our engagement has supported that view, with organisations telling us that having that ability would assist them when they are managing risk in such situations.
As a Government, we aim to focus public services on creating a more successful country, with opportunities for all in Scotland to flourish. That includes creating a strong, sustainable workforce and making sure that no one faces unnecessary barriers to gaining opportunities. Of course, there will always be people who, given their past behaviours, will not be suitable for certain roles, which is why we need the disclosure regime. Disclosure Scotland will continue to identify such individuals and ensure that they are legally prevented from carrying out a regulated role.
However, we must give extra consideration to people who have found themselves involved in the criminal justice system during childhood or adolescence. That is especially true for care-experienced individuals, who we know are more likely to come into contact with the criminal justice system and end up with a criminal record. It is widely recognised that having a criminal record can significantly impact on future life chances and outcomes for young people, including access to education, training and employment. Their opportunities and horizons can be severely limited.
The Age of Criminal Responsibility (Scotland) Act 2019 ensures that harmful behaviour by children under the age of 12 cannot be criminal. However, the provisions that are laid out in the 2019 act change only the position for children under that age. We are learning more and more about the impact of trauma and adverse childhood experiences on life chances. We have to do more, not only to prevent such experiences from happening in the first place, but to limit the damage that is done to individuals, families and communities in the long term. The bill aims to address that issue by providing a system that takes into consideration the context surrounding childhood offences. The consultation strongly supported the idea that disclosure of such information should remain a possibility, but only after careful and informed consideration of its necessity for public protection.
Although it is vital to consider the impact of the changes on safeguarding functions and on people with convictions, the majority of certificates that Disclosure Scotland sends out will not contain any criminal history information. We want to simplify the system to make it accessible and easy to use for all, and to take a user-centred approach for individuals who access disclosure and for the employers with whom they need to share their information.
Our intention is to use a responsive digital first system that is better suited to those who prefer to carry out their business online. We are moving away from the slow and onerous paper-based system by increasing the extent to which applicants and employers can engage digitally with Disclosure Scotland.
Continuous engagement has been vital in shaping the bill that is now before Parliament. We will continue to listen to and engage with Parliament and members of the public to develop the best way to implement the proposals in the bill.
The Scottish Government is committed to ensuring that clear training and guidance materials are developed as we transition to any new provisions. As I previously stated, the aim of safeguarding must remain the focus of the disclosure system. Several of the proposed reforms will complement and improve the safeguarding tools afforded by the current regime.
Today, we will publish the Government’s response to the consultation analysis. The response has been provided to the Scottish Parliament information centre and will be sent to all key stakeholders, including every organisation registered with Disclosure Scotland. The response sets out the policy intent of the bill clearly and simply.
I commend the bill to the Parliament and look forward to constructive engagement in the months ahead. I would be happy to answer questions from members.