Committee
Education and Skills Committee 04 March 2020
04 Mar 2020 · S5 · Education and Skills Committee
Item of business
Disclosure (Scotland) Bill: Stage 2
The amendments are grouped as minor and drafting amendments and are primarily intended to assist clarity in reading and understanding the legislation or are a consequence of other amendments. Amendments 102 and 68 to 88 are minor technical changes that will replace the words “individual” and “scheme member” with “applicant” in the relevant sections. The amendments will support consistency for those following a notional application through processes that are provided for in the legislation. Amendments 4 and 50 clarify that an individual can apply for a disclosure only in relation to themselves. That will remove potential ambiguity in interpretation of the legislation. Amendment 3 will insert language that will clarify that ministers can refuse to issue a level 1 disclosure product under the bill when it is more appropriate that the information that would be contained in the disclosure could be obtained in the form of a disclosure product from another competence authority, such as a basic disclosure that is obtained from the Disclosure and Barring Service. The current wording of the bill might have implied that an actual level 1 disclosure product could be obtained from a person other than the Scottish ministers: that is not the case. 09:45 Amendments 51 and 89, similarly to amendment 3, will insert language to clarify that the purpose of a level 2 disclosure must be one in relation to which the protections against self-disclosure under the Rehabilitation of Offenders Act 1974 have been excluded by an order that has been made by the Scottish ministers. That means that, when any of the protections were excluded for other purposes by an order that has been made in another part of the United Kingdom, any disclosure application for those purposes should be directed to the appropriate UK disclosure service. Amendment 22 will introduce wording to make it clear that the definition of “non-disclosable conviction” includes a conviction for a list B offence. Previously, the definition referred only to a list B offence, but it is the existence of a conviction for such an offence that brings a matter within the definition. Section 29(4)(a), as drafted, is inconsistent in referring to the “purposes” of the disclosure in the plural. All the other provisions refer to a singular “purpose”, and that is what is used in the defined term in section 70. Amendment 97 will bring that reference into line. Amendment 121 will remove paragraph (c) from section 69 of the bill, which defines what is involved in consideration of suitability. The wording in paragraph (c) was intended to underpin section 57(4) and the provision of advice from an umbrella body to a personal employer. However, in terms of section 57, it is still the personal employer making the suitability assessment and thus they are covered by paragraph (a) of section 69, which renders paragraph (c) unnecessary. Amendment 125 will substitute for the definition of “spent conviction”, a new definition of “spent” and “unspent” that will apply to all convictions, including childhood convictions and cautions. That will avoid the need to add a separate definition of “spent childhood conviction”. The introduction of a definition of “unspent” in relation to convictions will enable some simplification of the amendments relating to disclosure of childhood convictions in section 1 and the definition of “criminal disposal” in section 13(3). Amendment 126 provides a definition of “type of regulated role”, which is a phrase that is used in a few places in part 1 of the bill. There is no new definition in broad terms under amendment 126, which simply makes it clear that the definition of the term in the Protection of Vulnerable Groups (Scotland) Act 2007 applies for the purpose of the references in part 1 of the bill. Amendment 200 will amend the PVG act to ensure that the Scottish ministers must issue guidance, and that the chief constable must have regard to that guidance in the exercise of their functions under part 1 and part 2 of the PVG act. The bill currently provides that only in relation to the chief constable’s functions under part 1 of the bill. Amendment 200 will improve consistency in the approach by which information is provided by the chief constable. Amendments 205 and 206 will fix an error in the drafting of schedule 5, on minor and consequential amendments. The amendments are intended to ensure that the power to make regulations prescribing fees covers applications to renew membership of the scheme and that, if a fee that is prescribed for an application is not paid in the manner that is provided for in the regulations, the application need not be considered. The bill currently makes that amendment in the wrong place in section 70(4) of the PVG act; the amendments will make sure that the amendment is made in the correct place in section 70(4). I move amendment 3. Amendment 3 agreed to. Amendment 4 moved—Maree Todd—and agreed to. Section 2, as amended, agreed to. Sections 3 and 4 agreed to. Section 5—Level 1 disclosures: childhood conviction information Amendment 5 moved—Maree Todd—and agreed to. Section 5, as amended, agreed to. Section 6—Level 1 disclosure: application for review Amendment 6 moved—Maree Todd—and agreed to. Section 6, as amended, agreed to. Section 7—Review of accuracy of information by the Scottish Ministers Amendment 7 moved—Maree Todd—and agreed to. Amendment 8 moved—Maree Todd—and agreed to. Section 7, as amended, agreed to. Section 8—Review of childhood conviction information by the independent reviewer Amendment 9 moved—Maree Todd—and agreed to. Section 8, as amended, agreed to. Section 9—Independent reviewer: information and representations Amendment 10 moved—Maree Todd—and agreed to. Section 9, as amended, agreed to. Section 10—Notification of independent reviewer’s decision Amendment 11 moved—Maree Todd—and agreed to. Section 10, as amended, agreed to. Section 11—Appeal against independent reviewer’s decision Amendment 12 moved—Maree Todd—and agreed to. Section 11, as amended, agreed to. Section 12—Provision of new Level 1 disclosure on conclusion of review proceedings Amendments 13 to 16 moved—Maree Todd—and agreed to. Section 12, as amended, agreed to. Section 13—Level 2 disclosure Amendment 17 moved—Maree Todd—and agreed to.
In the same item of business
The Convener
SNP
Our next agenda item is stage 2 of the Disclosure (Scotland) Bill. I welcome to the committee Maree Todd, who is the Minister for Children and Young People, ...
The Convener
SNP
Group 1 is entitled “Level 1 and Level 2 disclosures: childhood convictions: alignment of state and self-disclosure provisions”. Amendment 1, in the name of ...
The Minister for Children and Young People (Maree Todd)
SNP
Good morning, convener. I am pleased to be moving the Government’s amendments to the Disclosure (Scotland) Bill this morning. They reflect the level of engag...
Daniel Johnson (Edinburgh Southern) (Lab)
Lab
I thank the minister for that explanation. Broadly, the amendments make an awful lot of sense in aligning the bill with other recent legislation, but I want ...
Maree Todd
SNP
First, the convictions will become spent, and secondly, there will be no grey area. That is reasonable. We gave a great deal of thought to where the line sh...
The Convener
SNP
Amendment 3, in the name of the minister, is grouped with amendments 4, 22, 50, 51, 68 to 89, 97, 102, 121, 125, 126, 200, 205 and 206.
Maree Todd
SNP
The amendments are grouped as minor and drafting amendments and are primarily intended to assist clarity in reading and understanding the legislation or are ...
The Convener
SNP
Amendment 18, in the name of Maree Todd, is grouped with amendments 23, 49, 54 to 57, 59 to 61, 63 to 65, 91, 93 to 96, 99 to 101, 105, 113, and 122 to 124.
Maree Todd
SNP
The amendments have been lodged in response to evidence that was given to the committee by a number of groups that have commented on the disclosure of childr...
The Convener
SNP
Group 4 is on level 2 disclosure: other relevant information. Amendment 19, in the name of the minister, is grouped with amendments 66, 67 and 203.
Maree Todd
SNP
The amendments relate to the disclosure of other relevant information—ORI—on a level 2 disclosure and as vetting information for the purpose of the protectin...
The Convener
SNP
Do any members wish to come in?
Daniel Johnson
Lab
I have a bit of a speculative question. Initially, I was concerned that the amendments cast a very wide net by talking about overseas police forces, so I rea...
Maree Todd
SNP
For clarity, are you talking about information that is accessible to Police Scotland, in relation to which disclosure would be for Police Scotland in the cir...
Daniel Johnson
Lab
It struck me that an individual might well have committed offences or have come into contact with police forces outside the jurisdictions of the forces that ...
Maree Todd
SNP
Yes, it was. Overseas information goes through a single police force in the UK—Hampshire Constabulary—and is then used in the system, as is described in the ...
Daniel Johnson
Lab
That was a helpful clarification.
Iain Gray (East Lothian) (Lab)
Lab
Also on a point of clarification, if someone was applying for disclosure and other relevant information had been provided, and if they had the opportunity to...
Maree Todd
SNP
Yes, they would.
Jamie Greene
Con
Those were interesting comments. If information is not captured through the relevant authority—I think that you said that that is the Hampshire force, minist...
Maree Todd
SNP
Such a situation will be covered by the on-going monitoring requirements of PVG scheme membership. Amendment 19 agreed to. Amendments 20 and 21 moved—Maree...
The Convener
SNP
We move to the next group, “List A and List B offences: miscellaneous amendments”. Amendment 24, in the name of the minister, is grouped with amendments 25 t...
Maree Todd
SNP
The amendments in the group relate to the offence lists in schedules 1 and 2 of the bill. They are also known as lists A and B. Convictions for offences in ...
The Convener
SNP
Group 6 is on “PVG Act: carrying out a regulated role without being a scheme member”. Amendment 36, in the name of the minister, is grouped with amendments 1...
Maree Todd
SNP
The amendments in the group relate to offences to be inserted into the 2007 act by the bill, in connection with the mandatory PVG scheme. Amendment 36 is co...
Iain Gray
Lab
I might be at fault for not reading properly, and I accept that you alluded to the matter, but I want more clarity on the sanctions that would be available w...
Maree Todd
SNP
As I said, amendment 149 applies the same penalties to the new offence that is created by amendment 148. The sanctions that we are introducing today align wi...
Iain Gray
Lab
Presumably, in the case of the organisation or employer, rather than the individual, that would apply to the legal entity of the organisation, depending on w...
Maree Todd
SNP
There is a provision in the 2007 act concerning corporate offences, which is where that would apply.
Jamie Greene
Con
Please accept my apologies if this matter was covered at stage 1, but how much of a shift in the status quo does the introduction of those new penalties repr...