Hansard

The amendments are well intentioned in their aim, and I thank Alex Cole-Hamilton for raising an important issue. I have listened very carefully to the debate and am grateful for the opportunity to explain the Scottish Government’s position. The amendments present a number of challenges that have very significant constitutional implications. They have not been subject to consultation with the public or with the Parliament, and I firmly believe that it would be better if Alex Cole-Hamilton raised the matter with the Standards, Procedures and Public Appointments Committee, or even with the Presiding Officer, so that that committee or the Presiding Officer could look at it on behalf of the Parliament. I am absolutely prepared to work with the Parliament to find a solution, but I do not think that the provisions of the bill are the appropriate place to do that. Criminal record checks are a vital tool to support and inform recruitment. For that reason, I am sympathetic to the rationale behind calls for including elected representatives in the PVG scheme. It is important to remember that the scheme is specifically for people who work with vulnerable groups and that there is no pass or fail to disclosure. The presence of disclosure information does not automatically mean that somebody is unsuitable to work with children and protected adults. Committee members will be aware that there are non-PVG level 2 disclosures as well. In broad terms, the other forms of level 2 disclosure offer the same disclosure information that the PVG equivalent does. However, they do not bring people into the scheme, which requires ministers to bar an unsuitable person from regulatory roles. Non-PVG level 2 disclosures are used for judicial appointments, for instance. If there is a desire in the Parliament to allow an identified body to have access to non-PVG level 2 disclosures for elected representatives, I am open to discussing how that can be implemented. To achieve that, we would in all likelihood change the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013 to cover elected representatives. That could be done through secondary legislation instead of the bill, but it would require very careful consideration of who would be appropriate to receive a disclosure and make decisions about the suitability of elected representatives to hold office. As I have previously said, criminal record checks can be only one aspect of safeguarding, and no organisation should ever be solely reliant on them in protecting vulnerable people. I agree with Mr Cole-Hamilton that there are very painful lessons to be learned from the independent inquiry into child sexual abuse. It is worth while for us to take a moment to reflect on the lessons that we have learned from the case of Cyril Smith MP. That case clearly illustrates an inadequate institutional response to allegations of child abuse. As such, it shows us precisely the kind of problem that Alex Cole-Hamilton is trying to solve. Cyril Smith was never convicted in his lifetime, but allegations of child abuse, including reports to the police, were made against him over four decades. It is possible that a criminal record check would have contained other relevant information relating to that, but it is also possible that it would not. When we reflect on his case, it is very clear that safeguarding children is about much more than a criminal record check. It is everyone’s responsibility to protect children, and a key part of safeguarding is recognising and responding to allegations of abuse. What are the responsibilities of all of us when allegations are made? In Cyril Smith’s case, it is clear that people around him did not feel that it was their responsibility to respond to allegations. It is not at all clear that a criminal record check would have protected children in that case. A different response from those to whom allegations were made would have protected children. That is why I would advocate a more holistic response to the problem than just a criminal record check. I agree with the members who have said that in most situations it is best practice to have at least two adults present when they are working with children and young people. I question whether there is ever any need for children to be unsupervised while with an elected representative and I advocate that we should work together as a Parliament to ensure that safer working practices are in place to avoid that. I turn to Mr Cole-Hamilton’s amendments. He said that he wants all elected representatives in Scotland to be subject to a PVG check and membership. The amendments also seek to bring into the PVG scheme people who hold positions of responsibility in political parties. However, the amendments will not achieve their aim for elected representatives, because they will not bring all elected representatives into the PVG scheme in relation to both the children’s and adults’ workforces. In relation to children, some elected representatives may never carry out the activities that are described in proposed new paragraph 30A. They could organise their constituency and other business so as not to have unsupervised contact with children. Many of us have stated that that is what we currently do. Even if an elected member has contact with children, they must take steps to ensure that the session or event always takes place in the presence of a responsible person, meaning that the child would not be unsupervised. If contact with the child is not unsupervised, amendment 222 means that the activity is not within the scope of the PVG scheme. Similarly, the amendments will not have the effect of bringing all elected representatives into the PVG scheme in relation to carrying out regulated roles with adults. Again, it is entirely possible that the elected representative will never engage in the activity described because they may choose not to run sessions or events involving protected adults. There is the completely unacceptable risk that protected adults would have fewer opportunities to engage with their elected representatives—for instance, by being excluded from events run by elected representatives who were not scheme members and were concerned about the implications of inviting them. There is also the question of how the elected representative would know whether any given session or event included a protected adult, since the definition relies primarily on private and intangible characteristics. With amendments 226 and 229, Alex Cole-Hamilton appears to recognise that there are constitutional problems with his proposals. The amendments propose that ministers should make regulations to disapply the offence provisions with regard to elected representatives so that the amendments could apply effectively to elected representatives. However, I have noted that those amendments do not extend to political activities, meaning that, for example, a decision by Scottish ministers exercising their barring functions under the PVG act could in effect prevent a barred individual from standing as a candidate for election in the first place. The committee should note that the existing powers in the PVG act to disapply the offence provisions for particular types of regulated work have been used only once before. There are regulations that disapply the offence provisions in the context of permanence orders, so that an administrative decision by Disclosure Scotland’s protection unit on behalf of Scottish ministers cannot override a court decision made in the best interests of a particular child by listing an individual who happens to be a foster carer of a child on a permanence order. That is to prevent the individual and the council from committing a serious offence by following the order of the court and allowing the child to remain with the individual beyond the date of the listing decision That exception clearly applied to a particular situation that was entirely different from the proposed approach for elected officials. The amendment neither delivers PVG membership for all elected members as a certainty, nor necessarily covers the activities that a member might undertake with children as it is simply dependent on whether the children are unsupervised during those activities, making it ambiguous to an elected representative whether they were required to join the PVG scheme and, if so, in relation to which workforce. Disapplying the offence provisions would remove the benefits of the barring arrangements under the PVG scheme. On that basis, there is no justification for requiring elected representatives to participate in the PVG scheme, because all we would be left with is the state issuing disclosure records. As I have said, if there is a desire in the Parliament for non-PVG level 2 disclosures to include representatives, I am open to discussing how that can happen. Like other members, I am unclear to whom a disclosure should be made. The amendments make no comment on who would be an appropriate person to assess the suitability of MSPs for a regulated role. There are also difficulties with regard to the public’s understandable expectation of transparency with respect to their elected representatives. The body that would receive the information would not be able to share the disclosure information, including information about listed status more widely. I invite Mr Cole-Hamilton not to press his amendments but to take up the matter with the Standards, Procedures and Public Appointments Committee. I urge committee members to reject the amendments if they are pressed to a vote.