Disclosure (Scotland) Bill: partial BRIA

2. Purpose and intended effect

Background

The disclosure regime in Scotland is implemented under the Police Act 1997 (“the 1997 Act”) and the Protection of Vulnerable Groups (Scotland) Act 2007 (“the PVG Act”) to issue both basic and higher level disclosures in Scotland. There are presently four main levels of disclosure: basic, standard, enhanced and Protecting Vulnerable Groups (PVG) scheme record. However, Disclosure Scotland issues ten different products within these levels.

The PVG Act was the Scottish Government’s response to Sir Michael Bichard’s Inquiry Report of June 2004 into the murders at Soham. The policy principles enshrined in the then PVG Bill were that:

• there should be two barred lists (a children’s list and an adults’ list)
• it should be an offence for a person to do regulated work of the type from which they are barred
• there should be two regulated workforces - one for doing regulated work with children and the other for doing regulated work with adults
• the Scheme was intended for those who are doing or intend to do regulated work with children, adults or both groups
• scheme membership should last for ten years unless the scheme member otherwise left the Scheme or was barred from doing regulated work
• scheme members should be subject to ongoing monitoring (to ensure that new information that arises is checked to ensure the individual has not become unsuitable), and
• it should not be an offence for a person to do regulated work even if they are not a scheme member as long as they are not barred from doing that work (in other words, it is not mandatory for a person doing regulated work to be a member of the Scheme).

Since the 2007 Act came into force, further changes have been made to the legislation on disclosure of convictions on higher level disclosures (meaning standard and enhanced disclosures under the 1997 Act and PVG scheme records under the 2007 Act) in 2015 and 2018, following rulings from the UK Supreme Court on disclosure in England and Wales and the Court of Session on PVG disclosure in Scotland, which found that disclosure as it stood was not providing sufficient proportionality and breached a person’s Article 8 rights under the European Convention on Human Rights (ECHR)^[1]. A new reformed system restricted the requirement for disclosure so that not all spent convictions would be routinely disclosed. Convictions would be disclosed in line with rules set out in the legislation which was designed to ensure that only relevant convictions (including relevant spent convictions) would be disclosed on higher level disclosures and that individuals would be able to apply for the removal of these spent convictions from their disclosure.

The Disclosure (Scotland) Bill has been developed in response to the Government’s commitment to review the PVG Act and the experience gained during the eight years the scheme has been in operation. The Bill was developed through extensive engagement with a wide range of stakeholders.

Objectives

The Bill is a vital element of the disclosure review, which is driving improvements to strengthen and simplify the disclosure regime in Scotland, ensuring a simpler and more proportionate disclosure system with safeguarding at its forefront.

It contains a number of provisions to do this, these include:

• reduce the number of disclosures from four main levels (basic, standard, enhanced and PVG) with ten products to two main levels (Level 1 and Level 2) with four products (sections 1-4 and 13-22), plus ‘confirmation of scheme membership’ as a replacement for ‘statement of scheme membership’ (section 84)
• end the automatic disclosure of convictions accrued by an individual while aged 12 to 17 years old (sections 5, 6, 8 to 12, 17, 23, 25, 30 to 34 and 41)
• reform and streamline the process to have certain spent convictions removed from Level 2 disclosures (sections 28 to 34)
• provide Level 2 disclosure applicants with a right to comment on proposed Other Relevant Information (“ORI”) prior to that information being issued to a third party (sections 26 to 27 and 31 to 34)
• establish clear procedures for the registration of accredited bodies who can countersign Level 2 applications, including provisions to ensure the protection of individuals’ criminal history information (sections 47 to 57)
• provide clarity on disclosure arrangements for individuals directly employing a PVG scheme member for, for example, personal care or home tuition of children (section 57)
• end life‑time membership of the PVG Scheme and replace it with a five‑year membership period (sections 72 and 73)
• make it a requirement that anyone carrying out a regulated role (paid, or unpaid and voluntary) must be a member of the PVG Scheme (section 74)
• replace the concept of ‘regulated work’ in the PVG Act with ‘regulated roles’ (sections 75 to 76 and schedules 3 and 4)
• enable Scottish Ministers to impose standard conditions where appropriate on any individual who is under consideration for inclusion in one or both of the lists held under section 1 of the PVG Act i.e. the children’s list or the adults’ list, and to permit Ministers to give notice that a person is under consideration for listing and of their barred status (sections 77 to 80)
• provide new referral powers for Police Scotland and Scotland’s councils and integration joint boards (sections 81 and 83), and
• restate and amend the lists of offences in schedules 8A and 8B of the 1997 Act (schedules 1 and 2).

Rationale for Government intervention

It has been eight years since the PVG Scheme commenced and over ten years since the PVG Act passed through the Scottish Parliament, and there was a commitment to review the legislation. Since the PVG Act commenced, stakeholders have raised a number of issues with the legislation and the delivery. Disclosure Scotland has listened to stakeholders and customers to identify areas where the disclosure system can be made fairer, more efficient and, vitally, better at protecting people from harm.

Experience of operating the scheme has shown that those joining the PVG Scheme tend to remain in it long after they have stopped working with vulnerable groups, which places inactive members at risk of being considered for listing should any vetting information appear on their PVG Scheme record. In addition to this, the effort to keep such records updated is unnecessary for public protection and will become increasingly expensive for little safeguarding return.

The Disclosure (Scotland) Bill aligns with the National Performance Framework, meeting three of the National Outcomes:

• We are well educated, skilled and able to contribute to society
• We grow up loved, safe and respected so that we realise our full potential and
• We live in communities than are inclusive, empowered, resilient and safe.