Police Act 1997 and Protection of Vulnerable Groups (Scotland) Act 2007: consultation on amendments

Annex 1: The Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order 2018 - Proposed Draft Order

Statement of Reasons

This Statement of Reasons is provided by the Scottish Ministers in accordance with section 13(3)(a) of the Convention Rights (Compliance) (Scotland) Act 2001 ("the 2001 Act").

The Scottish Ministers are proposing to make the draft Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order 2018 for the following reasons-

On 28 February 2017, Lord Pentland (sitting in the Outer House of the Court of Session) issued a judgment in the case P v Scottish Ministers [2017] CSOH 33. Lord Pentland concluded that despite the reforms Scottish Ministers made to the disclosure regime by means of amendments to the Police Act 1997 ("the 1997 Act") and the Protection of Vulnerable Groups (Scotland) Act 2007 ("the 2007 Act") in September 2015, that on the facts of the case before him, unlawful and unjustifiable interference with the petitioner's rights under Article 8 of the European Convention on Human Rights (" ECHR") occurred.

On 17 May 2017, Lord Pentland issued an order giving effect to his judgment, but suspended the effect to the judgment under section 102 of the Scotland Act 1998 for nine months, except in relation to the petitioner, to allow Scottish Ministers to remedy the defects in the 1997 Act and the 2007 Act. Scottish Ministers have reviewed Lord Pentland's judgment and subsequent order, and have concluded that issues raised in the judgment must be addressed.

Scottish Ministers note that it is important to strike a balance between the interests of public protection and the right of an individual to live down their past behaviour and so move on with their life. Scottish Ministers must also act compatibly with the requirements of the ECHR and they therefore propose to remedy the interference using the general procedure under section 13 of the 2001 Act.

Scottish Ministers consider that there are compelling reasons for making an order under section 12 of the 2001 Act as distinct from taking any other action. Legislative change is required to deal with the incompatibility of the 1997 and 2007 Acts following a court judgment identifying a defect. The changes being proposed will add a further refinement to the provisions already in place in the 1997 and 2007 Acts, rather than setting out a substantially re-structured system. The 2001 Act contains bespoke powers for Scottish Ministers to make amendments to legislation which are necessary or expedient in consequences of provisions which are incompatible with rights under the ECHR. The use of these powers allows Scottish Ministers to consult on the proposed amendments to the 1997 and 2007 Acts and then introduce the changes within the period during which the court has suspended the effect of its judgment. Given that the changes further refine the existing disclosure regime without making substantial amendments and given the time constraints for making amendments, it is considered that a remedial order is the most appropriate means of effecting the changes required by the court judgment to ensure ECHR compatibility. In addition, this does not exclude the possibility of further policy changes being developed as part of Scottish Ministers' wider programme in relation to proposals on the minimum age of criminal responsibility, rehabilitation of offenders or the forthcoming review of the 2007 Act and the PVG Scheme.