Protection of vulnerable groups and disclosure of criminal information: consultation

Section 2 - Disclosure Products

Disclosure Scotland provides the public and employers with disclosure products relevant to recruitment in Scotland and also to the safeguarding of assets and, most importantly, children and protected adults.

This section sets out in detail what these products are and introduces the stakeholder feedback that we have had about them during the pre-consultation phase.

Stakeholder feedback leaves no doubt that they value Disclosure Scotland's products and that these fulfil an important role in Scottish life, assisting employers and other decision-makers to take better informed decisions. But there is also an appetite for change; stakeholders need Disclosure Scotland to embrace new technology and to rethink how products meet user needs and requirements.

The diagram below shows how widely supported all of the products are by stakeholders, but a sizeable minority have reservations that these products are no longer the best way to deliver the outcomes.

During our engagement, customers and stakeholders told us that Disclosure Scotland's products are too similar and therefore insufficiently distinct from each other. We presently offer ten different products. Under the 1997 Act, the basic disclosure, standard disclosure, enhanced disclosure, enhanced disclosure with children's suitability check, enhanced disclosure with adults' suitability check and enhanced disclosure with both suitability checks. And under the 2007 Act, the scheme record, the short scheme record, the statement of scheme membership and disclosure of the statement of scheme membership.

The fact that PVG scheme membership involves continuous updating of the scheme record is a source of surprise and confusion for many. This is regrettable because the system of ongoing monitoring of PVG scheme members is a unique feature of the PVG Scheme and a major investment in public safety.

Disclosure Scotland have long required a team of staff to check paper disclosure application forms to ensure that the customer has used the right form for the right product and asked for the right type of disclosure. We believe this evidences that the disclosure system is too complex and the forms provided to customers to access it are insufficiently accessible.

Customers told us that they did not generally wish to have to differentiate between complex products and told us that they would welcome assistance and support in finding which level and type of disclosure is right for them. One way to reduce the complexity of the system is to reduce the number of products offered to customers and stakeholders.

We believe that there are essentially three logical and sensible levels of disclosure:

• Current basics level where only unspent convictions are disclosed and there is no other information included on the disclosure
• Current enhanced level which is tailored for a specific post or role and which includes unspent convictions, certain spent convictions, and which permits the police to include non-conviction information, and
• The current PVG Scheme which can disclose unspent convictions, certain spent convictions when the law requires, permits the inclusion of police non-conviction information and provides for the continuous updating of the scheme record. It is for those who are in positions of trust and power with children and protected adults.

We propose that in the future these should be referred to as disclosure levels 1 and 2 and PVG level products.

We believe that reducing the number of products to three, with clear branding, will allow for easier customer understanding of the system and preserve the utility and safeguarding integrity of the disclosure system generally.

Level 2 disclosures will be available for certain roles and PVG level disclosures will as now be available for people wanting to do regulated work with children or protected adults, or both. Level 1 disclosures will remain available to everyone for any purpose. PVG scheme members will be subject to ongoing monitoring, as now.

Level 2 disclosures will therefore encompass current standard and enhanced disclosures, but this level, because it is post-specific, will be tailored to the particular context of the disclosure and particular post. PVG membership will be discussed fully in section 3.

We aspire to a digital system that helps guide applicants to the right disclosure type.

Scottish Ministers propose to continue to issue a code of practice about the handling of and the use of disclosure products.

Question 1: Do you agree that reducing the disclosure products will simplify the system?

Yes
No

Question 1a: If you have answered no, what do you think will simplify the system?

Level 1 Disclosures

Under the current legislation, an individual can apply for their own basic disclosure for any reason. There is no need for an employer or other party to countersign the application. A basic disclosure contains only unspent convictions held on central police records, or it states that there are no such convictions.

The content of the proposed Level 1 disclosure will be aligned with that of the current basic disclosure, (subject to a question about Notification Requirement under Part 2 of the Sexual Offences Act 2003 which is discussed below) but with some changes in relation to price, method of delivery and availability to those under the age of 16. Later in this paper, there will be discussion of special provisions for disclosure of offending conduct between the ages of 12 and 17. Depending on the outcome of the proposals, there could be consequential changes to the content of the Level 1 product.

The table below is a comparative overview of the basic disclosure with the proposed Level 1 disclosure. Following this is further information breaking down the proposed options for price, method of delivery and age restrictions as well as questions on your preference among these options.

	Basic	Level 1
Price	£25	£25
Method of Delivery	Certificate posted to applicant	Digital service
Age restriction	None apply	Not available to those under 16
Authentication of Identity	Upload documents or send in scanned documents	Possible online identification and verification

Question 2: As we are trying to simplify the system, do you have any views on what this product should be called?
Basic
Level 1
Other (please state)

Question 3: As an applicant, do you have any concerns with this approach?
Yes
No

So what might change?

Fees

Under the current legislation the cost of a basic disclosure is £25. This cost is incurred every time an individual applicant applies for a basic disclosure. The cost options for a Level 1 disclosure are set out below:

Proposal	Fee
Option 1	£25, cost will be incurred each time a Level 1 disclosure is required.
Option 2	£30 for first or one-off application. If applicant creates account which results in identification and verification being required once then future Level 1 applications will cost £17. If an applicant does not create an account then they will pay the full fee on each occasion.

Option 2 allows those individuals who may require a number of Level 1 disclosures to save money. It will also reduce the inconvenience of having to complete personal information with each application. This option will benefit those individuals who are in temporary work or short term contracts and switching employers.

The proposed costs will be subject to review once the final consultation outcome is known. It is our intention to review costs periodically.

Question 4: Which option do you prefer? And why?

Level 1 Bulk Applications and Registered bodies

Currently when an employer decides to use standard or enhanced disclosure, or the PVG Scheme, as part of their recruitment process, they usually apply to become a 'registered body' to allow them to countersign higher level disclosure applications. Based on the legislative eligibility criteria for these higher level disclosures, Disclosure Scotland assess whether the organisation are able to register. Providing employers have one position that is eligible for standard or enhanced Disclosure, or PVG scheme membership, the organisation can be accepted as a registered body. All organisations are subject to a minimum annual charge of £75 for being a registered body. All registered bodies are bound by the Code of Practice about the handling of and the use of disclosure products. An organisation that does not register directly with Disclosure Scotland and which uses higher level disclosures in its recruitment process can use an umbrella body (which is an organisation that is a registered body) to have its higher level disclosures applications countersigned.

Each registered body must have a lead signatory in place at all times. They are the person who signs the registration application for the organisation and who is expected to be the main point of contact between the organisation and Disclosure Scotland. They will be the main person responsible for making sure any disclosure information the organisation receives is handled properly. In addition to the lead signatory, there can also be a number of countersignatories.

Disclosure Scotland will carry out criminal records checks on any individual nominated as a lead signatory or a countersignatory to ensure that they are not unsuitable to receive disclosure information in that role. After being accepted as a lead or countersignatory, individuals are subject to regular suitability checks.

When an organisation decides to use basic disclosures as part of their recruitment process, they can enrol with Disclosure Scotland as a 'responsible body' which simply means that they are provided with a credit facility which they are entitled to use. There is no fee for becoming a responsible body and, as basic disclosures can be used for any purpose, there is no need for Disclosure Scotland to assess whether an employer is eligible to become a responsible body.

An organisation wishing to become a responsible body can nominate individuals as 'financial authorisers' who can submit basic disclosures on behalf of the responsible body.

Bulk applications for basic disclosures (B2B) arise when, typically, a large company regularly takes on lots of new workers and has a policy that these individuals should have a basic disclosure done as a pre recruitment check. They submit a data file detailing a large number of applicants. Disclosure Scotland processes the checks from the data file and issues the certificates. There is an Operational Processing Agreement ( OPA) between Disclosure Scotland and these organisations to ensure that consent has been provided by the applicant and to ensure that there is no abuse of the facility. Contained within the OPA is a clause stating that Disclosure Scotland will audit the organisation to improve the quality of their submissions and assure the appropriate handling and disposal of applicants' certificates.

Disclosure Scotland presently provides this bulk application service at no cost to enrolled organisations.

All B2B customers currently benefit from a monthly invoice facility which allows them the freedom to submit many applications but pay once, boosting administrative efficiency. We propose to continue to offer a B2B service for Level 1 disclosures to organisations that require it. However to assure the protection of personal data as the service moves onto new digital platforms we also believe that the law governing how B2B works requires to be tightened whilst still allowing for the efficient delivery of the service. We propose:

• An organisation who wishes to use B2B has the legal status of ' Level 1 Registered Body'. It may only become such a Registered Body after successful application to Disclosure Scotland.
• A new Level 1 Registered Body must nominate a Registered Person whom Disclosure Scotland will vet to ensure that there is no information in their background that would mean they are unsuitable to fulfil that role. Finally the Level 1 Registered Body will be required to pay a fee to cover the administrative costs to Disclosure Scotland of providing the service. This cost will be £90 annually.
• The person being nominated as a Registered Person must be at least 18 years old.
• An organisation wishing to register as a Level 1 Registered Body with Scottish Ministers must confirm as part of its application that it will only send Scottish Ministers disclosure applications on behalf of individuals who have given explicit consent and who are seeking employment or volunteering opportunities in Scotland.
• It would be an offence for the Level 1 Registered Body to seek to make a disclosure application where such explicit consent is absent.
• An organisation wishing to register as a Level 1 Registered Body with Scottish Ministers must confirm that it will not act on behalf of any other organisation or person outside the terms of its registration.
• In addition, Ministers would propose to issue a Code of Practice to Level 1 Registered Bodies.

This Code of Practice will be based on the current Code of Practice that deals with the obligations about the use of the disclosure information with which recipients of disclosure information must comply. Examples of the topics covered by the Code of Practice are:

• the fair use of disclosure information;
• the handling of information; and
• assurance and audit.

More information about the current Code of Practice can be found here.

It is our intention that registered bodies will be treated the same regardless of the level of disclosure required. Any amendments to the current provisions regarding registered bodies will be mirrored here.

Question 5: Do you agree that it is appropriate to regulate registered bodies in relation to B2B applications?
Yes
No

Delivery

Under the current system individuals can apply online for a basic disclosure certificate. There are digital channels available for individual customers (basic disclosure online) and for corporate customers that require a large number of checks undertaken for recruitment (the B2B system) but these offer only simple digital application facilities and require a lot of manual processing by Disclosure Scotland to validate and vet applications and result in a printed certificate, building-in an additional time-lag.

In the future, we want the individual when applying for a Level 1 disclosure to be able to apply online and provide all the information needed for their application. We think that this digital information should be owned by the individual who will be able to securely route or share it with any employer or any other person they choose to provide it to, for example, a voluntary organisation.

Question 6: What impacts, if any, do you foresee from moving from a paper based system to a digital system?

Apostille

An apostille is a stamp added to disclosures to verify authenticity, or a paper attached to the original document under a forthcoming EU Regulation.

In some circumstances, for example, working abroad or applying for a visa, you may need to have your basic disclosure verified or confirmed as genuine. This service is provided by Disclosure Scotland. Currently Disclosure Scotland does not charge for this service. There is a separate proposal about apostilles that affects EU Member States and which is due to come into force on 16 February 2019. The EU Regulation aims to simplify the requirements for presenting documents in the European Union by abolishing the need for apostilles within the EU. Under this proposal, which will affect the basic or Level 1 disclosure, an individual who is asked to present a disclosure certificate from their home country to an authority in another Member State can, instead of an apostille, request a standard template. That standard template, which will be attached to the basic disclosure, will be translated (by Disclosure Scotland) into the language of the requesting authority, and confirm that the applicant does not have a criminal record or set out their criminal convictions if they have any. This will be a new service and Disclosure Scotland propose to charge a fee for it. If this new service proposal is not continued once the UK leaves the EU, the service will continue as it currently does for both EU and non EU member states.

In future it is our intention to charge an administration fee to cover the cost of both apostilles for EU and non EU member states. The cost of this service will be £10.

Questions 7: Do you agree with our proposed fee for this service?
Yes
No

Question 7a: If not, what do you think the fee should be?

Level 2 Disclosure

A Level 2 disclosure will be a new product with similarities to both the current standard and enhanced disclosures.

The table below compares standard and enhanced disclosures with the proposed Level 2 disclosure. There is further information setting out proposals for price, proposed Level 2 disclosure product content and method of delivery.

	Products currently available		Proposed product
	Standard	Enhanced	Level 2
Fee	£25	£25	From £30 but with options for reduced payment for future applications
Vetting information	Unspent and relevant spent convictions, sex offenders registration, unspent cautions	Unspent and relevant spent convictions, sex offenders registration, unspent cautions, 'other relevant information', information about barred lists (in some cases) and prescribed civil orders	Option to include all of the information currently available on standard and enhanced disclosures with a children and/or adult suitability information check
Delivery method	Paper application form then certificate posted to individual and countersignatory	Paper application form then certificate posted to individual and countersignatory	Online application process and possible online access to vetting information
Authentication of identity	ID documents checked by countersignatory	ID documents checked by countersignatory	Possible online identification and verification
Who can apply	Any person	Any person	Any person aged 16 or over if the relevant employment conditions are met.

We propose that Level 2 disclosure should be available for employment and roles that are covered by the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013 (“the 2013 Order”). These are listed in Annex A.

Question 8: Are there any professions/roles that are not included that should be on the list?
Yes
No

Question 8a: If you have said yes, please note what these are.

Question 9: Are there any professions/roles you think should be removed from the list?
Yes
No

Question 9a: If you have said yes, please note what these are.

Foster Carers/Kinship Carers

Under the current disclosure regime all foster carers, and certain kinship carers for looked after children are able to apply to join the PVG Scheme. (In Scotland, a child is 'looked after' if a local authority has responsibilities to ensure the child's wellbeing.)

The position of foster carers and certain kinship carers is different to prospective adoptive parents who are not able to apply to join the PVG Scheme. In cases where an individual's suitability to be an adoptive parent is being assessed, an enhanced disclosure with a children's suitability check under the Police Act 1997 is used.

Feedback from organisations and advocacy groups in the fostering and kinship care sectors is that it is disproportionate that individuals wishing to foster or to be a kinship carer should be subject to PVG scheme membership and ongoing monitoring.

Looking after a child is a big responsibility, and fostering providers and carers of looked after children have to be confident that individuals are suitable for the role. We believe that a criminal record check is essential to show whether a prospective foster/kinship carer has any criminal convictions that would make them unsuitable to care for children. We are proposing that foster/kinship carers will be required to obtain a Level 2 check; this is similar to the check in England and Wales. This will mean that individuals applying to do either fostering, or kinship care in respect of a looked after child, will not be subject to the ongoing monitoring of a membership scheme for the rest of their lives.

Question 10: Do you agree with the proposal to remove certain kinship carers and all foster carers from a membership scheme?
Yes
No

The current position for kinship care in relation to children who are not looked after is as follows; there is entitlement for a basic disclosure if the arrangements place the child with a person(s) with whom the child has a family relationship. Care provided in the context of a family relationship is not eligible for a disclosure under the 2007 Act.

If, however, the kinship care arrangements place children who are not looked after with carers who are not relatives, and if those arrangements last for more than 28 days, then it will be regarded as private fostering. The meaning of relative is defined in section 21(1) of the Foster Children (Scotland) Act 1984:

“relative” in relation to a child, means a grandparent, brother, sister, uncle or aunt whether of the full blood or half blood or by affinity

Where private fostering arrangements are being made with individuals who are not relatives, the parents of the child can ask the prospective foster carer to apply to join the PVG Scheme. But as this is a private arrangement only a statement of PVG scheme membership would be available to the parents, and so no vetting information would be provided to the parents.

Question 11: Do you think that the two types of kinship arrangements should continue to be treated differently under the future arrangements?
Yes
No

It is proposed that any member of the fostering / kinship household aged 16 or over will be required to have a Level 2 check. This also includes any members of the fostering/kinship family, friends or relatives who regularly stay overnight in the foster home.

Question 12: Do you agree with this proposal?
Yes
No

It is also proposed that a Level 2 check can be undertaken on anyone in the foster/kinship carer's network who supervises or care for the children.

Question 13: Do you agree with this proposal?
Yes
No

Question 13a: Do you think that anyone else in the foster/kinship carer's network needs to be checked? If so, who and why?

Independent Schools

The Scottish Council of Independent Schools has noted that it is currently not possible for individuals over the age of 16 residing in a residential school setting (for example, spouses of house parents), but who do not have specific responsibilities, to obtain an enhanced disclosure. The Police Act 1997 (Criminal Records) (Scotland) Regulations 2010 lists those who are eligible for an enhanced disclosure in the context of child minders/guardians but this does not explicitly cover those residing on school premises as family members of house staff. The Care Inspectorate indicated that they would expect individuals in this position to have an enhanced disclosure, and schools would want to carry out this level of check. We want to make disclosures available to such people and propose that these individuals should be eligible for checks and included in the list in Annex A. This will also require a change to the 2013 Order.

Question 14: Do you believe that this is the correct approach going forward?
Yes
No

The content of the Level 2 Disclosure Product

The content of standard and enhanced disclosures is the same in terms of conviction information. The differences in content relates to other relevant information, information about inclusion in one or both of the barred lists held under the 2007 Act, and information about prescribed civil orders.

The challenge in creating a new product is to strike the correct balance between the legitimate expectation that employers have about useful disclosure content and the rights given to the disclosure subject under article 8 of the European Convention on Human Rights (the right to respect for private and family life).

There are three credible options for the content of the Level 2 disclosure product:

	Option 1	Option 2a	Option 2b
Unspent convictions from UK central records and unspent cautions from police forces in England, Wales and Northern Ireland	◘	◘	◘
Certain spent convictions from UK central records	◘	◘	◘
Notification requirements under Part 2 of the Sexual Offences Act 2003	◘	◘	◘
Other relevant information provided by the chief officer of a relevant police force		◘	◘
Whether the subject of the disclosure is listed in one of the barred lists held under the 2007 Act		◘	◘
Whether the subject of the disclosure is subject to one or more prescribed orders		◘	◘

Option 1 is equivalent to the current standard disclosure.

Option 2a is equivalent to the current enhanced disclosure without a suitability information check.

Option 2b is equivalent to the current enhanced disclosure with a suitability information check.

The different options may result in more or less information being disclosed on a Level 2 disclosure than currently is on a standard or enhanced disclosure.

Your decision with regard to the options listed above should take account of the fact that the PVG Scheme products may also be changed. There will be discussion about this later in this paper.

Question 15: Which option should be the content of the Level 2 disclosure product be based upon? Please provide the reason for your choice.
Option 1
Option 2a
Option 2b

Fee

Under the current legislation the cost of both the standard and the enhanced disclosure is £25. This cost is incurred every time an individual applicant applies for a basic disclosure. The cost options for a Level 2 disclosure are set out below:

Proposal	Fee
Option 1	£30, cost will be incurred each time a Level 2 disclosure is required
Option 2a & 2b	£35 for first or one-off application. If applicant creates account which results in identification and verification being required once then future Level 2 applications will cost £23.

Options 2a and 2b allow those individuals that may require a number of Level 2 disclosures to save money. It will also reduce the inconvenience of having to complete personal information with each application. This option will benefit those individuals who are in temporary work or short term contracts and switching employers, or those whose employers carry out periodic checks.

Question 16: Which price option do you prefer for the Level 2 product?
Option 1
Option 2

The proposed costs will be subject to review once the final consultation outcome is known. It is our intention to review costs periodically.

Fee Waivers

Under the current system for standard and enhanced disclosures certain positions for volunteers for certain qualifying voluntary organisations are entitled to free checks. Scottish Ministers meet the cost of these checks to support the voluntary sector.

Question 17: Is it proportionate that the free checks should continue for volunteers who obtain Level 2 disclosures?
Yes
No

Method of delivery

Under the current system individuals cannot apply online for a standard or an enhanced disclosure certificate. Once processed, Disclosure Scotland sends a paper certificate to the individual's address and in most cases a copy is sent to the person such as the employer who countersigned the disclosure application. If there are certain convictions for which the individual has a right to apply to a sheriff for removal from the disclosure and they do not use that right (either by telling Disclosure Scotland or allowing a prescribed period of time to pass without intimating to Disclosure Scotland their intention to make an application to a sheriff), the disclosure is then subsequently sent to the countersigning person such as an employer. If an individual does use their right to apply to a sheriff for removal of a conviction, the person who countersigned the disclosure application will not see a copy of it until the sheriff has decided whether or not the conviction should be removed.

In the future, we want the individual when applying for a Level 2 disclosure to be able to apply online and provide all the information needed for their application. They will then receive the disclosure. We think that this digital information should be owned by the individual who will be able to securely route or share it with any employer or any other person they choose to provide it to i.e. voluntary organisation.

However, unlike with a Level 1 disclosure, only those employers who are lawfully entitled to see the Level 2 information may do so, which would require them to be registered with Disclosure Scotland as a Level 2 Registered Body with their credentials established and entitlement to see Level 2 information fully assured. The Level 2 disclosure applicant would then be able to securely share their vetting information with the prospective employer, who would only be able to electronically receive it if all of the requirements were satisfied. This puts the sharing of the information with a third party in the hands of the individual who applied for the disclosure. If they choose not to do so, they may not get the job or role but the decision to share or not share the information has been theirs.

This would change to a limited extent the current arrangements that employers typically have for countersigning higher-level disclosures. There will still be a requirement to have staff who have been vetted by Disclosure Scotland within Level 2 Registered Bodies to receive the information shared by the individual.

It will be unlawful for any employer or any other person to request access to an individual's account in order to circumvent proper checks on their legal entitlement to see higher level disclosure information - the only permitted way will be via the appropriate electronic sharing of the information with accredited parties.

Question 18: What issues, if any, do you foresee with a move to a digital service?