12th Report, 2006 (Session 2)

CONTENTS 

Remit and membership

Committee Report

Introduction
Drivers for legislative change
The Committee’s Stage 1 process
General views on the bill
Consideration of specific issues
Conclusion

Annexe A – Extracts from minutes
Annexe B – Written submissions
Annexe C – Letter from the Convener to Deputy Minister for Education and Young People
Annexe D – Letter and accompanying annexes from Deputy Minister for Education and Young People to the Convener
Annexe E – Finance Committee report on Financial Memorandum
Annexe F – Subordinate Legislation Committee report

Remit and membership 

Remit:

To consider and report on matters relating to school and pre-school education, young people and social work and such other matters as fall within the responsibility of the Minister for Education and Young People.

Membership:
Wendy Alexander (member to 23 November 2006)
Iain Smith (Convener)
Rosemary Byrne
Lord James Douglas-Hamilton (Deputy Convener)
Fiona Hyslop
Mr Adam Ingram
Marilyn Livingstone (member from 23 November 2006)
Mr Kenneth Macintosh
Mr Frank McAveety
Dr Elaine Murray

Committee Clerking Team:

Clerk to the Committee
Eugene Windsor

Senior Assistant Clerk
Mark Roberts

Assistant Clerk
Ian Cowan

Committee Assistant
Paul Howell

Stage 1 Report on Protection of Vulnerable Groups (Scotland) Bill

The Committee reports to the Parliament as follows—

introduction

1. The welfare and best interests of children and young people are the Education Committee’s paramount concern.

2. During the Committee’s lifetime, child protection has been central to its work. It has conducted an inquiry into the implementation of the It’s Everybody’s Job To Make Sure I’m Alright report, scrutinised the Joint Inspection of Children's Services and Inspection of Social Work Services (Scotland) Bill 2006 and responded to stakeholder concerns regarding the implementation of the Protection of Children (Scotland) Act 2003. These have all been components of the child protection agenda that has now culminated, at the very end of this parliamentary session, in the introduction of the Protection of Vulnerable Groups (Scotland) Bill on 25 September 2006. Under Rule 9.6.1, the Bill was referred by the Parliament to the Education Committee as lead committee. It is for the lead committee to consider and report on the general principles of the bill.

3. Prior to commenting in detail on the general principles of the Bill, the Committee believes it is important to set out its position on trends in society’s attitude to the protection of children and young people. Protection of children is, of course, vital, but it must not come at the expense of their welfare and their right to experience a rich and stimulating childhood. Achieving a balance between protection and enrichment is a challenge, but one that it is essential that we face. Interaction between children and adults is a necessary element of children and young people’s development. The Committee is concerned at the rapid growth of a culture that is increasingly characterised by the desire to eliminate all risk and the negative effect this may have on children.

4. The Committee is clear that no single piece of legislation, no piece of guidance and no change in wider social culture will guarantee the safety of children and young people. Risk is inherent to life and learning about risk is an integral part of growing up. However, the Committee recognises that legislation is one part of the toolkit that can minimise risk. In considering this Bill, the Committee kept the interests of children and young people in the widest sense first and foremost and been acutely aware of the need to balance protection with the need for a stimulating childhood in which children learn to form appropriate relationships with adults.

5. In the conclusion of this report, the Committee will recommend that the Parliament supports the general principles of the Bill on the basis that, on reflection and in the longer term, the revised vetting and barring system should be an improvement on the existing system.

6. The Committee recognises many of the concerns that have been expressed regarding Part 3 of the Bill and the inadequacy of consultation that has taken place, and recommends that it be withdrawn from the Bill and incorporated into proposed forthcoming legislation. This proposal is understood to have all-party support. This will allow fuller consultation to be conducted on the proposals.

7. The Committee is also concerned that much of the detail of the operation of the proposed vetting and barring system will be left to subordinate legislation and guidance that has not yet been subject to full consultation. The Committee recommends that Stage 2 consideration of the Bill should not begin until stakeholders have had an opportunity to comment on drafts of the related subordinate legislation and guidance.

8. In making these recommendations, the Committee fully accepts the importance of child protection and wants to see the creation of a new streamlined vetting and barring system. The Committee also accepts the importance of the principle of information sharing but considers that there needs to be greater discussion, consultation and debate over the detail of the practical implementation of Part 3 of the Bill.

drivers for legislative change

9. The Protection of Vulnerable Groups (Scotland) Bill arises, in part, from recommendation 19 of the report¹ of the inquiry set up by in 2004 by the UK Home Secretary David Blunkett MP, and led by Sir Michael Bichard, into the child protection procedures in Humberside Police and Cambridgeshire Constabulary, following the conviction of Ian Huntley for the murders of Jessica Chapman and Holly Wells in Soham, Cambridgeshire in 2003.

10. Sir Michael’s report found that the inquiry ‘did find errors, omissions, failures and shortcomings which are deeply shocking. Taken together, these were so extensive that one cannot be confident that it was Huntley alone who “slipped through the net”’².

11. Recommendation 19 of the report stated that—

‘New arrangements should be introduced requiring those who wish to work with children, or vulnerable adults, to be registered. This register – perhaps supported by a card or licence – would confirm that there is no known reason why an individual should not work with these client groups’.

12. The recommendations of the Bichard report were mainly directed towards England and Wales. However, Scottish Ministers indicated that they would ‘learn the lessons’ and ‘seek to streamline current systems and ensure there are no cross border loopholes across the UK that could be exploited by those who might do harm to vulnerable people’³.

13. In England and Wales, recommendation 19 of the Bichard inquiry was implemented by the Safeguarding Vulnerable Groups Act 2006 which received Royal Assent on 8 November 2006. Implementation will take place in staged manner from 2007 with the majority of the new  systems required to support the scheme being put in place in autumn 2008. The English and Welsh Act differs from the Scottish Bill in that it places the responsibility on individuals to participate in the vetting and barring scheme. The Scottish Bill requires employers to satisfy themselves that their employees are not barred from working with children or protected adults and provides a mechanism, through the vetting and barring system, for them to do so.

14. A consultation⁴ on the Scottish Executive’s proposals for a ‘Scottish Vetting and Barring scheme’ was announced in February 2006. The results of the consultation⁵ were published by the Scottish Executive in August 2006. The Bill takes forward the proposals.

15. The provisions of the Protection of Vulnerable Groups (Scotland) Bill will largely replace those contained within the Protection of Children (Scotland) Act 2003. The Act allows Scottish Ministers to set up the Disqualified from Working with Children List which came into operation on 10 January 2005. Section 11(3)(a) of the Act came into force on 11 April 2005. It is now an offence for an organisation knowingly to employ a person in a child care position, if that person is disqualified from working in such a position. Section 11(3)(b) has not yet been commenced. This section creates a new offence which organisations will commit if they fail to remove a disqualified individual from a child care position. This section has not been commenced because it raises the need for checks on existing staff and volunteers and is largely replaced by the provisions of the Protection of Vulnerable Groups (Scotland) Bill.

The Bill

16. The Bill is divided into five parts. The Policy Memorandum⁶ accompanying the Bill notes that Parts 1 and 2 create the legislative framework for a new vetting and barring scheme, intended to ensure that people who are unsuitable do not gain access to children or protected adults through work. Part 1 establishes the lists of individuals unsuitable to work with children or protected adults. Part 2 establishes the vetting arrangements for individuals working with children and/or protected adults. Part 3 makes provision for sharing information for child protection purposes, placing duties on relevant public bodies and organisations to disclose information when a child is at risk of harm. Part 4 makes a number of technical amendments to the Police Act 1997 to ensure the effective operation of Disclosure Scotland, including changes to the existing system consequential to the introduction of the new scheme. Part 5 makes minor amendments to the Regulation of Care (Scotland) Act 2001. Part 6 makes provision for the transfer of Disclosure Scotland staff to a new agency and provides a power to make provision consequential on the English and Welsh vetting and barring scheme.

Changes from the current system

17. According to the Policy Memorandum, currently the vetting system operates through a disclosure certificate which individuals may obtain by applying to Disclosure Scotland. There are three types of disclosure - basic, standard and enhanced, all of which cost £20 to the individual, although this cost is sometimes met by employers. A basic disclosure only provides information on convictions that are unspent under the Rehabilitation of Offenders Act 1974. A standard disclosure provides details of both spent and unspent convictions and, where an individual is applying for a job to work with children, whether he or she is on the Disqualified from Working with Children List (DWCL). In an enhanced disclosure, in addition to the elements of a standard disclosure, the police have discretion to provide non-conviction information they consider to be relevant to the position being in question.

18. One of the problems with the current arrangements is that disclosure checks are not dynamically updated, so can only be taken as accurate at the time they are issued. As a result, people who undergo a disclosure check when seeking employment or volunteering with one organisation often have to undergo another check when simultaneously or subsequently seeking employment or volunteering with another organisation.

19. The Bill’s proposals are intended to bring improvements to the current system. The Policy Memorandum states that—

‘This Bill is about keeping Scotland’s children safe from those who pose a danger when working with them, whether paid or unpaid, whilst reducing the bureaucracy for those that provide services to children (not least by making it simpler to apply for subsequent checks once a scheme member […]) Robust child protection systems support children’s engagement in learning, sport and leisure activities, and artistic activities, for example, which are so important in their development’⁷.

20. The Policy Memorandum goes on to note that the underpinning objectives of the vetting and barring provisions of the Bill are that—

• people who are unsuitable do not gain access to children or protected adults through work;
• people who become unsuitable are detected early and prevented from continuing to work, or seeking to work, with children or protected adults; and
• so far as practicable, the underlying processes minimise bureaucracy.

21. In achieving these objectives and developing associated legislation, claims the Policy Memorandum, ‘careful consideration has been given to striking the right balance between protecting vulnerable groups and not unduly comprising the privacy rights of individuals or the rehabilitation of offenders’⁸.

The Committee’s stage 1 process

22. The Committee considered the Protection of Vulnerable Groups (Scotland) Bill at its meetings on 15, 22 and 29 November 2006. It took oral evidence from a range of stakeholders, and held a ‘roundtable’ event involving representatives of voluntary sector organisations on 22 November.

23. The Committee issued a call for written evidence, and received more than 50 submissions.

24. Full details of the oral and written evidence received are contained in Annexes A and B. All the written evidence is available on the Scottish Parliament’s web-site⁹. After hearing evidence from the Minister on 29 November, the Committee wrote to the Scottish Executive seeking clarification of a number of points. This letter and the Scottish Executive’s response to it are included as Annexes C and D respectively.

25. Reports were received from the Finance Committee and the Subordinate Legislation Committee. Those are attached at Annexe E and F respectively, and are referred to in the text of the report where appropriate.

General views on the Bill

26. This section of the report includes general points made by witnesses on the Bill. Where specific, detailed issues have been raised, these are considered in separate, dedicated sections of the report.

27. The Bill was broadly welcomed by the local authority sector. The Convention of Scottish Local Authorities (COSLA), the Association of Directors of Education (ADES) and the Association of Directors of Social Work (ADSW), in a joint submission, noted that they were, subject to a number of caveats which are considered later in the report, ‘content with the spirit and intention of the bill,’¹⁰ and added that—

‘[…] with some minor amendments to the words and clarification of how it will be implemented, this bill will result in a more cohesive, consistent and simplified approach to vetting and barring than the situation, which exists at present’¹¹.

28. The COSLA/ADES/ADSW paper also stated that the organisations were ‘reassured that multiple checks will be significantly reduced and there will be more consistency’¹².

29. Only four individual local authorities responded to the call for evidence, (although two local authorities were heard in oral evidence, as well as professional organisations representing senior local authority employees) but they were broadly supportive of the Bill’s provisions, subject to certain caveats.

30. The regulatory bodies responsible for registration of professional workers in the education, health and social work sectors were also broadly in support of the Bill although they all raised a number of specific concerns about particular provisions within the Bill. There were some general concerns over Part 3, under which certain public authorities and regulatory bodies will be under a duty to share information for the purpose of protecting a child from harm.

31. Trades unions also recognised the need to enhance and improve the current disclosure system, although the Educational Institute of Scotland (EIS), in welcoming legislation which has been the consequence of reflection on evidence gained from several sources over time,’ commented that, ‘drafting major legislation in response to an individual case may not always result in the most effective means of addressing the issues which have arisen from this case or incident’¹³.

32. UNISON Scotland welcomed the Bill as, ‘a further step towards protecting the community and raising confidence in staff who work with these vulnerable groups’¹⁴.

33. In contrast, voluntary sector organisations representing children’s interests and providing services, together with Scotland’s Commissioner for Children and Young People (hereafter: the Children’s Commissioner) were largely critical of the Bill, some going as far as calling on the Committee to recommend to the Parliament that the general principles not be approved, and others calling for Part 3 to be deleted.

34. In the main, the voluntary sector perceived the provisions of the Bill as being disproportionate to the risks faced by children. They also considered that the Bill was too concerned with so-called ‘stranger danger,’ and diverted attention away from the fact that the greatest risk to children occurs in their own homes and that where harm is done it is most often at the hand of people who are known to them.

35. Children in Scotland went as far as to say that—

‘[…] even if the vetting and barring proposals had been the law of the land at the time of the Soham Murders, they would not have prevented the two girls in question from visiting the home of Ian Huntley’¹⁵.

36. The wider voluntary sector, for example, organisations promoting involvement in sport, music and the arts, also voiced major concerns over the costs of implementation of the new vetting and barring scheme. Currently the Scottish Executive meets the cost of checks for volunteers in the voluntary sector, but not for paid staff. The costs of checks for existing paid staff in the voluntary sector will therefore need to be met from within the sector’s own resources.

37. There are also concerns over the costs to the voluntary sector of administering the scheme, particularly for smaller organisations.

38. Although the voluntary sector largely welcomed the ‘passporting’ proposals that would lead, to a large extent, to repeat disclosures no longer being required, overall the sector considered that the Bill’s proposals would lead to a diminution in the number of volunteers.

39. Many of the voluntary sector organisations also expressed opposition to the provisions in Part 3 of the Bill, which impose duties on a range of organisations to share information. Some, notably Scottish Women’s Aid, expressed a fear that they would be obliged to share information which they felt would seriously compromise their ability to provide their core service.

40. The remainder of the report considers the specific issues arising from the evidence received.

Subordinate Legislation

41. The Committee notes the comments of the Faculty of Advocates which states—

‘The Bill relates to a matter of great importance. The Parliament is the appropriate body to take decisions about the way in which this legislation is to work. It is a matter of concern that such a wide range of matters are to be left to the Ministers to determine’ and goes on to comment that ‘[…] the number and range of matters left to Ministers means that it is difficult to provide any conclusive advice as to whether or not the Bill will be effective’¹⁶.

42. The Committee shares this view and, irrespective of the Parliament's decision regarding the general principles of the Bill, believes that Stage 2 consideration of the Bill should not begin until stakeholders have had an opportunity to comment on drafts of the related subordinate legislation and guidance.

Consideration of specific issues

A proportionate response?

43. There was a marked contrast between the views of local authorities, NHS boards, professional organisations and regulatory bodies who were generally in favour of the proposed vetting and barring scheme and voluntary sector organisations who generally opposed it.

44. The former were largely agreed that the Bill would, if passed, increase the degree of scrutiny both of those seeking jobs in the relevant sectors and of the existing workforce, and would make it less likely that unsuitable people would gain access to children and young people through employment.

45. Carole Wilkinson of the Scottish Social Services Council (SSSC), for example, told the Committee—

‘We are quite clear that the law needs to be improved. We are a relatively new regulator and in seeking to bring people on to the register, our experience is that there has not always been clarity around what information can be shared. As the previous witnesses said, there is concern among local authorities about the information that they can share with one another and with us. The bill provides an opportunity to make much clearer what information can be shared and to clarify some of the issues around data protection’¹⁷.

46. Trades unions were also generally in favour of the Bill, although a number of specific points were raised. UNISON told the Committee—

‘[…] The bill is part of a wider package of measures, but that does not mean in any way that it is unnecessary. We think that it is necessary and we welcome it.

We need to strike a balance. It is clear that protection of children and vulnerable adults is the paramount consideration, but we do not want miscarriages of justice that mean that staff who can and do make a valuable contribution to the care of children and vulnerable adults are blocked from doing such work when there is no good reason. The balance must be in favour of protecting the child or vulnerable adult, but we must recognise that point’¹⁸.

47. The police were also positive about the Bill. ACPOS told the Committee the Bill was—

‘[…] a significant step towards improving public protection and specifically the protection of children and protected adults. The aim of the Bill is to prevent those who are unsuitable from gaining access to positions where they are able to cause harm to those who are least able to defend themselves. We know that many unsuitable individuals who would seek to gain this access are some of the most devious and dangerous and we must ensure that the proposals outlined in the Bill translate into real obstacles to this access‘¹⁹.

48. The voluntary sector, on the other hand, was more inclined to the view that the Bill represented a disproportionate response to the risk. The Scottish Council for Voluntary Organisations (SCVO), welcomed ‘[…] much of the PVG Bill, seeing it as potentially a vast improvement on the current POCSA regime. We are delighted, for example, at proposals under the new scheme for the ‘constant updating’ of disclosure checks and the option of subsequent nominal checks, hopefully reducing multiple checks in the sector. In addition we commend the Executive for retaining free volunteer checks under the new scheme’²⁰.

49. Less  positively, SCVO went on to say—

‘However, we believe there are significant problems with the Bill and the Financial Memorandum that could risk efforts to protect vulnerable groups in Scotland. Voluntary organisations are very often at the frontline of efforts to protect vulnerable groups, working to the benefit of children and adults across Scotland. If this legislation inhibits this voluntary activity, by diverting precious resources from frontline activity or by closing projects, groups or organisations, it will at the same time harm the vulnerable groups the Bill sets out to protect‘²¹.

50. The Scottish Parent Teacher Council went further, stating in its written submission—

‘This Bill builds on and takes further the Protection of Children (Scotland) Act, but our experience of that legislation is that it is disproportionate, takes no account of actual risk and applies to both low and high risk activities without discrimination. We accept that there is a need to be very vigilant when people are appointed to work in children’s homes and in situations where adults have a close, regular one-to-one relationship with children, particularly when the child is dependent on that adult for care. However, the same does not apply to the school based Mums who turn up to help several other parents run a disco for the pupils. We even know of a case where villagers responsible for managing the use of their village hall were required by the local authority to have enhanced disclosure checks. We are unaware of any case of abuse that has arisen out of such activities’²².

51. The view emerging from the voluntary sector in general, children’s organisations and the Children’s Commissioner during oral evidence was that the Bill should be rejected and there should be a debate on the future of child protection and a review of the Protection of Children (Scotland) Act 2003 (POCSA). Any changes required could be achieved through amendment of POCSA.

52. Recommendation 19 of Sir Michael Bichard’s inquiry into the events surrounding the Soham murders is very clear, and although his report applied directly only to England and Wales, it is appropriate that the Scottish Executive introduces a Bill in parallel to the legislative developments which have taken place in England and Wales in response to the Bichard report. The Committee recognises that the vetting and barring scheme, which has emerged directly from Sir Michael Bichard’s recommendations, is required, and, despite the issues which are highlighted in this report, will improve on the current disclosure regime in a number of important ways.

53. The Committee acknowledges that the impact of POCSA has not been fully audited, and that some of the changes required could be brought about by amendments to POCSA, as voluntary sector organisations have claimed. However, the Committee notes that not only would this require further primary legislation which would not be able to be passed in the current session of the Parliament, but that separate primary legislation would be required in order to provide for protection of vulnerable adults.

54. It is recognised by the Committee that, statistically, there is likely to be a greater risk of harm to children in their own homes and from people whom they know than there is from strangers. The Committee is conscious that heightened public anxiety about perceived danger to children has given rise to a highly risk averse culture which has reportedly led to many people no longer being prepared to volunteer. This has been compounded by the increasing use of litigation when accidents have occurred. The Committee regrets this, and believes it is important to put on record that although the protection of children and vulnerable adults is crucial, it is also important that children in particular have access to a range of opportunities for growth and development, and that the existence of such opportunities is, to a large extent, dependent on the existence of a viable group of adults who are prepared to take on the work required to deliver such opportunities.

Impact on the voluntary sector and volunteering

55. The Committee heard concerns from voluntary sector organisations that the Bill would have two major negative impacts on the sector. Firstly, the vetting and barring regime would discourage people from volunteering. Secondly the disclosure regime would impose unbearable administrative burdens on voluntary organisations, particularly smaller ones which may not have the capacity for adequate record keeping. Thirdly, there would be significant extra costs, because although the Scottish Executive has committed itself to meeting the cost of disclosure checks in respect of volunteer workers in the voluntary sector, there is no such commitment to meeting the cost of checks for paid staff. There would also be extra administrative costs arising from the implementation of the new regime.

56. SCVO brokered written evidence from a ‘voluntary sector coalition’ of 39 voluntary organisations, which noted that—

‘The voluntary sector desperately wants the new system to work to the benefit of children and ‘protected adults’ in Scotland, and we will enthusiastically work to make this happen’²³.

57. However, the submission goes on to say—

‘We in the voluntary sector are concerned that without a greater focus on its implementation, this legislation could reduce voluntary activity, and lead to a closure of voluntary groups and organisations working to the benefit of vulnerable groups’²⁴.

58. The submission calls for, amongst other things, extra funding for training and awareness raising, a cap on the costs of disclosure checks for voluntary sector paid staff at £20 (although the Scottish Executive has already promised to meet the cost of checks for volunteer staff), a simplified administration process utilising computer technology and an ongoing review of arrangements.

59. Other concerns raised by voluntary sector representatives included a lack of clarity over the extent to which ‘unconstituted’ organisations will be covered by the Bill’s provisions, and whether informal volunteers, for example parents helping on school trips, will require to be checked.

Potential impact on volunteering

60. The Scottish Council of the Scout Association, in its written submission to the Committee, was typical of some of the views received from the voluntary sector—

‘There is, however, growing evidence that an increasing culture of litigation and blame seeking, compounded by an ever-growing compliance agenda, is beginning to deter adult voluntary involvement. Most pertinently here, the step change in administrative requirements and responsibilities arising from PoCSA has placed enormous strains on local volunteer resources and has additionally stretched the financial resources of national organisations. It is giving rise to calls for a level of paid administrative support for volunteers that voluntary youth organisations are in general unable to respond to’²⁵.

61. The possible impact on volunteers was, however, played down by local authority witnesses. Lynn Townsend of the Association of Directors of Education (ADES) told the Committee—

‘If we give out sufficient information and explanation, I do not think that volunteers and volunteer organisations will be put off by the bill’²⁶.

62. This was backed up in oral evidence by COSLA, who said—

‘Similar concerns were raised when the Protection of Children (Scotland) Act 2003 was introduced. We have carried out a trawl of councils, which shows no evidence that the act has had a negative impact on volunteering’²⁷.

63. The Committee considers that the voluntary sector is right to raise the question of the potential impact on people’s willingness to volunteer. However, the possibility of a reduction in the flow of volunteers must be balanced against the added security which it is hoped will be brought by the new vetting and barring scheme. Nevertheless, the Committee calls on the Scottish Executive to set out the steps it intends to take to address the concerns of the voluntary sector over the phasing-in time and cost implications to ensure that there continues to be an adequate supply of voluntary workers in Scotland.

Financial impact on the voluntary sector and volunteering

64. Currently the Scottish Executive pays for disclosure checks which are required for volunteers working in the voluntary sector, but not for paid staff. Under the Bill, this situation will continue, but there are likely to be additional costs for disclosure checks for the existing paid workforce in the voluntary sector, which will fall on either the voluntary organisation or on the staff themselves. SCVO, in its written evidence the Finance Committee, estimated that the new costs on the voluntary sector over the proposed three year phasing in period would be £3million.²⁸ SCVO also estimated that training costs could be £1million, and the total extra administration cost over the phase in period could be up to £20million.

65. The Scout Association Council told the Committee—

‘[…] We estimate that the current cost to us in terms of staff time, IT support requirements and general administration would be between £40,000 and £50,000 per year. The financial memorandum does not show us the future impact of further access to online checking and so on. It is difficult for us to assess, but our costs are unlikely to go down. Those costs have to be met primarily from our youth members and volunteers because […] most of our income comes from membership subscriptions’²⁹.

66. It is anticipated that voluntary staff (but not paid staff) in the voluntary sector will, as at present, have the disclosure fees paid for by Scottish Executive. However, it is understood that neither voluntary workers nor paid workers in the local authority sector will be paid for by the Scottish Executive. ADES told the Committee in oral evidence that this would be a problem for local authorities—

‘[…] I would like volunteers in the statutory sector to be covered by the financial arrangements, particularly as we are trying to give volunteering a much higher profile and involve more of the community in voluntary work. I am thinking specifically of the not in education, employment or training strategies. We are trying to involve young people, who are often involved in volunteering through their local authority and statutory bodies. It would be a financial burden for local authorities if they had to pay for young people's vetting’³⁰.

67. The Policy Memorandum indicates that no decision has yet been taken as to the timeframe required for phase-in, although the financial memorandum has assumed a three year phase-in³¹. Clearly, a longer phase-in period will reduce the  annual administrative impact on both the voluntary and local authority sectors and on Disclosure Scotland. The Deputy Minister for Education and Young People said—

‘The big worry has been that the requirement to conduct retrospective checks will mean that both the agency and individual groups will be faced all of a sudden with a huge surge in the number of checks. That will obviously depend to some extent on the group in question, but it will also depend on the period of time over which the scheme is phased in. The numbers will go down in proportion to the length of the timescale for carrying out retrospective checks, whether it is three, four or five years. There is no suggestion that we will introduce the scheme with a big bang—just like that—in one year and that a huge number of checks will suddenly land in the system. We do not envisage that the scheme will cause the voluntary sector or other people major administrative headaches beyond what is entailed in the current system’³².

68. The Committee recognises that enactment of the Bill will bring a significant number of challenges to the voluntary sector. It is also likely to bring significant added cost, both in terms of the additional cost of retrospective checking of the existing voluntary workforce, and in relation to the administration and record keeping systems which will require to be put in place in order for organisations to comply fully with the requirements that will be imposed by the Bill, if it is passed.

69. The Committee recognises that smaller voluntary organisations may face the greatest challenges as a result of their limited administrative capacity.

70. Voluntary work is important, both for those carrying it out and for those—often the most vulnerable and least influential in society—who depend on the services provided by the sector. Nevertheless, the Committee takes the view that it is essential that the voluntary sector is able to fully implement the provisions of the Bill, in order to ensure that the vulnerable people with whom the sector works receive the fullest possible protection.

71. National organisations like SCVO are clearly facing a period when their resources and skills are going to be tested in providing support to enable their member organisations to cope with the provisions of the Bill. At local levels, there are also opportunities for organisations like councils for voluntary service to demonstrate their ability to support, in particular, smaller membership organisations.

72. The Committee calls on the Scottish Executive, before stage 2 of the Bill, to set out the steps it proposes to take to ensure that the voluntary sector is equipped to enable it to cope with the challenges ahead in relation to the implementation of the provisions of the Bill. The Committee also calls on the Scottish Executive to consider whether the resources it makes available to the voluntary sector need to be supplemented in any way in the short term to enable it to cope adequately with the proposed changes.

73. The Committee also asks the Scottish Executive to consider further and set out in detail its thoughts on the timescale for bringing the existing workforce into the scheme. Clearly, the more slowly this is to happen, the less the impact on the voluntary sector is likely to be, but the risk of an unsuitable person continuing to work in the sector is correspondingly increased. There is therefore a balance to be struck between cost/impact and the time taken to implement fully the new scheme.

Voluntary or mandatory scheme

74. Under the Bill, membership of the vetting scheme will be voluntary. However, it will be an offence for any organisation to employ a person (whether in a paid or voluntary capacity) who is not a member of the scheme to carry out regulated work.  The only way for an employer to satisfy itself that a person is a scheme member, and not on one of the lists of those barred carrying out regulated work, will be to seek a disclosure check on the individual in question.

75. It will also be an offence for a person to try to carry out regulated work while on a list of people barred from working with the relevant group.

76. This is one of the differences between the Bill and the Safeguarding Vulnerable Groups Act 2006, which applies to England and Wales. The Act makes it compulsory for an individual to 'become subject to monitoring' before undertaking a regulated activity. It will be an offence for such an individual to participate in regulated activity. The Act also makes it an offence for organisations to employ listed individuals and for an employer to employ an individual who is not subject to monitoring.

77. In practice, the fact that an organisational employer will be committing an offence if they employ someone who is not a scheme member to carry out regulated work means that, at least as far as organisational employers are concerned, the vetting and barring scheme is compulsory. ADES, ADSW and COSLA, in their written submission to the Committee, argued that it was—

‘[…] disingenuous to imply that participation in the scheme is voluntary - by the end of the transitional period it will become impossible to work in the sector without scheme membership, so effectively it is compulsory and this should be transparent from the outset’³³.

78. It is understood that the Scottish Executive considered that it was not appropriate to create an offence to carry out regulated work when not in scheme membership, as anomalies surround whether or not a specific post involves regulated work. Placing the responsibility on the employer to satisfy himself that an employee or job applicant is a scheme member, therefore makes it easier to ensure that all employees and volunteers apply for scheme membership. However, it remains unclear why it was felt necessary to have different approaches in Scotland and England.

79. One of the Committee’s concerns is to ensure that public authorities and voluntary organisations are helped to manage and reduce risk, so providing further reassurance to all of us that our children and other vulnerable individuals are protected from harm. However, the Committee is also concerned that the Bill does not inadvertently encourage further risk averse behaviour which could damage children’s welfare rather than keep them safe. The Committee considers that by making it an offence for organisations to employ a barred person rather than making it an offence for the individual, this could arguably have the effect of making organisations more risk averse in their practices.

80. One of the possible disadvantages of this proposal is that people who may work with children or vulnerable adults as an individual contractor, for example musical tutors, may be able to avoid joining the scheme, as the individuals employing them, for example a child’s parent, would not be an organisational employer under the bill, and could therefore not be charged with the offence of employing someone barred from such work. Anyone providing such personal services should seek to become a scheme member, enabling them to be issued with a ‘statement of barred status’ which can be shown to parents or others paying for the service. It would be an offence for a person who was not a scheme member to try to carry out regulated work, whether the system’s success depends on the parents or those receiving the service being aware of the scheme in the first place.

81. The Committee considers that the proposals in the Bill in respect of individual contractors, service providers or suppliers are not wholly satisfactory. There is a greater possibility of subverting the system than is the case with organisational employees and this could potentially open up opportunities for unsuitable people to gain access to children and protected adults.

82. The Committee notes the Scottish Executive’s rationale for not making carrying out regulated work without being a scheme member an offence, but considers that insufficient work has been done to address the issues potentially arising from people carrying out work as individuals.

83. The Committee therefore calls on the Scottish Executive to re-examine this question in advance of stage 2, so that the Parliament can be satisfied that there are no potential loopholes in relation to individual workers. The Committee also calls on the Scottish Executive to reconsider whether it would be more appropriate to adopt the system proposed for England and Wales, where the responsibility for determining a potential employee’s barred status is place on the individual employee rather than the employer.

Employees not directly employed by local authorities

84. The joint COSLA, ADES and ADSW submission raised an important point in relation to people carrying out regulated work under contract to local authorities, where those carrying out the work are not directly employed by the local authority—

‘The Committee may be aware of concerns raised regarding vetting arrangements for people working in contracted services, such as school transport or catering in PPP schools.  Paragraph 63 combined paragraph 52 Condition C should be amended to allow councils and other public bodies to undertake vetting of individuals working in contracted services. The growth in direct payments, which will be further emphasised with the increasing personalisation of services coming from the Changing Lives agenda, will increase still further the numbers of people providing services on behalf of local authorities who are not directly employed by them. For consistency, to maximise the protection of vulnerable groups, and to ensure public confidence in the system and in our agencies, the responsibility for vetting ought to lie with the council, or other contracting agency, rather than the employer such as a bus company as applies under the existing legislation’³⁴.

85. The Committee calls on the Scottish Executive to consider further the question of employees and volunteers working for third parties who are delivering local authority services whether under contract or some other arrangement, and to develop clear guidance to local authorities on what posts should be within the scheme.

One list or two?

86. The Bill as drafted provides for two separate lists—one of people barred from working with children and young people, and the other of people barred from working with protected adults.

87. The Policy Memorandum notes that during consultation on the proposed Bill, opinion was mixed on the question of whether there should be one or two lists. Although, as the Policy Memorandum reports, there are arguments on both sides, the Scottish Ministers decided that, on balance, the arguments in favour of a two list approach were stronger.

88. Opinion on this issue in evidence to the Committee was also divided. NHS Greater Glasgow and Clyde supported the proposal for two lists, noting—

‘The provision of separate lists for people undertaking regulated work with children or protected adults vetted through the Central Barring Unit is particularly useful, given the turn-over of staff through locum or temporary bank or agency work and the resultant difficulties in identifying barred individuals in relation to the regulated job for which they are applying. Also, the separate lists may result in a more focused and proportionate response in determining referrals to CBU and the decision to bar individuals, given that it will relate to a specific category of work. This, in turn, will encourage all groups to make use of the scheme without diluting the protection of individuals’³⁵.

89. Stirling Council, on the other hand, argued—

‘However, we have serious concerns at the Bill’s proposal of different lists for people barred from working with children or adults.  Employers require to be able to access both Social Services staff and increasingly Education and other support staff who work with families or individuals within a family setting.   We believe such a difference would be therefore unworkable.

The proposed creation of two separate lists infers that a separate risk must be presented to both “groups” – adults and to children – before consideration of being barred from both.  Is there evidence that someone with the capacity to harm a child may restrict that to children only or vice versa?   We would suggest that robust risk management of services to vulnerable people of all ages, requires a holistic risk assessment of individuals who have substantial access to these individuals through their work’³⁶.

90. Regulatory organisations also expressed some concern over the proposal for two lists. The General Teaching Council Scotland, for example stated—

‘The Council accepts that there may be an ECHR issue in relation to combining the two lists together. GTC Scotland understands that as the Council’s workforce will only be working with children, disclosures would only give information about the children’s list. It is unthinkable that GTC Scotland could in practice unknowingly register an individual who is listed as unsuitable to work vulnerable adults. Notwithstanding that the Bill is concerned with regulated work and not contact, GTC Scotland would wish to press strongly that information is disclosed to the Council concerning both lists’³⁷.

91. The General Medical Council went further, arguing—

‘The existence of separate lists regarding children and protected adults is problematic. Under the standards set by us a person may be deemed unsuitable to work as a doctor because of their conduct towards any patient or person. It would appear to us that it is difficult to foresee the circumstances in which an individual may be barred from working with one group while remaining able to work with the other. It is likely, of course, that many individuals will be included under both lists, but not all will be. We look forward to the consultation on how decisions about listing are made. If two lists are established then it will be important that regulators such as the GMC are made aware of an individual’s listing on either list, regardless of the apparent applicability or otherwise to their job role‘³⁸.

92. The Committee notes that Disclosure Scotland’s work on this issue is ongoing.

93. The Committee accepts that the Scottish Executive had to make a decision on the question of one list or two, and accepts that it has decided that the arguments in favour of two lists are stronger. However, as the evidence from a number of organisations shows, there may be issues than still need to be resolved in the detailed operation of the lists. It is accepted that detailed operation is not a matter of general principle and that consultation on this has still to take place. Nevertheless, the Committee invites the Minister to respond to the points made in the evidence presented here.

Operation of new vetting system

94. One of the policy objectives of the Bill, as set out in the Policy Memorandum, is, so far as possible, to minimise bureaucracy. One of the failures in the current system is that each disclosure only covers convictions and other information available before the date of the check. Should subsequent convictions take place, or other information become available, there is, at present, no system for dynamic updating. Consequently, each time the individual seeks work with a new employer, they are required to undergo a further check.

95. Under the new system, the need for repeat checks should be minimised, as the system will be dynamically updated with new information from the courts and police. This was welcomed by witnesses.

96. However, it became apparent to members that the need for repeat checks may not be reduced as much as has been claimed. For example, in the case of a person who is already a scheme member taking up a position with a new employer, the new employer would be expected to request a ‘short scheme record.’ In many circumstances this would show no change from when the person joined the scheme. But in some circumstances, where there had been new information added, the short scheme record would only indicate that new information had been added, not what that information is. In such circumstances, the employer would probably then require to make a further request for a scheme record. In these circumstances, and to avoid delay, some employers may take the view that it is more straightforward to apply for a scheme record in the first place.

97. A number of organisations, including the GTC, the GMC and the SSSC made this point. The GTC, for example, in its written evidence, stated—

‘[…] It is recognised that for registration purposes in the future it may be feasible for GTC Scotland to accept a full scheme record obtained previously for another post or position together with a fresh short scheme record. However it would be simpler and cheaper to make the full scheme record available on line to regulatory bodies under a password code system proposed for the on-line disclosure request. This would provide all the up-to-date information instantly and hopefully at a greatly reduced cost to the scheme member in question’³⁹.

98. A similar point was made by the GMC—

‘Relying on a Scheme Record, which may only be updated every 10 years, may not provide adequate safeguards. The availability of Short Scheme Records does not fully address this problem as, if new vetting information has been added since the existing Scheme Record was issued, the organisation in question will then be required to obtain a full Scheme Record. This system is potentially complicated and time consuming. Organisations may find that in most cases the new information is less relevant to the role concerned. For example, minor road traffic offences or fixed penalty notices would generally be concluded by our Registrar at an early stage and not engage our procedures. The issuing of a Scheme Record to inform an organisation of this may not be the best use of resources. A more efficient system would be to allow certain organisations, including regulators, to have direct access to the information held by the CBU which would be included on a full Scheme Record’⁴⁰.

99. The SSSC also noted that—

‘All convictions are of interest to the SSSC even, depending on the circumstances, driving convictions. There is little point in knowing that there is new vetting information, if there is no mechanism for being told the content of the new information. This will mean for the purpose of registration with the SSSC, a Short Scheme Record would not be sufficient. […] In these circumstances the individual would require a Scheme Record. The Bill therefore does not address the current unsatisfactory situation where duplicate Disclosure Scotland checks can be required within a short period’⁴¹.

100. The Committee appreciates that there may not be a straightforward solution to this problem. Nevertheless, it considers that the proposals as currently set out in the Bill, while some improvement on the current situation, could do a lot more to speed up and simplify the process. The Committee therefore asks the Scottish Executive to look at this issue again, with particular reference to the suggestion that relevant employers could be given password protected access to full scheme records.

Definition of harm and inappropriate medical treatment

101. Some concerns were raised in evidence about the definition of harm. The Faculty of Advocates argued that—

‘In our view there requires to be some clarification of the definition of “harm”.  Harm may not always be relevant for the purposes of the Act.  One reading of section 93 might suggest that if someone regularly smokes near a child they may have caused the child “harm”. Persons who have an obligation to refer matters require to have a clear understanding of the type of behaviour which merits referral. The citation of examples of “psychological harm” in subsection 93(1) (b) are likely to pose problems of interpretation. It is important, in our view, that the definition in section 93 should give clear guidance as to the kinds of situations which would constitute “harm”. It might be considered whether the definition of “harm” in the Protection of Children Act 2003 should simply be inserted here’⁴².

102. The Scottish Social Services Council in its submission noted—

‘We have no difficulty with there being two lists and with individuals only being on one list. Our view is, however, that an individual listed on either list is not suitable for registration with the SSSC because they have been assessed as presenting a current risk to children and protected adults. 

‘It is vital that the SSSC is informed of listing on either list even if the individual is registered with the SSSC as a worker whose functions relate to the other group. When a Scheme Record is sought for registration with the SSSC, both lists must be checked, notwithstanding the category for which registration is sought. The nature of social service work is that it is undertaken with individuals within their family and social context. Therefore, for example, an adult psychiatric worker will work with children of service users who suffer from mental ill health and a child care social worker will work with the adult members of the child’s family’⁴³.

103. The Committee considers that the provision of updated vetting information on individuals is a key feature  of the new scheme and it will be essential to ensure a robust system of disseminating this information to all relevant organisations. Disclosure Scotland noted the importance of the exchange of information with all organisations, stating that—

‘[…] the continual updating of the information is the new feature. Obviously, it is a bit more problematic, as we have to devise a way of ensuring that the central barring unit receives information when it changes on the police system’⁴⁴.

104. This point was put to the Deputy Minister for Education and Young People, who, in a letter to the Committee, dismissed these concerns. He wrote—

‘The definition of “harm” in section 93 of the Bill is significantly more substantial than that in POCSA. The Executive does not consider that adopting the much briefer POCSA definition would assist in providing greater clarification to the meaning of “harm”.  […] The Executive considers that reading section 93 to include within “harm”, for the purposes of this Bill, the situation of an individual smoking near a child, would not be a reasonable interpretation of that section. In addition, any such interpretation would be likely to be disproportionate and possibly incompatible with ECHR and consequently the section would be unable to bear such a meaning’⁴⁵.

105. The Committee also notes that there appears to be no definition in the Bill of “inappropriate medical treatment.” The Committee accepts that the intention is probably to cover inappropriate behaviour such as sedating children or protected adults in order to make caring for them easier or to have fewer staff on duty, but considers that there is a danger, in the ‘risk-averse’ culture referred to earlier in the report, that adults might, in some circumstances, be hesitant about giving first aid to a child in the fear that they might be accused of giving inappropriate medical treatment.

106. The Committee notes the Scottish Executive’s position on the definition of “harm”, but remains concerned that the lack of clarity over this may have an impact on people’s willingness to work with young people and protected adults, because of concerns that they may inadvertently cause harm.

Questions on work and posts covered by legislation

107. Schedules 2 and 3 of the Bill set out details of regulated work, including activities, establishments and positions covered by the Bill, in the case of children and adults respectively. Under the Bill, the Scottish Ministers will have powers to modify these schedules as they think appropriate.

108. Many of the submissions to the Committee argued that more clarity was required in respect of the type of work to be covered by the legislation, or that there were potential loopholes which would allow people to work in certain posts without the need for scheme membership.

109. The EIS, for example, points out⁴⁶ that whilst Directors of Education are included at schedule 2, other senior education staff and quality improvement officers are not, although they are arguably more likely to come into contact with children.

110. In respect of the duty (in Part 3 of the Bill) to share child protection information, The Royal College of Paediatrics and Child Health Scotland (RCPCH) notes that although health boards are included in the list of relevant bodies in section 80, general practitioners, who in many instances regard themselves as independent contractors, are not specifically listed. RCPCH goes on to state that ‘care may be needed to avoid this being used as a potential loophole to obstruct the appropriate sharing of information’⁴⁷.

111. The Scottish Churches Committee, in its written submission, expressed serious concern over the fact that ministers of religion and priests will not be included within the scope of the scheme for protected adults.

112. The WRVS also expressed concern over the related point that its workers would not be scheme members because WRVS does not provide ‘regulated work’. Currently WRVS workers are subject to enhanced disclosure checks.

113. The examples above represent a small sample of the comments received on the general issues of work and posts covered by the scheme. The Committee considers that they raise fairly fundamental issues, and calls on the Scottish Executive to examine the specific questions raised, and the wider question of how to ensure that there as few loopholes as possible.

114. The Committee also recognises the importance of ensuing that all agencies, whether public, private or voluntary, receive clear guidance regarding which posts or activities should be included within the scheme, in order to avoid unnecessary applications and the creation of unmanageable workloads for both the organisations and the vetting and barring agency.

115. On a related point, the Subordinate Legislation Committee, in its report to the Committee noted that the proposed ministerial powers to modify schedules as ministers consider appropriate is ‘one of the most significant powers in the Bill’, and ‘unlimited.’ The Committee notes that the Scottish Executive disagrees that the power is unlimited, as any modifications must have sufficient similarity with the existing contents of the schedules.

116. Given some of the comments above, the Committee considers that it is probably appropriate for ministers to have this significant power, but it is also appropriate that the power is proposed to be subject to parliamentary affirmative procedure.

‘Overlap’ in ages of children and adults

117. A number of witnesses commented on the potential for confusion caused by the ‘overlap’ between adults and children in the Bill. Quarriers, for example, told the Committee in written evidence—

‘There is potential for confusion caused by the overlap between a child under 18 years old and a protected adult, aged 16 or over. For example, it is unclear to which list a worker should be referred if the person harmed, or at risk of harm, is 16 and or 17, and receiving services, ie they are both a child and a protected adult’⁴⁸.

118. The Scottish Child Law Centre suggested that—

‘[…] there is confusion about the 16 to 18-year-old age group. If an adult is defined as someone who is over 16 and a child is defined as someone who is under 18, people who are aged 16 to 18 will be doubly protected’⁴⁹.

119. Questioned on this issued by the Committee, the Deputy Minister for Education and Young people commented—

‘The age of majority is the cause of a lot of discussion. The ages of 16, 17 and 18 are used for all sorts of different things, probably because people do not suddenly grow up at the flick of a switch. The transition has to work with the types of organisation that we have to deal with. Again, we are more than happy to consider that issue afresh; it is not particularly a matter of principle for us. Rightly or wrongly, the decision was taken that there would be more advantage in fixing the age at 18 and keeping the overlap, because of the organisations that will be covered and that work on the fringes of different issues’⁵⁰.

120. The Committee believes that there is scope for confusion in respect of this ‘overlap’ and that there may be a case for 16 year olds to be classed as adults. The Committee therefore calls on the Scottish Executive to consider this again with a view to clarifying the definitions of adults and children.

Disclosure of information to regulatory bodies

121. Some of the regulatory bodies, including the GMC, GTC and the SSSC, argued that it was vital that they were advised of any changes to the scheme record of an individual for whom they are responsible for registration

122. The Committee accepts that this is largely an operational matter, but asks the Minister to respond to the points raised by the regulatory bodies and whether the sharing of ‘soft’ intelligence with regulatory bodies has any unintended consequences relating to personal privacy and human rights.

Foreign workers

123. The Policy Memorandum notes that ‘work is underway to secure the exchange of conviction information between [EU] member states’⁵¹.

124. Children in Scotland, in its written submission to the Committee, noted—

‘The question of foreign employees needs to be more thoroughly addressed if this system is to be meaningfully implemented, primarily because of the difficulty of gaining access to reliable, complete background information across international borders’⁵².

125. In acknowledging a similar point, Dundee City Council, added that the vetting scheme information was only a part of the employer’s recruitment procedures—

‘The employment of any person, from overseas or not, must rely on robust recruitment and selection procedures. The vetting and barring scheme and the checks that it will provide are one aspect of that. […] some people who may seek employment will come from states in which the checking procedures are not as effective and efficient as those in the United Kingdom. Large employers have to accept the evidence that is available via the scheme and the checking system as the best evidence available at the time, but we must ensure that our recruitment and selection procedures are robust enough to carry any deficiency that might exist in information coming from abroad’⁵³.

126. More detail of the work being done in respect of vetting overseas workers  was provided in oral evidence by Disclosure Scotland, who explained to the Committee—

‘When a foreign national […] is convicted in this country, the central UK notification unit notifies the […] authorities. Vice versa, if a Scot or UK resident offends abroad, we are notified. That scheme is to be extended to include intelligence and then to include employment disclosure. We are working with the EU.

The Home Office has arranged for the Criminal Records Bureau, our sister organisation in England and Wales, to carry out inquiries with other countries. The CRB has identified the countries from outwith the EU from which people most commonly seek employment. It has found that we get a lot of people from Australia, the Philippines and certain other countries, and it has negotiated with the authorities in those countries to try to get access to conviction information for disclosure purposes’⁵⁴.

127. The Committee welcomes the work that is going on to secure conviction information between EU member states and beyond. However the Committee remains concerned that, with the large number of workers entering Scotland from the EU accession states, there is a potential for unsuitable people to remain undetected. The Committee therefore calls on the Minister to set out, as far as possible, the steps being taken to minimise the risk of overseas workers not being identified as unsuitable for work with children or protected adults in Scotland.

IT issues

128. It seems clear to the Committee that if the proposed vetting and barring system is to work properly it will be heavily dependent on the IT systems put in place to support it. Although the current systems can presumably be built upon, the new system appears, on the face of it, to be a much more dynamic system with many more users.

129. Little information was available during stage 1 evidence taking on the status of the workstream to develop the required system. The Financial Memorandum commits a sum of £2m for IT development. The Committee questioned Brian Gorman of Disclosure Scotland on this. He said he was—

‘not an IT expert so I do not really know whether £2 million is realistic, to be honest’⁵⁵.

130. The Committee recognises that the development of the IT requirements is an issue beyond general principles, but nevertheless considers it so fundamental to the prospects of success of the proposals to be worthy of comment. Given recent history of IT procurement in the public sector, the Committee is slightly sceptical both about the £2m figure and the likelihood of a workable system being delivered in the required timescale. The Committee notes that the Finance Committee, in its report on the Financial Memorandum, was also ‘not convinced that the estimated costs will be sufficient’.

131. The Committee therefore calls on the Scottish Executive to set out further details of the work being done to ensure that the required IT systems are in place and fit for purpose when required.

Language

132. A number of witnesses raised the issue of the potential confusing term, ‘statement of barred status,’ suggesting that to lay observers this might suggest that the holder is barred, when in fact the opposite is the case.

133. The Committee calls on the Scottish Executive to consider whether a less ambiguous name can be found for the statement of barred status.

Part 3: Duty to share child protection information

134. The Committee notes that the provisions in Part 3 of the Bill do not form ‘part of the vetting and barring scheme, although, as the Policy Memorandum indicates, vetting information, information on a disclosure record and listing information could constitute child protection information for the purposes of this Part’⁵⁶. The Committee also notes that these provisions have not been subjected to the same degree of consultation as the rest of the Bill, although the development of the proposals was informed by three stakeholder events held in June 2006.

135. The Committee also notes that Ministers plan to issue, following further consultation, a code of practice to be used in addition to the legislative framework provided by the Bill (if enacted).

136. This section of the Bill proved to be one of the most controversial. Generally speaking the statutory organisations and groupings involved in the field were supportive of the provisions. Dr Helen Hammond of NHS Lothian, for example, told the Committee in oral evidence—

‘We particularly welcome part 3. To return to the needle in a haystack analogy, we regard part 3 as the way to find the needles without having to go through the entire haystack. It offers a better way to identify the children whom we need to help earlier, before the major crises evolve. As my colleague said, all the inquiries and critical incident reviews have shown us that we need to get better at sharing information.’ […] if we share information in the way that part 3 proposes, that will also help us to identify the adults who are a risk to children. Further, in many ways the intelligence that the police gather from inquiries and investigations into children's situations provides them with the ability to begin to identify those adults who are a danger to children in our communities. That goes back to that two-pronged approach to identifying people who are a danger’ ⁵⁷.

137. Allan Gunning of NHS Ayrshire and Arran added—

‘[…] If we can put in place effective information systems to make it easier for front-line staff to carry out their jobs in relation to the protection of children, that will be very much welcomed by front-line staff. That is probably where the emphasis should lie. There are many issues associated with part 3 of the bill that we might well come to, but the consistent messages that I get in feedback from front-line staff […] is that information systems are needed to make information sharing easier for people on the front line. If that direction of travel is supported by the bill, it will be very much welcomed within the NHS’⁵⁸.

138. Part 3 was also broadly welcomed by COSLA and by the professional organisations representing directors of social work and education. Many organisations made the point that although legislation may be required to enable information sharing in the first place, barriers to information sharing are largely cultural, and need to be addressed through training and awareness raising, which is helped by the current integrated children’s services agenda. Donald MacKenzie  of Dundee City Council told the Committee—

‘[…] In the jigsaw, the quality indicators framework and the standards framework are both emerging from the child protection reform programme, and there are multi-agency inspections by the services for children unit of Her Majesty's Inspectorate of Education. That work will have to be embedded within robust self-evaluation systems in local areas. The promotion of best practice must be one of our key responsibilities but, alongside that, some compulsion will be required to ensure that the information shared is appropriate. We have to be good at doing something with information once it has been shared’⁵⁹.

139. The General Medical Council, told the Committee that although it was ‘not against the principles or the notion of a duty’ it believed that the, ‘devil will be in the detail of the code of practice or the guidance that stems from the legislation’⁶⁰.

140. From the voluntary sector, Children 1st and Children in Scotland, called on the Committee to recommend to the Parliament that it should not agree to the general principles of the Bill. Children 1st indicated that it firmly believed that the proposals on sharing information belong in different legislation, along with reforms to the children’s hearing system and other planned legislation stemming from the Getting it right for every child⁶² agenda. Children in Scotland, reporting that it was not opposed to information sharing argued that, ‘the issue is so important that we urge you to separate it out and ensure that it is done right, not quickly.’

141. Scottish Women’s Aid was concerned that it might be obliged under Part 3 to share information which might compromise its ability to provide services to women suffering domestic abuse—

‘As we believe that the bill might have quite serious unintended consequences for many people who are in what is supposed to be a protected group, I must agree with my colleagues that part 3 should be deleted and its provisions subject to further consultation. We are concerned that, if that does not happen, much of the Executive's work on tackling domestic abuse might be undermined’⁶³.

142. The Children’s Commissioner argued that young people would not provide sensitive information if they thought that ‘it will be shared with a huge number of people on the ground of "harm", which is undefined and is a low threshold, and that those people will be required to share it with others,’⁶⁴ and concluded that—

‘Perhaps we ought to take stock, given how much has been left open. We are going to have to wait anyway for the kind of detail that will make it possible to implement the bill. Why do we not take that time to reflect on whether it is really the way that we want to go and take a broader look at the whole child protection, child welfare, safe, active, happy agenda, for which we are aiming?’⁶⁵

143. The Scottish Child Law Centre told the Committee—

‘Part 3 of the bill appears to rule out any right of a child to confidentiality. The word "consent" does not appear […] it means that adults can go ahead with or without the child's consent and disclose the information to child protection services, the health service, police or social work services. That is what grates with us. Children have rights […] yet it is as if we are running roughshod over those rights by saying that children will not even get to give their consent. They will not even have to be asked; there will just be a duty on professionals to go ahead and disclose the information. If an element of consent were built into part 3, we might be starting to get the mould right’⁶⁶.

144. The Scottish Child Law Centre concluded that—

‘We do not feel that the case for part 3 has been made convincingly. We are concerned that its wording is confusing and difficult to understand, and that it fails to meet the widely accepted criteria for good law. Leaving the detail not just of part 3 but of the entire bill to delegated legislation is not a good idea. As we have heard, and as has been said time and again, the devil is in the detail as far as the bill is concerned. The overall effect of part 3, if it proceeds in its current form, will be to cause widespread confusion and to overburden what is already a highly burdened system’⁶⁷.

145. Not all voluntary sector organisations, however, were opposed to the provisions of Part 3. Barnardo’s welcomed the proposals, saying—

‘Barnardo’s supports the general principle of placing a duty on relevant public bodies and organisations to disclose information when a child is at risk of harm and to cooperate with such requests. We also agree with the general power for any individual to disclose child protection information and placing Scottish Ministers under a duty to produce a code of practice to support information sharing for child protection purposes. Nevertheless we are aware that various concerns have been raised and it is the handling of these concerns that will determine how effective the information sharing measures prove to be‘⁶⁸.

146. The Committee has had a long-standing interest in child protection issues, and has long argued in favour of the integrated children’s services agenda. Only a few months ago, at the request of the Executive, the Committee scrutinised legislation which allowed the joint inspection of children’s services. This Bill, which contained significant provisions regarding information sharing, was the focus for considerable debate. The Committee notes that, unlike those in this Bill, the provisions related to the sharing of information on an anonymised basis for inspection purposes only.

147. The Committee notes that whilst most of the professionals working within NHS boards and local authority children’s, education and social work services appeared from the evidence to be broadly in favour of the provisions of Part 3, the majority of voluntary sector organisations and those representing children’s and young people’s interests had deep concerns.

148. The Committee recognises that in many of the previous cases where children and adults have come to significant harm, information was available which, had it been shared and acted upon, could have led to intervention which might well have prevented the ultimately tragic outcomes. The Committee acknowledges that Part 3 of the Bill is intended to ensure that child protection information is shared where it is appropriate to do so amongst relevant agencies which are in a position to take action to prevent such future tragedies.

149. However, the Committee has serious concerns with Part 3. Its proposals are fundamental, far-reaching and potentially life-changing for those upon whom they impact. The Committee accepts that the protection of children is a top priority but it considers that the issues involved are so complex and sensitive, encompassing the welfare needs of children and others who may have suffered harm and wider human rights concerns as well as. Whilst accepting the principle of appropriate information sharing in the child’s best interests, the Committee believes that further time for reflection and full consultation should be allowed.

150. The Committee believes that consultation on this aspect of the Bill has been insufficient.

151. The Committee recognises that an equivalent to Part 3 of the Bill is not included in the Safeguarding Vulnerable Groups Act 2006, and therefore is not required to ensure the coherence of vetting and barring across the UK.

152. The Committee agrees with many of the voluntary sector organisations which gave evidence, that Part 3 could also be included in the proposed legislation to reform the children’s hearing system and to develop the Getting it right for every child proposals, on which the Scottish Executive is already consulting. The Committee believes the risks involved in delaying the provisions of Part 3 of the Bill are outweighed by those associated with enacting legislation without going through the proper process of consultation and policy development.

153. In the meantime, the Committee believes that agencies can and should be reminded of the vital importance of information sharing by the issuing of a letter from Ministers to local authorities, health boards and chief constables.

154. The Committee concludes that Parts 1 and 2 of the Bill will, subject to caveats contained in this report, improve the current vetting and barring regime. Part 3, however, should be withdrawn from the Bill to allow time for proper consultation. The Committee recognises that it cannot be predicted what the legislative priorities of a future Scottish Executive will be, but believes there is cross-party support for urgent legislative reform of the children’s hearing system, and that this is likely to be a suitable vehicle for the provisions contained in Part 3 of the Bill.

155. The Committee therefore calls on the Scottish Executive to delete Part 3 of the Bill at Stage 2.

European Convention on Civil Rights

156. A number of witnesses raised concerns over possible non-compliance with certain articles of the European Convention on Civil Rights (ECHR). The Scottish Child Law Centre, for example, argued that concerns included—

‘[…] the provisions on consideration for listing and the decision to list; the bill's compatibility with articles 6 and 8 of the ECHR; the lack of sufficient appeal procedures in relation to part 2, which could lead to challenges under article 6 of the ECHR; and, finally, some of the bill's wording leads to questions about legal certainty and potential challenges under article 8 of the ECHR’⁶⁹.

157. Concerns were also raised over the limitations of the proposed appeals procedure, under which ministers must correct errors in a scheme record if they are satisfied that the information is inaccurate.

158. Many of the provisions of the Bill will be taken forward practically by subordinate legislation, which makes it more difficult, even for experts who have a deep understanding of ECHR, to come to a view on whether the Bill could face challenges under ECHR.

159. The Committee notes that the Scottish Executive considers that ‘the provisions of the Bill are compatible with those provisions in the European Convention of Human Rights (“the Convention”) which constitute “the Convention rights” within the meaning of the Scotland Act and the Human Rights Act 1998’⁷⁰ The Parliament’s Presiding Officer has also given his view that the Bill is within the legislative competence of the Parliament, a view which is required to have regard to ECHR compliance.

160. The Committee is not able to give a view, but considers it would be helpful if the Scottish Executive would explain the steps it intends to take to ensure compliance and minimise the risk of challenge as the provisions of the Bill are rolled out through subordinate legislation.

Report of Subordinate Legislation Committee

161. The report of the Subordinate Legislation Committee is attached at Annexe E. The Committee asked the Deputy Minister to provide a response to the Subordinate Legislation Committee report. The Deputy Minister’s response is attached within Annexe D

162. The Committee notes that there is a considerable amount of subordinate legislation associated with this Bill.

163. The Committee recognises that it is entirely appropriate for certain aspects of legislation to be taken forward by means of subordinate legislation, and is also aware that scrutiny of subordinate legislation perhaps reaches beyond the lead committee’s role in consideration of the bill’s general principles at stage 1. Nevertheless, it would be helpful if drafts of key aspects of statutory guidance and regulations could be made available for scrutiny at the same time as the bill itself, as it is often almost impossible to reach conclusions on the general principles of bills without at least some awareness of the more detailed operational information which might be gained from some suggestion of what guidance, regulations and codes of practice would look like.

Financial Memorandum

164. Standing Orders Rule 9.6.3 requires the lead committees to report on the Bill’s Financial Memorandum, taking into account any views submitted to it by the Finance Committee.

165. The report on the Bill’s Financial Memorandum by the Finance Committee is attached at Annexe E.

166. The Finance Committee’s report contains a number of robust criticisms of the Financial Memorandum, arguing that much of the information in it is confusing and assumptions are not clear. The report also suggests the Financial Memorandum gives rise to ‘confusion,’ that there is ‘no clarity’ on the costs involved, and signals the Finance Committee’s discontent that it is asked to scrutinise the costs of legislation ‘where significant financial information will be contained in secondary legislation.’ With regard to IT, the Finance Committee was ‘not convinced that the estimated costs will be sufficient’. The Finance Committee concludes that it is ‘not convinced that the Bill represents value-for-money,’ and also, ‘questions whether it has been properly costed’ and notes ‘that there appears to be such a level of disagreement over the financial implications of the Bill between SCVO and the Executive this needs to be addressed as a matter of urgency’.

167. These are serious comments. The Committee asked the Deputy Minister to respond to the Finance Committee report and the Minister’s response is contained in Annexe E.

Policy Memorandum

168. Standing Orders requires, also under Rule 9.6.3, the lead committee to consider the Policy Memorandum, including details of the consultation carried out by the Scottish Executive.

169. The Committee considers the Policy Memorandum to be generally helpful in setting out the policy intention behind the Bill.

170. In respect of the consultation carried out by the Scottish Executive, the Committee notes that consultation on Part 3 has been limited, but otherwise considers it has been acceptable.

Conclusion

171. The Committee is fully committed to child protection, and indeed has devoted a considerable amount of its time to that single issue during the current Parliamentary session. The Committee recognises this Bill is necessary to provide protection for vulnerable groups and to dovetail with the Safeguarding Vulnerable Groups Act 2006. In respect of the vetting and barring provisions, the Committee recognises that, despite the difficulties and concerns raised in relation to Parts 1 and 2 of the Bill in this report, the provisions will lead to a vetting and barring scheme which is better than the current one.

172. Some witnesses called for this Bill to be shelved and for the Protection of Children (Scotland) Act 2003 to be reviewed and amended. The Committee recognises that, ideally, it would have been helpful to have a comprehensive evaluation of the POCSA regime. However, the Committee does not believe this is a realistic option. Amendment of POCSA would still require primary legislation which could not be timetabled in the current session, and it would also be difficult for such an approach to allow for the inclusion of adults.

173. The Committee therefore welcomes the policy intentions of the Bill. However, the Committee would wish to put on record its view that the Bill, though important, is only a relatively small part of the overall drive to maximise the protection from harm offered to children and protected adults. Equally important is the drive to change the culture with regard to information-sharing and working together in the key organisations responsible, mainly in local government, the NHS and the police. Much work remains to be done to drive forward this agenda, There is a wider debate to be held on how we continue to change the culture and promote good practice and continuous improvement across all the agencies.

174. The Committee recommends that the Executive publishes a single source of information and advice for all employers and individuals on whom the Bill may have an impact in order to assist organisations and individuals to come to terms with the intricacies of the new legislation.

175. The Committee is also conscious that there can be no bold claim that the provisions of this Bill will put an end to the kind of tragedy which led to the need for it in the first place. The Bill, if passed, will help, but as the Committee’s stage 1 scrutiny has revealed, there are still likely to be opportunities which someone who is determined to harm children or protected adults can seek to exploit.

176. In respect of Parts 1 and 2 of the Bill, the Committee notes that some important issues remain to be resolved: the lead in time for existing employees, the cost of disclosure checks and the extent to which IT solutions can be found which will be capable of delivering the aspirations of Ministers. Flowing from some of those issues are some serious questions over the financial assumptions, as has been highlighted by the Finance Committee’s report on the Financial Memorandum. More robust information is required on the implementation time, and hence costs, the IT costs and the likely costs of individual disclosure checks. The voluntary sector has raised some serious concerns about the cost of implementation of the Bill’s provisions, and the poor and incomplete financial information provided in support of the Bill has made it very difficult for the Committee to determine the extent to which the voluntary sector’s concerns are justified.

177. The Committee considers that despite the limited time available, the Bill could have been presented with more sound financial information and at least some examples of the proposed draft guidance and codes of practice which are expected to be developed through secondary legislation. To allow the Parliament and key stakeholders to gain a clearer understanding of the operation of the Bill, the Committee asks that Ministers make drafts of guidance and regulations available for comment prior to commencement of its amending stages.

178. The Committee has previously stated its commitment to the integrated children’s services agenda. The Committee therefore acknowledges the need for the provisions contained in Part 3 of the Bill, which puts in place the legislative framework to enable child protection information sharing between relevant agencies, despite the children’s rights concerns of some witnesses. However, the Committee is agreed that Part 3 has been brought forward without the degree of consultation and debate which is essential for legislation on sensitive and complex issues, and which has the potential for life-changing impact on those affected.

179. This leads the Committee to conclude that, as mentioned earlier in the report, Part 3 should be withdrawn by the Scottish Executive, to allow further reflection and wider consultation to take place alongside the forthcoming consultation on the draft Getting it right for every child bill. As the Deputy Minister has acknowledged in his evidence to the Committee⁷¹, the Executive’s original plan was to include the provisions of Part 3 within that Bill, and the Committee considers that would indeed be more appropriate than including it without further consultation in this current Bill.

180. The Committee considers that the Parliament is likely to wish to satisfy itself that the important issues raised in this report have been adequately addressed by the Scottish Executive before it will be prepared to agree to the general principles of the Bill.

181. Subject to the production of and opportunity to comment on draft regulations, guidance and codes of practice on Parts 1 and 2 prior to Stage 2 and to the withdrawal of Part 3, the Committee recommends to the Parliament that the general principles of the Bill be approved.

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