 Rwy'n meddwl mlynedd i'n 27 ffasol y byddol yn 2017 flyn i, Llywodraeth, Roedd Gwm Fwrddianaeth, Lyn MacMin ac Ailsa. Rydym yn sicr ni'n ddweud i'r sgolno? Haena. Y ffordd roastu o'r Ffordd, Scotland ac Gwm Gwm Fwrddanaeth o'r pherau. Rhaid i gyd yn ddau cyfnodol o'r ddechrau ar hyn oedd y cyflodau y Llywodraeth, 4, 5, 6 oedol yn duddigol ac'r tyfnwys wedi leicoeddiaeth o'r Lystdagau S共edigol i Lywodraeth i Lywodraeth i Scotlun byl i MIACC. Y llwyddoedd o'r Lywodraeth i Lywodraeth i Ymgfaith Cymru i Lywodraeth i Llywodraeth i Lywodraeth, ac yn gwasanaeth gwybodaethau, roedd oedd i fynd i William Fyliciac 1997 a llwyddoedd o'r Llywodraeth i Llywodraeth i Llywodraeth 2007. 2007, Remedial Order 2018. Does the committee agree to take these items in private? So, move on to agenda item 2, which is the Draft Police Act 1997 and the Protection of Vomitable Group Scotland Act 2007, Remedial Order 2018. The proposed draft order is brought forward in response to the judgment of the Court of Session in the case of P versus Scottish Ministers, which found that certain provisions of the protection of vulnerable groups Scotland Act 2007 were incompatible with article 8 of the EHCR. It is brought forward under the general procedure for remedial orders under section 13 of the Convention Rights Compliance Scotland Act 2001. That section requires the proposed draft of the order is laid before Parliament for 60 days for comments, before a finalised draft is laid before the Parliament at a later date. Once again, we welcome Lynn McMinn, policy manager from Disclosure Scotland and Ailsa Haney, senior principal legal officer from the Scottish Government to the committee this morning. Do you have any opening comments, or should we just move straight to questions? Just go in for questions then. Can you explain why the Scottish Government brought forward this proposed draft order and how does it respond to the Court of Session's judgment in the case, which I've previously mentioned, of P versus the Scottish Ministers? The Scottish ministers have brought forward the order in response, as you said, to the case of P against the Scottish ministers. In that case, the Court found that the automatic disclosure of the petitioner's conviction was incompatible with his article 8 rights. Therefore, Scottish ministers are unable to act incompatibly and need to bring forward amending legislation in relation to the disclosure system. We consider that the order addresses the issues raised by the Court in P against the Scottish ministers. The Court, in that case, was concerned at the automatic disclosure of a conviction that was fairly old and which had also been obtained when the person was a child when he was aged 14. Therefore, the remedial order seeks to address those particular issues by providing for a right of review to a person with a disclosure of which contains an offence listed on schedule 8A to the police at 997. The list of more serious offences and the refinement that we are making will provide a right of appeal to make an application to the sheriff court to have a conviction removed if that schedule 8A conviction is more than 15 years old if the person was 18 at the age of conviction or after seven and a half years if the person was aged under 18 at the age of conviction. We consider that that addresses the two particular issues raised in P against the Scottish ministers, the age of the person at the time of conviction and the length of time since the conviction was obtained. Lynn, can you explain why you are responding to the court session's judgment by way of the remedial order process and why you have chosen to follow the general procedure? On the choice of a remedial order, we felt that that was the most appropriate way of responding to our court judgment, which identifies a specific defect. The Convention of Rights Compliance Act 2001 gives Scottish ministers powers to remedy primary legislation in circumstances such as those. The court gave us nine months in which to fix the defect, so it seemed to us that that was the most appropriate means of bringing forward legislation and allowing us to respond within that timescale, but using the general procedure so that there was an opportunity for a full consultation before any amendments to the primary legislation came into force. Can I put something to you that we receive from the Faculty of Advocates? They say, or just read it to you, that proposed changes partially address the issues of EHCR compatibility. However, the opportunity to seek an independent review of disclosure of serious offences on the basis of time elapsed since the date of conviction will not necessarily guarantee that the disclosure system is in accordance with the law and proportionate in every case. What would your response be to that? We have noted the Faculty of Advocates comments and we will review them along with other comments that we get in from the consultation. We believe that the provisions meet the judgment that Lord Penling gave for pay. We believe that, in so far as we can say, they do meet EHR compliance. We believe that the offences that we aim to disclose are so serious that they should be disclosed for 15 years or seven and a half years. We are trying to balance safeguarding, which is disclosure Scotland's fundamental position and job within the Scottish Government, so we are trying to balance safeguarding. Those individuals are applying to work with the most vulnerable in society along with the individuals' right to private life, and we believe that we have got that balance with the proposed provisions. There is no detailed response to that point, so you will come back to them. We have addressed the issues that were raised by the court in P against Scottish ministers. We consider that the provisions in the order will make the system EHR compatible. Ultimately, of course, it is only a court that we would then be able to determine whether or not the amended provisions are compatible. As Scottish ministers will respond to all consultation, there will be a consultation report published at the end of the review of the responses and sometime early December. You mentioned the consultation, so what responses have you received so far? What issues have been raised about the passability issue? To date, we have had 11 responses to the consultation, four have been from organisations, 11 have been from individuals. Three of the responses have raised concerns about the lack of information being disclosed on certificate. The seven of respondents overwhelmingly support the decision to allow an appeal mechanism for individuals with AA offences. The period of 15 years that I was chosen in this 2015 remedial order, can you explain why that period has been chosen and why the time period has been chosen in the proposed draft order and whether there are any different time periods that are considered? We considered that 15 years into seven and a half years were derived under the context of the current rehabilitation offenders periods for disclosure. We also looked at the CHS and how long criminal conviction history has been kept on the criminal history system. We believed that those were proportionate in the offences that were disclosing and are very relevant to regulated work in working with vulnerable adults and children and we felt that the time periods were appropriate. We looked at other time frames but we believed that those were the most appropriate time frames due to the nature of the work and the offences that we were looking at disclosed for those time periods. Under the 2015 order, there are a number of minor offences that do not get disclosed as soon as they become spent, so those are just the more serious offences that are related to regulated work. Do you have anything else to add? The periods of 15 years and seven and a half years reflect to some extent the periods that relate to schedule B offences. Schedule B in the police act 1997 lists serious offences but less serious than the schedule 8A offences. At the time that those provisions were introduced, we chose the periods of 15 years and seven and a half years after which the disclosure of those less serious convictions would not take place—the so-called protected convictions. The new provision in relation to the schedule 8A offences ties in to some extent with the provisions that relate to schedule 8B. It is to do with the Rehabilitation of Offenders Act periods after which convictions become spent. The longest period of rehabilitation under the Rehabilitation of Offenders Act 1974, for someone aged over 18, is 10 years. Therefore, if we chose a period of less than 10 years, then the conviction would not actually be spent before the person was able to be appealing. Therefore, we feel that the maximum 10-year rehabilitation period of 15 years is appropriate for the right to make an application for removal of the conviction. Since the 2015 remedial order, have there been any concerns raised regarding the proportionality of the 15-year time period? No, we have had no issues raised with us at all around that period. There has been no, nothing. On the issue of hard cases, the Scottish Government considered that hard cases fall very close to the line. Will they be adequately addressed by any proposed changes going forward? On the issue of hard cases, up to the 15-year period, it might be someone who is 14 and a half years down the line, or maybe seven and a half years down the line. It is close to the line, but it has not managed to go on at that point. In relation to the schedule 8A convictions, somebody who has no right to make an application for another six months. Wherever we draw the line, there will be a potential hard case that falls on the other side of that line. The courts have been quite clear that the Government is entitled to draw bright lines. The courts have also made it clear that it is not necessary to provide a right of appeal in every individual case. We feel that we have drawn the right line in the right place here. Potentially, there may be hard cases that fall on the other side of it, but if we draw the line at 14 years, we will have the same issue for somebody who has a conviction that he is 13 and a half years old. It is probably fair to say that the line has to be drawn at some point. There will be individuals who will just fall just a bit short, but at the same time, there has to be a level of consistency. This is where each individual case has to be considered on its own merits, but it could open up other challenges. Potentially. The courts have clearly stated that they do not consider it necessary in the disclosure system that there is an individual right of appeal for every single person who applies for a disclosure. We feel that the line can be drawn somewhere in the courts that is appropriate to have a filtering system. We are looking at the Schedule 8A offences, which are a list of serious offences. They were chosen at the time of the 2015 remedial order as being offences where they involved serious harm to victims, where there is a breach of trust, where there is violence, where there is such reckless conduct that would cause potential harm or actual harm. All of the offences in that list are offences in which someone is employing somebody to work in regulated work with children or protected adults, or to work in other professions or situations where higher-level disclosure is available. That type of behaviour is highly relevant for those disclosures, and where the conviction is not particularly old, then disclosure would be appropriate to protect the rights of vulnerable groups. I have a couple of questions on the level of certainty and relevance of conviction. A proposal draft order provides for an appeal to a sheriff against the disclosure of Schedule 8A offences based on the period of time that has passed since conviction. Did the Scottish Government consider providing for a right to appeal based on the level of a sentence imposed and on the relevance of the conviction to employment being sought? We considered whether there should be any other criteria included for the availability of the application to the sheriff, and we concluded that it was sufficient to provide for the application on the basis of the length of time since conviction and the age at the time of conviction. Again, that list in Schedule 8A contains serious offences. Therefore, if somebody receives a conviction for one of those offences, we consider that an employer or other organisation seeking a higher-level disclosure should have that information available to them. It does not necessarily preclude employment, but the employer should have that information available to them, given the nature of the conviction. Therefore, we decided that it was not necessary to make any specific provision regarding the length of the sentence or in relation to the relevance of the offence to the disclosure, because of those offences that are all specifically chosen as offences that are serious and involve certain types of behaviour, we consider that they are all relevant when somebody is seeking a higher-level disclosure. Would you consider that provision would be beneficial on helping to ensure the proportionality of the disclosure scheme? Would you consider that provision would be beneficial on helping to ensure the proportionality of the disclosure scheme? What type of provision do you mean? I thought we were talking about putting in the length of the sentence. Further criteria? Yes, yes. We are certainly happy to consider those kinds of comments, but when we laid the draft order, we were of the view that it was not necessary to make any additional provisions. One of the reasons for that is that we did note in the judgment in P against Scottish Ministers that one part of his judgment, Lord Pentland, discussed possible solutions to designing a disclosure system that would be more nuanced. He said in a quote from the judgment that there are other possible ways in which some greater element of flexibility might be built into the scheme as it applies to the type of conviction in which the present case involved, which was obviously a Schedulate A conviction. For example, provision could be made for a cut-off date for automatic disclosure of convictions such as the petitioners after the expiry of an appropriate length of time following the conviction, or there could be a derogation from automatic disclosure where the offence was committed during the offender's childhood and a suitable period has elapsed since then. He described those as options for a solution, and that is what the remedial order provides for. The cut-off point, after 15 years or 7.5 years depending on the age, allows the person to go to the sheriff for a review of whether the information in the disclosure is still relevant. We have addressed what Lord Pentland said in his judgment, and he set that out as possible solutions without setting out any further criteria. Obviously, those remarks are obityr in his judgment, but we have to take some guidance from what he set out in his judgment. The previous DPLR committee noted a number of concerns about the sheriff review procedure as it applied to Schedule 8B convictions. The committee's concerns related, firstly, to the perceived need for practical assistance for individuals in understanding and negotiating the sheriff review procedure, and secondly, to whether the sheriff review procedure has the potential to alert a prospective employer to the existence of a spent conviction information. Have any particular issues been identified with the existing system for appeals to the sheriff? We have had nothing specific raised to us about any concerns or issues around appeal mechanism. The numbers have been so small since the appeal mechanism came in. It is quite difficult to draw any concrete conclusions. However, we are part of the PVG review in the process of contacting individuals who have intimated that they are going to review to a sheriff to get some feedback on the procedure in the process and to see if there is any way that we can improve it or make it easier. You said that the numbers were small. How many? We have had to date 24 appeals since 2015, not on 8B offences. Thank you for that answer. I now move on to the transitional provisions and ask you the proposed draft order contains transitional provision dealing with the transition from the existing regime to the proposed new regime. How is it envisaged that these provisions will work and what considerations inform them? Do you mean transitional arrangements? Basically, operationally, we will continue processing applications up until the midnight on February 16 under the old regime. Any cases that are in the system and any new cases from February 17 will be processed under the new regime. We have internal procedures in place to deal with that. Jump back to appeals before you move on to your next question, Alison. The way that the system works is that somebody applies for a job that requires disclosure. The potential employer makes an application for disclosure. A form comes to the person who is applied for the job and they then appeal. That will cause a delay in the job application, therefore potentially alerting an employer to a potential problem. We have not had any issues raised about that. If an applicant states that they are not going to appeal, their certificate is released. In 90 per cent of cases, we are meeting our 14-day SLA in employer certificates being released to them. With regard to individuals, that is a discussion that they will have to have with their employers. Some of them may have already discussed their conviction history with their employer. Some of them may have shown their own certificate to the employer, but we cannot make any comment on that. We have had no feedback to say that there are any concerns relating to that. There are also a number of reasons why an applicant's certificate might be delayed. It might be that they have filled it in incorrectly. It is not necessary that they have intimated that they want to make an appeal. You are saying that there is not much of a delay in any case? It depends. If they take the appeal forward, it is down to sheriff's timescales. They cannot ask for an expedited hearing under the summary procedure, but with regard to the process and if they ask for their certificate to be released and they are not going to appeal, there is no delay. There could be other reasons why a certificate is delayed. In terms of enhanced disclosures or PVG scheme records, the police are asked for each one of those, whether there is what they call other relevant information. If there was to be other relevant information, sometimes that takes quite a long time to be processed, so that would be another reason. It would not necessarily be clear to an employer—it would not be clear to an employer—why a disclosure might not be received quite quickly. There would be a number of other reasons. However, once they go to the appeal, the appeals are taking many months to deal with, so it is difficult to know what employers think in those situations. As Lynne says, we have had no feedback, so we do not know what employers think in those situations. However, we have had quite a substantial number of notifications of people going to appeal and people do not actually appeal. Presumably, their job application is at an end. We do not know, but we do not have the information. We have no idea whether the fact that somebody has appealed and it has taken months to deal with, whether that has caused them to lose out on a job. We do not know that. There is no way of finding out. That is something that we are trying to do as part of the PVG review. We have started conversations with those individuals to try to get feedback and find out whether they are still in regulated work or what the impact of the appeal has been on them. Alison Johnstone I thank you for that help to expanding in that point. Going back to what I was asking about the transitional provisions, though, was I correct in saying that you were saying that up to midnight and one day you will be using one regime and then the following morning another regime? That is obviously deemed the better way forward. It seems quite harsh. You are aligned to be drawn, so do you just stop at five o'clock processing that bundle and then start that bundle under a new regime the following morning? We processed 24 hours a day in the Scottish Scotland. We believe that that is the best way forward. It also reduces the amount of backlog. We can just ensure that certificates are dealt with quickly and move through the process quickly. If we have a cut-off date, it is easier for us and it is easier for the applicants. Alison Johnstone I am not sure. I do not know where I would stand if I was an applicant and maybe hold it back a day or two. It is quite difficult, but it always has to be a cut-off point for the new provisions coming in to force. Again, wherever we draw that cut-off point, we are going to delay the process of that application. If they are waiting for that certificate for a job prospect, we felt that this was the best way to ensure that there was not a delay in the production of certificates, which individuals are requiring for jobs. Alison Johnstone There are around 1,000 applications a day. Alison Johnstone I appreciate that you have a volume, but to me it sounds a bit more— Alison Johnstone Whenever we were to hold it back for several days, that was several thousand people. Alison Johnstone I do not understand, but from individuals it really boils down to what I am hearing, the luck of the draw as to whether you are going to be processed under the new or old regime then come quarter to midnight on that evening, if you are 24 hours production? Alison Johnstone Yeah, yeah, basically. Okay, thank you. Alison Johnstone Okay. Alison Johnstone Right. Monica Thanks, convener. Good morning. The committee understands that the Scottish Government proposes to lay the required draft affirmative instrument, which makes connected changes to the requirement for self-disclosure of past offences under the rehabilitation of offender's legislation to come before the Parliament following the end of the initial 60-day scrutiny period for the proposed draft order. In order to assist the committee in scrutinising how the newly amended higher disclosure regime, including self-disclosure, is intended to work overall, would the Scottish Government be willing to share with the committee a proposed draft of this instrument during the initial 60-day scrutiny period for the proposed draft order? Alison Johnstone That was not something that we had considered at present. I would think that we would have to take that back and consider further whether we were in a position to provide a draft during the 60 days. I mean, our intention is that when the final draft remedial order is laid, it would be laid at the same time as the draft affirmative order dealing with the changes to the rehabilitation of offender's legislation, so that the Parliament, at that point, would be able to consider both pieces of legislation together and how they operate. However, we can consider whether it is possible to provide a draft. Thank you. I am sure that the committee will appreciate your offer to take that away for consideration. In the statement of reasons supplied with the proposed draft order, you referred to a wider review of the higher-level disclosure system. Are you able to explain more about the review and how it might impact on the changes being made by the proposed draft order? Alison Johnstone The review is taking place currently. The Scottish Minister has made a commitment to review the PVG scheme and the disclosure review in Scotland in general. The terms of reference were published in February this year, and it has been on-going. It has been a collaborative approach with a large number of stakeholders who have been involved. Any outcomes of that review and any changes to the legislation, if that is required, are unlikely to happen anytime soon. Any amendments that we are making to the legislation under this remedial order will also be looked at. Previously, we were looking at whether or not the appeal mechanism in place is working if it is appropriate. It is unlikely that, as I said, there will be any major changes to the disclosure regime anytime soon, so the impact immediately of the review on the remedial order is slim or non-existent. Just for clarity, when you say that it is unlikely, can you just explain why that is? Because we are still engaging with stakeholders to determine what amendments need to be made to the current system, if any. We are trying to work with, as I said, a wholly collaborative approach. We have been engaging with more than 300 individuals and organisations involved in the disclosure regime in Scotland. That includes individual members of the scheme, as well as organisations that use PVG. There is an awful lot of work. It would still have to go to formal consultation on any proposed changes that might come out of that review. It is just the length of time that it takes to go through the consultation process and then, if there were any changes to the legislation from the review, we would have to go through a bill process, which also takes time. Is that informal consultation at the moment? Yes, that is a pre-consultation consultation. We are trying to figure out exactly what we might want to change, if there are any issues with the current system before we go to formal consultation. How long will that dialogue with stakeholders run for? It has been running since January this year. We would hope to be going to formal consultation next spring of next year. Any members have any follow-up questions? Thank you very much for your time this morning and I will suspend the meeting briefly. Gender item 3, instruments subject to negative procedure. We have Council Tax Reduction Scotland amendment 2, regulations 2017, SSI 2017, 326. Those regulations make further amendments to the Council Tax Reduction Scotland regulations 2012 and the Council Tax Reduction State Pension Credit Scotland regulations 2012, which are the principle regulations. It is suggested by our legal advisers that the regulations raise a devolution issue for the same reasons as were discussed by the committee previously when considering the Council Tax Reduction Scotland regulations 2012, SSI 2012, 303 and the Council Tax Reduction State Pension Credit Scotland regulations 2012, SSI 2012, 319 and subsequent amending instruments. That is to say that the regulations raise a devolution issue as they may relate to matters which are reserved by section F1 of part 2 of schedule 5 to the Scotland Act 1998 in relation to social security schemes. It is recognised, however, that the Scottish Government takes a contrary view. Since September last year, a new exception 10 to the Social Security Reservation has given the Scottish Parliament powers to create new benefit schemes in areas of devolved responsibility where the requirements of the exception are satisfied, including that the new scheme must be funded by the Scottish Consolidated Fund. In relation to the Council Tax Reduction Scotland amendment regulations 2017, SSI 2017, 41, considered by the committee on March 7 this year, the committee suggested to the Scottish Government that framing a new discrete scheme could avoid the committee's concern. Were that scheme to comply with the requirements of exception 10, which I referred to earlier, the committee also highlighted that a new discrete scheme would have a further benefit of accessibility to readers if consolidated regulations could be produced. The principle regulations are well in need of consolidation, as this is the 12th amending instrument. The Cabinet Secretary for Finance and the Constitution wrote to the committee on 4 October, in which he undertook to be in touch in relation to the potential to consolidate the principle regulations and to update the committee on that issue in the next few months. Do members have any comments? No. Firstly, does the committee wish to draw the regulations to the attention of the Parliament on reporting ground F on the basis that they raise a devolution? Yes. It has been a well-documented issue in this committee. I disagree with the question that has been posed by yourself. I think that there is not a devolution issue. I wish to advise members that they intend to vote in accordance with the advice that those issues raise a devolution issue. In the event of a tied vote, I will use my casting vote in the same manner. Does anyone else have anything to say? The proposition is that the committee considers that the regulations—sorry, Monica, I missed you. Sorry, convener. I had my hands up, but I know you didn't notice. It was just to add my agreement with the position that you are taking. For me, the legal advice is important. We have to make sure that the legislation is competent because it does an end-of-day effect. We want people to be able to claim what they are entitled to and we do not want there to be any challenge to that. I am concerned that the legal advice has not been fully taken on board by the Government. I will move to the proposition. The committee considers that the regulations raise a devolution issue and should be drawn to the attention of the Parliament on that basis. I would say that we agreed, but we are obviously not all agreed, so we will move to a vote. Those in favour of that proposition, if you could raise your hands, and those against. That was three to two in favour of that proposition. Secondly, does the committee propose to seek an update on the consolidation of the principle regulations when the Minister for Parliamentary Business attends the committee in December to respond to issues raised in the committee's annual report? The Council Tax Reduction Scotland Amendment No 2, Amendment Regulations 2017, SSI 2017357. The instrument makes a specific amendment of the Council Tax Reduction Scotland Amendment No 2, Regulations 2017, to fully implement the policy intention underlying those regulations. SSI 2017326, which we have just considered, includes amendments to the Council Tax Reduction Scotland Regulations 2012 to enable income from the new bereavement support payment to be disregarded when calculating an applicant's level of council tax reduction. SSI 2017326 was laid on October 6. The Scottish Government has explained that, shortly after that date, it was identified that the regulations did not fulfil the policy intention that income from bereavement support payments should be wholly ignored in the Council Tax Reduction scheme when calculating an applicant's income, so unless SSI 2017326 was changed, it would have the effect that only £20 of someone's bereavement support payment was disregarded rather than the full payment. SSI 2017357, now being considered, addresses that issue. This aims to ensure that the original policy intention is met so that income from such support payments is disregarded in full for those of working age for 52 weeks from the date of the first payment. Our legal advisers make the same suggestion as for SSI 2017326, by which I mean that they consider that the regulations raise a devolution issue, as they may relate to matters that are reserved by section F1 of part 2 of schedule 5 to the Scotland Act 1998. Again, it is recognised that the Scottish Government takes a contrary view. Does the committee wish to draw the regulations to the attention of the Parliament on reporting ground F? That is that the regulations raise a devolution issue for the same reasons that the committee has previously considered. Stuart? Once again, I will disagree with that recommendation. The proposition is that the committee considers that the regulations raise a devolution issue and should be drawn to the attention of the Parliament on that basis. All those in favour of that raise your hands. Those against? That is carried 3 to 2. Furthermore, the regulations were laid before the Parliament on October 25th and come into force on November 19th. They do not respect the requirement that at least 28 days should elaps between the laying of an instrument which is subject to the negative procedure and the coming into force of that instrument. As regards its interests in the Scottish Government's decision to proceed in this manner, the committee may wish to find the failure to comply with section 28 to be acceptable in the circumstances. The reasons for doing so are outlined by the Scottish Government's local government and communities directorate in its letter to the presiding officer of October 25th. Does the committee wish to draw the regulations to the attention of the Parliament on reporting ground J as they fail to comply with the requirements of section 28 to of the interpretation and legislative reform Scotland Act 2010? Moving on to the next instruments on our agenda, no points have been raised by our legal advisors on SSIs 2017 342 343 344. Is the committee content with these instruments? And now move the committee into private session.