 I welcome everybody to the third meeting of the Education and Culture Committee in 2016, and I can remind everybody to ensure that all electronic devices are switched off. Our first item is to decide whether to consider our work programme in private at our next meeting. Are members agreed? Yes. Thank you very much. Our next item is to take evidence on two pieces of subordinate legislation as listed on the agenda. I welcome to the committee Angela Constance, Cabinet Secretary for Education and Lifelong Learning and our accompanying officials. After we have taken evidence on the instruments, we will debate the motions in the name of the Cabinet Secretary at items 3 and 4. Officials, of course, are not permitted to contribute to the formal debates. Can I invite the Cabinet Secretary to make some opening remarks on both instruments? Okay, thank you, convener. I am grateful to the committee for allowing me to come on to this morning's meeting to contribute to your discussions about the Draft Rehabilitation of Offenders Act 1974, Exclusions and Exceptions Scotland, amendment order 2016, and the Police Act 1997 and the Protection of Vulnerable Groups Scotland Act 2007, remedial order number 2, order 2015. I would like to thank Parliament, the committee officials and business managers for the support and timetabling Parliament's consideration of these orders. Members will recall that the Government and Parliament reformed Scotland's state disclosure and self-disclosure regime on 10 September last year. The procedure for the remedial order that took forward the state disclosure aspects of the reforms required that stakeholders be given an opportunity to make written observations on it. We invited stakeholders to do that on 11 September and the opportunity to do so ran until 24 November. 28 responses were received and the responses were broadly in favour of the reforms that we had put in place. Ministers were also required to take account of observations received, publish a statement responding to them and indicate if we intended to make further changes. The Government's statement has been laid in Parliament. It addressed the comments received and set out the modifications that we proposed to make. The modifications are in the orders that we are discussing today. The underlying principle behind the September reforms was to put in place an appropriate system of state disclosure and self-disclosure reflecting on the relevant UK Supreme Court decision in this area. The reform system put in place in September meant that individuals should no longer have to self-disclose and the state disclosure Scotland should no longer disclose certain spent convictions remains. The revised orders refine those arrangements but do not make fundamental changes. It might be helpful to briefly remind members that both orders contain two lists of offences. Those lists are identical in both orders. One list is a list of offences that requires always to be disclosed through state disclosure and self-disclosure. That includes, for example, rape. The second list is a list of offences that requires to be disclosed subject to application of certain rules. That includes, for example, assault. The key changes in the two orders before the committee are that a number of offences have been added to the two lists of offences contained in the orders. Some offences have been moved between the lists in the orders and the time allowed to take forward an application to the sheriff for removal of a spent conviction from a disclosure has been reduced from six months to three months. Members will recall that both orders operate in tandem, so it is necessary to amend earlier orders to ensure that state and self-disclosure continue to be aligned. If Parliament approves the orders, the original remedial order will be replaced in its entirety, though the vast majority of content remains the same as before. In addition, the two offences lists and the rehabilitation of offenders act 1974, exclusions and exceptions in Scotland order 2013 will have amendments made to them. I wrote to you in the 24 September following evidence that the committee took from officials about the reforms that I replied on 6 December. I hope that letter satisfactorily answered members' questions. Once again, I want to put on record my thanks for Parliament's assistance in taking forward these important reforms and I look forward to answering any questions. Thank you very much, cabinet secretary. If members wish to ask questions, please indicate, but I'll kick off if you don't mind. We've had a number of submissions, cabinet secretary, about these orders, but can I begin with some questions from the Scottish Council of Jewish Communities? As you'll have noticed from the submission, I've got a number of areas that they've got some questions and concerns with. The first one was about the date from which the notification period should be counted. What is the state is that there is an inconsistency in the way that this is laid out in the orders. 3, 4, 116 ZB3A states that an individual is allowed 10 working days beginning with the date of the issue of the certificate. However, 4, 5, 52 A3A states that the relevant period will be 10 working days beginning with the date on which the scheme record was sent to the scheme member. That sounds inconsistent to me. Which of those is it? Or is there a reason why there are two different descriptions of when the 10 working days begins from? There is a complexity to this, so I will ask Ailson in particular to be clear about that. There is a different wording. The 10 days, though, is counted from the date that the disclosure is issued and sent out to the applicant. The date of issue and the date of sending out are the same. The date of issue and the date of sending out are always the same. 100 per cent of the time, you can guarantee that no certificate is issued, for example, late on a Friday afternoon, but not posted until Monday. Issued means the point at which it leaves disclosure Scotland. It is issued and sent are the same thing. We have, of course, no control over how long it takes for the item to be delivered. I will come on to that in a second. I am not quite sure why you use two different sets of wording to mean the same thing. The wording is different simply because the parent act, the primary legislation in the police act and the protection of vulnerable groups act is different. Consistently, through the PVG act, the wording is sent to an applicant, whereas in the police act, the wording is consistently about the issue of disclosures. If we had tried to use the same wording in both acts, we would run the risk of confusing what is meant in each act with sent issued. Our view is that issued and sent mean the same thing. It is when disclosure Scotland has exercised its function and issued the disclosure to the person. Until it goes out of the door, disclosure Scotland in terms of the police act has not issued a disclosure because it has not fulfilled its function. The 10 day working days begins at the point at which it leaves the building. How would the individual who receives this several days later know when the clock started ticking? How would they know when the 10 days started? Is the day of issue, in other words, the day that it leaves the building? Is that day 1 or is it another day? Is it the following day? The day that it leaves the building is day 1 of the 10 days. In practical terms, if it is posted out in the evening on a Friday evening, that is day 1. If the individual gets it on the Monday, that is day 2. That is day 2, because it is 10 working days. If it is a public holiday, they get it on the Tuesday, so is that still day 2? That is still day 2. How would they know that they are on day 2 if they got it on the Tuesday? There is terrible information that is sent to the applicant from Disclosure Scotland, and I do not have the exact wording in front of me, convener, but there are efforts made to inform applicants of their rights and, in particular, of their rights to appeal matters to a sheriff if they so wish. No, I understand that. What I am asking is, if I am waiting on this coming to me and it arrives through the post, and I go home this evening, it is there, how do I know how long I have got, how much of the 10 days I have got left? The certificate itself will have a date on it, which is the date that the certificate was, that the disclosure was concluded, if you like, the disclosure process and the date that the certificate is printed. That date will always be a date in advance of the day that you receive it, obviously, because there is time taken for it to be delivered, but it will give the applicant an indication of when that 10 days started. An applicant could assume that 10 days started the day after the date on the certificate. I want to go through that carefully because, of course, the people's lives and employment prospects are at stake. If it is printed with a date on it on a Friday, it can assume what? If it is printed with a date on it on a Friday, it would not be posted until the Saturday, because it is never printed on the same date that it is printed, so it would not be posted until the Saturday. If it was delivered on the Monday, that is the part that we have no control over, which is why we cannot specify exactly when the 10 days start, but if they received it on the Monday, they would know that the 10 days had not started until the day after the print date. No, you can say categorically when the 10 days start. You just did a moment ago, you said the 10 days start when it leaves the building, but as the recipient of that, how do I know how many days I have left? I do not want to make an assumption, I want to know exactly when my 10 days is up. The best way in which for you to be able to know would be to contact Disclosure Scotland and ask us, ask a CLT team specifically to tell me when the 10 days will be up, but I do not see how we can put that on the certificate because we would not... I am asking you, as an individual who is sitting in their home and receives one of these certificates, knowing that they have a 10 day working day period to appeal to the sheriff? No, no, attend a working day period to notify Disclosure Scotland. Sorry, slip of the tongue. To notify, it would be nice to know that I know for certain when my 10 day period is up. Is that not reasonable? It is reasonable, convener, and Disclosure Scotland, following the action that we took in September, certainly updated their website and there is information that goes out with the certificates. There are also dedicated customer service officers as well who answer telephone inquiries and email inquiries where people need further clarity. When you send it out, does it say, if you want to know when the 10 days is up, contact this number? It says, if you want to notify us of your intent to appeal, you must do that within 10 working days, there will always be a date on the certificate that gives the applicant an indication of when that 10... No, you said that before. It does not tell them when the 10 days is up, though, does it? It does not. No, and I am asking you whether or not you tell people when. If you want to know when the 10 days is up, you have to contact us. We do not specify that. You do not specify that in the insert. Do you think that that is an issue? I think that that is an issue. The evidence so far would suggest that it may not be because we do have people notifying us within 10 working days and people notifying us within plenty of time within that 10 working days, but there may well be other people who, for whatever reason, have not come to their certificate early after it has been received and may not know that they are still within the 10 working days. Why did you choose a period of 10 days as a notification period? You have just stated that, of course, you do not know when, how long it would take for it to arrive at an individual, how long the post takes, depending on bank holidays, Christmas posting and all the rest of it. Why did you choose 10 days? We chose 10 days because we thought that that was a reasonable period of time in which to allow people to notify us, given that these certificates have generally been requested for employment purposes and because we are withholding the counter-signatories copy of the certificate until that period of time for notification has passed. We felt that 10 days was a sufficient period of time in which to withhold that because that holds up the employment decision. What would happen if somebody was on holiday? They would miss the 10 days. Is that reasonable? We have to draw a line in the sand, but if somebody is away on holidays for a month, does that mean that we allow a month? I think that that is rather facetious. Most people go on holiday for a week 10 days or 4 nights. If you chose 20 days as the period, you would catch 90 per cent or 99 per cent of the people who even went on holiday during that period. I do not know many people who go on a month's holiday, but perhaps you do, but is it reasonable that if somebody is on holiday, they miss the 10 days and they are right to indicate that they wish to appeal? We felt that 10 days was a reasonable period of time. That was not my question. I would say that it is reasonable. If somebody is on holiday and they come back and they find this and they are missed 10 days, is that it? They have missed their right to notify that they wish to appeal? Do you think that that is reasonable? I think that if you are applying for a protected post to certain positions in financial services, a solicitor, accountant, a doctor, a social worker or other posts where you are working with vulnerable children and vulnerable adults, you will be well aware of the importance of the disclosure process and you will be alert to any potential issues in your own background, so taking in the round, I think that it is reasonable. If somebody has a holiday booked and a job is advertised and they apply for that job, they have to go through the process. The fact that they happen to be on holiday should not be a reason why they are then disadvantaged. They will know if there is something in their background that is likely to be disclosed. You know if you have a previous conviction or not, don't you? You do, but you do not know that a job is about to be advertised that you wish to apply for when you have a family holiday book, do you? You apply for a job, you get an application form in that and it kicks off a process. When you apply for the job, you will be aware of the obligations in terms of high-level disclosures. What I am not understanding is why, if I have a family holiday booked and in advance of that family holiday, a job comes up that I wish to apply for, knowing my background in this case, for example, why the being on family holidays should disadvantage me in the application process? If you were concerned that you were going to be out the country, for example, and I accept that people do indeed go on holidays, it is not unreasonable, but if you know that you are going to be out the country when correspondence is likely to come from Disclosure Scotland, people make all sorts of arrangements prior to going on holiday if they expect an important post. It would be open for people to discuss their concerns with Disclosure Scotland prior to going on holiday. If I was going on holiday in such an eventuality, could I notify you in advance of receiving your correspondence that I would wish to, perhaps, put in such an appeal? You could notify us. A better course of action, though, would be to discuss that with the person who is countersign in the application form and speak to them about the correct point or the most desirable point at which to submit the application. Do you have to fill that application form in first, and it has to go to the employer? The employer has to consider that whether they are going to employer or not. Now, what period of time that might take, how many applications the person has got, and then the registered person has to make a decision whether they actually want to undertake that because there may be an interview process. It might take longer than two weeks from the point that the person sees the job to actually do that. At what point? The key thing there is to talk to the employer and say, I am taking a holiday, I have applied for this job. Is there any flexibility around when you are likely to interview me? It is not just about the disclosure of Scotland, it is about the relationship with the person who is going for a plan for the job and going on holiday to have that discussion with the employer. Surely that is important as well. It is all important. I am just trying to make sure that individuals are not disadvantaged unfairly. That is why I am asking the question. Chick, did you have a… Sorry, did you indicate you wanted a question? No, I want to ask a question about the list of offences. That is a separate issue. Can you confirm, cabinet secretary, why there does not seem to be a process to allow an individual to indicate that they have changed their mind after they have indicated that they wish to appeal? Or that they may wish to appeal to a sheriff within the 10 days, and they decided then after that period that they decided that they will not appeal. Okay, I am going to ask Diane to answer that. If an applicant notifies us within the 10 working days that they intend to submit an application to a sheriff, they receive an acknowledgement email from Disclosure Scotland, which sets out the steps that they need to go through and the implications of those steps, which reiterates the information that they have already been sent. But the person can then notify us within the 10 working days that they want to withdraw their intention, the notification of the intention to appeal. If they do that within the 10 working days, we will withdraw that notification and the counter-signatory copy will be sent out. If they do not do that within the 10 working days, then it is correct that there is no provision for the applicant to withdraw their notification of intention to appeal. The purpose of that was because we did not feel that we could cater for every possible eventuality of people changing their minds and the point at which people might change their minds. I intend to apply to a sheriff and we would not send out the counter-signatory copy. If they then came back to us three months later or four months later and said that they have changed my mind, we would then be required to send out the counter-signatory copy potentially to no purpose. If an individual is applied, it is notified that they intend to appeal within the 10 working days and then they change their mind. First of all, I will take the case that they decided to inform you within the 10 working days. Did they have to inform you? That they have changed their mind. Yes, they have to inform us in order to authorise us to send out the counter-signatory copy of the certificate. How would you know if they had decided to not said it to appeal? If you received nothing back, would you just sit for the three months then and wait? If they did not notify us that they had decided not to, we would not know. Why have you not put in place a provision that tells people that they must inform you that they are withdrawing? We did not feel that that would be an approach that we could enforce. Section 33 of the Protection of Vulnerable Groups Scotland Act 2007 makes an offence for individuals not to notify disclosure Scotland of certain changes in circumstances. Wouldn't the same sort of rule have fitted here? I do not think that we could have created a new criminal offence. Sorry, I have just read out to you that section 33 of the Protection of Vulnerable Groups makes it an offence for individuals not to notify disclosure Scotland of changes in circumstances. Why have you not done the same thing here? Section 33 applies only in relation to circumstances that are listed and any other circumstances that we have prescribed. That is in relation to a process when ministers are considering to list someone. Section 33 does not apply to part 2 of the act, which is about the disclosure process. It was a general point, not about the specific. Given the fact that there is an offence for individuals not to notify disclosure Scotland of certain changes. Yes, but we could not have created a new criminal offence in the context of the remedial order. No, I know that. I am asking why it was not done in general. Why would you not put that in place to ensure that individuals had to inform you of the change in circumstance? Given that you have done it elsewhere? Well, that was done in primary legislation, the offence provision. No, I understand that. I am asking a general question about why it was not done in this circumstance. We have no powers to do it in this circumstance, to make a criminal offence. No, you are obviously misunderstanding me. Given the fact that you have done it before, using primary legislation, I accept. I am not suggesting for a moment that you could do it through the secondary legislation that we are discussing here today. What I am asking you is why, in one set of circumstances, would you create an offence for individuals not to notify the disclosure Scotland of changes in circumstances, but not do it in this case? I think that the requirement in section 33 is quite different in that the person that is being considered for listing is therefore important that disclosure Scotland, as it considers the person for listing, is aware of changes in address. My recollection is that we haven't prescribed any other circumstances in which they have to notify us. Could you accept that you could have done it? I am not quite sure. I don't see how we could have made it or perhaps made a requirement that somebody notifies us, but it would have been unenforceable then, because we can't make it a criminal offence in this context. Is section 33 unenforceable? No, section 33 is not unenforceable, but it applies in a completely different context. I am not sure what the context has to do with it, frankly. However, if I am not going to get anywhere with that, I will move on to my final question. The job description in terms of what has to be put on the application form for a scheme record you have to put your job title down. That's correct, isn't it? Yes. The job title has, as I understand it on the form, a set of 64 characters long boxes. If somebody puts down a particular job as a youth football coach, in what way does that allow the sheriff to decide whether or not a previous conviction should be disclosed or not disclosed? Or, in fact, how would you decide if it says that you are a youth football coach? With regard to how disclosure Scotland would decide, we have no discretion over what is disclosed in terms of what is in the list. The fact that somebody has put youth football coach makes no difference to the offences that are on either schedule 8A to always be disclosed or 8B to be disclosed subject to rules or not on either of those lists because we determined in the legislation that the offences on those lists are relevant to all types of roles for which a higher level disclosure is required. If somebody had previous road traffic convictions under section 103 of schedule 8B, how would you know whether or not they should be allowed to not have those disclosed if the job is youth football coach? If they are on schedule 8B, the rules within the order determine that they should be disclosed because they ought to be of relevance to the consideration of employment for a role that requires a higher level disclosure. If the person is applying for that job and the job does not involve any driving for a youth football coach, and another job is youth football coach, but it does involve driving, how would you know? The list of offences is not a correlation between different types of jobs and what may or may not be disclosed when. The issue is whether a crime is in relation to dishonesty, whether a person has been in a position of trust, reckless behaviour and the policy document details principles that have informed the two lists. In devising the two lists, the policy note talks about where people are going into positions of trust, positions of authority, and where we would be interested in offences that relate to recklessness or serious harm. If someone is in dispute with that, if an individual feels that a previous offence that is currently listed in 8B, they can then take that to the sheriff. The sheriff will draw on all the resources that sheriffs do in deciding what is reasonable and how to apply the law, and case law will come forth with. What information beyond the job description would be available then? If it is regulated work with children and falls under the Rehabilitation of Penis Act Exclusion and Exceptions, or just schedule 4, then a high-level disclosure will be required. In the past, all spent convictions would be disclosed because it is regulated work with children, and therefore you need a PVG check. Now, schedule 8B or A1 will always be disclosed. However, the B1 or AB is the one that is subject to rules. If it is under 15 years and you had a conviction when you were over 18, then it will be disclosed if it is on those rules lists. If it is admonished, it would not be, if it is an absolute discharge, it would not be once spent. However, as the cabinet secretary has said, the person has a good opportunity to say, well, that thing that I had is not relevant to this specific thing, even though the rule says that it has to be disclosed because it is part of the rules, and the exceptions order says, the job that I am doing is regulated work, the sheriff can consider the circumstances of that person and say, well, we do not want to disclose it and then it will not be disclosed. Right, so the relevancy is the question here, so in terms of the individual making the application. The relevance is whether it is a job that is excluded from the protections under the Rehabilitation Offenders Act by the Rehabilitation Offenders Act exclusion exception Scotland order, and the key thing that kicks into PVG is schedule 4, which talks about either regulated work with children or regulated work with adults, and if the employment falls under those, then high-level disclosures are required. There is other employment where you have a standard enhanced disclosure rather than a PV disclosure, so it is exclusion of the exceptions order that disapplies the protections that allows disclosure of spent convictions to be allowed. So in the example I gave of somebody putting down youth football coach, it does not involve driving but they have a previous road traffic offence, could they apply it to have that effectively not disclosed? Well, depending on the circumstances of what the offence was and what the driving offence was, if the driving offence was so serious that it was over two and a half years, it would never be spent, so it would always be disclosed. If it is offence that is in the rules list, but it is under 15 years, then it would be disclosed, but the person is right to appeal it. If they were under 18 at the time, it would be six, seven and a half years. If they were admonished for the thing that they did, then it wouldn't be disclosed once spent. If they had an absolute discharge, it wouldn't be disclosed once spent. Okay, so my question is on what that is. Does that specific jaw title fall under the PVG rules as a result of regular work with children? If it does, then high-level disclosure is required. The person is obviously got the right, if it's not, if it's on the rules list to appeal it to the sheriff and the sheriff can make that decision. That was my question, so they can appeal it in the circumstances. I will follow on from that. Given that the School of Scotland can determine whether a subsequent scheme record application has been made for the same purpose for which the application for the other certificate was made—in other words, another youth football coach and another employer—how would you know that the job description effectively was the same in both cases? The application for a scheme record is in relation to the type of regulated work, not the purpose of each individual disclosure for it. It's for the type of regulated work that the appeal provisions operate for PVG, the Police Act. The provisions are slightly different. I just want clarity on this. If an individual applies, under the previous circumstances, the appeal, because of a road traffic act violation and, therefore, that conviction, sorry, is agreed, they don't have to disclose that particular one, then they apply for another job, a different job, which has got exactly the same job title. Does the School of Scotland can affect the rule that is made for the same purpose? How would the School of Scotland know that the second job had a different job description involving other activities, for example, driving the children round that the first one didn't have? So what you're saying, convener, if a sheriff has ruled that an offence is not disclosable in the first set of circumstances, does that apply forever? Does that then mean that the disclosure of Scotland can never— Well, not forever. If somebody applies for the same job title, but it just happens to be that in the second job, driving is part of the job. I think that the same job title is a bit misleading, because, as Nigel says, it's not so much the job title, it's whether the job is regulated and protected. I'm asking how you would know. How would the School of Scotland know? The School of Scotland doesn't know the details of each individual job that the person is applying for. They are looking to see whether the job falls within the scope of regulated work, and that a football coach would. In relation to the appeal provisions, if somebody had appealed against the disclosure and the driving conviction was removed from the disclosure in the appeal, that would be removed from their PVG scheme record in relation to the type of regulated work that they had applied for. So, if it was regulated work with children, their scheme record in relation to regulated work with children will have that driving conviction removed. Irrespective of what substance is going on in the job today, it would always be removed. It would always be removed, because it relates to the type of regulated work. That is why the list of offences covers various types of offences, because it applies across the ambit of regulated work. So, it would always be removed, irrespective of the fact that the first job, there was no driving involved, no driving children around, but the second job did involve driving children around. Won't you just have to consider convictions for insurers, driving convictions until they are spent for five years? If you get fined and endorsed, that will be spent within five years. They don't, insurers companies don't. So, in terms of if you are looking for, is it right that someone who is driving a job, won't insurers companies obviously think that one is a conviction spent? Sorry, no, no. I want to go back to my question, which is nothing to do with insurers companies, but it's too good of the fact that if it is ruled that that conviction does not have to be disclosed. I'm asking you, and I asked the question, would it be permanently that would be the situation? The answer was yes. So, I'm asking you whether or not you think it's reasonable that in the first job application, which was doing the job, but no driving was involved, no driving of vulnerable groups or children or anybody else, but in the second job, driving was involved. If I'm correct in the interpretation of what the reply was, the previous driving conviction would not be disclosed in either circumstances. That's right. It couldn't be disclosed because the sheriff has ordered it to be removed from the person's scheme record in relation to regulated work with children. The sheriff in making that decision to remove the driving conviction from the record has to be satisfied that the driving conviction would not be relevant, not to the job that the person applied for at that time, but to the type of regulated work in which they participate in the scheme. So it's a matter for the sheriff to consider when he or she is looking at actually removing something from someone's record, that if someone is at the moment not doing a job that involves driving, but at some point in the future could be doing regulated work with children that involves driving, then the sheriff has to take that into account in making a decision. So the sheriff will take all possible future circumstances? He would have to because the sheriff is required to remove the conviction from the scheme record. So the sheriff is then aware that that conviction is being removed for all time coming from the record. The test is higher than it's just simply the job in question. That's helpful, thank you for that. Yes, good morning. I wonder if I may ask a couple of questions about the list of offences. I'm somewhat surprised that in looking at the list that's being added to schedule 8A that these weren't included in order one. I mean aiding, abetting, counselling, procuring or inciting murder, attempting or conspiring to commit murder, assault to danger of life. What criteria were used when you were looking at the list in the preparation of order one? Preparation of order one, Mr Brodie. There was a broad range of information that we looked at. We looked at the Scottish Government publishes classifications of crimes and statistics. We looked at all that. We looked at the criminal history system. We looked at the police national computer. We looked at offences listed in the disclosure and barren service in England and offences that are listed in Northern Ireland. This was debated in the floor of the chamber. We were very clear that there would be post-legislative scrutiny to ensure the detail on both lists. The list of offences is always to be disclosed, and the list of offences to be disclosed is subject to rules that that would have to be subject to further scrutiny and also to further quality assurance. In terms of some of the offences that you mentioned in particular, aiding abetting, counselling, procuring, inciting known as aggravations to serious offences, similarly to the danger of life. Those are aggravations to serious offences. What we wanted to do was to put beyond any doubt that those offences should always be disclosed, because while it is likely that the conviction that the punishment would always mean that those offences would be disclosed forever and that they would never be spent, we did after further reflection, scrutiny and quality assurance. We wanted to put that beyond absolute doubt. We have added to schedule 8A1 as a result of that. It removes the risk of a lesser sentence meaning that some offences may not always be disclosed. It was a lengthy detail process. Prior to order 1, we have taken the opportunity to go through the process again, each individual offence again, have obviously benefited from the consultation period and feedback from the faculty of advocates. It is important that the offences that have been added have not been bar on one occasion. There have been no requests for higher-level disclosures and all the offences that have been asked in the latter part of last year, bar 1, where the conviction would always be disclosed because of the sentence that was given. I thank you for that very comprehensive answer. I wonder then, in looking at schedule 8B, that in the current environment particularly, the offences to be added under that schedule are first of all those offences that are racially aggravated and those that are aggravated by religious prejudice. Why are those in schedule 8B and not in schedule 8A, given the landscape that we currently have? One of the things that we did to do in the 60-day post-making consultation period was that we wanted to give further consideration to the quality act. The aggravations that Mr Brodie mentioned have been added to schedule B in the same way that aggravations involving children or sexual motivations have been added to schedule A. Those are all serious aggravations. It is important to remember that in terms of schedule 8B, B1, that for an offence committed by someone over 18, we are talking about a disclosure 15 years. It will be 15 years before an offence listed on 8B, B1 is considered to be spent. It is a lengthy period of time. That leads me to another question of why is it reasonable to, perhaps, explain why is it reasonable to bind up the consideration of age of the person with a time elapsed since the conviction? I mean, again, in the current demography, I don't understand why that particular given the 1974 act, why that consideration is currently reasonable. It was certainly one of the factors raised in the original UK Supreme Court case. That court case, as we know, led to us having to refine our disclosure procedures in a way that was more proportionate. Age is currently a fact in the Rehabilitation of Offenders Act, which goes back to 1974. However, in the judgment from the UK Supreme Court, where it was accepted that having a system of higher-level disclosures was, indeed, appropriate and that there should be offences that may be spent in some context, but in another context they cannot be spent. It pointed to certain factors that contributed to a fairer, reasonable, more proportionate system, and age was certainly one of them. Okay, thank you. One last question. The elephant in the room, of course, is ORI. In terms of the information that Police Scotland may submit, what recourse would an individual have to in knowing about that, what other relevant information has been provided to mitigate against the spent conviction not being disclosed? The police have always had the authority over and above the high-level disclosure system to disclose anything that they have information about. That is considered proportionate and reasonable and relevant to the release. That is the chief senior police officer. They obviously have to do that in cognisance of ECHR, and people ultimately have recourse to the courts if they wish to challenge that. Okay, thank you. Okay, can I just check that? Are you confident that this is ECHR compliant, the ORI stuff? It has not been challenged. It was not subject to the UK Supreme Court case. People, as they currently have the right to challenge many aspects of our criminal justice system and our public protection system on an ECHR basis. In terms of the order in front of us today, what has been clarified, if people can ask the police to review that decision, in the process of the review, we have clarified that the police have to apply the same test that they have to apply in the first place. The orders in front of us aren't dealing with the principle of the police being able to release other relevant information. We are clarifying that if an individual wishes a review that the police have to apply the same test that already exists. It's really the context I'm thinking of. Effectively, we're here today. This reform is in the context of responses to ECHR concerns. I think that's a fair description of why we're here. Given that, and I know that you've tightened how this is done in terms of how the police operate here or the way that they can operate in releasing information, but it does seem, certainly at least to a layman, slightly odd that the police could still have the authority or still have the right to provide information about spent convictions or even stuff that is not even a spent convictions over and above what is disclosed through the certificates. Given the context of the ECHR reasons why we're here today. It has to be proportionate. We have to get the right balance between being reasonable, proportionate and using information that's relevant. That has to be balanced with public safety. George, did you have a question? Yes. Actually, sorry to be back a bit. I was just in the back of some of the conveners earlier questions with regards to someone applying for a position. One of the examples, the one time myself that I actually had to have an enhanced disclosure came back and the individual said, oh Mr Adam, you didn't disclose. You've appeared at Dingwall Sheriff Court. Now it's not quite as exciting as what you all think it is at the moment. I hadn't paid the skybridge toll but I managed to tell him that and the individual then said, well, that's okay then. Now in some of these things that are already on your disclosure, would that not be the kind of conversations that would be had when someone's actually applying with a job at that stage or applying for a position, whether it be a youth coach or whatever, whether it be a road traffic offence? With some of these minor offences, would that not be the kind of conversations that would be had? I mean, ultimately, the matters that you describe are ones for employers. I mean, what the Government has to do and in accordance with the UK Supreme Court ruling is we have to establish a system of rules that apply to what is disclosed when and under what circumstances and when employers get that information, it will be employers that make judgments about that individual's fitness to work. Personally, I just frames mine and put up my office right now if you know. Mary Scanlon. To the point of clarity, convener, I apologise for being late. I did mention it to you last week but I've been at the health committee putting forward nine amendments on the health bill in terms of willful, neglect, ill treatment and abuse. When I came here and heard Chick Brody's question, so can I apologise, convener, if this has already been answered to the rest of the committee? It's the offences to be moved from schedule A to A to A on ill treatment and willful neglect. I really just seek a piece of clarity here, convener. I wonder what is the consequence of moving this offence and having, you know, does moving it to A strengthen this offence. I just wondered, given that the health committee are putting through a bill, particularly on ill treatment and willful neglect, if there is any further tie in with the sub-legit that's going through today, with the stage 2 bill that Maureen Watt is in charge of. So really, I'm just asking, because I presume that what's happening today under the subordinate legislation, I'm presuming that the movement of ill treatment and willful neglect will strengthen it in some way, but I'm really just seeking a bit of clarity around these issues, given that I've been looking at them for the last couple of days. The short answer is that it will strengthen the position and we needed to make compatible the mental health legislation and the adults within capacity legislation, so that's why there's been that movement upwards, if you like. We are aware of the new offences that are proposed within the health bill and it is our intention to seek to add those to one of the schedules in due course, but we can't add them in at this point because they're not yet enacted. I appreciate that, but it will be added here. It's our intention to add them in due course. Thank you, convener. Just two quick, hopefully, clarifications. I presume that, in future, any new offences that are created will create new orders and, effectively, you will just add them in the normal process. That would be the standard way in which you'll do that. Disclosure Scotland will also undertake a formal review in three years' time, which will allow it to look at any case law that's been established on the event of appeals, as well. I just want to, for absolute clarity, I was really in relation to the questions from Chick. You talked in your answer about the serious offences that are being added to order 2 and also the ones that are being changed from A B to A A, but you talked mostly about the aggravations, the stuff that's being added because of aggravating factors. Some of them are not aggravations. They're affective offences that are just being added straight into A A. Assault to the Endure of Life, for example. Can you just explain why those offences are not in the original order 8? Not the aggravations, but the actual new series of offences that have been added to A A. Why are they not in the order 1? I certainly hope that I covered that comprehensively in my answer to Mr Brodie. There were some intricacies around some offences like murder, which can never be spent. Therefore, we wanted to look very carefully at offences such as aiding a bet and counselling procuring, or inciting to murder. We needed to make sure that we were capturing everything. We were very clear when I went to Parliament that, although we had done our best to ensure that everything was in the right list, we certainly weren't arrogantly suggesting that there wasn't a need for further scrutiny or, indeed, the expert views of people like from the faculty of advocates. I don't know if officials want to add anything to that. Specificly in relation to the Assault to Danger of Life, we had looked at the offences that have been disclosed on high-level disclosures since 2011. That, as a kind of freestanding offence, had not arisen. What we had found was that offences of assault—very serious assault—are almost always charged as assault to severe injury and danger of life. That was specified very much within schedule 8A and will always be disclosed. It was the faculty of advocates who came to us and said that it is certainly not common, but it is not unheard of, for an offence of assault to danger of life to be charged with the danger of life aggravator as the only part of it. We felt that for the purposes of clarity and to make sure that we would always capture it in the event that it ever received a sentence that could become spent that we would add it into the list. Were they just missed? Is that what you're saying? That particular one on the Assault to Danger of Life is not one that we had come across in terms of being an offence that was charged as a freestanding offence. It was always included in the Assault to Severe Injury. But you seem to be suggesting what you did was you went back and looked at the ones that had come up in terms of disclosure. That's how you created the first list. That was one of the considerations. We looked at the CHS list of every offence charge code that exists in Scotland. The Criminal History System does a very extensive list of 8,000 in excess of 8,000 charge codes for offences in Scotland. We went through that and looked at every single offence code. The Assault to Danger of Life was on it, but it wasn't anything that we have ever disclosed since 2011, since PVG came into effect. We have disclosed lots of Assault to Severe Injury and Danger of Life. Given that, are we confident now that we have captured everything that needs to be captured on these lists? There's been very extensive work undertaken in bringing together the original order. That has been added to, with even more detailed work in advance of this order, because it's been informed by consultation. I think that we are as confident as we can reasonably be. Is there any chance that any of the offences that are being added to or being moved in this order that there are some people who, between order 1 and order 2, would have been guilty of any of those particular offences? It's been treated differently because they were in the gap between order 1 and order 2. I'll ask officials to confirm it, but, in terms of the briefings that I've received, we've went back and checked the disclosures that have been made between September and now. There should be no one affected, but I'll ask officials to confirm that. That's correct. We have looked at the data in terms of every offence that we're proposing to add or move. We looked at whether there had been any incidents between the 10th of September and the 30th of November of an applicant for a higher-level disclosure having one of those convictions on their record. There was one attempted murder that had been on an applicant's record that had been disclosed anyway because the sentence meant that it would never be spent, so we are expecting the impact of this to be virtually nonexistent. We haven't found any evidence of people who would be treated differently because we're moving offences between them. That's helpful. Sorry, I just want to find a question that I should have asked earlier. The business and regulatory impact assessment estimated that there would be 50 of those cases in 12 months. There was 27 in the first three months. Are you saying that you're still confident that it's 50 or that 27 would suggest 100? Is the figure of 50 referring to appeals or applications to sheriff? What does the figure of 50 relate to? You're sorry, appeals, yes? Yes. There's a distinct difference between those two figures. We have estimated on the basis of the available information that we might expect to have 50 applications to a sheriff precedent in the course of a year. The figure of 27 is the number of or was the number of notifications of intention to appeal that we have received. The current figure is 65. Of those 65, 19 have subsequently been withdrawn, so we have 41 extant notifications. However, none of those notifications have yet, to the best of our knowledge, transferred into an actual application to a sheriff. That estimate of 50 appeals over the year is... We're not expecting that to be exceeded because we haven't yet had any actual applications to a sheriff. Okay, thanks for clarifying that. As indicated earlier, we now move to the formal debates on the Police Act 1997 and the protection of vulnerable groups Scotland Act 2007, remedial number 2 order 2015, SSI 2015-423, which is item 3. Can I invite the cabinet secretary to speak to and move the motion? I've nothing further to add that's not been already raised in debate and my original opening statement, so I move the order in my name. Thank you very much, cabinet secretary. I put the question... Sorry, any members want to say anything? I put the question that motion S4M15403 be agreed to. Are we all agreed? That's agreed. Thank you. We now move to the formal debate on the Rehabilitation of Offenders Act 1974, Exclusions and Exceptions, Scotland amendment order 2016 draft, which is item 4. Can I invite the cabinet secretary to speak to and move the motion? I move the motion in my name, convener. Thank you. Any contributions from members? There will be none. I'll put the question that motion S4M15306 be agreed to. Are we all agreed? We are all agreed. Therefore, just before I close the meeting, can I thank the cabinet secretary and her officials for our attendance? Can I also just, for the benefit of the committee, just mention that James Brown, who's been with us for a short while, this is his final meeting with us before he moves on to, I'm sure, better things in another part of the Parliament. So can we all wish James all the best and thank him for all his work in supporting committee over the last few months. Thank you, James. And with that, I close the meeting.