 I welcome everyone to the third meeting of the Education and Skills Committee in 2018. Please remind everyone present to turn on mobile phones and other devices on to silent for the duration of the meeting. We have received apologies from Mary Fee as she is attending another committee meeting this morning. The first item of business is the decision on whether to take item 8 of this meeting in private, and our members are content to take the work programme discussion in private. The next item of business is three pieces of subordinate legislation to consider today two instruments subject to the affirmative procedure, and one is subject to the negative procedure. I should explain that each affirmative instrument has two agenda items. Firstly, the committee will have the opportunity to ask questions of the minister and her officials, and after that there will be a debate on the motions on the published agenda. Details of the instrument subject to the affirmative procedure are included in paper 1. We start with consideration of the Police Act 1997 and the Protection of Vulnerable Groups, Scotland Act 2007, Remedial Order 2018. I welcome to the meeting for her first appearance before the committee. Mary Todd MSP, Minister for Child Care and Early Years, Lynn McMinn, Policy Manager, Disclosure Scotland and Elsa Hyn, Senior Principal Legal Officer, Scottish Government. I invite the minister to make an opening statement to explain the order. Welcome, minister. Good morning, convener and committee members, and thank you for that kind welcome. I look forward to working with you all for many years to come. Thank you for inviting me to this meeting and for the opportunity to contribute to the committee's discussion about the draft Police Act 1997 and the Protection of Vulnerable Groups, Scotland Act 2007, Remedial Order 2018. I would like to thank the Parliament, this committee, officials and business managers for their support in timetabling Parliament's consideration of this Remedial Order and later the amendment order. The Remedial Order further refines higher-level disclosure system in Scotland that applies when someone wants to work or volunteer with children, vulnerable adults or in certain professions, for example, financial services. It deals with what the state that is Disclosure Scotland will disclose in response to higher-level disclosure requests. In other words, an application for a standard or an enhanced disclosure or a PVG record scheme. The order builds on the reforms we made in September 2015 following a United Kingdom Supreme Court ruling in June 2014 that disclosures issued under the Police Act in England and Wales were incompatible with article 8, the right to respect for private and family life of the European Convention on Human Rights. Subsequently, a judicial review in the Court of Session challenged the operation of the PVG scheme. In the case P versus Scottish ministers, Lord Pentland declared that insofar as they required automatic disclosure of the petitioner's conviction before the children's hearing, the provisions of the PVG Act as amended in 2015 unlawfully and unjustifiably interfered with the petitioner's right under article 8 of the European Convention on Human Rights. The effect of the court order, except in relation to the petitioner, was suspended until 17 February this year, 2018, to allow ministers to remedy the legislation. A 60-day consultation period on the proposed draft remedial order finished on 26 November. Ministers have taken account of observations received and published a statement responding to them. The statement was laid in Parliament on 15 December 2017 and advised only minor changes are being made to the proposed draft remedial order. In proposing this order, we recognise that safeguarding must be balanced with the appropriate protection of rights of an individual to private life and allowing those with past criminal background to move on. We believe that the proposed amendments to the system of higher-level disclosure strikes an appropriate balance, and I'm happy to answer your questions. Thank you very much, minister. Before I ask any of the other members, I've got a question. Just one, this is a second remedial order on the same matter. How certain are the government that the changes will satisfy the court and at the same time provide the necessary protection for vulnerable groups? We're very comfortable that this will satisfy the court and, yes, we also believe that it will strike the correct balance between protection of vulnerable people and the human rights of offenders. Protection of vulnerable people is absolutely at the heart of the entire system of PVG checking, and we believe that this will make the right balance. As your question implies, we've had to remedy this legislation once before, and of course any Parliament wants to anticipate every possible situation when developing law, but this particular situation arose from a combination of very individual circumstances, which are extremely unusual. I think we'll all agree that it's almost impossible to anticipate every circumstance and that to use case law to refine primary legislation is an important part of the system. Thank you very much, Liz. Just one question. Minister, just on the technical point that you mentioned about the 2018 proposed draft order, there seems to be a slight difference of opinion between the law society and the children's reporter about the proposed amendments. Has that been addressed, that difference of opinion? I'm not quite sure what difference of opinion you're referring to. The quote from the law society says that it very much agrees and would support the amendments put forward by the proposed draft order. A Scottish children's reporter is saying that the proposed remedy may make the situation more complex. Has that been addressed? I think that we've taken the basis of the proposed remedy, the judgment that was given in the court, and we followed the judges, some of the judges proposed certain remedies himself, and we have taken on board those proposals when developing the remedy. We have been guided by the judge in the case that was under review. I dealt with specific cases. I want to ask in general terms about something that is drawn from direct experience. It is a young person who has gone through a tough time in their lives, ends up in a situation that you could imagine in a public place or a bit of a scrap with somebody else, not physical violence or anything. It takes a jacket, throws it down. There's a referral to the children's hearing, which the family welcomes because they're concerned that the young person is distressed as things go on in their lives. They accept, and I have dealt with a lot of young people who go into the hearing system for that very reason, and we support the hearing system because it's focused on the needs of the child. There is no proof of court on those issues. However, six, seven, eight years later, a young person applies to work in a hospital and what comes up on disclosure is assault and robbery. That can't be right, and that must be against the view of what the purpose of the hearing system is. I note that the children's reporter and the Children's Commissioner are expressing concern about that question. You have not enacted provisions in the 2011 legislation, which would have addressed that problem, and I wonder what reassurance you can give me that in terms of what is not even a spent conviction, it is as a consequence of a young person's challenging experience at that time, it's then coming up on disclosure, and that must be something that's the antithesis of the hearing system, and I wonder if you have a view on that, because I think that Liz Smith is right to highlight that both the Scottish Children's Reporter Administration and the Children's Commissioner are expressing concerns, if not about the order, about the policy that's round about it. The proposed changes that we seek seek to strike a balance between the proportionality, fairness and public protection issues. At the heart of it, as I stated, is the safety of vulnerable groups and we think that it's important that relevant conviction information is still available for employers in order to make their decision in some cases. That provides a right to appeal to a sheriff, and the sheriff will take into account the circumstances around the offence when making a decision as to whether it can be removed from the disclosure or not. The sheriff will also take into account the type of work or the reason for the application for disclosure when making that decision. We think that that puts in place a really robust system which strikes the correct balance between protection of vulnerable groups and the right of individuals, and particularly young individuals, to move past offending behaviour. You think that a young troubled person who goes into the hearing system to get help can have something that's never been challenged. I think that if it was challenged in court, it would have challenged that description of it being assault robbery, whatever it might be. A young person who goes into the hearing system ends up, six, seven, eight years later, being defined in disclosure as somebody who is not able to do that particular job. I hear what you say about appealing to a sheriff. How realistic is that for most people as a redress? You may not be able to deal with it in this order but I would look for a reassurance that you will look at this question because I am very troubled that young people who I encouraged people to go into the hearing system and I encouraged them on a basis that they would get help and get support because of the authority of the panel that could draw resources to that young person. They don't ever get the opportunity to test in court the description of what the offence is and later on they end up in a position where it creates the impression of something quite different from what happened. I would also say that even if, theoretically, you could appeal to the court, the damage is already done because somebody has looked at your application. They are not necessarily going to tell you that that is the reason why they are not employing you. The disclosure won't have been seen by an employer if someone chooses to make an application to the sheriff to have a conviction removed. This young person only knew about it when they went for the job and they were told why they didn't get it. That may have been under previous... Excuse me. Let's speak through the chair. Minister, you have been asked a question about will you take that away, will you have a look and see how we can deal with that in the general? It's not about the specific order. No, and I would absolutely take it away and I will look again at the... I mean my understanding is that what's disclosed on the disclosure should not necessarily prevent you from getting a job. It must give the employer information in which to risk assess the situation and there are protections in place for people. However, there's a genuine point there that what's on the disclosure won't impact on decisions of the situation. Absolutely, and I will take that forward. There's a second related issue to this. I hear what you said but I think that the reality is that people are choosing amongst a whole range of people. They're making a judgement on somebody without having the full information. There's reassurance around spent convictions and disclosures that we have the same level of playing field as in the rest of the United Kingdom. Somebody has raised with me the issue around spent convictions that if they were elsewhere in the United Kingdom their offence would have been deemed by now to be a spent conviction but the Scottish Government has not yet caught up with that and despite correspondence with the Cabinet Secretary it's not been resolved. I'm going to ask my officials to answer that particular technical aspect for you. The legislation is very different in the four nations in the United Kingdom. The rehabilitation of offenders legislation is within devolved competence so they're quite likely to be some divergence between England and Scotland. The English rules on when convictions became spent were changed in 2013. The Scottish Government is currently looking as far as I understand at the rehabilitation of offenders act there was a consultation on it and there's also to be a management of offenders bill at some point in this session. I think that it would be a matter of some benefits if we knew what the plan timetable for that was. My understanding is that while it's been resolved elsewhere in the United Kingdom we're getting reassurances that it will be resolved if I haven't been done so. If I could get a timetable for that that would be extremely helpful. Thank you. Just to pick up on the issue that you raised yourself, the ministers kindly agreed to give some clarification on that. I think to pick up from what Johann Lamont was saying in our first issue the problem we have is that obviously there's one group, the Law Society, is giving a very distinct legal ruling on this whereas the other two who've given us some comment that's slightly more concerned are those who are working with the children's hearing system. I think that we want to be absolutely clear in our mind as a committee that there is no serious problem there, that legal experts have taken a very different view from those who are dealing with children as Johann Lamont has said that have asked to be in the hearing system or recommended to be in the hearing system because they want help. We would not like to sign up to something that was preventing that. Not a question, just a few, before we proceed I should refer members to the fact that I'm a member of the PVG scheme clear to work with vulnerable groups on behalf of the Church of Scotland. I just wanted to ask a question related to Liz Smith's question about the children's report administration because in the evidence to this committee they have said that this proposed remedy will make the situation more complex and confusing and therefore less fair as a result by creating two separate lists of offences with the right to have a sheriff review offences from either list. I just want to understand why two separate lists are being created. The two separate lists of offences were created with an earlier remedy back in 2015 and that's the they're already in existence that's not we're not creating two new lists in this piece of What we're doing is providing a right to appeal for the schedule The proposed remedy creates two separate lists of offences. I quite take your point if that's not true I'm perfectly happy to be corrected. Two separate lists of offences with a right to have a sheriff review offences from either list instead of two lists where offences on one would remain. The right to appeal to a sheriff exists for both lists now. Why the change then? What's the advantage of the change that the Government is proposing? The advantage of the change is that it makes the legislation compliant with ECHR as directed by the judge in the case of the versus the Scottish ministers so the judge has ordered us has looked at the legislation decided that it wasn't the remedy that was put in place in 2015 was not compliant with the ECHR and has asked us to repair that. The Government accept that we've now got situation as Liz and Joanna have just illustrated where some people who work with children in children's panels consider this to be less fair so judges get this wrong now and again has to be said. So what does the Government have a reflection on the fact that people giving evidence to the committee are saying that their concern this remedy is less fair on the children that we're all trying to help? I'll reiterate again that this piece of legislation strikes the appropriate balance between the offenders who wish to move beyond situations that have happened in childhood or not necessarily in childhood in adulthood as well this legislation covers but also strikes the appropriate balance for those who wish to work with vulnerable people and the protection of vulnerable people it is always tricky to navigate that and I think that this piece of legislation does strike the appropriate balance between those two needs. Said in some circumstances there was a need for flexibility could you outline, give me some examples of what you've decided on has given flexibility around the disclosure scheme for people that have been in the hearing system what is meant by flexibility and how has that been enacted and what you're putting forward to us today? So the sheriff will take into account the circumstances of the original offence when making his decision on whether information goes on to the disclosure and will also take into account the type of reason for the disclosure being applied so does that mean in a situation, something like John Lamont's movie described where the offence has been fairly minor but has been enough for somebody to be put into the hearing system in order to help them that there might be a judgement that they would never actually go in the disclosure in the first place or is it a case of there has to be an appeal to make sure that it comes off disclosure Is it a system of sands we have three offensalists we have offensalists that are deemed so serious which is what we're here today to look at which we've included a new appeal mechanism for those we've got offences that are on schedule at B which are offences that are deemed to be serious but not as serious as those in 8A those offences can be appealable to a sheriff as soon as they're spent and will automatically come off a certificate after seven and a half years if the individual was under 18 at the time of conviction or 15 years if the individual was an adult at the time of conviction there's also a number of very minor offences that will never appear on a certificate as soon as they're spent so there is like seven and a half years minor offences would be on and then they would automatically be taken off but there's nothing that can be appeal it as soon as it becomes spent so that might be five years or however long the rehabilitation period is for the disposal that they've received so it wouldn't have to be seven and a half years it could be well before that point only if it's an 8B offence any offence not on it schedule 8A or 8B will just come off as soon as they're spent and will not be disclosed if they're spent thank you for clarifying that thank you if I could ask the minister what consideration was given to the alternative approach set out by the Children's Commissioner that would have moved the onus on to authorities to argue against a presumption that information should automatically be removed after a set period of time I think at the moment we have a number of pieces for legislation and reviews going on which all fit together with this to make a bigger picture in all responsibility review and I think that's where that will be considered if successful that piece of legislation will lift a number of people young children out of the situation where this will ever apply to them a very specific question children's hearing Scotland at 2011 includes at sections 1878 provision that would allow some offences at hearing to be recorded as alternatives to prosecution rather than as a conviction which I think would address the concerns I've raised those provisions have not been commenced can you explain why I'll ask the provisions in the 2011 act couldn't be commenced at first because we needed to get section 104 order under the Scotland Act so that the Scottish Government had sufficient powers to implement properly sections 187 and 188 the section 104 order was only obtained very shortly before we did the remedial order in 2015 so there wasn't ever a chance to commence those sections when we did the remedial order in 2015 we felt that the situation was made more preferable for children who had a hearing's conviction in terms of the powers that are in the sections 187 and 188 they are relatively limited they would allow us to make the children's hearing's convictions alternatives to prosecution but they were also providing for a list of offences that were always to be disclosed and there wasn't any other provision the power was limited to making a list of offences that would always be disclosed it didn't give us any powers to make any provision for some offences to be disclosed for a lesser period of time so that is the main reason that those provisions have not been commenced they won't work very well with the provisions of the remedial order and the Government is doing further work on looking at those provisions and the convictions that are obtained through a children's hearing system and there is the minimum age of criminal responsibility bill that is proposed also in this session which we'll consider further respect that the criminal age of responsibility has got nothing to do with this this is about young people in the hearing system this is seven years we thought they had a remedy to a problem you're saying that wasn't the right remedy seven years later we don't have a remedy to that problem and I think that's fundamental it does call into question the effect of this subordinate legislation I do think we need to test it and I'm concerned that we're in a position where the core problem was trying to be addressed in 2011 is still not being addressed can I just clarify what you said in relation to what you said, I must make mine earlier on are you suggesting that the flexibility that you were talking about about a spent conviction after a spent conviction you could have it written out wouldn't be available if we put the 187, 188 is that what you were saying? there was a power set up a list of offences that would always be disclosed and it would be more difficult then to have the offences that are only disclosed for a certain periods of time I think there would have been offences you could have left obviously there would have been some offences that were not on the list of those that were always to be disclosed but there was less flexibility around the power and when the power was devised the case law in relation to disclosures was much less developed and it was devised at a time when all convictions were disclosed and the case law has moved on since that point the power is no longer really sufficient to provide the kind of system that the courts are now looking for in relation to disclosures thank you I'd like to ask two questions the first one would be is it not the case that this has been a challenging policy and has changed regardless of party colour it's been adapted and changed over the period and is it not the case that the fact that you're responding to what's been through the courts is a positive thing because I know of many solicitors that any legislation from this place is of any value until they have tested it through the courts so really is it not the case that this is the right way to go forward and that it will constantly be tinkered with this scheme as we move forward because things will change you're absolutely correct as I said already at a Parliament we want our legislation to anticipate every possible circumstance but that's just not possible in reality the original legislation which was brought forward by the Labour-Lib Dem Administration including I think some people who are on this committee had full parliamentary support it's not unheard of for case law to refine primary legislation particularly when if you think of the intervening period the changes which have occurred in terms of our understanding of sexual offending our understanding of human rights so it is perfectly understandable I would say that there has been a reflection and a requirement to refine the original primary legislation and I think it does strengthen the legislation I would agree my second question would be it's more a technical functional question if we didn't pass this SSI today what would happen and what would be the potential fallout so I'm sure everyone in this room is absolutely aware that the Scottish ministers because of the Scotland Act cannot act in a way that is incompatible with ECHR so if the orders aren't approved then we have to go back to the court of session and ask the court for a continuation of the suspension of the effect of the judgment for a longer period to allow time to try to pass the amendment now if the court if that suspension is not continued then our executive agency Disclosure Scotland would have to stop completely issuing higher level disclosures because ministers cannot act in contravention of ECHR we would need to put forward fresh proposals to remedy this legislation and consult on those again and bring them forward to Parliament again the higher level disclosure system could not operate during that time and to give you an indication so stakeholders are broadly very supportive of the disclosure system everybody understands that there may be situations where people fall on the wrong side of certain lines but generally people are very supportive of the legislation and about a thousand cases a day go through the disclosure system so about a thousand higher level disclosures every day Thank you Can you just clarify there is a fundamental difference between a committee voting on this and deciding it is not the right legislation than asking for further clarification on the points that have been raised before we vote on this If that was the view of the committee then we would have to come back again next Wednesday Can I speak personally on this I mean minded generally to accept the general principles but I am slightly uncomfortable that we have not had the clarification that perhaps we would need just to ensure that that happens If we are going to be voting on it surely we could get clarification from the minister to the committee I mean if you are talking about your voting on it in favour of it then surely any clarification we can get from the minister after In order to be to be helpful can I just see this as nothing to do with party politics and it is absolute all to do with getting it right legislation and it is in my case driven by a specific case I would like a force of what is the consequence of this not going through and accept that but I would want an absolute commitment to look at the question the policy question that drove the legislation 2011 and would look at the consequences for young people of having been described as having a conviction when we all know that they were troubled and they were difficult and that is the very purpose of the hearing system so the reassurance that I would be looking for is that the would be a specific case I've had correspondence with the Scottish Government before on this but I would be looking for an absolute commitment that you would look at the policy area and a timetable to address this because I think that's what the children's reporter and the children's commissioner are wanting and the fundamentally the idea that an appeal to the sheriff is a redress for some of these young people it's just not appropriate and so it's connected to the policy that drove the act in 2011 and what actually is now getting taken to address that concerns. There's a separate issue which I can again write to Minister about around spent convictions, what's happened elsewhere but I wouldn't want to be seen to be trying to obstruct legislation that's going to protect people far from it but I would be looking for very strong reassurance around these issues. Right, thank you for that John. So would that satisfy you as well? Yes sir, rude convener, I feel very much the same and I don't want to be obstructive about it but I do think that there are some fundamental concerns that we would like undertaking from the minister that she would come back and clarify and provide us with that secure knowledge. Okay, no other comment. Thank you. In that case we will then move on to item 3 which is the formal debate on motion S5M-9985 in the name of the minister. I will remind everyone that officials are not permitted to contribute to the formal debates and I ask the minister to move the motion. I move that the Education and Skills Committee recommend that the Police Act 1997 and the Protection of Vulnerable Groups Scotland Act 2007 in remedial order 2018 be approved. Any other contributions from the panel? In that case the question is that motion S5M-9985 be agreed to, are we all agreed? Yes. Thank you. The committee must report to Parliament on this instrument. Are members content for me as conveners to sign off the report? In that case we now move on to consideration of the Rehabilitation of Offenders Act 1974 the Exclusions and Exceptions Scotland Amendment Order. Again I invite the minister to make an opening statement explaining the order. Minister. Thank you. The second order you're considering today is the Draft Rehabilitation of Offenders Act 1974 Exclusions and Exceptions Scotland Amendment Order 2018. The amendment order is needed so that the self-disclosure requirements placed on an individual are aligned with the reforms in the state disclosure that we've discussed already. The amendment order makes changes to the rehabilitation of offenders legislation to achieve that. The reforms in the amendment order mean that an individual will be protected from having to self-disclose a spent conviction that has met certain criteria for an offence that is included in schedule A1 of the 2013 Exclusions and Exceptions Order during the period of an appeal to a sheriff for removal of the conviction from a higher level disclosure. Those criteria that the individual's conviction is spent and either seven years and six months must have passed from the date of conviction if the individual was under 18 years of age at the date of conviction or 15 years must have passed from the date of conviction if the individual was aged 18 years or over at the date of conviction. The reforms also mean that the individual cannot be prejudiced by failure to disclose a spent conviction for schedule A1 offence during that appeal process if a prospective employer learns about the offence by another means. Lastly, the amendment order provides that once the appeal process to the sheriff is concluded and the sheriff finds that the state should disclose the spent conviction appealed then a prospective employer will be able to take account of the conviction and the person will have to self disclose the conviction of asked. I'm happy to answer your question. Does anybody have any questions in us? In that case, we now move on to item 5 which is the formal debate on motion S5M-9984 in the name of the minister. Again, I remind everyone that officials are not permitted to have formal debates and I ask the minister to move the motion. I move that the Education and Skills Committee recommends that the rehabilitation of offenders Act 1974 exclusions and exceptions Scotland amendment order 2018 be approved. Thank you. Any contributions for members? In that case, I put the question. The question is that motion S5M-9984 be agreed to. Are we all agreed? Thank you. As with the previous instrument our member's content for me is convener to sign off reports. Thank you. At this point, I thank the minister and her officials for their attendance and I will now suspend for a moment to allow the witnesses to leave. Thank you. Thank you. The final piece of subordinate legislation the committee has to consider today is the teachers pension scheme Scotland number 2 amendment regulations 2017. SSI 2017-454 which is a negative instrument details of this instrument are provided in paper 2. Do members have any comments on this instrument? I'm taking your silences. No. In that case, thank you very much. We'll move on to the next item of business is consideration of responses to the committee's report on school infrastructure published in October 2017. The responses to a report are included in paper 3 and before I ask for any comments from colleagues I would like to say that this inquiry built on the work of Professor Cole and his inquiry into school closures in Edinburgh. I believe our work added value including by raising the profile of Professor Cole's important findings. It is of course vital that education authorities undertook work to reassure us that the school estate is safe and ensure that new schools are built to an appropriate standard. We've received responses from a number of organisations including the Scottish Government. I'm not sure if members saw in their press cuttings over the weekend at a number of schools in five liked adequate sprinkler systems. One of the themes in the Cole report was about inadequate fire stopping. I think it might be worthwhile writing to the Scottish Government and asking about its response to those reports in the media. In addition to this action, members will be aware that the committee agreed to revisit all of its report recommendations annually so work in this area will be monitored on an on-going basis. Apart from keeping a watch and brief in this way do you have any specific comments or suggestions for further action? To say that we should copy that letter that you sent to the Scottish Government to David Stewart who's got the private bill on the question of sprinklers, I think. Is he not? Okay, that's a sensible suggestion. Nothing else? Okay, in that case that brings us to the end of the... Sorry, do you mind? Just attach it to this, but I'm not quite sure where else to attach it to. It's the question of process around dealing with witnesses and I think we had very good witnesses in this regard. I'm sure people shared my concern about the freedom of information request that was published in the 10th of January which shows the Scottish Government actively seeking meetings with witnesses on the name person legislation off in the week before they were coming. A whole series of emails to a whole range of organisations were given evidence to this committee seeking meetings in the week before explicitly to discuss their evidence to this committee which I think is quite different from the Scottish Government in their routine looking to meet with stakeholders and I wonder whether it would be worthwhile writing to John Swinney asking for him to respond to the suggestion that would come from what therefore I look like which is that they've actually tried to engage with those given evidence ahead of their evidence to this committee and of course the gap was between the written evidence they gave and then they came in with... Oliver Mundell has pursued before. I think it's very serious but however I'm prepared to perhaps ask John Swinney for an initial response to what was being done in his name. We are just going on to the work programme if you think that's an item to be discussed then we could do it in the work programme in the private session. Excuse me, you've got it out there. If there's no other comments then we're happy to move on. That brings us to the end of the public part of the meeting. I will wait for the gallery to clear before moving on to the next item. Thank you for your attendance.