 I welcome Members to the 29th meeting in 2015 of the Delegative Powers and Lauraform Committee. I'll ask Members to switch off mobile phones because I know that we've received apologies from Richard Baker. Gender item 1 is the decision on taking business in private. The committee has to pose items 9 to 12 in private. Item 9 will allow the committee to further consider the delegative powers in the alcohol licensing, public health and criminal justice. and criminal justice Scotland Bill. Item 10 will enable the committee to consider a draft of its first quarterly report for the parliamentary year 2015-16. Item 11 will enable the committee to reflect on the evidence that is heard on the remedial order subject to affirmative procedure. Item 12 is for the committee to consider its draft stage 1 report on the succession Scotland Bill. Does the committee agree to take these items in private, please? Thank you. Gender item 2 is a remedial order to affirmative procedure. This is an opportunity for oral evidence on the Police Act 1997 under protection of vulnerable groups Scotland Act 2007, remedial order 2015, SSI 2015-330. This order is currently out for consultation by the Scottish Government. The order also interacts with the rehabilitation of offenders act 1974, exclusions and exemptions Scotland amendment order 2015, which the committee previously considered on 8 September. I welcome from the Scottish Government Diane Machin, who is the UK SC Policy Lead in Discourse to Scotland. Nigel Graham, Policy Advisor from the Directorate for Justice Kevin Gibson, Solicitor, Criminal Justice and Police and Fire, Alison Heiney, who is Senior Principal Legal Officer for Food, Children, Education, Health and Social Care in the Scottish Government. Good morning. It does occur to me that I might want to make some sort of opening comment. There may not be. No, there isn't. That's fine. I just wanted to make sure that there wasn't anything that anybody wanted to say in the first instance. At that point, then, I turn to questions from the committee and we start with John Scott, please. Thank you, convener. Good morning, everyone. Can I take you straight away to sections 14, 13 and 14, the making of urgent remedial orders? The statement of reasons laid out with the remedial order as required by section 14 to be of the act does not appear to explain what the compelling reasons for making a remedial order as distinct from any other action such as primary legislation are. Nor does it explain why the Scottish ministers considered it necessary to follow the urgent procedure, particularly given the length of time which expired between the UK SC judgment and the Scottish Government bringing forward the remedial order. Could you provide explanations of both matters, please? Yeah. The Scottish Government felt that it was necessary to... Sorry, is it not on? Oh, sorry. The Scottish Government felt that it was necessary to use the urgent procedure simply to provide certainty from the point at which the new legislation was brought into force. Although it had taken some time since the UK SC judgment, it took some time to consider the policy solution and to consider the implications of what the UK SC had said in relation to the cases in England and Wales. Right. Can you give us an explanation of the compelling reasons for making a remedial order where rather than creating primary legislation? I think that in terms of providing certainty for in the legislation from the point at which it came into force, it was... If we had brought forward a bill that would have been more difficult to provide because there would have been to... While the bill was going through as to what the certainty about the law was and I think there would have been probably some need for some expedited bill process rather than following a normal bill process. We therefore felt that the remedial order was a more appropriate means of... Right. Okay. Do you want to follow that up? I think it would be helpful if the witnesses could help us to understand why it happened on the particular day that it happened. Why didn't it happen the month earlier, for example? Why couldn't it wait for another month? What was it drove it to the particular point in the calendar that it was brought forward at? Or was it simply that was when the Government was ready to do it and did it as quickly as it could? It would be helpful to get that in the right way. Yes. Clearly it couldn't have been done in the two or three months before that because it was recess. So unfortunately it wasn't possible to do it prior to recess simply due to the practical considerations, the legal considerations in preparing both the operational solution and also drafting the legislation. And the date then chosen was as soon as possible after recess had ended and also we were conscious that it couldn't be much later because of the dissolution of Parliament in March next year. That we needed 120 days for the order to go through its parliamentary process. So there are a lot of practical considerations around the date in that it was recess prevented at being done any earlier over the summer and later on would have potentially led to difficulties towards the end of the process because we would run into timing difficulties. So there were a lot of practical considerations around the date chosen trying to make sure it fitted in with the parliamentary process. So forgive me for jumping back in then so the reason that it was not primary legislation that was created was essentially the expediency simply because there wasn't enough time. No I don't think that that was the case too. I'm concerned about the suitability but it seems from what you've said forgive me if I misunderstood you it seems more a matter of convenience that's how we've arrived at this process. In terms of choosing the remedial order as the legislative means it was considered that the procedure set out in the convention rights compliance act which gives ministers the power to remedy both primary and secondary legislation was the best option because all the legislative solution could be brought into force immediately and provide certainty as to both what people were required to self disclose and what the state was required to disclose on disclosures. So that was the primary driver for the remedial order. The powers existed in the act and it was felt that it was an appropriate use of them simply to provide a certainty. Once that was chosen the timing was that there were practical considerations around the timing as to when the remedial order was made. Is it correct then that because in essence the remedy for this potential defect in Scots law arising from the UK Supreme Court ruling has been fixed through two separate legal processes one, the quick fix without suggesting in saying quick fix that it's in any sense deficient but then the fix that we're now consulting on it would have been difficult to do that by primary legislation because the second bit you were still working on is that fair comment? You would have had to do two bits of primary legislation if that's the road you would have taken and therefore for everybody can sense more straight forward to do it second. Can I just clarify you mean with the quick fix you mean the affirmative order the previous one? Yeah, I mean there would have had to have been there couldn't have been primary legislation to do the provisions the rehabilitation of offenders amendment order because the powers do not exist to make that primary legislation it's not within devolved competence there are special powers given to ministers to make the necessary provisions under the rehabilitation of offenders legislation but it can only be done through secondary legislation powers so that part of the fix the changes to the rehabilitation of offenders provisions relating to self-disclosure could only ever have been done in secondary legislation that couldn't because it wouldn't be to put in devolved competence you couldn't have been done within a bill so if there had been a bill to deal with the what is in the remedial order then there would still have been a need for secondary legislation to deal with the rehabilitation of offenders procedure that's to do with it's quite, Kevin can explain a bit more about the rehabilitation of offenders powers if you want I mean essentially what we have required to do under the rehabilitation of offenders act is make provision which affects reserved matters so ordinarily we wouldn't be able to do that we certainly can't do it in primary legislation but there's an order under the Scotland act which transfers to Scottish ministers the necessary secondary legislation powers under the rehabilitation of offenders act which effectively allows us to make provision about reserved matters but only in exercise of those specific powers so just to be clear and I do say it went across my desk I've forgotten it there was a section 30 order granted as the power section 63 I must go and look at that one gave us the power to do this specific thing but it gave us the power only in terms of doing it by secondary legislation now we're short circling the argument that it's sufficient for our problems OK could I then just pursue the point that John's originally made though which is it's still not entirely obvious to me why it was better to bring forward the order that we do have rather than expedited legislation in a day which we have done and would have allowed at least in principle for sort of full parliamentary debate of some of the things which we've now got in front of us and we cannot change like for example schedules can you explain why, given that that could have been done at the same speed in principle the order that we've got in front of us was the preferred route please I think that we would have then been asking Parliament to do two expedited procedures one for the rehabilitation of offenders act order and then for a bill so certainly we were trying to avoid having to go for too much expedited procedures also we felt that there was the period of consultation available under the convention rights compliance act for 60 days once the instrument had been made so that we can take into account the views that the Parliament views that other stakeholders express and then consider whether any modifications need to be made to the order so the order is not absolutely set in stone it can be amended later on and it would be then the amended order which came into force later on I accept what you've just said there but as always within this committee I would contend that you could have replaced this order with expedited legislation which would have enabled Parliament to have put its moniker on everything that's in here rather than having to consult about it later because someone who's looking for a disclosure now is working with this document now I accept it being consulted on and it could be changed but that makes the question of why someone who's now looking for a disclosure is in a different regime from what we'll subsequently have when we've modified it there are two different ways of tackling it but I guess the Parliamentarian and me would have preferred the expedited legislation because then at least Parliament had agreed what was in here rather than the effect of them being asked to agree a consultation afterwards I'm not sure if I can add very much to the decisions were taken on the basis that the remedial order was considered to be the best to be the best approach am I right and understanding we are not allowed to do primary legislation on this topic because it's reserved forgive me we're talking about two different things here one is the order which has brought under the Scotland Act to change the reserved powers which were entitled to do and that's not what I'm talking about what I'm talking about is the document in front of us which is within our remit which could I think have been done by primary legislation rather than by the order that we've got in front of us and that's the question that I'm addressing there are two separate our power which I think is what Stuart was talking about to deal with reserved matters can only be dealt with one way but I've missed a point here I think we're now talking across ourselves here I think what it would have been possible to have the provisions that are in the remedial order in primary legislation because they're all within devolved competence and your argument is simple the Government felt that that wasn't the better way to do it and I have asked the question and that's the answer we got I think part of it is necessary to to bring the changes to the rehabilitation of offenders legislation and the police act and the protection of vulnerable groups act all into force at the same time and that was a slightly more manageable process when all the amendments are contained in secondary legislation Now that I've got section 63 in front of me because I don't recall having read it I see that contrary to section 30 it only transfers power to Scottish ministers not to Parliament and therefore a section 63 order can only allow ministers to lay secondary legislation it simply doesn't grant us the power to bring primary legislation I just wanted to be clear that my reading of it corresponds to what you're trying to say that's fine, thank you thank you colleagues for clarifying that John, I think we're back with you we now know that the remedial order which is already in force is currently out to consultation can you explain the consultation process and which bodies are involved please we issued a notice of consultation on the day that the order was made so that was the 10th of September we've followed the legislative provisions we've got a 60-day consultation period we've sent notification to all of our key stakeholders we've posted the legislation on the Scottish Government's consultation website and on Citizen Space and we've advertised it on Disclosure Scotland's website thank you and can you advise us of a nature of the responses received to date and whether any issues have been raised on the quality of the approach taken in the order so far we've received only four responses to the consultation one was from the sheriffs association stating that they would not be submitting a response one has come from an individual saying that we should have had a disclosure period of 10 years instead of 15 years and it's a one sentence response with no explanation the other two responses are again from individuals who are both very positive about the amendments that we've made there would this be in line with the expectations we're hoping for more responses given the complexity of the provisions and the legislation we would not expect those responses to arrive until close to the deadline we'll have to wait and see what happens and for those who might be watching this when is the deadline again just to re-amplitise the consultation process so please send in your responses as soon as possible thank you very much I think I'll take this to Joe Mason thank you I want to ask a few questions around the question of the offences including schedules ATA and ABA and a few other points around that as well so I wonder to start us off could you just give a kind of explanation as to why it was felt best to have a problem by putting one list of offences which I think always have to be disclosed in schedule 8A and schedule 8B where there's a little bit more room for movement and then following on from that why the particular ones were put in each list the rationale for the offence lists has been subject to quite a lot of scrutiny within Disclosure Scotland and beyond we worked up a rationale which has a number of criteria in it on which we considered the roles that require higher level disclosures so we identified offences that resulted in serious harm to a person that represented a significant breach of trust and or responsibility that demonstrated exploitative or coercive behaviour that demonstrated dishonesty against an individual that demonstrated an abusive position of trust or that displayed a degree of recklessness and we determined in looking at offences that already exist in legislation and offences that have already been disclosed by Disclosure Scotland over the past five years or so that there are a certain group of offences that are so serious that they should always be disclosed and they are offences that fall into one or other of those criteria. We also then determined that there were another set of offences that contained an element of those behaviours but that were not as serious as the first set that should always be disclosed and a set of offences that the passage of time may well diminish the relevance of those offences to make in the employment decision. I don't want to go through all I think it's 17 in schedule A and 23 in B we could debate them all probably in detail but clearly some are close to the line as to whether they're serious. Fraud jumps out at me, you could be a tiny fraud which I would accept might not always need to be disclosed but fraud can also be an extremely serious thing so was it difficult to split the two into lists? It's been a lengthy process it's been a process that has gone through a number of stages and a number of exercises of both internal rationalisation and external rationalisation. We do absolutely accept that there are some offences that could easily be in one list or the other. Some offences such as fraud can cover a very broad range of behaviour from serious to extremely serious. We did however take account of the fact that the sentence that is imposed by the court is the first consideration in determining whether something should be disclosed or not. If the offence in any particular instance was extremely serious it is highly likely that that will be reflected in the sentence that was imposed by the court and if it's a lengthy sentence then it may never be spent and will therefore always be disclosed. If the court imposed a much less what's the right word a less harsh sentence then we'd need to take that as reflecting the fact that the offence in itself was probably at the less serious end of the scale. My understanding is that the regime is slightly different in England, Wales and Northern Ireland and when they took things forward they relied in evidence from the independent advisory panel for the disclosure of criminal records. Has the Scottish Government had some equivalent or source of evidence to base its rules on? There is no independent advisory panel for Scotland. In developing our rules and our offence lists we did pay close attention to what was done in England and Wales and in Northern Ireland we paid attention to their lists of offences that will be filtered or not filtered and we also looked at the other rules that they had put in place. The regimes in place in England and Wales are quite different to what's in place in Scotland. They are in some senses a lot more restrictive for example if you have more than one conviction on your record in England and Wales then everything will be disclosed regardless of what those convictions are. Also if you have any sentence of imprisonment everything will be disclosed. That approach was not appropriate in Scotland and in fact our regime offers more flexibility in terms of considering the nature of the sentence and the number of convictions. Pursue that particular issue clearly we're not here to compare ourselves with England in that respect and they will have to answer the courts on that one. I'm just wondering when you compare defences in Scotland and England do you find that whilst the words are often very different that the general nature of the offence did appear to be the same or are our legal system sufficiently different that the offences were often not comparable anyway? It varies depending on which offence you're looking at to be honest. There are some that are different and there are a lot that are very similar but as I say we did take account of everything that we have disclosed since 2011 both from CHS records and from PNC records and we also looked at what disclosure and barren service have on their filtering list which does include a range of Scottish offences so broadly the two lists are comparable but there are certain offences that exist in Scotland that don't exist in England and Wales. Just for the record can you confirm that there is no known offence in Scotland that isn't on one of the lists? Did we deliberately miss anything out or is everything covered? As far as I'm aware we've covered everything even things that exist in legislation but that have not been prosecuted yet. Yes, indeed. Yes, you said that one of the few pieces of response you'd had to the consultation was that the question over 10 years or 15 years for when something might have to be disclosed can you explain to us where the 15 came from and why that's felt to be appropriate? There were a number of factors taken into account in reaching a 15-year decision we looked at the CHS weeding rules that the Police Scotland apply they apply a 70-30 rule where your conviction has to have been on record for 30 years and the offender has to be aged 70 before it will be automatically weeded from CHS We also looked at the maximum rehabilitation periods under the Rehabilitation of Offenders Act and the longest period of time that it takes for any offence to be rehabilitated is 10 years so for practical reasons we couldn't have a disclosure period of less than 10 years because that would have then rendered the provision for disclosure of spent convictions meaningless for any sentence that had the rehabilitation period of 10 years so we had to choose something between 10 years and 30 years it's a matter of judgement what length of sentence we chose we felt that 15 years was half of the 30 years that something stays on the record it covers the time period in which people are likely to be seeking employment and voluntary roles we opted for 15 years moving on slightly my understanding is that the Supreme Court had a number of criticisms or demands or requests for what should be factors and these included the nature of the offence the disposal in the case and the time that has elapsed have been taken into account but the fourth one was the relevance of the disclosure information to the employment sought and I think we've had some, when we discussed it before in the committee, some questions around that because it appears that disclosure Scotland has no discretion whether or not to withhold disclosure by looking at what the actual employment sought might be can you explain how you feel that we're still following this relevancy principle? Yes, our considerations of relevancy applied primarily at the point of developing the offence lists so careful consideration was given to the attributes that are required for roles that require higher level disclosure and the offence lists were developed in the basis of those attributes so the system that we have put in place doesn't make any assessment of the relevance of the offence at the point at which the point in time in which the disclosure application is submitted because the assessment of relevance was carried out in the development of the offence lists so those offences that are on those lists we believe are relevant to any of the roles for which a higher level disclosure is made Okay so relevance only applies then to the offence and does not apply to the employment so you're making no distinction between different types of employment the assumption is that if that particular disclosure the higher level disclosure is required then it is a blanket The rehabilitation offence and exception in Scotland order sets out the types of employment occupations and professions which has been agreed by Parliament that require higher level disclosure so there's already a scrutiny there by Parliament in order to decide what type of employment requires higher level disclosure and yet there is this possibility that people can go to the sheriff and get something removed so that almost implies that maybe some of these offences would not be relevant the offence could be 14 years old a person may have done wonderful things since they got convicted there's a whole variety of reasons that the sheriff may take into consideration based on the evidence the person provides them with and it may be to do with the fact that that thing that you did 15 years ago or 14 years ago or 12 years ago for that particular job may not be in the eyes of the sheriff but certainly there's specific jobs, professions occupations that Parliament has agreed requires a higher level of scrutiny than any other job that's not in the order so there is a relevance factor to those jobs and that's why they require a higher level disclosure obviously the sheriff, the appeal process the sheriff can consider the evidence that that person provides to them in order to make that appropriate decision and whether that thing should be disclosed or not if it's not protected I think what I'm struggling with and I don't know about the rest of the committee is the word relevance that seems to be being used in a very broad brush in the individual person and the individual job employment and how the two relate to each other and I mean I just find it hard to believe that we shouldn't have a system before it goes to the sheriff as to consider relevance and we just say everything's relevant and then it's up to the sheriff to look at it more carefully I just wonder within Disclosure Scotland why would they not look at it more relevantly or exactly if I take a particular one like fraud again that would absolutely be relevant to some jobs but I suspect it would be less important for other jobs where there was no financial angle to the job and yet some of them might presumably need a higher level disclosure so why is it is it just a cost saving thing that Disclosure Scotland couldn't look at individual cases and we just leave that to the sheriff I think it's fair to say that there is a very real practical issue looking at the types of jobs that are prescribed for requiring a higher level disclosure within those jobs there are a myriad of roles so do we need to create a list of offences for every particular role that exists and if we do then the practical application of that becomes extremely difficult and it introduces a huge scope for error on the part of ensuring that you're applying the right list to the right role it also makes it extremely difficult for members of the public who are applying for disclosures to understand which particular list applies to the particular role that they're applying for I would re-emphasise again that the relevance we believe is contained in the offence lists we're not disclosing everything types of offences that debate and discussion has determined actually are not relevant to roles required in higher level disclosure and generally speaking we won't disclose those so the offences on the lists are we believe relevant to those jobs that require higher level disclosure Just ask you about relevance on the cusp of time and is the Government's position that the cases on the cusp of the roles where spent convictions information is disclosed to an employer whether following an unsuccessful application to the sheriff or otherwise is the Government's position that the issue of the relevance of the conviction to the particular post therefore is for the employer to decide and not the state So is that when the higher level disclosure is issued it's not a protected conviction? Even following an unsuccessful appeal to a sheriff perhaps when the issue of relevance on the cusp to the particular post is that? If it's on the cusp it won't be it won't be protected On the cusp of being non-disclosable do you mean? I'm sorry On the cusp of being protected so for instance it's 14 years 14 years and 9 months the law does not allow any discretion for disclosure Scotland in terms of what is included on a disclosure certificate if the conviction is less than 14 years old and it's on the rules list and depending on what the sentence is then it will be included on the certificate it's a matter then for the applicant as to how they want to handle that and there is an option for the applicant if for example the conviction was say 14 years and 11 months old the applicant could apply for a new certificate a month later which the conviction would then not appear on that would be a simple way of dealing with the matter if they don't wish to do that they have the option of being able to apply to a sheriff at the end of the day it's for the employer to look at that conviction on the record and say whether they want to take it into account in the employment decision or not so it's ultimately for the employer then in the set of circumstances unless the sheriff determines that we must remove the conviction from the certificate great thank you can I just return to the principle of your answer please Ms McKeith because you commented that there are practical reasons why Discosia Scotland can't take these things in account in every case because you're dealing quite literally with thousands every week but is there not a legal reason why you can't it's quite simply you're not a tribunal you're not actually entitled to do that and actually even if we were to ask what you should you'd then turn round and say well we're not actually empowered to do that and they'd need to legislate to empower you to do that as things stand at the moment we're not empowered to do it there is no discretion for the decisions that are made by Discosia Scotland vet and staff so you do need a set of rules which are inviolate and the discretion as Mr Graham has commented has to be the parliamentary discretion to tell you that the rules are applied or to tell us that our lists are wrong or for the judicial review to tell us that something is wrong just because of where my colleague John Scott has taken us I feel it might be useful to just test something with you for certain kinds of employment the enhanced disclosure must be provided it is then for the employer to decide on the basis of what's being disclosed whether to proceed with the employment but is it not also fair that in many of the instances concerned and my own experience tells me this relates to critical national infrastructure like oil terminals banks, power stations and so on and so forth there are other considerations that the employer then has to apply in other words they could get a horrendous enhanced disclosure read it they don't have the free power to then conclude that they should employ that person there are other constraints there are outwith this system altogether that would be likely to apply in those circumstances is that a generally correct thing for me to be saying I don't know the answer to that one that particular employment just to be clear critical national infrastructure and you'll be aware if I recall correctly there are five levels are governed by legislation in and off their own I mean when I used to run a bank's computer centre I used to be visited once a year and inspected as part of the critical national infrastructure either at level 3 or 4 I can't remember which so I didn't actually have free hand in who I employed and I'm just making a very general point I'm not asking for a specific response but just there are other legal constraints that will fall upon employers in making employment decisions even when they've been disclosed or not disclosed and I just wanted to make sure that we were quite clear about that on the other end of the table they are responsible for their part of the system and for others but it's interesting to have that on the record Did John Scott want to come back in? I think the distillation of what has been said is that there is essentially no discretion therefore because an employer if it's on the cusp and notwithstanding that that employer may wish to take somebody on if they are still within the time limit then they will not be able to if the conditions of the employment implies that they are not able to Someone from having a job gives the employer access to information in order to make an appropriate determination of that individual doesn't actually say if it's disclosed through the Rehabilitation Offenders Act I disclose that thing well now you've disclosed that that's a spent conviction high-level disclosure I must now dismiss you or I not employ you if there are other rules within employment that says if you have committed ex-offences and that's on disclosure we can't employ you because you're not a fit and proper person to be part of this organisation that's separate from the decisions that are being made there is no discretion if that is the case but the employer has full discretion as to what aspects of the information on the disclosure they want to take into account now the employer may have other legal constraints on them in relation to the types of persons that they can employ but in general terms the employer is free to disregard all of the information on the disclosure if they so wish if the person says well I am now a changed person or whatever there is also a code of practice issued under the Police Act by Disclosure Scotland which gives some guidance to employers about how they handle information that they've received on a disclosure and it's quite clear that a disclosure which records convictions does not necessarily mean that the employer is employed is a matter for the employer to take into account and make their own decision okay that's very helpful do we John? just tie up I was asking this kind of section I mean I think maybe I'm repeating myself but I just find it strange most organisations I know even most employers if one has a grievance before one goes to employment tribunals or the courts and that would also be the case with the DWP if somebody has a problem with their benefits but here it seems one decision is made there is no possibility of a review no possibility of an appeal and it goes straight to the courts and I just find that a strange system is it not a strange system? it's not entirely different from the system that exists for when Disclosures Scotland take decisions to bar people from doing regulated work with children and adults if they take a decision then the appeal is straight to the sheriff so in a sense there is a parallel already in the operations of Disclosures Scotland for this kind of model and one of the issues around some kind of internal review by Disclosures Scotland after the initial disclosure is issued is that Disclosures Scotland could struggle to have sufficient information about the role because they are then relying totally on the applicant to tell them what that role is and as Diana said there is a myriad of different roles included within the posts for which enhanced for which higher level disclosures are available additionally it could be quite difficult for Disclosures Scotland to get any information about the actual offence that was committed particularly if it was quite an old offence and again they are entirely relying on the applicant and that kind of lack of that kind of lack of information will lead to unfair decisions because Disclosures Scotland just doesn't properly have the information to make the decision whereas a sheriff would be able to obtain that information not just from the applicant that's a very helpful answer that's pretty clear it raises another question in my mind but I don't think we're going to sort them here given that one of the points from the Supreme Court was the relevance of the disclosure information to the employment sort the answer to that seems to be well that's actually not a judgement that Disclosures Scotland could make and I absolutely respect that in a lot of cases that would be a very difficult decision for them to make because they're just not in a position to get sufficient information to make a decision, a proper decision in each case so you then end up with a discretionary system which is flawed OK, I accept that, thank you thank you I just want to move on to the processes and decisions you've made in policy terms around applications for the sheriff for having matters that might be deleted in particular can I start with I understand that in Northern Ireland and in England and Wales in response to the judgment there is no similar ability of people whose offences are going to be disclosed to go in legislative terms to the equivalent of the sheriff court and challenge it why therefore have we ended up with that written into what we're doing when it's not written into England and Wales England and Wales have provision in their regime for disclosures to be considered by an independent assessor rather than through the court and we did look at that and consider it and we decided that that would require Disclosures Scotland to create some kind of tribunal or to give the function to an existing tribunal in order to make those discretionary decisions the alternative was to make provision for the appeal through the sheriff court and that was the option that we chose so therefore all of the regimes in the UK have a process for independent challenge to what's being disclosed albeit we've chosen one way others have chosen another way that's quite quite helpful one of the things being told that the Scottish ministers will invariably oppose our sheriff court action by an individual whose offences are going to be disclosed is that statement just made correct in policy terms at the moment I'm not sure we would say that they would invariably oppose it I think we would say that we would have to look at the individual case each individual case and decide whether and perhaps over a period of time as the courts concluded in circumstance A that a particular kind of offence should not be disclosed the Government would not repeatedly go back in what they judged to be similar circumstances I would assume that would be the case for the individual who's seeking to challenge a disclosure of Scotland decision to disclose something on the second list is there going to be legal aid available to that individual we understand that civil legal aid would be available that's helpful at this point I want to change your answers but you're saying would be will be is this not already happening we haven't yet we have had thus far some notifications of an intention to make an application to a sheriff we have not to date received papers and we have spoken to the courts and tribunal service last week and they have advised that they have not to their knowledge to date on applications so without worrying what the numbers are this has been up and running for several weeks since the 10th of September and you're dealing with thousands we have had so far seven notifications sorry I meant in terms of actual disclosures or actual disclosures around a thousand a day so we're dealing with tens of thousands tens of thousands of disclosures to be made under this and because it's a very quick process you would have expected something to come through and I really conclude that most of these are not being challenged yes right that's helpful forgive me now we've clearly got at the end of legal process a situation where some offences are disclosed and they're on the disclosure notice and others that are not in the case of a challenge to the draft disclosure that someone who's subject to the disclosure is making to the court how do we protect the offence that is being challenged a defence that's on the original list from the disclosure Scotland that is now being challenged to be excluded from being disclosed does the court action itself not disclose that offence once an applicant notifies us that they intend to apply to a sheriff we will not will not send the disclosure certificate to the employer to the countersignatory I understand that it's much more about the court process but the court the sheriff can't order the proceedings to be held in private if the sheriff thinks that's appropriate so there could be private proceedings what is your expectation as to private sheriff's behaviours I think that's quite difficult to assess at the moment in terms of I've already mentioned that there are appeal processes against listing decisions so those aren't normally private decisions when someone is listed and then barred from doing regulated work with children those go through the court process so potentially could become public but there haven't been any issues about those becoming public in particular since the basis of objecting to disclosure of particular offence may relate to the post for which the person is applying without it being disclosed to the potential employer how is it possible to obtain information about the nature of the post without involving the employer in the court process and thus to closing to the employer that there is this offence this is the category of good questions you didn't want to be asked the court can make inquiries of the employer without disclosing what the offence is but given sorry do forgive me I'm going to be quite obtuse about this given that the defence the action taken by the individual may and I only say may focus on the specific job specification and activities and responsibilities related to the post it will hardly I suggest be adequate for the court to rely on what the individual says are the responsibilities of that post in coming to a conclusion as to whether it's appropriate for this particular previous offence to be struck from the disclosure list is that not a fair comment how can it possibly be the case that the court can come to a judgement in this matter without having the specific detail from the employer who may well be a private sector employer I think the court could, as Diane says, the court will not need to disclose to the employer what offence is being considered or more than one offence it could ask the employer though what the nature of the role is without it will then become apparent to the employer that there is appeal on going against the disclosure certificate but the employer won't then have the details of the offence that the person is asking to be removed from the certificate. Let me move to a very specific example there is nothing on A to A that needs to be disclosed in this case there is a single offence on 8B in this particular case and it is being challenged in the court now the employer clearly does not end up knowing what the offence is being challenged to be included in the list but is aware of the nature of there being a challenge the challenge is successful and therefore there is a disclosure certificate enhanced disclosure certificate providing the employer that has nothing on it is it not fair to say that at this point the employer now knows that notwithstanding there having been provided with a disclosure certificate with nothing on it the offence that is being deleted from the draft disclosure certificate they could also deduce that from the legislation in terms of if they are looking at they have submitted the application and more than 14 days have elapsed and they haven't received it and they want to start asking questions about where is my copy of the certificate they can deduce from the legislation that they haven't received it and say something on it that they can't that's the point I was just going to come to what constraints are there on the employer if the employer responds to something which in legal terms is not at the end of this process being disclosed if the employer is acting upon a belief that there is a matter not disclosed in the enhanced disclosure certificate but which might have been disclosed in other circumstances is there a course in relation to the employer's actions in particular to deciding not to employ in those circumstances the rehabilitation offence obviously says that if it's not disclosed then it can't be prejudiced the person in section 4.3 of the act actually says it can't be prejudiced however there's no powers there's no civil or criminal penalties within the legislation that would have the individual recourse how would you know that the employer decided not to employ the person because of the disclosure the legislation says they shouldn't prejudice the person if nothing is included even if they thought there may be even if you googled and saw something and it was spent the rehabilitation offence act section 4.3 says you cannot prejudice but we know employers from the information are certainly saved from all the stakeholders they can't prove that it's happened and a lot of the when we did the discussion paper in 2013 in engagement events that we had a lot of individuals were saying to us they feel that employers do do this but there's no action they can take against that and that was one of the things that we put forward when we did a consultation paper on the rehabilitation offence act which was just finished on 12 August future work is around looking at what can be done about employers who although the legislation says you shouldn't prejudice someone for not disclosure, a spent conviction if something is not included in a higher level disclosure what if they do does the legislation need to change in that way but at the moment there's nothing in the legislation that says there's a penalty to the employer if he does do that or she does that or they do that just to draw be doing it under the legislation even if you think there's been something there so to draw my interaction with the witnesses to a conclusion this is an existing issue in that this can happen anyway 74 correct correct so it's an existing issue about there being a risk of the way employers respond to information out with the disclosure process that they may by other means become aware of or even part of the interaction and that therefore what we're doing here in our narrow consideration of the order that's before us we are not making this either better or worse in any material sense by the order that's before us this is a problem that pre-existed what we're discussing today continues to exist prejudice or a disclosure of a spent conviction or something that's not disclosed a higher level disclosure we're not making it worse we are remaining in the position when before this order came forward that's the point I wanted to draw us to having had that discussion about I think that would have to require a primary legislation through the Rehabilitation of Fenners Act to change that but that need would have predated any of this coming forward in any event that's why we asked a question in 2013 and I've been asking a question for the last 11 years John, good John, did you Thanks following on from what Stuart Stevens has just been asking about whether Disclosure Scotland could find out the relevance of a disclosure for a particular job and the answer was no but now Stuart Stevens has asked the same question about the courts and the answer appears to be again no, they probably couldn't so in both cases they would appear to have to go to the employer probably or if maybe online there would be a job description or something like that to investigate further about the job is the question in my mind as to why it's better for the sheriff to do a bit of digging rather than Disclosure Scotland I might just try to pick up on this is a policy issue about whether or not it would be better for Disclosure Scotland to be able to do this kind of thing because I think we've already had the discussion that says that you currently don't have the powers to I think I've taken with that but there is just a policy issue of her what might be the better way forward Disclosure Scotland wouldn't have those powers at the moment so they would have to be given additional powers and so that what considering how any appeal type process would operate consideration was given to whether Disclosure Scotland would need additional powers the sheriffs already have those powers and can exercise them more fully than Disclosure Scotland is able to do rather than trying to give Scotland powers to then try to gain information either from individuals or from employers Disclosure Scotland does know from the experience of dealing with the listing decisions that can in certain circumstances be very difficult to get information and so that was a material consideration in passing the appeal process to the sheriff in this case Jocker Can I just take you back to something that you were saying a moment ago and it's concerning the court action and the ultimate disclosure although non-disclosure and without prejudice to an employer that someone may have a spent conviction and there are any ECHR implications under article 8 because if by inadvertence shall we say the employer does discover that someone has a spent conviction are there any are you saying that it's without prejudice and therefore there's not an issue in terms of ECHR If the employer is inadvertently finding out about someone's convictions then it's not the state that's disclosing them so it's not the state that's breaching the person's article 8 rights the article 8 is about the about the process whatsoever leading an employer I think the words that we used earlier to conclude that Well people can ask for their convictions to be removed from google as well because you know it's public information at the time when someone goes to court and gets a conviction however the legislation makes it clear that through any means whether someone is in employment and somebody says by the way that Mr X has got a conviction that's spent the employer can't then go up to the person and say I'm going to dismiss you for that spent conviction now if employer decides to make those decisions about how they treat their employers then that's not the Scottish Government or the state that's making that that's an employer they'd have to justify that and the difficulty obviously they said with the legislation although they can't be praised there's no penalty to you there's no penalties if employers are discriminating against individuals for employment reasons through employment law rather than through the rehabilitation offenders act I just wanted to pick up on that point I understand under the EU legislation that is introduced what you might term the google law the decisions are actually made by an independent panel appointed by google and the decisions they have made so far they have decided in the case of a number of conviction related requests for deletion that it's in the public interest not to delete them but the very real difficulty appears to be that this is not this is extra legal rather than intra legal the process around how this is working so I suspect we shouldn't rely too much on the presence or absence of things that's how people are trying to do that the legislation doesn't make any difference the fact is that the law says even if it's on google and it's spent you shouldn't be prejudiced by it that's the key thing what the legislation says okay are we done on that could I just ask then in relation to those rare cases that would seem to finish up in front of a sheriff is there any expectation that folk will get legal aid that they will that will be appropriate yes, we consulted with the Scottish legal aid board and they estimated that between 75% and 100% of applicants would be likely to be eligible for legal aid right, thank you okay could we then move on to guidance and the question of to what extent the government and Disclosure Scotland is providing guidance to those who apply and those are employers indeed we've had a lot of discussion about what employers should or should not be doing as to how all this will be communicated to those who need to know we have provided fairly extensive guidance on the Disclosure Scotland website we have kind of basic background guidance on how the system works we have a frequently asked questions section which we are regularly updating we have within Scotland's customer liaison team we are keeping a log of all the inquiries that come in and the particular issues that people are raising we are then providing lines for the customer liaison team to use and respond to people where else are we providing going I think those are the main Scottish Government website also created a page on the Scottish Government website on the rehabilitation affairs to the Disclosure Scotland website because it was a moving piece of guidance in terms of what Disclosure Scotland was doing rather than having Scottish Government guidance the Scottish Government webpage links directly to the Scottish Scotland guidance so when that guidance is updated the link is updated as well for Scottish Government I guess one of the problems in searching these things is just to know the right word and I'm just wondering how much thought has been given to to help people what words people can search for and still get to the right place because that can be one of the... Scottish Government high level disclosure so you type in high level disclosure and come on with that rehabilitation offender recruitment convictions but I'm just thinking some people might not go high level disclosure because those might not be the words that spring to their mind As far as the Disclosure Scotland website is concerned changes to the disclosure regime on the front page of our website and various links at various points and that's what the guidance is about I'm always linked at it for two as well Okay, I just want to encourage you to think that there might be people out there who don't do disclosure as a word in their vocabulary On the Scottish Government's computer system there's a method that you've got to put in and I've tried to think of every single possible word that somebody may think of in order to think about employment decisions and you've got a whole, so there's a whole array I can't remember all the different words I've put in there but there's a whole metadata you have to create in order to think what would somebody think they would put in there in order to come up with something That was the bones of what I was asking and I'm grateful for the response It's perhaps also worth noting that as far as applicants who receive a certificate that has a spent conviction on it on the list of offences which are disclosed subject to rules are concerned when they are sent their certificate they are also sent with a letter an insert that goes in with the certificate explaining to them the fact that they can, if they wish apply to a sheriff and explaining that process and linking again to the guidance on the website and to the customer liaison team Thank you very much, that's helpful Right, I think that brings us on to the technical stuff with John Thank you I want to find out the meanings of the words for the same purpose article 3 paragraphs 2A and 3A of the order insert provision in the 1997 act to the effect that a criminal record certificate or an enhanced criminal record certificate must not give details of a spent conviction which was instituted from a previous certificate by virtue of an application to the sheriff where it appears to the Scottish ministers that the application is made for the same purpose for which the application for the other certificate was made does for the same purpose mean for exactly the same post or for similar types of work and how is the provision to be applied in practice Does the wording clearly give effect to the policy intention In relation to enhanced and standard disclosures is that when somebody makes an application for one of these types of disclosures then they have to put the post applied for so primarily it's going to be based on the nature of the post that the person has entered on the application form so it won't necessarily be the role that the exact role it has to look at the job the job that they put in the application so it could be for a similar type of work rather than for exactly the same post yeah wouldn't it not for exactly the same post if they want to apply for a job with another employer then that would fall within the same purpose of the disclosure it's not for the same purpose with the same job with the same employer So in practice how will that be interpreted then if it's for a similar purpose but not the same purpose well it's not the same job it's not necessarily not the same job with the same employer it doesn't have to be the same employer that the person is working with it doesn't have to be broadly the same job with another employer and that the purposes particularly for for the enhanced disclosures the purposes are quite clearly set out in the legislation so somebody would have to say in their enhanced disclosure that it's for the purposes of adoption of a child so in that example they may have applied for adoption of one child for whatever reason and so if there was another application for an adoption process then that would be the same purpose even if it's with a different local authority or something like that that would be the same purpose So you are content then although you haven't had much time to reflect on it that the wording does clearly reflect the policy intention Yeah we did give that wording quite a lot of consideration and we felt that that was clear that it ties in with a lot of the other wording in the police act around the purposes of the disclosure Okay another question and the rules enable an applicant for a disclosure certificate who believes that the information contained in the certificate is inaccurate to apply to the Scottish ministers for it to be corrected an application could be the subject of an application to the sheriff the option of applying for correction by the Scottish ministers is not available Can you explain in what circumstances an applicant may apply to the Scottish ministers for a correction and in what circumstances the only option available is to apply to the sheriff and how should an applicant know which route to pursue if an applicant has some if there is an issue around the name of the person if there is an issue around the penalty that has been imposed for example then that would still be dealt with by the Scottish Government as correcting an inaccuracy on the certificate the only the sheriff to make an application is if they consider that they want to apply for a conviction to be removed and given that they have to notify Disclosure Scotland that they are going to make that application if they then say to Disclosure Scotland is because the name is wrong on or that you've got the penalty wrong or I wasn't convicted of that offence then Disclosure Scotland can intervene at that point and say well it needs to be dealt with by Disclosure Scotland rather than going down the appeal process so the appeal process is absolutely restricted to the situation where the person wants to remove a conviction unwrap that if I've got that correctly then what you're saying is that the appeal to Scottish ministers which is effectively to Disclosure Scotland is that what's on the form is wrong whereas the appeal to the sheriff actually it's right but I don't want it disclosed correctly disclosed but I would rather that it wasn't there's a whole host of reasons why it might be inaccurate and that process has existed and all the time that Disclosure Scotland has been issuing disclosures super thank you the order does contain some power for Scottish ministers to alter the lists so I'm aware I understand it's an affirmative procedure can you just tell me why you feel that's the appropriate way to do it we felt that it would be necessary at points to update the list of offences if new offences were created potentially those could be added into the list as part of other consequential amendments to legislation but if they weren't then we felt it was important to have a power to be able to change the lists in the schedules by an order making power and we thought it would be appropriate for that to be affirmative you see that as a way of bringing in new potential offences when they appear rather than moving offences between the lists potentially moving between the lists but I think that the primary purpose of it would be to add new offences to it if when those offences are created alternatively if we had various decisions from a sheriff that certain offences were just not relevant then it may be the case that then we would want to remove offences but in general it would be for adding new offences right and in general you would expect a new offence to be created by statutes that could happen these days and that statute would itself probably put that offence on this list so that's probably redundant but nonetheless it's there it's there to make sure that there's always a power in case for some reason it doesn't get done okay thank you very much I think that brings us to the end of the things that we had discussed and I'm looking at my colleagues who indicate that we've finished this session I'm very grateful to you for what's been a brief list to spend this meeting right returning to agenda item 3 draft instruments not subject to any parliamentary procedure the public services reform social work complaints procedure Scotland 2016 draft 2015 sorry SG 2015 149 this instrument is subject to a super affirmative procedure at this stage the draft order is only laid for consultation purposes it's laid before the parliament for 60 days after that period ministers have to have regard to any representations and the order will be laid in draft for approval by parliament the draft order does not expressly revoke the social work representations procedure Scotland order 1990 i 90 90 2519 to remove that order from the statute book Scottish government has undertaken to include the revocation within the draft order following the current consultation stage does the committee therefore agree to draw the order draft order to the attention of the parliament on the general reporting ground in accordance with proper drafting practice it should have included the revocation of the social work representations procedure Scotland order 1990 si 1990 2519 to remove that order from the statute book subject to the saving provision in article 7 no significant points have been raised by our legal advisors on the public services reform in solvency Scotland order 2016 draft SG 2015 156 the committee content with that instrument place thank you our legal briefing notes that unusually articles 8 9 and 13 of the instrument are placed in square brackets I said 8 9 I meant 8 10 and 13 apologies well the instrument are placed in square brackets as provisional it appears that these provisions would become redundant or cease to have effect on the coming into force of certain provisions in schedule 9 to the small businesses enterprise and employment act 2015 it seems that it would have been possible instead to have added footnotes containing explanation why those articles are provisional on the relevant provisions of the 2015 act coming into force given that this is a draft order which has only been formally laid before parliament according to section 26 2 of the public services reform act 2010 would you agree with the legal advisor's suggestion that the use of bracketed provisions should be avoided in a draft instrument which is laid before parliament yes right no points have been agenda item 4 apologies slow down a bit instrument subject to affirmative procedure no points have been raised by illegal advisors on the Scottish tribunals listed tribunals regulations 2015 draft nor the Scottish tribunals administrative support for limited listed tribunals order 2015 draft nor the courts reform Scotland act 2014 consequential and supplemental provisions order 2015 draft is the committee content with these please thank you agenda item 5 instrument subject to negative procedure the private and public water supplies miscellaneous amendments Scotland regulations 2015 SSI 2015 346 the meaning of the provisions containing these regulations could be clearer in two respects firstly in new regulation 5a of the private water supplies Scotland regulations 2006 the 2006 regulations it could be made clearer that reference to a concentration or value which would make water unwholesome refers to water which fails to satisfy the requirements for wholesome water in relation to a private water supply for human consumption as specified in regulation 7 of the 2006 regulations secondly regulation 11b1 substitutes from words in column 3 of the entry for total indicative dose item number 33 in the table in schedule 3 to the 2006 regulations the substituted words are from 4 to the end but 4 occurs twice in the provision so it's not clear from where the substitution should occur it could have been made clearer that the words should be substituted from 4 where it first occurs to the end of the provision the Scottish Government has indicated that it proposes to clarify regulation 11b1 by amendment of the next suitable opportunity this is understood to mean that regulation 11b1 another reason to amend the 2006 regulations becomes apparent at a later date do you members have any comments? Stuart? The use of the word unwholesome when the original European regulation uses the phrase wholesome and clean it would almost invariably I guess be helpful if the Government is drafting its implementation of European regulations to use exactly the same phrase unless there is a specific legal reason related to Scots law for using a different phrase and if they are using a different phrase to make sure that an explanation is why that different phrase is being used is provided this is an instance but I think there is a general point here about how drafting should be undertaken when we avoid having discussions about whether the use of unwholesome is the antithesis of wholesome and clean which is not in plain English immediately obviously the antithesis that we are having now Does the committee agree to draw the regulations to the attention of the Parliament on reporting ground? H as the meaning of the provisions could be clearer The committee also agreed to call on the Scottish Government to clarify both provisions through an amendment as soon as practical Thank you The Glasgow Clyde College Removal and Appointment of Board members Scotland Order 2015 SSI 2015348 The instrument fails to comply with the requirements of section 282 of the Interpretation and Legislative Reform Scotland Act 2010 The instrument was laid before the Parliament on 8 October 2015 and it came into force later that day The instrument does not respect the requirement that at least 28 days should elaps between the laying of the instrument which is subject to a negative procedure and the coming into force of that instrument As regards its own interests the Scottish Government's decision to proceed in this manner the reasons for doing so are outlined by the Cabinet Secretary for Education and Lifelong Learning in her letter to the presiding officer dated 8 October Does the committee agree to draw the instrument to the attention of the Parliament under reporting ground? Gray Sorry, I can hold it in ground J To comply with the requirements of section 282 of the Interpretation and Legislative Reform Scotland Act 2010 As regards the Scottish Government's interests to proceed in this manner Does the committee agree to find the failure to comply with section 28 to be acceptable in these circumstances? No points have been raised by our legal advisers on the climate change duties of public bodies reporting requirements Scotland Order 2015 SSI 2015347 Is the committee content with this instrument, please? Yes Gender item 6 instruments not subject to any parliamentary procedure No points have been raised by our legal advisers on the Housing Scotland Act 2014 Commencement No. 4 in amendment Order 2015 SSI 2015349 Is the committee content with that instrument, please? Yes Gender item 7 The Footway Parking and Double Parking Scotland Bill Members are invited to consider the delegated power contained in this bill If members are content with the recommendations in the paper, this will form the basis of a report to the lead committee A draft report would not be discussed by the committee before it is published Is the committee content with the delegated power in section 6 of the bill, please? Gender item 8 Is the Scottish Fiscal Commission Bill and the item of business to consider the delegated powers provisions in this bill If members are content with the recommendations in the paper, this will form the basis of a report to the lead committee A draft report will not be discussed by the committee before it is published The bill contains 5 delegated powers Is the committee content with those delegated powers in sections 5, 11, 7, 26 and 27 of the bill? Yes That completes the public part of the meeting and I move this meeting into private Thank you