Official Report 666KB pdf
Regulated Roles (Prohibitions and Requirements) (Scotland) Regulations 2024 [Draft]
Good morning, and welcome to the 31st meeting in 2024 of the Education, Children and Young People Committee. Under the first item on our agenda, we will take evidence from the Minister for Children, Young People and The Promise, Natalie Don-Innes, and her officials, on the draft Regulated Roles (Prohibitions and Requirements) (Scotland) Regulations 2024. I welcome the minister and Gareth Wilks, the director of policy and customer engagement at Disclosure Scotland, and Magdalene Boyd, a solicitor in the Scottish Government’s legal directorate. I ask the minister to speak to the draft instrument for up to three minutes.
Good morning. I thank the committee for inviting me to give evidence on the draft Scottish statutory instrument. I hope that what I will say will be helpful to committee members.
The SSI has been made under powers in the Protection of Vulnerable Groups (Scotland) Act 2007. As you will be aware, the PVG scheme was the Scottish Government’s response to the Bichard inquiry, which was a public inquiry into how best to reduce the risks of harm to children after the horrific murder of two young girls in Soham. Recommendation 19 of the report set out the need for the registration of those working with children. That is fully embodied in the principles of the PVG scheme in Scotland, which has the unique quality of every PVG member being checked every day to ensure that they have not become unsuitable for work with children or protected adults.
The SSI sets out prohibitions and requirements that apply to organisations that employ individuals to undertake regulated roles either as paid work or in a voluntary capacity. The Disclosure (Scotland) Act 2020, which will come into force on 1 April 2025, repeals part 5 of the Police Act 1997 as it applies in Scotland and amends the 2007 act. The reforms require changes to the administration of the PVG scheme to enhance safeguarding in Scotland.
The 2007 act made it an offence for a barred individual to undertake or attempt to undertake regulated work, and it made it an offence for an organisation to knowingly employ a barred individual in regulated work. However, currently, an individual does not need to be a member of the PVG scheme to carry out regulated work.
One of the safeguarding reforms in the 2020 act is the introduction of mandatory PVG scheme membership for anyone who undertakes a regulated role. The mandatory PVG scheme will provide assurance that anyone who undertakes a regulated role with children or adults is suitable for that role. The mandatory scheme means that it will be an offence for an individual to carry out a regulated role while not being a member of the PVG scheme for that type of regulated role.
The SSI supports the mandatory scheme policy by prohibiting organisations from employing an individual to carry out a regulated role where the individual is not a member of the PVG scheme relating to that type of regulated role.
The SSI continues an existing prohibition to ensure that organisations continue to be prohibited from permitting individuals who are barred from regulated roles with children or adults to carry out such roles, and it requires organisations to remove an individual from a regulated role when they have been notified that that person is barred. Failure by an organisation to comply with the SSI will constitute an offence.
The offences created under the mandatory scheme will commence three months later than the majority of the provisions in the 2020 act. The short delay, which was welcomed by the committee at stage 1 of the bill, will provide a grace period for individuals who are not currently members of the scheme but who will need to become members when they are given the opportunity to apply to join from 1 April 2025.
The short grace period will also apply to the prohibition requirement in regulation 3 of the SSI to enable organisations to ensure that all relevant employees and volunteers who already carry out regulated roles for them are members of the PVG scheme and to encourage those who are not members to join, so as to avoid committing an offence.
Disclosure Scotland has already undertaken targeted engagement with relevant sectors and individual organisations that might not currently use the PVG scheme but will be required to do so, to raise their awareness of the mandatory PVG scheme and the date on which it will come into effect.
In addition, a wider public information campaign is under way to raise awareness of the impact of the implementation of the 2020 act more generally, and includes reference to the new mandatory scheme requirements and associated offences. Disclosure Scotland will continue to engage with and support the relevant sectors and organisations throughout the implementation period for the 2020 act.
I am happy to take any questions that members have on the SSI.
The act was passed in 2020, so why are we only now, at the end of 2024, looking to put this into legislation and make it mandatory?
Disclosure Scotland had always proposed to deliver the act in stages. That was discussed throughout the scrutiny of the bill. It was agreed as the best approach to ensure that we could work with and equally co-deliver the changes with stakeholders. It was also agreed at the time that there was a need for a fully digitised system that would support the statutory framework, ensuring that disclosure information flows safely, securely and in a timely manner.
With that in mind, Disclosure Scotland has implemented the legislative sections iteratively. Sections 63 and 89 of the 2020 act commenced on royal assent. From the point of royal assent until now, Disclosure Scotland has been managing several large and complex projects to successfully implement the rest of the 2020 act. I will bring in officials to talk through them, but they include the replacement of the previous system and platform.
Implementation was always planned to be incremental, due to the digitisation and to ensure that people are familiar with the different changes in the stages.
Given that, why do you still need the grace period? I find it quite strange and, frankly, unbelievable that we are four years in before getting to this point. Your Government published its response to the consultation in June 2019, when the need for a mandatory scheme received overwhelming stakeholder support. You knew from the very beginning—once the consultation had been launched and you had looked at those responses—that that element of it had received overwhelming support. Yet, five years on from that consultation, we are just getting around to putting that into the legislation. That seems to be a very long period of time to have elapsed.
I have given you some of the reasons why that has been on-going. It was agreed that the act would be implemented—
Sorry, minister. We have it on the record that it was agreed that it would be implemented incrementally. However, were there issues with the software and information technology over the period?
I will bring in officials to speak to that.
It is important to think about the scale of the changes that were required to underpin the requirements for implementing the Disclosure (Scotland) Act 2020 from a digital point of view. When the act gained royal assent, the system was paper based. We are now at the point of having moved to an online PVG scheme application system, which was brought in in 2020-21. In the course of the past year or so, an online account has been available, so that, for the first time, organisations and individuals can apply for and receive results digitally.
It is also important for the committee to be aware of the impact of the Covid pandemic on Disclosure Scotland services. The introduction of those services was done in a period in which Disclosure Scotland needed to pivot to respond to the pandemic, because front-line health and social care workers, in particular, needed to be able to get into work and be subject to the same rigorous checks as they are in normal times.
So, there were no issues at all with the IT system. Is it acceptable and the norm for the Government to take more than four years to set up an IT system? Is that what you are saying?
No, that is not what I am saying. The impact of responding to the global—
Covid would not have prevented a digital system from being set up and programmed.
When the Covid pandemic hit, the digital programme had to change in order to accelerate the introduction of those services. They have been introduced and there were no delays during the period of bringing them in. They are complex services to digitise, but we have done that, and they have been received well by those who use them. The digitised services have created efficiencies and a stable service for everyone who uses them and, ultimately, that is to the benefit of the children and protected adults that the PVG scheme is there to serve.
Minister, what is the Government’s assessment of how many people should be registered but currently are not?
At the moment, the figures that I have show that 12,741 individuals are barred from regulated work with children and/or protected adults.
Just for clarity, when you say barred, have those people gone through the scheme and been found to be unsuitable?
Yes.
However, because the instrument is making something mandatory, my question was whether the Government has any projections of how many people should have gone through the PVG scheme and been registered, but have not done so because it is not a mandatory scheme.
I do not have those numbers to hand, but I know that some sectors, such as sports agents and talent scouts, will be able to use the PVG scheme only from 1 April 2025, so some areas are targeted specifically. In answer to your question about how many people are working with children, young people or adults, but should not be doing so, I do not have those figures to hand, but I have an awareness of the areas that will be targeted.
What is the reason for those areas not being able to use the previous system?
The roles that the minister mentioned are being targeted because, currently, within the schedules of the PVG act, they do not qualify for the PVG scheme because they do not qualify as regulated work. One of the changes that the 2020 act brings is a move to regulated roles, and what roles should be in the scheme was looked at in the course of developing the act. The minister gave the example of sports agents and talent scouts; in 2017, the Health and Sport Committee remarked that those roles should qualify for PVG membership. The changes that are before us today require that.
It is also important to keep it in mind that the PVG act brings in a number of offences, including the provisions in regulation 2 of the instrument that is before us today. That means that there has been an incentive to use the PVG scheme. The overwhelming majority of those who can use the scheme do use it. Indeed, many sectors already treat it as mandatory. The areas that are coming into scope are the main focus of the engagement that the minister mentioned.
Has Disclosure Scotland done projections on how many additional people that could involve? If the Government does not have those figures, do you have those figures?
We do not have those figures to hand.
Over the past four years, you must have been looking to see what the increase of the workload would be.
That is part of the engagement that we have been carrying out at this time. We are confident that the changes will not have a significant impact on those volumes.
Do you not have the figures today, or you do not have them at all? Is it not something that you have looked at?
We do not have those figures at the moment, but we anticipate that we will gather them from those with whom we are engaging. We will be happy to provide updates as and when we can.
Why would you not have done that before now? What is your reason for not wanting to know what the increased workload would be, or how many people in Scotland should be PVG checked, but are currently not?
We have been working on an on-going basis to identify the sectors that will come into scope, and that has very much been part of the conversation.
Since when have you been doing that on an on-going basis?
We have been doing that since about July 2023.
You have been doing that for 18 months or so, but you still cannot provide any numbers.
We are engaging with areas that have not been required to use the PVG scheme up till now. Through the public information campaign that the minister mentioned and other communications channels, we are working to make them aware, first of all, that the changes will affect them.
Right now, sitting here in front of the committee, do you not know whether there will be an extra 10 people, 100 people, 1,000 people or tens of thousands of people?
From the estimates and engagement that we have had up to this point, we do not think that there will be a dramatic difference in volumes.
But you are making that assumption while not knowing what the numbers are. That is quite a brave assumption to make. Mr Wilks—
Sorry, I think that the minister wants to come back in.
09:15
As Mr Wilks has advised, there is on-going engagement and work in relation to gaining that data. We are happy to provide the committee with that when it is calculated or determined.
We are being asked to determine something today on behalf of the Parliament, and then the matter will go to the full Parliament. I would have hoped that that information might have been available to members.
I will bring in Jackie Dunbar.
Good morning, minister. First, I declare an interest as a former local councillor, as I am about to ask a question in that regard.
When I became a local councillor for Aberdeen City Council, I was PVG checked. Will the elected member role be classed as a mandatory role in the new scheme?
No, that will not be classed as a mandatory role in the new scheme. There has been a lot of work on that, and I know that the Education and Skills Committee scrutinised the issue during the passage of the 2020 act. The member will understand that that predates my time in the Parliament slightly, so I will bring in officials to speak about some of the work and why elected members will not be included in that mandatory scheme.
It predates my time here, too.
Could I clarify the question?
I just want to find out whether local authority elected members will be part of the mandatory scheme, given that they undertake duties that involve vulnerable adults and young children. When I was at Aberdeen City Council, I was under the presumption that being in the scheme was mandatory, so I just wonder whether it is mandatory in the new scheme.
Thank you for clarifying that. As part of the move to regulated roles, elected members at local authority level will qualify—that is really restating the requirement. So, to answer your question, if you were required to be in the PVG scheme as an elected member at local authority level, you absolutely will be required to be in it under the mandatory scheme.
We have had different evidence on that, then. The minister said that it is not mandatory for local authority elected members to be PVG checked as part of the scheme, but you are saying that it is. Can we get clarity on that?
Just to clarify, the important point there was clarifying the question. Ms Don-Innes is perfectly correct about the previous discussions around MSPs and other elected members at that level—that was discussed during the passage of the Disclosure (Scotland) Act 2020. There was an important clarification about the level of elected member that the question was about. That will be a regulated role—that is the position.
Ms Dunbar, are you clearer?
No, I am not.
It has been rather confusing. Minister, you were quite categorical. You did not mishear the question from Jackie Dunbar, and you are certain that those elected members are not included, but your official believes that they are. Can we get some certainty?
I am just trying to find out whether being in the scheme will be mandatory moving forward. I was under the impression that it was mandatory. I am just trying to find out whether it actually is—that is all.
Apologies—I misheard the question. I was referring to the discussion on elected members relating to MSPs in the previous committee scrutiny and discussion.
Some of my questions have been covered, so I have just one left. I note that consultation has not been carried out specifically on the regulations. Is that because there was enough consultation previously around the 2020 act?
Yes. That is a simple answer.
So, even though that was a few years ago, you do not think that there is any reason to have a consultation.
I do not believe so. The regulations received strong support during the scrutiny of and discussions on the 2020 act, so it was felt that consultation was not required and would perhaps cause further delays.
Good morning, minister, and good morning to your officials. I want to go back to work that the Health and Sport Committee did in 2017, when I was a member of that committee. Specific concerns were raised in relation to the Scottish Youth Football Association. A BBC Scotland inquiry found that 2,500 youth football coaches did not have full disclosure background checks but were working with children. Can you update us on that? I take it that, since the regulations were passed, that has not been the case. Can you give the committee your assurance on that today?
I am sorry, but I do not understand the question.
Regarding the 45 sports governing bodies, BBC Scotland undertook an inquiry into how many youth football coaches were working with children before they had received a PVG check. Is the Scottish Government confident that that has been rectified since 2017, and that no one will have been working with young people without having gone through a check?
Yes. That is the case.
To reaffirm what the minister has said, since the issue arose in 2017, Disclosure Scotland has worked very closely with all sports governing bodies, including the Scottish Youth Football Association, to ensure that those checks are carried out. Indeed, most, if not all, sports governing bodies require PVG membership as part of any role that involves working with children or protected adults.
Minister, is there anything that you wish to add in response to the issues raised by members?
No. I do not believe so.
Oh, I am sorry, Pam. You have a question.
That is okay, convener. I have a couple of questions. Thank you for answering our questions so far, minister.
I want to go back to the numbers of people who are in regulated roles but not in the scheme. In particular, what financial impact has there been for organisations in helping them to comply? How can there be any understanding of the financial impacts if we do not understand how many people who should be on the scheme are not yet on it?
As I have already said, there will be a period of strong engagement with the organisations concerned over the three months between 1 April and 1 July 2025 and I fully expect such conversations to come up. If that is proving a barrier for organisations, I fully expect that to be flagged up during the engagement period.
In the information that we got in advance of today’s meeting, we heard that Disclosure Scotland had used a range of communications channels to provide information about the new requirements. We have heard about the timescale that has already passed. What has that communication and engagement been doing?
Do you mean the communication and engagement to date?
Yes.
I can bring in Gareth Wilks to speak more about how Disclosure Scotland has been engaging with organisations to date but, as I have highlighted and emphasised, the three-month period is when engagement will take place with a much higher sense of urgency, and I would expect any last-minute barriers or issues that organisations are facing to come to the forefront.
I invite Gareth to speak about the engagement to date.
We have been doing this throughout the period of implementation. To answer your question in short, Ms Duncan-Glancy, the aim is to raise awareness of the changes that are ahead. For many of the sectors that are affected by the mandatory scheme, it is only when the move to regulated roles happens from 1 April 2025 that organisations will be able to use the scheme and take the action that we are requiring them to take.
We have been getting the information out, and the base of that entails issuing a regular quarterly update. That involves using all the channels that are available to us, including social media and the Disclosure Scotland website, and working with other stakeholders such as trade bodies, professional regulators and stakeholder networks to cascade information. Disclosure Scotland formed a stakeholder engagement group in 2021, which includes a cross-section of stakeholders affected by the changes in the Disclosure (Scotland) Act 2020. That helps us to input into implementation activity and to cascade the information. We will continue to do that throughout the implementation period. At the core of that is the move to a mandatory PVG scheme and the offences associated with that.
Moving on to a final point about delays, the data that I have from March shows that the PVG scheme record update in 2016 took just over two days. That was up at nearly nine days in 2023. Do the minister and Disclosure Scotland think that the changes will resolve some of the delays and make the updates quicker, or do they expect the time required to continue on that trajectory?
No. I think that the measures will help to resolve delays. Gareth Wilks has already alluded to an on-going process of digitisation in Disclosure Scotland that is helping to drive efficiencies and improve timescales.
I might need officials to correct me, but I believe that four days is the average time for the year to date. I am getting a nod, so I think that that is correct. I would expect those efficiencies and the timescales to continue to improve as a result of the many on-going improvements.
Our committee has to report by 13 December, so we do not have an awful lot of time. Will there be any projections by then, or will it take longer for you to get the numbers?
I will need to consider that further, but I can update the committee on what we will be able to do by that date.
Given that our report must be drafted and agreed by then, I ask that we get either a yes or a no on that by the end of today. I do not want the numbers by the end of today—I would like to have them by then, but I cannot get them—but I ask that you give us information about what could be forthcoming. However, it seems likely that that will not be ready in time for our report, and we will reflect that. Confirmation one way or the other on that would be helpful.
We move to agenda item 2, and I invite the minister to move motion S6M-15259.
Motion moved,
That the Education, Children and Young People Committee recommends that the Regulated Roles (Prohibitions and Requirements) (Scotland) Regulations 2024 [draft] be approved.—[Natalie Don-Innes.]
Motion agreed to.
The committee must now produce a report on the draft instrument. Is the committee content to delegate responsibility to me as convener to agree the report on behalf of the committee?
Convener, you have made quite a deal of the numbers and some of the other issues. Those aspects are worth raising, but I am not convinced that they are major issues. My experience of Disclosure Scotland’s PVG scheme, and of other schemes, is that a bit of paperwork is involved, but it is not a huge thing. If you are planning the report to be very critical, I would have problems with that and I would like to see it before it is approved.
I am not planning the report at all; it will be drafted by the clerking team. All that I said in response to Mr Wilks was that we will reflect the conversation that we have had. I think that I am correct in saying that my questions were replicated by others, such as by Pam Duncan-Glancy.
It is important that we reflect that back. If we do not have a full understanding of the numbers, I cannot see how, for example, the role could be regulated, as we do not know how many people we would be regulating. That aspect is fundamental and it is important that we reflect that in the report.
That is all that it will be: a reflection on the discussion that we have had.
I would like to see the report before it goes.
I am happy to take that to the next committee meeting, bearing in mind that we must have the report agreed by 13 December.
Protection of Vulnerable Groups (Referrals by Chief Constable) (Prescribed Information) (Scotland) Regulations 2024 (SSI 2024/313)
Protection of Vulnerable Groups (Information for Listing and Vetting) (Scotland) Regulations 2024 (SSI 2024/314)
Level 1 and Level 2 Disclosure Information (Scotland) Regulations 2024 (SSI 2024/315)
Consideration of Suitability for Regulated Roles (Prescribed Purposes) (Scotland) Regulations 2024 (SSI 2024/316)
Disclosure and Use of Level 2 Disclosures (Prescribed Purpose and Circumstances) (Scotland) Regulations 2024 (SSI 2024/317)
Our next item of business is consideration of five instruments that are subject to the negative procedure. Are members content to consider the instruments together?
Members indicated agreement.
Minister, there are some questions on the Protection of Vulnerable Groups (Information for Listing and Vetting) (Scotland) Regulations 2024. In its report following its meeting on 19 November, the Delegated Powers and Law Reform Committee raised some concerns about the regulations. It queried the term “details” and whether that was sufficiently clear to identify what information must be passed to ministers under paragraph 6 of the schedule to the regulations. Will you outline the Government’s response to that concern?
09:30
Absolutely. The Government considers the term “details” in the context of paragraph 6 of the schedule to the regulations to be sufficiently clear as meaning the details about the person for whom the individual is carrying out a regulated role, as that would enable Disclosure Scotland to establish whether a regulated role is or was being carried out and to have the contact details to make further inquiries.
The regulations would only require the chief constable to provide information that is held by them. It would also apply only to referrals made by the chief constable.
The Scottish ministers are required, under section 84A of the Protection of Vulnerable Groups (Scotland) Act 2007, to issue guidance to the chief constable about the exercise of our functions under parts 1 and 2 of the act. This guidance will include guidance on the operation of referrals under part 1 of the act.
Essentially, the Scottish Government considers the term “details” to be sufficiently clear.
In paragraph 12 of its report, the DPLR Committee noted that
“during the passage of the Bill, it was suggested that this information would be similar to that already required for scheme members, which is limited to the gender and National Insurance number of the individual.”
What was the change from the passage of the bill until now?
The prescribed information that the chief constable must refer is the individual’s name or any other names by which they are known; the individual’s most recent address and any other addresses at which the individual has been resident; the individual’s date and place of birth; the type of regulated role that the individual is considered to have been doing; the relevant period in which the role was being done; the responsibilities that were undertaken; and for whom that role was being done in that period.
The information that is prescribed in the regulations is similar to other information that must be referred to the Scottish ministers under other types of referral.
Sorry, minister, but my question was about that not being articulated to members during the passage of the bill. Members were presumably told that similar information to what was already required would be prescribed. What changed during that period? Did the Government receive information that that was insufficient? I am just wondering why that change has been made, as highlighted by the DPLR Committee in its report.
Apologies, convener, for misunderstanding your question.
That is fine.
I will bring in officials to speak to that.
That might be something that I will take away with me and write to the committee about. Perhaps I need to reflect on the record of the passage of the bill. I do not recollect that point, but I was not involved with the bill team. I will report on that in time for the committee’s report.
Thank you. As no other member wishes to comment, does the committee agree that it does not wish to make any recommendations in relation to the five instruments?
Members indicated agreement.
Before we move to the next item, we will briefly suspend to allow for a changeover of officials.
09:32 Meeting suspended.