EDUCATION, LIFELONG LEARNING AND CULTURE COMMITTEE AGENDA. 18th Meeting, 2010 (Session 3) Wednesday 9 June 2010

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1 ELLC/S3/10/18/A EDUCATION, LIFELONG LEARNING AND CULTURE COMMITTEE AGENDA 18th Meeting, 2010 (Session 3) Wednesday 9 June 2010 The Committee will meet at am in Committee Room Local government funding of education and children's services The Committee will take evidence from Robert Nicol, Team Leader, Children and Young People Team, Barbara Lindsey, Strategic Director, and Sarah Fortune, Policy Manager, COSLA. 2. Subordinate legislation: The Committee will take evidence on the Protection of Vulnerable Groups (Scotland) Act 2007 (Vetting Information) Regulations 2010 (SSI 2010/189); the Police Act 1997 (Alteration of the Meaning of Suitability Information relating to Children and Protected Adults) (Scotland) Order 2010 (SSI 2010/190); the Protection of Vulnerable Groups (Scotland) Act 2007 (Health Professionals) (Health Service Lists) Regulations 2010 (SSI 2010/191); the Protection of Vulnerable Groups (Scotland) Act 2007 (Prescribed Manner and Place for the Taking of Fingerprints and Prescribed Personal Data Holders) Regulations 2010 (SSI 2010/192); the Protection of Vulnerable Groups (Scotland) Act 2007 (Administration of the Scheme) Regulations 2010 (2010/193); and the Protection of Vulnerable Groups (Scotland) Act 2007 (Unlawful Requests for Scheme Records) (Prescribed Circumstances) Regulations 2010 (SSI 2010/194) from Andrew Mott, PVG Implementation Legislation Manager, PVG Implementation Team, and Ailsa Heine, Senior Principal Legal Officer, PVG and Schools Solicitors Division, Scottish Government. 3. Subordinate legislation: The Committee will consider the following negative instruments the Protection of Vulnerable Groups (Scotland) Act 2007 (Vetting Information) Regulations 2010 (SSI 2010/189)

2 ELLC/S3/10/18/A the Police Act 1997 (Alteration of the Meaning of Suitability Information relating to Children and Protected Adults) (Scotland) Order 2010 (SSI 2010/190) the Protection of Vulnerable Groups (Scotland) Act 2007 (Health Professionals) (Health Service Lists) Regulations 2010 (SSI 2010/191) the Protection of Vulnerable Groups (Scotland) Act 2007 (Prescribed Manner and Place for the Taking of Fingerprints and Prescribed Personal Data Holders) Regulations 2010 (SSI 2010/192) the Protection of Vulnerable Groups (Scotland) Act 2007 (Administration of the Scheme) Regulations 2010 (2010/193) and the Protection of Vulnerable Groups (Scotland) Act 2007 (Unlawful Requests for Scheme Records) (Prescribed Circumstances) Regulations 2010 (SSI 2010/194). Eugene Windsor Clerk to the Education, Lifelong Learning and Culture Committee Room T3.40 The Scottish Parliament Edinburgh Tel:

3 ELLC/S3/10/18/A The papers for this meeting are as follows Agenda item 1 Further information Agenda item 2 and 3 Paper by the clerk SPICe briefing ELLC/S3/10/18/1 ELLC/S3/10/18/2

4 ELLC/S3/10/18/1 Education, Lifelong Learning and Culture Committee 18th Meeting, 2010 (Session 3), Wednesday, 9 June 2010 Subordinate legislation Protection of Vulnerable Groups (Scotland) Act 2007 Introduction 1. This paper seeks to inform members consideration of the following statutory instruments the Protection of Vulnerable Groups (Scotland) Act 2007 (Vetting Information) Regulations 2010 (SSI 2010/189) the Police Act 1997 (Alteration of the Meaning of Suitability Information relating to Children and Protected Adults) (Scotland) Order 2010 (SSI 2010/190) the Protection of Vulnerable Groups (Scotland) Act 2007 (Health Professionals) (Health Service Lists) Regulations 2010 (SSI 2010/191) the Protection of Vulnerable Groups (Scotland) Act 2007 (Prescribed Manner and Place for the Taking of Fingerprints and Prescribed Personal Data Holders) Regulations 2010 (SSI 2010/192) the Protection of Vulnerable Groups (Scotland) Act 2007 (Administration of the Scheme) Regulations 2010 (2010/193) the Protection of Vulnerable Groups (Scotland) Act 2007 (Unlawful Requests for Scheme Records) (Prescribed Circumstances) Regulations 2010 (SSI 2010/194) 2. Copies of the SSIs, explanatory notes and Executive Note are provided in hard copy to members only. 1 Subordinate legislation Background 3. The instruments were laid on 13 May 2010 and the lead committee must report on all the instruments by 14 June The Education, Lifelong Learning and Culture Committee has been designated the lead committee. Policy objectives 4. The instruments considered at this meeting are part of a wider package of statutory instruments being laid by the Scottish Government under the 1 Electronic copies are available on the website of the Office of Public Sector Information.

5 ELLC/S3/10/18/1 Protection of Vulnerable Groups (Scotland) Act The Committee considered the previous batches of instruments at its meetings on 12, 19 and 26 May A SPICe briefing has been prepared to inform members consideration of the instruments. Consideration by the Subordinate Legislation Committee 6. The Subordinate Legislation Committee considered these instruments at its meeting on 25 May 2010 and agreed that no points arose in relation to these instruments. Procedure for Committee consideration Negative procedure 7. These instruments are subject to the negative procedure for parliamentary consideration. This means that the instruments will automatically come into effect unless annulled by the Parliament and, to date, no motion to annul these instruments have been lodged with the chamber clerks. 8. The Committee will take evidence on these instruments from Scottish Government officials at agenda item 2 and will determine whether it wishes to draw them to the attention of the Parliament at agenda item 3. Action 9. The Committee is invited to take evidence on the instruments and consider whether it has anything to report to the Parliament on these instruments. Committee clerks Education, Lifelong Learning and Culture Committee

6 ELLC/S3/10/18/2 Education, Lifelong Learning and Culture Committee 18th Meeting, 2010 (Session 3), Wednesday, 9 June 2010 Subordinate legislation Protection of Vulnerable Groups (Scotland) Act 2007 SPICe briefing This briefing summarises the policy intentions of the six negative instruments before the Committee today. Further detail and background is available in the Executive Notes provided with each instrument. Background The Protection of Vulnerable Groups (Scotland) Act 2007 reforms the system for barring certain listed individuals from working with children or protected adults and reforms the system for disclosing relevant information about employees or volunteers who wish to work with these groups. A person can be automatically barred if they are convicted of certain, serious offences. In addition, Scottish Ministers, through a team at Disclosure Scotland, will decide whether other individuals ought to be barred if, for example, they receive an organisational referral about the individual. The Act also sets up a membership scheme to replace the current provisions for enhanced disclosures for those working with vulnerable groups (enhanced disclosures will still be available for other groups). It is proposed to introduce the scheme over four years. When it is fully operational, all those in the relevant workforces (around 700,000 people) will be scheme members. The policies in this fourth set of instruments to be considered by the Committee cover a range of different aspects of the scheme. In particular 1. extending vetting information to always include certain civil orders which relate to sexual offences 2. ensuring that health boards continue to be able to access checks for contractors such as GPs or dentists 3. procedures for taking fingerprints where this is necessary to prove identity and also adding organisations such as the UK Borders Agency to those whose records can be searched for the same purpose 4. providing a three month time limit for an individual to request correction of mistakes on their scheme record and allowing Ministers to ask for documentation relating to a name or gender change 5. allowing health and education providers to request to see disclosure information from contractors who provide them with transport services 1

7 ELLC/S3/10/18/2 1. Vetting Information The Protection of Vulnerable Groups (Scotland) Act 2007 (Vetting Information) Regulations 2010 (SSI 2010/189) These regulations make the following additions to the list of information that will be given on a scheme record (disclosure certificate). These civil orders established under the Sexual Offences (Scotland) Act 2003 or Protection of Children and Prevention of Sexual Offences (Scotland) Act Sexual Offence Prevention Order (or interim order) under the 2003 Act Foreign Travel Order under under the 2003 Act Risk of Sexual Harm Order (or interim order) under the 2003 Act Notification Order (or interim order) under the 2003 Act Risk of Sexual Harm Order (or interim order) under the 2005 Act Without this instrument, this information could be revealed by the police if a chief constable thought it was relevant. These regulations remove this element of discretion of chief constables. This only applies to orders which are in force, i.e. which have not expired or been discharged. Chief constables retain discretion whether to reveal information about orders that have been issued in the past and are no longer in effect. The inclusion of these orders was approved by consultation respondents when the question was asked in the 2007 consultation. The Police Act 1997 (Alteration of the Meaning of Suitability Information relating to Children and Protected Adults) (Scotland) Order 2010 (SSI 2010/190) This order makes provision for the same civil orders as in the above regulations but for the purposes of enhanced disclosures with suitability information. These are the enhanced disclosures issued in respect of appointments involving access to children or protected adults other than through regulated work. 2. NHS Contractors The Protection of Vulnerable Groups (Scotland) Act 2007 (Health Professionals) (Health Service Lists) Regulations 2010 (SSI 2010/191) These regulations are consequential to the transition to the PVG scheme. NHS Boards maintain lists of contractors. When an individual, such as a GP or community pharmacist, enters a contract with a health board, they apply to be placed on a list. These regulations preserve (with some minor changes) the ability of health boards to access disclosure records as part of this process, albeit these will now be disclosure records under the PVG Scheme rather than enhanced disclosure. 2

8 ELLC/S3/10/18/2 3. Proving Identity: Fingerprints and personal data The Protection of Vulnerable Groups (Scotland) Act 2007 (Prescribed Manner and Place for the Taking of Fingerprints and Prescribed Personal Data Holders) Regulations 2010 (SSI 2010/192) Where identity cannot be proven by other means, Ministers have a power under the Act to ask for fingerprints. These regulations require Ministers to seek the individual s consent (or responsible person s consent if the individual is aged under 16 years). Regulation 4 provides that failure to provide consent will mean that that individual s application to join the PVG scheme may not be considered. That is, an individual is not required to give consent for their fingerprints to be taken, but if they do not, they probably will not be able to join the scheme as it may not be possible otherwise to confirm their identity and so ensure that accurate information is collated and disclosed about them. Under s.64 of the 2007 Act, Ministers have the power to use certain sources to check an individual s identity. The Act specifies sources such as the Passport Service, the DVLA and national insurance records. Regulation 4 adds the following sources to this list: The General Register Office for Scotland (register of births, marriages and deaths) The UK Border Agency and DVL Northern Ireland. 4. Time limit for correction of mistakes The Protection of Vulnerable Groups (Scotland) Act 2007 (Administration of the Scheme) Regulations 2010 (SSI 2010/193) These regulations make provision for two aspects of the operation of the scheme. Regulation 3 provides that Ministers can ask for documentation to support a scheme member s statement that they have changed their name or gender. Regulation 4 provides that an individual has three months in which to ask for mistakes on a scheme record to be corrected. This period can be extended if Ministers consider it reasonable to do so. The Executive Note discusses the implications of this. If a person receives a scheme record which contains a mistake, it is easier to investigate and resolve the matter if it is raised with Disclosure Scotland quickly, as this allows the information to be traced back to the source system. A person may not bother contesting a mistake if, for example, they get the job they were applying for anyway. However, this means that the potentially inaccurate information would stay on their scheme record uncorrected and could affect future employment. If a subsequent job application were to be turned down on the basis of this inaccurate information, it could be much more difficult to investigate at that stage because, for example, the information might have been removed from the source system by that time. 3

9 ELLC/S3/10/18/2 5. Access to contractors scheme records The Protection of Vulnerable Groups (Scotland) Act 1997 (Unlawful Requests for Scheme Records) (Prescribed Circumstances) Regulations 2010 (SSI 2010/194) Generally an employer is not allowed to pass on disclosure information to someone else (s.67 of the 2007 Act). These regulations, made under s.67(3)(b) of the Act, set out an exception to this, where a company is contracted to provide transport services for health and education providers. This would allow, for example, a school to ask to see the scheme records of school bus drivers or for a hospital to check the scheme records of drivers providing hospital transport. In 2007, the Scottish Government consulted on whether third parties should be able to access scheme records. Responses were mixed, but there was most support for allowing this in relation to transport providers (44% of respondents). The 2009 consultation extended the policy to include private sector providers of health and education and the regulations as introduced extended it further to include the transport of protected adults to educational establishments. Camilla Kidner SPICe 17 May 2010 Note: Committee briefing papers are provided by SPICe for the use of Scottish Parliament committees and clerking staff. They provide focused information or respond to specific questions or areas of interest to committees and are not intended to offer comprehensive coverage of a subject area. 4