Disclosure bill update.

The Disclosure (Scotland) Bill was introduced to the Scottish Parliament on 12 June 2019. A copy of the bill can be found on the Scottish Parliament website here.

The bill sets out proposals to modernise and improve the proportionality of the state disclosure system in Scotland.

The Government’s response to the consultation has now been published to Citizen Space hub and clearly sets out the policies of the Bill, including a summary of proposed changes at 2.1.

Key proposals:

Safeguarding:

• The bill will introduce mandatory membership of the PVG scheme for roles with vulnerable groups.
• The bill refocuses membership of the PVG scheme onto those who possess power over children and protected adults rather than using job titles to determine membership.
• The bill will close existing potential safeguarding gaps by widening the powers available to Police Scotland and by strengthening referral powers of local authorities.
• The bill creates the ability for Disclosure Scotland to impose public protection conditions on individuals under consideration for listing to support employers to manage risk.

Simplify:

• The bill will simplify disclosure legislation and reduce the number of available disclosure products.
• The implementation of digital services will modernise and radically simplify the disclosure system and speed up employment checks, reducing the administrative burden on employers and applicants.
• The proposal to replace the concept of ‘regulated work’ will provide clarity on who qualifies for the PVG scheme.

Privacy:

• The bill will enable individuals to have greater control over their disclosure data.
• Time-limited membership will ensure the scheme is proportionate and does not continue to monitor people who no longer need to be in the scheme.
• Childhood convictions will no longer be automatically disclosed and will be eligible for independent review.

Key issues for PA employers and independent support organisations:

Regulated roles:

The concept of ‘doing regulated work’ will be replaced with ‘carrying out a regulated role’ which will be synonymous with roles holding power or influence over children or adults who are vulnerable as a result of receiving a service. Identifying whether a role has this power or influence will be done by considering it against a list of activities in relation to children and a list of activities in relation to protected adults which will make clear whether PVG membership is required or if another Level 2 disclosure would be appropriate. Disclosure Scotland will publish a list of roles for typically-encountered positions for which PVG scheme membership would be mandatory to save applicants’ time in auditing their role against the core characteristics. Replacing regulated work with regulated roles will not impact on the two barred lists; these will be retained.

The bill will provide new protections for personal employers:

Under ‘Level 2’ of 2.3.5 of the Government response to the consultation, the proposals for ‘Accredited Bodies’ are outlined: ‘It is proposed that umbrella bodies will be maintained under the new accredited body provisions meaning that it will be possible for accredited bodies to countersign applications for Level 2 disclosures on behalf of non-accredited body employers. Umbrella bodies will also be able to assess an individual’s suitability for work on behalf of a private individual employing someone in a personal capacity (since that private individual would not be entitled to see a Level 2 disclosure).’ More on this later.

Local authorities will be given powers to make referrals to Disclosure Scotland within the context of their normal safeguarding role:

There was strong support in the consultation for providing new pathways to refer people to Disclosure Scotland for consideration for listing, reflecting changes in the care environment where Self-directed Support and personalisation of services is more common than it was in 2007. The PVG Act does not provide for private citizens who employ Personal Assistants to refer their employees to Disclosure Scotland because coherent investigations of allegations must occur before a process as serious as consideration for listing can begin. Local authorities and Integration Joint Boards have told us that having a power to refer someone who has been doing a regulated role to Disclosure Scotland for the purpose of having them considered for listing would close safeguarding loopholes. This is especially so with Self-directed Support and personal employment where there is often no statutory regulatory body involved. You can find further information on PVG and self-directed care in section 2.9.4. We propose that local authorities and Integration Joint Boards should have a power to make referrals about PVG scheme members to Disclosure Scotland within the context of their normal safeguarding functions. For example, if an adult protection investigation found that a self-employed personal assistant had carried out emotional abuse of elderly clients and they had identified no referral had been made or could not have been made, they could refer their concerns to Disclosure Scotland. The power would be restricted to those individuals who are in the PVG Scheme (or unlawfully working with vulnerable groups whilst not in the PVG Scheme) to limit the extent to which the PVG Scheme interferes with the privacy of citizens. SDSS members were broadly supportive of this proposal throughout the consultation.

Personal employment (including Self-directed Support):

Taken directly from the Government response: ‘A significant number of respondents thought that parents and personal employers should have access to conviction information and Other Relevant Information (ORI) when selecting, for instance, nannies, music teachers or carers for protected adults. Although we acknowledge respondents’ comments calling for Personal Assistant employers to have direct access to disclosure information in order to make better informed recruitment decisions, we believe there remained significant risks with this approach and more disadvantages than benefits when taking into account wider fairness considerations. Proposals put forward by respondents to allow supported persons to receive disclosure records containing details of convictions and ORI would mean they are brought into the realms of becoming an ‘accredited body’. In simple terms this means a supported person would need to pay fees to become (and remain) an accredited body and would then be subject to vetting, regulations, a Code of Practice and the offence implications in relation to the improper handling of sensitive information. It is also very important to recognise that the disclosure of vetting information interferes with Article 8 of the European Convention on Human Rights (right to a private life) as spent convictions or police ORI will form part of a person’s private life. Any interference with Article 8 needs to be lawful and proportionate, so it is vital to have proper safeguards in place to protect access to sensitive information about individuals. Disclosure Scotland is committed to finding a proportionate solution to create special arrangements for people wishing to employ a self-employed PVG scheme member. We propose to enable under future arrangements for umbrella bodies to register as accredited bodies, as discussed above at section 2.3.5, specifically for the purpose of assisting people who are considering the suitability of personal employees. Such umbrella bodies will not be able to disclose vetting information but they will be able to provide advice based on this information to the personal employer. We believe this arrangement would complement the new referral powers given to Police Scotland and local authorities/Integration Joint Boards, potentially enabling personal employers to take recruitment advice from umbrella bodies and report concerns/make referrals through Police Scotland or their local authority.’

During the consultation period, SDSS members expressed concern that the current system with the statement of scheme membership was not suitable for people employing Personal Assistants. Most SDSS members agreed that access to criminal record information should be available and that Independent Support organisations would be vital in helping people to interpret and use this information. This proposal appears to be a move to something more similar to the system prior to the introduction of the PVG Scheme, under which many SDSS members carried out disclosure checks on behalf of PA Employers and fits somewhat with feedback from SDSS members.

Digital-by-preference:

Whilst proposals are for the new system to be ‘digital-by-preference’, the Government’s response to the consultation clearly states: ‘Our intention is to have simple and accessible digital services so that people will prefer to carry out their task online. We are also mindful of the need to provide an alternative to avoid precluding those unable to or unwilling to use services online. This is very important; people experiencing poverty and exclusion have much reduced digital access and Disclosure Scotland is committed to finding the right ways to make products accessible.’. This reflects feedback SDSS and our members gave throughout the consultation and pre-consultation period.

Have your say!

Disclosure Scotland have developed a toolkit to support people to engage with the bill as it progresses. This is a clear outline of key messages, the benefits the bill will bring to Scotland, details of how you can get involved, resources and what happens next, so it is worth spending some time on this if you can.

Disclosure Scotland are keen to work with stakeholders over the coming months on how best to deliver the Disclosure (Scotland) Bill. They will be hosting three events specifically aimed at people in the Self-directed Support sector in Stirling and Edinburgh:

To book a place in Stirling on 12th August click here.

To book a place in Edinburgh on 2nd September 10.00-12.30 click here

To book a place in Edinburgh on 2nd September 13.00-15.30 click here

Colleagues from SDSS will be attending the Edinburgh event and we would really love to see you, and some of your members, there, to take part in these important discussions. Please save the date and we will let you know when the Eventbrite page is live for booking.