Dear Sir or Madam
THE POLICE ACT 1997 AND THE PROTECTION OF VULNERABLE GROUPS (SCOTLAND) ACT 2007 REMEDIAL ORDER 2015 I enclose a copy of a notice in relation to the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order (“the 2015 Order”) which makes amendments to the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007.
The 2015 Order came into force on Thursday 10 September 2015. In line with the requirements of section 14(2) of the Convention Rights Compliance (Scotland) Act 2001 the attached notice invites you to make written observations on the 2015 Order by 24 November 2015.
It would be helpful us if you could send your responses using the electronic format provided on the Scottish Government’s website.
Please send your response with the completed Respondent Information Form (see "Handling your response" below) to Disclosure Scotland’s Policy Team:
Online here https://consult.scotland.gov.uk/
By Email to: DisclosureScotland2015Order@disclosurescotland.gsi.gov.uk
We would prefer to receive electronic responses. However, you may wish to provide a response by hard copy and this can be done by addressing your response to:
We would be grateful if you would please clearly indicate in your response which parts of the 2015 Order you are responding to, as this will aid collation of the responses received.
This document, and other Scottish Government consultation exercises, can be viewed online on the consultation web pages of the Scottish Government website at http://www.scotland.gov.uk/consultations.
The Scottish Government has an email alert system for consultations http://register.scotland.gov.uk. This system allows stakeholders, individuals and organisations to register and receive a weekly email containing details of all new consultations (including web links). This system complements, but in no way replaces Scottish Government distribution lists. It is designed to allow stakeholders to keep up to date with all Scottish Government consultation activity, and therefore be alerted at the earliest opportunity to those of most interest. We would encourage you to register.
Handling your response We need to know how you wish your response to be handled and, in particular, whether you are happy for your response to be made public. Please complete and return the associated Respondent Information Form questionnaire as this will ensure that we treat your response appropriately. If you ask for your response not to be published we will regard it as confidential, and we will treat it accordingly. All respondents should be aware that the Scottish Government is subject to the provisions of the Freedom of Information (Scotland) Act 2002. We would therefore have to consider any request made to it under the Act for information relating to responses made to this exercise.
Where respondents have given permission for their response to be made public (see the attached Respondent Information Form), these will be made available on the Scottish Government consultation web pages three weeks after consultation.
What happens next? Following the closing date of the Consultation, all responses will be analysed and considered. The Scottish Ministers are required under section 14(4) of the Convention Rights Compliance (Scotland) Act 2001 to lay before Parliament a statement summarising all observations and specifying any modifications they might make to the remedial order.
the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order 2015
THE POLICE ACT 1997 AND THE PROTECTION OF VULNERABLE GROUPS (SCOTLAND) ACT 2007 REMEDIAL ORDER 2015 Purpose This document gives public notice of the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order (“the 2015 Order”) as is required under section 14(2) of the Convention Rights (Compliance) (Scotland) Act 2001 (“the 2001 Act”). This document also seeks written observations on the 2015 Order.
The last date on which we will accept written observations on the 2015 Order is 24 November 2015. We welcome your observations/views on all aspects of the 2015 Order.
All observations will be considered by the Scottish Ministers and, as soon as practicable after 24 November 2015, we will lay a statement before the Scottish Parliament. That statement will summarise all the observations which have been considered and will also specify whether or not any modifications will be made to the 2015 Order.
A copy of the 2015 Order and the associated Policy Note which explains the amendments in detail can be found below.
Introduction Standard and enhanced disclosures are issued under the Police Act 1997 (“the 1997 Act”) and disclosures of PVG scheme records are issued under the Protection of Vulnerable Groups (Scotland) Act 2007 (“the 2007 Act”) - these types of disclosures are referred to collectively as ‘higher level disclosures’. Until these Acts were amended by the 2015 Order, higher level disclosures contained all spent convictions regardless of the nature and age of the conviction or the penalty. Under the Rehabilitation of Offenders Act 1974 (“the 1974 Act”) an individual was similarly required to self-disclose all previous convictions (whether spent or unspent) in certain circumstances. Under the PVG Scheme all previous criminal conviction information could be used in deciding when it might be appropriate to consider an individual for listing in the children’s list, adult’s list or both lists.
In the case R (on the application of T and another) (FC) (Respondents) v Secretary of State for the Home Department and another (Appellants)  UKSC 35, the United Kingdom Supreme Court (“UKSC”) made a declaration of incompatibility under section 4 of the Human Rights Act 1998 that the provisions of sections 113A and 113B of the Police Act 1997 (as applicable in England and Wales) were incompatible with Article 8 (the right to respect for private and family life) of the European Convention on Human Rights (“the Convention”) because the requirements in those sections in relation to blanket disclosure of all spent convictions on higher level disclosures were not in accordance with the law.
The UKSC was clear that it was appropriate for a system of higher level disclosures to operate when that person wanted to work in certain roles involving contact with vulnerable groups or in other sensitive roles. However, the UKSC accepted that when a conviction becomes spent within the meaning of the 1974 Act it should usually become part of private personal history and that the system of automatic disclosure of all such spent convictions in higher level disclosures breached Article 8.
In light of the decision, the Scottish Ministers undertook a detailed assessment of the operation of the 1997 Act as it applied in Scotland and concluded that changes should be made to it to take account of the UKSC decision. The Scottish Ministers also undertook a detailed assessment of the closely related PVG Scheme operated under the 2007 Act and concluded that it should also be amended. The functions of the Scottish Ministers under the 1997 Act and the 2007 Act are exercised through Disclosure Scotland.
The 1997 Act and the 2007 Act regulate what can be disclosed in a higher level disclosure, but the 1974 Act together with the Rehabilitation of Offenders Act (Exclusions and Exceptions) (Scotland) Order 2013 (“the 2013 Order”) regulate what convictions an individual must disclose when asked about their previous convictions in certain circumstances. The Scottish Ministers therefore also undertook a detailed assessment of the 2013 Order and concluded that it should also be amended. The Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2015 (“the ROA Order”) was made and came into force at the same time as the 2015 Order. (If Scottish Ministers think that it is appropriate for the remedial order to be modified following consideration of the observations, consideration will be necessary to assess whether a further order is required to amend provisions in the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2015.)
Summary of the 2015 Order The 2015 Order came into force on 10 September 2015. It amends the 1997 Act and the 2007 Act. It also makes consequential amendments to the Protection of Vulnerable Groups (Scotland) Act 2007 (Fees for Scheme Membership and Disclosure Requests) Regulations 2010 (“the 2010 Regulations”).
The 2015 Order provides that:
certain spent convictions will continue always to be disclosed due to the serious nature of the offence (these are the offences set out in the ‘offences which must always be disclosed’ list);
rules will be applied to certain spent convictions to determine the content of higher level disclosures when the conviction is for an offence on the ‘offences which are to be disclosed subject to rules’ list;
the ‘offences which must always be disclosed’ list and the ‘offences which are to be disclosed subject to rules’ list are set out in article 3(8) of the 2015 Order and are inserted into the 1997 Act as new schedules 8A and 8B;
certain spent convictions which are not for offences on the lists of ‘offences which must always be disclosed’ or ‘offences which are to be disclosed subject to rules’ will generally not be disclosed due to the minor nature of the offence;
all spent cautions (within the meaning given in schedule 3 of the 1974 Act) will never be disclosed;
individuals who have a spent conviction for offences on the list of ‘offences which are to be disclosed subject to rules’ and which have not yet reached the point at which the rules would prevent disclosure of the conviction can indicate to Scottish Ministers that they intend to make an application to a sheriff for a new certificate from which that information has been removed;
the issue of a higher level disclosure to the person who countersigned the disclosure application or request will not take place until that application to the sheriff is finally determined;
where the higher level disclosure contains no convictions from the ‘offences which are to be disclosed subject to rules’ list or where the applicant does not intend to apply to the sheriff for a new certificate for offences on the ‘offences which are to be disclosed subject to rules’ list, the higher level disclosure will be issued to the person who countersigned the disclosure application or request;
there is a new test in section 113B(4) of the 1997 Act and section 49(1)(c) of the 2007 Act for the provision of other relevant information by the chief officer of a relevant police force in connection with higher level disclosure applications;
a short scheme record disclosure issued under section 53 of the 2007 Act will only be available to scheme members who have no vetting information in their PVG scheme record; and that Scottish Ministers must treat a short scheme record disclosure request for a scheme member with vetting information in their scheme record information as a disclosure request for a scheme record (and that will be at no extra cost to the scheme member).
Impact Assessments In line with usual practice, Partial Impact Assessments have been prepared. We have prepared a partial Business and Regulatory Impact Assessment or
BRIA and a partial Equality Impact Assessment or EQIA.
A partial BRIA and a partial EQIA can be found here https://consult.scotland.gov.uk/disclosure-scotland/protection-of-vulnerable-groups
Legislation A copy of the Police Act 1997, the Protection of Vulnerable Groups (Scotland) Act 2007 and the Protection of Vulnerable Groups (Scotland) Act 2007 (Fees for Scheme Membership and Disclosure Requests) Regulations 2010 can be found at:
Yes, make my response available, but not my name and address
Yes, make my response and name available, but not my address
We will share your response internally with other Scottish Government policy teams who may be addressing the issues you discuss. They may wish to contact you again in the future, but we require your permission to do so. Are you content for Scottish Government to contact you again in relation to this consultation exercise?
Please tick as appropriate Yes No
QUESTION 1 Do you have any views/observations on this Order?
QUESTION 2 In relation to the Equality Impact Assessment, please tell us about any potential impacts, either positive or negative; you feel the amendments to legislation in this consultation document may have on any particular groups of people?
QUESTION 3 In relation to the Equality Impact Assessment, please tell us what potential there may be within these amendments to legislation to advance equality of opportunity between different groups and to foster good relations between different groups?
QUESTION 4 In relation to the Business Regulatory Impact Assessment, please tell us about any potential impacts you think there may be to particular business or organisations?
List of Consultees
Principals and Vice Principals of Scotland’s Colleges and Universities