Has the disclosure fix to fix a fix got it right?

A proposed law to fix problems identified by the courts with the disclosure regime is going out to public scrutiny – with MSPs determined to ensure that they get the law right this time.

The proposed change fixes a previous fix to the disclosure regime made in 2015, which has since been found by the courts still to contain an incompatibility with the European Convention on Human Rights (ECHR).

In P v Scottish Ministers [2017] CSOH 33, a petition for judicial review in relation to the disclosure of a previous conviction for lewd and libidinous practices on the petitioner's PVG scheme record, the Court of Session decided that, insofar as it required automatic disclosure of the conviction before the children’s hearing even when spent, a previous remedial order unlawfully interfered with his right under article 8 of the European Convention on Human Rights, and Scottish ministers had no power to make those provisions. The court suspended its order for nine months (to 17 February 2018) to allow ministers to remedy the legislation.

The further remedial order sets out proposed amendments to the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007. It provides that individuals who have been convicted of offences which are listed in schedule 8A (offences which must always be disclosed) should in certain circumstances have the right to apply to a sheriff in order to seek removal of that conviction information before their disclosure is sent to a third party, such as an employer. This will provide similar, although more limited, right to apply to the sheriff as currently exists in relation to offences listed in schedule 8B of the 1997 Act.

The proposed policy is that higher level disclosure recipients will be able to apply to a sheriff for removal of schedule 8A convictions if: the conviction for a schedule 8A offence is spent and – (a) where the person was aged under 18 at the date of conviction, seven years and six months have passed since the date of the conviction; or (b) where the person was aged 18 or over at the date of conviction, 15 years have passed since the date of the conviction.

If no application to a sheriff is made, automatic disclosure of a spent conviction for an offence on schedule 8A will continue indefinitely. These changes will ensure that the rules for disclosure of spent convictions take further account of the age of the person at the time of the conviction as well as the time which has elapsed since conviction. Before removing a conviction from a higher level disclosure a sheriff would need to be satisfied that the conviction is not relevant to the purpose of the standard or enhanced disclosure, or (for PVG disclosures) not relevant to regulated work with children or protected adults.

Ministers believe this new right to apply to a sheriff strikes a fair balance between an individual’s right to respect for their private life and the interests of public protection.

The order is now being scrutinised by Holyrood's Delegated Powers & Law Reform Committee, which has issued a call for evidence. Committee convener Graham Simpson MSP commented:

“We all want a disclosure system that is legally robust and has public confidence. The committee wants to examine these changes to see if they meet the concerns raised by the court.

“This is a fix to fix a fix. We will be applying thorough scrutiny. We don’t want to find ourselves back here again and we want to make sure that these proposed changes could deliver a disclosure regime that is capable of being operated compatibly with ECHR.”

Click here for details of the committee's inquiry. Submissions are due by Friday 20 October 2017.

The Scottish Government is also inviting submissions, by Sunday 26 November. Click here to view the Government paper.