Fixing human rights breaches in legislation: criminal record disclosures, protecting children and the right to privacy

Getting the right balance between protecting children and respecting individual rights to privacy is almost always a difficult policy issue. Last year the courts found that the law hadn’t got the balance quite right when it came to disclosing ‘spent’ criminal convictions and last week the Education and Skills Committee agreed legislation to remedy the problem.

In terms of parliamentary scrutiny, it was a technical piece of legislation and, arguably, quite obscure, but one which raised some interesting broader themes which will come up again in the fairly near future. It’s also an interesting use of ‘super-affirmative’ scrutiny procedure.

Criminal Record Disclosures

Convictions become ‘spent’ after a certain time which, in general, means that they do not have to be revealed to employers.  However, higher level disclosures allow employers to see ‘spent’ convictions (along with unspent convictions and some non-conviction information).  This is the basis of the PVG (Protecting Vulnerable Groups) scheme which is used to help assess whether an employee or volunteer might pose a risk to children or vulnerable adults.

A very large number of people are members of the PVG scheme – around 1 million according to the Scottish Government terms of reference for PVG review. This is around a quarter of the entire adult population[1]. So the disclosure scheme has a larger impact on rehabilitation than might at first be thought.

One area where this can raise issues is offences committed in childhood.  Convictions include offences at a Children’s Hearing – which, if accepted by the child, do not need to be proven in court and can turn up on higher level disclosures many years later. So, in the case of childhood offences, there is a balance between allowing rehabilitation of an adult who committed an offence as a child with the need to protect children.

The human rights problem

Until 2015 all spent convictions were disclosed under higher level disclosures but the courts found, in relation to England, that this blanket approach was too broad and breached article 8 of the European Convention on Human Rights (ECHR) – right to private life. Both Scottish and English legislation were changed in response.  In Scotland, it resulted in spent convictions only being disclosed for more serious offences.  But a recent case decided that wasn’t enough and so the provisions have had to be narrowed down further. Now people with spent convictions for serious offences can apply to a sheriff who can decide that, given the particular circumstances, the conviction doesn’t need to be disclosed. This adds some flexibility by allowing consideration of individual circumstances.

In England, the equivalent legislation was successfully challenged in the Court of Appeal and the UK Government’s appeal against this is due to be heard by the Supreme Court in June . The English scheme is different, so this doesn’t necessarily mean further legislation in Scotland.  However, it may include useful discussion of how human rights relate to disclosure schemes, the meaning of ‘in accordance with the law’ in article 8 and getting the balance right between protecting children and an individual’s article 8 rights.

Parliamentary procedure: additional consultation

Now the procedural bit. This was a remedial order meaning that it was a normal affirmative Scottish Statutory Instrument (SSI) but with additional, ‘super-affirmative’ requirements for consultation.

SSIs get less parliamentary time compared to a bill and Parliament can’t amend them – it can only approve or reject the whole thing. But SSIs can have a lot in them – and not just technical detail but important policy issues.

So some statutes include ‘super-affirmatives.’ There isn’t really a standard form for these. They vary in exactly what additional consultation is required, but the purpose is the same – to try and ensure that important policy gets the proper scrutiny.

In this case, the Scottish Government’s consultation got 51 responses. The Delegated Powers and Law Reform Committee (DPLR) took evidence and wrote to the Scottish Government. The draft SSI included a statement responding to the consultation.  It was then considered by the DPLR and Education and Skills Committees.

The extra scrutiny highlighted a number of policy areas – in particular the treatment of offences in childhood and issues for the Government’s review of the PVG scheme. The Committee were able to draw on evidence from the consultation process and arguably this allowed them to question the Minister more closely.

This wasn’t the most high profile instance of legislation breaching ECHR, and perhaps for that reason, the additional scrutiny arrangements were helpful in leading to more parliamentary discussion than would have happened otherwise.

Balancing article 8 rights with protecting children or promoting their wellbeing will come up again when the parliament looks again at the named person scheme in the autumn – although that will be a bill not an SSI.

Camilla Kidner, Senior Researcher, Schools and Children’s Services

[1] As a proportion of population aged 18 or over in 2015 mid-year population estimates.