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Chapter 8: Implementation

This chapter of the report identifies issues in relation to implementation of the proposed new vetting and barring scheme. However, in the first instance, it is useful to understand any issues or problems with the current system and whether or not the proposed new system will counteract these issues. Prior to asking for views on the specific proposals contained within the consultation document, the Scottish Executive posed a question on the current disclosure system in operation in Scotland and asked consultees to identify what they considered to be the three greatest issues with the current system.

8.1 The current system

A wide range of issues were cited by consultees. Chart 8.1 shows those being mentioned by the greatest number of consultees and the key issues identified were:

• Processing time;
• The need for multiple disclosures;
• No automatic updating of information;
• Costs;
• Point in time validity of disclosure;
• Bureaucracy / administration / workload.
• Confusion over who needs to be disclosed;
• Communication between different bodies.

Chart 8.1 Key issues with current system

Base: all consultees answering

The following paragraphs deal with these issues.

8.1.1 Processing time

The current service target level for Disclosure Scotland is to process 90% of applications within 14 calendar days. However, where there are omissions or mistakes on forms or where there is the need to refer to other police agencies for information, the application is dealt with by the Exceptions Handling Unit ( EHU). Disclosure Scotland's performance report shows that 98.4% of cases that are not referred to the EHU are processed within the 14 day target, with an average processing time for March 2006 of 5 days. ³

Almost half of the individuals or organisations (72) responding to the consultation paper identified the time taken to complete disclosure checks under the present system as a key issue; with consultees reporting delays of up to 3 months in some cases. One specific problem was reported by a consultee from the education sector who commented that "Delays in processing, particularly at the start of the academic year can affect student placements."

The problems caused by delays in obtaining disclosures were seen as a particular issue for those wishing to employ staff, especially at short notice. One education organisation commented that,

" The time-lag between application for Disclosure and certification remains problematic in operational sectors where employment flexibility is a significant concern; in brief, it remains difficult for an FE College, for example, to engage part-time staff to full vacancies at short notice when the disclosure process may require four weeks or more to process."

Respondents participating in the focus groups and information events also noted issues around processing times for disclosure certificates, although a number noted that processing times have improved in recent months. For example, a manager of a nursing home who participated in an in-depth interview noted that she often has a requirement to take on staff at short notice and the wait for disclosures to be returned can sometimes mean that she loses potential staff because they have obtained work elsewhere in the meantime.

8.1.2 Multiple disclosures

Associated with costs, direct and indirect, is the issue of multiple disclosures; whereby an individual working or volunteering in several capacities will need to apply for multiple disclosures. This issue was raised by 57 consultees. The need for multiple disclosures, alongside the complexity of the forms was seen as a disincentive to some volunteers; 17 consultees commented that the process was seen as "off-putting".

"Moreover, a disclosure certificate is not portable, thus requiring an individual to apply for several disclosure checks. I am aware of some people in receipt of four or five disclosure certificates because of the range of voluntary work which they undertake. The current system is unduly burdensome and puts people off applying for positions working with children and young people - often the very people who can contribute so much."
(Other)

A manager within a care setting responsible for overseeing disclosure checks also noted that the complexity of the disclosure application forms can be a disincentive to some potential employees. She cited many instances where the initial disclosure form had to be returned to the potential employee because of mistakes in the documentation.

8.1.3 Accuracy & validity

Currently, disclosures are certified as accurate as of the date on the disclosure and Disclosure Scotland has no legal obligation to track individuals in receipt of a disclosure, or to provide any information on subsequent convictions. A number of comments were made regarding various issues surrounding the accuracy of information. Thirty-one consultees responding to the consultation paper specifically mentioned the length of validity of the disclosure certificate as being a problem with the current system. For example, a comment made by one consultee from the education sector noted that, "The system as it stands only gives a 'snapshot' which could be out of date the following day."

Forty-one consultees also commented on a need for a system that automatically updates disclosure information to employers, and 16 consultees felt that there should be a system in place to enable conviction, dismissal or other relevant changes to status to be reported to the relevant registering body. One police organisation commented that "there is presently no update without re-applying by means of the full disclosure process."

Respondents participating in the qualitative discussions noted that the credibility of disclosures is limited because of the "point in time" nature of each. There were some suggestions from those attending information events or focus groups for a system that would negate the need for multiple disclosures.

8.1.4 The Need for Training / Guidance

A number of consultees (28) responding to the consultation paper and some of those attending focus groups also noted the need for guidance to be provided to employers on assessing risk from disclosure information. There were comments that there is no consistency in the way disclosure information is interpreted by employers.

"When an adverse disclosure for a potential member of staff is received, the responsibility of making the decision about the individual is a concern. The risk assessment on the individual rests on the personal judgement of the employer, as there is no official guidance."
(Education)

Allied to this point, there were also concerns raised by those attending information events and qualitative discussions and those responding to the consultation paper (18 consultees cited this) over inconsistencies in interpretation of information provided in disclosure certificates. One consultee from within a social work setting noted that " There is no consistent decision-making process about the relevance of information provided by a disclosure check."

Similarly, 17 consultees and some respondents noted difficulties in how to interpret information provided in disclosure certificates. One consultee from the education sector commented that they had experienced "Difficulty in getting further information on what convictions actually mean".

8.1.5 Disclosure procedures

Twenty-four consultees reported confusion over who needs to be disclosed while 9 voiced concerns that people who had been in post long-term might never have been through the disclosure process. These views were also mirrored by individuals attending qualitative discussions and information events. Loopholes whereby some categories of workers including private contractors and the self-employed are not disclosed were seen as an issue by 12 consultees. For example, one consultee from the police commented "The present system does not provide for self-employed people to be checked through the disclosure process, and it is a step forward for the new system to make provision for this."

8.1.6 Other issues

Other comments raised by smaller numbers of consultees included:

• A need to ensure employers understand current legislation in relation to disclosures and the need to update them on developments (4 consultees);
• The fact that there is not at present a single central body with overall responsibility for overseeing the disclosure system (4 consultees);
• The need for clear guidance on procedures to control access to the information provided (3 consultees);
• That the current forms are not suitable for those with disabilities (2 consultees).

Twenty-six consultees responding to the consultation paper did not provide any comments to question 1.

8.2 The proposed new scheme

The consultation paper focused on Recommendation 19 of the Bichard Recommendations, which called for the introduction of a register of those wishing to work with children or adults at risk. It is envisaged that this register would be administered by a central body and continuously updated. The Scottish Executive, following discussions with key stakeholders and after consideration of a study by the Department for Education and Skills in England, proposed the development of a barring scheme and this approach has been endorsed by Sir Michael Bichard.

The consultation asked respondents to comment on the recommendations, " especially recommendation 19 in respect of vetting and barring."

Seventy one consultees commented at question 2 and 51 consultees offered no comment to this question. Of those who did respond, many supported the proposals or commented that the proposed system would be an improvement. Seven consultees commented that the new system would be fairer, more transparent and efficient.

"We wholeheartedly support Bichard recommendation 19 and we recognise the considerable efforts made by everyone in all departments of the Government charged with responsibility for implementing the necessary legislation. The attraction of the registration scheme to us is that it would be an efficient safeguarding mechanism, also fair and transparent."
(Education)

From those responding to question 2 on the consultation paper specifically, 22 commented that information would be more accurate or up-to-date and 10 consultees foresaw a decrease in bureaucracy and in the need for multiple disclosures. One consultee from the social work sector welcomed "The provision of a system which will provide updates to employers, if any additional information is received, is a strength."

Five consultees specifically supported the move to ensure security and protection for adults at risk and most respondents attending information events and qualitative discussions also noted the importance of this.

"It is a positive step forward to develop a registration scheme that not only covers all those who work with children, but to also include all those who work with vulnerable adults."
(Other)

The move away from multiple disclosures was seen as a positive step by 12 consultees commenting on question 5 (interests of applicants) who felt this would prove beneficial.

There were suggestions from a number of respondents attending qualitative discussions that there should be an option to carry out disclosures via an online system. This was perceived to be one means by which timescales could be reduced and efficiency within the system could be improved. Similarly, another respondent noted that perhaps the Post Office could be involved in processing disclosure applications in the same way that they offer for passports at present. One respondent from within the care sector noted that the postal system is one way by which delays can be caused in obtaining disclosures.

Overall, there was widespread support from those attending focus groups, in-depth interviews and information events for the recommendations contained within the proposals. While the proposals often raised further questions in the minds of many respondents, it was noted that the new system as proposed would go some way towards counteracting the disadvantages of the current system.

While views were largely positive regarding the Bichard recommendations, there were some concerns over procedures and these included:

• Concerns over possible increases in time or resources needed to implement the new system - cited by 7 consultees at question 2;
• 7 consultees at question 2 worried about possible delays which might be caused by the system changes;
• 4 voicing the concern that implementing the proposals so close to the implementation of PoCSA will cause problems;

"Voluntary organisations have already had to 'grapple' with the introduction of new procedures in terms of the Protection of Children (Scotland) Act ( PoCSA). The Committee has concern that yet another change is being introduced. Informing volunteers and re-training them to deal with further legislation change will be difficult, time-consuming and financially burdensome for the voluntary sector."
(Voluntary)

• A need to ensure easy / quick access to information for employers (cited by 5 consultees at Q2)
• A need to ensure that the new system closes any loopholes over disclosure for the self-employed or similar workers (mentioned by 4 consultees at Q2)
• Tighter timescales to be put in place for retrospective checking of existing employees or volunteers (cited by 4 consultees at Q2)
• A need to standardise the definition of an adult as there is some confusion over when this should be 16 years and when 18 years is applicable (mentioned by 2 consultees at Q2)
• An expansion in the list of posts where disclosures are needed to include anyone with access to vulnerable groups or who has access to information about individuals (cited by 3 consultees at Q2).
• 35 consultees at question 3 (interests of vulnerable groups) felt that the system might operate as a deterrent, barrier or disincentive to workers or volunteers who might apply for a post and 40 consultees (of whom over a quarter were from the voluntary sector) felt the new system might lead to recruitment problems or to a reduction in volunteers; At question 4 (interests of employers), 6 consultees were concerned that the system would act as a deterrent to applicants for employee positions while 11 worried that volunteers might be put off.;
• At question 5 (interests of applicants) 47 consultees felt that the system could be off-putting, possibly due to its perceived "intrusive" nature and concern that applicants might be deterred by bureaucracy, its complicated nature, the formality or legality of the process was raised by 21 consultees. Only 4 mentioned that applicants would realise the importance of the vetting procedure or expect to be vetted.
• A need for a quick process with no delays - cited by 20 consultees at question 4 (interests of employers), while a further 7 felt that clear, prompt notification of outcomes or other communication would be beneficial.
• Processing time was also identified as a potential problem by 24 consultees responding to question 5 (interests of applicants) and a further 6 felt that any delay might cause potential applicants to seek work elsewhere, possibly in other sectors and one respondent participating in a qualitative discussion noted that on occasions they lost potential employees because of the time taken for disclosures to be conducted. Four consultees simply commented that recruiting staff or volunteers is difficult enough without an extra disincentive.
• At question 5, 7 consultees mentioned the need for consistent and safe recruitment policies, with one local authority hoping "that this scheme will go alongside the implementation of the Scottish Executive's Safer Selection Toolkit for Recruitment which would provide an accredited basis for safer selection for all posts which have direct access to children across Scotland.".
• The need to minimise any extra bureaucracy was stressed by 9 consultees (Q5) as was the need to guard against the new system causing any delays to appointments; this was mentioned by 6 consultees.
• Four consultees (Q5) highlighted the need to ensure ICT systems were compatible across all participating agencies.
• At question 2 (comments on Bichard recommendations), 9 consultees made comments in relation to the need for a UK-wide system to ensure accurate information on workers or volunteers from England and Wales; "Information held by a variety of bodies within (and outwith) the UK may not be shared as effectively as it could be. Inconsistencies between the criteria, legislation and procedures for the different relevant lists across and within the countries of the UK." (Health)

8.3 Phasing / retrospective checking

The consultation document asked "do you agree with the proposals for phasing the vetting and barring of the existing workforce?"

Phasing was seen as essential by 7 consultees. However, 12 consultees asked for more details on how the phasing in will be managed. Sixty-six consultees voiced general agreement for the proposals with only 4 disagreeing, two of whom felt it an unnecessary task as their staff had already completed the current disclosure. A further 6 consultees also voiced concern over what they perceived to be unnecessary duplication of effort. Fifty-two consultees did not comment on proposal 6.

Consultees responding to this question had some concerns over operational issues, with 15 wanting to see a shorter timeframe imposed and 21 asking for further consultation on, or clarification of, timings. Only 3 consultees thought the phasing should have a longer timeframe and 6 consultees felt that there should be no delays and that checks should be carried out immediately.

Two consultees voiced the opinion that retrospective checking should be mandatory and not left to the discretion of the employers, although 1 voiced the opposite view. One consultee felt there should be penalties imposed on any employer not carrying out the checks.

There was some concern that registered bodies might impose different timeframes; 4 consultees wanted to see all relevant bodies working to the same targets and 2 consultees asked for clarification over the role registered bodies will play in the new system.

In general, respondents attending information events, focus groups and in-depth interviews agreed with a need for some form of timeframe to allow for implementation of retrospective checks on all relevant employees. However, there were concerns over the additional cost burden that would be placed on some employers. Two respondents attending an information event working within the sports and leisure sector were also concerned that valuable volunteers - who have not previously been disclosed - might be lost.

Many respondents attending qualitative discussions noted the need for employers to prioritise groups of employees needing to be disclosed in order to spread additional cost and administrative burden over a time period. In general, there was agreement that a period of between 3-5 years in which to carry out retrospective checking would be acceptable.

However, many of these respondents also had concerns over whether the timescale for the setting up of the new scheme was realistic. Additionally, there were some concerns over the capacity of the new scheme to be able to deal with the immediate and potentially large numbers of individuals needing to be disclosed. Expectations were that there would be initial teething problems that would impact negatively on timescales, efficiency and information sharing.

For example, 6 consultees commenting on proposals 11-13 (Central Barring Unit) mentioned concerns over IT issues including cost and compatibility. Similarly, 7 consultees commenting on question 6 (other comments in relation to the scheme) noted that although proposal 6 does not make retrospective checking of the existing workforce an immediate requirement, even over the 3-5 years timeframe proposed in the consultation, vetting existing employees will put an enormous burden on some companies or organisations both in terms of cost and administration.

8.4 The need for guidance

A key theme emerging across this consultation was the need for guidance to be provided in order that individuals and organisations have a clear picture of how the new system will work, the impact it will have on the individual and / or their organisation and how to implement this within their own procedures and processes.

A need for guidance was outlined in relation to most of the proposals and 20 consultees commenting at question 4 (interests of employers) felt that more information about all aspects of the disclosure process should be available, including via the internet, while 11 consultees requested some form of accessible assistance, including helplines. Furthermore, 15 consultees responding to question 4 (interests of employers) felt they did not have easy access to information while 2 others had concerns about the way information would be interpreted.

8.4.1 Fit with Recruitment and Retention Systems

At question 2 (comments on the Bichard recommendations), 11 consultees saw the need for guidance on interpreting disclosure information in order to standardise recruitment and retention systems and this view was echoed by many qualitative respondents. Four consultees felt employers would require guidance on decision-making once disclosure information had been provided. One individual felt "Decisions about what may be relevant information must be understandable to employers and others."

Some consultees also suggested that the Scottish Executive should make available guidance on safe recruitment practices.

8.4.2 Interpreting Information

Across all strands of the consultation, concern was raised over whether employers would have sufficient knowledge or experience to interpret information provided to them and 7 consultees responding to proposal 17 (information released to applicant) felt there should be clear guidance or training on interpretation and use of information for employers. This was also a concern of participants at information events and focus groups and some felt that the amount of information provided to an employer should vary according to that employer's ability to interpret the information in a just and reasoned manner. That said, there were also comments that it would not be possible to justify providing more or less information to different employers. Again, respondents and consultees pointed to the need for a concerted communications and information campaign to help employers understand the need, not only to be able to understand information provided for disclosure, but also to understand how this should fit with robust recruitment policies.

Other consultees at Proposal 17 felt that guidance or guidelines were needed on what information could be withheld and for what reasons. The need to establish clear, robust protocols for dealing with these situations, which must be consistent with all current legislation, was seen as essential by 14 consultees. This view was echoed by those attending information events and focus groups.

8.4.3 Understanding Non-conviction Information

At proposals 18-20 (information sharing between the Central Barring Unit, public authorities, employers, police and regulatory bodies etc), the need for guidance was raised by 7 consultees who asked for guidance over the sharing of 'soft' information.

At question 5 (interests of applicants), 16 consultees felt that guidance or information should be made available on what sort of non-conviction information should be held and disclosed; irrelevant convictions, spent convictions and minor offences were seen as "grey areas" which needed clarification. Those attending information events and focus groups also referred to a need to ensure that any "soft" information provided is relevant to the job being applied for and that employers know how to interpret this information and use it sensibly.

At Proposal 17 (information released to applicant), guidance or clarification on the information sharing process was requested by 25 consultees while 2 felt the role of the CBU needed clarification.

"There needs to be guidance in what circumstances information should be shared. If a foster carer is de-registered as a result of an allegation but is not referred to the barred list, should this information be passed on as "soft" information. There needs to be consideration of the individual's rights under ECHR."
(Voluntary)

8.4.4 Obligations Under Bichard

At question 4 (interests of employers), a number of consultees cited a need for clearer understanding of obligations and requirements (raised by 6 consultees); "There will be a very large ongoing need to train and update staff, at all levels, on their responsibilities and obligations under the new legislation." (Voluntary). Some respondents attending groups also noted that it would be very difficult to create a full understanding among volunteers, particularly those who may be volunteering on a very infrequent basis. One respondent participating in an in-depth interview noted that understanding of the current system is not universal among employers and organisations and they suggested that guidance would be needed in order to ensure a full understanding of the proposed new system by all relevant individuals and organisation. This respondent also noted that guidance will need to be available to umbrella organisations responsible for processing disclosures on behalf of members.

Allied to this, 13 consultees worried that, in some cases, there was a lack of understanding about how to administer the system. In addition, the rules and procedures governing the process were seen as unclear by 22 consultees.

At proposal 14 (provisional listing), 21 consultees asked for clear guidelines, advice or training for employers to help them reach decisions or manage the situation.

Some respondents attending information events and focus groups noted that employers need to be made to realise what their responsibilities are in terms of notifying relevant bodies about information in relation to vetting and barring. Two consultees responding to question 5 (interests of applicants) felt that guidance was needed on how to refer people onto barred lists. In response to proposals 24-25 (referrals) 13 consultees requested clear guidelines or clarification on referral criteria for employers or regulatory bodies.

At proposal 23 (cross-referencing with offender registers and other lists), 7 consultees asked that there be clear guidance or protocols on how the lists or registers relate to one and other.

In response to proposal 6 (retrospective vetting and barring) guidance on how to manage the process of retrospective checking was requested by 8 consultees, while a further 8 commented that guidance was needed on the overall system. Guidance was also requested on how to identify level of risk in order to prioritise staff to be vetted, and 4 consultees commented that guidance should be available for employers receiving negative disclosures on existing workers.

In relation to proposal 9 (changes to the DWCL), some consultees (8 in total) made reference to the need for clear and comprehensive guidance or training for employers or agencies.

At Proposal 21 (role of regulatory bodies), the need for guidance or clarification on the implementation was mentioned by 9 consultees.

In relation to Proposal 9 specifically, 9 consultees wanted clarity on which factors or criteria would lead to an individual being placed on the DWCL. Thirteen consultees desired clarity on the referrals process, including defining the criteria for making a referral, the process itself and the restrictions on which organisations can make a referral.

"In terms of the DWCL we would like to see any person being entitled to make a referral to the DWCL. We cannot see a justification for persons entitled to refer being limited to certain categories only. However, because of the potential for the system to become swamped if complaints from individuals are accepted, it should be provided that where a complaint from an individual is about a person who is registered with a specified regulatory body, the CBU will be entitled in appropriate cases to refer the complaint to the regulatory body in the first instance."
(Social work)

8.5 A need for training

Alongside many requests for guidance to be provided, a number of consultees and respondents noted a need for training to be provided. For example, 15 consultees responding to question 3 (interests of vulnerable groups) noted that provision of training, support and guidance would be a way to mitigate possible problems for employers and 3 consultees specifically mentioned the need for a telephone helpline. This sentiment was echoed by a large number of individuals participating in information events, focus groups and in-depth interviews and some perceived a need for the Scottish Executive to play a pivotal role in provision of training, support and guidance.

Of those responding to question 5 (interests of applicants) specifically, information for employers was also seen as necessary with 18 consultees mentioning training or guidance on which level of disclosures should be requested for which posts, as well as how to interpret disclosed information and how to comply with legislation.

Of those responding to question 3 (interests of vulnerable groups), the need for training for employers was mentioned by 26 consultees with 15 commenting on the need for a clear, simple system; 10 consultees commented on the need to ensure consistency in interpreting the information provided on disclosures; "Employers may now have access to new types of information (or would they? Perhaps that would only be seen by the Barring Unit) and some guidance on how to use that information both from a legal perspective but also in terms of interpreting it will be essential." (Other)

A further 9 consultees (at question 5) saw the need for a code of practice; this, it was felt, would ensure the system operated consistently in a fair but strict manner.

8.6 A need for an information / communications campaign

To sit alongside guidance and training, a number of consultees and respondents cited a need for a concerted information and communications campaign.

At question 3 (interests of vulnerable groups), while a number of consultees and respondents had concerns with barriers to recruitment, some also made suggestions on how these could be avoided and these related primarily to a need for increased awareness of the benefits of the new system, and communication as to how to work within the new legislation. Fifteen consultees noted that an increase in positive publicity would be a way to avoid these problems. One consultee from the Education sector commented "If the broader disclosure process can be promoted to all those involved as adding value and therefore gains broad acceptance, the process need not restrict either children or vulnerable adults." The need to reinforce confidence in the system was raised by 13 consultees.

The need for a concerted communications campaign was highlighted by some respondents attending focus groups and interviews as well as information events and the ready availability of information was seen by 16 consultees (at question 3) as a way to mitigate some of these potential problems. One consultee from the police commented "Although Registered Organisations are likely to see this as the "positive vetting" of a candidate - applicants may deem the process to be a negative one, unless they are made aware that any minor convictions they may hold are likely to be irrelevant and will not bar them from such positions. An advertising campaign and Information Booklet similar to that provided at the time of the Disclosure Scotland launch, may be beneficial to Registered Bodies and members of the Public".

In response to question 5 (interests of applicants), 17 consultees also noted that in order to counter any negative perceptions, positive publicity aimed at increasing knowledge of, and confidence in, the system would be required. The need for clear, concise information to be made available to applicants was also raised by 23 consultees and 9 commented on the need for a simple, non-threatening process.

One respondent participating in an in-depth interview noted that large employers such as local authorities should have minimal problems with the introduction of a new vetting and barring system but that smaller employers (many of whom may lack an understanding of employment law in general) would have real problems with implementation and understanding of the new proposals. Again, this respondent pointed to the need for a concerted and co-ordinated information and communications campaign.

In most instances, the Scottish Executive was perceived (by those attending focus groups, information events and interviews) to be the key organisation to deliver an information and communications campaign. As the introducers of the new legislation, it was felt that the Executive is in an ideal position to provide further guidance and information on how the new system would operate. Three key roles were required of the Executive:

• to make guidance and support available at a general level;
• to communicate with umbrella bodies to ensure that all are aware of their role within the disclosure process;
• to help ensure that the general public are aware of the disclosure system.

That said, some respondents attending information events, focus groups or interviews also noted the importance of umbrella organisations and the key role they should play in helping to raise awareness of the new scheme. This was felt to be particularly relevant within the sports and leisure sector where many individuals may be involved in co-ordinating, managing or coaching for events, sometimes on a relatively infrequent basis.

In summary,

The proposed new scheme is perceived to go some way to counteracting some of the disadvantages of the current system, although it is not seen to provide a universal panacea.

There were some concerns about a lack of understanding of the new system, particularly among smaller employer organisations or voluntary organisations. In line with this, consultees and respondents alike perceived that key to the effective introduction of this system will be guidance, training and an information / communications campaign. While umbrella organisations and other regulatory bodies are perceived to have a role to play in the dissemination of information about the new scheme, the Scottish Executive is seen to play a pivotal role in this.

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