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Executive Summary
Background Overview
A Scottish Executive consultation, "Protecting Vulnerable Groups: Scottish Vetting and Barring Scheme" took place between 8 February 2006 and 2 May 2006. Over 200 responses were received to the consultation, although this report focuses on 186 received by 17 May and these have been included in the analysis. The consultation document was also available on the Scottish Executive website.
The consultation document sets out the background to the consultation, a description of a new vetting and barring scheme for those who work with vulnerable groups and asked for views on a range of issues. This report provides a robust analysis of all responses to the consultation using both quantitative and qualitative analytical approaches. A programme of information events was also conducted by the Scottish Civic Forum and a series of focus groups and in-depth interviews were undertaken by George Street Research. The findings from these additional elements have been incorporated into this report. The findings will feed into legislation and the development of the detailed operation and process in the new scheme.
Overview of Respondents
The protocol we have adopted in this report is to firstly state the themes emerging from individuals and organisations responding to the consultation paper, and these have been referred to as "consultees". We then provide additional commentary from those attending information events, focus groups or in-depth interviews and these are referred to as "respondents".
In total, 186 written responses have been analysed. The majority (92%) responded on behalf of organisations and only 6% responded as individuals; the remaining 2% were anonymous. The largest number of organisational responses was received from voluntary organisations (n = 44) and those categorising their organisation as operating within the education sector (n = 42).
Across those responding to the consultation paper and those attending focus groups and information events, there was widespread approval of the introduction of a new vetting and barring scheme in Scotland as proposed within the consultation paper. Overall, the proposed system is perceived to be more transparent, efficient and fairer than the present system.
A number of disadvantages were identified within the current system and these are as follows:
- Lack of protection for adults at risk
- The need for multiple disclosures
- "Point in time" nature of each disclosure (with no capacity to obtain updated information); thus, most query the true validity of disclosures
- Processing time - while most noted that there has been an improvement in processing times recently, there were still some comments that there can be delays in obtaining some disclosures and this can have a knock-on impact on recruitment of staff
- While most respondents accepted the current cost level (£20 per disclosure), the need for multiple disclosures serves to increase overall costs for many organisations or individuals
- Lack of capacity to cross-reference information with other sources and limitations on what information can be accessed, particularly on some overseas workers
- A degree of confusion over who needs to be disclosed (categories of workers) and potential loopholes for disclosure of self-employed individuals
- A lack of understanding on the part of employers as to how to interpret disclosure information.
Overall, there was widespread support for the recommendations contained within the proposals from those attending focus groups, in-depth interviews and information events and those responding to the consultation paper. In some instances the information provided raised further questions for respondents, although it was noted that the new system as outlined would go some way towards counteracting disadvantages of the current system. Key themes identified in the study are outlined in the following paragraphs:
Updating of Information
The proposed ongoing updating of information removes the point in time nature of current disclosures as well as providing up-to-date information upon which employment can be offered. Of most importance, because each disclosure is portable across different roles relating to the same individual, the need for multiple disclosures is reduced.
While respondents were very favourable about the concept of ongoing updating of information, there were some concerns about who should be responsible for updating information. It was felt that primary responsibility for updating should lie centrally and then with regulatory bodies and organisations. While there was also an expectation that employers would provide updated information, there were some concerns over whether employers would in reality do so, particularly in instances where an employee was no longer in their employment.
Coverage of the Workforce
There was general agreement from consultees and respondents on the need to extend the range of positions requiring disclosure to include occupations with indirect contact with children and adults at risk.
Information Sharing
The concept of information sharing across different regulatory bodies and organisations was welcomed and would overcome a weakness of the current system in that certain groups are unable to obtain access to information, although some consultees and respondents assumed that information would be shared between all regulatory bodies. While there were some concerns about the infrastructure and operation of the new system (at least initially), a wide range of organisations were cited as potential providers of information to feed into the disclosure system. Furthermore, organisations participating in the consultation and who might be providing information for disclosures were generally positive about this concept.
Two key issues emerged in relation to information sharing. First, with the increased numbers of overseas workers in Scotland - particularly within certain sectors such as health and education - there were acknowledgements that it is not possible to obtain full disclosures on all potential staff. There were requests for links to be set up with as many countries as possible so that disclosure information can be obtained. Second, while there was an acceptance of the need for parents and personal employers to be able to obtain disclosures for employees, there were concerns over the provision of what can be confidential and sensitive information. A need was defined for a new body that could adopt the role of intermediary on behalf of parents and personal employers obtaining disclosures. In this way, parents and personal employers would only have access to basic information as to whether or not someone is barred.
When information is updated on barred status, it is felt that this should be shared with all relevant employers and regulatory bodies and well as the applicant. While there was acceptance that there may be some instances where disclosure information could not be shared (ongoing police investigations were cited by most), this was felt to be the exception rather than the norm.
Non-conviction Information
Although there was significant support for non-conviction information to be provided as part of the disclosure, there were concerns over how this information would be used and who this should be provided to. In particular, the capacity of many employers to interpret this information was highlighted as an issue that needs to be dealt with.
Two Separate Lists
Views on whether there should be one or two separate lists were split. There were some individuals who perceived that inclusion on one list should lead to automatic barring on the other; while others felt it was acceptable for an individual to be barred from one list but not the other. That said, many consultees and respondents would expect to be given information as to whether or not an individual was on the other barred list. There were also some concerns that the maintaining of two separate lists could create further unnecessary expense. If there are two separate lists, it was felt that these should both be operated by the same central body.
Costs of Disclosure
This was an issue that many respondents found difficult to discuss. While it was acknowledged that the costs of the new system were not known, there were concerns that the cost to implement the proposals as laid out could be significant. While there were some acknowledgments that removing the need for multiple disclosures could reduce long-term costs, it was felt that the cost of the initial disclosure could increase significantly. Of those who were able to specify what might be an acceptable cost, there were preferences for something in line with the current level of £20. While some respondents guessed that the cost of disclosure could increase to over £50, for most this level was too high. There was widespread agreement for volunteers working in voluntary organisations with children or adults at risk to receive a disclosure at no cost to themselves.
It is also important to note that some respondents further noted the indirect costs that could be attributed to the new system. Even among those organisations working in the voluntary sector that do not have to pay for disclosure, there were concerns about the increased cost of training and administration in order to ensure the new scheme could work effectively and efficiently. There was certainly an expectation on the part of a few respondents that an increase in costs would also mean a speedy or speedier processing time.
Lifetime of Disclosure
The proposed lifetime of 10 years for an individual disclosure was generally accepted by respondents. However, this was not a key issue for respondents, given that information will be continually updated under the new system.
Provisional Listing
Views on provisional listing were mixed. For some respondents and consultees it was felt that individuals should not be able to continue to work during the determination process, either because of an immediate need to remove potential harm from vulnerable groups, or because of a lack of available staff to offer supervision.
There was a degree of confusion over the difference between provisional listing and provisional barring.
Need for Consistency across Legislation
A number of issues were highlighted due to perceived inconsistencies between different legislation. For example, under current law, for the purposes of the Disqualified from Working with Children ( DWCL) a child is any individual up to the age of 18, but for the purposes of some criminal activity, an individual is an adult from the age of 16.
There were also suggestions that any new legislation should meet with the requirements of current employment law and human rights law. At present, there are sometimes contradictions between guidelines laid down by regulatory bodies, recruitment practices, human rights legislation and disclosure requirements. There were also some concerns that there should be no discrepancies between the new legislation and the Data Protection Act.
Inclusion of Civil Orders
There was broad agreement of the need to include civil orders as part of a new disclosure check, but there was a preference for this to be limited to those which are deemed relevant. A clearly defined, mandatory statutory list of civil orders was requested by some consultees and respondents .
Retrospective Checking
While there was an acceptance of retrospective checking for all relevant employees, some respondents would like to be provided with guidance on the types of employee or volunteer that should be prioritised for retrospective checking. Additionally, some requested a timeframe for this.
The Structure of a New Body
The most favoured option for the structure of a body to make decisions on barring was for a special panel. Key criteria for members of this panel would be to have expertise in relevant fields, be representative of a broad range of sectors and to have training to enable them to make decisions and interpret available information. In terms of the status and governance of a Central Barring Unit, there was a preference for this to be at arms length from Scottish Ministers.
The Future
While in many instances respondents noted potential problems or issues with the proposed new scheme, many made suggestions as to ways in which any problems could be overcome.
There were many calls for the provision of guidance and help in how to interpret information provided under disclosure and the Scottish Executive was perceived to have a key role to play. Within this guidance, there was a perceived need for employers to be made to understand the importance of a robust recruitment policy and not simply to rely upon disclosure information when making a decision over whether to employ someone. For example, there was support for information to be released as part of a disclosure when there is not sufficient cause for someone to be added to a barred list. However, the capacity of some employers to interpret this information was questioned.
There should also be guidance provided on priorities for retrospective checks and a timeframe for this. There were also some requests for guidance on how to identify level of risk in order to help prioritise retrospective checks. Some respondents cited a need for guidance similar to that provided alongside PoCSA (Protection of Children (Scotland) Act 2003).
There was also a suggestion for training to be provided to sit alongside guidance and help. While there were acknowledgements that many larger organisations will have robust recruitment policies, this was not perceived to be the case for many smaller organisations or those relying on volunteers. The role that can be played by umbrella bodies in dissemination of information should also not be underestimated.
There were also calls for a large-scale and sustained information and communications campaign to sit alongside any new legislation. This would have a number of key roles. First, to counteract any concerns from potential employees or volunteers about the disclosure process. Second, to provide information to employer organisations and the general public at large on the disclosure process and why it is important. Third, to explain key elements of the disclosure process. The Scottish Executive was seen as the obvious body to provide this information and communications campaign, perhaps backed up by more localised or tailored guidance from regulatory bodies.
Clear definitions need to be provided for who constitutes a "child" and "adult at risk" and, wherever possible, these should comply with other legislation such as PoCSA.
There was a preference from some for an online facility via which disclosures could be obtained and it was felt that this would help to eradicate any delays caused by the postal service. At a time when there has been a huge growth in Information and Communication Technologies ( ICT) for a wide range of services, it was seen by some to be an essential element of a new service.
There is a need to set up an intermediary body that can deal with disclosure requests on behalf of parents and personal employers in order to retain confidence in the system and ensure confidentiality when information is provided.
There was broad agreement that parents and personal employers should be able to make their referrals via an intermediary body.
Finally, there were calls for a further scoping study and consultation exercise to be conducted between the draft and final legislation.
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