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Chapter 5: The Central Barring Unit

5.1 Structure / preferences for governance

The consultation document asked specifically about proposal 11; whether respondents " have any comments on the status and governance arrangements for the Central Barring Unit? and What degree of separation is needed from the Scottish Ministers?" However, some consultees also commented on proposals 12 and 13. One hundred and forty consultees commented on this aspect of the consultation.

Of the consultees responding to this specific consultation question, the most popular option, albeit by a narrow margin, was for the CBU to become part of Disclosure Scotland, with ministers accountable for listing decisions (this option was preferred by 36 consultees).

"We also would suggest that the function of the CBU should be incorporated as part of Disclosure Scotland or the function of Disclosure Scotland should be incorporated into the CBU. We would not like to see another bureaucratic system created, rather the synergy of new ways of working further developing an existing system."
(Social work)

Current proposals for Disclosure Scotland involve becoming part of the Scottish Police Services Authority ( SPSA) in a new Non-Departmental Public Body ( NDPB). However, 7 consultees felt that the police services should not be involved in decision making.

If this option went forward it was felt, by 7 consultees, that while these two agencies should be closely linked, there would need to be clear lines of communication, responsibility and accountability between them. One other consultee commented on the need for a clearly defined structure of decision making and accountability.

Three consultees also felt that the relationship between the Central Registered Body for Scotland ( CRBS), Disclosure Scotland and the CBU needed to be considered.

Seven consultees felt that Disclosure Scotland and the CBU should remain separate as they felt the investigating body should be totally separate from the decision-making body. This option was the favourite, or joint favourite, option chosen by 7 of the 12 consultee sub-groups: individuals; education; local authorities; justice; health; police and social work.

Twenty-nine consultees voiced support for the creation of a totally new NDPB with responsibility resting with a panel of experts. This was the preferred option among both "other" and voluntary organisations.

"We would welcome the establishment of an NDPB accountable to the Scottish Parliament and subject to legal principles enshrined under Human Rights legislation."
(Voluntary)

Six consultees also felt that a special panel should have responsibility for decision-making. The need for the decision-making body to include, or have access to, a wide range of experts was seen as important by 20 consultees with a further 2 consultees calling for the inclusion of external representation.

The option that the CBU becomes a core civil service function, as is the case with the current DWCL, was supported by 19 consultees; in this case Ministers would have direct responsibility.

Nine consultees felt that an Executive Agency would be the best model.

Regardless of the option taken forward, the need for objectivity and independence was voiced by 21 consultees with 10 highlighting the need for credibility and public confidence in the body. Four consultees commented that it should be seen to be open and fair. Four consultees made a general comment on the need for an independent body.

The need for the decision to be based on efficiency and effectiveness was supported by 10 consultees.

Six consultees felt that they did not have sufficient information or knowledge on which to base their choice.

Chart 5.1 illustrates the preferences of the two main consultee categories alongside responses from the other sub-groups combined.

Chart 5.1 Preferred governance

Base: all consultees

Degree of separation

The need for Ministers to be ultimately accountable or responsible for the new agency was supported by 38 consultees, although 2 stated that there was no need for separation. Conversely, 21 consultees felt there should be total separation.

At present, Ministers have overall responsibility for listing decisions, but are not involved in decision-making for individuals cases. Sixteen consultees felt that they should not be involved in decision-making, although 2 consultees felt that they should be involved in any appeals.

The need for some degree of separation, and in particular political independence, was mentioned by 29 consultees. One organisation representing parents and carers suggested "In the interests of compliance with European Convention for Human Rights ( ECHR), the respondent would suggest that a degree of separation from the Scottish Ministers is advisable."

Across the consultee sub-groups, 5 groups (education, health, local authorities, social work and voluntary organisations) showed a preference for ministers to have responsibility. The other 7 sub-groups either did not state a preference or chose total separation and ministerial responsibility in equal numbers.

Across the respondents participating in qualitative discussions, there was greatest support for a body at arm's length from Scottish Ministers. Some respondents noted the importance of containing the Central Barring Unit within Disclosure Scotland, partly on the basis that Disclosure Scotland staff are trained for this role.

More critical to these respondents was the need to ensure that whatever the model of governance adopted, staff are properly trained and that staff have access to the necessary information upon which they base decisions. Most of these respondents also noted that it was sensible for one agency to have responsibility for maintenance of both lists and that this would help to ensure effective information sharing.

5.2 Decision-making process

Consultees were asked whether they thought decisions on barring should be made by a special panel, a case conference or administrators.

One hundred and fifty nine consultees commented on the decision-making process for barring, a large majority favouring the special panel option as the decision-making entity. Preferences for each of these options were as follows:

• Special Panel (82 consultees);
• Case Conference (4 consultees);
• Administrators (7 consultees);
• Special Panel or Case Conference (14 consultees);
• Administrators for straightforward cases or court referrals, Special Panel for more complex decisions (4 consultees);
• Depends on difficulty of decision (7 consultees);
• Depends on costs (6 consultees);
• Not sure (1 consultee).

In the words of one consultee within the education sector, "…would favour a panel approach as opposed to that of an administrator. A panel which is properly trained and supported would introduce the key element of expertise into the decision-making process."

In addition 26 consultees emphasised that decisions on barring should not be taken by Administrators, while 12 consultees commented that they did not have enough information to decide or were unsure of the meaning of Special Panels or Case Conferences or Administrators.

Respondents participating in the qualitative discussions also largely favoured decisions being taken by a special panel but again emphasised the importance of proper training for the panel and wanted representation on the panel across a range of sectors.

5.3 Qualities needed by decision-makers

A large number of consultees took the opportunity to comment on the qualities and abilities required by those undertaking decisions as to barred listings:

• Expertise / knowledgeability / experience in relevant fields (72 consultees)
• Risk assessment or risk management expertise (6 consultees)
• Ability to interpret information (3 consultees)
• Knowledgeability of volunteering sector (2 consultees)

Nine consultees commented that decision-makers would need training or special training, and 11 suggested that decision-makers would need support generally.

5.4 Structure of decision-making body

In terms of the structure of the decision-making body, a range of suggestions were made by consultees:

• Multi-disciplinary group / mix of backgrounds (19 consultees).
  Backgrounds mentioned were:
  • Social Work (8 consultees);
  • Law (8 consultees);
  • Health (6 consultees);
  • Teaching / Education (6 consultees);
  • Lay Persons (3 consultees);
  • Professionals (3 consultees);
  • Voluntary (2 consultees);
  • Child Protection (2 consultees);
  • Protection of Vulnerable Adults (1 consultee);
  • Police (1 consultee);
  • Human Rights (1 consultee);
  • Private (1 consultee) and;
  • Administrators (1 consultee);
• Independent body (5 consultees).

In addition 6 consultees stressed that decision-making should not be taken by one individual alone.

A large number of consultees also gave their views as to which elements should be ingrained within the framework of the decision-making process:

• Consistency of criteria / consistency of decision-making (31 consultees);
• Accountability / transparency (19 consultees);
• Soundness of decision-making process (11 consultees);
• Fairness / impartiality (9 consultees);
• Inclusion of Appeals Procedure (8 consultees);
• Need to get public confidence or confidence of a specified body (7 consultees).

"The transparency of the process would best be served by creating distance between administrators and decision-makers. In these circumstances, the decision should be made by a special panel, which is at arm's length from the administration of the CBU."
(Local authority)

One consultee commented on the need for the model of governance to be UK-wide.

5.5 Provisional listing

Provisional listing is proposed for instances where it might take time to determine whether or not an individual should be added to a barred list. This is a separate mechanism from provisional barring in that under provisional listing the individual would continue to work, whereas under provisional barring they would not. Consultees were asked w hat should the criteria be for provisional listing? and whether they agree that the individual should be able to continue to work during the determination process?

Among the 159 consultees commenting on this proposal there were slightly more in favour of individuals continuing to work. Thirty six consultees agreed and 31 disagreed that an individual should be able to continue to work. One local authority raised the following query:

"The Council is unclear as to precisely what is being proposed. In the case of a prospective new employee, the person should not start in post until the determination is made. In the case of an existing employee, the criteria for referral under the Protection of Children (Scotland) Act 2003 require that a person is no longer working in the post. Therefore, why are we being asked to respond to a question about whether a person should be able to continue to work during the determination process? Unless it is proposed to change the criteria, then the question does not arise."

One voluntary organisation felt that this would " avoid the type of situation …. where someone can be the victim of a false complaint or allegation. The principle of innocent until proven guilty should be the norm, with a requirement to justify any alternative action."

Redeployment until a decision had been reached, or suspension if redeployment proved problematic due to the particular nature, size or circumstance of the employer, was favoured by 20 consultees. In a case of suspension from duty, 4 consultees felt that the individual should continue to be paid.

The largest support, although at a marginal level of 39 consultees, was for each instance to be judged on a case-by-case basis. Two consultees felt that the decision should be made by the CBU.

Twenty-three consultees felt it should be a decision for the employer to make and 26 felt that employment could continue as long as safeguards or supervision were in place. However, 21 consultees asked for clear guidelines, advice or training for employers to help them reach decisions or manage the situation.

Eight consultees worried that employers could fall foul of employment legislation; one felt that a change to employment law to protect employers in these situations would be merited. It was seen as essential, by 13 consultees, for employers to be given all relevant information about any individual who had been provisionally listed. Four consultees felt that, while current employees should be allowed to continue in employment, new employees should not be taken on until their situation had been clarified.

A third (33) of consultees responding to this specific question stressed the need for a quick decision on the status of the individual, for the sake of both the employer and the individual concerned. One consultee from the voluntary sector "considers it imperative that decisions regarding the listing of individuals should be made as quickly as possible so as to reduce instances where provisional listing is necessary."

Two consultees mentioned the need for a right of appeal while 8 highlighted the need to protect individuals from malicious referrals. Seven consultees however, felt that the balance of risk must always be in favour of vulnerable groups. Four consultees asked whether a record of a prior provisional listing would be included in disclosure information.

Nine consultees saw no need for provisional listing and some felt this would pose risks to vulnerable groups. One noted that, if the system aimed to be consistent across the UK, only provisional barring should be used; as is the case in England and Wales.

A number of consultees commented on the criteria for provisional listing and 12 referred to the criteria already in place under PoCSA for the DWCL and felt that these were appropriate. Five consultees commented on the need for a risk assessment prior to the provisional listing decision and 3 felt that more consultation would be needed before setting criteria in order to explore the issues raised by compliance with human rights and employment law. Seven consultees felt they could not comment without further information or examples.

Any instance which might, if proven, lead to an individual being placed on either list was seen by 9 consultees as meriting a provisional listing and a further 8 consultees thought that any information which might lead to doubt over an individual would be sufficient.

Harm (perhaps as defined in PoCSA), or allegation of harm were cited by 4 consultees; 3 felt that inappropriate conduct, or allegations, should lead to a provisional listing. Two consultees mentioned serious offences or misconduct and 1 felt provisional listing should occur where an individual was under investigation or pending prosecution.

Eleven consultees felt they needed clarification on the distinction between provisional barring and provisional listing while 9 consultees asked that there be clear, robust criteria and guidelines in place for provisionally listing an individual.

While there was general support for the recommendations as laid out in the consultation paper, consultees and respondents alike cited a number of logistical issues in relation to the implementation of systems and procedures.

The need for standardisation and a robust system in relation to referrals to the provisional list was raised by 10 consultees. One consultee from the education sector commented that their organisation "have concerns regarding consistency of practice across the courts in referring names to the central body."

Nine consultees commenting on proposal 9 (changes to DWCL) specifically highlighted their concerns about the potential for unsuitable persons to work with vulnerable groups because of loopholes (e.g. listing only being made in the most serious referral cases).

"… the picture seems to be that only in the most serious cases are people listed and this seems to be borne out by the fact that it is understood that, to date, only about 70 persons have been listed. It would, therefore, appear to the Committee that there is a complete mismatch between the criteria for referral and the criteria necessary to be listed. If this, is indeed, the case, employers are being put to considerable effort in gathering the evidence and making the referral to no purpose. The Committee is also not clear whether, and to what extent, information is retained from "unsuccessful' referrals so that a person may eventually be listed where there is a pattern of behaviour which emerges over time. Although in themselves individual incidents may not appear serious, cumulatively they may be indicative of something extremely serious."
(Voluntary)

The consultation document asked whether respondents agree that the right of appeal should be to the sheriff court with a three-month time-limit?

This proposal was supported by 117 consultees; 32 consultees did not comment and 2 were unsure. Only 4 consultees voiced disagreement with the proposal. Another 6 commented that the proposed system seemed in line with other similar appeals processes.

"Agree that the appeal should be through the sheriff court which is in line with some other Registration procedures (e.g. SSSC)."
(Local authority)

A wide variety of points were raised in relation to this proposal, with the main concern being that the process should be quick with no undue delays. Three consultees stressed that individuals must be able to clear their names. Five consultees queried whether sheriff courts have the capacity to deal with these appeals. A further 3 consultees asked for clarification on the process in general.

The impact on the recruitment process, from an employer's point of view, was raised by 4 consultees and 5 asked for guidelines for employers. One from the education sector commented "However, for the duration of the appeal and hearing, the employer may not be willing to continue to employ or suspend pending the outcome. What guidelines will there be for employers?" One consultee felt that individuals should not be employed while the appeal was pending.

The administrative burden to employers of providing supporting information was raised by two consultees.

There was some disagreement over the proposed 3-month limit on appeals with 6 consultees in favour of an unspecified shorter period and 10 specifying a period of around 1 month. Three consultees asked from what stage the 3 months would apply; from the point that the individual was notified or from the date of the barring decision.

A further 10 consultees felt that 3 months might not be long enough and 1 felt there should be no limit. Five consultees commented that individuals must have sufficient time to prepare their case and 4 felt that any information held should be passed to all concerned as quickly as possible; although it was pointed out that this might cause problems for the police in the case of an active investigation.

Two consultees felt that information should not be disclosed to third parties until the appeal had been heard and 2 asked for clarification over any police involvement or role in the appeals process.

Three consultees queried whether the sheriff court was the correct forum for appeals. Eight consultees felt that there should be an internal review mechanism for straightforward cases, while 10 thought it more appropriate if appeals were to be heard by an independent panel. One suggested that appeals should be heard at ministerial level.

Concerns over the cost of appeals at the sheriff court were raised by 9 consultees and this also included queries over whether legal aid would be available. Two consultees asked whether the appeal would be classed as civil or criminal as this would have an effect on the provision of legal aid and 2 asked who would represent the individual concerned. One issue noted by a respondent participating in qualitative discussions was that whatever system is adopted, it must be fair on the individual concerned.

Four consultees asked for clarification on the process for appealing the outcome of an initial appeal. One consultee felt that all information should be removed from an individual's record after a successful appeal, although 4 felt this should remain as in the case of spent convictions. This, they felt, was especially necessary in relation to a 10-year review. The 10 year review was also commented on by 3 consultees who felt that there were some reasons for barring that should incur a lifetime ban.

It was suggested by 2 consultees that individuals could be intimidated by the court process and therefore it must be made accessible; one consultee felt that the process seemed too complex. Three commented that the process must be simple while 2 stressed the need for the appeal to be heard in private. The need for an effective, efficient system was highlighted by 3 consultees.

5.6 Barred lists

Twenty-three consultees commenting at question 4 (interests of employers) felt barring lists would be preferable to a registration scheme, although 2 consultees commenting at question 5 (interests of applicants) noted that a registration scheme would be preferable to barred lists.

"The Bichard recommendations represent a very comprehensive and realistic approach to safeguarding children through safe recruitment. We fully agree with the proposal to implement recommendation 19 via a positive barring process for unsuitable individuals, rather than a registration scheme for suitable individuals."
(Local authority)

On the issue of automatic barring, 4 consultees commenting on proposal 23 agreed that inclusion on another list should not automatically lead to barring on the DWCL or DWVAL, although 10 disagreed with this. One consultee from the education sector commented "Listening to the way that employers are using the information provided through Disclosure in making appointments, we cannot imagine that, in the real world, anyone would appoint someone who was on the Sex Offenders Register to a childcare position." One consultee commenting at question 5 (interests of applicants) asked that applicants barred from working with children are not automatically barred from working with adults (and vice versa).

Inconsistency between procedures in Scotland and the rest of the UK was highlighted by 3 consultees commenting on proposal 23. One individual from the voluntary sector was "concerned that the Executive proposes to 'make sure that the approach both sides of the border is consistent' while the Safeguarding Vulnerable Groups Bill, introduced to the Westminster Parliament in February 2006, seems to make the provision for those listed in Scotland to be barred in England and Wales.".

Seven consultees felt barring decisions should be taken on a case-by-case basis, although 2 others queried who would be responsible for carrying out these risk assessments.

In summary,

The most favoured structure for a decision-making body was for it to take the form of a special panel. Key criteria for individuals on this panel were for proper training, expertise in relevant fields and representative of a broad range of sectors.

The status and governance of the Central Barring Unit provoked two key preferences; either for the CBU to become part of Disclosure Scotland or for a new body to be created with responsibility lying with a panel of experts. From information events and focus groups specifically, there was greatest support for Scottish Ministers to remain at arm's length.

On the issue of provisional listing, some organisations noted that this contradicts current employment contracts and that particularly for smaller organisations, suspension or redeployment rather than supervision, is an easier option to manage.

There were some queries on the distinction between provisional listing and provisional barring and some requests for clear, robust criteria and guidelines in place for provisionally listing an individual.

A majority of consultees showed support for an applicant to have 3 months to appeal against listing.

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