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Context for a Pre-Consultation Discussion Paper on Secondary Legislation

5. The Protection of Vulnerable Groups (Scotland) Bill was introduced to the Scottish Parliament on 25 ^th September 2006. Education is the lead committee for the Bill and received reports from the Finance and Subordinate Legislation Committees and took evidence from a wide range of stakeholders on the Bill's provisions prior to producing its stage 1 report on 21 ^st December ¹. The Stage 1 debate took place on the 17 ^th January 2007 ² and the general principles of the Bill were agreed by the Scottish Parliament without a division ³.

6. The Protection of Vulnerable Groups (Scotland) Bill sets out how the vetting and barring scheme will operate in general terms and secondary legislation will be used to provide the details of the scheme and ensure it operates effectively. This is normal legislative practice particularly for complex, technical Bills. It is a particular feature of this Bill given the intention to dovetail with the scheme being created for the rest of the UK. The Safeguarding Vulnerable Groups Act 2006 which received Royal Assent on 8 ^th November is the legislative vehicle for the vetting and barring scheme in the rest of the UK. The operational aspects of that scheme are heavily reliant on subordinate legislation and are therefore, still under development.

7. The Protection of Vulnerable Groups (Scotland) Bill makes provision for a range of secondary legislation. Annex A summarises the regulations and powers provided for in Parts 1 and 2 (and ancillary parts and schedules) separating out:

• those that are substantive and which are discussed in the body of this paper,
• those which are necessary for the vetting and barring scheme to be effective,
• those which could augment the scheme but which are not essential for effective operation from the outset, and
• those which are designed to future-proof the vetting and barring scheme.

8. The extent of secondary legislation was raised by some stakeholders in stage 1 evidence and particular reference was made to the problematic implementation of the Protection of Children (Scotland) Act 2003. The Education Committee concluded in the Stage 1 report:

The Committee considers that despite the limited time available, the Bill could have been presented with more sound financial information and at least some examples of the proposed draft guidance and codes of practice which are expected to be developed through secondary legislation. To allow the Parliament and key stakeholders to gain a clearer understanding of the operation of the Bill, the Committee asks that Ministers make drafts of guidance and regulations available for comment prior to commencement of its amending stages (paragraph 177).

9. At the heart of the issue is the degree to which the Education Committee can be assured that the primary legislation provided for in the Bill will be translated into a streamlined, modern and effective vetting and barring scheme through secondary legislation. The Executive fully recognises the legitimacy of this question and shares the view that detailed and careful consideration of implementation is as critical to a successful scheme as the legislative provision contained within the Bill.

10. Successful implementation is underpinned by extensive and comprehensive engagement with the full spectrum of stakeholders and delivery partners. As well as openly committing to comprehensive consultation on secondary legislation, we have been running implementation planning in parallel with legislative development. Work is well advanced in defining the detailed requirements of the scheme and this work will continue to be developed through relevant workstreams and refined in the coming months to inform further consultation on secondary legislation.

11. In the case of this legislation, there is a balance to be struck between fully developing the details of secondary legislation to support Parliamentary consideration of primary legislation and delaying robust protections for Scotland's children and protected adults. The Minister for Education and Young People wrote to the Education Convenor on 12 ^th January indicating:

In relation to draft regulations and guidance on Parts 1 and 2, the Executive is committed to full and comprehensive consultation on the subordinate legislation. Some components of the secondary legislation involve explicit policy choices; for example, there are a range of options on whether/how to phase the existing children and protected adults workforce into scheme membership (retrospective checking). The production of regulations will therefore involve an initial consultation on policy choices and then consultation on the regulations which flow in consequence. Producing draft regulations prior to the amending stage of the Bill would therefore entail a significant delay in progressing the primary legislation and the introduction of the new vetting and barring scheme which will offer robust protections to Scotland's most vulnerable groups.

12. Recognising the merit in demonstrating that the Protection of Vulnerable Groups (Scotland) Bill is underpinned by on-going detailed consideration of implementation issues the Minister indicated in his letter:

To assist the Committee with more details on the key areas of sub-ordinate legislation I propose to provide pre-consultation papers identifying issues and outline policy options ahead of the commencement of stage 2 on:

• fees set by regulations under section 67(1);
• retrospective checking through the phased commencement of section 34(1)(b); and
• thresholds for listing - automatic listing made by order under section 14 and determination procedures set out in regulations made under section 39(1)(c).

13. This discussion paper is the response to that commitment. Rather than producing separate papers on retrospective checking, fees and determination procedures (thresholds for listing), discussion of the inherent issues and policy choices for, each strand, have been consolidated into one document and comprise the remaining substantive sections of this paper.

14. It is important to emphasise that we are not consulting on the detail of these issues at this stage. Full consultation will follow. Subject to the decisions of the next administration, it is anticipated that a policy consultation on the core elements of this discussion paper will take place between June and August 2007 providing a substantive opportunity for stakeholders to input on detail. There will then be a further opportunity to comment when draft Scottish Statutory Instruments are published for consultation. This is expected to be between October and December 2007.

15. Whilst not a formal consultation, this pre-consultation paper will be used as the basis for discussion at a number of structured stakeholder events during January and February to invite initial views on key issues and to assess whether we have captured all the core issues and identified all the policy choices. Direct engagement will take place at:

• A major local authority/police event on 25 ^th January involving around 75 delegates. These include human resources managers and service leads from local authorities and police forces across Scotland;
• A specially convened meeting with regulatory bodies and representative bodies on 30 ^th January;
• A meeting of the Voluntary Sector Issues Group on 31 ^st January on which a range of voluntary organisations and faith group are represented ⁴;
• A meeting of the Scottish Bichard Implementation Group on 1 ^st February which has representation from COSLA, Disclosure Scotland, ACPOS, SCVO and the NHS;
• A workshop convened to consider determination issues on 5 ^th February with people familiar with the existing disclosure process.

16. To assist in moving into the stage 2 consideration of the Bill, the Education Committee will be advised of the stakeholder response to the pre-consultation discussion paper in early course, particularly any points which are relevant to primary legislation.

17. In addition to direct engagement, copies of this paper will be sent to all organisations that responded to the Executive's consultation on the vetting and barring scheme and to the counter-signing bodies participating in on-going Disclosure Scotland roadshows. It will also be posted on the Executive's website.

18. Although not a formal consultation exercise any written comments are welcome and should be sent to pvg.enquiries@scotland.gsi.gov.uk or posted to:

Scott Wood

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