2. Background and Context
2.1. The Bichard Inquiry
2.1.1. An inquiry led by Sir Michael Bichard was commissioned by the Home Secretary in December 2003 following the conviction of Ian Huntley for the murder of Soham schoolgirls Holly Wells and Jessica Chapman. The Inquiry investigated failings in child protection measures, record keeping, vetting and information sharing. The Report setting out Sir Michael's findings and recommendations was published on 22 June 2004 and can be found at www.bichardinquiry.org.uk
2.1.2. While primarily targeted at England and Wales, Scottish Ministers welcomed the publication of Sir Michael Bichard's report. It was agreed that it was important to consider all 31 recommendations in Scotland, with colleagues in the rest of the UK, to ensure that in taking these forward, cross border anomalies or loopholes did not develop which could be exploited by those who might seek to harm children or vulnerable adults.
2.1.3. Officials from the Scottish Executive, the Association of Chief Police Officers in Scotland and Disclosure Scotland, in particular, have been working closely with colleagues in the Home Office, Department for Education and Skills, Department of Health and the Criminal Records Bureau in taking forward consideration and implementation of the recommendations.
2.2. The Vetting and Barring Scheme
2.2.1. This consultation paper focuses on Recommendation 19 in the Bichard report because it is central to the improved regime and to take it forward requires legislation. (The other 30 recommendations are being taken forward as required in Scotland through a variety of actions.) This recommendation proposed the development of a registration scheme covering all those who work with children and vulnerable adults. The scheme, administered by a central body and with appropriate appeals mechanisms, would confirm that there was no known reason why an individual should not work with children or vulnerable adults. The register would be continuously updated with relevant information from the police and other bodies and available to prospective employers and parents for checking online.
2.2.2. Following discussions with key partners and a detailed feasibility study carried out by the Department for Education and Skills in England it has been agreed that a barring scheme, through which unsuitable people would be barred from working with children and/or vulnerable adults, should be developed rather than a registration scheme, through which suitable people would be registered. This followed confirmation by Sir Michael that such an approach met all the material requirements of his recommendation and that he was happy to endorse it.
2.3. The Current System in Scotland
2.3.1. The current vetting system operates through individuals obtaining a disclosure from Disclosure Scotland. There are three levels of disclosure: basic, standard and enhanced. All applications for disclosure are initiated by the applicant, so an employer cannot require a disclosure without the agreement of the applicant. The basic disclosure results in one certificate being issued to the applicant. In the case of the standard and enhanced disclosures, the application must be countersigned by an authorised person who will receive a copy of the certificate that is issued to the applicant.
2.3.2. In a basic disclosure only convictions which are unspent under the Rehabilitation of Offenders Act 1974 are disclosed. Under a standard disclosure both spent and unspent convictions are disclosed and, where the applicant is applying to work with children, whether the applicant is on the Scottish Disqualified from Working with Children List ( DWCL) or the equivalent lists held in other UK jurisdictions. Where someone is so listed they are disqualified from working with children and commit an offence in applying to, or continuing to, work in a child care position. An organisation also commits an offence if they take on such a listed person into a child care position, whether in a paid or unpaid capacity.
2.3.3. In addition to the information provided by a standard disclosure the police have discretion in an enhanced disclosure to disclose non-conviction information that they consider relevant to the position being considered. Applicants for jobs (paid or unpaid) working with children or vulnerable adults are currently eligible for either a standard or enhanced disclosure depending on the regularity of the contact. We plan to introduce interim changes to the current disclosure arrangements to allow those posts working with children and vulnerable adults which are currently only eligible for a standard disclosure check to be eligible for an enhanced check. This change will be implemented by summer 2006.
2.3.4. The disclosure process provides organisations with access to information about criminal convictions and, in the case of enhanced disclosures, relevant non-conviction information, that assists them in making informed decisions about suitability for employment. It helps to screen out the tiny minority from the workforce who are deemed unsuitable to work with these vulnerable groups.
2.3.5. Unless somebody is included on the DWCL (or its equivalents in other parts of the UK), decisions on who is or is not unsuitable are taken locally by employers. There are two main problems with the current scheme. Firstly, some small organisations, who have relatively little experience of handling raw information about offences and non-conviction information, can have difficulties in interpreting this information. Secondly, the disclosure certificate is only valid on the day of issue - it is not subject to updating - which can lead to multiple disclosures being requested as people move jobs or take on voluntary work with children or vulnerable adults.
2.3.6. While the Protection of Children (Scotland) Act 2003 was commenced in January 2005, there is no equivalent list in Scotland for those who work with vulnerable adults. It is our intention to introduce such a list through this legislation. This is a priority for the Scottish Ministers who recognise the need to increase the protection of vulnerable adults from those who are unsuitable to work with them in broadly the same way as that for children.
2.3.7. We are considering extending the provisions of the Rehabilitation of Offenders (Exceptions) Order to include those who have indirect contact with children or vulnerable adults via the phone (for example, Childline counsellors or NHS Direct staff) or internet (for example, children's chat room moderators) and those who have substantial access to personal and sensitive information about children or vulnerable adults. This would allow enhanced disclosure checks to be requested for such posts.
2.4. Developments in the rest of the UK
2.4.1. Consultation on a new vetting and barring scheme for England and Wales took place in 2005 and the Department for Education and Skills will be introducing a Bill at Westminster in February 2006. The aim is to obtain Royal Assent in this session of the Westminster Parliament, with a view to beginning phased implementation from 2007. Northern Ireland intends to use the vetting and barring system being set up under that legislation while retaining responsibility for other elements of the process and overall responsibility.