Management of Offenders (Scotland) Bill: rehabilitation of offenders equality impact assessment

Equality Impact Assessment Record

Title of policy/ practice/ strategy/ legislation etc.	Reform of the Rehabilitation of Offenders Act 1974
Minister	Cabinet Secretary for Justice, Mr Michael Matheson MSP
Lead official	Nigel Graham
Officials involved in the EQIA	name	team
	Nigel Graham Philip Lamont	Criminal Law & Practice Unit
Directorate: Division: Team	Justice Directorate, Criminal Justice Division, Criminal Law & Practice Unit
Is this new policy or revision to an existing policy?	Revision to an existing policy

Screening

Policy Aim

The Rehabilitation of Offenders Act 1974, ("the 1974 Act"), provides the legal framework relating to the requirements falling on people with previous criminal activity in their background to disclose this information in certain situations, such as applying for a job or obtaining insurance. The 1974 Act has, for a variety of reasons, been subject to criticism since it was first introduced and is now viewed as over-complicated, poorly understood and, consequently, difficulty to apply in practice. It is said to be increasingly out of step with sentencing law and contemporary sentencing practice in Scotland and there have been increased calls for reform and, in particular, for the rehabilitation periods linked to disposals to be reduced.

The purpose of reforming the 1974 Act is to develop a scheme that offers a more effective balance between the competing demands of protecting the public and rehabilitation and integration into the community. The changes are also designed to make the scheme easier to understand for those who have been convicted of an offence, for Disclosure Scotland to administer the scheme and for employers and others to understand how the scheme operates.

Drawing on the outcome of the earlier public dialogue and the consultation responses, a summary of the specific policy objectives for reforming the 1974 Act are as follows:

1) Extend the scope of the protections under the 1974 Act from sentences exceeding 30 months to sentences exceeding 48 months in order that anyone who has been sentenced to a custodial period of 48 months or less can become a person who is not required to disclose their conviction,
2) Simplifying the structure, improving the terminology and rules of the 1974 Act,( e.g. change the term 'rehabilitation' period to 'disclosure' period),
3) The disclosure periods if under 18 on date of conviction should continue to be halved and the buffer periods for custodial sentences should be halved,
4) Disposals from a children's hearing on offence grounds should have a disclosure period of zero and as such, become spent immediately for both a discharge and a compulsory supervision order,
5) Reduce the disclosure periods for financial penalties,
6) Reduce the disclosure periods for absolute discharge, admonishment and community disposals, and
7) Reduce the disclosure periods custodial sentences of 48 months or less and change the sentence bands.

It is considered that these reforms will modernise and improve the 1974 Act and will contribute towards the Scottish Ministers' wider policies for penal reform; reducing re-offending; enhancing social justice and growing the economy, by removing overly restrictive barriers to people engaging in employment, training and economic activity.

These reforms will contribute towards to the following National outcomes;

• We realise our full potential with more and better employment opportunities for our people.
• We have strong, resilient and supportive communities where people take responsibility for their own actions and how they affect others.
• We live our lives safe from crime, disorder and danger.

The reforms will also make a contribution towards;

• Reducing underemployment,
• Increasing the proportion of young people in learning, training or work,
• Improving mental wellbeing,
• Improving people's perceptions about the crime rate in their area,
• Reducing reconviction rates,
• Reducing crime victimisation rates, and
• Reducing the proportion of individuals living in poverty.

Who will it affect?

It will affect any person who can be prosecuted for committing a criminal offence and lives or works in Scotland. Over one-third of the adult male population and one tenth of the adult female population in Scotland are likely to have at least one criminal conviction. Therefore, it is clear that the 1974 Act affects many people in our society. The consequences of having to self-disclose previous offending behaviour for long periods of time and for such information to be included on a basic disclosure certificate because they are not spent can have an on-going impact on people' s ability to gain employment, attend university or college, volunteer, secure an apprenticeship or get insurance or a bank account, etc.

It is clear that access to employment is crucial for individuals with a previous conviction to be able to move on with their lives and put their past offending behind them. As such, suitable access to employment can also contribute towards a reduction in the rate of re-offending. However, the blanket rejection of those individuals with a previous conviction by many employers, sometimes due to not understanding the operation of the 1974 Act, is a substantial impediment to that process. This approach is replicated in other areas key to successful resettlement, including the provision of education, housing, banking facilities and insurance.

Benefits

The changes are designed to make the scheme easier to understand for those who have been convicted of an offence, for Disclosure Scotland to administer the scheme and for employers and others to understand how the scheme operates.

The reforms will also modernise and improve the 1974 Act in line with Scottish Ministers' wider policies for penal reform; reducing re-offending; enhancing social justice and growing the economy, by removing overly restrictive barriers to people engaging in employment, training and economic activity.

If the disclosure periods are set at the proposed levels, reform of the 1974 Act will be an aid to tackling inequality and prevent those already marginalised in our society becoming more marginalised due to a lack of employment opportunities, which may result in them remaining involved with the criminal justice system.

What might prevent the desired outcomes being achieved?

Employers continuing to be nervous about employing individuals with previous convictions due to unconscious bias even where the conviction is for a minor offence.

Therefore, the Scottish Government's view is that helping change employer's attitudes to employing people with a previous conviction is as important as changing legislation. That is why the Scottish Government has made a commitment to help try and bring about a cultural change in this area by working towards changing employers' perceptions of people with convictions.

Work is on-going following the Working2Change Employability Summit held in May 2015 to develop an Employer Support Network, ( ESN), that promotes the employability of people with convictions, showcases good practice and provide the practical information and support employers have said they need to respond to the challenges and opportunities of employing people with convictions.

Stage 1: Framing

Results of framing exercise

Scottish Government officials undertook initial discussions with interested stakeholders about whether it was time to consider modernisation and reform of the 1974 Act in Scotland. Officials spoke to organisations such as Apex Scotland, SACRO, the Police, local government and employer organisations to hear their views on how the 1974 Act operates in Scotland. Disclosure Scotland, the executive agency that delivers Scottish Ministers' functions to disclose information about a person's previous criminal activity, also offered views.

An important outcome that emerged was that stakeholders believed that the fundamental principles of the legislation, ( i.e. helping individuals with a previous conviction to put past offending behaviour behind them while protecting the public), are still sound and as relevant today as they were in the 1970s. However, there was also general support among stakeholders for the 1974 Act to be reformed in some way.

After these initial discussions, the Scottish Government wanted to gather further evidence as to how reform should be achieved. As such, a discussion paper on the 1974 Act was published in order to explain how the legislation operated and gather the evidence and views necessary to help consider what changes may be required to modernise and improve the legislation.

Alongside the written responses to the discussion paper, the Scottish Government also commissioned 'Recruit with Conviction' to run 6 oral engagement events across Scotland with stakeholders. In addition, 'Positive Prisons' were asked to undertake engagement events inside prison with prisoners and prison staff in seven Scottish prisons.

The headline themes that emerged were:

• The 1974 Act is not fit for purpose with many saying the 1974 Act and subsequent public protection legislation places too much emphasis on public safety and too little emphasis on rehabilitation.
• There is the need for clarity and clarification with user-friendly legislation, clear definitions and guidance and clearer rules around spent convictions and disclosure.
• There was a general feeling that rehabilitation periods should be shorter to allow those with a previous conviction to rehabilitate, to access employment more easily and to allow them to put the past behind them and make a positive contribution to Scottish society.
• The scope of the Act should be increased from 30 months so that those receiving sentences of 30 months or more can, at some point, reach a position where they no longer have to disclose their previous criminal activity. Some felt 48 months could be the cut-off point whereas others felt all convictions should be included within the scope of the Act ( i.e. all offenders should, at some point, be able to put their offending behaviour behind them and not have to disclose including in relation to areas of employment which require standard and enhanced disclosure checks).
• This legislation should in its language and its title avoid further reinforcing the "offender" stereotype and avoid misleading impressions as regards what is meant by a law saying someone is not rehabilitated.

The discussions with stakeholders and members of the public did not highlight any specific issues or recommend any reforms relating to protected characteristics. The main issues were the complexity of the legislation, changing the terminology relating to rehabilitation, the length of time individuals are required to disclose their previous convictions and the lack of employment opportunities as a result of such disclosure.

Further to this, the majority of the reforms of the 1974 Act will impact on people with convictions equally.

There are two circumstances where the disclosure periods are treated differently. That it is age and where an individual with a mental health condition is convicted of an offence and given a compulsion order. In certain situations persons given a compulsion order may have the protected characteristic of disability.

In relation to age, the disclosure periods will be halved if the individual was under 18 at the date of conviction. This is the current practice and this policy is not being changed under the proposed reforms.

Where an individual has a mental health condition and is given a compulsion order as a result of a conviction, although the default disclosure period will run from the length of the order, they will be able to apply to the Mental Health Tribunal for Scotland after 12 months from the date of the order is imposed to seek a determination that the disclosure of the compulsion order is no longer required. If they are not successful on the first application further applications can be made to the Tribunal after 12 months.

The statistical analysis that was undertaken by colleagues from Justice Analytical sought information regarding the;

• Proportion of adult male population with a known criminal conviction.
• Proportion of adult female population with a known criminal conviction.
• Total number of convictions by crime type.
• Number of custodial sentences by year.
• Number of community orders by year.
• Number of fines by year.
• Sentence length breakdowns.
• Number of sentences up to 6 months.
• Number of sentences over 6 months and up to 30 months.
• Number of sentences over 30 months.

As a result of these discussions, the Scottish Government published a consultation paper in May 2015 setting out specific proposals to allow more people with previous criminal activity to be able to move away from their past offending behaviour, ( i.e. increase the scope of the 1974 Act to 48 months) and to reduce the length of time most people will have to disclose their previous criminal activity, ( i.e. reduce the rehabilitation periods).

The consultation closed on 12 August 2015 and the responses were published on 16 October 2015. The analysis of the consultation responses was published on 22 December of 2015.

There was clear support, (89%), from respondents for extending the scope of the 1974 Act. Most respondents, (62%), accepted that the sentence type was a reasonable, albeit imperfect, indicator of seriousness of offence and, therefore, a suitable way of determining rehabilitation periods. Most respondents, (80%), agreed with the proposals relating to alternatives to prosecution. The majority of respondents, (59%), agreed with the proposals for revised rehabilitation periods for non-custodial sentences. Respondents were split in their support for the proposals relating to custodial sentences. 48 per cent agreed, 33 per cent agreed with some but not others, while the remaining 18 per cent disagreed with the proposals.

81% of respondents agreed that it was still appropriate for the disclosure periods for custodial sentences to be halved when the person committed an offence under the age of 18 and 14% disagreed.

Regardless of how the respondents answered the questions, the comments received indicated that most were sympathetic to reform in this area. Respondents who indicated agreement welcomed the reforms as a positive step, but nevertheless often also argued for more substantive reform.

Respondents who disagreed with the proposals often did so because they wished to see more substantive reforms, ( e.g. ranging from extending the scope of the legislation beyond what was proposed, further reducing specific rehabilitation periods by more than proposed to replacing the 1974 Act altogether).

As previously stated, one protected characteristic that is treated differently under the 1974 Act is age and it is a positive outcome. That is, the disclosure period is halved, (unless stated otherwise), if the person was under 18 at the date of the conviction. As such, we are not changing this policy under our reforms.

Age is also significant in relation to the treatment of children being referred to a children's hearing on offence grounds.

Children's Hearings

Section 3 of the 1974 Act provides that, where a child is referred to a children's hearing on grounds that the child committed an offence, the acceptance or establishment of that ground is a conviction for the purposes of the 1974 Act and the disposal by the hearing is a sentence.

The 1974 Act provides for two different disclosure periods for a child or young person that has been referred to a children's hearing. That is;

• a discharge of the hearing will carry a 6 month disclosure period; and
• a compulsory supervision order imposed on the child will carry a disclosure period of either one year or a period equal to the length of the order, whichever is the longer.

As part of the reform of the 1974 Act is it considered appropriate to treat referrals to children's hearings in the same way as other non-court disposals under the 1974 Act.

Therefore, our policy intention is that when a child is referred to a children's hearing on offence grounds and is discharged or receives a compulsory supervision Order the disclosure period should be nil, ( i.e. spent immediately). This is a positive move for children being referred to a children's hearing on offence grounds. This is also a positive outcome.

Extent/Level of EQIA required

For the reasons mentioned above, we consider that it is appropriate for the EQIA to be light touch.

Stage 2: Data and evidence gathering, involvement and consultation

Include here the results of your evidence gathering (including framing exercise), including qualitative and quantitative data and the source of that information, whether national statistics, surveys or consultations with relevant equality groups.

Characteristic [1]	Evidence gathered and Strength/quality of evidence	Source	Data gaps identified and action taken
Age	No specific evidence was gathered for this characteristic. However, evidence was gathered in relation to the effects of the 1974 Act on everyone who could be affected by it.	Research papers read, results from the 2013 discussion paper events, visits to Scottish prisons and the results of the 2015 consultation exercise.	N/A
Disability	We engaged with mental health colleagues in the Scottish Government and with the Mental Health Tribunal for Scotland in 2017 to come up with a suitable solution for the disclosure of convictions under the 1974 Act for individuals convicted of an offence and who have a mental health condition.	As above and discussions with mental health colleagues and the Mental Health Tribunal for Scotland.	N/A
Sex	As above.	As above.	N/A
Pregnancy and Maternity	As above.	As above.	N/A
Gender Reassignment	As above.	As above.	N/A
Sexual Orientation	As above.	As above.	N/A
Race	As above.	As above.	N/A
Religion or Belief	As above.	As above.	N/A
Marriage and Civil Partnership (the Scottish Government does not require assessment against this protected characteristic unless the policy or practice relates to work, for example HR policies and practices - refer to Definitions of Protected Characteristics document for details)	As above.	As above.	N/A

Stage 3: Assessing the impacts and identifying opportunities to promote equality

Having considered the data and evidence you have gathered, this section requires you to consider the potential impacts – negative and positive – that your policy might have on each of the protected characteristics. It is important to remember the duty is also a positive one – that we must explore whether the policy offers the opportunity to promote equality and/or foster good relations.

Do you think that the policy impacts on people because of their age?

Age	Positive	Negative	None	Reasons for your decision
Eliminating unlawful discrimination, harassment and victimisation	Yes.			Reforming the 1974 Act will be an aid to tackling inequality and prevent those already marginalised in our society becoming more marginalised due to a lack of employment opportunities which may result in them remaining involved with the criminal justice system.
Advancing equality of opportunity	Yes.			The reforms will also help to remove overly restrictive barriers to people engaging in employment, training and economic activity as a result of having to disclose previous convictions for excessive periods of time.
Promoting good relations among and between different age groups			Yes.	N/A

Do you think that the policy impacts disabled people?

Disability	Positive	Negative	None	Reasons for your decision
Eliminating unlawful discrimination, harassment and victimisation	Yes.			Reforming the 1974 Act will be an aid to tackling inequality and prevent those already marginalised in our society becoming more marginalised due to a lack of employment opportunities which may result in them remaining involved with the criminal justice system.
Advancing equality of opportunity	Yes.			The reforms will also help to remove overly restrictive barriers to people engaging in employment, training and economic activity as a result of having to disclose previous convictions for excessive periods of time.
Promoting good relations among and between disabled and non-disabled people			Yes.	N/A

Do you think that the policy impacts on men and women in different ways?

Sex	Positive	Negative	None	Reasons for your decision
Eliminating unlawful discrimination	Yes.			Reforming the 1974 Act will be an aid to tackling inequality and prevent those already marginalised in our society becoming more marginalised due to a lack of employment opportunities which may result in them remaining involved with the criminal justice system.
Advancing equality of opportunity	Yes.			The reforms will also help to remove overly restrictive barriers to people engaging in employment, training and economic activity as a result of having to disclose previous convictions for excessive periods of time.
Promoting good relations between men and women			Yes.	N/A

Do you think that the policy impacts on women because of pregnancy and maternity?

Pregnancy and Maternity	Positive	Negative	None	Reasons for your decision
Eliminating unlawful discrimination	Yes.			Reforming the 1974 Act will be an aid to tackling inequality and prevent those already marginalised in our society becoming more marginalised due to a lack of employment opportunities which may result in them remaining involved with the criminal justice system.
Advancing equality of opportunity	Yes.			The reforms will also help to remove overly restrictive barriers to people engaging in employment, training and economic activity as a result of having to disclose previous convictions for excessive periods of time.
Promoting good relations			Yes.	N/A

Do you think your policy impacts on transsexual people?

Gender reassignment	Positive	Negative	None	Reasons for your decision
Eliminating unlawful discrimination	Yes.			Reforming the 1974 Act will be an aid to tackling inequality and prevent those already marginalised in our society becoming more marginalised due to a lack of employment opportunities which may result in them remaining involved with the criminal justice system.
Advancing equality of opportunity	Yes.			The reforms will also help to remove overly restrictive barriers to people engaging in employment, training and economic activity as a result of having to disclose previous convictions for excessive periods of time.
Promoting good relations			Yes.	N/A

Do you think that the policy impacts on people because of their sexual orientation?

Sexual orientation	Positive	Negative	None	Reasons for your decision
Eliminating unlawful discrimination	Yes.			Reforming the 1974 Act will be an aid to tackling inequality and prevent those already marginalised in our society becoming more marginalised due to a lack of employment opportunities which may result in them remaining involved with the criminal justice system.
Advancing equality of opportunity	Yes.			The reforms will also help to remove overly restrictive barriers to people engaging in employment, training and economic activity as a result of having to disclose previous convictions for excessive periods of time.
Promoting good relations			Yes.	N/A

Do you think the policy impacts on people on the grounds of their race?

Race	Positive	Negative	None	Reasons for your decision
Eliminating unlawful discrimination	Yes.			Reforming the 1974 Act will be an aid to tackling inequality and prevent those already marginalised in our society becoming more marginalised due to a lack of employment opportunities which may result in them remaining involved with the criminal justice system.
Advancing equality of opportunity	Yes.			The reforms will also help to remove overly restrictive barriers to people engaging in employment, training and economic activity as a result of having to disclose previous convictions for excessive periods of time.
Promoting good race relations			Yes.	N/A

Do you think the policy impacts on people because of their religion or belief?

Religion or belief	Positive	Negative	None	Reasons for your decision
Eliminating unlawful discrimination	Yes.			Reforming the 1974 Act will be an aid to tackling inequality and prevent those already marginalised in our society becoming more marginalised due to a lack of employment opportunities which may result in them remaining involved with the criminal justice system.
Advancing equality of opportunity	Yes.			The reforms will also help to remove overly restrictive barriers to people engaging in employment, training and economic activity as a result of having to disclose previous convictions for excessive periods of time.
Promoting good relations			Yes.	N/A

Do you think the policy impacts on people because of their marriage or civil partnership?

Marriage and Civil Partnership [2]	Positive	Negative	None	Reasons for your decision
Eliminating unlawful discrimination			Yes.	Reforming the 1974 Act will be an aid to tackling inequality and prevent those already marginalised in our society becoming more marginalised due to a lack of employment opportunities which may result in them remaining involved with the criminal justice system.

Stage 4: Decision making and monitoring

Identifying and establishing any required mitigating action

Have positive or negative impacts been identified for any of the equality groups?	Yes all protected characteristics should see a positive impact as a result of the disclosure periods being reduced and reforms making the legislation easier to understand. A further specific positive impact will be seen by individuals who were under 18 at the date of conviction and on individuals who have been referred to a children's hearing on offence grounds. We also believe the creation of an application process to the Mental Health Tribunal for Scotland for those receiving a compulsion order is a positive step and could prevent individuals for disclosing their conviction unnecessarily for long periods of time as a result of a mental health condition.
Is the policy directly or indirectly discriminatory under the Equality Act 2010 [3] ?	No
If the policy is indirectly discriminatory, how is it justified under the relevant legislation?	N/A
If not justified, what mitigating action will be undertaken?	N/A

Describing how Equality Impact analysis has shaped the policy making process

As reform of the 1974 Act will treat the majority of protected characteristics in exactly the same way and the only exceptions to this are age and when a person with a mental health condition is given a compulsion order as a result of a conviction, where reform has a positive impact on this characteristic, no changes to the policy has been made as a result of undertaking the EQIA.

Further, no new steps will be taken as a result of undertaking the EQIA analysis. We also do not expect any cost implications as a result of undertaking the EQIA.

The EQIA has helped us to frame our discussions with stakeholders over the past few years in order to work out what reform of the 1974 act should look like and to help us assess whether our approach would have an impact on protected characteristics. Therefore, undertaking the EQIA made it clear that reforming the terminology and language to make the legislation easier to understand for all was as important as changing the disclosure periods. It also helped us to come to the conclusions that the current policy under the legislation of halving the disclosure periods for those who were under 18 at the date of conviction is still relevant and should be maintained. Further to this, the EQIA also made us look at the treatment of individuals referred to a children's hearing on offence grounds. After discussions with Youth Justice colleagues and considering responses to the SG consultation from children's organisations, ( e.g. Barnardos Scotland, Families Outside, Children's Hearings Scotland, Scotland's Commissioner for Children), it was considered appropriate to treat referrals to a children's hearing in the same way as other non-court disposals under the 1974 Act. As a result, such referrals will have a zero disclosure period and as such, will become spent immediately. This is a very positive outcome for those children.

The EQIA also made us look again at the policy for the treatment of disclosure periods where a person has been convicted of an offence and has a mental health condition. We believe what we will deliver will be positive for those individuals.

Monitoring and Review

We will work with our Community Justice and Justice Analytical Service colleagues to assess whether the reforms have had a positive impact on reducing reoffending and helping those concerned move on with their lives in a positive manner.

We will also engage with employers with the aid of our Community Justice colleagues and stakeholders, ( e.g. Recruit with Conviction, Positive Prisons? Positive Futures, SACRO, Apex Scotland), to assess the impact of the reforms on recruitment and whether the aim of making the legislation easier to understand for all is working. We will also monitor the outcomes of reforms, including discussions with the Mental Health Tribunal for Scotland, to assess whether further reform is required.

Stage 5 - Authorisation of EQIA

Please confirm that:

• This Equality Impact Assessment has informed the development of this policy:

Yes ◘
No

• Opportunities to promote equality in respect of age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation have been considered, i.e.:
• Eliminating unlawful discrimination, harassment, victimisation;
• Removing or minimising any barriers and/or disadvantages;
• Taking steps which assist with promoting equality and meeting people's different needs;
• Encouraging participation ( e.g. in public life)
• Fostering good relations, tackling prejudice and promoting understanding.

Yes ◘
No

• If the Marriage and Civil Partnership protected characteristic applies to this policy, the Equality Impact Assessment has also assessed against the duty to eliminate unlawful discrimination, harassment and victimisation in respect of this protected characteristic:

Yes
No
Not applicable ◘

Declaration

I am satisfied with the equality impact assessment that has been undertaken for reform of the Rehabilitation of Offenders Act 1974 and give my authorisation for the results of this assessment to be published on the Scottish Government's website.

Name: Willie Cowan
Position: Deputy Director
Authorisation date: 05/12/2017