EQUAL OPPORTUNITIES COMMITTEE AGENDA. 4th Meeting, 2010 (Session 3) Tuesday 23 February 2010

Transcription

1 EO/S3/10/4/A EQUAL OPPORTUNITIES COMMITTEE AGENDA 4th Meeting, 2010 (Session 3) Tuesday 23 February 2010 The Committee will meet at am in Committee Room Criminal Justice and Licensing (Scotland) Bill: The Committee will consider its approach to the Bill at Stage 2. Jim Johnston Clerk to the Equal Opportunities Committee Room T3.60 The Scottish Parliament Edinburgh Tel:

2 EO/S3/10/4/A The papers for this meeting are as follows Agenda item 1 Briefing paper PRIVATE PAPER EO/S3/10/4/1 EO/S3/10/4/2 (P)

3 Equal Opportunities Committee 4 th Meeting, 2010 (Session 3), Tuesday 23 February 2010 Criminal Justice and Licensing (Scotland) Bill approach Purpose of paper 1. The purpose of this paper is for the Committee to consider a proposed committee amendment to the Criminal Justice and Licensing (Scotland) Bill. Background 2. At its meeting on the 9 February 2010 the Committee considered proposals to lodge a committee amendment to the Criminal Justice and Licensing (Scotland) Bill (the Bill) which would give effect to the recommendation in paragraphs of the Committee s report Female offenders in the criminal justice system reproduced at Annexe A. 3. The Government s response to the specific recommendations is reproduced at Annexe B. 4. At the meeting the Committee agreed that if it failed to reach agreement by on the wording of an amendment on the Bill it would convene a meeting to discuss the amendment. This meeting provides that opportunity. Proposed Committee amendment 5. Paragraph 4.42 of the Guidance on public bills states: The convener of a committee may lodge (or support) an amendment on behalf of the committee if the committee has made a formal decision during a meeting to that effect. Such committee amendments are printed in the name of the convener followed by the words (on behalf of the [name] Committee). There is no procedural distinction between committee amendments and amendments in the name of an individual member, but the stated endorsement of the committee may be helpful as an indication of cross-party support. 6. The deadline for amendments for Day 1 of Stage 2 of the Bill is 25 February The draft committee amendment is reproduced at Annexe C. 1

4 Decision 8. The Committee is invited to consider and agree: whether it wishes to proceed with the amendment. Rebecca Lamb Assistant Clerk to the Committee February

5 ANNEXE A EXTRACT OF EQUAL OPPORTUNITIES COMMITTEE FEMALE OFFENDERS IN THE CRIMINAL JUSTICE SYSTEM 162. A very specific issue that the Committee wishes to highlight in this section relates to prostitution. At the 218 Centre, Members heard from one woman that spent convictions for prostitution must be disclosed in applications for employment in retail and childcare. She explained that because her convictions for prostitution had to be disclosed in job applications she had not been able to obtain employment. She felt that this was unfair as other types of conviction did not need to be disclosed after a specified period In written correspondence, the Cabinet Secretary for Justice told the Committee that the Scottish Government had no intention of changing the current legislation governing the retention of criminal convictions for prostitution. He explained that, under the Rehabilitation of Offenders Act 1974, the general rule is that, once a conviction is spent, the convicted person does not have to reveal it and cannot be prejudiced by it. However, there are some types of employment such as work in the childcare and health professions where disclosure is required to protect the public The Committee appreciates that a balance has to be struck between rehabilitating offenders and protecting the public. However, it is not clear to the Committee why women convicted of prostitution would pose a threat to children and vulnerable people. The Committee questions the logic of the Scottish Government s position and seeks further clarification from the Scottish Government on this matter. 3

6 ANNEXE B EXTRACT OF SCOTTISH GOVERNMENT RESPONSE TO EQUAL OPPORTUNITIES COMMITTEE FEMALE OFFENDERS IN THE CRIMINAL JUSTICE SYSTEM Response to Para 164 The Rehabilitation of Offenders Act 1974 ( the 1974 Act ) The 1974 Act sets out to improve the rehabilitation prospects of people who have been convicted of a criminal offence, served their sentence and have since lived on the right side of the law. The Act provides that anyone who has been convicted of a criminal offence and sentenced to less than two and a half years in prison can be regarded as rehabilitated after a specified period with no further convictions. After the specified period, the original conviction is considered to be spent. Women convicted of prostitution are treated in same way as any other person under the 1974 Act. The rehabilitation period for a conviction depends on the sentence imposed for that offence and not the nature of the offence. Therefore, the rehabilitation period for a person who receives a fine for prostitution will be the same as someone who receives a fine for example, for shoplifting or breach of the peace. The gender of the offender is irrelevant. The general rule is that, once a conviction is spent the convicted person does not have to reveal it and cannot be prejudiced by it. This means that if an exoffender whose convictions are all spent is asked on a job application form, or at a job interview, whether he or she has a criminal record, he or she does not have to reveal it or admit its existence. Moreover, an employer cannot refuse to employ someone or dismiss someone because of a spent conviction. However, there are some categories of employment and proceedings to which the Act does not apply. Positions involving a particular level of trust, such as work in the childcare and health professions, have to be exempt from the provisions of the 1974 Act to ensure there is adequate protection for children and vulnerable people in particular. In these cases, even spent convictions must be disclosed. The purpose of the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2003, as amended, is to protect the public. It does not necessarily debar ex-offenders from types of work set out in the Order, but entitles the employer to ask about spent convictions if the work is covered by the Order. Background to Protecting Vulnerable Groups (PVG) Scheme Once the Protection of Vulnerable Groups (Scotland) Act 2007 ( the 2007 Act ) is substantively commenced later in 2010, the PVG Scheme will replace enhanced disclosure for those working with children and protected adults. The 2007 Act also makes arrangements for barring individuals who are unsuitable to work with children and protected adults. 4

7 Any organisation recruiting an individual to work with children or protected adults should seek a scheme record disclosure though the PVG Scheme. This will reveal any convictions (spent or unspent) or other relevant information from police forces, just as would appear on an enhanced disclosure now. Additionally, the scheme record disclosure will confirm that the individual is a scheme member in respect of the workforce(s) concerned and, therefore, not unsuitable to do that type of work. Finally, it will reveal whether the individual is under consideration for listing. It will simply not be possible for an individual who is barred to obtain a scheme record disclosure for the type of work for which they are barred, unlike enhanced disclosure which does include barring information. The offence of solicitation is covered by section 46 of the Civic Government (Scotland) Act 1982 and covers both male and female prostitutes. Convictions for prostitution offences will be disclosed on scheme record disclosures in the same way as any other conviction. They will not lead to automatic listing (as they do not fall into the category of very serious offences which the Scottish Government intends to prescribe as leading to automatic listing). Nor will they always lead to explicit consideration for listing. However, they do fall into the category of offences which are potentially relevant to whether the individual is unsuitable to work with vulnerable groups and, as such, Disclosure Scotland will determine whether to put the individual under consideration for listing (which could later lead to barring). Each case will have to be considered on its merits and in conjunction with any other conviction or non-conviction information about the individual. Relevant factors include whether there are a small number of old convictions or a string of recent offences and whether there is evidence of other offending behaviour. The PVG Scheme will help both potential employees with a difficult past, and employers who sometimes have trouble assessing information on disclosures, by providing the reassurance that someone with convictions or other information who is admitted onto the PVG Scheme to work with children and / or protected adults is not unsuitable to do that type of work. However, it will always be a matter for employers to determine whether somebody is suitable for the particular post for which they are recruiting, and PVG Scheme membership should be just one part of safe recruitment practice. 5

8 ANNEXE C DRAFT COMMITTEE AMENDMENT After section 84, insert <Amendment of Rehabilitation of Offenders Act 1974: prostitution offences (1) In section 4 of the Rehabilitation of Offenders Act 1974 (c.53), after subsection (4) insert (4A) An order under subsection (4) may not have the effect of requiring a person to disclose (whether in response to a question asked or otherwise) a spent conviction for a prostitution offence in the context of an application for employment or work in a child care position. (4B) In subsection (4A) child care position has the meaning given by schedule 2 to the Protection of Children (Scotland) Act 2003 (asp 5); a prostitution offence includes an offence under section 46 (soliciting or importuning in a public place) of the Civic Government (Scotland) Act 1982 (c.45) but does not include an offence under section 1 (obtaining the services of a person engaged in prostitution) of the Prostitution (Public Places) (Scotland) Act 2007 (asp 11).. (2) The Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) Order 2003 (SSI 2003/231) is amended as follows. (3) In article 1(1), insert at the appropriate places (4) In article 5 child care position has the meaning given by schedule 2 to the Protection of Children (Scotland) Act 2003 (asp 5);, and a prostitution offence includes an offence under section 46 (soliciting or importuning in a public place) of the Civic Government (Scotland) Act 1982 (c.45) but does not include an offence under section 1 (obtaining the services of a person engaged in prostitution) of the Prostitution (Public Places) (Scotland) Act 2007 (asp 11);. (a) the existing provision becomes sub-paragraph (1); (b) at the beginning of head (a), insert subject to sub-paragraph (2), ; (c) after that sub-paragraph insert (2) The exception from the provisions of section 4(3)(b) made by subparagraph (1)(a), in combination with paragraph 11 of Schedule 4, does not require a person applying for employment or work in a child care position to disclose a spent conviction for a prostitution offence. (5) In Schedule 3 (a) in paragraph 1, for paragraph 3 substitute paragraphs 1A and ; (b) after that paragraph insert 6

9 1A The application of paragraph 4 of this Schedule to any question asked in order to assess the suitability of a person for employment or work in a child care position does not require the person to whom the question relates to disclose a spent conviction for a prostitution offence. ; (c) in paragraph 5 (i) the existing provision becomes sub-paragraph (1); (ii) at the beginning of that sub-paragraph, insert Subject to subparagraph (2), ; (iii) after that sub-paragraph, insert (2) Sub-paragraph (1) does not require any person mentioned in that subparagraph to disclose whether that or any other such person has a spent conviction for a prostitution offence. (6) In Part 4 of Schedule 4, the definition of child care position is revoked.> 7