Disclosure (Scotland) Act 2020 (Consequential Provisions and Modifications) Order 2025

Baroness Smith of Cluny Excerpts

Tuesday 25th March 2025 Grand Committee

Moved by

[Baroness Smith of Cluny]

That the Grand Committee do consider the Disclosure (Scotland) Act 2020 (Consequential Provisions and Modifications) Order 2025.

Relevant document: 18th Report from the Secondary Legislation Scrutiny Committee

[The Advocate-General for Scotland (Baroness Smith of Cluny) (Lab)]

My Lords, I am grateful for the opportunity to debate this order today. It comes as the result of collaboration between the two Governments in Scotland and makes provision as a result of changes made to the existing disclosure regime in Scotland. The order before us, if passed, will be made under Section 104 of the Scotland Act. Scotland Act orders are a demonstration of devolution in action, and I am pleased to say that this Government have taken through seven orders since we came to power in 2024. I will now go on to explain the purpose of the order.

This order is in consequence of the Disclosure (Scotland) Act 2020, which deals with the circumstances in which information about a person’s criminal history and other information held about them by the police and other law enforcement bodies can be disclosed. The disclosure Act seeks to modernise and improve proportionality in the disclosure system in Scotland. As a result, some changes have been made to the disclosure regime and this order is accordingly necessary to ensure the continued provision of conviction information, cautions, relevant police information and records of fingerprints that are held by UK law enforcement bodies to the Scottish Ministers for the purposes of the disclosure regime.

The order places equivalent duties on the chief officers of UK law enforcement bodies in relation to disclosure information, where relevant, to those which the disclosure Act places on the chief constable of Police Scotland. This ensures that the chief officer must provide information to the Scottish Ministers in the same way that the chief constable is required to do in Scotland. Without this order, there would be significant consequences for safeguarding across the UK, as the cross- border disclosure and information-sharing arrangements already in place under the Police Act—that is, the duties on and powers available to chief officers of UK police forces—will no longer operate. I beg to move.

[Lord Bruce of Bennachie (LD)]

My Lords, first, I am glad to be able to debate with the Minister. I had a conversation with her when she was first appointed, but this is my first opportunity to do that. I am obviously grateful to her for introducing this order.

The Minister has more expertise in this field than I have, but I had a look at the instrument—I can see why we need safeguarding, of course, and why there is a desire to tidy it up and ensure that there are comparable rules around the UK—and it would appear that some differences remain. In particular, the situation in Scotland is that where other, related issues are being addressed—in other words, non-criminal ones—the person who has their information disclosed has the right to make representations before it is disclosed to the applicant for the information. This instrument, as I understand it, says that where UK authorities are handing information related to other parts of the UK to Scottish authorities, they have to take that into account. Indeed, they have to apply that law, which is fine if that is what the law says, but I worry that police authorities across England, Wales and Northern Ireland will need to know that the law in that context is different. What assurances are there that that will be observed, and that information will not inadvertently be disclosed which the affected party has not had the right to test? That was highlighted in the statutory instruments committee’s comments on the order.

Although it is stated that the overall purpose of this SI is to bring more coherence, consistency and simplification to the system across the UK, it still leaves differences. The Scottish law basically says: “We have a standard, which doesn’t apply in England and Wales, but if you are feeding information into Scotland, you’re obliged to be aware of that standard”. My main question is: how are we to ensure that all the relevant people know about it, bearing in mind that we are talking about not just the police here but potentially about other related bodies that may have information?

Of course, at the other end of the scale in the changes that are made, all those who are employing people or taking them on as volunteers need to know what their rights are, what they can get and the circumstances in which they can get it. Given the change- over in volunteers, again, who is responsible for ensuring that? Presumably, it is Scottish officers in Scotland, but, obviously, it is other agencies elsewhere in the UK. I ask the Minister: what steps will be taken to ensure that the differences that still apply are understood by all the relative parties and do not lead to a situation where either information that should be disclosed is not or a person’s right to have it tested before it is disclosed does not apply? If that is the case, in effect, the law is being broken. What would the penalties be for any authority outside Scotland that broke the law? Is there any provision for a penalty in that case, or is it just unfortunate?

--- Later in debate ---

[Lord Cameron of Lochiel (Con)]

My Lords, I take this opportunity to welcome the noble and learned Baroness the Advocate-General for Scotland to the Front Bench. Although she has been in post for a while, this is the first time that I have been in Grand Committee with her, and I wish her well in all that she does for His Majesty’s Government. I am grateful to her for her opening remarks on this order.

In terms of the original legislation as passed by the Scottish Parliament, the Disclosure (Scotland) Act is intended to simplify the process by which information on a person held by the police can be shared. It will go into effect on 1 April this year, replacing the existing three levels of disclosure with just two levels. It is worth noting the broad welcome that the legislation has received, as well as cross-party support in the Scottish Parliament; for instance, Volunteer Scotland welcomed the Act for both its potential to remove barriers for individuals with past convictions seeking employment and its ability to strengthen the PVG scheme. However, we must remain mindful of the complexities and nuances involved. These changes will undoubtedly have a significant impact on various professional sectors, particularly those that work with vulnerable groups. In addition, it will significantly affect how personal data, including criminal history, is shared.

The purpose of the order before the Grand Committee is, rightly, to ensure that the existing arrangements for cross-border information sharing between UK law enforcement bodies and Scottish Ministers continue. It will also help prevent any disruption to the flow of crucial data between UK law enforcement and Scottish Ministers.

Although we do not oppose this order, rather like the noble Lord, Lord Bruce, I observe that the Secondary Legislation Scrutiny Committee noted this as an instrument of interest because it would create inconsistencies in the way in which information is shared between police forces and Scottish Ministers, as compared to the rest of the UK. Police forces outside Scotland would have a duty to allow the subject of a request to make representations on other relevant information when a request originated in Scotland, despite having no such duty for other requests in the rest of the UK. That introduces a critical question: why is it necessary to create this distinction? There is a concern that this difference in treatment could lead to inefficiencies for both law enforcement agencies and individuals. I look forward to hearing the Minister’s comments as to the position of the UK Government on this seeming inconsistency.

Further, can the Minister clarify how police forces across the UK will be supported in managing these new obligations on the ground, especially in ensuring that adequate resources are there to ensure that the transition to a new system does not lead to delays or hinder in some way the sharing of critical information? Finally, given the complex nature of this situation, can she assure us that the guidance due to be published will be easy to understand and clear to the public? I look forward to hearing what she has to say.

[Baroness Smith of Cluny (Lab)]

I thank noble Lords for their contributions. I am particularly pleased to see the noble Lord, Lord Cameron, who has done a lot of work in anticipation of this order, which has been in inception for some time. I am grateful for the points raised and the opportunity they allow for some reassurance to be given.

The noble Lord, Lord Bruce, commented that it is a question of how the differences will not come to be a problem in practice when, plainly, police forces and other public bodies are essentially required to treat requests differently, to a certain extent, depending on where in the United Kingdom the case emanates from. Many of the processes are the same; it is really on the question of review that there comes to be a bit of difference. It is also worth observing that there is a process whereby an applicant can ask for a review under the current regime and the one that will remain in England and Wales. The substance of the process—the fact that a police force is required to undertake a review—remains the same. The skills and the tests are the same. It is the substance that matters a great deal to the applicant.

It is the case that the weight of obligations will change a little bit. At present, an applicant may be asked for additional information, whereas this order places a duty on the public body to do so and to have regard to it. However, I reassure noble Lords that the substance of the matter and the questions to be asked remain the same. There is also one other difference, which is the opportunity to have an independent reviewer look at the process.

I understood the noble Lord to be asking what work has been undertaken to ensure that these differences are understood and therefore can be implemented beyond simply police forces because, as he observed, this will affect a wider group than just police forces. Scotland Office officials have worked to create the policy as well as draft this order alongside counterpart officials in the Scottish Government, the Ministry of Justice—my office—the Home Office, the Ministry of Housing, Communities and Local Government, the Department of Justice in Northern Ireland and the Welsh Government. Police forces in England, Wales and Northern Ireland have been consulted and have provided valuable input until January this year. Statutory guidance has been developed and the same police forces and bodies have been involved in its drafting. The guidance aims to be as consistent as possible with the existing guidance issued to officers across the United Kingdom.

It is worth observing that Disclosure Scotland has existing relationships with all the public bodies that provide information at the moment, so it is not a question of the scope of public bodies with which it needs to interact changing. There are relationships there, and the functions are understood. Engagement has been led by Disclosure Scotland through the National Police Chiefs’ Council, as well as with wider parties, to ensure that there is a clear understanding.

I hope I can reassure noble Lords that there has been good engagement. On the point made by the noble Lord, Lord Cameron, it is important that the guidance is clear, and efforts have been made not just to make it clear but to engage the affected parties so that it is clear to them as well as to the Government. One concern raised by the noble Lord, Lord Bruce, was that the wrong information may be disclosed. I hope that that will not be a consequence of this order, for the reasons I have given: the substantive exercise to be undertaken and the tests to be applied remain unchanged; it is simply a question of the opportunities for review and how those reviews are undertaken. As for a failure to apply the review processes properly, raised by the noble Lord, Lord Bruce, I think that speaks to the policy purpose behind introducing the independent reviewer function, which allows not only another step of review to take place but indeed for that to be undertaken by someone independent.

On the final point raised by the noble Lord, Lord Cameron, on additions to guidance and a concern around inefficiencies, I detect that that may speak to the question of resources. Again, I hope that because of the extensive engagement that has gone on over a period of time and the fact that the guidance is being drafted in consultation with those affected that will not be an issue and it will simply be the case that public bodies recognise, with the assistance of Disclosure Scotland, that this is a request coming in from Scotland and that there are slightly modified rules to be applied if, and only if, the applicant asks for a review, as of course many of these issues will be dealt with without that being required.

I close by saying that this order demonstrates the continued commitment of the UK Government to work with the Scottish Government to deliver for Scotland.

Motion agreed.