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Protection of Children (Scotland) Bill

UNISON Scotland's response to the Protection of Children (Scotland) Bill

September 2002

Executive Summary

UNISON welcomes the opportunity to comment on the Scottish Executive's proposed Protection of Children (Scotland) Bill.

  • We need to ensure that our children receive the best protection possible, and that adults working in an environment with children will not harm or place children in danger.
  • Employers gain substantial powers with this legislation. Guidelines and safeguards are needed to ensure that this power is not abused, and is used appropriately and effectively.
  • Individuals proposed for inclusion on the list should have the opportunity of a fair hearing. UNISON Scotland is concerned that it is only after an individual is referred to the list (or provisionally referred to the list) that they can challenge their inclusion. We also have concerns on a person's ability to challenge their inclusion through the Sheriff Court system.
  • UNISON Scotland believes that the accessibility of the list should be considered carefully. It is important that organisations working with children are aware of its existence and it is accessible to them. However, we are aware that in the wrong hands the list could be used to stigmatise those who are named upon it.

Introduction

UNISON is Scotland's largest trade union representing over 145,000 members working in the public sector. Many of our members work in the employment areas where this proposed legislation would impact upon. We have members working in schools as classroom assistants, support and administrative staff, cleaners, janitors and caterers; members working in early years establishments as nursery nurses, support workers within nurseries and crèches; members working in hospitals with children as nurses, ancillary staff, cleaning and catering staff; and members working in social services caring for children such as social workers and support staff. UNISON Scotland also has members working in the Scottish Criminal Record Office, who will be responsible for the operation of the proposed list of unsuitable adults.

UNISON welcomes the spirit of the Bill's proposals, to protect children from unsuitable individuals. However, we believe that it is essential that such important legislation is given careful consideration and debate, and that all implications of the Bill's proposals are examined. UNISON Scotland strongly supports the rights of every child to enjoy a happy, healthy and safe childhood. However, we also believe that adults have rights too. The rights of children and adults need to be carefully balanced so as a fair system can be developed which protects children and ensures that adults are not wrongly categorised as being harmful and dangerous to children.

This paper constitutes UNISON Scotland's submission to the Scottish Executive's Bill on the Protection of Children.

 

Response

Protecting Children

UNISON Scotland welcomes the proposals for the Bill to prevent unsuitable persons from working with children. Clearly we do need to protect children from individuals who may cause them harm. The establishment of a list of people who are deemed to be unsuitable to work with children is a good step to protect children, and to prevent individuals who may harm or cause danger to children from having regular contact with them.

We welcome the Bill's proposals to incorporate a broad definition of "child care positions" to include any position whose normal duties include working in an establishment or organisation which provides education, care, or services for children.

It is important that organisations working with children are aware of the list, and so as they are able to check employees, and if necessary indicate when they are concerned that individuals may pose a danger to children.

The Role of Employers

UNISON Scotland recognises that the proposed legislation in its present form places a great deal of power and responsibility with employers. The onus is on employers to refer individuals whom they deem as "unsuitable" to work with children. This raises a range of issues:

  • Are all employers in a position or qualified to deem an individual as unsuitable to work with children?
  • Will there be guidelines for employers to assist them in the decision as to whether an individual is unsuitable to work with children? Guidelines should clearly indicate what action is considered harmful to children, differentiating between actions to discipline a child and what is believed to be damaging action towards a child.
  • Will there be safeguards to prevent an employer referring an employee / former employee to the list for reasons other than posing a genuine danger to children?
  • Employers will also need guidelines as to the roles of management and other employees in determining if a colleague or former colleague should be referred to the list.
  • It is not clear in the Bill if it will be an offence to fail to refer someone to the list if it could reasonably be considered that they are unsuitable to work with children.

The legislation will create an additional administrative burden on employers to check the list of unsuitable individuals before appointing new employees.

Role of Scottish Ministers

The Bill places a great deal of power with Scottish Ministers in determining from an employer's recommendation if an individual should be placed on the list. UNISON Scotland believes that more consideration needs to be given to these arrangements. In Scotland and the UK there is a separation of powers of the judiciary and the government, with the legal system determining civil and criminal cases. The proposals in this Bill deviate from this system, giving substantial powers to Scottish Ministers.

The Rights of Individuals

UNISON Scotland, whilst appreciating the very real need to protect children from potentially harmful adults, is concerned at the implications this legislation will have upon the rights of individuals. We are concerned that there is no right for an individual to appeal against or challenge their inclusion on the list before their name is placed on that list. UNISON Scotland believes that this is contrary to the right to a fair hearing. The procedures for provisional inclusion on the list, are not an adequate safeguard for individuals, and do still contradict the basis of British and Scottish justice: that an individual is innocent until proven guilty. UNISON believes that more consideration is needed of the system of referring individuals to the list to ensure that a fair hearing can take place.

Right to a Fair Hearing

Article 6 of the European Convention Of Human Rights (ECHR) sets out the right to a fair and public hearing. The ECHR was enshrined into UK and Scots law through the Human Rights Act and the Scotland Act.

UNISON believes the proposals to include an individual on the list of unsuitable persons, and only give them the opportunity to challenge this through the Sheriff Court after inclusion on the list, contravenes Article 6 of the ECHR.

In the spirit of justice and fairness, individuals should have the opportunity to challenge their proposed referral to such a list before they are actually placed on the list. UNISON Scotland proposes that there should be a hearing prior to a person's inclusion on the list. There needs to be an indication of the level of proof required before an individual can be placed on the list. The opportunity to hear evidence for and against an individual's inclusion on the list is important, particularly given the serious and long term consequences inclusion on the list will have for an individual. Inclusion on the list will result in job loss, the need to change career, and the likely failure to secure alternative employment too. Clearly there is a stigma attached to inclusion on the list, and given the media-fuelled hysteria concerning dangers to children, could result in social problems for individuals as well.

Challenging Inclusion on the List

We acknowledge that the Bill allows for an individual to challenge their inclusion on the list at the Sheriff Court. This is welcome. However, there appears to be no account taken of the reality of access to justice in practice. The act of an application to the Sheriff Court can be an expensive one. Individuals are only entitled to Legal Aid for such a civil action if they are in receipt of state benefits. This will almost certainly prevent a considerable number of individuals from challenging their inclusion, thus denying them a fair hearing. Given that a person can be included on the list on the whim of an employer it is essential that there are safeguards and a right for the "unsuitable person" to respond to allegations made against him or her in a fair and equitable system.

Accessibility of the Child Protection List

UNISON Scotland has concerns on the accessibility of the Child Protection List. The list has to be accessible to organisations working with children, in order that they are able to check the list to verify their employees. All organisations and employers who work with children should be informed of any changes to legislation which will have a direct impact on them, and given access to appropriate training or guidelines on the impact of the legislation.

However, UNISON is also concerned that the list of unsuitable persons could be used to stigmatise or persecute those individuals who are named upon it. The Bill does not set out what details of individuals are to be held on the list. The details that are to be included are important given that the list needs to be accurate so as people with the same names etc. can be distinguished. Careful consideration should be given to accessibility of the list, and we believe that further consultation on this needs to take place.

Disclosure of Information

UNISON believes that the disclosure of information from the Child Protection List to unauthorised persons should be a criminal offence. Information from the list is of a highly sensitive nature, it should be treated as such, and details from the register should not be used in a malicious manner by any parties. We feel that it would be helpful to have more debate on the issue of disclosure. We would also like to see reference within the Bill to the consequences of disclosure of information to unauthorised persons.

Administering the List

The Bill provides for Disclosure Scotland, as part of the Scottish Criminal Record Office, to operate the list of adults unsuitable to work with children. It is important that they have adequate resources to operate the proposed system, and have clear guidelines on how the system is to operate. As stated in our response above, UNISON believes that there are areas of the Bill which require greater clarification and detail before the Bill becomes legislation.

Conclusion

UNISON Scotland is clear that the spirit and intentions of the Bill are well meaning, with the aim of protecting children from unsuitable adults. However, we believe that the impact of the Bill, for individuals and the justice system, is potentially much wider. There needs to be stronger legal safeguards in the system of placing "unsuitable" adults on the list. Individuals need the opportunity for a fair hearing, where a specific level of proof is required, under a system where there is a clear separation of powers between Executive and judiciary.

 

For Further Information Please Contact:

Matt Smith, Scottish Secretary
UNISONScotland
UNISON House
14, West Campbell Street,
Glasgow G2 6RX
Tel 0141-332 0006 Fax 0141 342 2835

e-mail matt.smith@unison.co.uk

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