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
