Mae'r cyfnodd 14 o osydd i'r clywbeth Cymru yn Y Lleidewis Iolwyrol. Felly mae hi i fyw o ffordd arm которуюr o ffordd o fyw. Mae'n rwyf i'r cyfrifydd Cymruヴai'r Richard Baker a mae lrynu'r cyfrifydd Cymru wedi bod yw Margaret McEllach. Ond mae'n gweithio i'r cyfrifydd Cymru. Ac mae hi i'r cyfrifydd James Kelly yn i fyf y ddysgu i gyd-ynghylchu a oedd yn ysgawad yw'r cyfrifydd Cymru. Ugyrwyddwr yegau'r berthynas hyn yn ei fodfrydol. Mae wych â'r Cymru yn collaw cyd-8 a 9 yw'r cyfwyrd. Y cyfwyrd yw'r cyfwyrd yw'r cyfwyrd yn cael ei fodrydol y ffordd i'w'r wych ac yn ni'n unig ddod ei dd viewo'r retwmiadol i'r Ffenderzac 1994. Cysylltiadau Doncolwn Ayw ygwyrd amser a'r Ichelwyrd i Llywodraeth, ac yn y Cysylltu Scotland teiswyrd a'r Eistedd, ac maenai diemwyrd yw ddylocu hefyd. Does the committee agree to take items 8 and 9 in private, please? Yes. Thank you. So, agenda item 2 is the Succession Scotland Bill, and it's an opportunity to take oral evidence on that bill. We have two panels, the first being Scottish Government and secondly the Scottish Law Commission on the Bill. I welcome from the Scottish Government, Jill Clark, the team leader of the Civil Law Reform Unit, Frances McQueen, policy officer of the Civil Law Reform Unit, Catherine McGregor, who's a solicitor in the constitutional and civil law department, and Ross Wood, who's a solicitor in the constitutional and civil law department as well. Welcome, ladies. We have a few questions for you, and at this point I have to find the appropriate piece of paper and ask John Mason whether he will begin. Please. Right, thanks, convener. Good morning and welcome to the committee. I think the first question is given that there are two pieces of legislation on succession around at the moment, are you comfortable that there's not going to be confusion amongst practitioners and members of the public, the fact that we're doing the both? Following on from that, would you think that we need to do to consolidate the law at some stage? I could set out a little bit of the background perhaps to why we've taken the approach of two separate work streams. I explained previously when we met the other week that the 2009 report is very large, it's substantive and we know from some very early consultation that some of the recommendations, particularly around disinheritance, attracted polarised views, so we knew we'd have to do a lot more work on that, different consultation etc. There were many aspects of that report which were uncontentious by comparison and we considered that they were very worthy of progressing at an early opportunity. That's why we've got this bill and we're consulting on the other bill. Progressing the recommendations in this way was to make the work more manageable but also to ensure that the provisions that are in this bill weren't unduly delayed. I think that there is the potential for confusion which was why we were quite keen from the outset to keep signalling what we were doing, so in the consultation for this bill we set out that we would be taking a second work stream forward and in the consultation for that bill we've done the same thing. In terms of timing, we were also anxious to ensure that the bill was being considered by the Parliament that the other consultation was in the public domain so that it became clear as to the demarcation between the two and how they would fit together. In terms of consolidation, that's probably a question for further down the line, should we have a future bill and that will be a matter for the next Scottish Government. I think that it's at that point that we need to consider whether we wanted to consolidate or look at the landscape of succession law at that point and that that's probably just a little bit premature at this time. Okay, fair enough. I'll just keep going through, convener. An issue that was raised is the law society's view that the bill should only be able to be amended by primary legislation. I wonder if you have a view on that. Well, we think that there's good reasons why we shouldn't only be able to amend the law by primary legislation but my colleague Rosal will respond more fully on that. We don't agree that if the bill requires to be amended, it should only be done by primary legislation. The powers to modify the act contained in section 25 are in keeping with the powers that are normally considered appropriate and this is in case there's a need for fine tuning just to ensure the workability of the bill. It would be unfortunate if an element of fine tuning to ensure workability was not able to be taken forward on the basis that you needed primary legislation. I would just say that there's appropriate constraints on the power to amend the act by supporting it legislation. It can only be used to give full effect to the act, so if you were to make more substantive changes to the act, that would need to be by primary legislation. In addition to that, the law society's concern was that practitioners might not pick up on the change in support of legislation. I think that our view would be that, as a matter of course, practitioners are part of their professional responsibilities to advise on the law, the most up-to-date version. We think that they would pick up on that and also the Scottish Government would likely publicise any powers that were particularly relevant for practitioners. Your key argument is that there's really no reason to make an exception to the bill compared to other legislation. Thirdly, the question has also been raised of the bill having any retrospective effect and I think that that's to do with the dates that things would become applicable. Is that an issue? We're going to deal with the application of the provisions by way of a commencement order and generally there's no intention to make any of the provisions retrospective, but again I think that we can go into some of the detail of that. Yes, the Scottish Law Commission recommended that the provisions apply in relation to deaths occurring on or after commencement, but it recommended that sections 6, 7, 8, 19 and 20 of the bill should apply to documents executed on or after commencement. The Scottish Government is content with their proposed application other than in respect of section 5. Section 5, in terms of what it does under the current law, a will that is revoked by a subsequent will will revive if the subsequent will itself is revoked, so section 5 changes that position and reverses it so that an earlier will no longer revive. In order, the Scottish Law Commission recommended that section 5 should apply in relation to all deaths occurring after commencement irrespective of when the revocation takes place. However, the Scottish Government or the view that it should only apply in respect of wills revoked after commencement and this is so that where a person revoked their will on the basis that their old will would revive, that old will is not invalidated with the introduction of the bill and moving forward, a person who revokes their will after the bill has come into force will know, well, does so in the understanding that their old will does not apply unless they re-execute it, so that is the only change in application that we are recommending. I just wondered and will come to this general subject later in relation to simultaneous death or uncertainty of order of death, where one party to that simultaneity or uncertainty has a document written before and therefore not captured by the new law and the other has one that is written after whether that has any difficulties that arise in those circumstances. I cannot imagine what they might be but I think that I would like to hear your answer. I think that on the basis that they are both treated as having failed to survive, I think that really what we are saying here is that the effect of each person's will to the other has no effect, so I do not think that that question would really arise, it would be headed off at the pass if you will, because the nature of the provision is that where you both die at the same time, it is as if you never made any will in respect of the other. I accept that you made the point already that practitioners and other stakeholders are often should be up to speed with what is going on at this committee and within Parliament. I just wonder about members of the public that perhaps do not follow this committee with avid attention. Are there plans, if assuming the bill was passed, to really communicate this and get this out into the wider public domain? As you say, I think that we are quite comfortable that the legal profession has been engaged in this process through consultation and with the committee as the bill progresses, so they will be kept up to speed. I think that there is an issue about the public, but it is probably worth just putting it into a little bit of context in terms of many of the circumstances outlined in the bill will occur infrequently and some of them even very rarely. The numbers of public that they will affect will be small. That is not a reason not to disseminate anything, but lots of the situations around forfeiture or rectifying a will would involve a court process, so the legal profession would inevitably be involved anyway, and we would have that knowledge. However, we have been thinking that we have a very useful and well-used publication in which we supply free to hospitals, hospices, public, citizens advice, bureau, etc. It is called What to Do After a Death in Scotland, and it outlines the main legal provisions. We are certainly going to be looking at that. There is not much in it at this point about those particular provisions, but we are going to look and see if there is something that we could add into that, which at the very least would signpost some of those changes. We have also got a website on succession, which we will be updating. Again, we are trying to think of something that is accessible and easy to understand, as opposed to perhaps the bill. I think that there has been an argument already that this bill brings the law more into line with what the public might have naturally expected. From that point of view, I guess you might even need to explain it less than the present situation. Yes, ignorance is a wonderful thing that you might think, and we should leave it unsettled, but we just need to ensure that people are clear where there needs to be clarity. In the future, there will be a much bigger public dissemination if we end up changing the fundamentals of succession. That can also be re-highlighted at that point. John Scott, on the effects of divorce. Thank you very much. I want to turn to the issue of guardianship and ask you what the policy rationale is for including guardianship in the scope of section 1 and whether you agree that with the law society there is a potential for drawbacks to that approach. Section 1 gives effect to recommendation 52 of the report. Under section 1, if a testator's marriage is terminated, a testamentary provision in favour of the former spouse is revoked, including any appointment. One of the concerns of the law society was that, as you say, a guardian would—where guardianship was conferred on an ex-spouse—fall. The policy rationale for that is that we consider whether there should be an exception with policy colleagues and whether there should be an exception. On the basis that a guardian can be appointed by court process, there would be nothing to stop them going to the court and asking to be appointed afresh. In addition to that, the testator—and probably more importantly, the testator—can make provision in their will to override that presumption, and where they do not make that provision, we thought that it was a fair—we think that it has to be assumed that the testator was not of the intention that the former spouse should be appointed, so that was the policy rationale for that. So, by omission, you—there's an implication by omission. How long would the process take if I had to go through courts for guardianship? I have to say that I don't actually know that. I would propose to write to the committee on that to find out exactly how long it would take. If we could maybe just add just in terms of application, it would only be the case where one of the parents has accepted a child or children as part of the family and does not have parental rights and responsibilities, so we don't imagine that it would be a common occurrence for an ex-bousness or not to have parental rights and responsibilities over the children that are within the family, although, as has been noted, it could arise. I observe on behalf of the committee that, of course, the fact that something isn't very common doesn't mean that we need to get the law—don't need to get the law right. It doesn't matter if there's only one case, even if we're not sure whether it's going to arise, we still need to make sure that the law says what we think it should say. I'm referring back to McCollow's comments then about the fact that the policy is that it should be the testator's intentions that are given effect to in respect of that section. Okay, thank you very much. I'll also refer you to Trussbarr's evidence to the committee. Section 11d, where marriage or civil partnership ends, whether you think that there is merit in Trussbarr's suggestion that section 1 should operate at the point when the marriage or civil partnership ends instead of at the point when the testator dies? I think that the SLC recommended at section 48 of the report that section 1 should only apply where the deceased is domiciled in Scotland. As you say, section 11d gives effect to this. The Scottish Government doesn't agree that the testator should require to have been domiciled in Scotland at the time of the divorce or dissolution or annulment in order for that section to apply. We agree with the law commission recommendation that in order to provide an appropriate link to Scotland, the rule in section 1 should apply where the testator dies in Scotland, regardless of where the termination took place. The reason is because it would produce anomalous results. If you were to require the testator to be domiciled in Scotland at the date of termination rather than at the date of death, it would mean that a person of Scottish domicile whose estate falls to be distributed according to Scots law. If they got divorced in France for some reason, the Scots law wouldn't apply to them. We think that that would be an undesirable result. Ultimately, the view is that the Scots law succession should apply to those who die in Scotland. You are aware of the concerns that are certainly convoluted. I think that that takes you over to page 6 of our notes. The question that I am invited to ask you is whether you think that there is merit in trust bars that the protection for people acquiring property in good faith that section 2 and 4 is unnecessary because property, subject to a special destination, passes automatically without any need for an executor. Trust bars have submitted that a third-party purchaser could never purchase property in good faith because they would always be aware of the special destination in the property title. We would submit that that section is not really to deal with that situation. There are situations in which a third party could purchase property in good faith, and that is where, for instance, it would be foreseeable that the title could pass a former spouse from an executor, perhaps, unknowing that the couple had been divorced or that marriage had been annulled. The unworthy spouse could then pass the property on to a third person. Under the law of unjustified enrichment, the unworthy spouse would have to return that property to the estate or the value of it. What section 2 and 4 does is protect the third party and says that their title will be protected so that they do not have to give the property back. That actually replicates section 193 of the Family Law Scotland Act and section 1243 of the Civil Partnership Act, which also affords that protection presently, but just combines them in a way that they are easily accessible in one section. I think that it is absolutely clear that that is an unqualified protection for the third party purchaser or acquirer. The reason I ask that is that I have my devious mind that, if there were an arrangement between the quote using your phrase, unworthy spouse and a third party to minimise, for example, the benefit that the unworthy spouse acquired, knowing that there might subsequently be doubt about the whole transaction to the unworthy spouse, in an attempt to protect that asset, which might be somebody with whom the unworthy spouse now had a relationship. In other words, and I am sure that there could be lots of other examples, is it an unqualified right that is being created or is it a qualified right or would be caught by other legal provisions? As you say, that is a foreseeable situation and it is a qualified right, so it depends on the third party acting in good faith. The third party has to be acting in good faith. That is helpful. Okay, thank you. If I could then take us on to rectification of a will in sections 3 and 4. I note what is in the bill, but I also note that the Law Society and, indeed, Transport commented that there might be other ways of doing this and suggested that they could at least see alternatives and maybe not be terribly happy with what is proposed.  Are we actually dealing with something that is sufficiently non-contentious? Yes, I think that it is sufficiently non-contentious. I think that the trust spar comments, many of them are around the detail and it is not that they have a different legal effect, it is the way that it would be achieved. We have only very recently, yesterday, written to both the trust spar and the Law Society about the detail of the comments that they submitted to the committee, outlining our position on some of them and seeking clarification on others. We hope then to have a bit of a dialogue with them as things progress. I do not think that their comments take the provisions out of the realm of something that would be suitable for this committee to look at. I also note that I can turn on to the date of the application for rectification. I note Michael Cusnes and, indeed, trust spar again made comments about this. The particular suggestion that I would pick up on is the fact that confirmation can sometimes take a very long time. I am wondering whether the timetable for rectification might be set at the date of death rather than the date of confirmation, because otherwise things might just run on for potentially almost open-ended. That is one of the points that we have included in our letter to trust spar, because I think that they and us are of the view that whatever happens, it should not be unduly delayed, it should be as quick as possible. They have made a suggestion of two years. We are not quite sure that that would meet the within reasonable time limits either, so there is maybe something that needs to be worked out there and considered. That is something that, as I say, we have picked up with them. Right, so that is something that we could expect you to come back on at some stage, having flagged up the issue. That is fine, thank you. If I could then just consider the effect of revocation on a will and, of course, the possibility that the second or subsequent will might actually be struck down, for example, for incapacity, and the possibility then that it might have been the status that the realia will would have been revived because it might be the only extant testament that makes any sense. Has anybody considered whether or not that there should be an exception, at least perhaps within the school's discretion? Yes, well, section 5 would only apply where a will revokes another will, so it would not apply where a court reduce a will. So if the court were to reduce a will, or, sorry, if a will revokes an earlier will and that will is itself reduced by the court, then there is nothing to revoke the earlier will, so the usual state, the normal will, would remain as it is and section 5 would not apply. So the bill does not affect that situation. Are we sure that that is what we want to happen? Is that a policy statement, which I am just questioning? Is that actually what we want the policy to say? I think that in these circumstances that sounds right, yes. Right, I do as well, but I am just conscious that we maybe need to think about that exceptional, rather rare. I think that if it were not the case, then obviously if a person revokes their will, then they do so knowing that their will will revive or not revive, whereas if a court revokes a will, the testator may not even, sorry, reduce his will, the testator may not have been aware, they may have already died or so. They wouldn't want it to revert to intestines to say, so I think that the old will, there is a policy justification for that. Do you forgive a lay person's question? I just want to be clear that I understand what a reducing a bill means. Any fact that is taking bits of the will out, so they don't have a fact, is there a difference when the reduction in the will takes you to a position of nullity of the will, or is it all the same? What will generally happen is that an application is made to the court of session, and the court of session, usually when they reduce the will, the whole will will fail. However, there is a case law in which a code, I can't remember the case name off the top of my head, but I can write to you on that, where the part of a will was deemed to have been reduced and the rest of it subsisted. In answer to your question, the whole will would generally fall down.  Generally speaking, the whole will be reduced. Do you forgive me? Generally speaking, the word is a bit of a weasel word, so you are saying that there is a little bit of uncertainty. It would be up to the courts to determine it. It would be up to the courts, yes. It would be up to the court of session. At the end of the day, that is not an unreasonable place to be. I do not think that you need to give a silly good reference, do we? Very grateful for any reduction of work that is welcome at this stage. The next session on our legacies is with James. Is that right? Thank you a lot, convener. In terms of section 6 in 24, there were some specific comments made by trust bar and the law society. Trust bar had concerns about the position in section 6, 2, in relation to someone deciding that, to state, that they did not want section 6 generally applying to them and how that interacts with the other provisions in section 6. I just wondered what you made of trust bar's comments on that. Is this about how section 6 interacts with somebody who wants to renounce their legal rights? Yes, that is right. Section 6 would not apply in that situation because section 6 deals with a legacy, so it does not deal with the situation where it does not deal with legal rights. Under section 6, it restates what places on a statutory footing a conditio, which is that where an individual dies between a legacy being granted and that legacy vesting, their issue can step into their shoes and take that as their share of the legacy. Legal rights would not apply to legal rights. The equivalent provision would be section 11 of the 1964 act, which says that someone can step into the shoes of an individual where they are not able to take their legal rights through a pre-disease. So the data has got to be absolutely clear in terms of section 6, 2, that they do not want section 6 to apply? Section 6 would not apply in respect of legal rights, but if the testator could make provision in their will, which overwrote the statutory presumption in section 6, so previously that would not have been allowed in the common law. Previously, the issue would be presumptive favoured over whoever the testator had made as an alternative. However, now the situation will be that if alternative provision is made in the will, that will overwrote the statutory presumption. In terms of the law society's comments around section 6, 6, they had a feeling that there was a definition on issue, and they felt that that should be made clearer to ensure how it related to adopted children and step-children. Is that something that you have said that you have had some interaction with the law society and trust bar? Is that something that you have taken on board and discussed with them? We do not think that that needs to be much done to it, because the term issue means direct descendants of every degree, whether that is child, grandchild etc. It will cover descendants through adoption by virtue of section 23 of the Successions Scotland 1964 act. The definition of issue already includes adopted children, and it excludes step-children. That was the view of the Scottish Law Commission, and that is our view. The answers are there already. Whether it needs to be made clearer is something that we will certainly reflect on, but that is the position. Issue would include adopted children, but it excludes step-children. That is your policy position? Yes, that is what the law provides. The question is whether we need to make that clearer, and whether it is necessary to make it clearer. Thank you very much. There are some questions that have been raised about the simultaneity of disease and the use of the word uncertain. The first question is, how do we decide that we are uncertain? How does that work in practice? Trust barer criticising the use of the word uncertain, I think that I can posit for myself that one can be certain, one is uncertain, and some circumstances, but in other circumstances, one can remain uncertain as to whether one is uncertain. I think that the order of death is uncertain if it is not possible to prove on a balance of probabilities, a particular order, so that was discussed in the case of a lamb against Lord Advocate. That is the standard, it is the balance of probabilities. Can I just on that? I am content with that as an answer. Who determines the balance of probability? In other words, is it the trustees or is it the courts? It would be the trustees in the first instance, but if the beneficiaries were unhappy and, for instance, you thought, then it would go to the court. Forgive me. I think that this is one of the worrying things of the whole thing, and it is not just this particular bill, because every single one of us in this room could find ourselves in a position of being an executor of a will, and we are ordinary folk, and most executors are. Find themselves in a position of being a trustee, of course we then have to take some legal advice, but if we are not sure what uncertain means, how on earth is an ordinary trustee supposed to make that judgment? How on earth can an ordinary person suddenly finding themselves having to do this, because you do not choose to do this, and you certainly do not choose the timing of it, then to make a judgment which they then might have to defend in court against litigious potential beneficiaries. The sheer practicalities of getting the appropriate legal advice that I, as a lay trustee, can get a defensible position is one that I think worries me enormously, and I am just wondering what your response to that is. That is something that we need to reflect on, because we can assume that people, particularly in the legal profession, are aware of certain terms and it is a point well made. We can reflect on that and write to the committee. I think that if you could, that would be helpful too, because as I was thinking earlier on, we were talking about lawyers understanding that this is fair enough, of course. I mean, I have a great respect for lawyers, but if there is one thing that we all individually as adults need to do, it is right to will. I think that that is a pretty basic message. Therefore, it actually affects every single adult member of our society. Making sure that people understand what they should do is a pretty important part of governmental action, because it is difficult to see who else's responsibility it might be. I can tell you that my mother, in 1912, aged three, was the executive for our grandfather, according to our grandfather as well. Let's just pass on. Her father undertook the role, but I just thought myself, why did her grandfather do that? More fundamentally, before we move off survivorship and uncertainty, there is potentially a need to address the issue where there is deem to be a simultaneity or uncertainty about the estate falling to the crown. Do we think that that's a satisfactory position to be rather than actually the estate passing to other relatives? I think that that's one that we're going to reflect on. I mean, to take the point that we are talking about very small numbers, probably tiny numbers, but nevertheless we need to think it through. That's something that we've decided we should reflect on because it probably isn't the best outcome, necessarily. In particular, if the will actually referred to other relatives and other people, it would seem perverse that the law should deprive them of the right to inherit simply because of uncertainty about whether there's simultaneity or actual unresolvable uncertainty about the order of death. So, at least as a speaker, as an individual, rather than anything else, I would encourage you to think very carefully about that, because I think that we'll come back to that if we don't—I will anyway, if I don't like what I hear subsequently. I'm just wondering whether, in considering that, you might like to reflect on whether there are circumstances where something should be down to the discretion of a court. I recognise that that's perhaps generally what we're trying not to do because otherwise you have a total population number of cases, but I wonder whether, in the situation, for example, an entire branch of the family dies in a car crash, which will be rare. It might be open to a court to decide what might be reasonable rather than looking at testamentary documents that will have borne very little resemblance to what anybody thought should happen in those circumstances. I think that, just to clarify one thing that you've mentioned earlier, if there was provision in the will, that would take effect. It's where there is no provision in the will and there's— Is there a run-out of implementable provisions in effect? Yep. Yep. Okay, that's all. And, as you say, the court would be another option. Yes, sir. There's plenty not to the option most of the time, or everybody finishes up in court, and that's exactly what I want to avoid, but it might be—I'll leave that with you as something you might like to reflect on in those very exceptional cases. I'm hoping to do that, and I'll take this to full for you. Indeed, I thought it might do, convener. Yes, and in particular, why were abolishing the Parasite Act at this stage, rather than simply leaving its provisions? Back in 1990, the Scottish Law Commission's report, which was the precursor to their 2009 report, recommended that the common law of forfeiture should be put on a statutory footing, and, at the same time, the Parasite Act should be abolished. However, by the time of their 2009 report, it actually shifted their position, because it considered that it wasn't necessary to abolish the common law of forfeiture, because it was used very rarely and worked very well when it had to, but it still recommended that the Parasite Act should be abolished. There is no recommendation to put the common law of forfeiture on a statutory footing, which I think the respondent thought that that's what should happen before the Parasite Act should be abolished. We are content with that. The common law works fine, and the Parasite Act is unnecessary, because the common law covers what was previously in the Parasite Act. The working of the law subsequent to the passage of the bill that is before us is that the legal fiction is created that the person who benefits has, in succession law terms, died before the person who provides the benefit. That's the change that the bill will introduce. It seems an interesting legal concept that one is simultaneously alive and dead. As I said last week, Edgar Schrodinger will be interested if he were still alive. I don't think that he is convenient, but I think that he's passed on. Anyway, the other thing that's been raised is why it's appropriate in policy terms for the court to be able to grant an unlawful killer 100 per cent relief from the effects of forfeiture. I give in my own mind the example that people who have assisted people to travel to the Dignitas clinic in Switzerland might be an unlawful act, but what the person who dies wanted to happen. I can see that there might be subject to the courts looking at it. Circumstances with 100 per cent relief might be appropriate. Is that the sort of thing that the Government had in its mind when it's contemplating 100 per cent relief or are there other circumstances? Yes. The granting of relief is discretionary. In a way, the court is hampered at the moment. Cross was the petitioner in 1987. The judge in that case felt that they could grant 100 per cent relief on the heritable property and 99 per cent relief on the movable property. It was an artificial divide. If we are giving discretion to the courts, they should have the ability to exercise their discretion right to the limit. The sorts of circumstances in which they have granted relief—not total relief because they don't feel they can or things like that—were there was a suicide pact that went wrong or someone who had been abused in an abusive relationship and they had killed someone by in self-defence and accidentally. That sort of thing might chime with your example, but it's just to open up the full percentage to the court so that they don't have this kind of artificial line. Section 18 talks about the state administration and errors in distribution with the protection of trustees and executors in certain circumstances. It was just to seek clarification about the duty to make reasonable inquiries about the existence of potential beneficiaries. Is it expected to be interpreted as that there will be a duty to advertise because it doesn't specifically mention a duty to advertise in the bill, but it might be assumed that that will almost automatically become the case? Following on from that, if that was the case, is that just going to delay the whole process of administering estates? I would say that reasonable inquiries is a commonly understood term, and it wouldn't involve advertising. Where there's a duty to advertise, that would be set out in the legislation. What constitutes reasonable inquiries, while it's commonly understood, really where there's any dispute on it, it would fall to the court to consider in the circumstances of the case whether or not somebody had acted reasonably within their professional responsibilities, so it wouldn't require advertisement. Fall to the courts, will people play safe and just tend to advertise maybe more often than we would expect them to need to? I don't think so purely on the basis that it is a commonly understood term and making reasonable inquiries as to advertising as to whether or not somebody's adopted isn't going to necessarily, you're probably not going to get many answers back to that. Reasonable inquiries would be more speaking with family members, checking what the family relationships are, so I don't think that advertisement would really be particularly helpful in the circumstances anyway. If I could perhaps add to that the law commission considered this in 1990 as to whether there should be a specific duty to advertise as part of reasonable inquiries and they determined that there shouldn't be a specific duty because it could give undue weight to that form of reasonable inquiry and people may think that they only require essentially to advertise rather than to make further reasonable inquiries, and they also stated that they felt that it was a commonly understood term, as my colleagues said, so they didn't feel that it was merit in defining that further. In fact, they felt that it could hamper it if it was defined further in the legislation, which is why they have not done so. In this narrow and specific context, it would be interesting to know what it has thought might constitute reasonable inquiries. I give two suggestions as to what it might be. It might be the employment of private inquiry agents to track down missing people, or the employment of professional genealogists to find unknown parts of a family. Is that the sort of thing that reasonable inquiry might be thought to include? Again, I think that it would probably depend on the circumstances of the case. For example, I would say that that is quite a high level to conduct those sort of reports, however, if a member of the family had said to the executor that there is an adoptive sister, it would be for them to make more extensive inquiries than they might have usually, so I think that it would be context specific and it would really depend on the circumstances of the case. I suggest that families, more often than you might imagine, do not know of relatives, and I say that in our family, we discovered a cousin that we did not know knowledge of whatsoever, who was born in 1943 and is still living, and we discovered that in the last two years. Absolutely no knowledge whatsoever. John Scott, can I now take you to section 22 on private international law? In the generality, I ask you whether it is desirable that reforms to this complex subject like private international law will be split over two separate succession bills. Do you think that that is reasonable? Yes, to the extent that the recommendations will apply as far as they can to this bill and they will apply in any future legislation. There is not a tension between doing that, but they just apply to the extent that they do, no more nor less. Also, recommendation 50 appears to not be completely implemented in the bill. Is that—can you explain that, please? I would just mirror what my colleague says, that it is implemented in so far as it relates to the bill provisions. It is implemented where, perhaps, one provision requires a testator to be domiciled in Scotland. You only need to note the grounds of jurisdiction where a person is domiciled in Scotland, so it applies in so far as it relates. I think that James is the last question of the proposals at the moment. The law society in the first submission had made the point that there were two issues that were consulted on, but not included in the bill. There were bonds of caution in the effect of the birth of a child. Can you maybe just explain your rationale and not include those in the bill? There are, I think, about four or five things that we consulted on that have not appeared in the bill and bonds of caution, the conditio about the child. There is temporary element and element jury representatioonis and recommendation 46, which was about jointly held foreign movable property. Neither of those features in the bill, and that is just because we got a very mixed reaction to them. On bonds of caution, there was a lot of support for abolishing it, which was the main question, but then a lot of uncertainty about what safeguards we needed instead. Generally, people were against the conditio one. There was a majority against. Similarly, on the other two elementary provisions, which were grouped with warnings, and warnings are the only one that we have progressed into the bill. On all those things, we are consulting again. They are being consulted on right now in the second consultation. Some of that has moved on a bit because we have been able to take an initial view and perhaps now we are just looking at what safeguards we need for bonds of caution, as opposed to the principle of it. Recommendation 46, which is the joint foreign movable property, does not feature in the second consultation, but we are just going to keep that in mind as that progresses. Generally, it was because there was mixed support and mixed views, and we decided that they needed another examination. That is entirely consistent with the committee's remit in the legislation that should be in front of us. It is slightly strange, though. That might seem from the outside. Thank you very much. That brings us to the end of our prepared questions, and I think that that brings us to the end of this particular section. I thank you very much, and I am proposing that we suspend the meeting for just a couple of minutes, at least in order to allow the witnesses to change over. It is an opportunity to reconvene. I welcome from the Scottish Law Commission Caroline Drummond, who is the commissioner for this bill. Charles Garland is the project manager for this bill. Welcome back. Caroline Drummond's first formal appearance before this committee, so it is very good to see you. Questions will roughly follow what we have just asked the Scottish Government, and we will therefore be led by John Mason. Thanks, convener. The first area that I just wanted to touch on was the fact that we have two succession bills around at the moment. Just whether you are feeling that that is causing or could cause confusion for practitioners or those who are less involved in the area? Firstly, as our initial report on this was 1990, we are absolutely delighted to see any bill taking it forward. It would be good, as far as we are concerned, if those bills could be consolidated in the end of the day and brought together so that there is one place, not just for practitioners to see clearly but for the general public to be able to consult. That would be our preferred option, but it is understood that the Government has to look at that once the next consultation is finished. You are happy that they have gone with the approach of two bills rather than waiting and maybe having them all later? Yes, we are happy that this is going ahead because it is non-controversial, we think, so we are happy that it is going ahead. Secondly, the law society felt that, if we were amending the actual act once it is passed, that that should be done by further primary legislation rather than by regulations. Do you have a view on that as to how that should have happened? Well, the legislative timetable is a busy one and to get primary legislation through, it seems to us, is quite difficult. We have heard the Government's explanation on amendments and they have said that there is appropriate constraints, so yes, we are happy with that. Is the issue of retrospection quite wide? Or are you still satisfied with that? Yes. The third one is that the whole issue of retrospection has been raised that people were concerned that, if any parts of the legislation could be commenced, that would affect people who have already, well, either died or already had their will put in place. Again, are you comfortable with the way that the Government has dealt with that? Yes. In our view, it is always better if you can tell from the face of a bill when it comes into effect, but the Government policy is to have a commencement order and to deal with it in that way and as we will have a chance to look at that in advance, yes, we are happy with the position. Okay, thank you. Can I on retrospection just ask whether you are comfortable that all the provisions have been translated in the best way because clearly there are some things that we do want to change the general law of the land and to affect every will that is there after brought into effect, but there are some where you would not want somebody drawing up a will to be having to change it because you have changed the law under their feet. Is the balance of that right in your view? Yes, we think that it is. Thank you. I think that that takes us on to John Scott, please. Thank you very much, convener. I am moving now to section 1. Can I just ask you what the policy rationale is for including guardianship in the scope of section 1? Would you like to explain your position on that and what you think the drawbacks are to that approach, please? Well, the Scottish Law Commission included guardianship in their 1990 report and they included it again in the 2009 report. Our view was that it has been considered in detail on two separate occasions, so we are happy with that. We are happy with the draft as it stands, as the Scottish Government said. It is going to be quite an unusual situation where you have a spouse without parental responsibilities who is appointed as a guardian. You are happy with that? You do not think that a lot of society has a point in as much if they think that there are drawbacks, not really? No. If the spouse has parental responsibilities, I do not think that it is an issue, so I was quite surprised at their point, but I was heartened to hear that the Government is in discussion with them to get to the bottom of that. Okay, thank you very much. I would also like to ask you whether you think that there is merit in trust bar suggestion that section 1 should operate at the point when the marriage or civil partnership ends and not at the point the test date or dies. We have had a pretty full explanation of that from the Scottish Government, but I am interested to hear your views on that as well. No, we do not agree with the trust bar point, and we think that it would introduce concerns that would be multi-layering of where a person was when they married, they could get married again, die again. This is the loft succession that we are looking at. We need to look at it when they died. We fail. Okay, right, thank you. And the final question is whether you think that there is merit in trust bar's view that protection for people acquiring property in good faith section 2.4 is unnecessary because property, subject to a special destination, passes automatically without any need for an executor. Again, already discussed. We think that there is merit in having all the provisions relating to succession in the one place for people to look at, so we do not think that this is unnecessary. We are happy with it and that it relates to both heritage and movable property. Okay, thank you very much. Okay, if I might move on to the power of rectification, as we did before, I think that the Scottish Government made it quite clear that they felt that comments about rectification from the Law Society and trust bar did not affect the general principle and therefore that was not sufficiently contentious for it to be in the second bill point, which I think I would be interested in your comments on if you have any, but I would go on to that further point about whether or not the time limits for rectification should come from the point of confirmation or the point of death and a point that is fairly made that confirmation can take a very long time and therefore this could get open-ended. Subsection 2 of section 3 does give the court the ability to extend those time limits, as I understand it. With a relatively short time limit that would be subject to court's discretion as many things are? Yes. Right, that does make up, it seems to be. Thank you, it's a fairly fair way forward. I think that that actually takes us on to James' section, if that's all. Okay, it pertains to section 6, which deals with death before legacy vesting. There were a couple of comments, one from trust bar and one from the Law Society, which we picked up earlier. Just wondering in terms of what trust bar we're getting at was the provision in section 6, 2 for section 6 generally not to apply in relation to the test data and whether that resulted in any confusion or anything that was needing clarification there. To be clear, section 6, 2 allows for, it gives the test data the right for section 6, not to, the provisions in section 6, not to apply, trust bar had some concerns around whether that was clear enough and that that would override any other comments. Yes. I don't share trust bar's concern on that. We're perfectly happy with the drafting, as it stands. Have you got anything to say on section 6, 2? Just to add that, I think that that is covered by the Scottish Government's letter to trust bar, who the members of trust bar will clearly have detailed practical experience and if they can point to examples of the way a will might be drafted or might typically be drafted, which could give rise to concern, then those will obviously need to be taken into account. And it seemed to be over the definition of a residue clause, but I think that it's probably right that they'd be given a chance to explain the possible doubt here. Okay. In terms of the law society, their point related to the definition of a shoe in section 6, 6, and we heard from the Scottish Government earlier that the law society was concerned about how that impacted on adopted children and step children, believing that they were not included. The Scottish Government have explained that it applies to adopted children, but not step children and have taken a policy decision. That's the approach that they wanted to take. Do you have any comments on that? I'm perfectly happy with that and with their explanation. It seems right because adopted children lose the right on adoption to claim any rights against their natural parents. Step children, that's not true, so including step children here would give them two bites of the cherry effectively. Okay. In the answers that we got from the Government on simultaneity of death or uncertainty of the sequence of death, the Government said that it would be determined on the balance of probabilities, which is a standard thing to say. Are the Scottish Law Commission content that trustees executors will be able to operate on that basis, particularly if they do not have legal advice and not get themselves in difficulties? We were perfectly happy with that. We didn't share trust bars' concern about the lobbying uncertainty. The case quoted by trust bars seemed quite clear to us what the word uncertain meant. Certainly, the word uncertain has been in the Scottish Law Commission's reports throughout. As to what happens in practice, it will be useful if you are discussing with practitioners what their experience of that is. I suspect that there is generally accepted practice in that area, but we don't have any difficulty with the word uncertain. We were perfectly happy with that. The use of the word uncertain in this context is not in any way novel in relation to previous use of that word in the Scottish Law. That's sufficient. I wonder whether I can take the opportunity of raising the issue, which I effectively raised with the Scottish Government, which is to recognise that most people who are executors of wills are lay people, sometimes with a very small l. I wonder to what extent the Scottish Law Commission consulted with those who are lay people and have had some experience of doing this, because I guess that if you hadn't had an experience, you would have nothing much to say. In order to try to make sure that the law that we are propagating is one that can be effectively worked by people who come to it all of a sudden unwillingly and without legal background. As I understand it, going back to our original consultation, which culminated in the 1990 report, there was consultation with members of the public. We have handwritten submissions from that time in our old files, so there was a level of consultation done. In 2007, although most of the topics that we consulted on were not the ones that were in the present bill, there has been an opportunity for members of the public, which some members of the public have taken that up, particularly those who found themselves in a situation where they regard the law as treating them particularly unfairly to make strong representations. I'm wondering whether you would be in a position—clearly it's not something you can do now—but whether you would be in a position to help the Government to produce the guidance, which is surely going to be necessary, possibly once we have both bills through and possibly even once that's been consolidated in such a way that the man or woman in the street can read up on this and doesn't have to go and talk to a lawyer about how to be an executive, because I think our job as MSPs is to try to make sure that lawyers deal with what they have to and not what they don't have to because it tends to be expensive and that's the way we protect our constituents. Indeed, I think that the Government's guidance on this, their notes on this, is very good, but we are absolutely delighted to help with that moving forward. I don't know if I could just add, I hope it's not too much of a plug, but executives in Scots law are generally, for almost all purposes, treated as trustees, and the law of trusts is obviously a law that is complicated in its own right and is antique in a way that makes succession law relatively modern. Our report on that was published last year and is something that we hope that we'll be coming into the Parliament before too long to reform the law, which applies generally to trustees, but that will obviously include executives. There will be a number of clear benefits, but one of which will be that the law on trustees and therefore on executives will be collected together and expressed in modern language. I take that as a heartfelt plea, which has not fallen entirely on deaf ears. Let's hope that the Government is listening. When the Government gave its evidence earlier this morning in relation to where a family perishes together and the destination of assets present broadly being to the crown, the Government indicated that it's going back and thinking further on that. What might the Scottish Law Commission advise the Government if asked on the subject? I think that our two reports, particularly the original 1990 report, make excellent reading in this respect, and I don't think that we would have anything more to add than that. So the advice is to read your previous reports? Again. In essence, yes. That's perfectly content with that. Right. Moving on to parasite and forfeiture. In particular, I think that the key one here is probably the 100 per cent relief, whether the Scottish Law Commission have any issues with the existence of 100 per cent relief or any belief that there will be difficulties in the courts dealing with that. We're very content with the provision and, like the Government, it seemed artificial that a court could only award 99 per cent. They should have a full discretion if they have discretion, was our view. On artificiality, given that the legal mechanism for depriving a beneficiary of the fruits of their illegal act is by legally deciding that, for that purpose, they are dead before the person who was killed, is there not, since that sounds very odd, since that these people will die twice in law, is there not a better legal mechanism by which this can be achieved? I understand the practical effects and I see that, but it does sound to the layperson a distinctly odd approach to take in one's common understanding of the term death. It is only death for this particular very narrow purpose. It doesn't just appear in this section, it appears in sections 1 and 2 of this bill as well, and it is, for this purpose, a very useful assumption. I understand that. I'm only saying that, to be both dead and undead simultaneously, while atomic physicists are perfectly content to deal with that. The example of Schrodinger's cat has been referred to. It does seem that perhaps the legal profession in all its manifestations might think of some more useful terminology in the future. We're clear where we are on this. I think that they will struggle. I think that there have been attempts to avoid using this, and they've all failed in the past. It doesn't happen very often. I suggest that we move on, as I said before, to make sure that the law is right even for those rare events. John, can you take us to protection for trustees, which I'm sure is a very common concern? Yes. Section 18 talks about protection of trustees and executors in certain circumstances where there have been errors in distribution. It says that there will be no blame if the trustees have acted in good faith after such inquiries is any reasonable and prudent trustee would have made in the circumstances of the case. I'm just wondering in practice how that's going to work out and if it will become the norm that there should be advertising going on. My fear with advertising would just be that it would delay procedures and concluding an estate. The measure that is in the bill at the moment is the existing law. We would hope that there is already an established body of practice. The fact that the provision therefore consolidates existing law may be less significant than there are differences in the way that people's relationships may be established or people may be traced. It is possible that whereas once putting an advert in a newspaper, for example, might have been a reasonable precaution that would attract the immunity from liability, it may be now that more would need to be done and that electronic means of trying to track people down or electronic advertisements and so on might be used. We hope that the existing practice would simply carry on, but it itself would need to be adapted to what was reasonable in the view of the kinds of tracing that can reasonably be done. It is now much more simple for somebody to take these measures perhaps in hand themselves than it once was. I think that that's a reasonable answer because I accept that there is established law in place and it doesn't seem to have been a problem up till now. I suppose that I just wonder whether, as you have mentioned yourself, the means of communication are changing and it seems to me that relationships are changing as well and the traditional family unit is less common perhaps. It just seems quite vague to me, but if you are satisfied with it fair enough, because I suppose that the fear would be that somehow through this there is going to end up being delays in concluding matters. We don't see that this would give rise to additional delays. Just do forgive me, as somebody who has been involved in genealogy for over 50 years, that information being online merely makes it simpler to be confused, because the records that one looks at are all informed by what people believe to be correct, rather than objective fact. I could give you lots of examples where what is actually on a death certificate, birth certificate and marriage certificate is not correct, but was given in good faith. John, would you like to take us forward, please? Moving now to private international law section 22, I just wanted to make certain that I am going to hear your views as to whether it is desirable that reform to this complex subject private international law will be split over the two succession bills. Are you content with that as well? Yes, we are content with the approach. It will only apply insofar as it relates to the bill and the same with the next one, so we are content with that approach. That's fine, that's all I wanted to do, thank you. James, I think that you are tailgoner again. Yes, convener, I just want to finish off. The Scottish Government indicated earlier that there were five proposals that were consulted on, but they were not taken forward in the bill, and they outlined some of the reasoning behind that. Are you content with that approach? Yes, although we would like all our recommendations to be inactive, that would be great, but we appreciate that those were contentious and therefore the Government is re-consulting at the moment, which is great. Thank you. That brings us to the end of questions. I thank you very much for your succinct and lucid answers. That ends this item on the agenda.  That brings us to agenda item 3, which is instrument subject to negative procedure, and no points have been raised by our legal advisers on the Reservoirs Scotland amendment regulations 2015, SSI 2015 315. Is the committee content with that instrument, please? To enter item 4, instruments not subject to parliamentary procedure, the act of sedurant rules of the court of session 1994 and sheriff court rules amendment number 3, miscellaneous 2015, SSI 2015 283. That instrument contains a minor drafting error in the form 70, which is inserted by schedule 1. Provision on the signing of the form has been admitted. The Lord President's private office has acknowledged the submission and undertaken delay in amendment to correct it. Does the committee agree to draw this instrument to the attention of the Parliament on the general reporting ground as it contains a minor drafting error? No points have been raised by our legal advisers on the Reservoirs Scotland Act 2011, commencement number 4, order 2015, SSI 2015 314. Is the committee content with that instrument, please? To enter item 5, the Higher Education Governance Scotland Bill. The purpose of this item is for the committee to consider the delegated powers provisions in the bill at stage 1. To agree the questions that it wishes to raise with the Scottish Government on the delegated powers in the bill in written correspondence, we will have an opportunity to consider those responses at a future meeting in order to inform the draft report. Section 1 provides that the chairing member of the governing body of a higher education institution hereafter, HCI, is to be appointed in accordance with the process set out in regulations made by the Scottish ministers. The process for appointment of chairing members of governing bodies is a key policy in the bill that is understood to be a matter of controversy amongst HIEI stakeholders. Does the committee agree to ask the Scottish Government, A, to explain why it is considered appropriate for the basic framework for the appointment of chairing members to be postponed to secondary legislation, and B, to consider whether the basic framework for appointment of chairing members could be set out on the face of the bill and therefore be made subject to full parliamentary consultation and debate with the detail of the process to be set out in regulations. Section 2 provides that the Scottish ministers may by regulation plan provision for remuneration and allowances to be payable by an HIEI to the chairing member of the governing body of the institution. The principle of remuneration for chairing members is a new concept for HIEIs and is understood to have met with opposition amongst their stakeholders. Does the committee agree to ask the Scottish Government to explain why it is considered appropriate for the principle and basic framework of remuneration and chairing members to be postponed to secondary legislation and to consider whether the principle and basic framework of remuneration for chairing members could be set on the face of the bill and therefore be made subject to full parliamentary consultation and debate with the detail set out in the regulations? Section 8 gives a power to the Scottish ministers to modify section 4 of the bill, which sets out the requirements for the composition of the governing body of an HIEI. Post requirements as to the composition of governing bodies set out in the bill are understood to have met with opposition amongst HIEIs. Does the committee agree to ask the Scottish Government to consider whether a requirement could be included on the face of the bill for Scottish ministers to consult affected HIEIs before making regulations under section 8 to modify such requirements? In similar terms to the existing requirement for consultation before exercising the powers in sections 1 and 2 of the bill. Section 13 gives a power to the Scottish ministers to modify sections 9 and 10 of the bill, which sets out the requirements for the size and composition of the academic board of an HIEI. Post requirements as to the size and composition of the academic board set out in the bill are understood to have met with opposition among HIEIs. Does the committee therefore agree to ask the Scottish Government to consider whether a requirement could be included on the face of the bill for Scottish ministers to consult affected HIEIs before making regulations under section 13 to modify such requirements? In similar terms to the existing requirements for consultation before exercising the powers into sections 1 and 2. Section 151 sets out the definition of an HIEI for the purposes of part 1 of the bill. HIEI is the same meaning as a further and higher education Scotland Act 2005. That is a university or institution providing higher education designated by the Secretary of State. However, a university or designated institution falls within the definition only if it is also listed in schedule 2 as fundable bodies to that Act. Schedule 2 lists those bodies which may receive funding from the Scottish Further and Higher Education Funding Council. The open university is specifically excluded from that definition. Section 152 provides that Scottish ministers may by regulations modify the definition set out in section 151 so as to include or exclude a particular institution. Given that the definition of HIEI determines which institutions are subject to the Government's requirements set out in the bill, changes to the definition to include or exclude a particular institution could have a sizable impact on that institution. Does the committee agree to ask the Scottish Government a for clarification as to why a power to include a higher education institution in the definition is required, since it appears that the definition in the bill will already catch all universities and designated institutions other than the open university, which may receive funding from the Scottish Further and Higher Education Funding Council by virtue of being included in schedule 2 to the Further and Higher Education Scotland Act 2005. B, for example, is when a power to include an HIEI in the definition might be used. C, why the negative procedure is considered appropriate, in this case, given the potential impact of modification of the definition, so as to include a particular higher education institution or an institution in question. D, to consider whether a requirement could be included on the face of the bill for ministers to consult affected HIEIs before making any regulations under section 15, again given the potential impact on affected institutions in similar terms to the existing requirement of consultation before exercising the powers in sections 1 and 2 off the bill. Agender item 6 inquiries into fatal accidents and sudden deaths etc. Scotland bill. The item of business is for the committee to consider the Scottish Government's response to its stage 1 report. Do members have any comments, please? Are we content to note that response and if necessary reconsider the bill after stage 2? We are, thank you very much. That ends agenda item 6, and again I suspend this meeting and we will resume with item 7, relatively soon. Right, thank you very much and I reconvene a meeting. Agender item 7 is the Rehabilitation of Offenders Act 1974, Exclusions and Exemption Scotland amendment order 2015 in draft. Members will have before them the Rehabilitation of Offenders Act 1974, Exclusions and Exceptions Scotland amendment order 2015 and a draft of the Associated Police Act 1997 under protection of vulnerable groups Scotland Act 2007 remedial order 2015. The draft order was laid yesterday and provided to members along with the draft of the remedial order shortly after laying. We have today before us the cabinet secretary for education and lifelong learning serves to enable us to scrutinise that draft order. Most approach to this draft order, which we expect Parliament will be invited to agree this afternoon, does not allow for any detailed scrutiny of the order. In the limited time available to the committee, we will do our best we can today to scrutinise the draft order, but having only received that order yesterday afternoon and having only this morning in which to consider the draft order there are clearly limits as to the level of things that we can do. This is, of course, the most unusual approach to consideration of an order, and not one that we expect, of course, will happen again very soon. While we can do what we can in the time available to us to scrutinise this draft order, the committee does recognise that we have an opportunity to reflect further on the draft order in the course of scrutinising the remedial order and the committee envisages taking that opportunity. I welcome Angela Constance, the cabinet secretary for education and lifelong learning, and, with her, I believe, we have Nigel Graham, who is the policy adviser to criminal law and sentencing, Kevin Gibson, a solicitor in criminal law, police and fire, and Aisa Heiney, a solicitor in food, children, education, health and social care, which sounds a pretty wide remit to me. I also welcome, along from the disclosure of Scotland, Gary Haas, the head of protection services. I understand that you have a statement, which I would always wish would be short, but under the circumstances may not be, and I understand that. I invite you to introduce the subject to us. I will do my best for brevity. Good morning, colleagues. I thank you for the invitation to attend to answer your questions about the draft affirmative order, the rehabilitation of offenders act 1974, Exclusions and Exceptions Scotland amendment, order 2015, that we are proposing will form part of the amendments to the system of higher-level disclosures in Scotland. Before I briefly explain some background, can I put on record my thanks to Parliament, including a number of parliamentary officials and the business managers who have been very accommodating as we deal with this unusual parliamentary scrutiny process for the draft affirmative order. Let me explain the background, convener. Higher-level disclosure is the phrase used to describe the overall system that allows for additional scrutiny of a person's criminal convictions. It is used, among other purposes, where someone wants to work with vulnerable groups such as, for example, in a nursery or as a medical professional or in a school or where someone wants to work in a sensitive area such as offering financial advice. Those are, of course, just some of the areas where higher-level disclosure is used. First, the system operates through the responsibilities of individuals to disclose conviction information. Secondly, the system operates through Disclosure Scotland being able to issue certificates containing conviction information that is held on central police records. Under the system of additional scrutiny, the information that must be disclosed by the individual and Disclosure Scotland includes convictions that have become spent under the Rehabilitation of Offenders Act 2018. That information would not ordinarily be disclosable to an employer, but it is under higher-level disclosures. The operation of the two areas of disclosure can be seen as mutually reinforcing, with information given by the individual and, say, completing a job application form able to be checked by an employer against what information is contained in a higher-level disclosure such as a standard or enhanced disclosure certificate or a protecting vulnerable groups, the PVG disclosure issued by Disclosure Scotland. It is helpful to place the higher disclosure system in context. For less sensitive roles, for example, supermarket checkout staff, Parliament has decided that a different level of scrutiny is merited with people only being required to self-disclose any recent or serious convictions. Once a conviction has become spent under the terms of the Rehabilitation of Offenders Act 1974, it will not be disclosed in relation to less sensitive roles. The changes being proposed will only affect the regime of higher-level disclosure and there is no impact for disclosure relating to less sensitive roles. Case law, through various court judgments, has found that the point at which someone's conviction becomes spent is the point at which the information becomes part of a person's private life. The system of higher-level disclosure, which requires disclosure of even spent convictions, therefore requires the disclosure of private information about an individual. In June 2014, the UK Supreme Court found that the system of higher-level disclosures, as it operated in England and Wales, breached a person's article 8 rights under ECHR. That was because a lowly court fully accepted the need for additional scrutiny of a person's background if they wanted to work with vulnerable groups or in a sensitive role. The court indicated that the automatic indiscriminate requirement for disclosure of all spent convictions was not proportionate as no assessment of the relevance of the information to the need for the disclosure was undertaken. It was suggested by the court that a proportionate system of disclosure required the necessity of the disclosure to be assessed by reference to the purpose of the disclosure, and the assessment could include, among other matters, looking at factors such as age of the conviction, nature of the offence and age of the offender. An amended system of higher-level disclosure taking account of those factors will be delivered partially by this affirmative order. The affirmative order amends the requirements for self-disclosure by individuals of their spent convictions. Members will already be aware that the reforms to the system of disclosures issued by Disclosure Scotland will be delivered in a forthcoming remedial order under the Convention Rights Compliance Scotland Act 2001. The remedial order will be subject to separate consultation and parliamentary scrutiny in accordance with the procedures that are set out in that act. The amended system will restrict the requirement for disclosure so that not all spent convictions will require to be routinely disclosed. Under the amended system, certain spent convictions become protected convictions that will not be disclosed, and other spent convictions will still require to be disclosed because they will still be relevant for the purposes of the disclosure. The Scottish Government is focused on ensuring that our system of checking the background of people wanting to work with vulnerable groups or in other sensitive rules continues to protect the public, but we must balance that public interest with the rights of individuals to have their private life respected. We consider that this legislative package achieves that necessary balance. Once again, I put on record our thanks for the assistance and guidance from Parliament in taking forward this draft affirmative order and in due course the remedial order. I am aware, convener, that you all have questions about the legal and procedural issues surrounding the orders, and we are happy to answer any questions that you have. Thank you very much. I think that probably the cabinet secretary answers my first question as to what problem you are actually trying to solve. It is perhaps helpful for me at this stage to make the point on the record and to my colleagues that we do not normally consider the policy of instruments in front of us that normally goes to the relevant policy committee. It is not just because there will not be a policy committee on this occasion, but because the entire purpose of these instruments is to satisfy the European Convention on Human Rights that I suggest that everything that we might want to ask does actually fall within the remit of this committee because it has got to be made to work and therefore every policy consideration is relevant to us. On that basis, I think that I will hand over to John Mason. Okay, thank you. Good morning, cabinet secretary. I wonder if you could just explain to us maybe something about the timing of this, because I think that you said that it was June 2014, was the Supreme Court ruling, and I am just wondering why it is September 2015 that you have chosen to bring this forward? Indeed, and it is a fair question, convener. It is important to stress that the UK Supreme Court obviously has a remit across the UK, but they were making a judgment on a situation that had occurred in England and Wales. They were looking at the indiscriminate disclosure of cautions. Obviously, in a Scottish context, we have alternative to prosecutions and not cautions. There was no direct easy read-over between the judgment and the law as it stands in Scotland. Of course, the judgment did not make any comment about Scott's law. We wanted to take the appropriate time to understand the UK Supreme Court's judgment. There was also other case law that we wanted to look at in terms of England and Wales and Northern Ireland. It is important to stress that, irrespective of how long our considerations took in getting to this point, because of the unique nature in what we are dealing with and what we are trying to do, we would still be seeking Parliament's co-operation in pursuing matters through this unusual scrutiny and expedited process. That is because if we are refining the current system in relation to higher-level disclosures, we have to cease the operation of Disclosure Scotland. Disclosure Scotland does 1,000 higher-level disclosures a day, so we need to minimise the disruption that is caused by ceasing activities. There is an urgency in terms of the matter, but we wanted to give full deliberations to ensure that we were understanding the case law and the UK Supreme Court judgment to make all the necessary adjustments in terms of our policy and our practice. I totally agree that we should think things through and not be precipitate in our action. I wonder whether that is 15 months in which issues about people's private lives have been disclosed in contravention to that court ruling. As I said, it is entirely appropriate for the Government to look very closely at the UK Supreme Court judgment. As I said in my statement, there was not a direct read-over in to the Scottish law. Changing the higher-level disclosure system is complex and has to be done very carefully. Is there something from a Disclosure Scotland perspective that you would like to add to that? I think that the issue that you have raised about the period of time that it took to comprehensively understand the implications of the UK SC judgment on the Scottish law is very important. Because the Scottish Parliament is not, of course, competent to act outside ECHR, it was not simply the case that we could simply look at the disclosure aspects. We had to look and review the policy across the PVG act, the police act and the RWA act to identify potential areas for incompatibility right through the depth of the legislation. It also took time to devise and implement an operational solution within Disclosure Scotland that was capable of applying the amended regime and generating the disclosures in a way that was safe for the public in terms of disclosing the right information to employers and to other interested parties, as well as to balance fairness and make sure that they are accurate for individuals who are requesting disclosures. That took a number of months to do and involved some quite complicated work within Disclosure Scotland. All of that together added up to the period of time that it has been taking. Do we know when England and Wales changed their system? The England and Wales changed their system prior to the UK SC judgment. However, there has been case law since then, particularly in Northern Ireland recently, which suggests that there may be some question marks over whether the English and Wales system is as compliant with ECHR as we would certainly wish the Scottish system to be. We really had to take cognisance of that case law developing and make sure that the Scottish system was fully compliant. A technical point, perhaps the cabinet secretary could repeat her statement about the high-level disclosures that are giving the peranum figure. In terms of the daily figure, I heard you say something that took me by surprise, and I want you to be very clear as to what the number is. For every day that Disclosure Scotland is not issuing higher-level disclosures, that is 1,000 disclosures a day not being issued. For three days, Disclosure Scotland will not be issuing higher-level disclosures, so that is 3,000. You will appreciate why we have pursued a more expedited parliamentary scrutiny process. I hope that the committee is very good at practical reasons. It was just a higher number than I expected, and I wanted to hear it said again. Thank you. It does seem a very surprisingly large number to us, but if that is the case, then so be it. John, do you want to pursue that? Essentially, developing that question, nonetheless, is there any other reasons for the need to make it such a swift process, 15 months to consider it, two days to scrutinise it? I appreciate the figure of 3,000 or 1,000 people a day, but are there any other reasons why that has to be done swiftly other than that, or is that the sole reason? It is important that we have public confidence in our disclosure system, and that is why the system ceases operating while we move to a more refined system of higher-level disclosures. While we are in the process of making changes, it would not be appropriate to issue disclosures on the basis of the system before it was amended or refined. The committee might be interested to know that Disclosure Scotland has 1.2 million disclosures a year. I note the committee's question around the 15-months lead-up to that point, but it might be of interest to the committee that the UK Supreme Court expressed some surprise in its decision that legislation for England and Wales had been made in advance of the UK Supreme Court decision. Given the complexities and that the case in question did not have a direct read-over into Scots law and that judgment by the UK Supreme Court did not make any recommendations or comment on Scots law, we, as outwine by myself and officials, had to undertake quite a complex piece of work and period of investigation and to review our current system. We are now, as a result of that review, come into Parliament with proposed changes. On process, convener, the affirmative order is going through a three-day process. As I intimated in my statement, there are two mutually reinforcing aspects of the disclosure system, the responsibilities of the individual, which is what the affirmative order is about, and the compliance order, which will be laid on Thursday. It is in relation to the responsibilities of Disclosure Scotland. In essence, the responsibilities of the state and the responsibilities of the individual have to be complementary and have to be married up in terms of the disclosure system. The new proposed system cannot come into place until the affirmative order, which we are discussing today, and the compliance order and they have to come into force on the same day. The point that I am getting to, convener, and I apologise for the length of this, is that once the compliance order is laid, there is a period of scrutiny for 120 days where there is a period for written considerations and there is the opportunity for the relevant policy committees to be writing reports and then a statement will have to be laid in Parliament. If changes are deemed necessary to be made after that point, they can be made and we would then have to come back and amend the affirmative order. There is a process of scrutiny that is attached with all of us. In relation to the figure that you have quoted and that you have outlined in your correspondence, there are about 1,000 higher-level disclosures a day. In terms of the changes that are being proposed, how will that number be affected? Has there been any assessment made of the number of disclosures that we now expect with the new proposals that are before us? The number of anticipated disclosures that we would not expect to change is about moving to a system in which the decision-making process around what is disclosed to an employer is more proportionate and reflects the learning that is taking place following the UK Supreme Court judgment. I note what the cabinet secretary said on the decision-making process. It appears that, depending on the circumstances of the request for a high-level disclosure, there will now need to be some assessment as to what is put in it in relation to schedule B1, and we will come in more detail to that later. My question is a very simple one, and it would be important to get that on the record. How well prepared are Disclosures Scotland for what, at least at this stage of our questioning, would appear to be a more complex environment for disclosure? How well prepared are we, and has the preparation for those changes been part of what has justified the amount of time that one might suggest that it is taken to get to this point? That is a pragmatic point. As it stands, all spent convictions are disclosed under higher-level disclosures, so there is simplicity to that. We are moving to a system where some very minor issues are not disclosed. There will always be some spent convictions that will always be disclosed, and then there is a list of offences that may— Do forgive me, cabinet secretary. I think that we will come to that detail a little bit later. I really just want to be sure that I would like to hear that Disclosures Scotland is prepared for that additional complexity in their decision making. Yes. Just now, Mr Stevenson, there is a standard, a target, if you like, to complete disclosure applications in 14 days. That is for 90 per cent of correctly completed applications to be completed with 14 days, and we are confident that, given the new, amended or more refined system, that target and that standard can still be met. I think that we will come back to that if we might, Mr Kelly, on alternatives. I will come to my substantive point of minute. I just want to go back to the answer that you gave previously in relation to the 1,000 higher-level disclosures a day, and you said that that would not change. I understand that there is a balance to be stuck here between complying with ECHR and ensuring that the rights of organisations through Disclosures Scotland have to provide those disclosures to are protected. However, if the effect of that is that a number of spent convictions that are currently disclosed will not now be disclosed, how can you be confident that we are still going to have the same number of disclosures? I think that, as an intermediate, Mr Kelly, it is the decisions in and around what is disclosed to an employer. People will still have to make their applications, but I do not know, Jerry. Do you want to say a bit more about the Disclosures Scotland process? Indeed. The number of disclosures is driven by the activity in the marketplace for new workers coming into regulated work, changing jobs, and there is a frictional movement. That drives the number of applications that we receive for disclosure. Currently and for the past couple of years, we have been doing a thing called retrospection, which is bringing on the existing regulated workforce into the PVG scheme in large numbers. That period is coming to an end very shortly, but that is the main drumbeat for driving the number of applications. A distinct point is what is actually on the disclosure, and that is what is being impacted here. The incidence of the disclosure should not be affected. It is what is on it that is affected. Employers might, after this change, expect to see for minor, aged and irrelevant convictions less information disclosed than would have been the case under the pre-amended regime. However, the balance has to be struck, and we have tried to do that in policy, between what is an information that an employer must see in terms of the safeguarding imperative, which continues to drive the ethos of the disclosure regime, balancing that against the individual's rights to have their past conduct, where it is no longer relevant to the kind of work that they are seeking to do. That is a point that we are going to come to in some detail in a minute, because it is obviously relevant. I wonder if I can persuade Jim Simpson to take to the alternative place, because we will come back to some of the related points in that. Just in terms of—it has obviously been 15 months since the Supreme Court ruling—what was your logic in knocking down the route of primary legislation? One of the main reasons for not opting for primary legislation was the provisions in relation to the Rehabilitation of Offenders Act 2018 and the amendments to the 2013 order could not have been made in a bill because of the powers that we have under the Rehabilitation of Offenders Act. There is a Scotland Act order that gives us powers to make provision in the exclusions and exceptions of order about reserved areas. That is the only way that we can make those changes. That would not have been possible in a bill because it would have been outside competence. While it would have been possible to do the provisions that are in the remedial order in a bill, there would have still been a requirement for two pieces of legislation that needed to operate and come into force in tandem. Given that the powers that existed in the Convention Rights Compliance Act 2018 felt that that would be the appropriate way of making the changes in relation to the police act and the protection of vulnerable groups act. I understand the process point that you make, but from a parliamentary point of view, primary legislation would have given Parliament a much longer time to scrutinise what is clearly a significant piece of work. Was that something that was taken into account? It was taken into account. In considering a bill, we felt that it would have really needed to have been a fairly expedited process for a bill because of the requirements to maintain public confidence in the system of disclosure as the changes were being made. With the remedial order, the changes could be made and there would be certainty as to what the law required. There is still a period of public consultation after that, after which we can reflect and consider if any changes need to be made to the remedial order. The approach adopted will mean that the processes for higher-level disclosures will change as soon as the order and remedial order are made. Presumably, as yet unprocessed cases requiring a disclosure will be dealt with under the new scheme. Can you confirm that that will be the case? I mean that Disclosure Scotland will cease the operation for three working days of higher-level disclosures. Those 3,000 applications that have not been processed will be processed under the new scheme. There are arrangements in place for Disclosure Scotland to be working out with its normal working hours to ensure that 90 per cent of correctly completed applications are met within 14 days. Is it just 3,000? I mean that is the three working days that we envisage there being a blank space. Are there other applications in the pipeline that will also add to that figure of 3,000 or not? I checked this morning and the numbers that are awaiting processing are well within the parameters that we have set out, so there will not be a bigger backlog than we have said, and it will be processed efficiently and expedited as quickly as we can. We have resources lined up in place ready to go when the law changes. We are about to come to a series of questions that relate to the substance of the proposals that we have. Before we get there, I am just wondering if I could go back to the process, and in particular the process of disclosure and of operating that unit. As you have already indicated, Cabinet Secretary, up to now it has been essentially quite clear that this is in that category, that is in that category, that is in that category, that is in that category, that you either disclose it or you do not. Once the orders are through, you will be in a position where there will still be the outliers, but there will be the section in the middle, which requires some kind of judgment to be made. On the basis that it is 1,000 a day, that cannot clearly be 1,000 coming to the head of the unit for a discretionary view. Manifestly that is not going to happen. Presumably there is somewhere or other some kind of written down flowchart paradigm that says this is the basis on which you operate. Presumably, in the hope that there is a very, very small number that really do need managerial discretion, is that document something that you would be sharing with Parliament in the process? I, convener, would not describe it as a system that involves managerial discretion. I mean what we are seeking approval from Parliament to do is to agree a set of rules in which higher-level disclosure operates under. Once the compliance order is laid, there is that 120-day period for people to express their opinion on the rules as proposed by the Scottish Government. The only area that I would highlight is that the police currently have the powers to disclose information that they see as relevant and pertinent, even if it is information that they have that is not led to a conviction. That power remains unchanged, and that is a power that the police have. However, we are revising a system of rules in relation to disclosures, and that is what requires parliamentary scrutiny and approval of. Am I understanding correctly that relevance to the employment becomes more of an issue than it has been? That is where I would have thought that there was going to be some kind of managerial input to decide if it is in the financial area, if it is a finance director, if it is an accountant mid-tier, if it is a cashier, would that not be more judgment in there? That is fair, because I think that we have probably used the wrong word. I do not think that this is management. I think that this is administrative, as a matter of legal term. This is administrative law, and we are dealing with this. It is not management, but there is none that is surely going to be an administrative decision that will be made by somebody in Disclosure Scotland to see what the relevance of something is. Will the operational process and the administrative decisions be based on the rules that are laid down by Parliament? Individuals can, of course, under certain circumstances, challenge the application of those rules via the sheriff's court. However, this is a regulated process. In terms of Mr Mason's question, I suppose, if he can bear with me, convener, in terms of types of jobs, it is recognised already by Parliament that types of jobs require specific levels of disclosure, so that is where the issues of particular types of employment are. For example, a doctor, a teacher, a social worker and a nurse require to be part of the PVG scheme. Prison officers and people who work in young offenders institutes and members of prison visit committees would be part of an enhanced disclosure scheme. Financial services are part of a standard disclosure scheme, so that part of the system already exists. It is becoming more complex, and that is why we are coming to Parliament with a series of rules. I do not know when you want to explore this further, convener. There will be a list of offences that will always be disclosed, and there will be a list of offences. I am just about to ask about that in my next question. That will be disclosed depending on the age at the time that the conviction was received, how long ago the conviction was. Obviously, the nature of the offence is reflected in the sense that there are two separate lists, and there are a small amount of minor offences that would not be disclosed that are always protected, so that would be things such as littering. Motor and offences that are related to the lights on your car, drunkardness, if they are spent and they would just not be disclosed. You have two substantive lists of things that are always disclosed and those that may be disclosed, and that will depend on the age of the offender at the time and how long ago the conviction was and what the offence was for. John Mason is the man who will continue to address that. That is a real question, and the last one was supplementary. Just if you could give us some background as to the considerations that were given about the choice of offences, we have the two schedules here, schedule A1, offences that must always be disclosed and schedule B1, offences that are to be disclosed subject to the rules. Could you give us some reasoning why one group is as it is and the other is as it is? Of course, the committee will appreciate a complex area that we needed to give great thought to. Obviously, a murder conviction is never spent, so it is always disclosed. Offences that will be in schedule 8A of the compliance order and offences that are in A1 of the affirmative order are offences such as assault to severe injury, assault with intent to rape or ravage, culpable homicide, extortion and rape. Then there are other list of offences such as breach of the peace, culpable and reckless conduct, where those offences, depending on the age of the offender at the time of the offence and how long ago the conviction was, may not be disclosed. If someone at the age of 19 was convicted of a breach of the peace and 15 years had elapsed since the time of that conviction, that spent conviction would not have to be disclosed. If they were under the age of 18, seven and a half years would have to elapsed before that spent conviction would not be disclosed. I think that we are clear that things like murder or rape are obviously serious and some of the others who mentioned breach of the peace might not be so much. When it comes down to the dividing line, it becomes tricky. I see one of the ones that must be disclosed as uttering threats and one of the ones that may not be disclosed as perjury. For a lot of people, perjury is a pretty serious offence. How did you distinguish between that? Obviously, we have looked at a wide range of information. We have looked at multiple sources of information. We have been busy since the UK Supreme Court judgment. We have looked at the classification of crimes and offences. Every type of offence recorded in the children's hearing system, the police, national computer, the disclosure and barren service, and we have looked at Northern Ireland's filtering list. In terms of our approach, we are looking at offences that have resulted in serious harm to a person, a significant breach of trust and responsibility, offences that have demonstrated exploitative of coercive behaviour, dishonesty against an individual, offences that people have abused, a position of trust or a degree of recklessness. Those are the things that we have been looking at. That is why we have those two lists of things that either will be disclosed or may be disclosed and are thinking as informed by those factors. All those factors that I have mentioned are potentially of relevance to those offences on both lists. Ultimately, there are 120 days of post-compliance order scrutiny, and stakeholders and parliamentarians may well have views about the rules that we are trying to establish. That is a very important part of that process. It will be to receive the written considerations, to receive the committee reports, and a further statement will have to be made in Parliament. If necessary, further changes will be made. We are coming with what we believe to be a solution to the issues at hand, but that does not mean that there cannot be further reflection on whether that detail is exactly as it should be. Given the timescales and everything, that is the proposal in a sense, and we are going along with that, but that does not mean that it is fixed and stoned for our ages and ages. We are confident that, given that we have taken the time to explore the matters inside out, we have taken the time to ensure that, from a policy perspective and operationally in terms of the demands of disclosure Scotland, we are confident that this is the right solution, but you are quite correct, Mr Mason. It is not set in stone and there is a very important part of the process, and I can assure you a willingness on behalf of the Government to be very acute and listening acutely to the concerns of parliamentarians and stakeholders. On the record, we respect the judgments that you just made. The law will change on Thursday, and that will be the law for the time being, as it always will be. James, would you like to pick up your... Sure. How confident are you that you have got a balance right here between the public interests and the rights of private individuals when there has been no public consultation with parliamentarians? We are confident, as you highlighted, Mr Kelly, that we have taken 15 months in our considerations, but, as I said to Mr Mason, we will be acutely listening to parliamentarians' views tomorrow and in the 120-day post-legislative scrutiny. We acknowledge that this is an unusual procedure that we are following, but I personally want to assure committee that we are pursuing this unusual procedure because we feel that we are absolutely sure of the necessity to do so. I understand the proposals correctly. The system is that, under a medial order, envisages that a draft certificate containing a conviction can be appealed to the sheriff, provided that is done within six months of notifying disclosure Scotland of the intention to do so. Obviously, if somebody does choose to make that appeal, there will be a time lapse between the request for disclosure certificate being eventually issued, which would suggest to me that the employer is going to be very suspicious that there is something going on in the background. Is there some way of preventing that or protecting against that? The fact that the employer gets nothing back suggests that there is something hidden. Jerry, do you want to address the six months issue? The issue there is the potential to interfere with a person's articulate rights whenever you send the second certificate to the employer. If there was something on that disclosure that shouldn't have been there, then by sending that to the employer, you have effectively interfered with a person's articulate rights. That is precisely the policy intention behind that, to make sure that there is no potential for that to happen. Neither situation is ideal. The delay in the individual's employer receiving the certificate will, as you say, flag up a potential for concern there. However, while you have a system of having two disclosures issuing to the individual and to the employer, a system in which our feedback tells us that it is greatly valued by employers across the country, there has to be a compromise struck between whether or not you issue one or not. When you withhold that, what's the greater evil? Is it to send it out and interfere with a person's articulate rights, or is it to withhold it and not do that, but to leave that potential for uncertainty around what the employer might deduce from that? We've decided in policy terms that that is the only appropriate response that we could possibly make, because it would be simply unacceptable to interfere with articulate rights or potentially do so, and that's the reason for that policy decision. I do understand the dilemma that you've got. I'm just wondering how it's going to work out in practice, because nothing comes back to the employer, the employer does not offer the job to the person. Is a claim against Disclosure Scotland or could try that? In terms of someone making, let's just say, a new disclosure application, the fact that they get their certificate before the employer and then there is 10 days to appeal to the sheriff, that's quite a tight time frame. I appreciate that any delay may be undesirable, but there has to be some gap. By the individual receiving the disclosure information first, it gives them that opportunity to appeal to the sheriff within 10 days. Of course, 10 days is sitting within the 14-day target of 90 per cent of applications completed if they're correctly completed in the first place. Does that mean that if I make an application for a relevant job, you would want to turn around my potential disclosure to me in four days, so I've got 10 days to appeal it before you meet your 14 days to my employer? We wouldn't tie it up like that. The individual will receive their disclosure and they will know that there's been spent convictions disclosed if that's happened, and they will then have a period of 10 working days thereafter to intimate an intention to appeal. They don't actually have to make the appeal on that 10 days, they just have to tell us that they're going to do that. At that point, we'll not issue the other employer certificate, but those cases are so few in number that they couldn't really impact on our general attainment of our 14 days 90 per cent service level agreement to our target, if you like. However, we still have the spirit of that target to meet and we will strive to do that. It's in the individual's gift to tell us if they want to intimate an appeal or not, and if they don't, it will all issue in the normal fashion, but they'll still have that 10 days to make their mind up. Everyone who receives such a disclosure will know that they've got 10 working days, effectively two weeks, to appeal and they know that their potential employer will not have received a disclosure form until that two weeks is up, regardless of where we are in this aspirational 14 days. I think that's clear. I concur with Jerry's characterisation of the process. I think that I was perhaps a bit oversimplistic in how I articulated it. That's okay, I understand that. I also do recognise that we're dealing with relatively small numbers here. They're not probably going to impact on the statistics, but as always, as parliamentarians, we're worried about the individual, and the statistics take care of themselves. At that point, I'm probably going on to John Scott. Thank you, convener. Before I come to the question, I want to ask quite specifically, can I just ask in the general sense, given that it's 15 months since the Supreme Court judgment, are there any people who will feel themselves to have been disadvantaged in the meantime in terms of the law being changed in England and Wales prior to the judgment and elsewhere since? I wonder if it's unreasonable or if it's reasonable for people to feel that they may have been disadvantaged in the interim. It is, of course, reasonable, given that there was no direct read-out between the UK Supreme Court judgment and the Scottish law for the Government to be taking action. We're not saying that the existing system is non-compliant. I mean, ultimately, it's for the courts that decide these matters. We do, of course, want to ensure that our system is as robust as possible, in light of the UK Supreme Court judgment's other case law. As much as we can, without things being tested in court, ensure that our processes are ECHR-compliant and that we are getting the right balance and that public protection is at the heart of everything that we do. That takes me nicely into the next question that I want to ask. In relation to non-protective schedule B1 convictions, the policy note says that the starting point is that such convictions will be included on higher-level disclosure certificates. Is it the intention for Disclosure Scotland to have discretion regarding the inclusion of such convictions, for example, to take into account the nature of the offence and its relevance to the employment or the post-applied form, or will the discretion operate only at the level of the sheriff's consideration, where the individual subject to the conviction chooses to apply to the sheriff's court for removal of entries relating to such convictions? I mean, I'm not a lawyer. Where will the discretion lie? Yes, so let me explain it in terms of how I understand it. Disclosure Scotland are not operating a discretionary scheme. The scheme is set out by the rules that are ultimately approved by Parliament. Of course, people can take matters to a sheriff and they look at the situation in terms of the existing law. I might ask Jerry to say a bit more about that. Yes, I mean, the policy that determines whether or not something is or isn't disclosed is still a policy decision that ministers have made, but it is set out and codified in a way, which is applicable in the same way across different cases. The UK Supreme Court ruling in 2014 set out that there was a number of tests that a reasonable person might apply to think about whether something should or shouldn't be disclosed. The rules that are set out by ministers try to accommodate those tests, to try and apply those tests in a coherent and rational way. However, we understand that there will always be cases where the circumstances of the case, which is one of the tests that the court flagged up, are such that, in that particular instance, it wouldn't be right to disclose that. That's why we've made the provision for the individual to be able to go and make their case to a sheriff to take account especially of those unusual circumstances or particular background factors that mean that, in that particular instance, the general policy rules shouldn't apply in this may or may not disclose rules list of offences, so that's the thinking behind it. The rules will be applied in a very black and white way. However, whenever you have a disclosure of something that is a spent conviction on the rules list, often the way that the offences are codified on police systems, they occur together in a single string of narrative. In those cases, we will disclose the matters around the same diet that matter being convicted. That's why there's a caveat in the words that I think I've picked you up correctly from your question. It's not that the rules will be applied in a discretionary way by disclosure Scotland or that somebody will sit and make a judgment of Solomon about whether something should or shouldn't be disclosed. That won't happen. The only person in this process who will have that discretionary role will be a sheriff, ultimately, and the rules will be applied otherwise. For the avoidance of doubt, there will be no discretion available to you. It will be solely through the court. I'm going to start off with an incredible and naive question. When I look at schedule B1, which is headed offences that are to be disclosed subject to rules, my question is, where are the rules? The rules, Mr Stevenson, are at what age was the individual at the time of the offence. I've asked Jerry to talk about the more technical aspect, but in terms of plain speaking, we can clearly distill the rules into the age of the individual at the time of the offence, where they are over or under 18. How long ago was the offence or conviction 15 years ago, or was it seven and a half years ago? The time frame depends on it in the age of the offender. In terms of the nature of the offence, that's reflected in the fact that there are two schedules, but in terms of where are the rules, I'll ask Jerry to explain that, because it's more about policy. The rules are, as the cabinet secretary set out, simple rules. For this middle group, I wonder if I might just intervene to explain. I understood the timeline and the two different lists, and that's a set of rules, but we have in evidence had reference to, and I'm going to create my own example. Item 9, for example, in schedule B1, is embezzlement. Clearly, that's going to be an important matter to disclose if the employment relating to the disclosure request is in the financial services industry, but it might not matter if it was in the care sector in the same way. I got the sense, in what some of the previous evidence has said, that if it's an application related to financial services, of the things on B1, as a matter of rule, you would have a list of which would be disclosed in the financial services industry and a different list that relates to the care sector. I'm getting nodding heads from witnesses. In relation to that distinction between the different employments and which of B1 will therefore be disclosed as a matter of rule, as distinct from the court ruling and people applying, where are those rules? I have considered those issues. I'm going to ask Ailsa to pick up on your example. In relation to where the rules are contained, they are contained in the definition of what will become protected convictions. That's set out in both the affirmative order and also it will be contained in the police act, as amended by the remedial order. It sets out what is a protected conviction by reference to the offences that are listed in the two schedules. I wonder if the witnesses might just help me by pointing me at the relevant page in what's in front of the committee. Not that I want to explore it in detail. I merely wish to know where they are. My reading of it as a layperson didn't lead me to understand the answer to that question. In relation to the rehabilitation of offenders amendment order, the exclusions and exceptions amendment order, the definition of protected convictions is on page 2 of the order. That is the crux of where the rules are contained about. I realise that it is complicated. Page 2 of the order amending the exclusions and exceptions order sets out a definition of protected convictions. No, I've got that. It goes on to insert in section 2A, but in particular there is some reference to children's hearings on the following page and so on. I got the sense from previous evidence that what would be provided from the menu, and I'll call it that informally, is schedule B1. If it was someone operating in the financial services, some would be chosen and some would be not. I may be hopelessly naive in my question, but I get the sense that my colleagues are with me on this one. Those rules are intended to apply across the whole spectrum of higher-level disclosures. There is not a distinction made depending on the job or the purpose for the disclosure. The rules apply across the board. Therefore, just to be clear and to make it simple enough for even me to understand, that all the things that are on B1, the process by which disclosure Scotland will work, all offences that are covered by B1 will normally be disclosed. Right, that's helpful, because I've possibly confused myself when I was listening to some of the previous evidence into imagining that there was some difference. The distinction will be made when the person about whom the disclosure is being made suggests, for the sake of argument, a working-in-the-care industry, that a disclosure about an embezzlement might not be necessary. That is when—and the only time—when matters on B1 are removed from the disclosure certificate. Yes, but there is a slight bit of additional information that would be worth sharing with you, which is that when it comes to the post-specific aspects of what you are asking about, the chief constable has powers to give information in that way and enhance the disclosure. That's non-conviction information, which we have entirely, and I understand it. Right, now that's very helpful, and that simplifies things. From over here, that was the basis of my question about administrative discretion, if you're telling me that the rules are, in a sense, that simple, that black and white that I think takes away my earlier discussion about who might be making these kind of decisions, because it sounds as though they're not going to be made. Let's do it, please. Right, well now move on to some more detailed matters, but I couldn't ask the other questions that they've suggested to ask without understanding that, to be blunt about it, so do forgive me. I suppose the first of the question is the hard cases rule. Looking in particular at item 4 on schedule B, which is a breach of the peace, which is one of those very, very wide common law offences that ranges from up to quite severe things and down to matters relatively trivial. When you might have somebody who's under 18, who's one month short of the seven and a half years that would exclude it, I take it then that really the only way in which that's excluded, you just confirm in that context, what I've heard will be for the individual concerned to appeal and go to the sheriff's court. There is no other way of doing that, and it's not within the remit of the Scolchers Court. Right, okay, I think that we've covered that, so I don't need to spend more time on that. However, the next one is a bit more substantial. In article 3 of the draft order, it makes a distinction between judicial proceedings in which spent convictions may be protected, but other tribunals and hearings where there is no such provision. There appears in what's before us to be no provision for going to the sheriff's court to say that something on B1 will not be disclosed when somebody is in front of a tribunal and is asked to disclose. Is that the policy intention that the Government has, or is that something in the drafting that has led to that difference in these different contexts? In other words, there are contexts in which there appears to be no legal provision for things on schedule B1 not to be to Scolchers. I'm going to restrain into some of Kevin's territory, so I'm going to ask you to reply to that, because it's a good point. The starting point is that convictions that are on the B1 list will always be admissible in the proceedings that are not listed there. That's to say that they cannot become protected. May I just immediately come in and say that I understand that and that's why I'm asking the question? Why is there that distinction that in certain contexts the whole of B1 has no provision for something being deleted? Why is that different from the disclosure to an employer? There are two sort of separate categories of proceedings that we're talking about here. One category is proceedings where what is relevant or disclosable in those proceedings is set out in a separate context. We're talking in particular about firearms proceedings under the Gambling Act. The founding legislation that sets up those proceedings describes what is relevant in terms of conviction information in the context of those proceedings, and all the rehabilitation of offenders act is doing in relation to that, is ensuring that the policy that is delivered in relation to those particular areas is not upset by things becoming spent and therefore not disclosable in those proceedings. The view is being taken that because there's a comparatively narrow focus that's already in legislation and is very specific, that it is not breaching the private rights of individuals under article 8 under those circumstances because, in the context of a firearms certificate or a gambling licence or whatever, the judgment that the Government is making is that that's not breaching article 8. Yes, two things about that, I suppose. One is that many of the proceedings that fall into that category are proceedings in reserved areas and we couldn't really affect the policy decisions that's been taken by the UK Government about what is relevant in relation to applications for gambling licences, for example. The second element to that is that—do forgive me, I'm going to come in. You're not raising a red herring here. You're not saying that you would legislate if we had the powers. They're already restricted under other legislation so the gambling act 2005 says that there are certain types of convictions, spent convictions that need to be disclosed, so that's set out in that legislation. To have a different type of disclosure in this wouldn't actually make sense because you've already got restricted disclosure, so you wouldn't be breaching ECHR because it's restricted already through the gambling act? I was just picking up the virus issue that had been raised there, that notwithstanding that it would be ultra-virus, there's no suggestion that you would want to legislate in areas that we're not competent to legislate in any way. We don't need to go any further than that. I think that the second element to pick up on is that the people who take the judicial authorities, who determine what is admissible or not admissible in these proceedings, will, in large part, be public authorities with their own ECHR obligations to respect. The view that we've taken is that, where it is somebody else who has a decision as to whether a conviction or private information is admissible or not is a public authority, then it's right to allow them to exercise their discretion in that area. What we're saying is that this court judgment, which is the spring for why we're here at all, is something that a number of public bodies will need to take account of when they have people appearing in front of a range of bodies that they're responsible for, but will that extend to the people who are appearing in front of those bodies understanding that they're not required to disclose things? There are two aspects to disclosure. There's the disclosure aspect, but secondly, the reliance that's placed on the disclosure. I think that that's where the responsibility of the public bodies comes into play. They would not be in a position to rely on irrelevant private information to an individual's prejudice. Just to close that up, I'm conscious that I may be going off-piece to a substantial extent. Is the Government going to ensure that bodies that are going to have to take account of this case in England and Wales to which we are now responding in the Scottish context are made aware of the implications that there may be for them and it will be for them to consider so that we don't have a gap in what they're doing? Everything, we're doing something, but there are things beyond that in other parts of public policy and practice, and I just want to be sure that the Government is making sure that that's drawn to their attention. We've had discussion with various bodies on that point. I have quite extensive notes here, which I want to do, because I've covered a range of... In the meantime, can I just ask a pretty basic question? Are there any cost implications for businesses, companies about this or not? It's probably my inability to have read all the paperwork in time, but I'm not aware if that has been discussed or not, but it would be helpful to know if, indeed, there are any cost implications. There's no financial memorandum attached to this, is there, or is there? There is the quality impact assessment and the thebria, but there's no additional cost to businesses and individuals over and above what they're already currently in terms of... When you refine a system, there are organisational costs in and around that, but they're manageable and there is obviously the cost to individuals if they choose to appeal. There is that cost. Sorry, I do want to go back to schedule B1. I know that my colleagues are reassured, but I still have some queries around that. I want to run through a practical example. Point 18, public indecency. Someone's got a conviction on that. In the first instance, that's got to be included on the certificate. What would be the scenario or the circumstances that would take that off the disclosure certificate?  This isn't disclosure Scotland, exercising personal discretion. Obviously, it touches on the age of the individual at the time of the public indecency and how many years have elapsed. If that was on the record and they weren't satisfied about that, they could appeal to the sheriff. I'm just checking with colleagues that I've not missed anything. The disposal in the case would also be relevant. If the person had received an admonition or an absolute discharge for that offence, it wouldn't ever appear once it was a spent conviction. I understand that, but if there's a conviction, it appears on the draft certificate and then it's shown to the person and they've got the facility to appeal that. As long as it fulfills the requirement of the 15 years and it appears on the disclosure as a spent conviction, it would have to go to the sheriff and explain what the circumstances were or the particular context was behind that offence in order for the sheriff to be satisfied that it shouldn't thereafter be disclosed. It's not the case that, in the first instance, it would be on the certificate if, in examining some of the rules in terms of the age of the person, the length of the time since the conviction etc. If that had fallen out with those time skills then it wouldn't be included on the certificate, it would simply not be there. If it was a public and decency conviction when the individual was at the age of 19 and then 15 years have elapsed, it's not disclosed. If it is less than 15 years, it is disclosed that the individual can take that to the sheriff. I should add that employers on receipt of information and we know that some offences, whether it's breach of the peace or some sort of public decency, they're quite broad offences that can capture quite a range of behaviours. It is therefore up to the employer if they see a breach of the peace offence or public and decency. They can ask the individual more information about that and the individual can speak about that. In some instances, it's a decision for the employer. The employer may say, well, that was 14 years ago and they've given an explanation and they've been of good behaviour. I suppose where there's discretion, in some cases, not in all cases, would be for some employers. It's also worth mentioning that if that conviction was the vetting information on the individual, that would come up to the protection services part of Disclosure Scotland who would be able to make a decision as to whether it may be appropriate to consider that individual for barring in either the children's or the adult's list or both. Whilst that information is presented to Disclosure Scotland, they would make that decision routinely and do it currently on those kinds of cases. There is an extra safeguard in the system which is the purpose of barring under PVG. I'm all right in saying that there would be certain public and decency offences which would be disclosed automatically under the current system which may not under the new proposals. Check to the rules having been applied and the time having elapsed, it's necessary. That offence, forgive me, I can't recall the precise details of all the lists, but if that offence is on the rules list, then that would be one that would not be disclosed after the relevant period of time had elapsed. Is that, to ask the cabinet secretary specifically, comfortable with that? Is that a matter of concern? I'm a former forensic social worker. When you look at the offences that may be disclosed, there is a range of offences that, as an individual, would always cause concern, but in terms of the PVG system, in particular roles, there is that added security of the PVG system that places individuals with some sort of, let's just say for argument sake, a public and decency that they could be put on the list of barred individuals. None of that is entirely comfortable to us as individuals, but, as the Government, we are front and centre, it's about public