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The minefield of human rights

The proposed legislation to establish an index of persons deemed unsuitable to work with children will give Scottish ministers the power to place a person's name on it, though such decisions "will usually be taken by officials acting on behalf of ministers".

On "initial referral", ministers will be able to place a name on the index on a "provisional basis", for a period of up to six months. A final decision will need to be approved by a member of the senior Civil Service, together with either a member of the social work services inspectorate or the schools inspectorate - or both.

Registered bodies will be able to access index information from the Scottish Criminal Records Office.

The procedure for placing a person on the index includes "observations invited from subject of referral". The person will be able to appeal on initial placement on the list and thereafter at intervals of 10 years for those aged over 18 at inclusion on the list or five years for those aged 18 or under.

The consultation paper asks for views on whether the best avenue of appeal would be to a sheriff or an independent tribunal.

The City of Edinburgh Council, while welcoming the proposals "with some reservations", echoes wide concerns about what could become a human rights legal minefield when it notes that "some aspects of the proposals may not satisfy some of the requirements of the European Convention of Human Rights: for example, ensuring a fair trial". Edinburgh argues that "because people can be provisionally placed on the index before completion of any appeal processes (such as industrial tribunal), there is some element of 'guilty until proven innocent' ".

The children's services strategy group for North Lanarkshire also points to "the balance between the rights of the individual and the need to share relevant information which might be prejudicial to the livelihood of any individual".

It says: "Unless we are given very clear and explicit guidance and the processes which are used are seen to have integrity, then it is possible mistakes will be made which will lead to children not being protected or adults being unfairly treated. The latter may result in claims against any person or organisation which is responsible for passing on the information."

The group adds: "Where people resign or walk out following issues of misconduct being raised, it is unlikely in many cases that the full process of disciplinary action will have been taken. It is not clear at what stage in the process it would be deemed appropriate to put people on the index and what their right of appeal would be when the incident or misconduc may not have been fully discussed as a result of their leaving or resigning."

The Scottish Council of the Scout Association feels that the index should apply only to those who have "deliberately or knowingly" caused harm to a child or children.

Irene Audain, director of the Scottish Out of School Care Network, widens the net by wondering: "Would individuals who have caused harm to another adult in the organisation (that is a member of staff physically hurting or verbally abusing another member of staff, a parent or volunteer) be placed on the index? Arguably incidents of this kind would place a child in prospective harm."

The balance between the rights of the individual and sharing information is likely to dog this legislation. Child protection consultant Susan Smith argues that "even human rights may enjoy some improvement from the proposals. They do at least have the merit of formalising various lists - official and unofficial - which are sometimes used to make a decision to appoint or not. Inclusion on such lists is often not subject to appeal and the individual may not even be given the real reason for rejection."

However, North Lanarkshire warns of possible abuses. "Given the high profile in the media of sex offenders and alleged sex offenders, there is potential for this list to be used inappropriately and with serious consequences for people who may be on the list because of suspicions rather than because incidents have been proven."

The risks are equally great for those offering evidence to place an individual on the list, argues Jim Duffy, chief executive of the Scottish Council of the Scout Association. "Anxiety will be felt by volunteers with respect to possible liability," he says. "There may be particular concern over possible identification to a person whose name is being considered for inclusion. Volunteers in particular may feel vulnerable, both physically and legally as a consequence.

"In order to encourage full co-operation in the absence of any duty to inform the index, some form of indemnity should be considered."

Ms Smith agrees. "Measures are needed to ensure that the first casualty of these proposals is not a local tennis club or playgroup taken to the court by an individual, challenging notification, under the Scottish Human Rights Convention," she warns.

"Local clubs suffer whether the challenge fails or not. Maybe the Scottish Executive, which has historically required an indemnity for the police from those who currently access criminal records checks, should offer the same protection to those they are asking to notify information to the index."

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