SCOTLAND'S system for protecting vulnerable citizens is in chaos after it emerged it is likely to breach human rights legislation forcing ministers to launch an unprecedented scramble to change the law within two days.
The administration of higher level criminal background checks, which must be obtained by teachers, police officers, care workers and others in positions of trust and provided to employers, has been dramatically suspended amid fears it is so draconian that it may fall foul of article eight of the European Convention of Human Rights, which guarantees respect for privacy.
In a move that is exceptionally rare at Holyrood, ministers are set to change the law by Thursday by issuing emergency orders that will give hundreds of thousands the right to have their criminal convictions made private after a set period of time, even in cases where they work with the most vulnerable groups including young children or the disabled.
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Campaigners for effective rehabilitation said the law change could affect the one in three men and one in ten women in Scotland who have criminal records, when minor driving offences are excluded. Currently 1,000 of the certificates are issued daily.
While under the previous system for higher disclosures all convictions would be made available to employers no matter how long ago offences took place, under the new rules only the most serious, including murder, rape, abduction and treason, will always be provided.
A series of other offences including public indecency, perjury, fireraising and drug dealing which would previously have been disclosed will be wiped after either seven-and-a-half or 15 years, depending on whether the offender was an adult at the time of conviction.
Angela Constance, the education secretary, said it was essential the Government did not breach human rights legislation. The move to overhaul the Scottish system follows a ruling from the UK Supreme Court last year, which found the rules in England and Wales over disclosures of minor convictions and cautions were too strict.
Ms Constance said: "None of this is entirely comfortable to us as individuals... as the Government we are front and centre, it's about public protection. But we have to learn from case law and UK Supreme Court judgement to ensure our system is more proportionate."
She added: "The amended system will restrict the requirement for disclosure so that not all spent convictions will be required to be routinely disclosed... The Scottish Government is focused on ensuring a system of checking the background of people who want to work with vulnerable groups or in other sensitive roles continues to protect the public. But we must balance that public interest with the rights of individuals to have their private life respected."
Under the rule changes, those with convictions that would usually be disclosed are also to be given the opportunity to appeal to a sheriff, who will have the power to order they are not relevant and that employers should therefore not be made aware of them.
However, the Police will still be able to inform employers of any information they believe is relevant, for example if an individual has been suspected of committing crimes or repeatedly charged without being convicted. Under the Protecting Vulnerable Groups scheme, which was introduced in 2011, Disclosure Scotland will retain the ability to ban certain individuals from working with children.
Richard Thomson, director of the charity Recruit with Conviction, a Scottish non-profit organisation which promotes work opportunities for people with criminal records, said the changes would come as a huge relief to many whose lives continued to be affected by a crime they may have committed decades previously.
He said: "There is a massive stigma attached to a criminal record. Individuals can deselect themselves from applying for jobs or voluntary work because they know this will be dragged up. Evidence shows that even years after being convicted of a minor offence, people are still being affected."