Rules on background checks to be relaxed in emergency amendments over article 8 fears

Ministers have been forced to consider emergency amendments to the law on Scotland’s system for protecting vulnerable citizens after it emerged higher level criminal background checks are so excessive they might breach applicants’ article 8 rights under theEuropean Convention on Human Rights (ECHR).

Such checks must be obtained by police officers, teachers and care workers as well as others in positions of trust and are given to prospective employers.

Ministers are expected to change the law today by issuing emergency orders that will allow hundreds of thousands of people the right to have their criminal convictions made private after a fixed period of time has elapsed, including in cases where they work with vulnerable groups.

Under the previous system for higher disclosures, all convictions would be known to employers irrespective of how long ago the crime was committed.

The new rules will see only the most serious made available – including rape, murder, treason and abduction.

A number of other offences including drug dealing, fireraising, and perjury which previously would have been made known will be wiped clean after either seven-and-a-half years or 15 years, depending on whether the conviction was secured when the offender was an adult or not.

Education Secretary Angela Constance said it was essential the government did not fall foul of the ECHR. The changes are being made following a ruling of the Supreme Court last year which found the rules in England and Wales to be excessively 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 judgment 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.”

The new rules would see those with convictions that would normally be disclosed given the opportunity to appeal to a sheriff who would be able to rule they are irrelevant and that employers should not therefore know about them.

But the police will still be able to tell employers about any information they think is relevant, for example where someone is suspected of committing crimes or has faced charges but not been convicted.