Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Prescribed Criteria) Regulations 2012

Wednesday 13th June 2012 Grand Committee

Considered in Grand Committee

17:43

Moved by

[Lord Henley]

That the Grand Committee do report to the House that it has considered the Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Prescribed Criteria) Regulations 2012.

Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments.

[The Minister of State, Home Office (Lord Henley)]

My Lords, the measures in these draft instruments flow in the main from the changes to the barring arrangements in the Protection of Freedoms Act, which received Royal Assent at the end of the previous Session. The second Motion, the draft order, does three things. First, it revokes previous provisions on the definition of regulated activity that are no longer meaningful in view of the new definition of regulated activity. In 2009, Ministers specified that those who provide treatment to a child or vulnerable adult, but not as the main purpose of their contact with that person, would not be within regulated activity. Such activity will not be within the new definition of regulated activity, so the exception is no longer required. The draft order also revokes a previous exception to the definition of “vulnerable adult”, because the definition of “vulnerable adult” is removed by the Protection of Freedoms Act.

Secondly, the draft order revokes a number of transitional arrangements that were specified in the fifth commencement order of the Safeguarding Vulnerable Groups Act. That order set out three transitional periods, all with reference to the commencement of registration and monitoring requirements. As the Protection of Freedoms Act repeals registration and monitoring, those arrangements are no longer required.

Thirdly, as a result of that revocation, the draft order creates two time-limited transitional arrangements, both of which will operate until the new direct check of the barred list in new Section 30A of the Safeguarding Vulnerable Groups Act is introduced. The first allows for the continuation of the provisions that permit the Independent Safeguarding Authority to provide information that a person is barred to someone who can demonstrate that they have a legitimate interest in knowing that fact. Legitimate interest must be related to safeguarding.

17:45

The second provides for the continued operation of the ISA Adult First service. This allows certain organisations that provide regulated activity relating to adults and that request an enhanced criminal record certificate with a barred list check to receive an early notification of whether that person is barred. That system enables organisations in the health and social care sectors to function effectively. We plan to commence the new definition of regulated activity and the repeal of registration and monitoring this September, so these provisions will be needed in line with that.

The draft regulations do two things. First, they revoke the 2010 regulations, which state that a controlled activity provider must ascertain whether a person is barred before deciding whether to engage that person in controlled activity. Controlled activity is work that involves less contact with vulnerable groups than regulated activity, or access to their records such as that required by hospital records clerks. The Protection of Freedoms Act repeals the concept of controlled activity. Again, that will commence in September, so those regulations are no longer necessary.

Secondly, the draft regulations make some changes to the list of criminal offences that lead to a person being barred automatically from working in regulated activity. The draft regulations add 11 new offences to both the children and adults lists, including new offences relating to people trafficking and offences under the Female Genital Mutilation Act. They remove from the lists three mental health offences which we consider do not meet the criteria for automatic barring. They also add several offences from the Sexual Offences (Scotland) Act 2009, which updated Scottish sexual offences legislation and post-dated the original regulations. Each offence from that Act will be added to the list on which the corresponding offence in England and Wales is now placed. The draft regulations also make a number of minor and technical changes.

These instruments help to ensure that our scaling back of the barring arrangements to more proportionate levels can be properly realised, and also help to simplify some of the complex legislation in this area.

[Baroness Walmsley]

My Lords, first, I apologise to my noble friend for missing the first half-minute of his presentation. He managed to polish off the previous group much more quickly than the Government Whips’ Office had predicted and caught several of us by surprise. I hope that he will forgive us.

My noble friend will recall that our main concern about the section of the Protection of Freedoms Act to which the orders relate was not the matter that we are discussing today. Given that the Act has come into law, we recognise that the regulations are needed and therefore support the Government.

However, I take this opportunity to raise a very closely related matter and ask my noble friend whether he would kindly agree to a meeting to talk about it further. In brief, my concern is about the draft statutory guidance to chief officers of police, which has been released to a limited number of relevant stakeholders. The Minister will remember that, following the removal of the controlled activity category, my colleagues and I supported the noble Lord, Lord Bichard, in his amendment to ensure that employers—for example, colleges of further education—could obtain the information they need to enable them to make safe appointment decisions about posts other than those involving regulated activity. The issue is that, following the passage of the Act, employers will not be informed whether applicants for posts that are not regulated are on either of the barred lists.

On 12 March my noble friend the Minister promised that the statutory guidance,

“will allow the ISA or the Disclosure and Barring Service to give to the police information which led to a bar and, if the police judge it relevant to the post applied for, the police may disclose it on an enhanced certificate”.—[Official Report, 12/3/12; col. 53.]

This assurance encouraged the noble Lord, Lord Bichard, to withdraw his amendment. It is now crucial that the final version of the statutory guidance appropriately fulfils this undertaking from the Dispatch Box, which I am sure my noble friend gave in good faith. Sadly, the draft that has been circulated is not considered by some of those stakeholders to be adequate guidance for police officers to understand the nature of the Minister’s undertaking and the consequences of their decision-making. The guidance must make clear through a specific reference that the ISA and the DBS can inform the police about the information that led to the bar, and that the police should request such information from them. This is particularly important where there was no criminal charge in the case.

Secondly, there needs to be clarity about circumstances where the post applied for does not fall under regulated activity but the employer is entitled to receive enhanced criminal records information, including the information to which I have just referred that led to a bar, if the person is indeed on a barred list. I am sure the Minister will agree that to carry out Ministers’ undertakings, statutory guidance needs to assist those for whom it is meant. I hope therefore that he will be so kind as to agree to a meeting to discuss the detail of this draft guidance.

[Lord Bichard]

My Lords, I will make a contribution, although I feel doubly constrained, partly because I was not here at the beginning of the debate for the same reason as the noble Baroness, Lady Walmsley, and partly because I should actually be in the Chair shortly, although I suspect that by the time I am there this will be completed. I merely rise to say that I hope the Minister will concede to a meeting, because I share the concerns that have been expressed. That is all I need to say today.

[Baroness Smith of Basildon]

My Lords, I put on record my comments from the previous debates, and I am grateful to the Minister for his offer of briefings from his department. Those would be very helpful, particularly on some of these more complex orders. I also find it difficult when going through an order if many of the references are to other legislation and you have to hunt through that legislation to find out exactly what they relate to. The Explanatory Notes are quite inadequate to address the issues that have been raised. However, his department has been quite helpful. I have spoken to officials at the Home Office and received some more information that has helped me with the comments that I wish to make today.

The issue covered by the first order was a contentious one during debate on what is now the Protection of Freedoms Act, and we were pleased by the government concessions that were made. I think that originally the Government had intended that there would be no automatic barring but that there would be an application and a process by which people could be barred. The Government changed that, and the process by which there is an automatic bar but a right to appeal is a better one.

During debate in your Lordships’ House, the noble Baroness, Lady Stowell, made it clear that the Government had,

“listened carefully to the concerns raised in this House and by organisations such as the NSPCC”,

and had,

“concluded that where someone has been convicted of a crime on the list of the most serious offences—that is, an offence that leads to an automatic bar without the right to make representations—the Independent Safeguarding Authority should bar that person whether or not they … intend to work in regulated activity. An automatic bar without representation would apply to convictions for the most serious sexual and violent offences, such as, in the case of the children’s barred list, the rape of a child. In these cases, there are no conceivable mitigating circumstances—that is why representations are not permitted—and there can be no question that the person is a risk to vulnerable groups”.—[Official Report, 15/2/12; col. 804.]

That seems to be saying that the test for someone who has been automatically barred to have the right of appeal to that barring could be mitigating circumstances. I asked the Home Office for a list, as there has to be a strong justification for removing someone from automatic barring through a process by which they can be barred but may appeal against that barring.

My understanding of the current position is that if someone is automatically barred, they have a right of appeal and the bar can be removed. Under the Protection of Freedoms Act, it is the other way round. If someone is going to be automatically barred, they have a right to appeal first and must do so within a period of eight weeks. That appeal has then to be considered. If the information that I have been given by the Home Office is correct, there could be a considerable period before someone who was subject to an automatic barring with appeal could be given that barring order.

I am grateful to the Minister and his officials for providing me with a list of the offences that are changing. I am pleased to say that rape, sexual assault by penetration, the rape of a young child and sexual assault on a young child by penetration all remain offences that will be subject to an automatic bar. Where I struggle is with offences that, although they are said to be subject to an automatic bar, have a right of appeal. The noble Baroness, Lady Stowell, has said in the House on a previous occasion that there would have to be mitigating circumstances for an appeal against the bar to be allowed. Can the Minister explain what he or his officials think is a conceivable mitigating circumstance that would allow someone to appeal against the bar?

One of the offences is in Section 20 of the Sexual Offences (Scotland) Act 2009: sexual assault on a young child—that is, a child under the age of 13. I am told by officials at the Home Office that, although only sexual assault is referred to, it has to be sexual assault with penetration. I find it difficult to understand any conceivable circumstance where someone who has been convicted of a sexual assault against a young child with penetration could be allowed to appeal against a bar. I presume, because the offence has been included in the list before us today, that the Government think that there are mitigating circumstances.

The same goes for an offence such as causing a young child to participate in a sexual activity. What conceivable mitigation can there be for someone to appeal against a bar if they were convicted of that offence? The list also includes: causing a person to engage in sexual activity without consent; trafficking people for sexual exploitation; and even female genital mutilation—an individual convicted of that offence would be allowed to appeal against the bar. I struggle to understand why that should be so. Given, as I have said, that the Protection of Freedoms Act allows a person to appeal against a bar being imposed in the first place, there could be a period of several months where someone convicted of some of the most serious sexual offences against adults or young children under the age of 13 might not be subject to a bar.

I would be grateful if the Minister could answer those questions, because I remain dissatisfied. I may have the wrong information or have misunderstood something, so if the Minister is able to reassure me, it would be helpful. If he is not, I may want to pray against the order so that we might tease out further explanation from the Government. At the moment, on the basis of the information that I have been given, the order gives me enormous cause for concern.

[Lord Henley]

My Lords, perhaps I may begin by addressing the problems that the noble Baroness, Lady Smith, has had with the way in which orders are dealt with generally. I appreciate that it is often difficult for the Opposition to cope with difficult orders such as this, which require a lot of cross-referencing from one to another. Even as a lawyer, I find all these things, particularly when one is amending one Act that has consequences on another, always very difficult. As an anecdote, I can tell the noble Baroness that the late Lord Underhill, whom she will remember fondly, had a wonderful technique whereby, if in doubt on some difficult order, he would read out the Explanatory Memorandum and say to the Minister, “Now explain that”. It worked quite well, causing great confusion for a number of Ministers who thought that they had grasped everything but had not looked at the simple Explanatory Memorandum, which was probably not as simple as it should have been. I note what the noble Baroness says about that. If noble Lords come to us in advance to let us know, we will, as always, be happy to offer briefing. I also take up the point that I made earlier about the Home Office website, which is probably going to be engraved on my heart for many years to come.

18:00

I will now deal with the points put by the noble Baroness, Lady Walmsley, and the noble Lord, Lord Bichard, on the passage of the Protection of Freedoms Act and the various assurances that I gave at the Dispatch Box on statutory guidance, which at that time was not available. The simplest thing I can say is that I am more than happy to have a meeting with my noble friend, the noble Lord, Lord Bichard, and no doubt one or two other Peers, should they wish to have one. Whether the meeting should be with me or with one of my colleagues is another matter. However, I gave the assurance at the Dispatch Box and it is probably right that I should hold that meeting. I hope that we can deal with noble Lords’ concerns about the statutory guidance. We need the guidance and it must go out to chief officers of police to make sure that the order operates as we would wish. I hope that my office will be in touch with both noble Lords to arrange that in due course.

I turn to the points raised by the noble Baroness, Lady Smith, concerning appeals and so on. I am very grateful to her, first, for her acceptance that the Government moved during the passage of the Bill—now the Protection of Freedoms Act—and for the fact that she was pleased about the concessions that we made. However, she had detailed concerns about the whole appeals structure and about whether there should still be an automatic right of appeal after being barred. It was and still is the case that there is a right of appeal to the tribunal after the bar, and that is as it should be. We are now allowing representations, separate to the appeals, to be made about automatic bars before the barring decision—not after it, as now—and I hope that that deals with her concerns.

The noble Baroness also quite rightly asked what “mitigating circumstances” would be, and she then gave some examples, including from the Sexual Offences (Scotland) Act 2009. She was right to pick out, for example, Section 20 concerning sexual assault on a young child, which, as she explained, has to involve penetration. In those circumstances it is rather difficult to think what the mitigating circumstances might be. However, I think she would be the first to accept that there might be mitigating circumstances in, for example, Section 28, which concerns having intercourse with an older child who is very near the age of consent or whatever. That might be one of those borderline cases.

However, I accept that it can be difficult to think what the mitigating circumstances might be, and we are obviously going to be very careful about which offences are in the “without representation” lists. Those lists are short and currently account for only about 7% of all bars, apart from some of the new Scottish offences, which correspond to England and Wales offences already on that list. However, we are not making any amendments to the mitigating circumstances. Difficult though it might be to think of any—and at the moment I cannot—speaking as a lawyer, I can say that one has to accept that there might be occasions when there are mitigating circumstances. I think the noble Baroness has all the things listed in, for example, the Sexual Offences (Scotland) Act and other legislation. In some it is quite easy to see where the mitigating circumstances are, although in others it is exceedingly difficult. In fact, one has difficulty—

[Baroness Walmsley]

My Lords, I have the advantage of some other Members of the Committee in having taken part in the passage of the Act. I well remember that some Members on the same Benches as the noble Baroness, Lady Smith, agreed that where the ages of the perpetrator and victim are very close and where the age of the perpetrator is very young, there may be mitigating circumstances.

[Lord Henley]

That was why I referred to Section 28 of the Sexual Offences (Scotland) Act 2009, which concerns having intercourse with an older child where the ages of the perpetrator and victim are very close and it is marginal.

I was trying to say that if you take the more extreme example, rightly given by the noble Baroness, of sexual assault on a younger child, it is very difficult to see where there might be mitigating circumstances but, in law, one must accept that there might be. I would rather the noble Baroness did not ask me to explain what they might be. It is possible that there could be mitigating circumstances, although it is very unlikely, other than in the sort of case to which the noble Baroness refers. In those circumstances, we ought to leave the law as it is, because it would be for the appropriate authority to decide whether there were or were not mitigating circumstances. The noble Baroness wishes to intervene.

[Baroness Smith of Basildon]

I am grateful to the Minister. He tried very hard to think of mitigating circumstances and has been unable to do so. The noble Baroness, Lady Walmsley, refers to the age difference. I am very well aware of that. As the noble Lord said, Section 28 of the Sexual Offences (Scotland) Act refers to sexual intercourse with an older child. If someone is convicted, we are not talking about a borderline offence where the police do not know whether to prosecute. If someone is convicted of sexual assault on a young child with penetration, I cannot understand what mitigating circumstance there could be.

There are other offences here, such as causing a person to engage in sexual activity without consent or trafficking people for sexual exploitation, where I do not understand what the mitigating circumstances might be. Given that regulated activity is now more tightly drawn, we should be more careful to ensure that those who are convicted of such serious sexual and violent offences cannot work with vulnerable people. Female genital mutilation is another example where I find it hard to conceive that there could be mitigating circumstances in which that person could undertake a regulated activity. It is not just violent and sexual offences; there are others. I wonder whether the balance has moved too far. I understand that the Government did not want so much automatic barring but we seem to have moved a little too far in the wrong direction. I entirely accept the Minister’s comment that there are greyer areas where there may be some mitigation, but there are others where I struggle to understand what the mitigation might be.

On the other point I raised about the changes under the Protection of Freedoms Act—that people can appeal before they are barred—that creates an additional delay before the barring takes place. An individual convicted of such an offence has up to eight weeks to lodge an appeal against being barred. I understand from the Home Office that, once they make that appeal to the ISA—or the Disclosure and Barring Service, as it will become—that will take some time and the ISA may have to go back for additional information before it can make a decision. Therefore, we could be talking about several months before someone is barred. The current position, as the noble Lord rightly stated, is that the bar is immediate and then there can be an appeal against it, which seems to me a much fairer way to proceed. Given that the Government have changed from that to the new position, where there will be a delay, every caution should be taken to protect young and vulnerable people from those who are convicted of serious sexual offences. I am not convinced that the order gets the balance right. That is my concern.

I appreciate all the comments that the Minister has made, but he has not really done enough to satisfy me that the correct balance is reached. If there is anything else that he can say, I shall be happy to hear from him, but there are a number of offences here. He has the same list that the Home Office helpfully supplied to me, and I look at it and worry that there are people convicted of these offences who will not be subject to a bar because they have the right to appeal.

[Lord Henley]

I suspect that we are again getting into detail that might be more easily discussed in a meeting with the noble Baroness and possibly others. For example, she went into the various offences in the Sexual Offences (Scotland) Act 2009, and we talked about Section 20 concerning sexual assault on a young child. My understanding, certainly under the English rules, is that the sexual assault of a young child with penetration is auto-barred without representation—that is in draft regulation 3(3)—but sexual assault involving sexual touching is with representation and therefore is treated slightly differently.

At this stage there is a danger of getting into a state of confusion about this, which is why I am saying: “Can we go ahead with this Motion at the moment?”. In due course we will have to put it to the House because that is the proper process, but before we do that it might be worth the noble Baroness having a further conversation with me. I assure her that there is no need for her to pray against the Motion; these are affirmative regulations so there is nothing to pray against as the Motion has to go to the House. However, we could delay the next stage until we have a further discussion about this, which might be the proper way to go ahead. I want to give the appropriate assurances to the noble Baroness that her concerns are being dealt with. Would that meet her requirements? We move this at the moment so that the Committee has considered it; we put off the next stage for a week or so, otherwise we will be moving it next week; and we have a meeting and make sure that we get things straight in such a manner that the noble Baroness is happy with what we are doing and there are the appropriate safeguards that she wishes to see.

[Baroness Smith of Basildon]

I am grateful to the Minister for the offer. I think it would be helpful to meet before this goes before the House. I had already suggested to the Government Whips Office that they might not want to put it before the House tomorrow because that would be rather too soon, but the opportunity to discuss the areas of concern in detail is very welcome and I am grateful for that offer.

[Lord Henley]

My Lords, since we seem to have reached a degree of agreement on this, I will formally move the regulations at this stage and then move the order.

Motion agreed.