Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012

Monday 26th November 2012 Grand Committee

Considered in Grand Committee

16:00

Moved by

[Lord Taylor of Holbeach]

That the Grand Committee do report to the House that it has considered the Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012.

Relevant document: 8th Report from the Joint Committee on Statutory Instruments

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, I am sure that the Grand Committee will be aware that the Government have introduced effective measures to scale back the former vetting and barring scheme and to return to a more common-sense approach to handling criminal record checks through the Protection of Freedoms Act 2012. Measures in the Act received widespread support.

Our first priority remains to safeguard children and other vulnerable groups from those who may seek to cause them harm. The changes recognise that we need to do that in a way which does not discourage volunteers from working in these areas and without imposing unnecessary bureaucracy. As part of the process of change, and to help provide a more effective service to the public, we are combining the work previously carried out by the Criminal Records Bureau and the Independent Safeguarding Authority. The draft order before the Committee brings about the transfer of functions to a new single body, known as the Disclosure and Barring Service, in order to achieve this.

The necessary provisions of the 2012 Act to establish the DBS as a legal entity were commenced on 15 October. It is a new non-departmental public body, independent of government but overseen by the Home Office as its sponsor department. The DBS is expected to start its operations on 1 December, subject to the approval of this order. The order transfers to the DBS all the previous functions of the Criminal Records Bureau under Part 5 of the Police Act 1997. These are powers for the Secretary of State to consider applications for, and to issue, criminal records certificates—powers currently exercised on behalf of the Home Secretary by the CRB. Some functions under the 1997 Act are retained by the Home Secretary—setting fees for applications, for example, or issuing certain guidance.

The order also transfers all functions of the ISA under the Safeguarding Vulnerable Groups Act 2006 to the new DBS. The ISA considers whether individuals should be barred from work with children or other vulnerable groups, taking account of criminal records and other relevant information, such as that provided by employers. It maintains the barred lists and has powers to review barring decisions and to remove barred persons from the lists. All these functions will be taken over by the DBS, which will take barring decisions independent of Ministers. It also provides for the dissolution of the ISA once the functions have been transferred. Similar changes are made to enable the DBS to be the barring authority for Northern Ireland.

By means of a separate order, subject to negative resolution, certain core functions are retained for the DBS. The ISA core functions are set out in the 2012 Act and are intended to ensure the independence of decision-making by the new DBS for all barring decisions. The CRB core functions are prescribed and mainly concern powers to verify identity of applicants, including by checking other publicly held records, and to receive and process police criminal records and local information.

The creation of the DBS will involve the transfer of staff from CRB and ISA to the DBS through a statutory staff transfer scheme made under the 2012 Act. Staff will be notified in writing that they will transfer to the DBS in line with the requirements of the Cabinet Office statement of practice on staff transfers in the public sector. Staff and unions have been consulted about the transfer and have received clarification about their terms and conditions, continuity of service, future staff numbers and the likely impact on jobs.

The purpose of the order is to bring together the work of the Criminal Records Bureau and the Independent Safeguarding Authority into a single body. I am very pleased to have been able to visit both organisations, the CRB in Liverpool and the ISA in Darlington, and to see at first hand the important work they undertake. I thank the staff of those organisations for all the hard work that they have put into planning for a successful merger to the new DBS. Particular thanks are due to Sir Roger Singleton, Adrian McAllister and Anne Hunter of the ISA, who have provided effective leadership of that organisation and who will now be stepping down from their posts. Congratulations are due to Adrienne Kelbie and Bill Griffiths, the new chief executive and chair of the DBS.

The policy underlying the order was fully debated during the passage of the 2012 Act. It reduces bureaucratic requirements for a central registration scheme, amends the scope for regulated activity to which barring applies, and strengthens the criteria for disclosure on local police information. These changes will make the system fairer and more proportionate but they will also make sure that criminal record checks remain available to those who need them. The changes are part of a rebalancing of the responsibilities for safeguarding children and other vulnerable groups between the state, employers and other organisations. The order before the Grand Committee brings about the key changes which will enable the DBS to start its important work in December. I commend the order to the Committee.

[Baroness Walmsley]

My Lords, I thank my noble friend the Minister for explaining this statutory instrument. I have no reason to object to the streamlining of these organisations. It makes sense to bring together the collection and dissemination of criminal records information and barring decisions and to maintain those lists. However, I turned to the Explanatory Memorandum to have a look at what it says about consultation and I noted that it says that the changes are consequential on the Government’s remodelling review, on which there was consultation. Many of us who were part of that consultation were most grateful to my noble friend the Minister’s predecessor, the noble Lord, Lord Henley, at the Home Office, who was kind enough to spend quite a lot of his time consulting us. The problems identified by those who were concerned about the original legislation have been recently compounded. Employers in the further education colleges sector and the amateur sports organisations sector were particularly concerned about the reduction in the number of people who were going to be subjected to revelations about their background.

Perhaps I could summarise my remarks by asking my noble friend the Minister to tell the Committee how he feels that these new arrangements will help to prevent recent situations such as the Jimmy Savile situation and the terrible stories that came out of the Bryn Estyn school in North Wales some years ago. Those situations related to people who had never committed a crime and therefore they did not have a criminal record. So I would like to know how this streamlined arrangement will help to protect children in those circumstances.

[Baroness Smith of Basildon]

My Lords, I thank the Minister for his explanation and the information he gave in speaking to this order. I appreciate that orders of this kind often necessitate a long list of amendments. There is always the hope that the Explanatory Notes will make them clearer ... but they rarely do. I liked the comment in the Explanatory Note on page 20:

“Chapter 2 makes amendments to the principal enactments which are consequential on this transfer of functions and Chapter 3 makes amendments to other enactments which are consequential on this transfer of functions. Chapter 4 makes supplemental provision”.

It then goes on. It is quite a minefield for anyone to negotiate exactly what the order does. I know that the Government say in the Explanatory Notes that a consolidation order is not necessary but I wonder whether there should be a rethink on that. Just on page 2 of the order, there are six different pieces of legislation; there are also a number of orders and other secondary legislation—rules, procedures and regulation—referred to, which all concern amendments.

Those who need to consult this legislation should be able to do so as easily as possible and with the utmost clarity. Many people have a professional responsibility to enact this legislation and, presumably, need to be aware of it all and any other changes made to it since 1997. I wonder how much legislation somebody will have to have to hand to work their way through the minefield of amendments in this order and in other provisions. I do not know whether the legislation referred to on page 2 has previously been amended. If so, it seems quite a complex task for anyone and I am interested in the guidance that is being issued to professionals alongside this order. When and how will that be made available and can it be made available to those attending today’s Committee? It is crucial, particularly given the change of name and the merger of the two organisations, that there is some professional and public understanding and awareness of all the different changes being made. It would be helpful if the Minister could say something about publicity or any other measures being taken to alert the public and professionals to the changes being made.

The Minister explained the broad outline of the order, which is basically that the Disclosure and Barring Service—not a particularly catchy name; I hope people understand what that is going to mean—will take over the powers that were previously the responsibility of the Secretary of State under Part 5 of the Police Act 1997, the Safeguarding Vulnerable Groups Act 2006 and the safeguarding vulnerable groups order of 2007. It was helpful that the Minister gave some description of the functions that will transfer, and those that will not, because there is concern that functions are being transferred from the Secretary of State to the newly merged organisation—the DBS. As originally intended in the legislation, such responsibilities are those of the Secretary of State, with the holder of that office being accountable to Parliament. Given the number of issues that have been raised about failures in the system to fully protect vulnerable children and vulnerable adults, it is clearly advisable that parliamentarians should not lose an opportunity to ask questions or seek Statements from the Secretary of State or a government Minister on these issues, if they so wished.

I have a question about accountability issues. Will that accountability and scrutiny role still be available to parliamentarians? In particular, if Members of either House are asking parliamentary questions of Ministers, will they in future merely be referred to the head of the DBS and not be answered by Ministers? Clearly, the original intention of Parliament was that there should be a direct responsibility to Parliament for those functions. The issue is whether it is appropriate for those powers to be handed to a new, separate body, unaccountable in parliamentary terms, through secondary legislation. That is my point about questions and Statements. Can the Minister also say anything about the scrutiny arrangements that will be put in place to oversee the performance of those functions?

The SI lays out the legislative steps required to merge the two bodies. The Minister spoke to that but can he update us on the practical steps being taken? He said something about it, but the DBS will inherit powers from the ISA and it would be helpful to know what practical, step-by-step arrangements are taking place. It was helpful that the Minister referred to both sites. Will the two sites operate as they do now or will there be a movement and integration of staff and functions across them? Is the new management structure now in place? He referred to the chief executive and chair, but does that go further down the organisation? How much progress has been made on the new IT system? We all know that there are always issues with new IT systems. Is it possible to update the Committee at this stage on the costs related to it and when it is expected to be fully operational?

16:15

Part of the reason for the merger is reduction in costs, and Ministers have been very clear on that being a reason. Is there any information on when those cost savings will be realised, where they will fall and what proportion of expenditure is expected to be saved? When the Bill was enacted, it was meant to reduce drastically the number of posts regarding CRB checks, as the noble Baroness, Lady Walmsley, said. The Minister will know of our concerns around that; reducing those occupations or positions classified as regulated activity has given us cause for concern. I shall not rehearse the arguments, since we made them many times during the passage of the Bill. Obviously, we support and welcome any reduction in parts of the system that are overly bureaucratic or unnecessary, but the first concern at all times has to be the protection of children. Recent events and the publicity around them make that clearer than ever. That is why I raised the issue about professional and public awareness.

As I say, I shall not rehearse the arguments about concerns about the reduction in the number of posts requiring checks, but any system needs clarity. I am concerned that there may be a lack of clarity among professionals and the public at the moment. Can the Minister say whether the number of CRB requests has gone up or down since the organisations began the process of merger? Has there been an increase or a reduction? There are reports, and it has been raised in the other place as well, that confusion around the freedoms legislation has led to a 20% rise in the number of requests to the ISA. If that is accurate—the Minister can tell me whether it is—it will be helpful to know what steps the ISA has taken to deal with this. Will the transfer to the DBS and the new IT system affect that in any way, or will the transfer be affected by any increase that has taken place?

The noble Baroness, Lady Walmsley, referred to the consultation. I sometimes think that we should stop talking about consultations, because all that it means is that people consult, Ministers consult and local authorities consult, and then do what they were going to do anyway. There are often very few changes made as a result of consultation. But the Minister said that there had been consultation of staff, including trade unions, and that is in the Explanatory Notes—so they have been informed and consulted. What form did that consultation of staff take, and what was the response? It is always helpful if there is something in the notes about the consultation that has taken place, if we are able to get some response. Could he also say whether any redundancies are pending or likely, and what the restructuring will look like for the organisations?

I appreciate that there are a number of questions there, but if the Minister can answer them it will be very helpful.

[Lord Taylor of Holbeach]

The noble Baroness has been true to form in providing the Minister with lots of questions—quite rightly—to challenge his knowledge of the subject. I have taken quite an interest in this particular area, because, as Minister for Criminal Information, my Home Office responsibilities include the current CRB and ISA and will include the DBS. So I hope that I can reassure the noble Baroness.

[Baroness Smith of Basildon]

Perhaps I could correct something that the Minister said—that I am asking questions to challenge his knowledge of the subject. That is really not why I am asking them; I never doubt his knowledge of the subject. It is just because there are issues, when I am reading through an order like this, which occur to me and to which I would like answers. There is nothing more sinister to it than that.

[Lord Taylor of Holbeach]

I do not attribute any base motive to the noble Baroness. However, it sets me on key, because these are legitimate questions, as she rightly points out, to which everyone has the right to know the answer. It has been helpful to be able to explain the main purpose of the transfer of functions order, to put it in the context of the change of management that will flow from it. As we are making a substantial change, in the sense that the two bodies are being merged into one, it is important that I have the opportunity to explain it to the Committee. We are trying to bring about reform. We have tried to avoid unnecessary bureaucracy to encourage volunteering and employers and other organisations rightly to share responsibility for the adequate safeguarding of children and other vulnerable groups.

We need to move away from a tick-box mentality. Employers think that a criminal records inquiry is all that they need to check on the desirability of employing someone. That leads in quite well to the comments made by my noble friend Lady Walmsley, who has been assiduous in dealing with these matters. I am pleased that she paid tribute to the engagement of my predecessor, the noble Lord, Lord Henley, in this issue. This change is not designed, of course, to weaken checks. The noble Baroness mentioned this in the context of various current investigations and, in truth, these matters should have been promptly reported to the police. She also mentioned the absence of criminal records of particular individuals. This shows that effective management and supervision of volunteers and professionals within the group is key: the checks go only so far. Effective management and supervision of all volunteers is one of the reasons why we can have an updating service and a capacity for people to volunteer more easily. However, the people who are responsible for managing volunteers have an enhanced responsibility to make sure that they perform their tasks in a proper way and do not exploit them for more sinister purposes.

The noble Baroness, Lady Smith of Basildon, asked about guidance. She made a little fun of the complexity of the order. It is complex—it is the kind of document that drives me mad—and, as I am a simple country chap, I find this stuff largely beyond me. However, the law needs to be regularised and this statutory instrument is there to regularise the legal framework. The key is how the public see these matters. They do not see them through a statutory instrument but through what we tell them about the service. Promoting the CRB update service will be important as a part of this.

We have highlighted these changes through road shows and both organisations have been communicating regularly with stakeholders about the changes. So people who regularly use the facilities have been kept in the picture. I have been impressed by the way in which both organisations see themselves as supporting the employers and managers of the people who are part of the information service they provide.

It is important to mention—I alluded to this earlier—the role of the Home Secretary in connection with a non-departmental government organisation. The Home Office will continue to answer questions about the new body and its accountability from Members of Parliament in another place and Members of this House. We will monitor the progress of this merger and I hope, in a year’s time or so when the system has settled down, we might be able to persuade the usual channels to hold a debate on how the service is functioning. I hope I have been able to reassure noble Lords on that.

As for staff moving from Liverpool and Darlington, obviously this would be a cause for concern but it is not part of the current plan. The chief executive-designate and the chair-designate have confirmed that they do not anticipate doing anything about changing the two site locations in the first two years. This position has been shared with staff and the TUC. They will continue to seek some flexibility from staff over travelling between the two work locations to attend meetings so that they can establish an effective organisation, but that is going on already and people have been working well together. I have gathered that there is a sense of ambition about the new service from both the CRB and the ISA.

Will there be efficiency savings? There will be some efficiency savings but, more to the point, it provides a single focus for a complementary service that will be found within the CRB and the ISA. We are not looking to make any particular changes to the structures other than those that have already been consulted on. As the noble Baroness would expect, TUPE provisions will apply in these circumstances but there are no redundancies, so it has been a matter just of consultation and having regular briefings on how the future organisation might work to provide an integrated service.

The noble Baroness asked about numbers and whether there had been an increase in referrals to the ISA. I was not aware of that. Although I was shown some figures, I did not bring them with me today. I know that there was a slight rise in CRB figures over the summer but it was a modest percentage, which may have been because of the increased activity around the Olympics. I know we have figures from CRB up to September. If I may, I will write to the noble Baroness and give her the full set of figures on that.

Meanwhile, I hope noble Lords are content to commend the order to the House by approving this draft order.

Motion agreed.