Wanless Review
Baroness Walmsley Excerpts(9 years, 6 months ago)
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Baroness Walmsley (LD)
I thank my noble friend the Minister for the Statement and I particularly welcome the assurance that, in future, files in relation to child abuse will be marked with the significance they so richly deserve, because they are about such a horrible crime. In relation to the last paragraph of the Statement, does my noble friend recognise that the inquiry panel is not the only opportunity for the survivors of child abuse to make their views known? Is he able to tell me when the public consultation on mandatory reporting will be launched? If not, I am sure he will write to me. Finally, is the Home Office working with other relevant departments to consider how budgets should be deployed in the future? I ask this because, as we carry out all these inquiries, it is absolutely certain that a whole lot more child abuse that was previously hidden will be exposed through the sanitising effect of daylight. That means an awful lot of survivors will require services, which will cost money in the short term but save it in the long term.
Lord Bates
I am grateful to my noble friend, and I shall respond to her with three brief points. The first is on record-keeping. Very specific recommendations were made by Richard Whittam and Peter Wanless, all of which have been accepted. We are looking to improve the system. The second refers to mandatory reporting. We were discussing this with officials just yesterday and we are looking to work with my noble friend on the terms of the inquiry and will seek her expertise on how to set it up. On budgets, the Home Secretary has said that she recognises that, as we lift this stone, additional burdens will be placed on many agencies, chiefly the police in the first instance. She is discussing that with the national policing lead, and by inference she remains open to the statement that the police may need more resources.
Child Abuse Inquiry
Baroness Walmsley Excerpts(9 years, 6 months ago)
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Baroness Walmsley (LD)
I thank the Minister for repeating the Statement. I very much welcome the elements in it that refer to how the victims will be treated in the future. There will be liaison with them; their support will be sought; and measures will be put in place to ensure that the experience of giving evidence to the inquiry will cause them as little pain as possible, though inevitably it will cause them some pain.
As well as hearing from the victims, there are many thousands of well meaning, good people who have never done any wrong, working in the organisations that deal with children all over the country. I hope that the inquiry panel will listen to some of those people. In my experience, if you want to know what is going wrong in an organisation, you can do little better than talk to the staff. Of course, there are people who have things to hide; but the vast majority of people who work with children do so because they care about children and want the best for them.
On the appointment of the new chairman, I hope that the Government will look north of Watford before they look abroad—Newcastle rather than New Zealand, Carlisle before Canada. Many reputable members of the judiciary would be very well qualified to do this job. Although we can learn lessons from abroad, I do not think that it is necessary to find someone from abroad to chair this. Will the Minister confirm that the terms of reference will allow the committee to look at the experience in other countries and see whether there are lessons to be learnt that might be applicable to our situation in the UK, to help to protect children better than we have in the past?
Finally, I ask the Minister about the status of the inquiry. It has been said by the Government, several times and very clearly, that if the chairman feels the inquiry should be made a statutory inquiry under the Inquiries Act 2005, that will happen. I am most concerned that, if that happens, the inquiry will be able to call in evidence and files from whoever it feels will benefit the inquiry and can compel those people, under threat of legal action—in other words, put them in contempt of court if they fail to co-operate with the organisation. Will my noble friend ensure that that happens?
Lord Bates
I appreciate that question from my noble friend. That comes to one of the reasons the inquiry was set up on a non-statutory footing at the start. Because one is dealing with really sensitive cases and a lot of young people who are very damaged, one wants to give them maximum freedom to approach the inquiry rather than be in a courtroom setting, which has its own set of intimidations—although, necessarily, legal advice is there. This inquiry was meant to be accessible to people. We are not anticipating that the inquiry will change to a statutory footing under the Inquiries Act, but that option remains open. The Home Secretary has of course made it clear that, to assist the speed of the review, it is very important that we do not reinvent the wheel and that we draw upon the vast literature and evidence already there in a way that can inform the decisions quickly, whether that be from this country or other countries.
Serious Crime Bill [HL]
Baroness Walmsley Excerpts(9 years, 6 months ago)
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Baroness Walmsley
“Mandatory reporting of abuse in relation to regulated activities
(1) Subject to subsection (7), providers of regulated activities involving children or vulnerable adults, and persons whose services are used by such providers being persons who stand in a position of personal trust toward such children or vulnerable adults, who while such children or vulnerable adults are in their care have reasonable grounds for knowing or suspecting the commission of abuse on such children or vulnerable adults while the same are in their care whether such commission of abuse shall have taken place or be alleged to have or be suspected of having taken place in the setting of the regulated activity or elsewhere, have a duty as soon as is practicable after it shall have come to their knowledge or attention to inform the Local Authority Designated Officer (LADO) or children’s services or such other single point of contact with the Local Authority as such Authority may designate for the purpose of reporting to it any such matter, allegation or reasonable suspicion.
(2) Failure to fulfil the duty set out in subsection (1) before the expiry of the period of 10 days of the matter or allegation or suspicion first coming to the knowledge or attention of the provider or of any person whose services are used by the provider as defined in subsection (1) is an offence.
(3) For the purposes of subsection (1), the operators of a setting in which the regulated activity takes place, and staff employed at any such setting in a managerial or general welfare role, are deemed to stand in a position of personal trust and are deemed to have direct personal contact with such children or vulnerable adults as are in their care whether or not such children or vulnerable adults are or have been personally attended by them.
(4) For the purposes of subsection (1), all other employed or contracted staff or voluntary staff and assistants are deemed to stand in a position of personal trust only if, and only for the period of time during which, they have had direct personal contact with and have personally attended such children or vulnerable adults.
(5) For the purposes of subsection (1), children or vulnerable adults are or are deemed to be in the care of the providers of regulated activities—
(a) in the case of the operators of any setting in which the regulated activity takes place and of staff employed by the operators at any such setting in a managerial or general welfare role for the period of time during which the operators are bound contractually or otherwise to accommodate or to care for such children or vulnerable adults whether resident or in daily attendance wherever the regulated activity is provided, and(b) in the case of all other employed or contracted staff or voluntary staff and assistants for the period of time only in which they are personally attending such children or vulnerable adults in the capacity for which they were employed or their services were contracted for.(6) It shall be a defence to show that the LADO or that Children’s Services or that such other single point of contact with the Local Authority as such Authority may designate for the purpose of reporting was or were duly informed by any other party during the 10 days referred to at subsection (2) or had been so informed prior thereto.
(7) A Secretary of State having responsibility for the welfare safety and protection of children and of vulnerable adults may in exceptional cases by a letter or other instrument under his hand (hereinafter referred to as a “Suspension Document”) rescind or temporarily suspend the duty referred to at subsection (1) in the case of any specified child or children or of any specified vulnerable adult or adults concerning whom it appears to him that the welfare safety or the protection of such child or children or of such vulnerable adult or adults would be prejudiced or compromised by the fulfilment of the duty referred to at subsection (1) and may where it appears to him that the welfare safety and protection of children is furthered thereby exempt any specified entity or organisation and the members thereof that works with children generally in furtherance of their welfare and safety and protection or any specified medical officer from compliance with the duty referred to at subsection (1) provided always that no allegation is made against such entity or organisation or member thereof or against such medical officer.
(8) It shall be a defence for any person to show that a Secretary of State acting pursuant to subsection (7) has issued a Suspension Document and it shall be a defence for any person employed by or operating as an entity or organisation that works with children or for any medical officer to show that a Secretary of State has by such Suspension Document whether temporarily or permanently exempted it and its members or any medical officer from compliance with the duty referred to at subsection (1).
(9) Subject to sub-paragraphs (i) and (ii) below, a person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine, or to both;(b) on conviction on indictment, to imprisonment for a term not exceeding 3 years or to a fine, or both;but so that—(10) In this section—
“regulated activity” relating to children and relating to vulnerable adults has the same meaning as in Schedule 4 to the Safeguarding Vulnerable Groups Act 2006;
“providers of regulated activities” has the same meaning as in section 6 of the Safeguarding Vulnerable Groups Act 2006;
“vulnerable adults” has the same meaning as in section 59 of the Safeguarding Vulnerable Groups Act 2006; and
“children” means persons who have not attained the age of 18 years.
Baroness Walmsley (LD)
My Lords, we discussed this matter in Committee in July. Amendment 43 provides for a legal duty on those with a duty of care for children or vulnerable adults who are working in a regulated activity to report to the local authority known or suspected abuse of those in their care. The answer that I received from the Minister was that we should wait for the inquiry panel on historical child abuse to consider the matter. Three months has passed since then and the inquiry has still not got under way. As long grass goes, this is a veritable prairie.
At first, we lost the chair—the noble and learned Baroness, Lady Butler-Sloss. I cannot for the life of me understand why anyone would believe that a judge of her standing and reputation would ever be biased in favour of anyone, however well known to her. However, it is important that there is confidence in this inquiry, so I understand her decision to step down. Further time passed before we were given the name of another person to take the chair. There is currently controversy about that appointment, too. Even further time passed before we had the names of the rest of the panel—a very good bunch of people, by the way—and the terms of reference were published. I looked carefully at them and was dismayed to find that there is no reference in it for the panel to consider whether a legal duty to report would help to protect children in the UK. Sadly, it seems that the Home Secretary is against specifying that the panel must look at this, one of many tools that could help to protect children, despite the Home Secretary’s reply to a Question in another place that the panel can indeed consider this matter. I hope that it does. But what if the panel feels that it has quite enough to consider and decides not to do so?
I also have concerns about the powers of the so-called Woolf panel, and I have questions for my noble friend the Minister about this. There have been concerns that the inquiry is not a statutory public inquiry under the public inquiries Act, and would therefore not be able to subpoena witnesses or evidence. The Home Secretary has confirmed that, should the chairman of the inquiry feel that it needs statutory powers, these would be granted by the Government. Can my noble friend the Minister confirm that that is still the case? Can he also say whether it would entail the appointment of a different chair, one who is a judge, or could the person currently appointed to chair it operate those statutory powers?
All that aside, it has become obvious to me that, whatever the Woolf inquiry does, it does not have the confidence of survivors of abuse. Many have said that they will not engage with it. I therefore concluded that we need another way in which to give victims a voice and a transparent way in which to hear arguments in favour and those against the introduction of mandatory duties on those with care for children and vulnerable adults.
I do not believe that such a duty should be introduced without very careful thought, or without provision to ensure that the unintended consequences that some groups fear would not materialise. My colleagues and I have therefore had extensive discussions with the Government, and I believe that the Minister will confirm today our agreement that there will be an open and transparent public consultation on whether such a duty should be implemented in the UK, to protect children.
I thank my noble friend the Minister and his officials for these discussions, and I especially thank my right honourable friend the Deputy Prime Minister, Nick Clegg, and Norman Baker, the Home Office Minister for Crime Prevention, for their good offices in ensuring that we will now have open public consideration of the benefits of this measure. Nobody, whether establishment or not, will be able to get in the way of people saying their piece. It is important for the questions to be open ones, and the process to be accessible and transparent. I would be very keen to be involved in that. I am also keen to ensure that, alongside the opportunity to contribute in writing, survivors can take part in seminars, since many would not feel able to write or send an e-mail. All that is still to be decided.
This process is to be welcomed. Nobody can have any excuse for not engaging with it. It is not led by any member of the establishment, and the responses will be published, with appropriate redactions if any sensitive information, or information that might prejudice the bringing to justice of a perpetrator, is revealed. Then we will be able to hold to account whichever Government are in place next May as to how they respond to the evidence.
My intention in pressing this matter for so long has always been prevention, not criminalisation. I remain convinced that a legal duty would prevent perpetrators taking the risk of acting, if they knew that their colleagues were trained to identify abuse and would act if they became aware of it. Of course, professionals need training to recognise the early signs of abuse. This would protect children. The legal duty would also protect whistleblowers, who have been reluctant to speak out until now because they feared for their jobs. It would also bring more perpetrators to justice.
I accept that resources would be needed to deal with all the hidden child abuse that would come to light. But you cannot fail to turn over a stone because you are afraid of the slime that you might find underneath—and of course, the long-term benefits of a step change in the protection of children are obvious. Despite the Government’s extra £400 million, announced by the noble Earl, Lord Howe, at Question Time today, only this morning the mental health organisation Mind has published figures showing the lamentable state of mental health services for children in this country, and the small amount of money spent by local authorities on prevention and treatment, while at the same time millions are spent on programmes to prevent loneliness, obesity and so on.
Money spent on training for a legal duty to report, and on dealing properly with the cases that would be revealed by it, would save money in the long run and prevent a great deal of human misery. I heard recently that a majority of people accessing talking therapies were abused in some way as children. So it is clear that prevention must be our first objective, followed by early detection.
My aim in introducing the amendment has always been to give victims a voice, and to ensure that specific attention is drawn to, and evidence heard about, the potential benefits of a legal duty to report. We must ensure that all those well-meaning people out there who work with children turn what they see and hear into action, and feel comfortable to do so. I hope that when the Minister responds he will confirm that I have succeeded in that aim. I beg to move.
Baroness Walmsley
My Lords, I am grateful to my noble friend the Minister for what he has just said. I know that it is the convention to thank the Minister for what he has just said, but in this case it is particularly sincere because there have been genuine discussions and I think that what he has suggested will bring the sanitising effect of fresh air to this discussion. I am most grateful to all those who have supported my amendment. It may not be perfect, but it has resulted in the statement that we have just heard from the Government, which is a major step forward.
I am grateful to the right reverend Prelate, to the noble Baroness, Lady Finlay, and to the noble Baroness, Lady Hollins, who was unable to speak today, for adding their names to the amendment. I am also grateful to the noble Lord, Lord Rosser, and to the noble Baroness, Lady Howarth, for their comments, although I would point out that some of the definitions that the noble Lord, Lord Rosser, was looking for are right at the end of the amendment. However, the point that they made makes the case for what the Government are suggesting now. None of us wants unintended consequences. We want children to be protected.
I hope that all those who have an opinion about this matter will be able to put their views to the public consultation, and that those views will be taken into account. While still being convinced that some sort of restricted mandatory reporting for regulated activities would benefit children, I very much accept that we need to hear all opinions and it needs to be implemented in a very careful way that is appropriate to the United Kingdom, although there is good evidence from abroad.
I shall pick up one point, if I may, before I withdraw the amendment. It has often been said, and my noble friend the Minister said it again, that there are large numbers of malicious reports. It has been found by analysis that, yes, there are malicious reports, but it is not a large percentage; it is quite small—under 20%. In Australia, the percentage was exactly the same after the duty was introduced as it was before. Although the raw numbers went up, the actual proportion of those reports which were not able to be substantiated was exactly the same. So it is not correct to say that an awful lot of reports are malicious or unsubstantiated. Let us please be correct about that. That is just one small point that I felt needed correcting.
I am delighted that there will be a public consultation and I would challenge all those organisations that have said that they will not engage with the Woolf inquiry to engage with this one, because there will be no barrier to hearing their voices. I hope that they will make their voices heard. I beg leave to withdraw the amendment.
Serious Crime Bill [HL]
Baroness Walmsley Excerpts(9 years, 7 months ago)
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Baroness Walmsley (LD)
My Lords, I wish to speak to Amendment 41 in my name in this group. I welcome Clause 65 and the Government’s amendments to it, but I have tabled this further amendment, the purpose of which is twofold. First, it would delete the limitation in Section 1(1) of the 1933 Act that only people with responsibility for a child or a young person can be prosecuted for child abuse. This means that anyone could be prosecuted for such offences—for example, clergy, pastors, friends, relatives, neighbours or lodgers—not just parents or people acting in loco parentis. It is unclear to me why Section 1 was ever limited in this way. I ask the Government to explain why, particularly since we have seen in the recent Rotherham scandal how many children are abused by people who are not responsible for them. Secondly, it would clarify the meaning of “ill-treats” in order to make it clear that any allegation, by word or deed, that a child is possessed by an evil spirit or has harmful supernatural powers is unlawful because it amounts to serious emotional abuse of the child.
This amendment was debated twice on the then Children and Families Bill at the end of last year and the beginning of this year, and was followed by correspondence with my noble friend Lady Northover. Further to that correspondence, it is clear that the Government now accept two important facts that were not recognised before these debates. First, they now recognise that possession accusations are child abuse, regardless of what is done to the child as a result. Secondly, they accept that neither criminal nor civil law on child abuse can be used to take action on such abuse if it is perpetrated by someone who is not a parent or acting in loco parentis. Thus neither Section 1 of the Children and Young Persons Act 1933 nor the Children Act 1989 can be used in such cases.
However, the Government did not accept the need for the change that I was proposing, pointing to various other criminal statutes that could be used where someone had caused a child injury by making a possession accusation: the Public Order Act 1986, the Protection from Harassment Act 1997 and the Serious Crime Act 2007—my noble friend mentioned all of these in the correspondence. Those other statutes are not appropriate for three reasons. First, the point of my amendment is to protect children from knowing that they are believed to be possessed by evil spirits or to have supernatural powers, whereas using those statutes would entail the child having to give evidence that they were harmed by the allegations—thus precisely obviating the protection that my amendment is seeking.
Secondly, the primary aim of the amendment is not to prosecute but to prevent this kind of abuse. This can be done only if the law explicitly states that a possession accusation constitutes an offence against children—which, I reiterate, would not make a belief in evil spirit possession an offence, just the communication of that belief to the child or those known to the child. It is not my intention to get in the way of people’s seriously held religious beliefs. I hope I made that clear the last time I raised this point.
Thirdly, none of the cited laws has ever been used to charge anyone for alleging that a child has supernaturally evil powers, which is not surprising. It is extremely unlikely that any prosecutor would agree to a wholly speculative prosecution that balanced having to prove a child’s psychological trauma against the expression of strongly held religious beliefs, in the absence of direction from central government on this issue. I invite the Minister to seek the opinion of the Director of Public Prosecutions on this point if the Government are going to rely on these various statutes.
The numbers of children killed or seriously physically injured in this country by this form of faith-based abuse are not great—probably still under 100, although of course even one is too many. However, we do not know how many children are psychologically scarred for life by being told that they are possessed by evil spirits, that they are responsible for causing supernatural harm to their loved ones and that they are an object of hatred, fear and revulsion. Members of the National Working Group on Child Abuse Linked to Faith or Belief estimate that that number could run to many hundreds.
Are we failing to take action on this horrible torment of children because we are reluctant to challenge, in this instance, the religious practices of minorities? If the Government believe, as they say they do and I know they do, that possession accusations are child abuse, they should prohibit the practice specifically as they have every other form of significant harm to children. I ask my noble friend again to consider the wisdom of such an amendment.
Baroness Butler-Sloss
My Lords, I thank the Minister for giving me the opportunity to discuss with him his Amendments 39 and 40. I am extremely grateful to him. I am happy with Amendment 39; it takes us a long way along the road that I have been battling for under the Children and Young Persons Act 1933, and I think it goes far enough. I thought that Amendment 40 was unnecessary. I have now been convinced by the Minister that it is not unnecessary, so I am also happy with that.
On what the noble Baroness, Lady Walmsley, has said, I suspect that the offences that the police and social workers did not deal with in Rotherham, for example, were so serious that the first part of Amendment 41 would not be necessary. However, I see the point that the noble Baroness is making and it is, with respect, a good one. Her point is that most, but not all, cases come under other legislation, and that is a point well worth taking away.
I agree with the noble Baroness’s point about evil spirits and witchcraft. We in this country underestimate what goes on in relation to witchcraft. It is an extremely serious and worrying, though limited, problem in relation to children, and it ought not to be ignored. There are those who, sometimes under the guise of an obviously totally debased form of religion, are trying to exorcise children through really appalling child cruelty. The noble Baroness is raising that area and, again, with respect, the Government ought to look at that rather more carefully.
Baroness Butler-Sloss
My Lords, I am moving again the amendment relating to child abduction warning notices which I raised in Committee. I do not want to go through everything that was said on that occasion. I was supported by the noble Baronesses, Lady Walmsley and Lady Howarth, and the noble Lord, Lord Rosser, who also supports my bringing this amendment before the House again. The problem is that the police do not have adequate powers to deal with grooming of young girls at the point at which the girl is in the process of being groomed but has not yet been taken off and sexually abused, raped or whatever. It is at a relatively early stage, but if it is not stopped it will carry on, as we know from a number of cities around the country.
The quite simple point, as was very neatly expressed by the noble Lord, Lord Rosser, in Committee, is that the current notice that the police have leads to no action being taken unless the threshold of an abduction threat has been met. This applies to the stage before the actual abduction threat. I am not happy about what the noble Lord, Lord Taylor, said. I understand his concern that the police might have a power greater than they have in other powers but something needs to be done, which is why I have raised the matter again. I beg to move.
Baroness Walmsley
This proposal came out of a parliamentary inquiry co-ordinated by Barnardo’s and chaired by Sarah Champion MP. Two of my noble friends, my noble friend Lady Benjamin and my noble kinsman Lord Thomas of Gresford, and I were both on that inquiry. We heard first-hand what others have been able only to read: the evidence for making this change to the law. It was very interesting and moving to hear the evidence of the victims. It was also moving to hear the evidence of the police who are committed to protecting children but feel that they do not have sufficient tools to do so.
Our focus should be on prevention or at the very least on the earliest possible intervention. The police are asking for this power to be made statutory so that they can enforce it at an earlier stage of the grooming process. It was made very clear that many of these young girls are quite willingly in the company of older people who eventually abuse them. One young person who gave evidence to us said that she genuinely thought that these people were her friends and the only people who cared about her in the world. That indicates that these young people are not there because they have been physically abducted; they are there willingly. Very often, in a prosecution, they are not willing to give evidence that they have been abducted.
Passing this amendment, or something very similar, would strengthen young people’s confidence in the police. Currently, the approach has a further damaging effect because it erodes the confidence of victims and their families in the ability of the police to protect them when they see that an abuser has broken the terms of a child abduction notice but no action is taken. That is why we need to make it statutory.
Lord Rosser
I certainly do not intend to repeat the arguments that have already been made in Committee and on Report in favour of this amendment. As the Minister will well know, in his response in Committee, the noble Lord, Lord Taylor of Holbeach, accepted that proposals to strengthen the impact of child abduction warning notices had the support of the police, legal experts, representatives of local agencies, young people who had been affected by sexual exploitation, children’s charities and others. The then Minister undertook to consider carefully the benefits of putting these notices on a statutory footing and how such a statutory scheme might operate. He indicated that the Government were committed to examining the case for placing child abduction warning notices on a statutory footing but said that, while the Government may not have completed their review by Report stage, he would update the House on progress. I may have missed a letter but I am not aware of the Government having completed their review.
Among the issues that the then Minister felt needed to be considered were whether it was appropriate for the police to impose an order or injunction, breach of which is a criminal offence; the test for the grant of an order; the prohibitions or restrictions that might be attached to an order; the penalty for breach of an order; and the reference in the amendment requiring a child to have been found two or more times in the company of the person to be made the subject of an order. On these issues, which were raised by the then Minister in Committee, as far as I am aware, we await the Government’s conclusions. I am assured that all those groups and bodies interested in this specific issue are happy to work with the Government to resolve these points.
Child Abuse
Baroness Walmsley Excerpts(9 years, 10 months ago)
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Lord Taylor of Holbeach
It is for the police to deal with the apprehension of offenders and to act on information that they have available. It is not the purpose of the inquiry to deal with individual cases. It will be important to make sure that the inquiry separates the police operations from its own investigations and does not, in the process of making its findings known, jeopardise police officers or the proper administration of justice.
Baroness Walmsley (LD)
My Lords, I welcome all the Government are doing to bring the perpetrators of child abuse to justice, but will they do more to prevent it happening in the first place? Hundreds of thousands of people go online and access child pornography on the internet. Some people seem to take the view that, if that is all they do, it does not matter too much. But, of course, every such image of a child on the internet is a child who has been abused, and the people accessing those images are complicit in that crime. There is some overlap between those who access child pornography on the internet and those who go out to contact children and abuse them physically. There is a great deal of controversy over how big that overlap is. Will the Government do more research to look into the overlap between accessing child pornography on the internet and physically abusing children? Will they do more to support those charities that do wonderful work with people who accept their inappropriate urges and want not to offend physically? Organisations such as the Lucy Faithfull Foundation struggle for resources to do this very important work to prevent children being abused in the first place.
Lord Taylor of Holbeach
I could not agree more with the premise of my noble friend’s questions; it is important to support charities. I also agree that viewing images of children online is not a harmless pursuit. It is damaging to those who have been involved in sexual abuse to provide those images, but it also leads individuals on to sexual abuse. That is why we are right to take this view. We have open minds about how the Government should deal with this over time, but I agree with my noble friend that the numbers coming forward suggest that this problem has been made worse by people’s ability to view these images online.
Serious Crime Bill [HL]
Baroness Walmsley Excerpts(9 years, 10 months ago)
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Baroness Walmsley
“( ) for “that age” substitute “the age of 18”;( ) after “wilfully” insert “recklessly”;( ) omit “unnecessary”;”
Baroness Walmsley (LD)
My Lords, I wish to speak also to Clause 62 stand part.
Amendment 40BZA would introduce to this very good clause three additional small changes to the Children and Young Persons Act 1933. These are issues that have been raised with us by various children’s organisations, including Action for Children. The first part of the amendment seeks to probe the age to which a person may have responsibility for a young person. The Act currently applies to someone over the age of 16 who also has responsibility for someone “under that age”. The first part of this amendment therefore questions whether the responsibility should be for anyone under the age of 18, rather than 16, given that we have had numerous changes in the definition of children of late, and it varies from one bit of law to another.
The second element of the amendment would add the word “recklessly” after “wilfully”. This was contained in the Private Member’s Bill of my honourable friend Mark Williams MP in another place. Action for Children has suggested that we need to insert “recklessly” alongside “wilfully”. The introduction of “recklessly” would be in line with the interpretation of the 1981 Sheppard ruling, and with the interpretation of recklessness recently defined by the House of Lords in R v G. The term “recklessly” was identified in the Sheppard ruling as preferable to “wilfully”, which is considered difficult to interpret because it is unclear whether it applies to someone’s action or failure to act, or to their failure to foresee future consequences of their action or inaction. We suggest that “recklessly” is added to clarify this.
There can be a particular problem in cases of child neglect, which typically involve the failure to provide care, food, supervision, a safe environment and so on, so we need to cover foreseeing the future consequences of actions as well as the actions themselves. Adding “recklessly” also serves to protect parents and carers where there is any doubt that their action or inaction was due to mental incapacity or excusable ignorance of parenting skills. This is because, under the recklessness test, if there is any doubt that the behaviour of parents or carers was attributable to inherent incapacity to understand or change their behaviour, they will not be prosecuted. This would therefore protect them. “Recklessly” would also confirm the exclusion from liability of, for example, carers agreeing to high-risk medical treatment where there is no better medical option for a gravely ill child.
The final element of this amendment removes “unnecessary” from the requirement that the offence causes unnecessary suffering. The view of children’s organisations is that there is no unnecessary suffering that a person may cause, and that the term is antiquated and should be updated to a modern understanding. However, as my noble friend Lady Brinton has pointed out, certain suffering may be unavoidable; for example, where a child has suffered bereavement.
Perhaps the Minister will say whether the under-16 definition meets the modern understanding of what we mean by children. Would it not be better to cover all children to the age of 18? Why do the Government feel that “wilfully” alone is a better term to use than adding “recklessly”? Will they commit to looking again at this issue in the light of the enormous support that Mark Williams’s Private Member’s Bill had in another place? Will the Minister also say whether the term “unnecessary suffering” is clear enough in a modern context? Is there not a risk that this could prevent certain abuses from being prosecuted under the offence?
I shall also say a few words about the Question that the clause stand part of the Bill. We strongly support this clause, so tabling this Question is not about whether or not it should remain in the Bill, because it is a good clause. However, we have some questions about whether the new and welcome explicit reference to psychological harm will mean that other offences involving harm will now be read as referring only to physical harm. Specifically, offences related to domestic violence could potentially be undermined.
The intention of opposing the Question that the clause stand part of the Bill is therefore to ask the Minister to make a statement from the Dispatch Box that other offences will not be undermined by this welcome change; and to ask the Government to look again at whether it would be a positive step to amend other legislation to reflect psychological harm, in the same way as we are now affecting offences against children. Will the Minister confirm that this welcome change in Clause 62 will not have an adverse impact on including psychological harm within other offences, where it is not explicitly referred to—for example, domestic violence? I beg to move.
Lord Elystan-Morgan (CB)
My Lords, at Second Reading a month ago, I committed the cardinal sin of making some very specific and detailed comments of a nature belonging more to a Committee stage than otherwise. I am not going to make up for it by making a Second Reading speech today, but I very much welcome the amendment in the name of the noble and learned Baroness, Lady Butler-Sloss.
I have little doubt that the draftsmen of Clause 1 of the 1933 Act intended that “cruelty” should relate to both physical and non-physical cruelty. However, in 1981 in the case of Sheppard, this House caused some confusion in relation to that matter by placing what might be described as a somewhat heavy gloss upon the words of statute. The combined effect of the amendment and Clause 62 is that the situation will be made abundantly clear. I very greatly welcome that.
I also take the point that in so far as defining cruelty in terms of serious harm, a very great bringing together of two concepts has been achieved; that is, the definition of “significant harm” in Section 31 of the Children Act 1989, which of course is the section that sets up the machinery for the obtaining of a care order, is now almost exactly the same—or so near as to make no difference whatever—as the definition of the criminal offence that this clause brings about.
I take wholeheartedly the point made by the noble and learned Baroness, Lady Butler-Sloss, that the last thing one wants to do is to bring these civil situations into a criminal court. Sometimes that is inevitable. I also take the point that it is right that social workers and those involved in the protection of children in the civil field should, as it were, have the same hymn sheet as those who deal with those situations in the criminal field. They are two different fields, which should be mutually exclusive if humanly possible, but nevertheless it is right that the same standard should apply to both.
Baroness Walmsley
I wonder if the noble Lord, Lord Elystan-Morgan, would be kind enough to address the House because I am having some difficulty in hearing what he is saying.
Lord Elystan-Morgan
Profound apologies. I was discerning perhaps a twinkle of support this side and one welcomes every little support one can get in this place. I apologise profusely to the noble Baroness.
In so far as “wilfully” is concerned, this is an extremely important development. Lawyers well appreciate that “wilful” can mean an act of deliberate commission or omission. On the other hand, intelligent lay men, be they magistrates, jurors or in any other capacity, might find it very difficult to consider that something which is pure omission can be wilful.
Then there arises the almost theological question of whether “recklessly” should be included. I think—but I might be corrected, and for this reason I shall turn to the authorities on the other side—that in so far as the statutory definition of wilful is set out here, it is in fact the classic definition adopted by this House in a case of recklessness called Caldwell in the 1980s. It was the case of a tramp, if I remember rightly, going into unoccupied premises and striking matches, who was found guilty of arson on the basis of recklessness. If am right about that, there is no dispute about the difference between recklessness and wilfulness in this connection.
I will make a general comment on Clause 62, which will not have to be repeated on clause stand part. Section 1 of the 1933 Act is 80 years old. I am one year older than the noble and learned Baroness, and therefore I was about a year old when this became law. The verbiage is much older than that. The verbiage comes from the Poor Law Amendment Act 1868, virtually all of it from Section 37.
That Act was passed in order to deal with the problem of the Peculiar People. The Peculiar People were very devout people who believed that, whenever there was illness in the family, you should not go anywhere near a doctor. You should pray to Almighty God, and accept the will of Almighty God. The consequence was that, when death occurred, and many of these people were prosecuted for manslaughter, a humane jury found them not guilty because of their utter devoutness, although, of course, it represented utter unreasonableness. It was to deal with that particular issue that Section 37 was passed.
This means that we have today still the remnant cobwebs of that Victorian verbiage. Victorian verbiage in a statute sometimes can serve us well. The Offences Against the Person Act 1861 is a classic example which will be with us for many generations, I have no doubt. However, there are cases in which one can look afresh at the whole situation and possibly create an instrument that is more consistent with the needs of the 21st century.
The Earl of Listowel
I have a few words of praise for the Government. I thank the Minister for his response and for recognising the importance of what my noble friend Lady Meacher said about the need to intervene early to support families to get off alcohol and drugs. When it comes to the family courts, the Government have substantially supported the family drug and alcohol courts, which originated from district judge Nicholas Crichton in the Inner London Family Proceedings Court and ensure that such families have judicial continuity over a 12 year period and that there are good interventions to get the parents off drugs and alcohol so that they can keep their children and not have their children taken into care. It is very much to the Government’s credit that they funded and evaluated this work and now the president of the family court is looking to roll it out across the country. Many families will benefit because of the good work of the Government and this will avoid unnecessary cruelty to their children.
Baroness Walmsley
My Lords, we have had a very good debate. Quite clearly there is a great deal of consensus across the House. I echo what the noble Baroness, Lady Howarth, said. I hope that we can have further discussions about this between now and Report and that we come to some consensus as to what may or may not need clarifying. I thank the noble Lord, Lord Ponsonby, and the right reverend Prelate the Bishop of Durham for agreeing with me that we need to level up the age at which we consider children to be vulnerable. They may be able to get married legally, but that does not mean that they are not vulnerable. There is also considerable consensus that the word “wilfully” needs clarifying and there have been various suggestions about how that should be done. The Government believe that we need Clause 62 even though the law already allows child abuse to be interpreted as psychological. In the same sort of way, although there may already be agreed definitions of “wilfully”, there may still be a need to clarify that in one way or another, based on the various amendments that we have had. I am sure we can come to some agreement about how that might be done. There has also been consensus about the need to remove the word “unnecessary” or perhaps the whole term “unnecessary suffering” and to change it in some other way.
I hope that the Minister will be able to accept that we need further discussions about this between now and Report. In the mean time, I beg leave to withdraw the amendment.
Baroness Walmsley
“Mandatory reporting of abuse in relation to regulated activities
(1) Subject to subsection (4), providers of regulated activities involving children or vulnerable adults, and persons whose services are used by such providers being persons who stand in a position of personal trust towards such children or vulnerable adults, who have reasonable grounds for knowing or suspecting the commission of the abuse of children or vulnerable adults in their care whether such commission of abuse shall have taken place or be alleged to have or be suspected of having taken place in the setting of the regulated activity or elsewhere, have a duty to inform the Local Authority Designated Officer (LADO) or children’s services or such other single point of contact with the local authority as such authority may designate for the purpose of reporting it or any such matter, allegation or suspicion as soon as is practicable after it comes to their knowledge or attention.
(2) Failure to fulfil the duty set out in subsection (1) before the expiry of the period of 10 days of the matter or allegation or suspicion first coming to the knowledge or attention of the provider or of any person whose services are used by the provider as defined in subsection (1) is an offence.
(3) It shall be a defence to show that the LADO or children’s services or that such other single point of contact with the local authority as such authority may designate for the purpose of reporting was or were informed by any other party during the 10 days referred to in subsection (2) or had been so informed before then.
(4) A Secretary of State having responsibility for the welfare, safety and protection of children and of vulnerable adults may in exceptional cases by a letter or other instrument under his hand rescind or temporarily suspend the duty referred to in subsection (1) in the case of any specified child or children or of any specified vulnerable adult or adults concerning whom it appears to him that the welfare, safety or the protection of such child or children or of such vulnerable adult or adults would be prejudiced or compromised by the fulfilment of the duty referred to in subsection (1) and may where it appears to him that the welfare, safety and protection of children is furthered thereby exempt any specified entity or organisation and the members thereof that works with children generally in furtherance of their welfare and safety and protection or any specified medical officer from compliance with the duty referred to in subsection (1) provided always that no allegation is made against such entity or organisation or member thereof or against such medical officer.
(5) It shall be a defence for any person to show that a Secretary of State having responsibility for the welfare, safety and protection of children and of vulnerable adults has issued a letter or other instrument under his hand rescinding or temporarily suspending the duty referred to in subsection (1) in the case of any specified child or children or of any specified vulnerable adult or adults and it shall be a defence for any person employed by or operating as an entity or organisation that works with children or for any medical officer to show that a Secretary of State having responsibility for the welfare, safety and protection of children and of vulnerable adults has by such letter or instrument under his hand whether temporarily or permanently exempted it and its members or any medical officer from compliance with the duty referred to in subsection (1).
(6) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine, or both;(b) on conviction on indictment, to imprisonment for a term not exceeding three years or to a fine, or both.(7) In this section “regulated activity” has the same meaning as in Schedule 4 to the Safeguarding Vulnerable Groups Act 2006.”
Baroness Walmsley
My Lords, this amendment is exactly the same as Amendment 40C; it has just been put in a different position. I am most grateful to the right reverend Prelate the Bishop of Durham for adding his name to it. Abuse of the most vulnerable people in our society is wicked and a great deal more widespread than most of us think. There are those who use power, strength and blackmail to subject those who cannot fight back to the most horrible abuse. It is done behind closed doors and certainly that is where a lot of it stays. However, there is hope because there are signs, if only we would look for them. We need not only to see them but to act upon them as well. We need to give the abused people opportunities to confide in a trusted adult, in the secure knowledge that that person will do something to make it stop. That is why we need a new duty to report abuse.
Of course, I know that legislation is not a silver bullet, but it can help and it has done so in other countries. In addition, I agree with those who say that we need more training, awareness raising and the protection of the law for those who expose the horror. Amendment 40BZEA covers not just children but vulnerable adults as well, although for simplicity my remarks will mainly refer to children. However, the vast majority of what I say also applies to elderly and disabled people, and those with serious mental disabilities too—all groups that have suffered far too much abuse in recent years by unscrupulous people.
We heard on the BBC only this morning about cases of abuse of people with mental disabilities where nobody said a word. My intention is not to criminalise people—though there must be penalties if this measure is to be effective—but to empower those who know that something is wrong and to protect them as well as the children. The current system is not working. The recent report about Jimmy Savile’s activities made that very clear. There needs to be an increase in the detection rate of child abuse in the UK, which is estimated to be only 5% of the actual amount, according to the Equality and Human Rights Commission’s report in 2010, How Fair is Britain?
I shall explain what my amendment does. Proposed new subsection (1) puts a duty on individuals standing in a position of personal trust towards children or vulnerable adults and who work in “regulated activity”, as defined in Schedule 4 of the Safeguarding Vulnerable Groups Act 2006. The duty is to report abuse that is known about and where they have reasonable grounds for knowing or suspecting abuse. If the abuse is adult on child, or on a vulnerable adult, it should be reported to the local authority designated officer. If it is child on child—and there is a great deal of that—they should report it to the local children’s services. If the local authority has chosen to have a single point of contact, the report should be to there.
Proposed new subsections (2) and (3) say that the report must be made within 10 days of the knowledge or suspicion, unless the abuse has already been reported by someone else.
Proposed new subsection (4) allows the Secretary of State to exempt certain groups from this duty, in the interests of ensuring that children and vulnerable adults can feel comfortable disclosing the abuse—for example, to their doctor or a confidential helpline such as ChildLine. There will be a term of imprisonment or a fine for failure in this duty.
Proposed new subsection (7) refers to Schedule 4 to the Safeguarding Vulnerable Groups Act 2006 for the list of institutions that are covered by the amendment. It includes all forms of teaching or training of children, care or supervision, treatment and therapy et cetera—and a similar group in relation to vulnerable adults. In other words, it relates mainly to the people who would normally need a CRB check in order to do their job; it does not include family members.
This is a measure whose time has come and I encourage the Government to grasp the moment. In a recent independent survey, 96% of the public thought that we already had such a law. Although the public would strongly support it, we do not have one at the moment. We have a whole range of regulations, professional duties et cetera—none of which have been effective in situations in which adults were worried about being the whistleblower, about reputational damage to their institution, or that they may have got the wrong end of the stick. This measure would protect and empower those people, and protect children.
It is not for teachers, nurses and care workers to decide whether there is a case to go to the police. It is not their job. It is the job of the experienced officer within the local authority—as opposed to triage, which the Minister has just mentioned—to investigate and then report to the police when they believe that there may be a case to answer, or to take some other action.
There are other parts of the world where there is a duty in law to report, such as Australia, every state of which has some version of this duty and some sort of penalty. It has been very effective in exposing that which was previously hidden. It has been shown that there is a high rate of substantiation of the allegations, contrary to what the Minister has just said. In the case of reports by teachers, 70% led to police action prior to the new law; and the percentage after the new law came in was 69%, which was very close. The percentage would have been higher if it had included situations in which the children needed help but the police were not involved. Only 2% of reports were found to be malicious. These figures came from Professor Ben Matthews, a highly regarded researcher on these issues; and I am happy to supply them to the Minister. I heard Ben Matthews say on the BBC a few months ago, around the time of the famous “Panorama” programme:
“Mandated reporting in some form is an essential part of an effective child protection system”.
Someone I know used to work as a child safeguarding officer in Australia and was familiar with the effective working of the measure. She also told me that that Australia has a programme in schools called, “No, Go, Tell”. It is pretty obvious what that means. When she came to work in this country, she was amazed that we do not have something similar here. That makes the case for good-quality PSHE in all schools in which children are taught what not to tolerate in terms of invasion of their personal space, and what to do to keep themselves safe.
What have others said about my proposal? Last week, as we heard, the NSPCC made a major and welcome shift in its policy on this matter, but it does not go far enough. It has proposed what I have called “safeguarding lite”. The idea is to have a duty on closed institutions such as boarding schools and children’s homes not to cover up known child abuse. By the way, it is not clear who within those institutions would have that duty. There are several things wrong with that. First, it ignores the majority of children. There are 8 million children in education in this country, and less than 1 million of them are in boarding schools and children’s homes.
Secondly, by covering only “known” child abuse, the onus is put on the head teacher or care home manager to decide whether abuse is known or not. That is not their job; it is the job of local authority designated officer, who has the training and experience to know whether to report to the police or take some other action. That is what those officers have been trained to do. Thirdly, the policy is confused. Think about this: a head teacher in a boarding school has a duty to report a case, but the following term, if he takes over a maintained primary school, his duty is only under some regulation, with no legal penalty for ignoring it.
Think about a girl who would have this protection in a boarding school, but if she goes to a church youth club in the holidays she has no protection. Think of a boy who has protection in a care home, but has none when he goes to the local sports club. This matter is the responsibility of all of us, but in particular it should be the duty of all those who work with children in a position of trust. It should go with the job, along with the duty to get a CRB check.
The Local Government Association has briefed us all and asked us to look at how the duty would operate in reality. I know there are those who are concerned that the system would be swamped with cases if my amendment became law. I say two things in answer to that. First, if that is the case it means that there is an enormous amount of child abuse out there going undetected and untreated. That causes mental health and relationship problems throughout the lives of those abused, and allows perpetrators to get away with it and abuse other children. It also costs the public purse a lot of money in the long term.
Secondly, the experience in Australia was that, yes, the number of concerns reported increased, but they were investigated and considered by the right people. There was a very high level of substantiation and only a tiny amount of malicious reporting, which I believe is a fair price to pay. Anyway, such cases are looked into by experienced people who recognise malice when they see it.
I expect that noble Lords will recall the case of baby Peter and the fact that there was an increase in the number of children taken into care after it became public. That has settled down to some extent now, but it means not that too many children are taken into care now, but that too few were before, possibly because of resources. We must ensure that the system has sufficient resources and is robust enough to weed out cases that do not warrant action. In any case, the vast majority of child abuse would not entail the child being taken into care if she was not already.
The Local Government Association talks about us all having a moral responsibility to report abuse. Of course we do, but we have had that for years and it has not worked. What we need is not the confused and complicated system proposed by the NSPCC, but a very simple amendment to the law. The people on whom the duty in my amendment would fall are already defined in law: there is already a definition of,
“reasonable grounds for knowing or suspecting”.
We need training in recognising the early signs of abuse and neglect for all those who work with children and vulnerable adults, and we need guidance on how to report it. We need everyone to make it their business to protect children and vulnerable adults as a public duty, but we need to strengthen the law to help those who know something to have the courage to do something. I beg to move.
The Lord Bishop of Durham
My Lords, I support the amendment. I begin by pointing out that, had I been in this House two years ago, I would not have supported it. It is my experience of listening to and hearing stories, not just from within the church sector but from many sectors, that has led me to be convinced that this is a move we need to make.
Currently, under the Safeguarding Vulnerable Groups Act 2006, a form of mandatory reporting already exists; that is to say, a duty to refer arises in certain situations connected with regulated activity. Admittedly, that is just for vetting purposes, but what the noble Baroness, Lady Walmsley, effectively proposes is an extension to this. It will mean that those who work with children or vulnerable adults in regulated activity and have reasonable grounds for suspecting or knowing that abuse of these vulnerable groups has taken place are under a duty to report this to the local authority. I wholeheartedly support this principle, and I welcome the suggested amendment. Indeed, every person who works with children or vulnerable adults, which includes teachers, doctors, nurses, youth workers and volunteers, has a responsibility for keeping them safe. No one individual could possibly have a complete picture of a vulnerable person’s situation. All professionals who come into contact with those vulnerable groups have,
“a role to play in identifying concerns, sharing information and taking prompt action together”.
That is from Working Together to Safeguard Children.
Baroness Howarth of Breckland
My Lords, I feel some trepidation in challenging some of the issues about mandatory reporting, although I think that we need to find different language. I do not think there is any difference between me and the noble Baroness, Lady Walmsley, and the right reverend Prelate in what we want to find at the end of the day. However, I want to caution them and the Government to ensure that they look at this in great depth—I know that they are doing so in other places—and that there are no unintended consequences from the action that is taken.
I do not have a prepared speech, but I would like to make three points. Of course, it is wrong for anyone in a position of authority or in a church or neighbourhood community to turn a blind eye to known abuse. If abuse is clearly there, then that must be reported. If we have to have a law that says that there are circumstances in which people abused their position and did not come forward, the Government should look at that.
In the work that I am doing, the helpline for the Lucy Faithfull Foundation, in the Stop it Now! programme, has hundreds of people telephoning who are not sure about what they are seeing. I have talked to social workers who have great professional expertise about their not being certain what they are seeing. It is quite clear that we need to continue the professional development of staff in local authorities who work with the police, and also the community programmes which I have mentioned earlier, where children’s services, parents and schools have all been involved in the local community in developing understanding of these issues and therefore are clearer about what action they may or may not take.
I do not have a speech because I spent the morning chairing a conference that included people from Australia and the chair of an international protection of children organisation, looking at eradicating child sexual abuse. There were a lot of experts there. The message that they asked me to bring was that we should not simply bring in this sort of reporting without looking carefully at it. The statistics across the world vary according to whom you listen to. I ask the Minister to talk to some of the people I know as well as to those whom the noble Baroness, Lady Walmsley, knows, because they have different views. Presumably, the Government have it within their powers to get the information pretty clearly from Governments in other parts of the world. I am not making any judgment about the outcome, except to say that people tell me that it has really interfered with good preventive work, because resources have been diverted into investigating hundreds of cases that turned out not to be prosecutable.
I understand why there is a wish, particularly in the church, to get this sort of prosecution. I say to the right reverend Prelate that I have probably talked to more victims than most in my 50 years, many of them children; I know the victims’ groups and I know the pain that they have experienced. But it is crucial that we base whatever we do in the future on what is happening now, and that we prevent children being abused in the present, and learn from those people in the future. They have a lot to offer but sometimes it can be clouded by pain, which I understand.
What we want to do, particularly in churches and similar organisations, is to develop a culture of openness. We know of a recent investigation into a particular area in the Church of England where misogyny was rife and women’s views—never mind children’s—were not tolerated. I am a member of the Church of England, so I say this in all good heart but that is one institution that really has to look at it itself—as I know it is doing because the right reverend Prelate is the chair of the committee looking at the issues within the church. There are other organisations that need to look at their culture because we are not going to change these issues by the law, although I think in some areas it will help. We need to get a cultural change in organisations and our nation.
The NSPCC has got itself in a bit of a twist, I think. Talking to some of the staff today, there is a very mixed view because they had always been against mandatory reporting—I think that is a very funny term. They run two helplines. They know the implications of blanket mandatory reporting. I have to say that I did not understand proposed new subsections (4) and (5) of the amendment. It just shows how complex this issue is because we are talking about people going for exemptions. I tend to think that you need an opt-in rather than opt-out situation here, and we need to be precise about those people who might come to be prosecuted if reporting is mandatory rather than having to exempt those people who are trying to be helpful.
I am usually briefer than this but your Lordships can see that I feel as passionately as most—
Baroness Walmsley
Perhaps I might provide some clarification. When giving the Secretary of State the opportunity to exempt certain groups, I very specifically had in mind exactly those groups that the noble Baroness is worried about. Childline and Stop it Now! need to be exempted because they will have disclosures made to them and we cannot expect them to go to every local authority-designated officer throughout the country. Children need to be able to disclose to them but when they encourage the child to disclose also to a trusted adult, as they often do, the child needs to know that that trusted adult will do something about it and report it to the right people. I hope that clarification helps.
Baroness Howarth of Breckland
I thank the noble Baroness but I think she knows that I know that pretty well. My point is that we need to be more precise the other way round and be clearer about those people who will be prosecuted rather than those who will be exempted. That is the way that I would rather see it because otherwise you are going to catch all sorts of groups. There are groups in the Catholic Church that listen. Without doubt, the helpline should be seeing a child through a referral. If they are going to have a referral, that helpline really should ensure—I know that the NSPCC does this with Childline—that at the end of the day someone takes action at that point.
The Lucy Faithfull helpline for Stop it Now! is more difficult because that is where men are coming forward about thoughts that they have had that they do not understand. I am very fearful that many of those men will not come forward if they think there is a likelihood that they are going to be reported even before they have committed an offence. Some people who have committed offences will come forward to us and we will help them to go to the next stage.
There could be a range of unintended consequences. However, I say what I said at the beginning, which is I think that we are all on the same page. What is important is that time is spent—not a lot of time; I know that the noble Baroness, Lady Walmsley, is impatient—ensuring that we have it right in detail and that we listen to all the parties who have got evidence, because there is a lot of evidence. There is also new evidence about what works and it is not always the old patterns of intervention that work. The Government might do well to listen to some of the people I listened to this morning.
Lord Taylor of Holbeach
My Lords, this has been a very high-value debate whose contributions inform the Government. I will try to make sure that all colleagues in government with an interest in this matter are sent a copy of our debate.
I cannot give the noble Lord, Lord Rosser, any details of the timescale. If, in the course of time, I have more information, I will try to tell him in good time, but at the moment I cannot. In a way, this debate needs to be taken in conjunction with the one we had on my noble friend Lady Brinton’s debate; it covers very similar territory but it goes just that little bit further. I am grateful to my noble friend Lady Walmsley for tabling this amendment to enable us to look at this particular aspect.
There is a significant difference between the amendments. Amendment 40BZEA would place a duty on those working in regulated sectors who are in a position of trust in relation to children or vulnerable people to report suspicions of abuse to the appropriate local authority within 10 days. Breach of that duty would be a criminal offence punishable by up to three years in prison. This would mean essentially that anyone who works with children or vulnerable adults would commit a criminal offence if they did not report suspected abuse of any kind.
I hope that I can provide some reassurance to my noble friend Lady Walmsley and the right reverend Prelate the Bishop of Durham about the current process of referrals to social services. The noble Baroness, Lady Howarth, referred to this. It is important to recognise that existing statutory guidance is already crystal clear that professionals should refer immediately to social care when they are concerned about a child or vulnerable adult. Many thousands of referrals are made to children’s social care each year. In the year ending March 2013, there were 593,500 referrals—that is nearly 600,000. I am grateful to my noble friend Lady Walmsley for offering to provide me with figures that she has available, but I think that we need to bear that figure in mind and appreciate the scale of the situation that we are seeking to engage in.
The most important thing is that people understand how to spot abuse and neglect and the impact that it has on children and vulnerable adults. While we are continuing to review the evidence for the specific case of reporting in regulated settings, we are also continuing to take action to improve the knowledge and skills of professionals working with children and other vulnerable people.
As I indicated in my response to the previous group of amendments, the Government fully understand the public’s anxiety about the potential underreporting of abuse, particularly sexual abuse. I can wholeheartedly support my noble friend’s objective with this amendment; we all want to see improved safeguarding for all children and vulnerable adults. As I have said, we are actively considering the case for a mandatory reporting duty, but the issues are complex, as the noble Baroness, Lady Howarth of Breckland, pointed out. As the noble and learned Baroness, Lady Butler-Sloss, said, we need to consider what form such a duty might take, to whom it would apply and in what circumstances, and what the sanction for failure to comply should be. This amendment offers one approach, but we have just debated an alternative, more focused proposal, and the NSPCC has suggested a third model. Other organisations working to safeguard children and vulnerable adults will have ideas of their own as to how a mandatory reporting regime should be structured, as will other noble Lords. I have sought to encourage noble Lords to make sure that those conducting such investigations are aware of their views.
I can only again seek to reassure my noble friend and the right reverend Prelate the Bishop of Durham that we are actively examining the options and treating the matter with the urgency that it deserves. While I cannot undertake to bring forward government amendments on this issue on Report, I certainly expect that, by then, I will have more to say on where we have reached in our consideration of this important matter. Having put the issue firmly on the table as my noble friend has done, I hope that she will now be content to withdraw her amendment.
Baroness Walmsley
My Lords, I thank all those who have taken part in this debate. I thank the Minister for his reply and the right reverend Prelate for his support.
There has been some discussion about terminology. Noble Lords might have detected that I did not use the phrase “mandatory reporting” in my introduction because I know that it causes some people some difficulty. I have also avoided using the word “professionals” in my amendment. We may not want to call a school secretary or a dinner lady a professional, yet they would need to have a CRB check to work in a school and they are specified in Schedule 4 to the Safeguarding Vulnerable Groups Act 2006, which is in my amendment. When my noble friend asks to whom the duty should apply, my reply is that it is those people. So it is already in law.
I agree that the issues are complex and that we should approach the whole thing with a great deal of caution. I agree that there are different systems across the world and we need to find out which system suits this country best. I also agree that we need a culture change; I am pretty sure that I said so. We need training not just for the professionals but for the children so that they understand how to protect themselves. We probably need more resources as well because, as I said, there is an awful lot of undetected child abuse out there which has never been treated, and it never goes away. There is no such thing as historic child abuse; it is always current in the lives of the victims, who never lose it.
With that, I have done my very best to persuade all noble Lords. I will have to leave it at that for the moment, but I suspect that I may come back to it at the next stage of the Bill. We shall see. I shall watch with great interest what happens with the terms of reference of the new inquiry committee, the personnel and how they go about their job. In the mean time, I beg leave to withdraw the amendment.
Earl Attlee (Con)
My Lords, I am grateful for the expert way in which the noble Lord, Lord Rosser, introduced his amendment. I have no greater arguments than the ones he adduced. I strongly support him and urge the Minister to consider his suggestion very carefully. I have one final thought: what would the view of noble Lords be if we were talking not about FGM but MGM?
Baroness Walmsley
My Lords, it would not be in order for me to say anything about the amendment moved by the noble Baroness, Lady Meacher, as I was not in my place when it was moved. I support the noble Lord, Lord Rosser, in his attempt to get anonymity for the victims of FGM, and I hope the Government will consider it. Indeed, I think there may be a case for going a little further than that, because it could be that there are women within communities who know what is happening who might be more encouraged to come forward and say so if it were guaranteed that they would have anonymity. It is something that needs looking at.
Baroness Meacher
The noble Lord, Lord Rosser, introduced his amendment extremely effectively and has said all that needs to be said, but I would hate the Minister to think that there was no support for it. Therefore, I simply say that we need these charges to be investigated and pursued, and if victims are not given anonymity, it seems an impossible task. I hope that the Minister will be able to support the amendment proposed by the noble Lord, Lord Rosser, as well as my amendment.
Baroness Butler-Sloss
My Lords, we move to a different subject, that of child abduction. There are two separate amendments. The first one, Amendment 40CB, deals with an anomaly—that there are two separate Acts, which deal differently with children or young people. If the child is in care, and the care order goes beyond the age of 16, under Section 49 of the Children Act 1989 the offence of abduction runs to the age of 18. But under the Child Abduction Act 1984, which incorporates the Hague convention of 1980, the age goes to 16. There is therefore an anomaly. The point of the amendment is simply to have parity, and the parity should go up rather than go down.
The second amendment, Amendment 40CC, will take a little longer to explain. It deals with what is called a “child abduction warning order”. This was once called a “harbouring order”. It has been a very useful, but inadequate, tool of the police. In particular, where they have seen a teenager being groomed, they have gone to the man concerned, and they have explained to him that he must obey an order not to have anything to do with the girl. However, if he breaks that order, they have absolutely no powers at all. Consequently the police are very anxious that their useful order to try and interrupt a grooming process for young girls, in particular, should in fact have a statutory backing. The next stage is an arrest under either Section 49 of the Children Act 1989 or Section 2 of the Child Abduction Act 1984.
However, there is a gap between the police telling someone, “Lay off this girl, you’re grooming her and you mustn’t do it”, and the point at which the girl has either been detained or taken, when it is quite simply too late. What is therefore needed is the police power—which they use—but put on to a basis that they can then enforce. If the man concerned does not desist from his grooming of the girl, he can then be dealt with under a statutory order. One of the problems about the words in the two Acts of “detained” or “taken” is that quite often it is a psychological or emotional relationship between the girl, who is often much younger, and the man, which is not capable of being treated as coming within either of the two relevant sections. Therefore the warning order could do a lot of good, and it would be useful. I hope the Government will take this away and look at it. It is definitely what the police want, it would give a real bit of power to them and it would fill a serious gap in the possibility of young people being abducted, particularly by older men. I beg to move.
Baroness Walmsley
My Lords, I support both these amendments. I recently sat as a member of a Back-Bench inquiry into the legislation used to tackle sexual exploitation, which was supported very ably by Barnardo’s. We took oral evidence from a number of police forces. There was unanimous support for putting these child abduction notices on a statutory footing, which formed part of our recommendations. At present they form no more than an administrative procedure for the police—useful, I am told, for collecting evidence for the future, scaring perpetrators and letting them know that the police are watching them but, in and of themselves, pretty toothless.
Of course, there is existing legislation for child abduction offences. Sometimes, perpetrators who breach warning notices are prosecuted under this other legislation. But the current legislation is often not useful for cases of grooming, because it requires that the adult has taken or detained the child, implying physical control or restraint. We know that psychological and emotional manipulation are the main tools used by perpetrators to control and groom vulnerable children. The Crown Prosecution Service is therefore not always able to take prosecutions forward, due to the child seeming willingly to remain with the offender, when the offender makes no act physically to detain the child. Creating an offence of breaching a notice would address this issue and allow the police to intervene earlier, rather than having to wait for a more serious offence to occur when, of course, what we want is for them to be able to intervene early.
While the police find child abduction warning notices a valuable tool, their lack of a statutory basis leads to an unfortunate consequence. Police told the inquiry about occasions when they issued notices as a deterrent but were then unable to act once they were breached. If they are to have any power in these situations, all concerned need to know that the police will and can act when their instructions are clearly ignored. Instead, the current situation erodes victims’ confidence in the ability of the police to protect them— and they have told us that. Of course, perpetrators’ fear of consequences will diminish when they see police unable to act. So we need to put this on a statutory basis.
In relation to bringing the age into parity between children in and out of care, the point was made by the children who spoke to us that children’s vulnerability is not determined by their membership of a particular group or their legal status. There are many profoundly vulnerable children who are not in the care system and who need the protection of the law. We heard from some of those girls and boys. Indeed, there are many more victims of sexual exploitation who are not in care and have not been in care than there are within it. During the course of the inquiry, we met some children who have been through some appalling things who had never been in care. While it is too late for them, we need to make sure that other profoundly vulnerable young people who happen to be living with their parents have the same protection as those under the state’s care.
The Government have shown real engagement with the inquiry’s findings so far, and I am delighted that they have adopted one of the inquiry’s recommendations by tabling an amendment to the Criminal Justice and Courts Bill on the topic of grooming. It is clear that these amendments on abduction would be another strong step towards giving the police the tools that they need to prevent some truly vile behaviour.
Baroness Howarth of Breckland
My Lords, I was recently approached by a very senior ex-policeman with whom I had worked in the past, who was trying to help a number of children’s homes and hostels in the north of England. He found that there were men who came to the hostel and took older girls out, and the hostel was totally unable to do anything about it. They could simply go and fetch the girls back, but the girls were so emotionally engaged, as the noble and learned Baroness and the noble Baroness said, that they went out again. What the hostel desperately needed was the capacity to take stronger action against the men, and I believe that that is what would happen were we to accept the essence of these amendments.
Child Abuse
Baroness Walmsley Excerpts(9 years, 10 months ago)
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Lord Taylor of Holbeach
We know that these are devolved matters in some areas. As the former leader of the Scottish Parliament, the noble Lord will know that Scotland is affected as much of the United Kingdom has been by these matters. We have inquiries going on in Northern Ireland and north Wales. In so far as it is not a devolved matter, the inquiry will indeed embrace the entire United Kingdom, but it is about England initially. However, I am sure that we can all learn from each other’s experiences. If there is a willingness to accept, across the United Kingdom, that information should be exchanged between the Governments and Assemblies in other parts of the United Kingdom and the inquiry, I am sure that that will be made clear.
I say to the noble Baroness, Lady Smith, that I have received a comment about gagging and whether people will be prevented because they have signed a commitment not to talk about matters. I make it clear that this is to be a wide-ranging review. It will have access to all papers and reports, as I have said, and, subject to the constraints of criminal investigations, it will be free to call witnesses. We have made it clear that if the inquiry panel deems it necessary, the Government are prepared to convert it into a free inquiry. It will have considerable powers.
Baroness Walmsley (LD)
My Lords, I welcome the Statement, particularly the independent inquiry. Indeed, I added my voice to those who were calling for such an inquiry during my debate in your Lordships’ House on 26 June.
There is no reason why such an inquiry should in any way interfere with the work of the police as long as the panel has available to it people from the police and the prosecuting authorities who know what is going on and which inquiries are actually under way. I ask my noble friend whether such people with up-to-date knowledge of what is being looked into and may be looked into in the future will be attached to the panel so that it can avoid straying into areas that might prevent perpetrators being prosecuted in the future. That is very important.
I ask my friend whether the inquiry will focus more on learning lessons than pointing fingers. It is the role of the police and the prosecuting authorities to point fingers and to bring perpetrators to justice, but they are not in the position, as the panel will be, to learn overall lessons. I echo what the noble Baroness, Lady Smith of Basildon, said about victims. They need to be at the heart of this. We need to be sure that they can be heard and will have support in order to be heard.
Finally, what will be the scope of the recommendations that the panel will be able to make? Clearly, it will be making recommendations on changes of practice. Will it also be able to make recommendations on changes in legislation? What will be the procedure for the Government to respond to those recommendations in the fullness of time?
Lord Taylor of Holbeach
I will start on that final point. There will be no limit on what the inquiry will be able to tell us all about what it finds. That is the whole point of it. My noble friend assumed too much when she said that it would not be pointing fingers. I think it will point fingers, and it should do so if it feels that areas of government have failed, either now or in the past. The panel needs to be able to tell us that, and it is right and proper that it should do so.
Of course it is important that people who have been subjected to child abuse feel that this inquiry is about what has happened to them. However, the principal thing that I would urge them to do is to go and tell the police what has happened to them. It is for the police to bring justice to these incidents. We are trying here to learn the mechanisms whereby we can have that framework and whether that is possible or easy to do.
My noble friend asked about the constitution of the panel. I cannot give information on that. No doubt the panel will be constructed to provide the right sort of expertise. We do not want the panel to be so inhibited by the situation regarding criminal prosecutions that it fails to do its work properly. It will have a proper legal basis for making inquiries so that prosecutions, if necessary, can follow from what it discovers.
Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012
Baroness Walmsley Excerpts(11 years, 5 months ago)
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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?
North Wales Abuse Allegations
Baroness Walmsley Excerpts(11 years, 6 months ago)
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Lord Taylor of Holbeach
The whole House will be awaiting the results of the inquiry from Sue Berelowitz which is likely to come out later this month. However the noble Earl is absolutely right: we have perhaps been complacent in the past. We can no longer be complacent on this issue. I hope that the Government are making it clear that they do not intend to be complacent and will pursue all these matters so that we have a better environment for child protection in this country.
Baroness Walmsley
My Lords, following on from what the noble Earl has just asked, will the reports that the Minister has just announced be free to make recommendations to public services and organisations? It seems likely that recommendations will be made to social services, the criminal justice system and the police. Health services, such as STD clinics where young girls go over and over again, are very often in a position to pick up warning signs, which they do not always pass on. This has recently come out in the report referred to by the Children’s Commissioner. Similarly, in the education service, schools can help to prepare children to understand the dangers and to protect themselves.
Lord Taylor of Holbeach
My noble friend is absolutely right. A multi-agency approach is the way in which this issue needs to be addressed across government. She quite rightly points to the fact that different aspects of government are able to assist in this process. It is certainly the Government’s objective to have a cross-departmental, cross-agency approach in order to make sure that the information that we have gained through these unfortunate events, and the public attention which has been drawn to the exposure of the Jimmy Savile case, can be properly addressed so that we can create a better place for young people in this country.
Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Prescribed Criteria) Regulations 2012
Baroness Walmsley Excerpts(11 years, 11 months ago)
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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 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.