Protection of Freedoms Bill

Debate between Earl of Erroll and Baroness Walmsley

Monday 12th March 2012 Lords Chamber

[Baroness Walmsley]

My Lords, I support the amendment of the noble Lord, Lord Bichard. It may be moderate and proportionate but has the potential to close a dangerous loophole in the Bill. Both he and the noble Lord, Lord Harris, have explained clearly the issues of secondary access, so, it being Third Reading, I do not intend to repeat them.

I do not support the amendment of the noble Lord, Lord Harris of Haringey. As he hinted, it is intended to highlight the fact that it is impossible for any employer or organiser of volunteers, however conscientiously they supervise a person working with children, to supervise them when they are off the premises. That leads us to the point that we have to ensure that the people who are on the premises working with children are safe to do so.

I hope that my noble friend will be able to assure the noble Lord, Lord Bichard, that his amendment is unnecessary. I hope that he will give him 100 per cent assurance, not just 80 per cent assurance. By that I mean that barring information will be made available to conscientious volunteer organisers or employers of paid employees.

We should cast our minds back to when the Safeguarding Vulnerable Groups Act was introduced. It was brought in because it was discovered that paedophiles were working in schools. At that time, the hapless Minister was made responsible. As a result, we set up an Act of Parliament to put in place a committee of experts to decide whether the information available made it possible to say whether that person was safe to work with children.

As the noble Lord, Lord Bichard, pointed out, only 80 per cent of the people who have been decided by the expert panel to be unsafe are known to the police. I point out that the enhanced CRB check contains information about not just charges and convictions but other information only if the police, at their discretion, think it is relevant to release it.

That expert committee has barred one in five people not as a result of police information but because of other information that the police do not know and therefore could not release even if they wanted to. Those experts believe that the information passed to them is serious enough to bar that person from working with children. Given that you cannot supervise a person 100 per cent even on the premises, and you certainly cannot supervise a person off the premises, it is only right that conscientious employers who want to do the right thing for the young people in their charge should be able to have that information—not just the police information but the information from the expert committee, which we as a Parliament have set up, and which believes that that person is not safe to work with children.

That is particularly important given that we are taking away certain roles from regulated work. That means that organisations such as FE colleges cannot under the Bill get that information about some of their employees. That beats me. I cannot for the life of me figure out why the Government feel that it is appropriate to treat young people in colleges differently from those very same children when they go to a school for the rest of the week. However, that is beside the point, because the amendment of the noble Lord, Lord Bichard, would allow employers in colleges to obtain the information that they are crying out for to enable them to protect young people in their charge. I hope that my noble friend will be able to give us a 100 per cent assurance that those risks and loopholes will be closed.

[The Earl of Erroll]

My Lords, everyone is singing from the same hymn sheet on this matter. These are very well meaning amendments and I thoroughly approve of the sentiment behind them but I should like to strike a note of caution: I am not sure that they will necessarily work in the real world because rules do not protect people.

I think that we are going to get the same problem as arises with the Health and Safety Executive. I know that applying for CRB information is supposed to be voluntary but colleges will protect themselves defensively by automatically asking for checks on everyone. Such requests will become standard and we will be back where we were. The purpose of the Bill is partly to try to reduce the number of checks being carried out, as they have been blocking perfectly good and well known people working in situations where they might come into contact with children or whatever. We were going so far overboard that something had to be done to roll the situation back, and we have to be careful that we do not end up back where we were.

The other thing is that we must think about how effective all this checking is. We know that several thousand records are incorrect, with people having a black mark against their name because the name given is wrong or whatever, but the trouble is that we do not know who they are. They are being criminalised when they are not criminals at all and have never been in contact with children in any way. They are not even victims of hearsay.

The second problem is that 20 per cent of the people on the register, I am horrified to say, are there as a result of unverified hearsay. That may be perfectly all right, as I expect that a large proportion of those people will have done something wrong. However, what about those who cannot do anything about it because they do not know that someone—possibly for a thousand and one reasons—has given information which could be blocking them?

My final point is about keeping our eyes open. It has to be remembered that in many instances someone without a criminal record will just be someone who has not yet been caught. Therefore, just because they do not have a criminal record does not mean that they are okay, and that is why I think that we have to start keeping our eyes open. The trouble is that we trust too much in box-ticking, and that then also constrains the people who are trying to protect the children—the governors and teachers. My wife is a senior school governor and was recently involved in a case where she had to go to court because the school in question was trying to fire a teacher. This is an example of something happening off the premises. It involved a friend of the teacher who was behaving inappropriately towards the children. The teacher’s union defended the teacher’s right to continue to work at the school, despite the teacher having shown appalling judgment. The school was terrified of losing the case. My wife spent a huge amount of unpaid voluntary time in her busy day learning about the law and how to deal with the case in court and so on because she was going to have to attend the hearing. If she got it wrong, the teacher would be allowed to continue to be in close contact with the children. Therefore, you need to keep your eyes open.

We can often detect the bad eggs but the problem is that employment law does not let us do anything about it. I think that we need to look at how employment law restricts our ability to protect children, because you cannot say to someone, “You don’t fit in. Your face doesn’t fit—we think there’s something wrong about it”; you have to continue employing them. Although it may not be a matter for this Bill, I think that some effort should be made in that direction, rather than just trying to tick more boxes. The databases are inaccurate and, on their own, will not protect children.

Protection of Freedoms Bill

Debate between Earl of Erroll and Baroness Walmsley

Tuesday 13th December 2011 Grand Committee

[The Earl of Erroll]

Thank you. I am sorry to have wasted the Committee’s time. In general, I think that a lot of these amendments are very useful, and they should be taken away and looked at hard by the Minister. We should be moving from an opt-in basis to an opt-out basis and avoiding adding costly burdens to the school system.

[Baroness Walmsley]

I support my noble friend Lady Hamwee on Amendment 91 and will make a few comments about other noble Lords’ comments.

Amendment 91 is necessary on the basis of children’s international convention rights: the privacy rights that a child has under Article 8 of the ECHR and Article 16 of the UN Convention on the Rights of the Child. In particular, Article 12 of the UNCRC says that a child has a right to be heard in decisions that affect them. The UN Committee on the Rights of the Child has made it very clear that, in order for a child to realise that right, it is necessary that,

“the child be informed about the matters, options and possible decisions to be taken and their consequences”.

Therefore, this amendment is very important especially since, under the proposals before us, the child has the right to refuse consent as well as the parents. It is important that the parents and the child are given the information that they need in order to make an informed decision.

Further to what the noble Lord, Lord Rosser, said, I think that the reason why the child should have a final veto is because we are talking about very specific information about the child’s body—the fingerprints, the retina, the face or whatever. The child’s body belongs not to the parents but to the child. Therefore, it is very important that appropriate information is provided. Most children are very compliant and they like to co-operate with people who are in authority over them—their parents, their teachers and so on—so it is important to let them know that they do not have to do so. There may well be very good reasons why they should agree to co-operate, but they should also have the right not to do so if they wish.

Let me make just one or two other points. I listened with interest when the noble Lord, Lord Lucas, said that schools should know where every child is physically at all times of the day, and I quite agree. However, I think that that should rely on the attention of the teachers, rather than on the likes of CCTV or electronic cards passing through doors. There is a danger that, if there is too much of this sort of thing—electronic ID cards or CCTV—teachers will come to rely on it too much and the teacher’s vigilance will be reduced. We really have to ensure that the technology tail does not wag the human rights dog.

Going back to what the noble Earl, Lord Erroll, said about letting people know every year, I agree that the information should be reworded if the system changes or is enhanced in any way, but otherwise I agree with my noble friend Lady Hamwee that it is not necessary to reword it every year. That can be done very easily, given that every school has a website or newsletter or something that gets sent out regularly to parents or to which the parents have access. As long as the school makes sure that, one way or another, the parents have that information in not too much gobbledegook or jargon, so that they can understand what the consequences of this system are, the school will have fulfilled its obligation under our amendment.

It is important to have the information in order to make an informed decision, and we all expect that. When we enter into any sales transaction or credit agreement or any kind of contract, we read the small print—or we need at least to be provided with the small print, so that we can tick the little box saying that we have read the terms and conditions, even when we have not done so. The point is that we have a right to have that information, and we really must be provided with it.