Protection of Freedoms Bill

Lord Bishop of Newcastle Excerpts

Tuesday 6th December 2011 Lords Chamber

[Lord Bichard]

My Lords, as chairman of the Soham inquiry there are perhaps some who think that I was the instigator of the arrangements in place for child protection, which this legislation seeks to change, and that I would therefore inevitably be opposed to these proposals. In fact, if your Lordships looked at the Soham report, you would see that I was looking for proportionate arrangements. I believe that, in some respects, the arrangements that were subsequently introduced were disproportionate and I am not therefore in principle opposed to some amendments. I want to make it clear that I will be looking carefully at the proposed legislation when it leaves Committee to see whether the new proposals are, in my view, proportionate. If I do not think that they are, I will want to move some amendments on Report.

However, it is right to say at this point that I have particular concerns about the issue of supervision. As has already been said, we are dealing on occasions here with people who are extremely manipulative. I seriously doubt whether any form of supervision will prevent the likes of Ian Huntley from perpetrating their evil. As someone who has led and managed many organisations, of course, I am also aware that the quality of any supervision is extremely variable but I believe that it is difficult to supervise the likes of Huntley to the point where we can be satisfied that they will not work their evil. It is particularly regrettable to use words such as “day to day supervision”; I have no idea what that means. I can begin to understand “close and constant”, which is suggested in Amendment 60, but I have serious doubts whether any supervision can be close or constant enough to satisfy my requirements.

[The Lord Bishop of Newcastle]

My Lords, I have anxieties about this concept of supervision because the Bill does not actually define what that means. As I understand it, the definition is to be left to employers, although guidance is planned. But the Bill and these proposed amendments do not quite recognise some of the challenges that we face in a church environment. Just imagine a youth club worker, for example, who may well be supervised during a formal session but who may well have other, unsupervised contact with children and young people at other church activities, thus leaving plenty of opportunity to develop inappropriate relationships and, indeed, to groom children. It should also be recognised that those who are being supervised can still develop relationships with children who could be exploited. The limitations on regulated activity, based on this rather nebulous concept of supervision, seem to leave a great big gaping hole in the Bill.

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Frankly, the effect of government proposals is exactly the opposite. The Bill restricts the discretion of employers to seek a greater degree of information on applicants for positions, should they regard those positions to be of greater than normal risk. It is our view, hence these amendments, that by far the simplest, least bureaucratic and most watertight system—and surely that is what we want—would be to give employers the ability to view ISA barring decisions on all individuals for whom they seek an enhanced CRB check.

[The Lord Bishop of Newcastle]

My Lords, I would be grateful if I could ask the Minister for clarification. As I understand it, the intention is that the vetting and barring scheme will continue, albeit in a more scaled-down way. I understand that the current legal requirement to refer for possible barring any employee or volunteer who is deemed to represent a risk to children will continue, but the scope has been narrowed so that people will be placed on the barred list only if the ISA has reason to believe they are, have been or might in the future be working in a regulated activity. Yet at the same time the definition of regulated activity is being narrowed.

I ask the Minister if this means, for example, that a person may be barred from teaching, a regulated activity, but not from working as a voluntary teaching assistant, which is a non-regulated activity, if there is supervision; and that, further, any CRB check for the voluntary teaching assistant would not disclose that the individual is barred from regulated activity. I hope I am wrong in that—surely that cannot be right. Obviously this limitation, if it is enacted, would have very serious risks for the safe recruitment of people, not least within church and, indeed, other circles.

[Lord Henley]

My Lords, I thought that the noble Lord, Lord Rosser, had managed to silence the entire House, but the right reverend Prelate proved me wrong. I hope I will be able to respond to the remarks of the right reverend Prelate in due course.

I am grateful to the noble Lord for his explanation of Amendments 68 and 69, which make three substantive changes to the barring arrangements. First, they would reverse the change in Clause 67, which limits bars to those people who have been, are, or might in the future be engaged in regulated activity. The effect of this amendment would be that the barring regime would continue to extend to many people who do not work with, and do not intend to work with, children or other vulnerable groups. For example, a lorry driver or an office worker who has not worked with vulnerable groups and does not intend to would be barred from such work. We do not think that this fits with the purpose of the scheme and it does not accord with our aim of reducing the barring arrangements to common-sense levels.

Bars should continue to apply to those who have been engaged in regulated activity or who are likely to be so in the future. If an individual applies for an enhanced criminal record certificate or a barred list check, indicating that they may seek work in regulated activity, any automatic barring offences will be disclosed and referred to the barring authority at that point. In addition, enhanced criminal record certificates will continue to be available to employers of those working with children or vulnerable groups—including volunteers—and will provide information on previous criminal offences.

The second of the three changes that this amendment seeks to make concerns the category of offences that lead to an automatic bar, in relation to which representations can be made. Under the current arrangements, such representations can be made only after the person has been placed on a barred list. As a result of Clause 67, individuals would be able to make representations before the barring decision is made. Amendment 68 seeks to reverse that change, such that representations would still be made retrospectively. The provision in Clause 67 was made in response to a recent court ruling; but even if that were not the case, it seems to be a matter of basic fairness that representations about a decision should be considered when there is still a chance to influence that decision. Currently, someone may be barred, and even if that bar is revoked, they may already have been denied employment as a result.

The third change is that representations in both automatic and discretionary barring cases would be accompanied by the right to oral hearings. I do not consider that to be necessary. We have to remember that the Independent Safeguarding Authority is not a primary fact-gathering organisation but depends on information that comes from employers, regulators and others for its evidence. The person concerned may then submit representations about any or all of the evidence, which the ISA will evaluate fully. Once, having assessed all the evidence and the representations, it has determined whether the person ought to be barred, there is a final safeguard by way of recourse to the Upper Tribunal on a point of fact or law. Oral representations are not prevented under the current legislation, and the ISA will consider all requests on a case-by-case basis. We can debate the issue of oral hearings, but it seems inconsistent that the noble Lord wants to make this change while also seeking to revoke that more basic procedural change on allowing representations before the barring decision has been made.

Amendment 69 proposes that information about whether somebody is on the relevant ISA barred list should be made available on all enhanced criminal record certificates, regardless of whether the post falls within the barring regime. The Government’s position is that although there is a case to make such information available for a few specific cases falling outside regulated activity—such as applicants to foster or adopt a child—barred list information should otherwise be made available only for positions falling within regulated activity. This represents a very simple but important principle: barring by the ISA is about regulated activity and barring decisions are made in order to prevent people, by law, from working in regulated activity. They are not intended as a broader advisory tool for employers. An employer providing regulated activity needs to know if someone is barred, because they are then required by law to refuse that person’s job application. However, it is not relevant for an employer to know this when they are seeking to engage someone in non-regulated activity. Such information would only tell them that the person was barred from another area of work and making it available would be detrimental for potential employees—it is very likely that an employer in such a situation would refuse employment because they saw the word “barred”, even though the person may not represent a risk to any vulnerable people in that job. I do not believe that is a new principle. Under the existing arrangements, barred list information is not generally disclosed for positions falling outside regulated activity, so I am a little surprised that the noble Lord now advocates such a change. The changes we are making are to the scope of regulated activity.

The right reverend Prelate asked whether a person barred from teaching, but not from being a teaching assistant, could still be allowed to work. If the supervised volunteer was not on the payroll of the school, it is possible that that supervised volunteer could be barred from regulated activity and could still undertake this not-regulated activity. CRB checks and references, plus the supervision, should provide the necessary safeguard. Bars have only ever been applied to the regulated activity. That was the case before and will be the case in future. The answer, if I have got it right, is very simply that the teaching assistant could work but that obviously there would be adequate supervision —a matter that we discussed under an earlier amendment.

I hope that with those explanations, the noble Lord will feel able to withdraw the amendment. If not, I leave that matter to him.

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My fear is that by withholding disclosures from bodies that have a duty to protect against such dangerous individuals, we are asking them to engage in an unnecessary game of cat and mouse with people who may seek to use the organisation's blind spot to their advantage. I therefore welcome the Government's ongoing engagement with the voluntary sector on this issue. Amendment 73 goes some way to recognising the sector's requirements, but there are still grave concerns, as my noble friend Lord Addington said, and I would welcome the Minister's assurances that the Government will take into account the circumstances in which national bodies operate and take on board the compromise solution offered by this amendment, with due consideration of the timeframe delay.

[The Lord Bishop of Newcastle]

My Lords, I, too, wish to register some anxieties about the proposals, and support some of the comments made by the noble Baroness, Lady Heyhoe Flint. As we know, under the Bill only one CRB certificate will be produced and provided to the individual concerned. That is a significant change to the current well established practice whereby a replica certificate is provided to the appointing body. The report that made the recommendation was based largely on the difficulties caused when inaccurate information has been disclosed. However, the Criminal Records Bureau, as the noble Lord, Lord Addington, said, reports that inaccurate information has been disclosed in just 0.07 per cent of cases. I do not believe that such a small number of admittedly distressing cases could justify such a significant change. The CRB also says that many more certificates are returned marked “undeliverable” when addressed to the applicant than when they are addressed to the registered body. If only one copy is to be sent to the applicant it risks, at the very least, further delay in any appointment process. Are we as registered bodies to be totally dependent on the individual—volunteer, in our case—concerned?

I am anxious that the Bill might miss the opportunity to set up a safe and workable system. I speak for safety in our churches, and my belief is that appointing authorities need to have access to enhanced CRB disclosures for all those who will have significant contact with children or vulnerable adults, not just those who are engaged in regulated activity as narrowly defined in the Bill. Repeated abuse tragedies highlight the importance of carefully scrutinising those who seek to work with children. We have a very particular responsibility in the church to ensure that robust and safe procedures are in place for recruitment and afterwards. Access to CRB disclosures is not the only element in the process, but it can be crucial in a small number of cases. I, too, hope that the Minister might think again about this particular part of the Bill.

[Lord Rosser]

My Lords, we also have an amendment in this group, Amendment 75A, the thrust of which is very much in line with the amendment in the names of the noble Lord, Lord Addington, and the noble Baroness, Lady Heyhoe Flint. The effect of our amendment, too, is to delete the Bill provisions to remove the requirement for the CRB and enhanced CRB certificates to be sent directly to the employer as well as the employee, and instead to provide for certificates to be sent to employers two weeks after being sent to the individual applicant, unless that applicant has lodged an appeal.

As has been said, currently organisations and companies providing work with children or vulnerable adults receive a copy of the regular or enhanced CRB check when it is sent to the individual applicant. The Government propose to scrap these existing provisions on the grounds that they do not leave individuals with a chance to appeal or query information on the record. Our view is that the Government’s proposed changes would place unnecessary burdens on organisations, would damage the voluntary sector—as has been said, by potentially deterring volunteers with irrelevant criminal convictions from applying—and would also put children and vulnerable adults at greater risk by creating loopholes in the system that would be open to exploitation, to which reference has already been made.

Currently of course, many larger organisations process their CRB checks centrally through qualified professionals. The CRB checks are sent directly to the central departments at the same time as being sent to the applicant, which enables swift processing of applications and minimises delays in employment. However, there are now concerns about the additional resources and time that will be spent chasing CRB checks with the individual under the provisions of this Bill. Perhaps more importantly, by requiring the individual applicant to submit their CRB certificate to the organisation, there is major concern within the voluntary sector that the Government’s proposed changes could deter volunteers with minor and irrelevant criminal records from coming forward.

The Minister has stated that the Government envisage that the applicant would simply be informed of the central address to which they should send their certificate and would pass it directly to them. However, that will not be the case in all organisations and will only add to the delay in processing applications. On top of that, it still does not address the point that, if the CRB check is revealed to the individual before being submitted to a central bureau in the organisation, it may prompt the individual—wrongly—not to proceed with the application on the basis of wrong assumptions about the relevance of the information on that record.

Finally, we believe that changes to the CRB disclosure process will create a system that is more open to exploitation from the small minority of individuals who should not be seeking access to children and vulnerable adults. Organisations such as Fair Play for Children and sports associations all point to examples of the extent to which predatory individuals will go to manipulate and exploit procedures in place. I will not repeat any of those, since the one I have is the same as the one referred to by the noble Baroness, Lady Heyhoe Flint.

The Government’s amendments today propose to address the problem by sending an electronic notification to the employer, once the certificate has been issued to the applicant, where the certificate is clear of any previous convictions or police information—as is the case, as has already been said, in 92 per cent of cases. However, we do not believe this goes far enough in addressing the problems that have been identified. Organisations will still have to chase certificates and delays will still occur in the 8 per cent of disclosures that are not clear. Applicants will still be required to submit certificates themselves, and therefore the potential to deter volunteers remains, for the reasons I have mentioned. In the minority of cases that are not clear of offences, the requirement for the individual to submit the check still leaves open the possibility of fraud and abuse by individuals.

Our proposed amendment would simplify the system while still allowing reasonable opportunity for the applicant to appeal any information. Our proposal is almost identical, as I understand it, to the one proposed by the noble Lord, Lord Addington, in that it would provide for a delay between the time that the certificate is sent to the applicant and the time it would be sent to the organisation and the employer. The only difference is that we have proposed a delay of two weeks, whereas the noble Lord, Lord Addington, has proposed a delay of, I think, 10 working days, so we are talking about the same period of time in reality. Our amendment also ensures that, should the applicant lodge an appeal within that period, the CRB would suspend disclosure to the organisation for the duration of that appeal.

The line of argument running through the Government’s changes to existing safeguarding arrangements in this Bill is one of what they describe as proportionality and common sense—or, to use the Minister’s favourite word, balance. However, the Government’s approach to CRB check disclosures is wildly disproportionate. According to the Criminal Records Bureau—and this point has already been made on more than one occasion—just 0.06 per cent of disclosures have inaccuracies in them and some of these are simply a case of a misspelled name rather than a serious matter for appeal. The reality is that the Government are proposing changes that will increase bureaucracy for organisations, deter volunteers and create a potential loophole to be exploited by highly manipulative individuals; all apparently for the sake of 0.06 per cent of CRB checks. Our amendment addresses these issues.