Protection of Freedoms Bill

Debate between Lord Bishop of Newcastle and Lord Henley

Tuesday 6th December 2011 Lords Chamber

[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.