Protection of Freedoms Bill

Lord Rosser Excerpts

Monday 12th March 2012 Lords Chamber

[Lord Rosser]

My Lords, under the Bill, it will be possible for people who have not been subject to the barring arrangements to work regularly with children or be in regular contact with children. Such a situation could arise if individuals concerned were being supervised by someone else. Employers in this situation will not be prohibited from requesting CRB checks on individuals who apply for “unregulated posts”, but they will not be legally required to do so after the Bill is passed. However, crucially, employers will no longer be able to see the “barred status” of an individual for posts which fall outside regulated activity.

It will be not be possible to ascertain whether the Independent Safeguarding Authority has ever made a judgment that the individual in question should be barred. Instead, it will be left to the organisation or body concerned to seek any information in the Criminal Records Bureau check and make its own judgment, but it will be unable to find out what conclusions the Independent Safeguarding Authority may have come to despite the fact that one would expect it to have some expertise in this area.

The Independent Safeguarding Authority collates and assesses information from a wide range of sources in order to come to a decision on whether an individual should be barred from working in regulated activity. Enhanced CRB checks, on the other hand, disclose only information held by the police and do not take into account the wider pool of evidence. Yet, as has already been said in the debate, roughly 20 per cent of the people on the barred list have never been in contact with the police and the evidence that has led to their being barred has come directly from employers and other sources. Surely, the objective should be to ensure that if one organisation or authority is aware that an individual has a record of abuse of others of whatever age, another authority or organisation engaging that person, either as an employee or a paid volunteer in work with vulnerable people, should not do so in ignorance of that individual’s previous record of abuse, including any assessments that have been made.

It has already been said that serious and potentially serious sexual offenders are all too often very good at covering their tracks and their activities. The Government have maintained that adults who have been “barred” by the Independent Safeguarding Authority from regulated work with children should be allowed to work under “supervision” with children. They have, unfortunately, not yet listened to children’s charities, voluntary organisations, schools and parents who tell them that however close the supervision it cannot prevent bonds of trust being formed between adult and child that could be exploited outside the supervised context and environment.

It is all very well wanting to reduce regulation on those who work regularly with children and have close contact with them, but we need to take care that it does not unnecessarily put at risk someone else’s safety or, in extreme cases, their life. I do not regard that comment as a cheap shot but as a realistic attempt to address the question of balance and proportion in considering this very serious issue.

The Government say that they are committed to giving organisations more responsibility to determine the appropriateness of checks for different roles. Therefore, surely they should not deny organisations which wish to benefit from the expert judgment of the Independent Safeguarding Authority and the full extent of information held by it from doing so if they consider it appropriate. If the Government are determined to remove obligations to check many thousands of individuals, they must at least allow employers and organisations using the services of adults to work regularly and in close contact with children, in whatever settings, to apply independently not only for enhanced CRB checks but also for the “barred status” of individuals and to recommend this as good practice.

We support the amendments, including that to which the noble Lord, Lord Bichard, has put his name. That amendment addresses the issues to which I and many others have referred in this debate and places an additional requirement on the Government to recommend in guidance the routine checking of non-regulated individuals as best practice, which takes us closer to an appropriate position on ensuring the safety of our children.

[Lord Henley]

My Lords, as always, I am grateful to the noble Lords, Lord Bichard and Lord Harris, for introducing their amendments. As always, I am grateful, too, to all those who have spoken in this debate, though at times it felt not like a debate on the amendment but more like a Second Reading debate on the general principles. I should remind the House that we are at Third Reading. I make that point because we have gone way beyond day-to-day supervision, which is the subject of the amendment of the noble Lord, Lord Harris, and way beyond children, which is the matter of the substantive amendment. We have got on to such things as vulnerable adults, which is another matter and not relevant to what we are discussing today. I want to discuss the particular amendments, of which there only two, Amendments 4 and 5, and respond to them in due course.

I start with the simpler amendment, from the noble Lord, Lord Harris, because I think that he received very little support for it other than from his Front Bench—I am not even sure that he supported his own amendment, because he pointed out the inadequacies of it. The amendment would require anyone in a school supervising a volunteer who looks after children to monitor communication between that volunteer and the children. It specifies types of communication they must monitor, including sign language. As I think the noble Lord accepts, it is too prescriptive. We have more faith in the common sense and good judgment of managers in schools than seems to be implied by the amendment.

No doubt the noble Lord will make up his own mind about what to do with the amendment. He has had very powerful support from his noble friend Lord Rosser, but I am not sure that he has had it from others. Therefore, at this stage, the important thing to do would be to move on and deal with the substantive amendment in this group of two, which is that in the name of the noble Lord, Lord Bichard. If the House wanted to come to a conclusion on these two amendments, I would hope that it would come to a conclusion on that in the name of the noble Lord, Lord Bichard, and not that in the name of the noble Lord, Lord Harris. I make that purely as an introductory point.

The noble Lord, Lord Bichard, seeks four things; first, that enhanced criminal record certificates be available where someone is working regularly and closely with children; secondly, that the Government issue guidance on what “regular and close” means; thirdly, that the guidance will recommend it as best practice to obtain an enhanced certificate; and, fourthly, that those certificates contain information about a person’s barred status, which could also be obtained by a direct barred-list check. I shall deal with those four points in that order. I hope that the House will listen to me carefully and remember that it is with those four things that we are dealing and not wider aspects in relation to the CRB and so on.

On that first point, I am happy to confirm that all those people who work regularly and closely with children will remain eligible for enhanced criminal record certificates. People who remain within regulated activity will be eligible for them for that reason alone. People no longer within regulated activity will remain eligible for them, as I have confirmed before and can do so again. In view of those assurances, I hope that the noble Lord will agree that it is not necessary to place that provision in the Bill.

On the second issue, that the Government should produce guidance on what regular and close contact means, we are already meeting the substance of this proposal. Clause 77 already commits the Government to publishing statutory guidance on the meaning of day-to-day supervision. We must be careful to avoid introducing two sets of statutory guidance about similar subjects, which would create confusion and lead to unnecessary additional burdens on businesses and voluntary organisations. Therefore, while we cannot meet the form of the noble Lord’s proposal in this area, I believe that we are already meeting the substance.

Thirdly, the amendment states that the Government should recommend that obtaining enhanced criminal record certificates is best practice for those who work closely and regularly with children. Again, here I can offer some reassurance to the noble Lord and others who have spoken. I can confirm that the statutory guidance on supervision, which we are already committed to introducing, will recommend that it is good practice to obtain an enhanced criminal record certificate when employees or volunteers are new or unknown to the organisation or if checks are needed for new posts or staff moves. Where existing employees are concerned, I hope that the House would agree that it is properly a matter for employers and voluntary organisations to judge whether periodic checks are helpful or whether to use the new updating service which helps make these criminal records more portable.

The final proposal of the noble Lord, Lord Bichard, is that employers should be able to discover whether those of their employees who work, or will be working, regularly and closely with children are barred from working with children, either via an enhanced criminal record certificate or via a direct barred-list check. Barring information will be available in relation to posts within regulated activity and a few compelling exceptions such as those applying to foster or adopt a child, but the Government cannot agree to release barring information in other circumstances.

At this juncture, it might be worth going back to the review of the vetting and barring scheme which we published a little over a year ago. The context of the review was to achieve a better balance between public protection and civil liberties: to achieve a system which is, to use a word which Ministers have much deployed during debates on the Bill in this place and another place, proportionate. The protection of vulnerable groups, including children, is paramount. That is why the review concluded that a central barring scheme should be maintained.

However, there are other important principles which need to be balanced with this, not least the civil liberties of individuals, and that is why these measures are included within the Bill. Those viewpoints have received somewhat less airing—I am grateful that some have—in this House but they are very real and widespread. It is not proportionate for barred people to have their barred status communicated to employers when it is not relevant. It is relevant in the case of a post falling within regulated activity because the person is prohibited from working in that role and the prospective employer must know that. Otherwise, it is not proportionate to pass on that information because bars relate only to regulated activity. Passing on barring information would tell employers that a person is barred from another area of work. However, despite that, many employers will not engage someone if they see the word “barred” even if the bar is not relevant to that role. To introduce this change would be greatly to expand the number of people subject to barred-list checks and it would undermine our efforts to reduce the scope of regulated activity and to make the barring arrangements more proportionate.

However, I can offer the noble Lord some reassurance in this area. While we do not think it right to communicate that someone is barred in these cases, it can be useful to pass on the information which led to the bar. This is more valuable information for an employer. In most cases this will be visible on an enhanced certificate anyway, not just in the four-fifths of bars which follow automatically from a criminal conviction or caution but in many of the one-fifth of bars which derive from other information. As I have said before, we will encourage regulated activity providers to report information to the police where appropriate, as well as to the Independent Safeguarding Authority.

I can offer one further measure. Section 50A of the Safeguarding Vulnerable Groups Act allows the Independent Safeguarding Authority to provide any information to the police, which could include the information which led to a bar. While the existing purposes for which this information can be passed to the police do not include the purposes of disclosing information on an enhanced criminal record certificate, Clause 77(3) of the Bill allows the Secretary of State to prescribe new purposes. I can confirm that we will include a new purpose for providing information for disclosure on enhanced criminal record certificates. We will introduce this alongside the new definition of regulated activity. This 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. This is a better solution than telling an employer that someone is not barred. Indeed, providing the information that led to a bar will be of far more benefit to a prospective employer than simply providing the word “barred”, allowing the employer to make an informed choice.

The noble Lord, Lord Bichard, said on Report:

“I would like to think that we could say quite simply that all organisations employing adults, whether paid or unpaid, to work regularly with children, in whatever setting, should be able to carry out enhanced CRB checks, and that should be recommended by the department as good practice”.—[Official Report, 15/2/12; col. 798.]

I have made it clear to the House that we are committed to delivering on both these points. Indeed, I hope noble Lords will agree that I have gone further in undertaking to provide for the police to include the reasons for a barring decision on an enhanced certificate where such information is relevant to the post in question, but only where it is. On that basis, I hope the noble Lord, Lord Bichard, will agree that I have satisfied the points that he raised on Report and will agree not to move his amendment.