Protection of Freedoms Bill

Baroness Hamwee Excerpts

Tuesday 6th December 2011 Lords Chamber

Our most vulnerable adults who are sent to education are sometimes sent to residential colleges, where the risks and dangers—as well as the advantages and benefits—are at their greatest. I ask the Minister for clarification on the position of vulnerable adults who are learning in further education institutions, whether on a day-by-day basis or in residential institutions.

[Baroness Hamwee]

My Lords, perhaps I may make some more general points following the comments in particular of the noble Lord, Lord Bichard. I struggled with both the terms “day-to-day” and “close and constant” and rather came to the conclusion that there may not be a snappy phrase that will deal with the issue that noble Lords have identified so powerfully. We may know the situation when we see it, but we may not be able to find a couple of words to describe every such situation about which we are concerned. I was glad to read—noble Lords referred to this—that the Government will provide guidance on the question of supervision. However, the guidance cannot go beyond the legislation.

It troubles me that we may be trying to find a way of putting succinctly into legislation something that will not quite fit. This might be an occasion when we have to be a bit more verbose than we would normally want to be—I do not know; other people’s language skills will be better than mine. However, I was left with the concern that we should not rely on guidance saying something in addition to what the legislation says, because it cannot.

I hope that the guidance which emerges at the end of this process is easier than the language in the Bill. I struggled an awful lot with the double negatives. It will not be a service to those who are working in the field if we cannot produce something that is much easier to follow.

I want to add one other thought which is very much implied, if not explicit, in what other noble Lords have said. Whom does a child trust more: the worker, for want of a better word, with whom he develops a close relationship; or a supervisor who has perhaps not been in a position to create the same trust, because the supervisor is the authority figure and may not be perceived as being on the child’s side?

[The Minister of State, Home Office (Lord Henley)]

My Lords, I am grateful to my noble friend Lady Hamwee for, in effect, finishing off this debate. She took us back to the general, which is what I want to start off with. I think that it was the noble Baroness, Lady Royall, who was somewhat critical of what we are proposing in this area and quoted a great deal from, I think, User Voice. I was then grateful for the intervention from the noble Lord, Lord Bichard, the author of the Soham report, who reminded the Committee that, as he put it, what had followed his report—the recommendations, if I may summarise them—was not exactly quite as proportionate as he felt it should be. I stress that we are looking for the right degree of proportionality and the right balance in the Bill. That will obviously be difficult to achieve. I am therefore grateful for the chance to address just some of the issues in relation to this amendment.

Sticking with that generality and the quotations that the noble Baroness, Lady Royall, gave from User Voice, I should remind her that there was considerable support for the Bill and the proposals in this area when they came out. I can quote Anne Marie Carrie, the chief executive of Barnardo’s, who said that the Government’s proposals were a “victory for common sense”. She said:

“There is already enough safeguarding in place for people who have unsupervised, substantial access to children”;

and that:

“This approach will make it easier for grandparents, parents and neighbours, who should be able to play an important role in a child’s life without unnecessary red tape”.

There was also support from the Scout Association, Nacro and others—I could go on. The question that we want to address is how to get the right degree of proportionality.

The amendments are very much in three groups. I do not know the intention of the noble Lords who tabled the various amendments, but if it is thought that we might vote on them, I should say that I am fairly sure that the amendments tabled by the noble Baroness, Lady Royall, would not be consequential on Amendment 58. However, we will get to that in due course.

Amendments 58, 61 and 62 were tabled by my noble friends Lady Heyhoe Flint and Lord Addington. I am grateful to them, and to my noble friend Lady Walmsley, for reminding us that my honourable friend Lynne Featherstone and I had an opportunity to discuss this matter with a large number of representatives of the sports and leisure sectors as well as a number of my noble friends at a meeting in the Home Office. There have been subsequent meetings and we have listened very carefully to the arguments presented. I think that we have taken on board some of those concerns.

Obviously one of those concerns is that supervision is very difficult to provide in the context of sport. That is what we want to deal with at this stage. The Bill now requires that we provide statutory guidance in relation to supervision to assist sports governing bodies, and others, to decide on whether a particular employee or volunteer falls within or outside the scope of regulated activity. As we have made clear, we intend to consult on draft guidance in advance of Report. I can assure the Committee that we will include the sport and recreation sector in that consultation. I can also assure the Committee that the guidance will include elements specific to that sector.

The noble Baroness, Lady Royall, asked me whether I could get the response to that consultation out before Report. I appreciate that Report, given the speed at which we are moving, is some time off and getting a response to that consultation might be somewhat difficult. However, we certainly hope to get the consultation out and that will be useful for the House to have a look at in advance of Report.

We do not, in principle, see the need to move away from the notion that where individuals can be properly supervised, then in some circumstances there is no need for their work to fall within regulated activity or for barred-list checks to be made. Proper supervision should help to reduce the risk of improper conduct and of inappropriate relationships developing. Noble Lords have spoken about the dangers in this area. I appreciate that there have been some concerns about what supervision means and whether this will apply, for example, to an assistant sports coach. However, I should say that we are not seeking to define supervision by a title, such as “assistant” or “deputy” coach or trainer. If such roles are working independently of the head coach and not being supervised, they would remain in regulated activity.

This provision is intended to provide additional flexibility for employing organisations and to help ensure that individuals are not dissuaded from volunteering. One of the bodies that commented on this was the Scout Association, which said that it preferred to supervise individuals when they first join the organisation before barred-list checks become necessary. There is of course no compulsion in the Bill for an organisation to provide supervision. Where it is unable to do so, activities will remain regulated and barred-list checks must be made.

My noble friend Lord Addington looked for examples of what would be adequate supervision. This will obviously vary according to where you are and what you are doing. In a classroom or indoor venue, the supervisor should be in the same room for the majority of the time, excepting that they may on occasion need to leave for a short break. In a classroom, a teacher or other adult in a regulated activity should be in the room with the supervised assistant and be able to see their work for most of the time. Matters would obviously be different in an outdoor context, and my noble friend was right to draw on this. On playing fields, one coach or supervisor should be able to supervise an individual on the same or a neighbouring pitch—for example, an assistant football or rugby coach helping with the same match or on a next-door pitch, but not across a vast number of pitches or where activities take place at a considerable distance. My noble friend also gave the example of an assistant coach who might have some special expertise that his superior would not understand. Again, if that were the case, the appropriate checks would have to be made because, I should make clear, the whole matter would be a question of tact and degree according to the facts of the case at any point.

Perhaps I may also say a word or two about the drafting of Amendment 61, because the noble Baroness, Lady Royall, raised a concern regarding the meaning of “recreational”. As drafted, that amendment would not in any event achieve the desired intention. It would not extend the list of establishments to include sports venues. It simply adds sport to the description of work in the existing list of circumstances. Its effect, therefore, is that supervised volunteers coaching sports in schools would be in regulated activity, but supervised coaches elsewhere—paid or unpaid—would not be. In addition—a point queried by the noble Baroness, Lady Royall—it provides no definition of a recreational activity, which could mean that the amendment would inadvertently catch a wider range of activities than intended.

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[Baroness Farrington of Ribbleton]

Can the Minister give the assurance which I understood his noble friend Lady Hamwee was seeking? He used the term “proper supervision”. I understood the noble Baroness, Lady Hamwee, to say that there ought not to be anything stronger in the guidance than the wording in the Bill defining “supervision”. It would be very helpful if the Minister could give an undertaking that that fear is totally unfounded and ensure that his sense of “proper supervision” is defined as much in the Bill as in the guidance.

[Baroness Hamwee]

Perhaps I should see whether I can make myself absolutely clear. My concern was that primary legislation must trump guidance and that guidance cannot go further than the legislation. That is what I was trying to express.

[Lord Henley]

The noble Baroness, Lady Hamwee, is a lawyer and she has expressed exactly how it should be. Obviously guidance does not go beyond the legislation. That is one reason why I shall resist the amendments put forward by the noble Baroness, Lady Royall, which ask for close and constant supervision, because we think that that goes too far. However, I shall address that in due course. The important point is that we have to get this guidance right. To get the guidance right, we have to get the consultation right, and I hope to have the consultation available before we reach Report.

Perhaps I may now deal with the noble Baroness’s Amendments 59, 60, 63A, 64 and 65. As always, we want to strike the right balance. Balance is the new word that I have learnt in the Home Office, and it is very important in this Bill that we get that right. I think it was the theme behind what the noble Lord, Lord Bichard, said. It is a question of proportionality. Our definition in this provision insists that it must be substantial. For example, an occasional, or even weekly, meeting between the supervisor and the supervised would not be sufficient.

The noble Baroness’s amendments would change the wording to “close and constant”, which would render the definition of supervision unworkable and go against the Government’s intention of having more proportionate disclosure and barring arrangements. If you think about it, the words “close and constant” are pretty severe. I gave the example of the classroom environment, and “close and constant” does not even allow leaving the room occasionally. They would in effect mean that the work of a volunteer working in a sports club under the supervision of a qualified sports instructor would become regulated activity if that qualified instructor left the room at any stage, because the supervision would then not be constant. That goes too far and undermines our proposals to scale back disclosure and barring to common-sense levels by imposing an unrealistically high test for supervision.

We believe that the Bill as drafted, coupled with the statutory guidance that we will publish following the consultation, will produce the right result in setting the boundaries of regulated activity. For that reason, when we get that consultation out, I look forward to comments from all around the country and from all noble Lords, and I hope that the noble Lord, Lord Bichard, will feed his experience into it.

Finally, I turn to the amendments tabled by my noble friend Lady Walmsley. Amendment 63 seeks, in effect, to bring all those who work in FE colleges within the scope of regulated activity. I should first stress that all paid teaching and non-teaching staff in establishments, including further education colleges, that wholly or mainly provide full-time education to children will remain within regulated activity and therefore must undergo a barred list check as part of their pre-employment checks. In addition, the unsupervised teaching, training, instruction, care or supervision of children in further education institutions will remain a regulated activity, even where such an institution provides education mainly to adults.

Amendment 63 would go further by bringing into regulated activity all work by any staff in further education colleges providing education to even a small number of children where staff have the opportunity for contact with children. Under the current scheme, such work is “controlled activity”. Controlled activity is to be abolished under Clause 68. We believe it is disproportionate and unnecessary to require such individuals to be subject to the same level of checks as those working in an institution wholly or mainly for the full-time education or care of children, for example in a primary school or a nursery.

The Government do not consider it proportionate for the state to require or allow barred list checks on activities that are currently defined as controlled activities. Such activities generally entail only incidental contact with children. I question whether all colleges would really welcome a duty to check hundreds of staff just because the college takes on, for example, half a dozen 17 year-old students.

[Baroness Hamwee]

Will the Minister move away from the wording of this amendment—I take the point he makes about it perhaps being too blanket in its coverage—and address the point about who is a child for the purposes of the protection that we are seeking to apply? I think that is what underlines the points made by my noble friends in addressing this. Technically, this may not be right, but they are concerned about the subject of the protection.

[Lord Henley]

My Lords, I understand the concern, and I think it might be necessary for us to have further discussions on this outside the House. I think my noble friends understand the importance of proportionality—I use that word again. The example I was giving when my noble friend interrupted me was about a college that takes on half a dozen 17 year-olds being affected. It might be that if it was half a dozen 14 year-olds, things would be different. It is a question of balance which, again, we will have to look at. I was about to say that the amendment goes too far; my noble friends agree that it goes too far. They will not press it, but obviously there might be scope for further discussions in due course.

Amendment 66 could also be very wide-ranging in its effect. It sets out that a regulated activity provider may decide whether other activity that it carries out is analogous to regulated activity. It also creates a new duty on the Disclosure and Barring Service to provide information that would otherwise be provided only in respect of regulated activity for any such activity that the provider decides is similar to regulated activity. We have stated that we do not think it is right to provide barred list information for activity that is not regulated activity. We have set out in Clause 64 what activity should be defined as regulated activity in relation to children. This amendment would in effect give regulated activity providers the ability to define any activity as similar to regulated activity and request barred list information from the Disclosure and Barring Service; for example, they could designate someone who has merely the slightest contact with children in a sport or recreation setting, or an employee providing first aid as an ancillary part of their job.

We do not think that Amendment 66 does what it says on the label, as it were. Again, I might have misunderstood what my noble friend is getting at with that amendment. If she would like to have further discussions, I am prepared to do that, although the last time we had discussions it resulted in her bringing forward this amendment, so it does not necessarily always help.

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Moved by

[Baroness Hamwee]

69A: Clause 72, page 60, line 28, after “consent” insert “(provided it has not been withdrawn)”

[Baroness Hamwee]

My Lords, I hope that we can dispose of this quickly. Clause 72 deals with information about barring decisions and my question is about the consent given by the object, if I can put it that way, of an inquiry who may consent to the provision of information when that consent, we are told in proposed new Section 30A(4) of the 2006 Act,

“also has effect in relation to any subsequent … application by”,

the same inquirer. I would be grateful if the Government can confirm that, in this context, consent can be withdrawn. I would read it that way and think that it is implied. However, there is certainly one example within the Bill: Clause 27, concerning biometric information of children in school, which deals with the consent of the parent and which says in terms that consent,

“may be withdrawn at any time”.

If it is necessary to spell that out in Clause 27, I would like to be quite certain that consent can be withdrawn effectively under the proposed new section contained in Clause 72. I beg to move.

[Baroness Stowell of Beeston]

My Lords, I am grateful to my noble friend Lady Hamwee for her explanation in moving her amendment. Clause 72 introduces proposed new Section 30A into the Safeguarding Vulnerable Groups Act 2006. That section will allow regulated activity providers and others with a specified connection to a person to ask the Secretary of State whether that person is on the relevant Independent Safeguarding Authority barred list, or lists. For this, the person must provide their consent to the release of information about them. Proposed new Section 30A specifies that consent given for one such check would serve as consent for subsequent checks about that person made by the same party, as my noble friend has already explained. The aim of that final provision is to reduce bureaucracy for employers and others. If a person has consented to the provision of information, it makes no sense for an employer to have to seek a new declaration from them every time that they need to do a new check. Clearly, however, the consent must be valid.

In moving her amendment, my noble friend seeks to specify that prior consent will not be valid for future checks if that consent has been withdrawn. Our view—this is where I hope to be able to give my noble friend the assurance that she seeks—is that the current drafting of the Bill achieves this policy intention. If consent has been withdrawn then, according to the terms of the clause, there is no consent and the employer would have no basis to proceed. Operationally, employers will need to confirm that they have valid consent, or they will not be entitled to carry out a check.

It is probably worth mentioning, while I have the opportunity, a wider point in the context of Clause 72. Consent could be freely given, given the potential detrimental consequences to an individual. This was something which the Information Commissioner raised in a letter that he sent quite widely to noble Lords between Second Reading and Committee. He was seeking some clarification on this. Importantly, there is only a certain degree to which the state can and should intervene in the relationship between employer and employee. Naturally, if an employer should do anything untoward, an employee has access to the appropriate legal remedies but we do not anticipate that most employers would seek to coerce their employees.

The alternatives in this case are a system where consent needs to be given or one where it need not be. We choose the former because while pressure by an employer can never entirely be ruled out, it is better than information about someone being given to a third party without their knowledge. As the Information Commissioner noted in the briefing that he provided, a barred list check under proposed new Section 30A is only one of various ways for an employer to discharge their duty to check barred status so, should consent ever be an issue, there are alternatives. However, it is worth pointing out that criminal records checks themselves require the person who is the subject of the check to make the application.

Overall, I hope that what I have been able to say provides reassurance to my noble friend that the policy intention of her amendment, with which we agree, is catered for in the current drafting and that she will therefore feel able to withdraw her amendment.

[Baroness Hamwee]

My Lords, the Minister read my mind. I had wondered whether to draw to the attention of the House the points made by the Information Commissioner, and I thank her for answering them without my asking. Her response on what is meant by “consent” is helpful, and I beg leave to withdraw the amendment.

Amendment 69A withdrawn.

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[Lord Dear]

My Lords, I shall be brief. I support the amendment as set out by the noble Baroness, Lady Royall of Blaisdon, who has made a very adequate case for this change. I have changed my mind on this issue over, I suppose, the past six months or so. I had for a long time thought that the current legislation, the Protection from Harassment Act, was sufficient, but I now realise that the terminology in it is too strict. The term “violence” needs to be ameliorated in some way and the wording in the amendment that refers to “fear or alarm” would take us closer to the course of conduct referred to in many parts of your Lordships' House.

This issue has grown in modern society over the past 10 or 20 years. I do not offer any suggestion as to why that has happened. Perhaps we have, paradoxically, an anonymous society on the one hand and a society with a plethora of information in it on the other. There is certainly a growth in technology and perhaps a celebrity culture. Whether celebrity is real or imagined hardly matters; the fact that it is now possible to become the focus of someone’s attention is clearly at the root of what is proposed. I believe that we need to do something to alter this very tight definition of violence. The question of whether the wording of the amendment is too prescriptive I leave for a later debate. Personally, I think that much of the legislation coming through your Lordships’ House is far too prescriptive, and that in itself presents a trap. I hope that the Minister can take away the comments of this House, including my own, to examine what has been said, and perhaps we can return to this matter for further consideration on Report. I support the amendment.

[Baroness Hamwee]

My Lords, perhaps I may raise two small points. They seem almost trivial in the context but they are important and, as the noble Baroness said earlier, the opportunities for this sort of discussion are limited to Committee. I appreciate that this is existing legislation in Scotland. My first point relates to proposed new subsection (4) in the amendment, which states,

“where A knows, or ought in all the circumstances to have known”.

The existing Section 4(2) brings in the notion of a reasonable person. I read the existing law as objective and this proposal as being subjective, and I am not sure whether it is strong enough.

My second point relates to new subsection (2) of the proposal, where it would be necessary for the course of conduct to cause “fear or alarm”. Again, I wonder whether that is strong enough. What if the victim is a particularly resilient person? Should the person engaging in the conduct be able to do so because of the toughness of the victim?

[Lord Sharkey]

I thank the noble Baroness, Lady Royall, for tabling this amendment, whose objectives I strongly support. As noble Lords have already noted, the situation relating to stalking in England and Wales is entirely unsatisfactory. It is clear that the offence of harassment is not an effective way of dealing with the problem of stalking. It is not effective for the protection of possible victims; it is not effective for the successful prosecution of offenders; and it is not effective in the delivery of appropriate punishment for those who are found guilty.

A recent survey conducted by the members of the National Association of Probation Officers showed that the overwhelming majority of victims were in constant fear and many were physically injured. Most victims claim that there are a number of incidents before they feel they can go to the police. Often their complaints are not properly investigated, and the perpetrator’s behaviour escalates over time if there is no criminal justice intervention or treatment.

It appears that stalking behaviour is simply not recognised by the majority of professionals who have to deal with the cases. Probation staff are concerned that when sentences are handed down they are often too short for rehabilitation or treatment to occur, or even to match the gravity of the offence and its effect on the lives of victims. We should not allow things to continue as they are. The suffering caused to victims is often harrowing and sometimes life-destroying.

The current methods for dealing with the problem are clearly inadequate. However, as noble Lords have pointed out, there is an obvious way forward, which is to learn from the experience in Scotland. As noble Lords have indicated, Scotland chose not to introduce a version of the Protection from Harassment Act 1997—currently the law in England and Wales—on the grounds that the Act did not transfer powers into practice. Instead, a new law, on which this amendment is based, was passed in December 2010 creating a specific offence of stalking and offences of threatening and abusive behaviour. This legislation has the support of the police, who have themselves adopted new operational guidelines to ensure proper awareness of stalking and harassment. There are clear signs of the success of this Act, even at this very early stage.

I acknowledge that the Government take this matter extremely seriously, and I know that the consultation on the issue runs until 5 February. It is important that we learn from it. Nevertheless, I urge the Minister to take account of the strong views expressed today and the terrible plight of the victims of stalking and not to delay legislation on this issue one moment longer than is absolutely necessary.

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[Lord Harris of Haringey]

My Lords, I think that the noble Baroness, Lady Doocey, has put forward an extremely helpful amendment. The reason for thinking that is because, tragically, there have been too many instances when minicab drivers, and indeed licensed taxi drivers, have turned out to be a danger to those whom they ferry. Those instances are comparatively rare, and of course it is much safer to use a licensed vehicle than otherwise, but the danger remains.

My only regret is that the noble Baroness, in her normal ingenious way, has not found a way to encompass what I consider to be the increasingly dangerous fraternity of rickshaw drivers in London. I am sure that a few extra words would have enabled us to have a licensing regime for rickshaw drivers on top of all this, with the added protections of enhanced record checks. I appreciate that I have now caused a flurry on the Front Bench while the correct answer as to why that is incredibly difficult is explained to the Minister. However, as I think that the noble Baroness, Lady Hamwee, is about to speak, I am sure that he will have a chance to mug up on the subject.

[Baroness Hamwee]

My Lords, perhaps I will give the Minister thinking time, but I was going to say that rickshaw drivers present more dangers than those which are the subject of this Bill—the noble Lord has referred to the small number of very horrific examples.

I support my noble friend. There have been important steps in licensing over the past few years, certainly in London, but legislation cannot remove every risk. A perpetrator may not previously have been caught or may just be starting on a course of action. However, the more tools that are given to employers and to the organisers of different activities, the better—within the overall objective of a sensible regime that is not overbureaucratised.

Perhaps I might make one comment, which I wondered whether I should come in with in a previous discussion when I think the Minister was accused of being unimaginative about the amendments. I can tell the Committee that at the meeting which I attended with the various sporting groups, which has been referred to, both our Minister and Lynne Featherstone made it absolutely clear that an employer or an organiser cannot abdicate responsibility to an unthinking bureaucratic process. I, for one, was very impressed at that meeting by the common-sense attitude being displayed. We were being reminded that we cannot do everything through legislation. We will do as much as we can, but we cannot do everything.

[Baroness Farrington of Ribbleton]

My Lords, should the noble Baroness, Lady Doocey, need additional support, I worked with the noble Baroness, Lady Gardner of Parkes, on extending the checks and the licensing to the minicabs. For some time, some of the other cab drivers resisted licensing minicab drivers. I am quite sure that the Minister will agree that, should the noble Baroness, Lady Doocey, who has presented her case strongly and got all-round support, need additional support, then I can recommend the noble Baroness, Lady Gardner of Parkes.