Serious Crime Bill [HL]
Baroness Walmsley Excerpts(10 years, 5 months ago)
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Baroness Walmsley
“( ) for “that age” substitute “the age of 18”;( ) after “wilfully” insert “recklessly”;( ) omit “unnecessary”;”
Baroness Walmsley (LD)
My Lords, I wish to speak also to Clause 62 stand part.
Amendment 40BZA would introduce to this very good clause three additional small changes to the Children and Young Persons Act 1933. These are issues that have been raised with us by various children’s organisations, including Action for Children. The first part of the amendment seeks to probe the age to which a person may have responsibility for a young person. The Act currently applies to someone over the age of 16 who also has responsibility for someone “under that age”. The first part of this amendment therefore questions whether the responsibility should be for anyone under the age of 18, rather than 16, given that we have had numerous changes in the definition of children of late, and it varies from one bit of law to another.
The second element of the amendment would add the word “recklessly” after “wilfully”. This was contained in the Private Member’s Bill of my honourable friend Mark Williams MP in another place. Action for Children has suggested that we need to insert “recklessly” alongside “wilfully”. The introduction of “recklessly” would be in line with the interpretation of the 1981 Sheppard ruling, and with the interpretation of recklessness recently defined by the House of Lords in R v G. The term “recklessly” was identified in the Sheppard ruling as preferable to “wilfully”, which is considered difficult to interpret because it is unclear whether it applies to someone’s action or failure to act, or to their failure to foresee future consequences of their action or inaction. We suggest that “recklessly” is added to clarify this.
There can be a particular problem in cases of child neglect, which typically involve the failure to provide care, food, supervision, a safe environment and so on, so we need to cover foreseeing the future consequences of actions as well as the actions themselves. Adding “recklessly” also serves to protect parents and carers where there is any doubt that their action or inaction was due to mental incapacity or excusable ignorance of parenting skills. This is because, under the recklessness test, if there is any doubt that the behaviour of parents or carers was attributable to inherent incapacity to understand or change their behaviour, they will not be prosecuted. This would therefore protect them. “Recklessly” would also confirm the exclusion from liability of, for example, carers agreeing to high-risk medical treatment where there is no better medical option for a gravely ill child.
The final element of this amendment removes “unnecessary” from the requirement that the offence causes unnecessary suffering. The view of children’s organisations is that there is no unnecessary suffering that a person may cause, and that the term is antiquated and should be updated to a modern understanding. However, as my noble friend Lady Brinton has pointed out, certain suffering may be unavoidable; for example, where a child has suffered bereavement.
Perhaps the Minister will say whether the under-16 definition meets the modern understanding of what we mean by children. Would it not be better to cover all children to the age of 18? Why do the Government feel that “wilfully” alone is a better term to use than adding “recklessly”? Will they commit to looking again at this issue in the light of the enormous support that Mark Williams’s Private Member’s Bill had in another place? Will the Minister also say whether the term “unnecessary suffering” is clear enough in a modern context? Is there not a risk that this could prevent certain abuses from being prosecuted under the offence?
I shall also say a few words about the Question that the clause stand part of the Bill. We strongly support this clause, so tabling this Question is not about whether or not it should remain in the Bill, because it is a good clause. However, we have some questions about whether the new and welcome explicit reference to psychological harm will mean that other offences involving harm will now be read as referring only to physical harm. Specifically, offences related to domestic violence could potentially be undermined.
The intention of opposing the Question that the clause stand part of the Bill is therefore to ask the Minister to make a statement from the Dispatch Box that other offences will not be undermined by this welcome change; and to ask the Government to look again at whether it would be a positive step to amend other legislation to reflect psychological harm, in the same way as we are now affecting offences against children. Will the Minister confirm that this welcome change in Clause 62 will not have an adverse impact on including psychological harm within other offences, where it is not explicitly referred to—for example, domestic violence? I beg to move.
Lord Elystan-Morgan (CB)
My Lords, at Second Reading a month ago, I committed the cardinal sin of making some very specific and detailed comments of a nature belonging more to a Committee stage than otherwise. I am not going to make up for it by making a Second Reading speech today, but I very much welcome the amendment in the name of the noble and learned Baroness, Lady Butler-Sloss.
I have little doubt that the draftsmen of Clause 1 of the 1933 Act intended that “cruelty” should relate to both physical and non-physical cruelty. However, in 1981 in the case of Sheppard, this House caused some confusion in relation to that matter by placing what might be described as a somewhat heavy gloss upon the words of statute. The combined effect of the amendment and Clause 62 is that the situation will be made abundantly clear. I very greatly welcome that.
I also take the point that in so far as defining cruelty in terms of serious harm, a very great bringing together of two concepts has been achieved; that is, the definition of “significant harm” in Section 31 of the Children Act 1989, which of course is the section that sets up the machinery for the obtaining of a care order, is now almost exactly the same—or so near as to make no difference whatever—as the definition of the criminal offence that this clause brings about.
I take wholeheartedly the point made by the noble and learned Baroness, Lady Butler-Sloss, that the last thing one wants to do is to bring these civil situations into a criminal court. Sometimes that is inevitable. I also take the point that it is right that social workers and those involved in the protection of children in the civil field should, as it were, have the same hymn sheet as those who deal with those situations in the criminal field. They are two different fields, which should be mutually exclusive if humanly possible, but nevertheless it is right that the same standard should apply to both.
Baroness Walmsley
I wonder if the noble Lord, Lord Elystan-Morgan, would be kind enough to address the House because I am having some difficulty in hearing what he is saying.
Lord Elystan-Morgan
Profound apologies. I was discerning perhaps a twinkle of support this side and one welcomes every little support one can get in this place. I apologise profusely to the noble Baroness.
In so far as “wilfully” is concerned, this is an extremely important development. Lawyers well appreciate that “wilful” can mean an act of deliberate commission or omission. On the other hand, intelligent lay men, be they magistrates, jurors or in any other capacity, might find it very difficult to consider that something which is pure omission can be wilful.
Then there arises the almost theological question of whether “recklessly” should be included. I think—but I might be corrected, and for this reason I shall turn to the authorities on the other side—that in so far as the statutory definition of wilful is set out here, it is in fact the classic definition adopted by this House in a case of recklessness called Caldwell in the 1980s. It was the case of a tramp, if I remember rightly, going into unoccupied premises and striking matches, who was found guilty of arson on the basis of recklessness. If am right about that, there is no dispute about the difference between recklessness and wilfulness in this connection.
I will make a general comment on Clause 62, which will not have to be repeated on clause stand part. Section 1 of the 1933 Act is 80 years old. I am one year older than the noble and learned Baroness, and therefore I was about a year old when this became law. The verbiage is much older than that. The verbiage comes from the Poor Law Amendment Act 1868, virtually all of it from Section 37.
That Act was passed in order to deal with the problem of the Peculiar People. The Peculiar People were very devout people who believed that, whenever there was illness in the family, you should not go anywhere near a doctor. You should pray to Almighty God, and accept the will of Almighty God. The consequence was that, when death occurred, and many of these people were prosecuted for manslaughter, a humane jury found them not guilty because of their utter devoutness, although, of course, it represented utter unreasonableness. It was to deal with that particular issue that Section 37 was passed.
This means that we have today still the remnant cobwebs of that Victorian verbiage. Victorian verbiage in a statute sometimes can serve us well. The Offences Against the Person Act 1861 is a classic example which will be with us for many generations, I have no doubt. However, there are cases in which one can look afresh at the whole situation and possibly create an instrument that is more consistent with the needs of the 21st century.
The Earl of Listowel
I have a few words of praise for the Government. I thank the Minister for his response and for recognising the importance of what my noble friend Lady Meacher said about the need to intervene early to support families to get off alcohol and drugs. When it comes to the family courts, the Government have substantially supported the family drug and alcohol courts, which originated from district judge Nicholas Crichton in the Inner London Family Proceedings Court and ensure that such families have judicial continuity over a 12 year period and that there are good interventions to get the parents off drugs and alcohol so that they can keep their children and not have their children taken into care. It is very much to the Government’s credit that they funded and evaluated this work and now the president of the family court is looking to roll it out across the country. Many families will benefit because of the good work of the Government and this will avoid unnecessary cruelty to their children.
Baroness Walmsley
My Lords, we have had a very good debate. Quite clearly there is a great deal of consensus across the House. I echo what the noble Baroness, Lady Howarth, said. I hope that we can have further discussions about this between now and Report and that we come to some consensus as to what may or may not need clarifying. I thank the noble Lord, Lord Ponsonby, and the right reverend Prelate the Bishop of Durham for agreeing with me that we need to level up the age at which we consider children to be vulnerable. They may be able to get married legally, but that does not mean that they are not vulnerable. There is also considerable consensus that the word “wilfully” needs clarifying and there have been various suggestions about how that should be done. The Government believe that we need Clause 62 even though the law already allows child abuse to be interpreted as psychological. In the same sort of way, although there may already be agreed definitions of “wilfully”, there may still be a need to clarify that in one way or another, based on the various amendments that we have had. I am sure we can come to some agreement about how that might be done. There has also been consensus about the need to remove the word “unnecessary” or perhaps the whole term “unnecessary suffering” and to change it in some other way.
I hope that the Minister will be able to accept that we need further discussions about this between now and Report. In the mean time, I beg leave to withdraw the amendment.
Baroness Walmsley
“Mandatory reporting of abuse in relation to regulated activities
(1) Subject to subsection (4), providers of regulated activities involving children or vulnerable adults, and persons whose services are used by such providers being persons who stand in a position of personal trust towards such children or vulnerable adults, who have reasonable grounds for knowing or suspecting the commission of the abuse of children or vulnerable adults in their care whether such commission of abuse shall have taken place or be alleged to have or be suspected of having taken place in the setting of the regulated activity or elsewhere, have a duty to inform the Local Authority Designated Officer (LADO) or children’s services or such other single point of contact with the local authority as such authority may designate for the purpose of reporting it or any such matter, allegation or suspicion as soon as is practicable after it comes to their knowledge or attention.
(2) Failure to fulfil the duty set out in subsection (1) before the expiry of the period of 10 days of the matter or allegation or suspicion first coming to the knowledge or attention of the provider or of any person whose services are used by the provider as defined in subsection (1) is an offence.
(3) It shall be a defence to show that the LADO or children’s services or that such other single point of contact with the local authority as such authority may designate for the purpose of reporting was or were informed by any other party during the 10 days referred to in subsection (2) or had been so informed before then.
(4) A Secretary of State having responsibility for the welfare, safety and protection of children and of vulnerable adults may in exceptional cases by a letter or other instrument under his hand rescind or temporarily suspend the duty referred to in subsection (1) in the case of any specified child or children or of any specified vulnerable adult or adults concerning whom it appears to him that the welfare, safety or the protection of such child or children or of such vulnerable adult or adults would be prejudiced or compromised by the fulfilment of the duty referred to in subsection (1) and may where it appears to him that the welfare, safety and protection of children is furthered thereby exempt any specified entity or organisation and the members thereof that works with children generally in furtherance of their welfare and safety and protection or any specified medical officer from compliance with the duty referred to in subsection (1) provided always that no allegation is made against such entity or organisation or member thereof or against such medical officer.
(5) It shall be a defence for any person to show that a Secretary of State having responsibility for the welfare, safety and protection of children and of vulnerable adults has issued a letter or other instrument under his hand rescinding or temporarily suspending the duty referred to in subsection (1) in the case of any specified child or children or of any specified vulnerable adult or adults and it shall be a defence for any person employed by or operating as an entity or organisation that works with children or for any medical officer to show that a Secretary of State having responsibility for the welfare, safety and protection of children and of vulnerable adults has by such letter or instrument under his hand whether temporarily or permanently exempted it and its members or any medical officer from compliance with the duty referred to in subsection (1).
(6) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine, or both;(b) on conviction on indictment, to imprisonment for a term not exceeding three years or to a fine, or both.(7) In this section “regulated activity” has the same meaning as in Schedule 4 to the Safeguarding Vulnerable Groups Act 2006.”
Baroness Walmsley
My Lords, this amendment is exactly the same as Amendment 40C; it has just been put in a different position. I am most grateful to the right reverend Prelate the Bishop of Durham for adding his name to it. Abuse of the most vulnerable people in our society is wicked and a great deal more widespread than most of us think. There are those who use power, strength and blackmail to subject those who cannot fight back to the most horrible abuse. It is done behind closed doors and certainly that is where a lot of it stays. However, there is hope because there are signs, if only we would look for them. We need not only to see them but to act upon them as well. We need to give the abused people opportunities to confide in a trusted adult, in the secure knowledge that that person will do something to make it stop. That is why we need a new duty to report abuse.
Of course, I know that legislation is not a silver bullet, but it can help and it has done so in other countries. In addition, I agree with those who say that we need more training, awareness raising and the protection of the law for those who expose the horror. Amendment 40BZEA covers not just children but vulnerable adults as well, although for simplicity my remarks will mainly refer to children. However, the vast majority of what I say also applies to elderly and disabled people, and those with serious mental disabilities too—all groups that have suffered far too much abuse in recent years by unscrupulous people.
We heard on the BBC only this morning about cases of abuse of people with mental disabilities where nobody said a word. My intention is not to criminalise people—though there must be penalties if this measure is to be effective—but to empower those who know that something is wrong and to protect them as well as the children. The current system is not working. The recent report about Jimmy Savile’s activities made that very clear. There needs to be an increase in the detection rate of child abuse in the UK, which is estimated to be only 5% of the actual amount, according to the Equality and Human Rights Commission’s report in 2010, How Fair is Britain?
I shall explain what my amendment does. Proposed new subsection (1) puts a duty on individuals standing in a position of personal trust towards children or vulnerable adults and who work in “regulated activity”, as defined in Schedule 4 of the Safeguarding Vulnerable Groups Act 2006. The duty is to report abuse that is known about and where they have reasonable grounds for knowing or suspecting abuse. If the abuse is adult on child, or on a vulnerable adult, it should be reported to the local authority designated officer. If it is child on child—and there is a great deal of that—they should report it to the local children’s services. If the local authority has chosen to have a single point of contact, the report should be to there.
Proposed new subsections (2) and (3) say that the report must be made within 10 days of the knowledge or suspicion, unless the abuse has already been reported by someone else.
Proposed new subsection (4) allows the Secretary of State to exempt certain groups from this duty, in the interests of ensuring that children and vulnerable adults can feel comfortable disclosing the abuse—for example, to their doctor or a confidential helpline such as ChildLine. There will be a term of imprisonment or a fine for failure in this duty.
Proposed new subsection (7) refers to Schedule 4 to the Safeguarding Vulnerable Groups Act 2006 for the list of institutions that are covered by the amendment. It includes all forms of teaching or training of children, care or supervision, treatment and therapy et cetera—and a similar group in relation to vulnerable adults. In other words, it relates mainly to the people who would normally need a CRB check in order to do their job; it does not include family members.
This is a measure whose time has come and I encourage the Government to grasp the moment. In a recent independent survey, 96% of the public thought that we already had such a law. Although the public would strongly support it, we do not have one at the moment. We have a whole range of regulations, professional duties et cetera—none of which have been effective in situations in which adults were worried about being the whistleblower, about reputational damage to their institution, or that they may have got the wrong end of the stick. This measure would protect and empower those people, and protect children.
It is not for teachers, nurses and care workers to decide whether there is a case to go to the police. It is not their job. It is the job of the experienced officer within the local authority—as opposed to triage, which the Minister has just mentioned—to investigate and then report to the police when they believe that there may be a case to answer, or to take some other action.
There are other parts of the world where there is a duty in law to report, such as Australia, every state of which has some version of this duty and some sort of penalty. It has been very effective in exposing that which was previously hidden. It has been shown that there is a high rate of substantiation of the allegations, contrary to what the Minister has just said. In the case of reports by teachers, 70% led to police action prior to the new law; and the percentage after the new law came in was 69%, which was very close. The percentage would have been higher if it had included situations in which the children needed help but the police were not involved. Only 2% of reports were found to be malicious. These figures came from Professor Ben Matthews, a highly regarded researcher on these issues; and I am happy to supply them to the Minister. I heard Ben Matthews say on the BBC a few months ago, around the time of the famous “Panorama” programme:
“Mandated reporting in some form is an essential part of an effective child protection system”.
Someone I know used to work as a child safeguarding officer in Australia and was familiar with the effective working of the measure. She also told me that that Australia has a programme in schools called, “No, Go, Tell”. It is pretty obvious what that means. When she came to work in this country, she was amazed that we do not have something similar here. That makes the case for good-quality PSHE in all schools in which children are taught what not to tolerate in terms of invasion of their personal space, and what to do to keep themselves safe.
What have others said about my proposal? Last week, as we heard, the NSPCC made a major and welcome shift in its policy on this matter, but it does not go far enough. It has proposed what I have called “safeguarding lite”. The idea is to have a duty on closed institutions such as boarding schools and children’s homes not to cover up known child abuse. By the way, it is not clear who within those institutions would have that duty. There are several things wrong with that. First, it ignores the majority of children. There are 8 million children in education in this country, and less than 1 million of them are in boarding schools and children’s homes.
Secondly, by covering only “known” child abuse, the onus is put on the head teacher or care home manager to decide whether abuse is known or not. That is not their job; it is the job of local authority designated officer, who has the training and experience to know whether to report to the police or take some other action. That is what those officers have been trained to do. Thirdly, the policy is confused. Think about this: a head teacher in a boarding school has a duty to report a case, but the following term, if he takes over a maintained primary school, his duty is only under some regulation, with no legal penalty for ignoring it.
Think about a girl who would have this protection in a boarding school, but if she goes to a church youth club in the holidays she has no protection. Think of a boy who has protection in a care home, but has none when he goes to the local sports club. This matter is the responsibility of all of us, but in particular it should be the duty of all those who work with children in a position of trust. It should go with the job, along with the duty to get a CRB check.
The Local Government Association has briefed us all and asked us to look at how the duty would operate in reality. I know there are those who are concerned that the system would be swamped with cases if my amendment became law. I say two things in answer to that. First, if that is the case it means that there is an enormous amount of child abuse out there going undetected and untreated. That causes mental health and relationship problems throughout the lives of those abused, and allows perpetrators to get away with it and abuse other children. It also costs the public purse a lot of money in the long term.
Secondly, the experience in Australia was that, yes, the number of concerns reported increased, but they were investigated and considered by the right people. There was a very high level of substantiation and only a tiny amount of malicious reporting, which I believe is a fair price to pay. Anyway, such cases are looked into by experienced people who recognise malice when they see it.
I expect that noble Lords will recall the case of baby Peter and the fact that there was an increase in the number of children taken into care after it became public. That has settled down to some extent now, but it means not that too many children are taken into care now, but that too few were before, possibly because of resources. We must ensure that the system has sufficient resources and is robust enough to weed out cases that do not warrant action. In any case, the vast majority of child abuse would not entail the child being taken into care if she was not already.
The Local Government Association talks about us all having a moral responsibility to report abuse. Of course we do, but we have had that for years and it has not worked. What we need is not the confused and complicated system proposed by the NSPCC, but a very simple amendment to the law. The people on whom the duty in my amendment would fall are already defined in law: there is already a definition of,
“reasonable grounds for knowing or suspecting”.
We need training in recognising the early signs of abuse and neglect for all those who work with children and vulnerable adults, and we need guidance on how to report it. We need everyone to make it their business to protect children and vulnerable adults as a public duty, but we need to strengthen the law to help those who know something to have the courage to do something. I beg to move.
The Lord Bishop of Durham
My Lords, I support the amendment. I begin by pointing out that, had I been in this House two years ago, I would not have supported it. It is my experience of listening to and hearing stories, not just from within the church sector but from many sectors, that has led me to be convinced that this is a move we need to make.
Currently, under the Safeguarding Vulnerable Groups Act 2006, a form of mandatory reporting already exists; that is to say, a duty to refer arises in certain situations connected with regulated activity. Admittedly, that is just for vetting purposes, but what the noble Baroness, Lady Walmsley, effectively proposes is an extension to this. It will mean that those who work with children or vulnerable adults in regulated activity and have reasonable grounds for suspecting or knowing that abuse of these vulnerable groups has taken place are under a duty to report this to the local authority. I wholeheartedly support this principle, and I welcome the suggested amendment. Indeed, every person who works with children or vulnerable adults, which includes teachers, doctors, nurses, youth workers and volunteers, has a responsibility for keeping them safe. No one individual could possibly have a complete picture of a vulnerable person’s situation. All professionals who come into contact with those vulnerable groups have,
“a role to play in identifying concerns, sharing information and taking prompt action together”.
That is from Working Together to Safeguard Children.
Baroness Howarth of Breckland
My Lords, I feel some trepidation in challenging some of the issues about mandatory reporting, although I think that we need to find different language. I do not think there is any difference between me and the noble Baroness, Lady Walmsley, and the right reverend Prelate in what we want to find at the end of the day. However, I want to caution them and the Government to ensure that they look at this in great depth—I know that they are doing so in other places—and that there are no unintended consequences from the action that is taken.
I do not have a prepared speech, but I would like to make three points. Of course, it is wrong for anyone in a position of authority or in a church or neighbourhood community to turn a blind eye to known abuse. If abuse is clearly there, then that must be reported. If we have to have a law that says that there are circumstances in which people abused their position and did not come forward, the Government should look at that.
In the work that I am doing, the helpline for the Lucy Faithfull Foundation, in the Stop it Now! programme, has hundreds of people telephoning who are not sure about what they are seeing. I have talked to social workers who have great professional expertise about their not being certain what they are seeing. It is quite clear that we need to continue the professional development of staff in local authorities who work with the police, and also the community programmes which I have mentioned earlier, where children’s services, parents and schools have all been involved in the local community in developing understanding of these issues and therefore are clearer about what action they may or may not take.
I do not have a speech because I spent the morning chairing a conference that included people from Australia and the chair of an international protection of children organisation, looking at eradicating child sexual abuse. There were a lot of experts there. The message that they asked me to bring was that we should not simply bring in this sort of reporting without looking carefully at it. The statistics across the world vary according to whom you listen to. I ask the Minister to talk to some of the people I know as well as to those whom the noble Baroness, Lady Walmsley, knows, because they have different views. Presumably, the Government have it within their powers to get the information pretty clearly from Governments in other parts of the world. I am not making any judgment about the outcome, except to say that people tell me that it has really interfered with good preventive work, because resources have been diverted into investigating hundreds of cases that turned out not to be prosecutable.
I understand why there is a wish, particularly in the church, to get this sort of prosecution. I say to the right reverend Prelate that I have probably talked to more victims than most in my 50 years, many of them children; I know the victims’ groups and I know the pain that they have experienced. But it is crucial that we base whatever we do in the future on what is happening now, and that we prevent children being abused in the present, and learn from those people in the future. They have a lot to offer but sometimes it can be clouded by pain, which I understand.
What we want to do, particularly in churches and similar organisations, is to develop a culture of openness. We know of a recent investigation into a particular area in the Church of England where misogyny was rife and women’s views—never mind children’s—were not tolerated. I am a member of the Church of England, so I say this in all good heart but that is one institution that really has to look at it itself—as I know it is doing because the right reverend Prelate is the chair of the committee looking at the issues within the church. There are other organisations that need to look at their culture because we are not going to change these issues by the law, although I think in some areas it will help. We need to get a cultural change in organisations and our nation.
The NSPCC has got itself in a bit of a twist, I think. Talking to some of the staff today, there is a very mixed view because they had always been against mandatory reporting—I think that is a very funny term. They run two helplines. They know the implications of blanket mandatory reporting. I have to say that I did not understand proposed new subsections (4) and (5) of the amendment. It just shows how complex this issue is because we are talking about people going for exemptions. I tend to think that you need an opt-in rather than opt-out situation here, and we need to be precise about those people who might come to be prosecuted if reporting is mandatory rather than having to exempt those people who are trying to be helpful.
I am usually briefer than this but your Lordships can see that I feel as passionately as most—
Baroness Walmsley
Perhaps I might provide some clarification. When giving the Secretary of State the opportunity to exempt certain groups, I very specifically had in mind exactly those groups that the noble Baroness is worried about. Childline and Stop it Now! need to be exempted because they will have disclosures made to them and we cannot expect them to go to every local authority-designated officer throughout the country. Children need to be able to disclose to them but when they encourage the child to disclose also to a trusted adult, as they often do, the child needs to know that that trusted adult will do something about it and report it to the right people. I hope that clarification helps.
Baroness Howarth of Breckland
I thank the noble Baroness but I think she knows that I know that pretty well. My point is that we need to be more precise the other way round and be clearer about those people who will be prosecuted rather than those who will be exempted. That is the way that I would rather see it because otherwise you are going to catch all sorts of groups. There are groups in the Catholic Church that listen. Without doubt, the helpline should be seeing a child through a referral. If they are going to have a referral, that helpline really should ensure—I know that the NSPCC does this with Childline—that at the end of the day someone takes action at that point.
The Lucy Faithfull helpline for Stop it Now! is more difficult because that is where men are coming forward about thoughts that they have had that they do not understand. I am very fearful that many of those men will not come forward if they think there is a likelihood that they are going to be reported even before they have committed an offence. Some people who have committed offences will come forward to us and we will help them to go to the next stage.
There could be a range of unintended consequences. However, I say what I said at the beginning, which is I think that we are all on the same page. What is important is that time is spent—not a lot of time; I know that the noble Baroness, Lady Walmsley, is impatient—ensuring that we have it right in detail and that we listen to all the parties who have got evidence, because there is a lot of evidence. There is also new evidence about what works and it is not always the old patterns of intervention that work. The Government might do well to listen to some of the people I listened to this morning.
Lord Taylor of Holbeach
My Lords, this has been a very high-value debate whose contributions inform the Government. I will try to make sure that all colleagues in government with an interest in this matter are sent a copy of our debate.
I cannot give the noble Lord, Lord Rosser, any details of the timescale. If, in the course of time, I have more information, I will try to tell him in good time, but at the moment I cannot. In a way, this debate needs to be taken in conjunction with the one we had on my noble friend Lady Brinton’s debate; it covers very similar territory but it goes just that little bit further. I am grateful to my noble friend Lady Walmsley for tabling this amendment to enable us to look at this particular aspect.
There is a significant difference between the amendments. Amendment 40BZEA would place a duty on those working in regulated sectors who are in a position of trust in relation to children or vulnerable people to report suspicions of abuse to the appropriate local authority within 10 days. Breach of that duty would be a criminal offence punishable by up to three years in prison. This would mean essentially that anyone who works with children or vulnerable adults would commit a criminal offence if they did not report suspected abuse of any kind.
I hope that I can provide some reassurance to my noble friend Lady Walmsley and the right reverend Prelate the Bishop of Durham about the current process of referrals to social services. The noble Baroness, Lady Howarth, referred to this. It is important to recognise that existing statutory guidance is already crystal clear that professionals should refer immediately to social care when they are concerned about a child or vulnerable adult. Many thousands of referrals are made to children’s social care each year. In the year ending March 2013, there were 593,500 referrals—that is nearly 600,000. I am grateful to my noble friend Lady Walmsley for offering to provide me with figures that she has available, but I think that we need to bear that figure in mind and appreciate the scale of the situation that we are seeking to engage in.
The most important thing is that people understand how to spot abuse and neglect and the impact that it has on children and vulnerable adults. While we are continuing to review the evidence for the specific case of reporting in regulated settings, we are also continuing to take action to improve the knowledge and skills of professionals working with children and other vulnerable people.
As I indicated in my response to the previous group of amendments, the Government fully understand the public’s anxiety about the potential underreporting of abuse, particularly sexual abuse. I can wholeheartedly support my noble friend’s objective with this amendment; we all want to see improved safeguarding for all children and vulnerable adults. As I have said, we are actively considering the case for a mandatory reporting duty, but the issues are complex, as the noble Baroness, Lady Howarth of Breckland, pointed out. As the noble and learned Baroness, Lady Butler-Sloss, said, we need to consider what form such a duty might take, to whom it would apply and in what circumstances, and what the sanction for failure to comply should be. This amendment offers one approach, but we have just debated an alternative, more focused proposal, and the NSPCC has suggested a third model. Other organisations working to safeguard children and vulnerable adults will have ideas of their own as to how a mandatory reporting regime should be structured, as will other noble Lords. I have sought to encourage noble Lords to make sure that those conducting such investigations are aware of their views.
I can only again seek to reassure my noble friend and the right reverend Prelate the Bishop of Durham that we are actively examining the options and treating the matter with the urgency that it deserves. While I cannot undertake to bring forward government amendments on this issue on Report, I certainly expect that, by then, I will have more to say on where we have reached in our consideration of this important matter. Having put the issue firmly on the table as my noble friend has done, I hope that she will now be content to withdraw her amendment.
Baroness Walmsley
My Lords, I thank all those who have taken part in this debate. I thank the Minister for his reply and the right reverend Prelate for his support.
There has been some discussion about terminology. Noble Lords might have detected that I did not use the phrase “mandatory reporting” in my introduction because I know that it causes some people some difficulty. I have also avoided using the word “professionals” in my amendment. We may not want to call a school secretary or a dinner lady a professional, yet they would need to have a CRB check to work in a school and they are specified in Schedule 4 to the Safeguarding Vulnerable Groups Act 2006, which is in my amendment. When my noble friend asks to whom the duty should apply, my reply is that it is those people. So it is already in law.
I agree that the issues are complex and that we should approach the whole thing with a great deal of caution. I agree that there are different systems across the world and we need to find out which system suits this country best. I also agree that we need a culture change; I am pretty sure that I said so. We need training not just for the professionals but for the children so that they understand how to protect themselves. We probably need more resources as well because, as I said, there is an awful lot of undetected child abuse out there which has never been treated, and it never goes away. There is no such thing as historic child abuse; it is always current in the lives of the victims, who never lose it.
With that, I have done my very best to persuade all noble Lords. I will have to leave it at that for the moment, but I suspect that I may come back to it at the next stage of the Bill. We shall see. I shall watch with great interest what happens with the terms of reference of the new inquiry committee, the personnel and how they go about their job. In the mean time, I beg leave to withdraw the amendment.
Earl Attlee (Con)
My Lords, I am grateful for the expert way in which the noble Lord, Lord Rosser, introduced his amendment. I have no greater arguments than the ones he adduced. I strongly support him and urge the Minister to consider his suggestion very carefully. I have one final thought: what would the view of noble Lords be if we were talking not about FGM but MGM?
Baroness Walmsley
My Lords, it would not be in order for me to say anything about the amendment moved by the noble Baroness, Lady Meacher, as I was not in my place when it was moved. I support the noble Lord, Lord Rosser, in his attempt to get anonymity for the victims of FGM, and I hope the Government will consider it. Indeed, I think there may be a case for going a little further than that, because it could be that there are women within communities who know what is happening who might be more encouraged to come forward and say so if it were guaranteed that they would have anonymity. It is something that needs looking at.
Baroness Meacher
The noble Lord, Lord Rosser, introduced his amendment extremely effectively and has said all that needs to be said, but I would hate the Minister to think that there was no support for it. Therefore, I simply say that we need these charges to be investigated and pursued, and if victims are not given anonymity, it seems an impossible task. I hope that the Minister will be able to support the amendment proposed by the noble Lord, Lord Rosser, as well as my amendment.
Baroness Butler-Sloss
My Lords, we move to a different subject, that of child abduction. There are two separate amendments. The first one, Amendment 40CB, deals with an anomaly—that there are two separate Acts, which deal differently with children or young people. If the child is in care, and the care order goes beyond the age of 16, under Section 49 of the Children Act 1989 the offence of abduction runs to the age of 18. But under the Child Abduction Act 1984, which incorporates the Hague convention of 1980, the age goes to 16. There is therefore an anomaly. The point of the amendment is simply to have parity, and the parity should go up rather than go down.
The second amendment, Amendment 40CC, will take a little longer to explain. It deals with what is called a “child abduction warning order”. This was once called a “harbouring order”. It has been a very useful, but inadequate, tool of the police. In particular, where they have seen a teenager being groomed, they have gone to the man concerned, and they have explained to him that he must obey an order not to have anything to do with the girl. However, if he breaks that order, they have absolutely no powers at all. Consequently the police are very anxious that their useful order to try and interrupt a grooming process for young girls, in particular, should in fact have a statutory backing. The next stage is an arrest under either Section 49 of the Children Act 1989 or Section 2 of the Child Abduction Act 1984.
However, there is a gap between the police telling someone, “Lay off this girl, you’re grooming her and you mustn’t do it”, and the point at which the girl has either been detained or taken, when it is quite simply too late. What is therefore needed is the police power—which they use—but put on to a basis that they can then enforce. If the man concerned does not desist from his grooming of the girl, he can then be dealt with under a statutory order. One of the problems about the words in the two Acts of “detained” or “taken” is that quite often it is a psychological or emotional relationship between the girl, who is often much younger, and the man, which is not capable of being treated as coming within either of the two relevant sections. Therefore the warning order could do a lot of good, and it would be useful. I hope the Government will take this away and look at it. It is definitely what the police want, it would give a real bit of power to them and it would fill a serious gap in the possibility of young people being abducted, particularly by older men. I beg to move.
Baroness Walmsley
My Lords, I support both these amendments. I recently sat as a member of a Back-Bench inquiry into the legislation used to tackle sexual exploitation, which was supported very ably by Barnardo’s. We took oral evidence from a number of police forces. There was unanimous support for putting these child abduction notices on a statutory footing, which formed part of our recommendations. At present they form no more than an administrative procedure for the police—useful, I am told, for collecting evidence for the future, scaring perpetrators and letting them know that the police are watching them but, in and of themselves, pretty toothless.
Of course, there is existing legislation for child abduction offences. Sometimes, perpetrators who breach warning notices are prosecuted under this other legislation. But the current legislation is often not useful for cases of grooming, because it requires that the adult has taken or detained the child, implying physical control or restraint. We know that psychological and emotional manipulation are the main tools used by perpetrators to control and groom vulnerable children. The Crown Prosecution Service is therefore not always able to take prosecutions forward, due to the child seeming willingly to remain with the offender, when the offender makes no act physically to detain the child. Creating an offence of breaching a notice would address this issue and allow the police to intervene earlier, rather than having to wait for a more serious offence to occur when, of course, what we want is for them to be able to intervene early.
While the police find child abduction warning notices a valuable tool, their lack of a statutory basis leads to an unfortunate consequence. Police told the inquiry about occasions when they issued notices as a deterrent but were then unable to act once they were breached. If they are to have any power in these situations, all concerned need to know that the police will and can act when their instructions are clearly ignored. Instead, the current situation erodes victims’ confidence in the ability of the police to protect them— and they have told us that. Of course, perpetrators’ fear of consequences will diminish when they see police unable to act. So we need to put this on a statutory basis.
In relation to bringing the age into parity between children in and out of care, the point was made by the children who spoke to us that children’s vulnerability is not determined by their membership of a particular group or their legal status. There are many profoundly vulnerable children who are not in the care system and who need the protection of the law. We heard from some of those girls and boys. Indeed, there are many more victims of sexual exploitation who are not in care and have not been in care than there are within it. During the course of the inquiry, we met some children who have been through some appalling things who had never been in care. While it is too late for them, we need to make sure that other profoundly vulnerable young people who happen to be living with their parents have the same protection as those under the state’s care.
The Government have shown real engagement with the inquiry’s findings so far, and I am delighted that they have adopted one of the inquiry’s recommendations by tabling an amendment to the Criminal Justice and Courts Bill on the topic of grooming. It is clear that these amendments on abduction would be another strong step towards giving the police the tools that they need to prevent some truly vile behaviour.
Baroness Howarth of Breckland
My Lords, I was recently approached by a very senior ex-policeman with whom I had worked in the past, who was trying to help a number of children’s homes and hostels in the north of England. He found that there were men who came to the hostel and took older girls out, and the hostel was totally unable to do anything about it. They could simply go and fetch the girls back, but the girls were so emotionally engaged, as the noble and learned Baroness and the noble Baroness said, that they went out again. What the hostel desperately needed was the capacity to take stronger action against the men, and I believe that that is what would happen were we to accept the essence of these amendments.
Child Abuse
Baroness Walmsley Excerpts(10 years, 5 months ago)
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Lord Taylor of Holbeach
We know that these are devolved matters in some areas. As the former leader of the Scottish Parliament, the noble Lord will know that Scotland is affected as much of the United Kingdom has been by these matters. We have inquiries going on in Northern Ireland and north Wales. In so far as it is not a devolved matter, the inquiry will indeed embrace the entire United Kingdom, but it is about England initially. However, I am sure that we can all learn from each other’s experiences. If there is a willingness to accept, across the United Kingdom, that information should be exchanged between the Governments and Assemblies in other parts of the United Kingdom and the inquiry, I am sure that that will be made clear.
I say to the noble Baroness, Lady Smith, that I have received a comment about gagging and whether people will be prevented because they have signed a commitment not to talk about matters. I make it clear that this is to be a wide-ranging review. It will have access to all papers and reports, as I have said, and, subject to the constraints of criminal investigations, it will be free to call witnesses. We have made it clear that if the inquiry panel deems it necessary, the Government are prepared to convert it into a free inquiry. It will have considerable powers.
Baroness Walmsley (LD)
My Lords, I welcome the Statement, particularly the independent inquiry. Indeed, I added my voice to those who were calling for such an inquiry during my debate in your Lordships’ House on 26 June.
There is no reason why such an inquiry should in any way interfere with the work of the police as long as the panel has available to it people from the police and the prosecuting authorities who know what is going on and which inquiries are actually under way. I ask my noble friend whether such people with up-to-date knowledge of what is being looked into and may be looked into in the future will be attached to the panel so that it can avoid straying into areas that might prevent perpetrators being prosecuted in the future. That is very important.
I ask my friend whether the inquiry will focus more on learning lessons than pointing fingers. It is the role of the police and the prosecuting authorities to point fingers and to bring perpetrators to justice, but they are not in the position, as the panel will be, to learn overall lessons. I echo what the noble Baroness, Lady Smith of Basildon, said about victims. They need to be at the heart of this. We need to be sure that they can be heard and will have support in order to be heard.
Finally, what will be the scope of the recommendations that the panel will be able to make? Clearly, it will be making recommendations on changes of practice. Will it also be able to make recommendations on changes in legislation? What will be the procedure for the Government to respond to those recommendations in the fullness of time?
Lord Taylor of Holbeach
I will start on that final point. There will be no limit on what the inquiry will be able to tell us all about what it finds. That is the whole point of it. My noble friend assumed too much when she said that it would not be pointing fingers. I think it will point fingers, and it should do so if it feels that areas of government have failed, either now or in the past. The panel needs to be able to tell us that, and it is right and proper that it should do so.
Of course it is important that people who have been subjected to child abuse feel that this inquiry is about what has happened to them. However, the principal thing that I would urge them to do is to go and tell the police what has happened to them. It is for the police to bring justice to these incidents. We are trying here to learn the mechanisms whereby we can have that framework and whether that is possible or easy to do.
My noble friend asked about the constitution of the panel. I cannot give information on that. No doubt the panel will be constructed to provide the right sort of expertise. We do not want the panel to be so inhibited by the situation regarding criminal prosecutions that it fails to do its work properly. It will have a proper legal basis for making inquiries so that prosecutions, if necessary, can follow from what it discovers.
Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012
Baroness Walmsley Excerpts(12 years ago)
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The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, I am sure that the Grand Committee will be aware that the Government have introduced effective measures to scale back the former vetting and barring scheme and to return to a more common-sense approach to handling criminal record checks through the Protection of Freedoms Act 2012. Measures in the Act received widespread support.
Our first priority remains to safeguard children and other vulnerable groups from those who may seek to cause them harm. The changes recognise that we need to do that in a way which does not discourage volunteers from working in these areas and without imposing unnecessary bureaucracy. As part of the process of change, and to help provide a more effective service to the public, we are combining the work previously carried out by the Criminal Records Bureau and the Independent Safeguarding Authority. The draft order before the Committee brings about the transfer of functions to a new single body, known as the Disclosure and Barring Service, in order to achieve this.
The necessary provisions of the 2012 Act to establish the DBS as a legal entity were commenced on 15 October. It is a new non-departmental public body, independent of government but overseen by the Home Office as its sponsor department. The DBS is expected to start its operations on 1 December, subject to the approval of this order. The order transfers to the DBS all the previous functions of the Criminal Records Bureau under Part 5 of the Police Act 1997. These are powers for the Secretary of State to consider applications for, and to issue, criminal records certificates—powers currently exercised on behalf of the Home Secretary by the CRB. Some functions under the 1997 Act are retained by the Home Secretary—setting fees for applications, for example, or issuing certain guidance.
The order also transfers all functions of the ISA under the Safeguarding Vulnerable Groups Act 2006 to the new DBS. The ISA considers whether individuals should be barred from work with children or other vulnerable groups, taking account of criminal records and other relevant information, such as that provided by employers. It maintains the barred lists and has powers to review barring decisions and to remove barred persons from the lists. All these functions will be taken over by the DBS, which will take barring decisions independent of Ministers. It also provides for the dissolution of the ISA once the functions have been transferred. Similar changes are made to enable the DBS to be the barring authority for Northern Ireland.
By means of a separate order, subject to negative resolution, certain core functions are retained for the DBS. The ISA core functions are set out in the 2012 Act and are intended to ensure the independence of decision-making by the new DBS for all barring decisions. The CRB core functions are prescribed and mainly concern powers to verify identity of applicants, including by checking other publicly held records, and to receive and process police criminal records and local information.
The creation of the DBS will involve the transfer of staff from CRB and ISA to the DBS through a statutory staff transfer scheme made under the 2012 Act. Staff will be notified in writing that they will transfer to the DBS in line with the requirements of the Cabinet Office statement of practice on staff transfers in the public sector. Staff and unions have been consulted about the transfer and have received clarification about their terms and conditions, continuity of service, future staff numbers and the likely impact on jobs.
The purpose of the order is to bring together the work of the Criminal Records Bureau and the Independent Safeguarding Authority into a single body. I am very pleased to have been able to visit both organisations, the CRB in Liverpool and the ISA in Darlington, and to see at first hand the important work they undertake. I thank the staff of those organisations for all the hard work that they have put into planning for a successful merger to the new DBS. Particular thanks are due to Sir Roger Singleton, Adrian McAllister and Anne Hunter of the ISA, who have provided effective leadership of that organisation and who will now be stepping down from their posts. Congratulations are due to Adrienne Kelbie and Bill Griffiths, the new chief executive and chair of the DBS.
The policy underlying the order was fully debated during the passage of the 2012 Act. It reduces bureaucratic requirements for a central registration scheme, amends the scope for regulated activity to which barring applies, and strengthens the criteria for disclosure on local police information. These changes will make the system fairer and more proportionate but they will also make sure that criminal record checks remain available to those who need them. The changes are part of a rebalancing of the responsibilities for safeguarding children and other vulnerable groups between the state, employers and other organisations. The order before the Grand Committee brings about the key changes which will enable the DBS to start its important work in December. I commend the order to the Committee.
Baroness Walmsley
My Lords, I thank my noble friend the Minister for explaining this statutory instrument. I have no reason to object to the streamlining of these organisations. It makes sense to bring together the collection and dissemination of criminal records information and barring decisions and to maintain those lists. However, I turned to the Explanatory Memorandum to have a look at what it says about consultation and I noted that it says that the changes are consequential on the Government’s remodelling review, on which there was consultation. Many of us who were part of that consultation were most grateful to my noble friend the Minister’s predecessor, the noble Lord, Lord Henley, at the Home Office, who was kind enough to spend quite a lot of his time consulting us. The problems identified by those who were concerned about the original legislation have been recently compounded. Employers in the further education colleges sector and the amateur sports organisations sector were particularly concerned about the reduction in the number of people who were going to be subjected to revelations about their background.
Perhaps I could summarise my remarks by asking my noble friend the Minister to tell the Committee how he feels that these new arrangements will help to prevent recent situations such as the Jimmy Savile situation and the terrible stories that came out of the Bryn Estyn school in North Wales some years ago. Those situations related to people who had never committed a crime and therefore they did not have a criminal record. So I would like to know how this streamlined arrangement will help to protect children in those circumstances.
Baroness Smith of Basildon
My Lords, I thank the Minister for his explanation and the information he gave in speaking to this order. I appreciate that orders of this kind often necessitate a long list of amendments. There is always the hope that the Explanatory Notes will make them clearer ... but they rarely do. I liked the comment in the Explanatory Note on page 20:
“Chapter 2 makes amendments to the principal enactments which are consequential on this transfer of functions and Chapter 3 makes amendments to other enactments which are consequential on this transfer of functions. Chapter 4 makes supplemental provision”.
It then goes on. It is quite a minefield for anyone to negotiate exactly what the order does. I know that the Government say in the Explanatory Notes that a consolidation order is not necessary but I wonder whether there should be a rethink on that. Just on page 2 of the order, there are six different pieces of legislation; there are also a number of orders and other secondary legislation—rules, procedures and regulation—referred to, which all concern amendments.
Those who need to consult this legislation should be able to do so as easily as possible and with the utmost clarity. Many people have a professional responsibility to enact this legislation and, presumably, need to be aware of it all and any other changes made to it since 1997. I wonder how much legislation somebody will have to have to hand to work their way through the minefield of amendments in this order and in other provisions. I do not know whether the legislation referred to on page 2 has previously been amended. If so, it seems quite a complex task for anyone and I am interested in the guidance that is being issued to professionals alongside this order. When and how will that be made available and can it be made available to those attending today’s Committee? It is crucial, particularly given the change of name and the merger of the two organisations, that there is some professional and public understanding and awareness of all the different changes being made. It would be helpful if the Minister could say something about publicity or any other measures being taken to alert the public and professionals to the changes being made.
The Minister explained the broad outline of the order, which is basically that the Disclosure and Barring Service—not a particularly catchy name; I hope people understand what that is going to mean—will take over the powers that were previously the responsibility of the Secretary of State under Part 5 of the Police Act 1997, the Safeguarding Vulnerable Groups Act 2006 and the safeguarding vulnerable groups order of 2007. It was helpful that the Minister gave some description of the functions that will transfer, and those that will not, because there is concern that functions are being transferred from the Secretary of State to the newly merged organisation—the DBS. As originally intended in the legislation, such responsibilities are those of the Secretary of State, with the holder of that office being accountable to Parliament. Given the number of issues that have been raised about failures in the system to fully protect vulnerable children and vulnerable adults, it is clearly advisable that parliamentarians should not lose an opportunity to ask questions or seek Statements from the Secretary of State or a government Minister on these issues, if they so wished.
I have a question about accountability issues. Will that accountability and scrutiny role still be available to parliamentarians? In particular, if Members of either House are asking parliamentary questions of Ministers, will they in future merely be referred to the head of the DBS and not be answered by Ministers? Clearly, the original intention of Parliament was that there should be a direct responsibility to Parliament for those functions. The issue is whether it is appropriate for those powers to be handed to a new, separate body, unaccountable in parliamentary terms, through secondary legislation. That is my point about questions and Statements. Can the Minister also say anything about the scrutiny arrangements that will be put in place to oversee the performance of those functions?
The SI lays out the legislative steps required to merge the two bodies. The Minister spoke to that but can he update us on the practical steps being taken? He said something about it, but the DBS will inherit powers from the ISA and it would be helpful to know what practical, step-by-step arrangements are taking place. It was helpful that the Minister referred to both sites. Will the two sites operate as they do now or will there be a movement and integration of staff and functions across them? Is the new management structure now in place? He referred to the chief executive and chair, but does that go further down the organisation? How much progress has been made on the new IT system? We all know that there are always issues with new IT systems. Is it possible to update the Committee at this stage on the costs related to it and when it is expected to be fully operational?
North Wales Abuse Allegations
Baroness Walmsley Excerpts(12 years, 1 month ago)
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Lord Taylor of Holbeach
The whole House will be awaiting the results of the inquiry from Sue Berelowitz which is likely to come out later this month. However the noble Earl is absolutely right: we have perhaps been complacent in the past. We can no longer be complacent on this issue. I hope that the Government are making it clear that they do not intend to be complacent and will pursue all these matters so that we have a better environment for child protection in this country.
Baroness Walmsley
My Lords, following on from what the noble Earl has just asked, will the reports that the Minister has just announced be free to make recommendations to public services and organisations? It seems likely that recommendations will be made to social services, the criminal justice system and the police. Health services, such as STD clinics where young girls go over and over again, are very often in a position to pick up warning signs, which they do not always pass on. This has recently come out in the report referred to by the Children’s Commissioner. Similarly, in the education service, schools can help to prepare children to understand the dangers and to protect themselves.
Lord Taylor of Holbeach
My noble friend is absolutely right. A multi-agency approach is the way in which this issue needs to be addressed across government. She quite rightly points to the fact that different aspects of government are able to assist in this process. It is certainly the Government’s objective to have a cross-departmental, cross-agency approach in order to make sure that the information that we have gained through these unfortunate events, and the public attention which has been drawn to the exposure of the Jimmy Savile case, can be properly addressed so that we can create a better place for young people in this country.
Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Prescribed Criteria) Regulations 2012
Baroness Walmsley Excerpts(12 years, 6 months ago)
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Baroness Walmsley
My Lords, first, I apologise to my noble friend for missing the first half-minute of his presentation. He managed to polish off the previous group much more quickly than the Government Whips’ Office had predicted and caught several of us by surprise. I hope that he will forgive us.
My noble friend will recall that our main concern about the section of the Protection of Freedoms Act to which the orders relate was not the matter that we are discussing today. Given that the Act has come into law, we recognise that the regulations are needed and therefore support the Government.
However, I take this opportunity to raise a very closely related matter and ask my noble friend whether he would kindly agree to a meeting to talk about it further. In brief, my concern is about the draft statutory guidance to chief officers of police, which has been released to a limited number of relevant stakeholders. The Minister will remember that, following the removal of the controlled activity category, my colleagues and I supported the noble Lord, Lord Bichard, in his amendment to ensure that employers—for example, colleges of further education—could obtain the information they need to enable them to make safe appointment decisions about posts other than those involving regulated activity. The issue is that, following the passage of the Act, employers will not be informed whether applicants for posts that are not regulated are on either of the barred lists.
On 12 March my noble friend the Minister promised that the statutory guidance,
“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”.—[Official Report, 12/3/12; col. 53.]
This assurance encouraged the noble Lord, Lord Bichard, to withdraw his amendment. It is now crucial that the final version of the statutory guidance appropriately fulfils this undertaking from the Dispatch Box, which I am sure my noble friend gave in good faith. Sadly, the draft that has been circulated is not considered by some of those stakeholders to be adequate guidance for police officers to understand the nature of the Minister’s undertaking and the consequences of their decision-making. The guidance must make clear through a specific reference that the ISA and the DBS can inform the police about the information that led to the bar, and that the police should request such information from them. This is particularly important where there was no criminal charge in the case.
Secondly, there needs to be clarity about circumstances where the post applied for does not fall under regulated activity but the employer is entitled to receive enhanced criminal records information, including the information to which I have just referred that led to a bar, if the person is indeed on a barred list. I am sure the Minister will agree that to carry out Ministers’ undertakings, statutory guidance needs to assist those for whom it is meant. I hope therefore that he will be so kind as to agree to a meeting to discuss the detail of this draft guidance.
Lord Bichard
My Lords, I will make a contribution, although I feel doubly constrained, partly because I was not here at the beginning of the debate for the same reason as the noble Baroness, Lady Walmsley, and partly because I should actually be in the Chair shortly, although I suspect that by the time I am there this will be completed. I merely rise to say that I hope the Minister will concede to a meeting, because I share the concerns that have been expressed. That is all I need to say today.
Baroness Walmsley
My Lords, I have the advantage of some other Members of the Committee in having taken part in the passage of the Act. I well remember that some Members on the same Benches as the noble Baroness, Lady Smith, agreed that where the ages of the perpetrator and victim are very close and where the age of the perpetrator is very young, there may be mitigating circumstances.
Lord Henley
That was why I referred to Section 28 of the Sexual Offences (Scotland) Act 2009, which concerns having intercourse with an older child where the ages of the perpetrator and victim are very close and it is marginal.
I was trying to say that if you take the more extreme example, rightly given by the noble Baroness, of sexual assault on a younger child, it is very difficult to see where there might be mitigating circumstances but, in law, one must accept that there might be. I would rather the noble Baroness did not ask me to explain what they might be. It is possible that there could be mitigating circumstances, although it is very unlikely, other than in the sort of case to which the noble Baroness refers. In those circumstances, we ought to leave the law as it is, because it would be for the appropriate authority to decide whether there were or were not mitigating circumstances. The noble Baroness wishes to intervene.
Queen’s Speech
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Baroness Walmsley
My Lords, not everything that matters needs to be done by legislation. At this stage, the Government should be working just as hard on implementation as on new legislation. It is perverse to say in one breath that there is too much legislation and in the next to complain that there are not enough Bills in the Queen’s Speech. In taking that view, I agree totally with the closing words of my noble friend Lord Thomas of Gresford.
I give noble Lords an example. One of the most important Liberal Democrat policies that was inserted into the coalition agreement was a properly funded pupil premium. The case was made and accepted. Research and practice in other countries had proved the worth of such a policy, so we put it in the previous Queen’s Speech. We legislated for it and did it. The funding was made available—small at first, but growing every year to £2.5 billion per year by 2015. The purpose of the premium is to narrow the gap between rich and poor, and help to achieve the Government’s other primary objective of improving social mobility. How can it be that in a modern, open society such as ours, and after 13 years of a Labour Government, a child’s destiny is still determined by their background?
Now we have to monitor what schools are doing with the premium because we are not telling them exactly how to spend the money. Teachers are professionals, after all. We need to research what works, look at how the best teachers are spending the money and getting results, and make sure that best practice becomes general practice. That is what we are doing and you do not need legislation for it. In his speech yesterday to the National Education Trust, Nick Clegg outlined a package of measures to make sure that this money achieves what children and the country need it to do. Bear in mind that this is linked directly to the Government’s first objective of getting this country back on its financial feet. Every child who does not fulfil his educational potential incurs cost and is a potential loss to our future productivity and GDP. None of this needs legislation but it follows up previous legislation and makes sure that it works properly.
Another initiative, most of which does not require legislation, is the new adoption plan that was published recently by the Minister of State, Mr Tim Loughton. We are told that an important measure in the children and families Bill will be to ensure that adoptions are not held up by officers looking for a perfect racial match. It horrifies me that children can wait an average of 22 months from going into care to moving in with an adoptive family. The measures that are being taken to speed things up are very welcome. However, I feel that more people would come forward as potential adoptive parents if there was more post-adoption support. There would also be fewer failed placements. It is bad enough when a foster placement fails, but when an adoption fails it is a catastrophe for the child and the adoptive family. Therefore, I ask the Minister: what measures are being taken to improve post-adoption support?
I should also like to ask about kinship adoption. I am familiar with this because it has happened in my own family when the child’s mother died, and I believe it has a very high rate of success. The reason for that is probably because it provides a baseline of family love and history on which to base the new relationship. Of course, love is a key ingredient in all these caring situations. Could the Minister say whether kinship adopters will be given the same level of support as other adopters, since the child will still have undergone considerable trauma in many cases and may need a lot of help to settle?
I also very much welcome the announcements in the gracious Speech about the new system of providing joined-up support for children with disabilities or special educational needs. My honourable friend Sarah Teather, the Minister for Children, can be congratulated on her very hard work in pulling together legislation and a pilot scheme—which is, I believe, the reason why the Bill will not be introduced just yet—that gives a child and his family an education, health and care plan that goes right up to the age of 25, and does not fall off the cliff at 16 as before. It should be a Lycra plan—seamless both horizontally and vertically. However, while I applaud the idea of giving parents a budget and a choice of how to spend it, I should like to know whether there is a mechanism in place to help them make good decisions. Bad decisions and bad placements will be bad for the child and a waste of that precious budget.
Finally, I welcome the strengthening of the remit of the Children’s Commissioner for England. It is very important that the commissioner has a new overall function to promote and protect children’s rights, as set out in the UN Convention on the Rights of the Child. It is a fulfilment of something for which I campaigned—against strong resistance from the Labour Government—when the legislation to appoint the commissioner went though Parliament eight or so years ago and ever since. I also welcome the new powers to carry out assessments of the impact of new policies and legislation on children’s rights. However, I should like to know whether this is supposed to be the mechanism that will give effect to the promise made by the Children’s Minister in December 2011 that legislation would be scrutinised to ensure that it complied with the UNCRC. If so, the commissioner will need much more funding than she has now.
May I point out that the Committee on the Rights of the Child expects the commissioner to comply with the Paris principles? Therefore, she should be independent, properly funded and have the role of protecting children’s rights. She should also be accountable to children, the public and Parliament. In this regard, are the Government inclined to accept the idea that the Select Committee to which she should be accountable should, in future, be the Joint Committee on Human Rights? I believe that this was raised at a recent hearing and makes a lot of sense, since the commissioner’s powers cover so many different departments, not just the Department for Education, where the responsible Minister sits. Having said that, this is one of the most welcome and important measures announced in the gracious Speech.
Criminal Records Bureau
Baroness Walmsley Excerpts(12 years, 9 months ago)
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Lord Henley
Obviously, the noble Baroness is a most tremendous risk to the public and to children and I hope that she will consider these matters very carefully. No—that is what we want to address and it is the point of some of the changes we are making as a result of the Protection of Freedoms Bill. It is why we will keep these matters under review and it is why my right honourable friend the Home Secretary launched her initial review into these matters last year. I go back to the supplementary question of my noble friend Lord Vinson when he talked about trust being important. We think it is vital that people take a common-sense approach in these matters.
Baroness Walmsley
When and in what way will the Government be communicating to the ISA and the police the statement that my noble friend made last week during the passage of the Protection of Freedoms Bill in response to the amendment tabled by the noble Lord, Lord Bichard: that the ISA can pass on to the police the information that has led to a discretionary bar so that the police can then use their discretion to release that information to a conscientious employer who requests it?
Protection of Freedoms Bill
Baroness Walmsley Excerpts(12 years, 9 months ago)
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The Lord Bishop of Hereford
My Lords, I welcome hugely the amendment in the name of the noble Lord, Lord Harris, and that in the name of the noble Lord, Lord Bichard. I particularly welcome them because I firmly believe that they need to be accepted as they would strengthen the Bill and make it a much safer document.
From the point of view of the churches, other faith groups and voluntary organisations, the amendments have the great advantage of making it possible for the first time within the Bill for there to be CRB checks for volunteers. To my mind, without these amendments, there is a serious omission in that regard. By broadening out that eligibility, the amendments would allow the churches to have CRB checks for Sunday school teachers, youth workers or perhaps organists who have the role of musical director for children’s choirs.
This is a complex area regarding how we within the churches, and therefore within the church communities, have been able to check using eligibility that has until now conferred by either the broad understanding of regulated activity as it has been hitherto, or having to use the concept of regulated positions from the Criminal Justice and Court Services Act 2000. However, there has until now been no recognition in the Bill of the role of the volunteers; hence, my welcome for the two amendments in the group.
Amendment 5 in the name of the noble Lord, Lord Bichard, specifically includes making those responsible for the employment and appointment of people who meet the definition eligible to make enhanced CRB checks and obtain suitable information, which we understand, and hope will be understood, to mean the vetting and barring information to which the noble Lord has made reference. However, I would make a slight qualification to what he said. He used the term “employer” throughout most of his speech, although his amendment does not do so. I want that term to be understood to include, say, a church that has volunteers, and for “employer” not necessarily to mean paid employees. Provided it is understood to include volunteers, we would be of one mind on this.
The amendment gives space, as we have been told and as the wording makes clear, for the Secretary of State to define what is meant by the phrase “regular and close contact”. Those words could be a little slippery. It is difficult for us within our churches to be specific as to what “regular” means, and we commend the approach used in Scotland, where the protection of vulnerable groups scheme also requires regular contact, but “regular” is defined there as a core part of the role rather than by a weekly or even monthly requirement. I ask noble Lords to picture a situation, perhaps in one of our village churches in our diocese of Hereford, where there might be only a monthly Sunday school or family service and where the key adults have regular but only monthly contact. Or, perhaps in one of our more urban situations, there might be a holiday play scheme whereby the adult workers, although they may regularly be involved each year, would be there for only four or five days a week in the summer holidays. However, in all those situations, the workers get to know the children well and, as the noble Lords, Lord Harris and Lord Bichard, said, the point is about access.
However, I would add a further dimension to what they said. This is also about the authority that we the church give if these workers are used, and known to be used, as volunteers within the life of the church. It makes the child think, “That is the nice Mr So-and-so who I know from church, so he is safe”. That is the assumption made. We are responsible for giving that authority, and that is part of what concerns me so strongly and why I welcome this amendment. It recognises that when such volunteers take a role, even if it is not frequent but is nevertheless regular, it is possible to build up authority and therefore trust, as well as access. That access is not about just the supervised range of the activity. The access exists outside; and that is the crucial part for me. We have been reminded that access is there within social networking, but it should be recognised, please, that access is available in lots of other ways. Half the population of the diocese of Hereford, which includes south Shropshire as well as Herefordshire, live in villages of 500 people or less. If you live in a village of 500 people, your family knows all the other families, and there is therefore trust and access. You are bound to see people at other times. It is inevitable, and that is the nature of community and village life. To say that because the regulated activity is safe, everything else is safe, is frankly not sufficient. We are responsible by giving authority and access. Therefore, it is crucial that we can also have the CRB checks.
I emphasise my strong welcome for the amendment; I would love it to be extended from just children and young people to vulnerable adults, because we could have had the same debate on the same issues there.
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
Baroness Walmsley Excerpts(12 years, 10 months ago)
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Baroness Walmsley
My Lords, the noble Lord, Lord Harris of Haringey, has made some very good points. He asked whether in future people will ask why Parliament was happy that these measures were passed. I can say to the House that I am not happy that they go through unamended. I agree with everything that the noble Lord, Lord Bichard, said. Given that the Safeguarding Vulnerable Groups Act has not been implemented, what is the evidence that the measures in it are, in fact, disproportionate? As the noble Lord, Lord Harris, suggested, there is evidence that this is not what parents want. There is no great clamour from parents to have these measures changed.
The main point made by the noble Lord, Lord Bichard, was that the measures in the Bill take no account of secondary access. Young people develop a relationship of trust with all kinds of adults in the various settings that are covered by this Bill. Very often young people have the closest friendships not with the most senior people—the teachers, the heads—but with the technicians. In fact, in the school where I used to teach, the technician in the laboratory was the person who was most friendly with the pupils. People like this may not be covered by the Bill as it stands, and yet they have a very good opportunity to build up a relationship of trust with the children. As the noble Lord, Lord Harris of Haringey, has just quite rightly said, they are unlikely to misbehave on the premises, but rather build on that relationship of trust, on which they will rely in some other situation where the child is vulnerable. That is a risk that we cannot take.
Baroness Howarth of Breckland
My Lords, I support the amendment moved by the noble Lord, Lord Bichard. I want to concentrate on the people who are likely to abuse. I declare an interest as the vice-chair of the Lucy Faithfull Foundation, of which I have been a trustee for some 20 years. It is the organisation that pioneered the work in grooming and understanding the nature of abusers.
As the noble Lord, Lord Bichard, said, there is no doubt that these individuals will see this as open season on children—and I choose my words carefully. I have probably been involved with more of these men than most—some women, but mostly men—and so I know just how deceitful, clever, manipulative and strategic they are. They have a long view. These individuals do not just move in, see a child and think they are going to abuse them; they plan their moves carefully. There has been talk about building trust, but when a teacher can systematically abuse a child in a classroom, as in a recent case, noble Lords should take that as an example of what these kind of individuals can do, and then recognise that there are others right across the country who are thinking at this moment, “Will there be another opening for me to reach a child?”.
I have also worked with victims of that abuse. Imagine it was your son or daughter who had been buggered or raped by one of these people, who had gained their trust. The child or young person involved believes that they are implicated—the trust means that they carry the guilt. This is why often these youngsters will not come forward early, but if you talk to rape crisis lines or the people who deal with adult abusers, time after time they will tell you how the guilt kept them from telling. Research may show that if you talk to young people there is less of it, but many youngsters will not say that it is happening to them because they have that guilt.
As far as supervised access is concerned, anyone who has recently been to any of the youth provision that is around will know how hectic it is—properly so, for young people enjoying themselves—and that “supervision” is a strange word. In fact, you are just about maintaining the peace in some of these organisations. It is very easy for these individuals to make contact with the young people. As has already been said, modern technology makes it even easier.
I can see the Minister sitting there thinking, “We have heard all this before; we have our position”. But I would say to him that if you really care about our nation’s children and what happens to them in their adulthood after these incidents have happened, when they are unable to make relationships, when their marriages break down, when they have problems with their own children, when they end up in mental hospitals or in prison—if you look at any of those cohorts you will find that a lot of these youngsters have been abused—then you will find a way to absolutely ensure that it is not as loose as this. Anyone who is likely to abuse a child must be able to be checked so that certainty can be held by a parent and indeed by the child—and in some ways by the individual themselves because the abuser’s life is destroyed as well if they are not helped to not go through all of this. I hope the Minister will do so.
The Minister of State, Home Office (Lord Henley)
My Lords, the noble Lord, Lord Rosser, asked that I should take particular note of what the noble Lord, Lord Bichard, said in moving his amendment. I can give him, the House and the noble Lord, Lord Bichard, an assurance that I will do that. Our time goes back a long way to when I served with the noble Lord, Lord Bichard, in the former Department for Education and Employment and I hope that we both have a great deal of respect for each other.
I echo the introductory words of the noble Lord, Lord Bichard, when he said—this is important—that we cannot completely eliminate risk. We understand that. He also made the point that we must be proportionate in how we manage these matters and accept that we must try to reduce bureaucracy as and where we can. I was grateful for the wise words of the noble and learned Baroness, Lady Butler-Sloss, when she referred to the need to reduce the unnecessary CRB checks that were taking place.
It is important for us to remember that it is a question of balance. It is one that we can never get absolutely and completely right and we will probably have to go on arguing almost until the cows come home before we can resolve these matters. We should try to get it right, but the balance will be perceived differently between one individual and another.
By way of background, I reiterate that the Government believe, as do many outside bodies, that by scaling back the scope of regulated activity, and thus disclosure and the barring scheme, we can strike a better balance between the role of the state and that of employers or other organisations in protecting the vulnerable. Both have a role to play.
Clause 64 and the amendments to it provide that certain activity, which would be within the scope of regulated activity in relation to children when unsupervised, will not constitute regulated activity when it is subject to day-to-day supervision. An example was given to me—I think by my noble friend Lady Walmsley—of a technician in a school. He certainly would be covered. The amendments take us back to the wider scope of regulated activity as it existed under the previous Administration.
Baroness Walmsley
In a letter to the noble Baroness, Lady Randerson, of 1 February, the noble Lord suggested that an IT technician would not be regulated.
Lord Henley
The noble Baroness has caught me out and has got the letter that I wrote. I shall have to look again at the letter I sent to my noble friend and check that. I take back what I said but my understanding is that that is not the case. However, obviously I have got that wrong.
Lord Henley
I am not going to give way to the noble Lord. I am going to get on with my speech. If the noble Lord will allow me to do so, I will continue.
These amendments seek to preserve what we believe is a disproportionate disclosure and barring scheme that covers the employees and volunteers far more than is actually necessary on this occasion for safeguarding purposes. In so doing, it subjects all the businesses, organisations and whatever to unnecessary red tape and discourages volunteering. The noble Lord, Lord Bichard, also made the important point of whether it would still be open to schools, organisations and businesses to continue to check volunteers and others. Of course they can, and we will ensure that they are still able to request the enhanced CRB certificate when necessary. We want to emphasise the importance of good sense and judgment by the managers on the ground when they look at this issue. That is at the heart of our proposal and it is why we think we have got the balance right. The noble Lord, Lord Bichard, is now looking somewhat quizzical but no doubt we can have further discussion about this between now and another stage.
The right thing is to get the correct balance in how one looks at these things. The noble Lord asked about schools and what they could do. This gives local managers the ability to determine these things flexibly and make extra checks. With the various interruptions I have had, I appreciate the slight muddle I got into earlier over the letter to my noble friend Lady Walmsley. There has been a degree of confusion here.
Lord Henley
Can I just continue these matters? I hope that I have answered most of the points that the noble Lord put forward and that he will feel able to withdraw his amendment.
Baroness Walmsley
I am grateful to my noble friend. Could he just clarify one point? The volunteers we are talking about here are the volunteers who see children on a regular basis. That is correct, is it not?
Baroness Walmsley
I have one second point before my noble friend rises to answer. I accept that people who are not regulated can still be CRB-checked but the employer cannot get barring information. Unless the person has committed a crime and got on the police records in that way, the employer who voluntarily carries out a CRB check still does not know if that person has been barred. I understand that Sir Roger Singleton claims that 20 per cent of the people on the barred list have never been in contact with the police. Could my noble friend clarify that?
Lord Henley
May I write to my noble friend on that final point to make sure that I get it right? I will make sure that I look at my letter with the greatest care before sending it off to make sure that I have got it right. No doubt we will come back to this at a later stage. Meanwhile, I hope that I have satisfied the noble Lord, Lord Bichard, and that he is able to withdraw his amendment.
Protection of Freedoms Bill
Baroness Walmsley Excerpts(13 years ago)
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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.
Lord Henley
My Lords, my noble friend Lady Hamwee suggested that I should not talk about feed-in tariffs and solar panels, and I am tempted to follow her suggestion on that. I used to speak a great deal on those issues in my previous job, but I do not often do so now that I am in the Home Office. I am not sure that they are quite relevant to this debate. Possibly we ought to have a new award for relevance in amendments—we could call it the Lord Rosser award for relevance—and I could congratulate the noble Lord on winning the award on this occasion for bringing in feed-in tariffs and solar panels.
Baroness Walmsley
If the system is considerably enhanced, does the Minister accept that further information should be provided to parents?
Lord Henley
My Lords, I think this is what lawyers refer to as a question of fact and degree. If the system were, as my noble friend puts it, enhanced considerably and that involved a real change, then there would have to be further approval from the parents and children concerned. If it were a minor or technical change, I think that would not be the case. I shall leave it there, as it is a question of fact and degree as to whether there has been a proper change. I am in the hands of my noble friend Lord Lucas, but I hope that with those explanations of the various amendments he will feel able to withdraw his amendment. I think this debate has been very useful. We might not all agree totally but, as always, it is a question of getting the balance right on these matters, and I hope we have got it more or less right.