Safeguarding Vulnerable Groups Act 2006 (Specified Scottish Authority and Barred Lists) Order 2019

Baroness Williams of Trafford Excerpts

Wednesday 26th June 2019 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That the draft Order laid before the House on 20 May be approved.

Relevant document: 53rd Report from the Secondary Legislation Scrutiny Committee

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, as noble Lords will know, the Disclosure and Barring Service—the DBS—makes considered decisions regarding whether an individual should be barred from engaging in regulated activity, which is close, regular work with children, vulnerable adults or both in England, Wales and Northern Ireland. The DBS also maintains the lists of individuals it has barred from undertaking regulated activity with children or with adults. Individuals can be barred if they are convicted or cautioned for a relevant offence, such as sexual or violent offences, or if they are referred by their employer who is concerned that the individual poses a risk of harm to children or vulnerable adults.

Barring plays a key role in safeguarding children and vulnerable adults from those who pose the greatest risk of doing them harm. It is vital that employers are supported in making informed decisions about an individual’s suitability when they recruit for the most sensitive roles. As noble Lords will know, it is an offence for a barred individual to work or seek to work in regulated activity. This order relates to the process by which an individual may be barred from working with children or vulnerable adults and provides for greater recognition of barring decisions taken in other UK jurisdictions.

The order gives effect to provisions under the Safeguarding Vulnerable Groups Act 2006, also known as the SVGA, to ensure that barring decisions made under the law in Scotland are recognised by the DBS in England and Wales in cases where no additional information comes to light. In particular, an individual whom Disclosure Scotland decided not to bar cannot subsequently be considered for barring in England and Wales on the basis of the same information. To give effect to these provisions, the order specifies that the Scottish Ministers are the “relevant Scottish Authority”, and the lists maintained by the Scottish Ministers under the Protection of Vulnerable Groups (Scotland) Act 2007 are “corresponding lists” to those lists of barred individuals maintained under the SVGA.

As noble Lords will know, criminal records disclosure and barring are devolved matters. As such, it is important that the DBS and its Scottish counterparts work together and recognise each other’s decisions. The existing framework provides that an individual who is barred under Scottish legislation is also barred in England and Wales and vice versa. Therefore, an individual who has been barred in one jurisdiction cannot work with vulnerable groups by seeking employment in another.

The order gives practical effect to that recognition and ensures that effective safeguarding is maintained across the UK. This avoids the possibility of a “double jeopardy” situation for the individual where the DBS might bar an individual whom Disclosure Scotland had previously decided not to bar on the basis of the same information. It is already the case under Scottish law that Disclosure Scotland is not required to consider an individual for barring who has already been considered by the DBS.

A similar statutory instrument will be made by the Secretary of State under corresponding Northern Ireland legislation to ensure consistency across all three jurisdictions. As a result, each barring body will recognise barring decisions taken by another.

I hope that that is a simple explanation that noble Lords will feel able to support, and I commend the order to the House.

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[Lord Paddick (LD)]

My Lords, I thank the Minister for explaining this order. I now understand why the noble Lord, Lord Rosser, wanted to speak first—I too am relying on the Secondary Legislation Scrutiny Committee’s 53rd report, so I will try to say things in a slightly different way.

I understand that the purpose of the order is to ensure that those placed on a barred list by the Disclosure and Barring Service in England, Wales and Northern Ireland are not also placed on the barred list in Scotland by Disclosure Scotland for exactly the same reason—so-called double barring—so that, if there is a successful appeal in one jurisdiction, the person does not have to go through a second appeal process in the other jurisdiction. I also understand that this protection against double barring was supposed to have been brought in in 2012 and is being done now simply because of an oversight, as the noble Lord, Lord Rosser, pointed out.

I further understand that the current computer systems do not allow automatic checking of the Disclosure and Barring Service against the Disclosure Scotland barred list but relies on the DBS, for example, asking Disclosure Scotland to do a manual search of their list if it believes the subject has a Scottish connection. There is no date, other than beyond January 2020, for changes being made to the IT systems to allow automatic checking, as the contract with the current IT company has been terminated but the system is being maintained by the current company until the new one takes over in 2020.

While I can understand the reasoning behind the protection against double barring, is it not in the overriding interests of public safety for the name to appear on both lists, rather than relying on the Disclosure and Barring Service making a specific request of Disclosure Scotland if, and only if, they suspect a Scottish connection, at least until the IT issues have been sorted out?

To avoid the scenario where a successful appeal to the Disclosure and Barring Service does not result in the barred person being removed from the Disclosure Scotland list, if the person is barred for exactly the same reason in Scotland, what is to stop the Disclosure and Barring Service, as a matter of course, alerting Disclosure Scotland whenever there is a successful appeal against inclusion in the England, Wales and Northern Ireland list, and vice versa? The Government have failed for seven years to implement the protection against double barring. What difference will another six months or so make, until a reliable IT system is in place that can automatically check one list against another, particularly as there seems to be a perfectly reasonable workaround—or have I misunderstood?

[Baroness Williams of Trafford]

My Lords, I thank noble Lords who have raised questions on this SI. Like the noble Lords, Lord Paddick and Lord Rosser, I requested that the whole thing be translated into English so that I could fully understand it—noble Lords will agree that the language is quite technical. I thank the noble and learned Lord, Lord Hope, for his general support for consistency being employed through the use of this statutory instrument.

The noble Lord, Lord Rosser, asked when the issue was identified and what the reason was for delaying the introduction of the SI. It was identified in May 2018 and was the result of a move of departments—to the Home Office. Departmental responsibility changed following its enactment and we think, as the noble Lord, Lord Paddick, said, that it was an oversight. Once the failure was identified, the Government brought forward the order at the earliest opportunity to give effect to paragraphs 6 and 12 of Schedule 3 to the SVGA.

The noble Lord, Lord Rosser, rightly asked about safeguarding gaps. No safeguarding gap is created by this order not having been in place. Individuals in Scotland, or England and Wales, who pose a risk of harm have continued to be subject to rigorous consideration and, where appropriate, included on the barred lists. It was an interim measure—although a rather long one—done by MoU. It is now, quite properly, done by statutory instrument in your Lordships’ House and in the other place.

The noble Lord also asked about out-of-court disposals. I totally agree with him that it is vital that employers have the right information when they are recruiting people to work closely with children, or indeed other vulnerable groups. That is why, in addition to details of convictions and cautions, the enhanced DBS check is referred to local police forces to include any information the chief officer believes to be relevant to the application, and ought to be disclosed. That might include details of a serious offence dealt with by a community resolution or other out-of-court disposal.

The noble Lord, Lord Rosser, also raised the question that was asked of my honourable friend in the other place, Victoria Atkins MP, about the international exchange of criminal records. She will write to the House on the subject and the response will be shared. I do not, I am afraid, have that answer in front of me at this point.

--- Later in debate ---

[Lord Rosser]

The Minister has certainly answered my questions, for which I am grateful, but I want to pursue one issue—I do so seriously and not frivolously. The secondary legislation committee had asked why, given that the restriction on duplication was introduced in 2012, it was only now being implemented. The answer came back that it was an oversight. My question is simply this: was that because of a breakdown in processes and procedures, or was it just bad luck? Has this been looked into? Is the Home Office taking steps to make sure that such a thing cannot happen again?

[Baroness Williams of Trafford]

What I do know is that it was originally brought in in 2009. I accept that the noble Lord would like more detail. I think that it is simply an omission, which we often correct in secondary legislation, but if there is anything further to add, I will get the information to him.

Motion agreed.