Protection of Freedoms Bill

Lord Addington Excerpts

Tuesday 6th December 2011 Lords Chamber

[Lord Addington]

My Lords, I support my noble friend. I believe that this is the first amendment that she has moved in this House, and I congratulate her on that. The idea for Amendment 62, which stands in my name, was taken from sport. As my noble friend has stated, it is very difficult to decide who is actually in charge of a particular part of a sporting activity when it comes to training. In certain sports—Rugby Union is a good example—the sub-coach may be in charge of a session that deals with an aspect of the activity. This is the driving force behind the amendment. The noble Baroness, Lady Royall, has pointed out that the Bill goes much wider, and I look forward to clarification from the Minister.

The importance of the amendment is that it points out that in a very big sector—sport is one of the most important sectors for volunteers and one of the biggest individual volunteering sectors—you do not really know, when you are taking part in this structure of coaching, exactly who is in charge at any time. People will be taken away for specific coaching—strength, speed, endurance or technical—and will be out of the supervision and control of the overall body and will be undertaking something that the overall coach may not be able to understand; that may be why they are there.

We have to get to a position where everyone with that degree of power and control has had a full check. That is really all that this is about. I do not criticise the main principle in the Bill, but the fact is that certain people will be removed from a position of power by having someone else in charge of the session, and that should not be the case. For certain types of athlete, a certain type of coach will be in a position of power and control and will dominate bits of their lives, and we have plenty of examples where that has gone horribly wrong and there has been an abuse of trust.

I hope that my noble friend will be able to tell us that our interpretation of what he is saying is wrong, and that the extension of this and other types of activity will be caught by the Bill. If not, we will have to change it, but I hope he will be able to give us some assurances that we are worrying unduly and give us examples of why that is the case.

[Baroness Walmsley]

My Lords, I have two amendments in this group, Amendments 63 and 66. Amendment 63 would provide a level playing field between schools and colleges in relation to the information that they receive to help them with safe recruitment. The effect of the Bill as it stands is that colleges will no longer be able to access barring information about any newly appointed non-teaching staff, whereas schools will still continue to be able to receive this information.

All children should be given the same protection under the law wherever they study, and therefore all educational institutions should have identical access to criminal records and barring information. The current proposal places further education colleges on the same basis as leisure centres or places of worship, which children attend only occasionally, rather than in the same category as schools, which, like colleges, children attend on a daily basis and where they meet the same staff, both teaching and non-teaching, day in and day out.

This is not a minor matter affecting small numbers of young people. There are nearly 900,000 16 to 18 year-olds studying in colleges, about double the number of the same group attending sixth-forms. This number will rise when the participation age goes up to 17 and then to 18. There are also 63,000 14 to 16 year-olds who spend at least one day per week in a college, and that number is likely to increase following implementation of the recommendations of Professor Alison Wolf.

Colleges are clear that they want the ability to check that the staff they employ do not pose a risk to their students aged under 18. All staff in educational establishments are seen by children as trusted adults. Colleges want to maintain a safe recruitment procedure. The key to this is to ensure that they are able to make informed decisions regarding the suitability of applicants by continuing to receive barring information in addition to the criminal record check. This amendment would remove the anomalous differences between schools and colleges in respect of young people of exactly the same age group. It surely must not be the Government’s intention that a 14 year-old should have the full protection of the vetting and barring system from Monday to Thursday when she is at school and not have such protection on Friday when she goes to college.

The idea for Amendment 66, which is in my name, came to me during a meeting with my noble friend the Minister and my honourable friend Lynne Featherstone, the Minister at the Home Office, for which I am grateful. I am also grateful to the Public Bill Office for assisting me with the wording of the amendment. Lynne Featherstone made it clear that she wants organisations that use volunteers to work with young people to take responsibility for their recruiting practices and not rely entirely on CRB checks. I quite agree, but that is exactly what the sports organisations that were at the meeting do all the time. Indeed, their presence at the meeting was a clear indication of their conscientious care for the safeguarding of the young people engaging in their sport. They conduct their own risk assessments every day on everyone who comes into contact with the children taking part.

However, these organisations, as we have heard, are very concerned about the wholesale removal of many potential volunteers from the scope of regulated activity. They and I are concerned about what is called secondary access. We recognise that much of the abuse does not take place during the activity itself but elsewhere or on another occasion when the abuser takes advantage of the relationship of trust that he has been able to build up with the child during the activity, even where it has been closely supervised. They and I are also very doubtful as to whether any official guidance, however carefully crafted, can adequately identify the level of day-to-day supervision necessary to ensure protection and roles in which the adult cannot build up this relationship of trust.

These organisations are also concerned that although a registered body can ask for an enhanced CRB check on someone in an unregulated role, they cannot get information on whether that person is barred or not. A person can be barred on the basis of important and significant information other than by involvement with the police. Unless the information is known to the police, the organisation taking them on as a volunteer cannot get hold of it and may unwittingly take on someone who is barred and absolutely unsuitable in an unregulated role.

I think I have the solution to this problem. The people best placed to specify which roles within their organisations would give an adult the opportunity to build up that relationship of trust are the management of the organisations themselves. That is what my amendment says. It perhaps picks up the concerns expressed by the noble Lord, Lord Bichard, about the difficulty of specifying the level of supervision required. These organisations understand the situation on the ground much better than any civil servant sitting in the department writing guidance.

This amendment does exactly what the Government have said they want organisations to do. This is what it says in a document on frequently asked questions that was recently circulated by the Minister:

“The purpose of the change to the scope of regulated activity is two-fold. Firstly, it is to provide greater flexibility to employers and to organisations in using volunteers and staff who are supervised by not requiring them to carry out the checks that apply to regulated activity, but for such employers to have some flexibility in determining the level of vetting that they decide is appropriate in relation to any work. Secondly, it is to place the responsibility for safeguarding children sensibly with those who are directly responsible for the provision of services to children and to encourage them to have in place proper supervision and other safeguards”.

With that in mind, and bearing in mind similar statements made by the Minister in another place, I am very optimistic that my noble friend the Minister will accept my amendment, since this responsibility, which the Government require in the hands of the registered bodies, should be placed in the Bill.

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[Baroness Royall of Blaisdon]

I am grateful for that response from the Minister but I surmised from what the noble Lord, Lord Addington, said that the intention behind the amendment was indeed to capture a wider activity than just a sporting activity and to open it up a bit further to encompass youth clubs or whatever. However, I may be wrong about that.

[Lord Addington]

Perhaps I may come in here to clarify the matter. I was using sport as an example of where you get activity. The noble Lord has started to answer my concern but, although he has gone some of the way in his initial response, I do not think that he has totally embraced the position of control that can be taken on by a coach, even if that coach has a subservient role to the main coaching structure. For instance, if you are a potential shot-putter, you need a strength coach. You need someone to control your diet, your exercise and the way you sleep. I am trying to get at whether that degree of control is within an organisation. The noble Lord is starting to get there but I am just saying that, unless that degree of control in this one sector is addressed, he is going to miss out a lot of things in other sectors.

[Lord Henley]

My Lords, obviously at this stage I cannot define “recreational” as used by my noble friends in their amendments. It is not for me to define it; an explanation will have to come from noble Lords themselves as they move their amendments. The subsidiary point to that—the concerns expressed by my noble friend—may be best addressed by my noble friend Lady Hamwee’s comments when she talked about the difficulty of getting it down to just one or two words. She talked about the need to get this consultation, and the guidance ensuing from it, which is exactly right. I hope that my noble friend now accepts that that is what we are trying to do. That is why I want to make sure that the consultation is out before the next stage of the Bill. I see the noble Baroness, Lady Farrington, twitching to get up, so I shall give way.

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[Lord Henley]

My Lords, in moving Amendment 73 I shall speak also to Amendment 82. Within this group we shall also consider Amendment 75, tabled by my noble friend Lord Addington, and Amendment 75A, in the name of the noble Baroness, Lady Royall, and others. It might assist the Committee if I first set out what Clause 79 intends to do before speaking to the government amendments in this group, as this is the first amendment in Chapter 2 of Part 5 of the Bill.

At present, a criminal record certificate is simultaneously sent to the individual applicant and to the registered body that countersigned the application, for example an employer or sports governing body. This means that the employer or voluntary organisation gets to see any conviction or other information included on a certificate before the individual applicant has an opportunity to contest the accuracy of any conviction information or the accuracy or relevance of any non-conviction information. The Government’s independent adviser for criminality information management, Mrs Sunita Mason, concluded that this approach was unfair to the applicant. We agree, as indeed does the Information Commissioner. Clause 79 therefore provides that henceforth a criminal record certificate should be sent only to the applicant. This allows the applicant to review and, where they deem it necessary, challenge any information on the certificate before it is passed to an employer, prospective employer or voluntary organisation. This change will also allow the individual to approach a prospective employer and provide background about why a particular record exists or provide further explanation or context that might not be apparent directly from the disclosure.

Some sports governing bodies and voluntary organisations, such as Girlguiding UK, have expressed concern about the impact of this change on their recruitment processes. I was able to hear about these concerns at first hand when I met a delegation of bodies referred to in the first amendment led by my noble friend Lady Heyhoe Flint, and I know that yesterday she had further meetings of a constructive nature with officials in my department. I can assure your Lordships that in implementing this change, we want to minimise any disruptive effect it may have on current recruitment processes. Having listened to the representations from the England and Wales Cricket Board, the Football Association, Girlguiding UK and others, we recognise that Clause 79 as originally conceived did not get that all-important balance right, which I have referred to on a number of occasions.

We believe that the government amendments in this group address the concerns that have been raised. Amendment 73 provides a clear legislative basis to enable a registered body to track the progress of an application online and be informed about its status. This tracking facility would also enable the registered body to ascertain whenever a certificate is clear: that is, that it contains no convictions or other police information. This is a significant point, as currently some 92 per cent of criminal record certificates are clear, so such a facility will ensure that in the overwhelming majority of cases the recruitment process can proceed with confidence, even if there is some small delay in the certificate being sent by the applicant to the registered body. Government Amendment 82 ensures that the same arrangements will apply to the up-to-date arrangements.

For the one in 10 cases where a criminal record certificate is not clear, the registered body will know the date on which the certificate was issued and, as such, will be able to take appropriate follow-up action if the applicant does not provide a copy of the certificate within a few days of that date. I should stress that there is no reason why sports governing bodies and others should not continue to run their recruitment processes from a central team. It follows that there is similarly no reason why these changes should require the local football coach or scout leader to become involved in individual recruitment decisions.

I also want to allay concerns that this change will put children at greater risk. That is absolutely not the case. Where a position falls within the scope of regulated activity the employer or voluntary organisation will be obliged, as now, to undertake a barring check before a person takes up that position. In any other case—that is, where the position does not fall within the regulated activity—it will be for the employer or voluntary organisation, again as now, to undertake a proper risk assessment and consider whether it is safe for a new employee or volunteer to be given supervised access to children before all the appropriate vetting processes have been completed.

Having spoken to the two government amendments, the first of which I will move formally in a moment, I will wait to hear what my noble friend Lord Addington and the noble Baroness, Lady Royall, or perhaps the noble Lord, Lord Rosser, have to say about their amendments before I respond to them. I beg to move.

[Lord Addington]

My Lords, the amendment tabled in my name and that of my noble friend Lady Heyhoe Flint addresses a concern that has been raised by the major sporting bodies. As the Minister said when speaking to his own amendment, there is a concern that the central recruitment process, which they are happy with and reasonably confident about, would in effect be reduced in power by the fact that there will now be an individual process.

By bringing forward Amendment 73, it is clear that the Government have been listening to an extent, but the major sporting bodies are still worried. They are concerned that the process being proposed by the Government, even with the tracking facility described by the noble Lord, will allow the way in for certain types of fraud and pose problems of individual disclosure that will affect the volunteering process. There is also a fear that the individual presentation of a certificate will get in the way of a centralised system that has become used to and confident about dealing with situations where, if there is a disclosure on a criminal record certificate that does not affect an individual’s ability to conduct a voluntary activity, it will actually not be disclosed. Such a disclosure might involve long expired convictions of a criminal nature that have no effect on the individual’s voluntary coaching activity. Offences such as those acquired after Saturday night boisterousness or other minor offences against property that go back a long way might become relevant. That is one of the problems the sporting bodies have with this. For instance, some 15 per cent of applicants into football have these types of convictions, or perhaps even more serious ones, but they are certainly not regarded as being that relevant to the safeguarding of individuals.

Also, although the Minister thinks that he has dealt with this, there are still concerns about there being a built-in process of delay—potential stalling. Stalling might come down to the volunteering. One example is the volunteer who has only just applied for this because they have increased their position in an organisation, they have been associated with the club for a long time, or they are an ex-player who has come back in a coaching role. That person makes a presentation to that club, goes to the central body and starts to stall. This is a person who is intent on doing something bad. How does one chase them up? When do you know that you should do something? When does a central authority know it should start chasing? We propose a maximum two-week delay between the application coming through and being informed that something has gone on.

That gives a timeframe, which addresses one of the major concerns about inaccuracy on those applications. It is said that only 0.06 per cent of all applications are wrong, so we have something here that involves a very small number. A two-week delay before having to make this announcement would give you a chance to look at this and say that there was a mistake. It would give you a finite period during which you can find out what is going on. It would remove from someone the responsibility to have to stall so that the person does not have access to the positions of authority that we discussed earlier. This is what the application process is for.

Sports governing bodies are very concerned to have a system that works and that they are confident about. That system is being undermined and interfered with, maybe not as much as the Government’s amendment initially proposed, but they are still concerned. I look forward to hearing what the Minister has to say.

[Baroness Heyhoe Flint]

My Lords, I will speak to the Government’s Amendment 73 and in support of what my noble friend Lord Addington has said.

I sincerely thank the Minister for meeting me and sports colleagues and Girlguiding UK and for such a constructive discussion. However, while I am sure that the new amended clause will produce a system that works quickly and efficiently for the vast majority of people—92 per cent was mentioned—there remains, particularly on the sporting side, a concern about governing bodies’ ability to deal effectively with the remaining 8 per cent.

Amendment 75, moved by my noble friend Lord Addington, recognises that organisations that take on the responsibility for providing safe environments for children need information about those individuals who may pose a risk. The amendment does not challenge the Government's very sensible aim, which I share, of allowing individuals to dispute inaccurate information. I believe that that period, whether it is 10 days or two weeks, might be appropriate.

There are two very sensible reasons to continue sending copies of disclosures to the registered body. The first is that organisations can handle individual cases more effectively if they know whom they are dealing with. The Government's amended system highlights content but does not reveal the details. At present the governing bodies of sport are able to take appropriate action based on an assessment of the individual's unique criminal record. Where the criminal record poses no threat to children, the individual will be approved. Where further information is required to make that judgment, the governing body can make discreet inquiries until it is able to make an assessment. Where information clearly gives cause for concern, measures will be put in place to remove that individual from the sport, but only once the information is confirmed as accurate.

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[Lord Rosser]

The Minister knows that I was not there with any sporting organisations, but I have an amendment down, which I take it that the Minister is not terribly enthusiastic about, which is very similar to the one tabled by the noble Lord, Lord Addington. The Minister has made it clear that he is prepared to discuss the amendment with the noble Lord, Lord Addington, so I am not quite sure why he originally intended to exclude ourselves.

[Lord Addington]

The noble Lord would of course add to any gathering that we had, and I hope that he comes at least as my guest to any meeting.

[Lord Henley]

I was not trying to exclude the noble Lord, Lord Rosser. I just thought that he was taking offence unnaturally, and in a manner that surprised me, because it was by a slip of the tongue that I referred to “my noble friends”. I could have included everyone; I included the sporting bodies. I look forward to seeing the noble Lord.

On the basis of what I said, I hope that as I move my amendments other noble Lords with amendments down will not want to press theirs.

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Moved by

[Lord Addington]

75: Clause 79, leave out Clause 79 and insert the following new Clause—
“Criminal conviction certificates
After subsection (2A) of section 112 of the Police Act 1997 (criminal conviction certificates) insert—“(2B) In carrying out the duty specified in subsection (2A), the Secretary of State must wait ten working days after sending a copy of the certificate to the applicant before sending a copy of that certificate to the registered person.””

[Lord Addington]

My Lords, I will make a speech consisting merely of two questions that I did not get a chance to ask. The grouping session occasionally catches us out, no matter how long we have been here.

Both my Amendment 75 and Amendment 75A, which were considered earlier, have limitations in them. Mine has 10 working days and the noble Lord’s amendment has two weeks. If that was made more flexible, would some of the objections to these amendments be removed? There might be something there, as 10 working days probably is more flexible, but does this slightly different definition of the time-lag make these more workable? It is workability that we are dealing with.

Also, can we have a little more consideration of the idea of the disclosure process? As proposed in the noble Lord’s amendment, if you have something which is irrelevant to the person, there may still be the concern of safety with your CRB check. Can the noble Lord give a bit more consideration about that process of disclosure? At the moment, one would be told that there was something on the check but not what it is. I wonder if the noble Lord could give a little consideration to that. I beg to move.

[Lord Henley]

My Lords, on the first point I would certainly be more than happy to consider a greater degree of flexibility. I am not sure whether I would accept that what my noble friend was offering—10 working days, rather than 10 days—actually adds much in the way of flexibility, but if he comes forward with some ideas, we would look at them. I can say no more than that, but it is flexibility we are looking at, rather than the precise duration.

On the second question, disclosure would be, again, a matter that we could discuss at the useful meeting I am hoping to have with my noble friend, at which we are very much looking forward to seeing the noble Lord, Lord Rosser, as well.

[Lord Addington]

I thank my noble friend for that response, and I beg leave to withdraw the amendment.

Amendment 75 withdrawn.