Protection of Freedoms Bill

Lord Henley Excerpts

Wednesday 15th February 2012 Lords Chamber

Moved by

[Lord Henley]

50A: Clause 64, page 51, line 24, at end insert—
“(2C) The reference in subsection (2B)(b) to day to day supervision is a reference to such day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned.”

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

My Lords, I shall speak also to government Amendments 54A, 54M and 54N; Amendment 50B, in the names of my noble friend Lady Hamwee and the noble and learned Baroness, Lady Butler-Sloss; Amendment 51, in the name of my noble friend Lord Addington; and Amendment 52, in the names of my noble friends Lady Walmsley and Lady Randerson.

Without wishing to reopen the debate that we had last week, I reiterate that we remain of the position that, where individuals can be properly supervised, they should in certain circumstances fall outside the regulated activity and the necessity for barred list checks. We believe that proper supervision should help to reduce both the risk of improper conduct and of inappropriate relationships developing.

As we have previously debated, the Government have said that enhanced criminal record certificates will continue to be available for activities that will be removed from regulated activity and which involve close contact with children when the scope of regulated activity is scaled back by Clause 64. In a school, that will include, for example, supervised volunteers who instruct children. Enhanced criminal record certificates include information on previous criminal convictions and cautions, both spent and unspent, and any relevant police information held locally. Therefore, organisations can, if they judge it necessary, see the information about behaviour that they need to see in order to reach a judgment on whether to use the person in a particular activity.

Even under the original barring scheme, the law did not require checks for various categories of people who were in contact with children. Organisations and communities must share responsibility for keeping children safe. The scheme was never intended to regulate contact with children outside a specified place, such as contact in a faith or leisure setting. Our intention is to provide additional flexibility for employing organisations and to help ensure that individuals are not dissuaded from volunteering. Such organisations as the Scouts and Girl Guiding UK have made the point that they prefer to supervise individuals when they first join, before barred list checks become necessary. However, as I said, there is no compulsion in the Bill for an organisation to provide supervision. Where it is unable to do so, activities will remain regulated and barred list checks must be made.

In Committee, a number of noble Lords expressed unease that the term “day to day supervision” lacked clarity and that, as a result, employers and voluntary organisations would have difficulty in deciding whether an employee or volunteer fell within the scope of regulated activity. We listened very carefully to these arguments and now aim, through the government amendments, to provide greater clarity on the level of supervision required for someone to fall outside the scope of regulated activity. Under the amendments, the level of day-to-day supervision must be such as to be,

“reasonable in all the circumstances for the purpose of protecting any children concerned”.

By adding this qualitative description of the level of supervision required, the amendments, coupled with the statutory guidance we are already committed to providing, address the points raised in Committee.

At that stage, and again today, we heard about the particular circumstances of various types of sport, where adults often coach children in extensive playing fields or other wide-open spaces. The requirement that supervision must be,

“reasonable in all the circumstances”,

will give sports organisations precisely the discretion they need in order to decide whether, in the circumstances of their sport, a volunteer—or indeed paid—coach or other helper should be supervised. If organisations want to encourage volunteers without requiring them to undergo a barred list check, they may do so, as long as they work out what would be a reasonable level of supervision in their case, and provide supervision accordingly. If on the other hand the organisation decides that the oversight it provides does not amount to supervision that is reasonable for child protection, it may conclude that the coach is not supervised and so is in regulated activity.

I have already mentioned that we will supplement the provisions of the Bill with statutory guidance, which will further contextualise what we mean by day-to-day supervision. Clause 77 already places a duty on the Secretary of State to provide such guidance, and we are committed to consulting on the form of the guidance. I had hoped to circulate a first draft of the guidance before today, but alas that proved impossible. I hope that the House will understand that it is important to get the guidance right rather than to rush it. We will certainly seek to get a draft out for consultation as quickly as possible.

The Criminal Records Bureau is also committed to producing clear and specific guidance on the new updating service for registered bodies, employers and applicants. While I cannot specify the precise timescale, we have started engaging with stakeholders to understand their requirements, and will continue to work with them to ensure that the guidance produced meets their needs and is communicated effectively. This will be complemented by guidance being developed by the Criminal Records Bureau, which will include advice on just how the current service may be used and an online tool which will enable employers and applicants to understand when a criminal records check is appropriate. In addition, the Government will also be issuing guidance on the broader safeguarding issues.

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[Baroness Royall of Blaisdon]

My Lords, I am grateful to the Minister for his amendments. The Government have taken some steps towards what is needed, but as has been clear from the well informed discussion that we have had this afternoon we are, as the noble Lord, Lord Bichard, said, not there yet. All the arguments have been made powerfully. The own experience of the noble Baroness, Lady Randerson, is invaluable and I was going to say that I very much supported Amendment 52 but, as she herself said, it would need to include vulnerable adults and not just children. I would simply ask the Minister two things. First, in relation to his own amendments, the Minister mentioned guidance. I realise that the guidance is not ready yet, but when it is forthcoming it will be extremely important for the safety of our young people and children. How will this House be consulted, and will we have an opportunity to debate and discuss that guidance?

More importantly, I was very taken by the suggestion of the noble Lord, Lord Bichard, with its very simple solution to a complex problem. Will the Minister consider that proposal? Will he also confirm that he will have further discussions with the noble Lord, the noble Baroness, Lady Randerson, and others and that he will come back to this House at Third Reading with what I hope will be a solution to a problem that should not be intractable but which, as the noble Lord himself said, has to balance bureaucratic impediments and risks to the safety of children? Where the safety of children and vulnerable adults is concerned I urge him always to err on the side of safety and caution, rather than on diminishing bureaucracy. I realise that bureaucracy can be and is a problem. However, where the safety of children and vulnerable adults is concerned we have a duty to err on the side of caution.

[Lord Henley]

My Lords, I thank the noble Baroness the Leader of the Opposition for her remarks, particularly for her endorsement of our search to strike a balance. We are trying to do that. I echo her comment that we are not there yet and I would endorse that. We had quite an extensive debate on this late on 6th February, and no doubt we will have further discussions on this matter at Third Reading. I want to make it clear that I look forward to those discussions. Also, in response to the remarks from the noble Lord, Lord Bichard, I would certainly welcome further discussions with him and others between now and then. It is important that we get these things right in due course and make sure that the right Bill becomes an Act on the statute book, and that we get the right guidance. I give an assurance that there will be further discussions and that my door, as Ministers always say, will be open as much as possible.

I also agree with the noble Baroness, Lady Royall, that it is very important that we get the guidance right. However, I cannot give any assurance as to when we will get it, and I am not sure whether I will be able to get it before Third Reading. As for how this House will be able to debate that, I imagine that the noble Baroness and the usual channels will find a means of ensuring that it is debated in the appropriate manner in due course.

I shall deal with some of the points relating to the three amendments, having given those introductory remarks following my moving of my own amendments. First, Amendment 50B was moved by two lawyers, my noble friend Lady Hamwee and the noble and learned Baroness, Lady Butler-Sloss, who questioned the use of “in all the circumstances”. Getting such eminent legal advice thrown back at me causes me some alarm. I am asked just what the phrase means. I think back to the days when I did my Bar exams—the stuff about “reasonable”, “the man on the Clapham omnibus” and all that. It seems quite obvious that “in all the circumstances” qualifies “reasonable” in a manner that should be suitable for the people who have to operate this Act, as it will become.

If I may put this in a sporting context, to make it easier for my noble friend Lord Addington, obviously the circumstances will vary whether you are supervising rugby training over a whole area of different rugby pitches according to the different forms of training that are necessary or whether it is boxing. The circumstances will change according to what is being supervised.

[The Lord Bishop of Chichester]

My Lords, the problem with the phrase is entirely in the word “all”. The Minister mentioned the man on the Clapham omnibus. “In all the circumstances” sounds very different from “in the particular circumstances”. We are striving to tailor the application of the principles to particular cases. “In all the circumstances” sounds as if it weakens the case.

[Lord Henley]

My Lords, with all due respect, as one always says to right reverend Prelates, I think that “in all the circumstances” sounds better than “in the particular circumstances”. However, I am prepared to take advice from parliamentary draftsmen and other lawyers on whether they think the two expressions have a different meaning or whether “reasonable” on its own would be different. I have a sneaking feeling that we have set a fox running here that we are getting overly worked up about. I see the noble and learned Baroness, Lady Butler-Sloss, laughing at this; if she were interpreting this in a court of law, she would find that “in all the circumstances” was relatively easy to understand and was quite a good qualifier of “reasonable”. I certainly do not think that it detracts from the word “reasonable”. I hope that the House will accept the amendment, but if others want to come back to it at Third Reading, I am more than happy to continue that debate. I hope that that deals with the probing amendment, as I understand it was, from my noble friend Lady Hamwee.

I turn to the amendment from my noble friend Lord Addington. Again, I was grateful that he welcomed what we were doing. I think that he wanted some assurance that the guidance will be kept updated in due course. I can give that assurance; there is no point in having guidance that stays cast in stone for many years, like the 10 commandments—although actually, they serve us quite well. Colleagues in the Department for Education and other departments will want to ensure that it is kept updated in the appropriate manner at the appropriate time.

I turn to the amendments in the name of my noble friend Lady Walmsley, to which my noble friend Lady Sharp spoke, relating to FE colleges and the question of why they could not be treated the same as schools. I do not want to repeat everything I said in my opening remarks, but I can give some sort of assurance that we will look again—this is important in terms of further discussions—at the idea of enabling FE colleges to obtain an enhanced CRB certificate. We would not necessarily put everyone who works in an FE college into regulated activity, which we consider disproportionate, but we could consider giving them the power to look at where it might be possible to do that. Again, that could be part of the discussions that I hope to have over the coming weeks. I think it is still a matter of weeks before we get to the Third Reading of the Bill.

With the assurance that discussions will continue and we want to get this right, I hope the House will be prepared to accept the amendments that I have tabled here. I hope that we can have further and profitable discussions. I beg to move.

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Moved by

[Lord Henley]

54A: Clause 64, page 52, line 39, at end insert—
“(3BA) The references in subsections (3A) and (3B)(b) to day to day supervision are references to such day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned.”

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Moved by

[Lord Henley]

54C: Clause 67, page 55, line 38, leave out from “person,” to end of line 41

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Moved by

[Lord Henley]

54F: Clause 77, page 70, line 3, after “it” insert “a barred list or”

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Moved by

[Lord Henley]

54M: Schedule 7, page 148, line 10, at end insert—
“(2C) The reference in sub-paragraph (2B)(b) to day to day supervision is a reference to such day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned.”

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[Baroness Royall of Blaisdon]

My Lords, I support Amendments 55A and 56. I do not believe that this is about restricting the scope of the Freedom of Information Act; it is about fixing the Act to fit the purpose. We have heard compelling arguments about disincentives to young researchers and to collaboration and about the potential competitive disadvantage that our universities could suffer. Our universities are one of the most important drivers of jobs and growth in this country. They enrich the cultural fabric of our society. If universities in England, Wales and Northern Ireland believe that they are at a competitive disadvantage compared with those in Scotland, the US and Ireland, among others, I believe that we need to have a safeguard in place. We should heed their concerns and seek to revise our legislation as soon as possible. I support both amendments.

[Lord Henley]

My Lords, some time ago my noble friend Lord Phillips of Sudbury said that he was looking forward to me summarising the gist of this debate. I have to say to him that I do not think I am capable of doing that and I am not going to attempt it. However, I was grateful for one or two comments from just one or two out of a large number of speakers. I single out the noble Lord, Lord Judd—perhaps I may refer to him as my noble friend, as he comes from the same county as I do. He referred to the importance of the principles behind the Freedom of Information Act. I think that it would have been slightly more helpful if we had heard a bit more in support of the principles behind that Act and what it set out to do. It was an Act passed by the previous Government and one that we, under no circumstances, want to roll back at all. We understand the concerns put by the higher education sector.

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I am not suggesting that this will have no cost implications, but they will be limited compared with an alternative that is funded completely from the public purse. Furthermore, when one has regard to the cost to the state resulting from children going missing and the potential for ensuring that a child has good support through any criminal cases brought against traffickers, one can see that it constitutes an extremely good investment and excellent value for money. Amendment 57A presents a win-win opportunity. I beg to move.

[Lord Henley]

My Lords, perhaps it may be convenient if I briefly intervene at this stage. It might save some time later. It is certainly within the scope of the guidance in the Companion to Standing Orders if I speak now, but I assure my noble friends that obviously I will respond as Minister at the end of the debate.

I want to make one brief point to my noble friend. We have all listened carefully to his words and they have made a deep impact on us. Although these matters fall slightly outside my immediate area of responsibility within the Home Office, I am certainly content to ask colleagues in the Department for Education to invite the Children’s Commissioner for England to review the current practical arrangements for rescued child victims of trafficking and to provide advice both to my right honourable friend in that department and to us in the Home Office. We will then be in a position to come back to these matters at a later stage.

I hope, with that assurance—I repeat that I am prepared to respond at the end of this debate—that my words might at least reduce the amount of time that we need to devote to this debate when there is a lot of other business to be taken this evening.

[Baroness Royall of Blaisdon]

My Lords, I thank the Minister for that short and welcome intervention, but my real tribute must go to the noble Lord, Lord McColl, for his tireless efforts on this issue and his splendid introduction to the amendment. It is said that a society should be judged on how it treats its most vulnerable members, and the children who have entered our shores to work in modern-day slavery are truly some of the most vulnerable in our society. The noble Lord, Lord McColl, has been an extraordinary advocate for all those who have been trafficked, but especially children. We all must have found the ages of the children mentioned this evening deeply shocking.

As the noble Lord said in the debate held earlier this month, the UK should be striving to be a beacon of good practice in this area, not simply doing the minimum to toe the line. When children are trafficked into this country, they often arrive alone and without any trace of where they have come from, with no way to communicate and without anyone who cares for their best interest. The lucky children will be picked up at the border, but others become known to the authorities only many months and sometimes years after entering the country, having been forced into prostitution or slave labour by their traffickers. Those children who are identified will come into contact with scores of extremely dedicated professionals—border agency staff, the police, social services, foster carers and lawyers—all of whom will have partial responsibility for their care, yet no single adult will have responsibility for providing advocacy for a child in all those situations.

The purpose of a guardian or a legal advocate is, as termed in this amendment, to mediate between all the different agencies on behalf of the child and to provide the continuous oversight and physical presence that they need while navigating the process. As the noble Lord said, between 2005 and 2009 32 per cent of child trafficking victims went missing from care. As a citizen, I am ashamed of that. Child victims of human trafficking need highly specialised protection because of the nature of the criminal world that we are dealing with. Human trafficking has a net value of $36 billion a year, with human lives as its commodity, and organised criminal groups will go to terrible lengths to abduct a child from care. Articles 14 and 16 of the EU directive require member states to implement measures that are tailored to the specific vulnerabilities of these children. The appointment of a guardian or legal advocate as described in the amendment would ensure that the UK was fully compliant with both the letter and the spirit of the directive in providing the child with a legal advocate who will provide advocacy for that child from the moment they are identified both in dealings with authorities and in court.

I hear what the Minister says and I am glad that the Government are now going to pursue these issues further with the Children’s Commissioner, because I can think of no better person who can really push these issues forward. I hope that the Minister will be able to keep us informed of progress as the discussions take place, and of course I trust him to do that. However, I have to say that I am absolutely certain that the noble Lord, Lord McColl, will pursue these issues doggedly until he is satisfied that every child who is trafficked into this country has a legal advocate. I am confident that the issue will be pursued to its successful conclusion.

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[Lord Puttnam]

My Lords, I will not delay the House for more than a moment. This is the first opportunity that I have had to speak during the passage of the Bill, and I want to add a factual point that may be of use in supporting the amendment of the noble Lord, Lord McColl.

I had the honour of succeeding the noble Baroness, Lady Howe, as president of UNICEF. In that capacity I spent seven years travelling to all parts of the world, looking at the issue of child trafficking, and was forced to witness things that would have beggared the imagination of Charles Dickens. One important point kept coming back: when I was moved at times to begin to lecture areas of the world where the situation was particularly bad, they always responded, quite correctly, by saying, “Look at your own situation”. The situation in the UK is actually very poor, and it ill behoves us to tell the rest of the world what it should be doing about child trafficking until we can be sure that our own record is as close to immaculate as legislation can make it. I was frequently extremely embarrassed by being lectured back about the UK’s record on child trafficking in places where I had thought that we had the moral high ground. We lost the moral high ground a number of years ago.

I harangued my own Government any number of times on this issue and eventually we got a signature to the UN convention, but the situation needs improvement, and quickly. We have very little to be proud of, and I was hoping that the amendment of the noble Lord, Lord McColl, would go a long way towards allowing us to begin to tell the rest of the world how to put their house in order.

[Lord Henley]

My Lords, I hope that the House will now allow me to respond to the long debate that we have had on this subject. There are a few points that I want to make.

The noble Baroness, Lady Massey, was rather suspicious that I might be trying to kick this into the long grass—she put that suggestion forward. I assure her that I have some experience of kicking things into the long grass, but that works only when all parties agree that something should go into the long grass and stay there. If I may continue with the analogy, it was her noble friend Lady Royall who asked that I keep her informed of progress while giving me the assurance that my noble friend Lord McColl would be dogged in his pursuit of me to ensure that things progressed. When someone like my noble friend is dogged in his pursuit, there is no grass long enough for these matters. This issue will not go into the long grass, as I said; I want this to go to the Children’s Commissioner for her to give her views and come forward with practical ideas.

On that point, I would like to come back to my noble friend Lady Hamwee, who herself was rather suspicious when I used the expression “practical arrangements”. I have no shame whatever in using those words because they are exactly what we want. We want to ensure that we are making progress in this area, rather than merely passing amendments so that we feel good about passing amendments.

I do not want to go into the amendment of my noble friend Lord McColl at this stage because I do not think it quite achieves what it sets out to do and there might be better ways of doing it. I repeat what I said to him earlier today in a private conversation: we have made some progress in this area. Noble Lords have been quoting the figure of some 32 per cent of children still being lost, but we have had considerable progress over the past few years. The 32 per cent figure was an average over the past four or five years, but actually it has dropped from a quite horrifying 55 per cent to 18 per cent, which is an equally horrifying figure but that at least is progress in the right direction. I pay tribute to some local authorities, and there are not many good ones, that have been performing their duties very well. I also pay tribute, as did my noble friend Lord Attlee in the recent debate moved by the noble and right reverend Lord, Lord Eames, to the work of the Child Exploitation and Online Protection Centre, which I visited recently. Progress is being made in this area and we should not think that primary legislation or whatever—there will be opportunities for both primary and secondary legislation—is necessarily the only solution.

At this stage I would like to say that we have made progress, I have listened to everything that has been said and the Children’s Commissioner will take note of all that has been said in this debate. I look forward to progress and to keeping the noble Baroness, Lady Royall, informed about it. I will also look over my shoulder for the dogged pursuit of my noble friend Lord McColl, who will see to it that I do my utmost to ensure that progress is made in this respect. I hope that with those assurances my noble friend will feel able to withdraw his amendment.

[Lord McColl of Dulwich]

My Lords, I thank all noble Lords who have taken part in this debate. I am particularly grateful to my co-signatories, the noble Baroness, Lady Royall, the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord Carlile. I am also grateful to the Minister for the assurances and the concession that he has given, and I beg leave to withdraw the amendment.

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Moved by

[Lord Henley]

58: Schedule 9, page 179, line 37, at end insert—
“In section 113A (criminal record certificates) omit subsection (10).
In section 113B (enhanced criminal record certificates) omit subsection (13).”

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Moved by

[Lord Henley]

68: Schedule 10, page 196, line 36, column 2, at beginning insert—

	“Section 113A(10).
	Section 113B(13).”