Protection of Freedoms Bill

Lord Rosser Excerpts

Tuesday 6th December 2011 Lords Chamber

Moved by

[Lord Rosser]

68: Clause 67, leave out Clause 67 and insert the following new Clause—
“Alteration of test for barring decisions
(1) In sub-paragraph (3) of paragraph 2 of Schedule 3 to the Safeguarding Vulnerable Groups Act (inclusion subject to consideration of representations), after paragraph (b) insert—
“(c) give the person the opportunity to present evidence and call witnesses at an oral hearing in front of a panel of at least two persons.”.(2) After sub-paragraph (2) of paragraph 3 of that Schedule (behaviour) insert—
“(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.”.(3) After sub-paragraph (2) of paragraph 5 of that Schedule (risk of harm) insert—
“(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.”.(4) After sub-paragraph (3) of paragraph 8 of that Schedule (inclusion subject to consideration of representations) after paragraph (b) insert—
“(c) give the person the opportunity to present evidence and call witnesses at an oral hearing in front of a panel of at least two persons.”.(5) After sub-paragraph (2) of paragraph 9 of that Schedule (behaviour) insert—
“(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.”.(6) After sub-paragraph (2) of paragraph 11 of that Schedule (risk of harm) insert—
“(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.””

[Lord Rosser]

I shall speak to the two amendments in this group. Amendment 68 would reverse provisions to restrict automatic inclusion on the barred list and introduce a right of appeal for the individual to be taken off the list. It seeks to take account of the recommendation of the Joint Committee on Human Rights that there should be a right of appeal against all barring decisions.

Under Amendment 69, an enhanced Criminal Records Bureau check would reveal whether an individual had been barred from working with vulnerable adults or children. After the lengthy debate that we have just had on the first group of amendments, there is inevitably some degree of repetition on this group but I will endeavour to be reasonably brief.

We have heard that, as a result of the proposed restrictions to the definition of regulated activity, individuals working under supervision with children or vulnerable adults will no longer require CRB checks or have their barred status revealed. Therefore even if the employer chooses to apply extra caution and request an enhanced CRB check on an individual, it will not state whether that individual has been barred by the Independent Safeguarding Authority as this information is only included for applicants in regulated activity. No doubt the Minister will say that an enhanced CRB check will give all but the barred status, meaning that prospective employers will have access to the police records which would have led to the barring decision. However, it seems somewhat illogical that an employer should have access to all but the one crucial piece of information, which is whether experts believe that there is something sufficient to justify preventing an individual from working with vulnerable groups.

First, however, barring decisions are not just based on police records. They take into account information from past employers and they analyse allegations that may not have been pursued with the police. That is especially important information when it comes to work with children and adults because of the well known problems with evidence and the particular vulnerabilities of witnesses and victims. An example of this is that the ISA may consider a situation where an allegation has been made by a dementia sufferer but was not reported to the police because of the perceived reliability of the evidence. An enhanced CRB check on a volunteer in a care home would not alert the employer to this. Secondly, in not granting all registered employers access to ISA decisions, the Government’s proposals could in fact lead to greater prejudicial and unfair rejection of candidates, as employers will be expected to use their own judgment to assess the relevance or seriousness of the information in front of them rather than utilising the expert opinion of the ISA.

So far as Amendment 69 is concerned, in addition to the restrictions on the scope of regulated activity under Clause 67, individuals who have committed a serious offence will no longer automatically be placed on the barred list. Instead, they will be barred only if they have worked or are deemed likely in the future to work in a regulated activity. An individual who has committed a serious barring offence will no longer be barred from gaining close contact with children and vulnerable adults as, for example, a football coach, provided that they are subject to some form of supervision. As has already been said, the crux of the problem is secondary access, and the upshot of Clause 67 is that individuals convicted of a barring offence will be able to gain access to and build up trust with children and their parents which could be exploited. If there are grounds to bar an individual from working with children or vulnerable adults unsupervised, that individual should not be undertaking work in regular close proximity with children and vulnerable adults regardless of whether it is supervised or unsupervised, paid or unpaid.

The NSPCC appears to take a similar view, because the Government’s own review on the vetting and barring scheme states that:

“The NSPCC’s view is that some offences against children should always be grounds for barring”.

Amendment 68 would erase the new distinction among convicted offenders for placing on the barred list. It would also introduce the right to a full merits appeal against barring decisions, with the right to present evidence and call witnesses at an oral hearing, thus reflecting the principle of the High Court decision on the Royal College of Nursing v the Secretary of State for the Home Department and the JCHR recommendations that individuals should have the right to a full merits hearing before an independent and impartial tribunal. The Government’s proposals as they stand fall short of providing a full merits appeal for individuals included on the barred list. We believe that providing this, alongside automatic barring, reflects the correct balance—we as well as the Government will use the word—between providing on the one hand adequate protection for vulnerable groups against interference with their right to life, their right not to be subjected to inhuman or degrading treatment, their right to physical integrity and their right to respect for their private life and dignity, and on the other hand the protection of individuals’ rights to privacy and a fair hearing.

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[Lord Henley]

I think that I can agree with the first point made by the noble Baroness entirely. As for the second point, that is what we have to get right, and that is why we are going to consult and produce the appropriate guidance. But that is not something that we can get down in the Bill.

[Lord Rosser]

My Lords, I noticed the response that the Minister gave to the right reverend Prelate, and I think that the short answer is that the concerns expressed by the right reverend Prelate would be largely addressed through the acceptance of the amendments that we have tabled and that the Minister has declined to accept.

The Minister raised the issue of the appeal. Clearly, the Government’s intentions about appeals do not appear to meet the recommendations of the JCHR. He raised the query that, under the Government’s proposal, people could appeal when informed of the ruling or the decision and before the implementation. I should just make clear our stance, which we have taken throughout—that we want people automatically barred if they commit a serious offence and then to appeal if they feel that the decision to bar them has precluded them from taking up a particular position. We come at it from a different angle from that of the Minister.

There is clearly a considerable difference between us, and it came out in the first group of amendments that we discussed and again in this group. We will need to reflect on the response that the Minister has given before deciding whether to pursue the specific issue again on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment 68 withdrawn.

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[The Lord Bishop of Newcastle]

My Lords, I, too, wish to register some anxieties about the proposals, and support some of the comments made by the noble Baroness, Lady Heyhoe Flint. As we know, under the Bill only one CRB certificate will be produced and provided to the individual concerned. That is a significant change to the current well established practice whereby a replica certificate is provided to the appointing body. The report that made the recommendation was based largely on the difficulties caused when inaccurate information has been disclosed. However, the Criminal Records Bureau, as the noble Lord, Lord Addington, said, reports that inaccurate information has been disclosed in just 0.07 per cent of cases. I do not believe that such a small number of admittedly distressing cases could justify such a significant change. The CRB also says that many more certificates are returned marked “undeliverable” when addressed to the applicant than when they are addressed to the registered body. If only one copy is to be sent to the applicant it risks, at the very least, further delay in any appointment process. Are we as registered bodies to be totally dependent on the individual—volunteer, in our case—concerned?

I am anxious that the Bill might miss the opportunity to set up a safe and workable system. I speak for safety in our churches, and my belief is that appointing authorities need to have access to enhanced CRB disclosures for all those who will have significant contact with children or vulnerable adults, not just those who are engaged in regulated activity as narrowly defined in the Bill. Repeated abuse tragedies highlight the importance of carefully scrutinising those who seek to work with children. We have a very particular responsibility in the church to ensure that robust and safe procedures are in place for recruitment and afterwards. Access to CRB disclosures is not the only element in the process, but it can be crucial in a small number of cases. I, too, hope that the Minister might think again about this particular part of the Bill.

[Lord Rosser]

My Lords, we also have an amendment in this group, Amendment 75A, the thrust of which is very much in line with the amendment in the names of the noble Lord, Lord Addington, and the noble Baroness, Lady Heyhoe Flint. The effect of our amendment, too, is to delete the Bill provisions to remove the requirement for the CRB and enhanced CRB certificates to be sent directly to the employer as well as the employee, and instead to provide for certificates to be sent to employers two weeks after being sent to the individual applicant, unless that applicant has lodged an appeal.

As has been said, currently organisations and companies providing work with children or vulnerable adults receive a copy of the regular or enhanced CRB check when it is sent to the individual applicant. The Government propose to scrap these existing provisions on the grounds that they do not leave individuals with a chance to appeal or query information on the record. Our view is that the Government’s proposed changes would place unnecessary burdens on organisations, would damage the voluntary sector—as has been said, by potentially deterring volunteers with irrelevant criminal convictions from applying—and would also put children and vulnerable adults at greater risk by creating loopholes in the system that would be open to exploitation, to which reference has already been made.

Currently of course, many larger organisations process their CRB checks centrally through qualified professionals. The CRB checks are sent directly to the central departments at the same time as being sent to the applicant, which enables swift processing of applications and minimises delays in employment. However, there are now concerns about the additional resources and time that will be spent chasing CRB checks with the individual under the provisions of this Bill. Perhaps more importantly, by requiring the individual applicant to submit their CRB certificate to the organisation, there is major concern within the voluntary sector that the Government’s proposed changes could deter volunteers with minor and irrelevant criminal records from coming forward.

The Minister has stated that the Government envisage that the applicant would simply be informed of the central address to which they should send their certificate and would pass it directly to them. However, that will not be the case in all organisations and will only add to the delay in processing applications. On top of that, it still does not address the point that, if the CRB check is revealed to the individual before being submitted to a central bureau in the organisation, it may prompt the individual—wrongly—not to proceed with the application on the basis of wrong assumptions about the relevance of the information on that record.

Finally, we believe that changes to the CRB disclosure process will create a system that is more open to exploitation from the small minority of individuals who should not be seeking access to children and vulnerable adults. Organisations such as Fair Play for Children and sports associations all point to examples of the extent to which predatory individuals will go to manipulate and exploit procedures in place. I will not repeat any of those, since the one I have is the same as the one referred to by the noble Baroness, Lady Heyhoe Flint.

The Government’s amendments today propose to address the problem by sending an electronic notification to the employer, once the certificate has been issued to the applicant, where the certificate is clear of any previous convictions or police information—as is the case, as has already been said, in 92 per cent of cases. However, we do not believe this goes far enough in addressing the problems that have been identified. Organisations will still have to chase certificates and delays will still occur in the 8 per cent of disclosures that are not clear. Applicants will still be required to submit certificates themselves, and therefore the potential to deter volunteers remains, for the reasons I have mentioned. In the minority of cases that are not clear of offences, the requirement for the individual to submit the check still leaves open the possibility of fraud and abuse by individuals.

Our proposed amendment would simplify the system while still allowing reasonable opportunity for the applicant to appeal any information. Our proposal is almost identical, as I understand it, to the one proposed by the noble Lord, Lord Addington, in that it would provide for a delay between the time that the certificate is sent to the applicant and the time it would be sent to the organisation and the employer. The only difference is that we have proposed a delay of two weeks, whereas the noble Lord, Lord Addington, has proposed a delay of, I think, 10 working days, so we are talking about the same period of time in reality. Our amendment also ensures that, should the applicant lodge an appeal within that period, the CRB would suspend disclosure to the organisation for the duration of that appeal.

The line of argument running through the Government’s changes to existing safeguarding arrangements in this Bill is one of what they describe as proportionality and common sense—or, to use the Minister’s favourite word, balance. However, the Government’s approach to CRB check disclosures is wildly disproportionate. According to the Criminal Records Bureau—and this point has already been made on more than one occasion—just 0.06 per cent of disclosures have inaccuracies in them and some of these are simply a case of a misspelled name rather than a serious matter for appeal. The reality is that the Government are proposing changes that will increase bureaucracy for organisations, deter volunteers and create a potential loophole to be exploited by highly manipulative individuals; all apparently for the sake of 0.06 per cent of CRB checks. Our amendment addresses these issues.

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I hope that I have indicated that we are sympathetic to concerns raised and keen to find a workable solution. We believe that what we have put forward in our Amendments 73 and 82 offers just such a solution, which flows with the grain of what we are trying to achieve with that clause. Having said that, I and my officials will continue to discuss these matters with my noble friends, the Sport and Recreation Alliance and others. We remain ready to explore how we can further improve the remodelled criminal records system as we move towards implementation. I also undertake to write to the noble Lord and set out in rather more detail how the new system will operate, which I hope will provide further clarity on how the new arrangements will improve the efficiency of the process, including for those registered bodies—sporting bodies in the main—while maintaining and indeed strengthening the safeguarding of children and vulnerable adults.

[Lord Rosser]

I notice that the Minister said that he would continue discussions with his noble friend and sporting organisations. Does that mean that he does not intend to discuss it with ourselves on this side, even though we have tabled a very similar amendment?

[Lord Henley]

The noble Lord has taken offence because I accidently used the words “noble friends” and did not include the entire House. I said that I would write to everyone—I will certainly include the noble Lord in these discussions if he feels he is being left out. I made the point purely because it was my noble friend who brought the sporting organisations to see me, having made a request. I am not aware that the noble Lord came along with any sporting organisations—or, if he did, I did not notice them. But anyway, I will include him in this offer. I would be more than happy to see him.

[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.