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These notes refer to the Safeguarding Vulnerable Groups Bill [HL] as brought from the House of Lords on 8 June 2006 [Bill 194]
SAFEGUARDING VULNERABLE GROUPS BILL [HL]
EXPLANATORY NOTES
INTRODUCTION
1. These explanatory notes relate to the Safeguarding Vulnerable Groups Bill [HL] as brought from the House of Lords on 8 June 2006. They have been prepared by the Department for Education and Skills in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. Where a clause or part of a clause does not seem to require any explanation or comment, none is given.
SUMMARY AND BACKGROUND
3. The current system for vetting people who wish to work with children or vulnerable adults operates through employers obtaining a CRB disclosure for new job applicants. CRB disclosures give employers information about an individual's criminal records history, which informs their assessments about the individual's suitability to work with children or vulnerable adults.
4. There are also three separate lists of persons who are barred from working with children or, as the case may be, vulnerable adults. These lists operate under different legislation and with different criteria and procedures: List 99 (maintained under section 142 of the Education Act 2002), the Protection of Children Act (POCA) List (maintained under the Protection of Children Act 1999) and the Protection of Vulnerable Adults (POVA) List (maintained under Part 7 of the Care Standards Act 2000).
5. The Bichard Inquiry Report (June 2004), available from http://www.bichardinquiry.org.uk/, identified systemic failures in current vetting and barring systems. These included the following factors:
[Bill 194-EN] 54/1
- inconsistent decisions were being made by employers on the basis of CRB disclosure information
- CRB disclosure information is only valid on the day of issue
- there are inconsistencies between List 99, the POCA list and POVA list
- the current barring system is reactive to harmful behaviour rather than preventative
- there are inconsistencies in police disclosure of information between police authorities
6. This Bill provides the legislative framework for a new vetting and barring scheme for people who work with children and vulnerable adults. A public consultation for the new scheme, Making Safeguarding Everybody's Business: A Post-Bichard Vetting Scheme (Ref: 1485-2005DOC-EN), ran from 5 April - 5 July 2005. This consultation paper and a summary of the responses to it can be found at www.dfes.gov.uk/consultations.
7. The purpose of the new scheme is to minimise the risk of children and vulnerable adults suffering harm at the hands of those employed to work with them. It seeks to do this by:
- ensuring that where evidence suggests an individual presents a risk of harm, he/she is barred as soon as possible from working with children and/or vulnerable adults by a centralised vetting process; and
- ensuring that where an individual will be working closely with children and/or vulnerable adults, the employer is required to use only an individual who has been through this centralised vetting process.
8. The Bill provides that -
- There will be two aligned barred lists - one for those who are barred from working with children (the "children's barred list"), and one for those who are barred from working with vulnerable adults (the "adults' barred list").
- There will be an Independent Barring Board ("IBB"). The IBB will maintain the children's barred list and adults' barred list and will make decisions about whether an individual should be included in a barred list.
- A person will be able to apply to become subject to monitoring by the Secretary of State in respect of regulated activity relating to children or vulnerable adults or both. Where a person is subject to monitoring the Secretary of State obtains details of that person's convictions and cautions and relevant information from police forces and must pass such relevant information to the Independent Barring Board for its purposes.
- There will be a right of appeal against inclusion in a barred list, with permission, on a point of law or on a finding of fact made by the IBB, to the Care Standards Tribunal.
- There will be four routes to inclusion on one or both of the barred lists:
- Criteria specified in regulations that will lead to automatic inclusion on one or both of the barred lists
- Criteria specified in regulations that will lead to inclusion on one or both of the barred lists subject to consideration of representations
- Specified behaviour that leads to consideration for inclusion on one or both of the barred lists
- Risk of harm: where evidence suggests that an individual may present a risk of harm to children or vulnerable adults, this evidence leads to consideration for inclusion on one or both of the barred lists
- An individual who is included in the children's barred list must not engage in regulated activity in relation to children. An individual who is included in the adults' barred list must not engage in regulated activity in relation to vulnerable adults.
- Broadly, regulated activity will cover close contact work with children, work in key settings such as schools and care homes and key positions of responsibility such as the children's commissioner and the director of adult social services.
- A barred individual may engage in a controlled activity but the employer or other person with responsibility for managing the controlled activity must have regard to statutory guidance issued by the Secretary of State or the National Assembly for Wales in relation to the steps to be taken by that person before permitting a person to engage in a controlled activity.
- Broadly, controlled activity will cover ancillary work in health settings such as cleaning, catering and administration and (in relation to regulated activity relating to children) the teaching of adults and ancillary work in further education settings.
- There will be a series of criminal offences to:
a) prevent barred individuals from engaging in regulated activity with children or vulnerable adults
b) ensure that people permitted to engage in regulated activity with children or vulnerable adults are subject to monitoring
c) ensure that relevant employers check whether an individual is barred or is subject to monitoring before engaging an individual in a regulated activity with children or vulnerable adults
- There will be monitoring of all those who have applied to become subject to it so that new information can be considered by the IBB.
- Information will be referred to the Secretary of State. The police will be under a duty to provide relevant information for monitoring purposes.
- Information will also be referred to the IBB from employers, professional and regulatory bodies, local authorities and others.
TERRITORIAL COVERAGE
9. The Bill extends to England and Wales. This reflects the current position in relation to POCA and POVA and for List 99.
10. Northern Ireland: the following provisions in the Bill extend directly to Northern Ireland: the establishment of the Independent Barring Board; provisions relating to the information monitor for the purposes of the Police Act 1997; amendments to the Police Act 1997; and the provision of information to professional regulatory bodies that are not devolved. The intention is that the remainder of the provisions in the Bill will be applied to Northern Ireland through an Order in Council. This will enable provisions specific to Northern Ireland to be made.
11. Scotland: the Bill does not extend to Scotland save in so far as it includes provisions for the supply of information from the Independent Barring Board and the Secretary of State to professional bodies. But that does not have effect in relation to a profession in so far as provision may be made for the regulation of that profession by an Act of the Scottish Parliament.
12. Crown Dependencies: The Insular Authorities have agreed that the Bill should include a permissive extent clause. This allows for any part of the Bill to extend through an Order in Council to the Isle of Man, Jersey or Guernsey in due course, subject to necessary developments in their systems and legislation.
COMMENTARY ON CLAUSES AND SCHEDULES
BARRING
Clause 1: Independent Barring Board
13. Clause 1 establishes a new statutory body to be known as the Independent Barring Board (the IBB).
Schedule 1: Independent Barring Board
14. This Schedule makes provision regarding the IBB, including its membership and staffing arrangements. It states that the IBB must report to Parliament annually and that the Secretary of State can direct the IBB to submit a report on any of its functions.
15. It states that the IBB has core functions of determining whether to include an individual on a barred list, determining whether to remove an individual from a barred list and considering representations made under Schedule 2. These functions cannot be delegated outside the IBB, but can be delegated internally to allow the IBB's workload to be managed effectively. The IBB can also delegate its non-core functions, such as administrative functions, to persons outside the IBB, for example to the Criminal Records Bureau.
Clause 2: Barred lists
16. This clause provides that the IBB must establish and maintain two new barred lists - a children's barred list and an adults' barred list. Schedule 2 makes provision regarding inclusion on the barred lists.
Schedule 2: Barred Lists
17. Part 1 sets out how someone may be included in the children's barred list. Part 2 covers the equivalent rules in relation to the vulnerable adults' barred list. In relation to both lists there will be four types of cases:
a) Paragraphs 1 and 6 make provision for automatic inclusion. Individuals who satisfy any of the criteria which are prescribed in regulations will be automatically included on the barred list. There will be no right to make representations. The criteria which may be prescribed for the purpose of these paragraphs and for the purpose of paragraphs 2 and 7 are set out in paragraph 20.
b) Paragraphs 2 and 7 make provision for inclusion subject to consideration of representations. Individuals who satisfy any of the criteria prescribed in regulations will be automatically included on the barred list but given the right to make representations to IBB as to why they should be removed from the list.
c) Paragraphs 3 and 8 are concerned with behaviour: Where individuals have engaged in certain behaviour, as specified in the Bill, IBB will allow the individual to make representations on the circumstances of their case, consider these representations and then decide whether it would be appropriate to include the individual in the list.
d) Paragraphs 5 and 10 are concerned with risk of harm. Where there is evidence that an individual may present a risk of harm (even if he has not engaged in any particular behaviour), IBB will allow the individual to make representations on his case, consider these representations and then decide whether it would be appropriate to include the individual in the list.
18. Paragraph 16 makes provision for individuals to be able to apply to the IBB to have their case reviewed after the minimum prescribed period has elapsed. The IBB must give permission for a review to happen and this will require the IBB to be satisfied that the individual's circumstances have changed since he was included in the list. It also sets out the possible criteria for establishing the minimum period of time that must elapse before the review can take place.
19. Paragraph 17 gives IBB the power to obtain relevant police information in relation to individuals whose case it is considering and to pay the police a fee determined by the Secretary of State for providing this information.
20. Paragraph 18 & Paragraph 19 provide for information to flow from the Secretary of State to the IBB and from the IBB to the Secretary of State.
Clause 4: Appeals
21. This clause provides for an appeal to the Care Standards Tribunal on a point of law or on a finding of fact made by the IBB against a decision of the IBB to include or keep someone on the children's or vulnerable adults' list. It gives the Secretary of State the power to make regulations specifying Tribunal procedure. The Court of Appeal will hear appeals on a point of law against a Tribunal decision.
REGULATED ACTIVITY
Clause 5: Regulated activity
22. Clause 5 provides that regulated activity relating to children and vulnerable adults is as set out in Schedule 3 of the Bill. Regulated activity broadly speaking includes work which involves close contact with children or vulnerable adults.
23. The clause allows the Secretary of State to amend the definition of regulated activity by order via the affirmative resolution procedure.
Schedule 3- Regulated activity
24. Paragraphs 1 to 4 (Regulated activity relating to children) - These paragraphs cover activity that individuals on the children's barred list will not be able to undertake:
a) Certain types of close contact activity (specified in paragraph 2(1)) either:
- carried out frequently (e.g. teaching, caring for children)
- or carried out in an establishment specified in paragraph 3(1), such as school or a children's home, whether carried out frequently or infrequently.
b) Any activity carried out frequently in a specified establishment which gives a person the opportunity to have contact with children in pursuance of his duties there (such as a school secretary)
c) The provision of childminding where there is a requirement to be registered under the provisions of the Childcare Bill or there would be a requirement to be registered but for the fact that the individual does not provide childcare for a child below the age of eight (paragraph 1 (4)).
d) The inspection of specified establishments on behalf of the organisations specified in paragraph 1(7) and the inspection of generalist health establishments specified in sub-paragraphs (9) and (10) on behalf of the organisations specified in sub-paragraph (8).
e) The day-to-day management or supervision on a regular basis of any person carrying out the above (other than the provision of childminding).
f) The exercise of a function of the positions specified in paragraph 4(1) (e.g. school governor, children's commissioner, trustee of children's charity)
25. Paragraph 5 (Regulated activity relating to vulnerable adults) - this paragraph covers activity that individuals on the adults barred list will not be able to undertake:
a) Certain types of activity (specified in paragraph 5(1)) carried out frequently (e.g. teaching, caring for etc.), or carried out other than frequently in an establishment specified in paragraph 5(1), where that activity relates to vulnerable adults.
b) Any activity carried out frequently in connection with the purposes of a care home which gives a person the opportunity to have contact with vulnerable adults as a result of his duties or anything he is allowed to do there.
c) The day-to-day management or supervision or a regular basis of any person carrying out the above activities
d) The inspection of specified establishments on behalf of the organisations specified in paragraph 5(6)
e) The exercise of the functions of the position of a director of social services.
26. It is important to note that Clause 43 of the Bill prevents any activity within the context of a familial relationship and certain types of activity within the context of a friendship from being a regulated activity relating to children or vulnerable adults for the purpose of the Bill
Clause 6: Regulated activity providers
27. This clause defines a "regulated activity provider" for the purpose of the Bill, on whom a number of obligations are imposed by its other provisions. A regulated activity provider is an individual or organisation responsible for the management or control of regulated activity, who makes arrangements for a person to engage in that activity. Those who employ others to engage in a regulated activity will be caught within the definition. There is no requirement that there should be a contract, and nothing within the clause restricts the meaning of 'regulated activity provider' to an employer who is paying an employee to engage in regulated activity so the clause covers those who use volunteers. A person who simply uses services provided by another (for example, a nanny who places a child in the care of a supermarket crSche) will not be a regulated activity provider because he will have no responsibility for the management or control of the regulated activity. But the supermarket in this case will be a regulated activity provider.
28. Subsection (5) provides that a person who makes arrangements for another to engage in regulated activity for his own benefit or for a child or vulnerable adult who is a member of his family or is a friend of his (construed in accordance with Clause 43) does not fall within the definition of "regulated activity provider". So, for example, a parent who employs a nanny will not be a regulated activity provider for the purposes of the Bill.
29. Subsection (6) provides that a person who appoints, or participates in the appointment of, a person to a position referred to in that subsection is not a regulated activity provider. So, for example, those who elect the trustees of a children's charity will not be regulated activity providers for the purpose of the Bill or subject to the obligations imposed on regulated activity providers.
30. Subsection (7) provides that if a regulated activity provider is an unincorporated association any requirement or liability under the Bill will be the liability of the person responsible for the management and control of the association or if there is more than one such person, all of them jointly and severally will be liable.
RESTRICTIONS ON PARTICIPATING IN REGULATED ACTIVITY
Clause 7: Barred person not to engage in regulated activity
31. This clause makes it an offence for a barred person to seek to, offer to or engage in an activity from which he is barred. Subsection (3) provides a defence if the person can prove that he did not know, and could not reasonably be expected to know, that he was barred. A person who, for example, could not be contacted by IBB either when it was considering whether to include him in the list (so as to give him an opportunity to make representations) or when it made known its barring decision would benefit from this defence.
Clause 8: Person not to engage in regulated activity unless subject to monitoring
32. Subsection (1) makes it an offence for a person to engage in regulated activity with the permission of a regulated activity provider unless he is subject to monitoring. (A person may apply to become subject to monitoring under clause 21.)
33. Subsection (2) makes it an offence for a person to engage in regulated activity mentioned in paragraph 1(4) of Schedule 3 unless he is subject to monitoring. This will ensure that childminders who are required to be registered under the provisions of the Childcare Bill or who would be required to be registered but for the fact that they do not provide childcare for a child below the age of eight will be required to be subject to monitoring. This applies even where the childminder is engaged in providing services to a person who is not a regulated activity provider (see note on clause 6 for definition of regulated activity provider).
34. Subsections (6), (8), (11) and (12) make provision for those engaged in regulated activity by virtue of positions or appointments prior to the commencement of the clause. No offence is committed by a person who is not subject to monitoring where he continues to engage in regulated activity in that position or appointment where permission was granted (or, in the case of a governor, his appointment as governor took effect) before the commencement of the clause, until such time as the Secretary of State specifies by order. This is intended to enable the new regime to be phased in relation to those who are currently engaged in activities which the Bill categorises as regulated activity.
35. Subsection (7) ensures that a person does not commit an offence if he engages in a regulated activity in the NHS (as set out in clause 15(1)(d)) where permission was granted before the commencement of the clause if he also engages in any other regulated activity in the NHS mentioned in clause 15, until such time as the Secretary of State specifies by order (see note on clause 15). Subsection (10) also ensures that a person does not commit an offence if he engages in a regulated activity with the permission of a regulated activity provider exempted under clause 14.
36. Subsection (9) provides that no offence is committed if a person engages in an activity involving close contact in a key establishment on an occasional basis (that is an activity mentioned paragraph 2(1) of Schedule 3 in a setting mentioned in paragraph 3(1) or an activity mentioned in para 5(1)(a)-(d) and (f) in a setting mentioned in paragraph 5(3)).This means that a parent can come in to assist in a school without having to be subject to monitoring if he does so on an occasional basis.
Clause 9: Use of barred person for regulated activity
37. This clause makes it an offence for a regulated activity provider (defined in clause 6) or an individual to permit a person to engage in regulated activity if he knows or has reason to believe that the person is barred from that activity. There is a similar offence in respect of a personnel supplier (defined in clause 45) who supplies a person to a regulated activity provider.
Clause 10: Use of person not subject to monitoring for regulated activity
38. This clause makes it an offence for a regulated activity provider to permit an individual to engage in regulated activity if he knows or has reason to believe that he is not subject to monitoring in relation to that activity. A similar offence is created in relation to a personnel supplier who supplies a person in these circumstances.
39. Provision equivalent to that in clause 8(9) is made in subsection (4) in relation to an establishment mentioned in paragraph 3(1) or 5(3) of Schedule 3 .
40. Provision equivalent to that in clause 8(6) is made in subsections (5) and (6) for pre-commencement positions and appointments (see paragraph 34 above).
41. Subsections (6) and (8) exempts certain regulated activity providers, mentioned in clauses 14 and 15 (where certain conditions are met), from the requirement for an individual to be subject to monitoring.
Clause 11: Regulated activity provider: failure to check
42. This clause makes it an offence for a regulated activity provider to permit an individual to engage in regulated activity without first making an "appropriate check". An "appropriate check" is one made with the Secretary of State to obtain "relevant information" as defined in Schedule 4. "Relevant information" includes information as to whether or not the individual is barred from the relevant regulated activity or is subject to monitoring in relation to it and may be obtained either by making an application under Schedule 4 or by obtaining an Enhanced Disclosure from the Criminal Records Bureau.
43. Subsection (4) exempts certain regulated activity providers, mentioned in clauses 14 and 15, from the duty to check.
44. Subsection (6) provides for where two regulated activity providers are permitting an individual to engage in the same activity. For example where a school and a construction company are permitting a builder to work in a school, one regulated activity provider, the school for example, may rely on written confirmation obtained from the other regulated activity provider, the construction company, that it has made an appropriate check and has no reason to believe that the individual is barred or not subject to monitoring.
45. Provision equivalent to that in clause 8(9) is made in subsection (5) in relation to an establishment mentioned in paragraph 3(1) or 5(3) of Schedule 3.
46. Provision equivalent to that in clause 8(6) is made in subsection (7) for pre-commencement positions and appointments (see paragraph 34 above).
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