House of Commons - Explanatory Note
Safeguarding Vulnerable Groups Bill [HL] - continued          House of Commons

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Clause 12: Educational establishments: checks on members of governing body

47.     This clause provides that an appropriate officer commits an offence if he fails to obtain within prescribed period relevant information (as defined in Schedule 4) in relation to a governor of an educational institution. The "appropriate officer" for each type of educational establishment, e.g. maintained schools, academies, etc. will be prescribed in regulations.

48.     Provision is made in subsections (3) and (4) for pre-commencement positions and appointments (see paragraph 34).

Clause 13: Personnel suppliers and regulated activity

49.     This clause applies where a regulated activity provider permits an individual supplied by a personnel supplier to engage in regulated activity (e.g., a supply teacher supplied by an agency to a school). The regulated activity provider, instead of doing his own "appropriate check" for the purpose of clause 11, may in certain circumstances rely on written confirmation obtained from the personnel supplier that it (i) has ascertained that the individual is not barred from the relevant regulated activity and is subject to monitoring in relation to that activity and (ii) has no reason to believe that this has changed.

50.     Subsections (5) to (8) make it an offence for the personnel supplier who provides written information when he has himself either made no check or having made a check subsequently learns that the person is barred or is not subject to monitoring.

Clause 14: Exception for requirement to make monitoring check

51.     This clause lists those regulated activity providers (in relation to vulnerable adults) exempted from the obligation to make an appropriate check under clause 11, and from the requirement in clause 10 to ensure that the individual is subject to monitoring. Subsection (1) sets out where the exemption will apply, that is those who provide complementary or alternative therapies; those responsible for the management of a prison or a probation service; those providing a service or an activity because of their age, health or disability; those who provide housing (including sheltered housing); and those who lack capacity to make decisions and have someone appointed to do so on their behalf. This is because there are some sectors where we wish to enable a check to be made, but do not wish to make them mandatory. The clause allows for this list to be amended in the future.

Clause 15: NHS employment

52.     This clause lists certain regulated activity providers exempted from the obligation to make an appropriate check under clause 11 and from the requirement in clause 10 to ensure that the individual is subject to monitoring. This relates to NHS employers who use staff supplied by agencies (e.g. NHS Professionals) in certain NHS employment where the member of staff is

    already engaged in other NHS employment and so will have been checked for the purposes of that employment.

CONTROLLED ACTIVITY

Clause 18: Controlled activity relating to children

53.     This clause defines controlled activity relating to children. Broadly, this is any activity in the FE and health sectors which is carried out frequently and involves the opportunity for contact with children or access to children's medical records but is not a regulated activity. This will include ancillary work in such sectors, such as cleaning, administrative work, etc. and the teaching of adults in FE settings where children are present.

Clause 19: Controlled activity relating to vulnerable adults

54.     This clause defines controlled activity relating to vulnerable adults. Broadly, this is activity in the health and social care sectors which is carried out frequently and involves the opportunity for contact with vulnerable adults or access to vulnerable adults' medical records but is not regulated activity. This will include ancillary work in such sectors, such as cleaning, administrative work, etc. The clause allows for the list of services (in relation to which controlled activity occurs) to be amended in the future.

Clause 20: Controlled activity: guidance

55.     This clause provides that the Secretary of State (or the National Assembly for Wales as regards functions carried out in relation to Wales) can issue guidance to certain bodies such as NHS bodies, FE institutions and local authorities as to the steps they should take when employing individuals to do controlled activities. The clause contains a regulation making power enabling the list of persons to whom such guidance can be issued to be amended in the future, in line with the power to add to the list of services in clause 19(4).

MONITORING

Clause 21: Monitoring

56.     This clause sets out the criteria that must be satisfied when a person applies to be subject to monitoring in relation to a regulated activity relating to children, regulated activity relating to vulnerable adults or both. On a monitoring application being made the Secretary of State must make enquiries to obtain relevant information (defined in subsection (5)) which includes information

    about his convictions and cautions and information from police forces relevant to the regulated activity.

Clause 23 Independent monitor

57.     This clause gives statutory effect to the current non-statutory monitoring arrangements relating to the disclosure of local police information by the Criminal Records Bureau under Part 5 of the Police Act 1997.

58.     The clause provides for an 'Independent Monitor' to be appointed by the Secretary of State, and to report to him, on matters connected with the statutory disclosure scheme as it relates to information deemed relevant for disclosure by Chief Officers of police and their equivalents.

Clause 24: Part 5 of the Police Act 1997: Code of Practice

59.     This clause extends the scope of the Code of Practice issued under section 122 of Part 5 of the Police Act 1997 ("Part 5") which governs the use of information provided to registered persons by the Criminal Records Bureau ( "CRB"). Registered persons are organisations which (being considered suitable to receive sensitive disclosure information) are registered with the CRB for the purpose of applying for disclosures of conviction information under Part 5, either in their own right or on behalf of others. A person who is not registered must apply for a disclosure via a registered person.

60.     Clause 24 extends the scope of the Code of Practice so as to include provisions relating to the carrying out of any function by a body or person registered with the CRB for the purpose of accessing the disclosure service under Part 5. The current scope of the Code of Practice as it relates to England and Wales is limited to the use of information provided to such bodies or persons.

61.     The clause also provides for a variety of sanctions for failure to comply with the Code of Practice. The proposed sanctions are equivalent to sanctions already contained in Part 5 (section 120AA) for failure to comply with prescribed conditions of registration.

NOTICES AND INFORMATION

Clause 25: Provision of vetting information

62.     This clause refers to Schedule 4

Schedule 4- Vetting Information

63.     The Schedule makes provision for applications to be made to the Secretary of State for "relevant information" in relation to a person by certain applicants.

64.     The "relevant information" will indicate the individual's status in the scheme to the applicant. Obtaining relevant information by making an application under these provisions is one way in which a regulated activity provider can comply with his obligations to make an "appropriate check" for the purpose of clause 11. The provisions also enable those not under any obligation to check whether a person is barred or is subject to monitoring before engaging him in a regulated activity to make a check of the individual's status. This means that a parent who is considering engaging a babysitter can check the individual's status.

65.     An application for relevant information is to be made in the prescribed form and must be made with a person's consent (except in the case where an application is made by a supervisory authority within the meaning of clause 36(6) or by a an appropriate officer who is making a check on a governor of a school or other educational establishment).

Clause 27: Regulated activity providers: duty to refer

66.     Broadly this clause relates to referrals of information from employers to the IBB. It sets out the circumstances in which a regulated activity provider and a person who has responsibility for the management or control of controlled activity must provide the IBB with relevant information about an individual. These are that:

      a)      the provider or other person withdraws permission for the individual to engage in a regulated or controlled activity (for example an employer dismisses an employee)

      b)      the reason for the withdrawal of permission is that the provider or other person thinks that any of the criteria specified in Schedule 2 for inclusion in a barred list applies.

67.     The duty also applies if the provider or other person would or might have withdrawn permission if the individual had not otherwise stopped being engaged in the regulated activity (for example because the employee resigned before he could be dismissed).

Clause 28: Personnel suppliers: duty to refer

68.     This clause sets out the circumstances in which a personnel supplier must provide the IBB with relevant information about an individual. These are that:

      a)      the personnel supplier stops supplying the individual for regulated or controlled activity; and

      b)      the reason for the cessation of supply is that the personnel supplier thinks that the individual satisfies any of the criteria specified in Schedule 2 for inclusion in a barred list

69.     Personnel suppliers are employment agencies and businesses and education institutions that supply individuals for regulated or controlled activity, such as teacher training colleges.

70.     The duty to refer also applies if the personnel supplier would or might have stopped supplying the person if the individual had not otherwise stopped being engaged in the regulated activity.

Clause 30: Duty to provide information offences

71.     This clause makes it an offence not to comply with the duties in clauses 27, 28 and 29.

LOCAL AUTHORITY INFORMATION AND REFERRALS

Clause 31: Local authorities: duty to refer

72.     This clause sets out the circumstances in which local authorities must provide the IBB with relevant information about an individual. Broadly, these circumstances are that the local authority thinks that:

      a)      an individual satisfies any of the criteria specified in Schedule 2 for inclusion in a barred list

      b)      the individual is engaged or may engage in a regulated or controlled activity, and

      c)      IBB may consider it appropriate for the individual to be included in a barred list.

PROFESSIONAL BODIES AND SUPERVISORY AUTHORITIES

73.     Clauses 33-35 make provision regarding the professional regulatory bodies, and the relevant registers which they keep, listed in clause 35(5). Clauses 36-38 make provision for supervisory authorities, as listed in clause 36(6).

Clause 33: Registers: duty to refer

74.     This clause sets out the circumstances in which a professional or regulatory body whose register or list is specified in clause 35(5) is under a duty to provide relevant information to the IBB. Broadly, these circumstances are that the professional regulatory body thinks that:

      a)      an individual who appears on its register or list satisfies any of the criteria specified in Schedule 2 for inclusion in a barred list

      b)      the individual is engaged or may engage in a regulated or controlled activity, and

      c)      IBB may consider it appropriate for the individual to be included in a barred list.

75.     This clause also provides professional regulatory bodies with a power, rather than a duty, to refer certain information to the IBB in similar circumstances. These are where the conduct that may lead to inclusion on a barred list has occurred before commencement of the clause.

Clause 35: Registers: notice of barring and cessation of monitoring

76.     This clause makes provision for the sharing of information by the Secretary of State and the IBB with professional and regulatory bodies. The clause places a duty on the Secretary of State to inform such a body if an individual that he thinks is on the body's register becomes barred. In this case, the Secretary of State must also require the IBB to provide the body with all the information on which the IBB relied in coming to its decision to bar. This will enable the body to make a decision about whether to remove an individual from its register or place conditions on the individual's registration. Similarly the Secretary of State must inform a professional or regulatory body if an individual that he thinks is on the body's register ceases to be subject to monitoring.

77.     The IBB must also provide a professional or regulatory body with relevant information that it holds about an individual who it thinks is on the body's register. This applies regardless of whether the information has led the IBB to bar the individual. For this duty to be invoked, the information must be relevant to the protection of children or vulnerable adults and to the exercise of the functions of the body concerned.

78.     The clause also allows for the list of those holding a register to be amended in the future.

Clause 36: Supervisory authorities: duty to refer

79.     This clause relates to the authorities that are set out in subsection (6). The clause provides for the circumstances when such a supervisory authority is under a duty to provide relevant information to the IBB. Broadly, these circumstances are that the supervisory authority thinks that:

      a)      the individual satisfies any of the criteria specified in Schedule 2 for inclusion in a barred list;

      b)      the individual is engaged, or may engage, in a regulated or controlled activity; and

      c)     IBB may consider it appropriate for the individual to be included in a barred list.

80.     This clause allows for the list of supervisory authorities to be amended in the future.

81.     This clause also provides a supervisory authority with a power, rather than a duty, to refer information to the IBB in similar circumstances. These are where the conduct that may lead to inclusion on a barred list has occurred before commencement of the clause.

Clause 38: Provision of information to supervisory authorities

82.     Under Clause 38 the IBB must provide a supervisory authority with relevant information that it holds about an individual who it thinks is engaged in regulated or controlled activity. This applies regardless of whether the information has led the IBB to bar the individual. For this duty to be invoked, the information must be relevant to the protection of children or vulnerable adults and to the exercise of the functions of the body concerned.

MISCELLANEOUS

Clause 39: Power to require certain information to be obtained

83.     This clause creates a power for the Secretary of State to disapply sections 11(9)(b) (regulated activity provider: failure to make a check) and 13(3)(b) (personnel suppliers and regulated activity). If these paragraphs are disapplied

    the only way in which an "appropriate check" for the purposes of clause 11 or 13 may be carried out is by obtaining an enhanced disclosure.

GENERAL

Clause 43: Family and personal relationships

84.     This clause excludes activity carried out during the course of family relationships from the scope of the Bill. Activity carried out within the context of a personal relationship which is not carried out for commercial consideration is also excluded. This means, for example, that a person included in the children's barred list could frequently look after his grandchildren.

Clause 44: Vulnerable adults

85.     This clause defines vulnerable adult for the purposes of the Bill.

Clause 46: Orders and regulations

86.     This clause provides for most of the powers in the Bill to make subordinate legislation to be subject to the negative resolution procedure. The exceptions are-

    (a)     an order to vary the definition of regulated activity (clause 5(3));

    (b)     an order which amends primary legislation for the purposes of or inconsequence of any provision of the Bill (clause 48(2));

    (c)     regulations prescribing criteria on the fulfilment of which a person may be subject to an automatic bar or a bar subject to representations (Schedule 2, paragraphs 1, 2, 6 and 7 ).

87.     Subsection (5) enables an order or regulation-making power to be exercised so as to apply differently in different sectors or circumstances. This (in conjunction with the commencement power in clause 49) ensures that different provisions of the Bill may be commenced at different times, so allowing the new regime to be phased in at different times for different sectors.

Clause 47: Amendments and Repeals

88.     This clause refers to Schedules 5 and 6.

Schedule 5: Amendments

89.     Paragraphs 1 to 6 and 8 to 10 amend enactments relating to various professional and regulatory bodies to enable them to take into account when exercising their functions the fact that a person has been included in a barred list. These bodies are: the Royal Pharmaceutical Society of Great Britain, the General Medical Council, The General Dental Council, the General Optical Council, the General Osteopathic Council, the General Chiropractic Council, the General Social Care Council, the Care Council for Wales, the Health Professions Council and The Nursing and Midwifery Council.

90.     For example, a person's inclusion in the barred list is "misconduct" for the purposes of section 8(1) of the Pharmacy Act 1954. This enables the Royal Pharmaceutical Society to consider this in any application for registration or removal from the register.

91.     Paragraph 7 amends the Police Act 1997. The amendments made by paragraph 7(2) enable the Secretary of State to amend the existing definitions of "central records" and "relevant matter" which comprise the information routinely disclosed on criminal record certificates and enhanced criminal record certificates. This will enable the Secretary of State to provide for the routine disclosure of various additional types of information that have become available to the prosecuting and judicial authorities since the original definitions in the Police Act were set down. Any proposed changes to the existing definitions will be subject to the affirmative resolution procedure.

92.     Paragraph 7(3)(a) amends section 113B of the Police Act to make clear that an enhanced criminal record certificate can only be applied for if, in addition to meeting such other qualifying criteria as may be prescribed, the position, employment or licensing application in question is included within those listed in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975.

93.     Paragraph 7(3)(b) provides for enhanced criminal record certificates issued under Part 5 of the Police Act 1997 to include relevant information (as defined in Schedule 4 to the Bill) in relation to an applicant in prescribed cases. This includes information as to whether a person is barred and is subject to monitoring. Obtaining an enhanced criminal record certificate is one way in which a regulated activity provider can comply with his obligation to make an "appropriate check" for the purposes of clause 11.

94.     Paragraph 7(4) amends section 119 of the Police Act to require those who hold records of convictions and cautions for police forces to make these available to the Secretary of State, and to require chief officers of police to supply the Secretary of State with relevant information relating to regulated activity, in relation to the Secretary of State's functions under Schedule 2 to the Bill regarding the inclusion of a person in the barred list or in response to his enquiries under clause 21 about those who are subject to monitoring. Information which the Secretary of State receives as part of this process may be passed to the IBB for its purposes (paragraph 17(d) of Schedule 2).

Clause 50: Extent

95.     The clause in the Bill that relates to information flows from the IBB to professional and regulatory bodies extends to Scotland and Northern Ireland. The provisions for setting up the IBB Board (clause 1), for the independent monitor (clause 23) and for amending Part 5 of the Police Act 1997 (clause 24) extend to Northern Ireland.

96.     Subsection (5) is a "permissive extent" provision, enabling the provisions of the Bill, with appropriate modifications, to be applied to the Channel Islands or the Isle of Man by Order in Council.

PUBLIC SECTOR FINANCIAL COST

97.     The scheme to be set up by the Safeguarding Vulnerable Groups Bill initially requires expenditure on capital investment, development, set-up and project management activities. Once the scheme is operational, it will incur ongoing costs in addition to the cost of current fee-funded Criminal Records Bureau activity.

98.     The Treasury have agreed the DfES budget for the set-up phase of the project as follows. This includes a contribution from the Department of Health in respect of the vulnerable adults workforce.

2006-072007-08Total
£7.58m£6.92m£14.5m

99.     The Secretary of State's statement of 19 January 2006, which followed the review of List 99, set out proposals to create a new statutory body for taking decisions on whether an individual should be barred. The current model for delivery is that the CRB will take on the bulk of the processing and administrative work and that an Independent Barring Board (IBB) will take decisions requiring discretion to be exercised.

100.     The total cost of setting up the Vetting and Barring scheme requires further modelling to reflect these new policy developments. We do not expect that the set-up costs of the revised scheme will require additional public expenditure. This modelling will also cover the financing of these costs: some are likely to be set up as service contracts or leasing arrangements once the scheme is operational, and as such fall to be funded over a period rather than up-front.

101.     Annual operating costs are expected to be in the range of £16 million to £18 million per annum over the first five years of the scheme on top of current CRB activity. Subject to further analysis and modelling, the increased costs may lead by 2008 to a rise in the fee charged to applicants. This reflects the additional features that the scheme provides.

EFFECTS OF THE BILL ON PUBLIC SERVICE MANPOWER

102.     Detailed modelling indicates that the manpower requirement to manage and administer the scheme will be approximately 200 additional staff, some in the CRB and some employed by the IBB. It is proposed that the scheme will be run from the outset by the panel and the CRB whose staff will be public sector. There may also be private sector manpower in service provider organisations under contract to the CRB. At this stage the precise breakdown of public service and private sector manpower is unknown.

SUMMARY OF REGULATORY IMPACT ASSESSMENT

103.     The RIA, which has been approved by the Better Regulation Executive, sets out the costs and benefits that fall on the business and voluntary sectors. It analyses the processes and individuals involved in the recruitment and selection of people to work with children and vulnerable adults and identifies the various risks and impacts upon them. However, it also highlights the problems with the current situation, the political commitment to introducing changes and the potential benefits of the proposed scheme to employers, employees and most importantly to the vulnerable.

104.     While the scheme will impact on a large number of people and organisations, in the majority of cases this is simply building on the existing impact of the current checking and barring systems. The scheme will not have a disproportionate or negative impact on particular groups or sectors. This was borne out by a major public consultation and a dedicated Small Business Impact test, which concluded that the scheme would not have a negative impact on small businesses.

105.     There will be some additional costs both in process and in initial familiarisation with the new legislation. However, much of these will be recovered through the benefits of reduced repeat disclosures and improved protection of the vulnerable.

106.     The RIA is published at http://www.dfes.gov.uk/ria/.

 
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Prepared: 9 June 2006