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

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107.     The commencement clause 49 provides for the Act to be commenced by order of the Secretary of State. There may be different dates when parts of the Bill come into force so that trials of the scheme and an incremental roll-out may take place.


108.     Compatibility with ECHR of each element of the Bill

109.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act).

110.     On 8 June 2006 the Parliamentary Under Secretary of State for Children and Families made the following statement: "In my view the provisions of the Safeguarding Vulnerable Groups Bill are compatible with the Convention rights."

111.     The Department for Education and Skills considers that the Bill raises a number of issues relating to the Convention rights.

(1) Compatibility of a person's inclusion in a barred list with Article 8 ECHR or Article 1, First Protocol ECHR

112.     The Bill makes provision for the inclusion of persons in the barred lists by the IBB. Inclusion in a barred list prohibits a person from engaging in regulated activity.

113.     The Bill also provides the Secretary of State with power to make transitional provision including provision for the inclusion in the barred lists of persons subject to existing restrictions on their work with children or vulnerable adults.

114.     The Bill provides that a person included in a barred list may apply (with the permission of the IBB) for a review of his inclusion. The application may only be made after the end of the minimum prescribed period.

115.     These provisions confer powers which are capable of being exercised in a manner that is compatible with the Convention rights, and the Department considers that they do not, in themselves, cause an unjustified interference with any person's Convention rights. As public authorities within the meaning of the Human Rights Act 1998, the Secretary of State (in making regulations relating to automatic inclusion in the barred lists) and the IBB (in exercising any discretion to remove a person from, or include a person in, a barred list) would have to act compatibly with Convention rights.

116.     Given the broad range of activity that is regulated activity, the possibility of a bar interfering with a person's Article 8 rights cannot be ruled out, although there will be no interference in many cases. Although factually rare, a bar may also engage Article 1 of the First Protocol where it has the consequence of damaging the business of a self-employed person.

117.     Insofar as Article 8 or Article 1 of the First Protocol may be engaged by the bar, the Department considers that any interference would be justified in that it would be in accordance with the law and necessary in a democratic society to pursue a legitimate aim. The primary legitimate aim that these provisions pursue is the protection of children and vulnerable adults from harm.

118.     The Department considers that the wide range of activity covered by the bar is appropriate in light of the extent to which the public can expect to be able to place trust in persons engaging in regulated activity. The range of activity covered by the bar will, however, be relevant to any assessment that the IBB (in exercising its discretion to include or remove a person from a barred list) or the Secretary of State (in prescribing criteria for the purposes of automatic inclusion) may make as to whether a person should be included in the list.

(2) Compatibility of decision-making processes of the IBB with Article 6 ECHR

119.     The Department considers that provision for decision-making by the IBB - a separate legal entity, membership of which will consist of experts in child protection and the protection of vulnerable adults - taken together with the rights of appeal that are provided, satisfies the requirements of Article 6 in respect of any determination of an individual's civil rights. Individuals given an opportunity to make representations in advance of a decision being made by the IBB will be able to do so with knowledge of all the information on which the IBB intends to rely.

(3) Compatibility of information-processing provisions with Article 8 ECHR

120.     The Department considers that any interference with a person's Article 8 rights by virtue of the Bill's information-processing provisions will be justified, primarily by reference to the protection of children and vulnerable adults from harm. In all cases, the interference will be in accordance with the law and the closely controlled information-sharing provisions in the Bill. All agencies and bodies concerned with the provision and retention of information

    will, if they are public authorities under the Human Rights Act 1998, be required to act compatibly with the Convention rights.

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Prepared: 9 June 2006