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Schedule 1 outlines the arrangements for membership and staffing of the IBB, as well as its incidental powers. The board will be required to issue annual reports and to keep accounts, which will be audited by the National Audit Office and laid before Parliament.
The new scheme for which the Bill provides increases safeguards significantly by covering a much wider work force than is currently covered. In doing so, it provides for three levels of protection for children and vulnerable adults, which are set out in clauses 5 to 20 and in schedule 3. The first level of protection is the requirement for employers to check the barred status of individuals whom they intend to employ, and to check that the bar applies. That is defined in the Bill as “regulated activity”, and covers circumstances in which an individual would be working most closely with children and vulnerable adults. It covers work in key settings such as schools and care homes. It covers certain specified activities that bring an individual into close contact with children and vulnerable adults. There are several specified key positions of authority to which the bar and the duty to check also apply, such as directors of children’s services and adult social services.
We are committed to making the system far more robust. Clauses 7 to 13 provide for new criminal offences to ensure compliance with the scheme. Barred people, and those who are not subject to monitoring, who seek to engage in regulated activity will be committing criminal offences. An employer who knowingly employs a barred individual in a role in which the bar applies will be liable to a prison sentence of up to five years, a fine or both.
Mrs. Joan Humble (Blackpool, North and Fleetwood) (Lab): My right hon. Friend has said that the Bill covers a far wider work force than is covered by current legislation. What measures will she take to ensure that people are aware of it? She referred to “an employer who knowingly employs a barred individual”. An employer who is unaware of the Bill might unwittingly employ a barred individual. What publicity will my right hon. Friend give the proposals?
Beverley Hughes: I entirely agree with my hon. Friend. We need a wide and detailed campaign or communications strategy for everyone who might be affected. The board itself will have to initiate and maintain a continuing dialogue, particularly with employers, about the criteria and thresholds required for the referring of information to it, and the processes for doing that. We are very conscious that that is an essential part of the implementation of the scheme.
If an employer employs a person not subject to monitoring by the scheme, or fails to check an individual’s barred status in the first place, he will risk being fined up to £5,000.
The second level of protection is defined in the Bill as “controlled activity”. It will be made clear to employers through statutory guidance that they must check an individual’s barred status, but they will have discretion to employ an individual who has been barred. Controlled activity covers support workers in general health, further education and social care settings—for example, catering staff in a general hospital or cleaners in an adult day centre.
Annette Brooke (Mid-Dorset and North Poole) (LD): I am a little confused about the differentiation between further education establishments and schools in respect of ancillary workers, given the 14-to-19 agenda to get young people into FE and the large array of courses offered by FE colleges for those with special educational needs.
Beverley Hughes: Many students in FE colleges will be over 18, but I am referring to support work, not to direct teaching work. The principle underlying the Bill is that the frequency with which people might have close contact with children, or young adults aged under 18, is one of the factors that determines whether an activity is in the regulated activity category. The opportunity for catering staff to have unsupervised close contact in an FE college is much less than it is in a school. But the hon. Lady is right to raise this issue, where judgments have to be made and lines drawn; we will doubtless get down to such issues in Committee, and she might well want to raise it again then. Throughout the process of making the definitions included in the Bill, we have had to make such judgments, and it is right that they be open to scrutiny because they deal with important issues.
Mr. Willetts: On the way in which lines have been drawn in the Bill, another important issue is that, increasingly in education—as in health—workers are being recruited from abroad. Does the Minister think that any of the Bill’s provisions will ensure scrutiny of people recruited into education or social services from outside this country?
Beverley Hughes: The Bill makes no distinctions whatsoever in terms of the requirements for checking whether an applicant is a British or foreign national. However, we certainly have more to do in enabling employers, as far as we can, to access and check the criminal records of people in certain foreign countries. The Criminal Records Bureau already provides an information service—it is now an online service—for employers on how to do that. The CRB is working very closely with the countries that send the largest numbers of people to the education sector, and it is developing protocols where possible.
The hon. Member for Havant (Mr. Willetts) is right, however, to suggest that if some countries outside the EU—and outside the 21 with which we are developing protocols—provided us with a criminal record, we would be unsure how robust it was compared with criminal records here. For example, in certain countries such information is provided only if the person in question has served a prison sentence. We therefore have to think more carefully about the advice that we give employers in those circumstances. We clearly cannot control the criminal record procedures in far-flung countries, but we can give advice to employers here on what their position should best be if they are not sure that the criminal record information from a foreign country is adequate or complete. We will do further work on that very issue.
Mr. Andrew Turner: Might employers be found guilty of racial discrimination if they err on the side of caution in respect of an applicant from a country from which it was not possible to obtain adequate information?
Beverley Hughes: No, I do not think that that would be the case. The law will require, as it currently does, employers to assure themselves that people are fit for the jobs they are applying for, and one requirement is to check the criminal records of people wanting to work in close contact with children and—through this Bill—of those wanting to work with vulnerable adults. So that statutory duty to get adequate information would be paramount.
We were discussing controlled activity, which covers support work in general health, further education and social care. The guidance that we will issue communicating the requirements for engaging an individual in controlled activity will firmly state that extra safeguards will need to be put in place if an employer is considering employing a barred individual, and we will set out what those safeguards should be. They could include a longer probation period, extra supervision, and ensuring that the individual is never left alone in situations involving children or vulnerable adults.
Mrs. Maria Miller: The Minister touched on the issue of people who do controlled jobs, and on them receiving supervision. However, there is no provision in the Bill for any sanctions against people who do not properly supervise those in such positions. Is that an error of omission, or did the Government deliberately adopt the stance that no sanctions will be taken against employers who do not properly supervise their employees? Will the Minister elaborate a little on what the supervision mentioned would consist of?
Beverley Hughes: That is an interesting point, which I think we will discuss further. In respect of an activity for which there is a duty to check but it is not illegal to employ a barred person, thus far the view has been that sanctions would be inappropriate. However, I have asked for further work to be done on that point, because we might want to look into whether there should be sanctions not only for the issue that the hon. Lady raises about the putting in place of safeguards, but for the duty to check even if a decision is made that a job offer is appropriate and can be managed. I would be happy to re-examine that in Committee.
Margaret Moran (Luton, South) (Lab): For employers, the safeguards required in such circumstances are a complex area. How will they be advised of the appropriate safeguards that will be necessary, and how will that be monitored?
Beverley Hughes: We will set out in great detail in statutory guidance the extra safeguards that employers will be obliged to follow in such circumstances. Normally, the monitoring will be performed through the inspection processes that pertain in particular settings; that is how such matters will usually be regulated.
The third level of protection is where there is the ability to check barred status, but no requirement to do so. Where an individual is engaged in an activity offering specified close contact with children or vulnerable adults but they are employed by a domestic employer such as a parent, there is no duty on the
parent to check the individual’s status in the scheme. However, for the first time, a parent will be able to check whether a prospective employee has been vetted, is subject to continuous monitoring, and therefore is not barred. The fact that a parent is able to check the status of their nanny, for example, is a significant improvement on current arrangements, and critical to increasing parents’ confidence in the individuals whom they employ to work with their children. However, while the duty to check does not apply in such situations, the bar still does. A barred individual seeking to do, or doing, any such work would be committing a criminal offence.
Annette Brooke: The Minister was asked how information would be disseminated. It seems to me that it will be particularly difficult to get through to parents in such circumstances. What plans does the Minister have in that regard?
Beverley Hughes: It will be very important that we communicate to parents not only the details of the scheme, but the new opportunities that they will have to check online somebody’s current status in the scheme. We are still considering the details of what I have acknowledged will have to be a very considerable communications plan, and we will discuss how best we can do that with stakeholders, children’s organisations and local authorities.
Mrs. Maria Miller: The ability to check online is not covered by the Bill, despite the fact that it was heavily trailed when the Bill was first announced. Will she explain how the Government intend to deal with some of the problems that people have experienced with online facilities in the US, where 11 American states experienced extreme problems with their security systems when they were compromised, leaving sex offenders able to change their own data online? Will the Minister outline the Government’s plans to ensure that we do not have the same problems in the UK?
Beverley Hughes: There are security questions, which we have considered in great detail. Parents will be able to check, with the applicant’s permission, whether the person concerned is subject to continuous monitoring. That will be the relevant information. I understand that the language is rather tortuous, and we have to get around language problems for the communication plan, but if a person is in the scheme and is subject to continuous monitoring, it means by definition that they are not barred and that there is no known information about the individual that would cause them to be barred. They are therefore safe to employ, as far as we know. At that level of information, the security issues are much reduced and we think that we can manage them. As the hon. Lady says, the details will need to be explored more fully and we are currently in the process of doing so.
Anne Main (St. Albans) (Con):
Someone such as a parent can look online to check the details of someone they are employing, but what if I am a neighbour with serious concerns and the parent has not taken the opportunity to check? Am I entitled to check up on
someone living next door to me who may have access to my child, or will it be strictly employers only who can use the service?
Beverley Hughes: This facility will not be open to all and sundry. The person who wants to check online has to have the consent of the individual who is seeking the job. That person will probably have a unique identifying number that will enable access to be made. We are looking into how the system will be accessed and certain things will have to be unlocked in order to do so. Again, it will require the consent of the applicant. It will not be possible for anyone not interested in employing another person to go fishing on the list in the manner suggested by the hon. Member for St. Albans (Anne Main). As I was saying, a barred individual in this category would be committing an offence if he sought to do any work.
Following fruitful debate in the other place about the extent to which checks in certain situations should be mandatory or optional for vulnerable adults, we intend to introduce amendments in Committee to reduce the exemptions under clause 14.
Paragraphs 1 and 6 and 2 and 7 of schedule 2 allow for the automatic inclusion of individuals on the barred lists, following conviction or caution for a specified offence or order. The list of offences will be prescribed in regulations, subject to the affirmative resolution procedure. An automatic bar, without the right to make representations, will result from the most serious sexual offences against the vulnerable group, such as the rape of a child in the case of a children’s list and sexual offences against those with a mental disorder in respect of the vulnerable adults list. The commission of such an offence in itself is clear evidence that the individual poses a manifest risk to children or vulnerable adults.
A further list of offences will also lead to an automatic bar, but with the individual retaining the right to make representations to prove, if they can, that they do not pose a risk of harm to vulnerable people and so should be removed from one or both lists. Examples of offences being considered for this category are those relating to trafficking children, prostitution and specific types of pornography.
Margaret Moran: Does my hon. Friend believe that people accessing online child pornography will fall within the classification that she just mentioned?
Beverley Hughes: My hesitation arises from the fact that the form of words in the Bill in relation to pornography is different for children and adults. We have given a commitment to table amendments to reconcile the references on pornography for both children and adults, but I certainly expect that the offences that relate to pornography, whatever their eventual written formulation, will be part of this category.
Paragraphs 3, 5, 8 and 10 of schedule 2 set out a discretionary route to barring for all other cases. Where the information suggests that a person’s behaviour has harmed a child or vulnerable adult or that they pose a risk of harm to them in future, the IBB will gather all
the necessary information to consider the case. The IBB is under a duty to provide the individual with all the information that it intends to rely on in making that barring decision and to give them the opportunity to make representations about why they should not be included on the barred list. The IBB will then consider carefully, using its expertise, whether the person should be barred.
Paragraph 16 of schedule 2 will make provision for an individual to request a review of their inclusion on the list after a prescribed period of time. A review provides an opportunity to demonstrate that the individual no longer poses a risk to vulnerable groups and therefore that they should no longer be barred.
Clause 4 provides for appeals to the Care Standards Tribunal on a finding of fact made by the IBB or on a point of law following a barring decision. I reiterate that the spirit of co-operation that marked the debate on that issue in the other place enabled the provision to be refined, so that the transparency of the scheme as a whole has been enhanced.
In the critical role that the IBB and the CRB will play in keeping barring decisions updated—a fundamental change and improvement in the operation of the current systems—clauses 21 and 27 to 38 provide for the board to receive ongoing information from a wide range of sources. Not only will information come from the police, but the Bill will place duties on employers, on local authorities and on supervisory and regulatory bodies to provide information to the IBB in certain circumstances, as well as if and when the board requests it. The IBB will also exchange information with bodies such as the General Teaching Council and the General Medical Council.
Of course, in one respect, although the Bill is the culmination of long-term thinking on the strengthening of vetting and barring arrangements, it is also the beginning of the process of implementing the new scheme. We are working hard to finalise the design of the processes required by the scheme, drawing on the expertise of a large number of experts, as well as police and employer bodies and so on.
I hope that, by outlining the provisions of the Bill, I have made it clear that the safeguarding of children and vulnerable adults is a top priority for all hon. Members. That sentiment was shared in the other place, and I think that it will be in the House. Indeed, several key improvements to the Bill that have been announced but not yet made will be introduced in Committee. We are committed to make the necessary improvements to the current arrangements for vetting and barring and to respond effectively to recommendation 19 of the Bichard inquiry and to establish a scheme, as I think the Bill does, in which parents, carers and the public can have confidence.
I stress, however, that any system is only as good as the people using it and that no Bill can take away from employers their ultimate responsibility for making safe appointments. We need to inculcate a safeguarding mindset and the understanding that the recruitment of people to work with children and vulnerable adults must be based on robust procedures, on meticulous practice and, in the end, on sound judgment at the point of recruitment.
Mr. David Anderson (Blaydon) (Lab): Has my right hon. Friend considered the impact of implementing these proposals on the recruitment timetable? When people leave work, how long will it take to replace them? That is a problem at the moment, but if we rightly and properly extend the vetting procedure what will be the impact on staff, children and vulnerable adults?
Beverley Hughes: I thank my hon. Friend for making that point. When the scheme is fully implemented and when employers have the ability to make checks online, it might take less time than it does at the moment to obtain the information required to make a safe judgment about people’s criminal convictions, about their behaviour and about any concerns that there may be. I know that there are stories of some problems in some areas but, by and large, the CRB is meeting high standards in terms of the turnaround times for both standard disclosures and enhanced disclosures. I am sure that that process will continue.
My hon. Friend is right to make that point. It reminds us that nothing can take away the responsibility of employers at that point to be assured themselves that they have all the information they require to make a safe appointment, and the information that they need to make a judgment.
Mr. Paice: The Minister has been generous in giving way. I entirely agree with what she has just said. Nothing can replace competent personal judgment. In too many cases, people have made unwise decisions; most people would have made different decisions in those situations. I ask her about one specific issue that stems from the Soham situation and relates to spouses or partners. Will there be any information in the IMPACT system or available to the board about records relating to spouses or partners? There are many occasions—Soham was one—where the spouse or partner of someone employed will also come into contact with the children in the school, on school outings or because they happen to be at an adjoining school. Therefore, any information that may relate to the partner or spouse may be of significance in reaching a judgment on whether to appoint another individual, whose own record may be unblemished, but whose presence in the school might bring the children into contact with someone they should not be in contact with.
Beverley Hughes: I understand why the hon. Gentleman raises that point. It is a delicate issue, which we need to be careful about. There will be special situations in which not necessarily the spouse but, more broadly, the associates of a particular individual might be cause for concern. There may be intelligence on that, which the police feel it is appropriate to pass to the IBB in the event of a person entering the scheme and being monitored and all that information being collected. Therefore, there could be circumstances in which associates more generally are relevant to a particular job, but the police will have to make the decisions about when that information is relevant.
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