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Mr. Dhanda: The amendments help to ensure that the offences in the Bill are appropriately focused and that they strengthen the provisions relating to personnel suppliers and controlled activity.
New clauses 15 and 16, and amendments Nos. 208 to 216, 229 to 231, 233 and 234 are technical amendments to ensure that the offences are appropriately focused. Amendments Nos. 208 to 210 ensure that the person or body with ultimate responsibility for regulated activity is responsible for checking individuals engaging in regulated activity. If no check is carried out, that person or body would be liable. In the case of an employee of a crèche within a high street store, the store would be the regulated activity provider. The amendments are important in ensuring organisations take their responsibilities seriously.
New clauses 15 and 16 and related amendments clarify the way offences bite on employees, ensuring that any person, including employees of a regulated activity provider, such as a school administrator, commits an offence if he knows that someone is barred and he permits them to engage in regulated activity. A person who acts on behalf of a regulated activity provider or personnel supplier will commit an offence if he knowingly permits an individual who is not subject to monitoring to engage in regulated activity or if he supplies him for regulated activity. Those who act on behalf of a regulated activity provider or employment business are guilty of an offence if the failure of the regulated activity provider or employment business to check was due to their “act or reckless default”. For example, an employee of a sports centre who fails to check on an individual who is being employed to teach children’s tennis lessons because he did not know it was a requirement to check would not have committed an offence. That goes back to what I was trying to explain earlier. Instead, the owner of the sports centre, or the sports centre if it is a company, would have committed the offence. However, if the centre manager asked someone to carry out the check and he deliberately did not, the individual would have committed the offence. That is both fair and appropriate as it ensures that all individuals in the children’s or vulnerable adult’s work force take seriously their responsibilities and take the necessary steps to ensure that individuals engaging in regulated activity are subject to monitoring. It will increase the protection the scheme provides. The amendments also allow us to take a similar approach to controlled activity.
We have made important amendments to the requirements to check. Clause 15 provides an easement from the requirement to check when an individual works in more than one NHS position at the same time—for example, a permanent NHS employee who also undertakes temporary NHS work on their day off. My hon. Friend the Under-Secretary of State for Health made a commitment to revisit the clause and we now agree that relevant independent health care providers that provide NHS services under contract with the NHS should also benefit from the provision. Amendments Nos. 52 to 54 achieve this. For example, they would cover when a particular NHS trust contracts with an independent health care body to run a specialist treatment centre. If a member of staff employed by the independent body to work in the treatment centre agrees to cover a post at short notice within the NHS trust, the trust would not be required to make an additional check.
New clause 17 gives the Secretary of State the power to place a requirement on holders of certain positions to be subject to monitoring and to place requirements on an appropriate person to check. These will enable us to mirror the governor provisions in clauses 8(3) and 12 for certain positions of authority, such as trustees of children’s charities. We plan to consider with the Charity Commission whether it would be appropriate to require checks and in what circumstances. Depending on the circumstances, that might be a requirement on, for example, the chair of the trustees or a person nominated by the trustees and checked by the Charity Commission.
Amendments Nos. 218 to 220, 222, 228, 236 and new schedule 3 clarify how employers can comply with their duty to check that an individual is subject to monitoring and therefore not barred. They can do this themselves through an online check or an enhanced disclosure, or they can obtain equivalent confirmation from another source, such as an employment agency. Enhanced disclosures provide more information than an online check and can help employers assess whether an individual is suitable for a particular position. Enhanced disclosures are currently required in sectors involving very close contact with children, such as foster care and children’s homes. The new schedule provides the power to require employers to obtain an enhanced disclosure or check an individual’s status via an online check to allow supervised employment to begin while waiting for an enhanced disclosure.
New schedule 3 also explains what information a regulated activity provider must obtain from a personnel supplier or a contractor. For example, a girls’ dance school that hires a teacher from an agency could rely on written confirmation that the agency had registered an interest in the individual and had no reason to believe the individual was not subject to monitoring. However, if the employer was required to get an enhanced disclosure through regulations under the Bill, it would be required to obtain a copy of the enhanced disclosure from the agency. New clause 18 and amendments Nos. 226 and 227 explain how checks of a governor can be performed through an online check or an enhanced disclosure.
New clause 19, new schedule 2, and amendments Nos. 34, 35, 40 to 42 and 217 strengthen the provisions on personnel suppliers, such as employment agencies and businesses. The new schedule ensures that an employment business will commit an offence if it supplies an individual to engage in regulated activity and has failed to ensure that the individual is subject to monitoring. Amendments Nos. 34, 35 and 40 to 42 ensure that a personnel supplier will commit an offence if it knowingly supplies an individual who is barred or not subject to monitoring to engage in regulated activity, even where the activity takes place only occasionally.
In response to a previous debate in the House, we have sought to strengthen the controlled activity provisions. New clause 22 and amendments Nos. 232 and 238 provide the power to place a series of mandatory requirements on employers through regulations. We will use them to require employers to check, and to introduce the necessary safeguards when employing a barred person. I hope that that will be welcomed throughout the House, because it was pushed in Committee. Failure to comply with the regulations may result in a criminal offence punishable by a fine of up to £5,000.
The amendments that I have just explained are critical. They strengthen and clarify the way in which the scheme will be enforced, and I commend them to the House.
Tim Loughton: This group contains a good many Government amendments, as well as six new clauses and a new schedule. The Minister said that many of the amendments were technical, but there are also some important matters of principle. Moreover, as my hon. Friends and I have already pointed out, we have had to take on a huge amount of new material in a very short time. That will add enormous complication to the Bill, as if it were not complicated enough already. I do not think that this is the best way of pursuing legislation. However helpful the Minister has sought to be—and there have been a few odd meetings—there is still an awful lot of material for us to consider.
I welcome the strengthening of, for instance, measures relating to the treatment of acts by children and to personnel suppliers. At the beginning of the year there was a furore about paedophiles and other undesirables gaining access to schools, and in Sussex, my part of the world, personnel providers were seen as a weak link. It was a grey area: there was confusion over whose responsibility it was to check the background of certain people, including those supplied to teach or act as classroom assistants. Did responsibility lie with the education authority, or with the commercial business that provided the staff?
I am slightly confused about the grammatical relationship between amendment No. 209 and clause 6. The amendment would add a third paragraph to subsection (2)(a) and (b). As the word “if” already appears in the first line of the subsection, adding the new paragraph would cause it to appear twice. If that is not the case, why is the new paragraph preceded by a pair of brackets? There may well be a technical point here, if I may be terribly pedantic.
However, there is also a point to be made about the content of the amendment. It states that someone is a regulated activity provider
“if the regulated activity is carried out for the purposes of an organisation, his exercise of that responsibility is not subject to supervision or direction by any other person for those purposes”.
Surely that can apply only to single-handed organisations. Surely any person working in an organisation—be it a charity, a voluntary provider, an independent provider, a commercial company or a not-for-profit company—will have a boss, a line manager, someone who is ultimately responsible, unless the organisation is a one-man or one-woman business. In that case, as I understand the amendment, that one person would be the person whose activity would be subject to some form of restriction. I am genuinely slightly mystified, without disagreeing with the point that the amendment is trying to make.
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Amendment No. 26 also seems fairly vague. It, too, refers to clause 6 and the definition of regulated activity providers. It would give the Secretary of State a fairly wide-ranging power by inserting the words
“The Secretary of State may by order provide that in specified circumstances a person who makes, or authorises the making of, arrangements (of any description) for another to engage in regulated activity either is or is not a regulated activity provider.”
What on earth does that mean? Can the Minister give us any examples of circumstances in which someone whom we would normally expect to be defined as a regulated activity provider engaged in a regulated activity would suddenly be exempt and given a get-out-of-jail card as a result of a determination by the Secretary of State—presumably by means of secondary legislation, not subject to any further ratification by the House? The Minister tried to give examples earlier to make the legislation clearer, but only succeeded in further confusing Opposition Members, at least. Perhaps he will have a better go at it this time.
Amendment 217 relates to clause 10, entitled “Use of person not subject to monitoring for regulated activity”. According to my reading of the amendment, the creation of offences in this context is not retrospective. This is another confusing point, which needs to be made absolutely clear to the many tens of thousands of people who will be subject to the legislation. Those people, who may now be employed quite legitimately, would be subject to restrictions or barred altogether if they applied for their jobs once the legislation was in force.
Let us say that a person occupies an existing post without having had to fulfil the proposed requirements. The nature of the job may technically change so that it becomes subject to vetting and barring procedures, although the person concerned has not moved to another job. Perhaps he or she works for a local authority. There have been big upheavals in social services and children’s services departments. The employee may have previously worked in a department where he or she did not come into contact with any vulnerable groups, because there were no such groups within that department’s remit. The department may then have merged with or become subsidiary to another department where other employees come into contact with vulnerable groups, young or adult.
The employee’s job will not necessarily have changed. His or her contract of employment and pay and conditions need not have changed. The job title may or may not have changed; but the organisation or department may have changed. What obligations will that person have at that stage, when continuing to do a job in exactly the same way as it was done the day before the reorganisation? What penalties could befall that person if he or she took no action? Would the defence of not knowing come into play, meaning that the person was not subject to prosecution?
I welcome Government amendment No 54, largely because we proposed it in Committee. It is a shame that the cameo appearance of the Under-Secretary of State for Health, the hon. Member for Bury, South (Mr. Lewis), has apparently ended, because it was he who, in Committee, took up the point that I made in proposing what was then Conservative-led amendment No. 139. What was said can be found in column 131 of the Hansard Standing Committee report. It was pointed out that given the various changes in the national health service, people were far more likely to come into contact with health providers who were not employed by the NHS, any NHS trust or any division of the NHS. They were providing an activity that was contracted in, as is increasingly happening in the fragmentation of the health service. Would it not be better if it referred to a person providing a form of health care rather than to
the various divisions, organisations and structures in which it is provided? That, I believe, is what happens under amendment No. 54, which I certainly welcome. Given that the health authority’s contents and purposes no longer exist, the Government have taken out the reference to health authority from the list of what constitutes various health providers.
Having commented on the main Government amendments, I shall now deal with amendment No. 201—the only one in the large group tabled by myself and my hon. Friends. We are minded to divide the House on the amendment, which we believe deals with an important principle, and hope to have the opportunity to do so at some stage.
The amendment is designed to help the Minister in his inadvertent failure, seen rather glaringly earlier, to decide what is inadvertency and what is not. It is an important point because many people—some have calculated that it could be as many as a third of the adult working population—are inadvertently going to be covered and may become subject to continuous criminal record vetting. Given that 10 million Criminal Records Bureau checks have taken place since 2002, a very large number of the population could now be subject to prosecution if they do not take notice of—and, potentially, take action on—the new legislation.
The Minister will no doubt agree with our contention—he acknowledged in Committee that the principle was right—that it is unfair to penalise individuals who did not know that they were barred from engaging in an activity. As it stands, there are three main circumstances in which someone commits an offence. Under clause 7, an individual commits an offence if he
“seeks to engage in regulated activity from which he is barred”,
“offers to engage in regulated activity from which he is barred”
“engages in regulated activity from which he is barred”,
which is pretty all encompassing. Furthermore, the guilt test is fairly low and the onus of proof lies on the individual to show that they did not know that they were committing an offence, rather than the other way round, whereby it would have to be proved that they were acting misleadingly in trying to disguise committing or intending to commit an offence.
As the Minister acknowledged in Committee, it is not the Bill’s intention to criminalise people who may have been barred but who are not aware, for whatever reason, of the position. Schedule 3, which provides the guts of the legislation, has a very broad scope of regulated activities and will potentially catch thousands of people who are not directly involved in teaching or caring occupations, which form the focus of many of the activities at which the Bill is targeted.
Anne Main: On inadvertent behaviour, does my hon. Friend agree that there is an unequal emphasis, in that an employer has to do his bit and try his best, whereas a member of the public or a potential employee who seek to have their behaviour regularised will, if not careful, become criminalised? The degree of latitude afforded to the employee does not seem to be equal to that which is implied by the Minister’s comments to be afforded to the employer.
Tim Loughton: I think that my hon. Friend is right. The quandary into which the Minister inadvertently ambled earlier was the suggestion that an employer who carried out the necessary checks in good faith, in accordance with the legislation as required, would be fine, while if a subsequent check became necessary but was not carried out because of some notion of inadvertence, it would constitute a lesser offence than if someone had failed to take the necessary steps to conduct a check or register in the first place. That is an entirely discretionary reading. How does the Minister decide when an employer’s conduct is to be regarded as inadvertency for failing to pursue the follow-through as opposed to a deliberate intention not to bother because it would be against his interests to do so?
Mr. Dhanda: Let me clarify the position for the hon. Gentleman. The employer makes the check at the outset to see whether someone is barred to establish whether they should be subject to monitoring when taken on. The hon. Gentleman implies that the employer regularly has to check up and will somehow be criminalised for not doing so. It needs to be understood that the new system will ensure constant updating of information by the Criminal Records Bureau, so if someone subsequently ceases to be subject to monitoring, the employer will be informed through the due processes.
Tim Loughton: With respect, that does not answer the question. The Minister clearly set out his own interpretation of what should be regarded as either inadvertent or deliberate, based on entirely subjective grounds, which have no foundation in the Bill, as I have interpreted it. The important point is that the legislation is very complicated and places considerable requirements on a large number of people who currently go about their business in good faith and with no problems whatever, but who are subsequently going to have to take full cognisance of the letter of the law, rather than some discretionary interpretation that the Minister appears to have provided.
Mr. Dhanda: The hon. Gentleman and other Conservative Members have had their fun with the term “inadvertent”, which is fine, but he will recall that I was specifically describing the position around “frequency”. I said that someone had to carry out a check to ensure that a person lay within the period condition—whether it be more than two days within every 30 days, or within an overnight stay or working one day a month. If a court were to decide that a person had not done the job properly with respect to the frequency criteria that it had established— [Interruption.]
Mr. Dhanda: One cannot intervene on an intervention.
In a particular case like that, it is right for the courts to take into account the fact that there is guidance. What the hon. Member for East Worthing and Shoreham (Tim Loughton) is describing is very different and applies to a definition that, frankly, I have not given him.
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Tim Loughton: My hon. Friend the Member for St. Albans (Anne Main) may be forgiven for confusing the Minister’s intervention with a speech, because he spent rather a long time adding an entirely new dimension to the debate. The subject of frequency did not come up at all when the inadvertency get-out clause, which the Minister has introduced today, was debated earlier. The point is that that is very confusing for hon. Members who are trying to get to the nitty-gritty of the legislation and it will be confusing for those who have to interpret, enforce and enact it, not to mention those who will suffer if they get it wrong. That is why amendment No. 201 is so important.
Too much onus is being placed on people to prove that they did not know something. It is very difficult to prove a negative. How do I prove that I do not know the capital of Kazakhstan? I should know it, because the film “Borat” is coming out soon and Kazakhstan has been all over the news. However, I cannot actually name the capital. I do know that it has a lot of unhappy members of its Government at present, but I cannot prove that I cannot name it. That is why the amendment is so necessary.
Rob Marris (Wolverhampton, South-West) (Lab): I am afraid that I cannot help the hon. Gentleman on the capital of Kazakhstan, but in the terms of clause 7(3) I would argue that I
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