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Clause 7
Mr. Dhanda: I beg to move Government amendment No. 28, page 4, line 21, at end insert—
‘( ) It is a defence for a person charged with an offence under subsection (1) to prove—
(a) that he reasonably thought that it was necessary for him to engage in the activity for the purpose of preventing harm to a child or vulnerable adult (as the case may be),
(b) that he reasonably thought that there was no other person who could engage in the activity for that purpose, and
(c) that he engaged in the activity for no longer than was necessary for that purpose.’.
Madam Deputy Speaker (Sylvia Heal): With this it will be convenient to discuss the following: Government amendments Nos. 29, 31, 33, 37, 38, 42, 43, 45, 48, 49, 56, 57, 64, 140 to143.
Amendment No. 199, in schedule 3, page 45, line 5, at end insert—
‘(e) an employer using their professional judgment may produce a statement defining frequency in relation to that particular establishment if the definition of frequency is equal to or less than the definition in the Act’.
Government amendments Nos. 145, 146, 149, 153, 156 to 159 and 169.
Mr. Dhanda: As the Bill has progressed through both Houses, few matters have been more subject to debate and examination than what has come to be known as the “frequency test”. Similarly, many of our key stakeholders have engaged us in constructive discussions about our intentions for that.
In the Bill, “frequently” is key to the definition of most forms of regulated activity. For the bar, the requirements to check and the requirements to be subject to monitoring to apply, the activity in most contexts has to be carried out frequently. Debate has focused on two critical issues: first, whether barred individuals should be able to undertake any work involving close contact with vulnerable groups, and secondly, how employers and individuals should interpret the term “frequently”. The Government amendments cover both issues.
For the application of the bar, the concern put to us is that even very brief or occasional contact with a barred person constitutes too great a risk. We have received several representations from stakeholders, including the NSPCC, about that. We have listened carefully to the debate and further considered our original position. Consequently, I am now moving amendments that would prevent people on a barred list from engaging in regulated activity and make it a criminal offence for an employer to engage them, even when the activity was brief or occasional. I hope that the House will support that, although, after dividing on amendment No. 201, I am not sure whether that will happen. However, that is the rationale behind amendments Nos. 29 and 38, the result of which would be that, when an individual was barred, he would be barred—full stop. That is the right way forward. It means that a barred volunteer would be prevented from helping out at a summer youth camp, even if it took place over only a day or two.
However, we recognise that, in an emergency, it may be necessary for barred individuals to engage in a specific regulated activity and that to criminalise them for doing so would be counter-productive. Amendments Nos. 28 and 37 create a defence when a barred individual has to engage in regulated activity to prevent harm and when no one else is around who could engage in that specific activity. That is intended to cover only a limited range of situations, for example,
when a doctor barred from working with children has to administer first aid to a child who has had an accident in the street.
Amendments Nos. 31, 43, 48, 141, 145, 146, 149, 156 and 159 will make consequential changes on that modified approach to the application of the bar elsewhere in the Bill. I should also mention that amendment No. 42 means that the frequency of an activity will also be irrelevant in relation to the requirement on personnel suppliers to ensure that an individual whom they supply is subject to monitoring.
Also in that territory, amendments Nos. 143 and 158 are intended to ensure, for example, that a barred parent can enter a school to attend their child’s parents’ evening or that an individual on the adults’ barred list can visit their sick mother in a care home. However, a barred person who carries out an activity in a school, for example, with the opportunity for contact with vulnerable groups will be prevented from doing so where the activity involves work, paid or unpaid, in connection with the purposes of the school.
While a barred person will now be barred from regulated activity of any duration, we believe that the requirements to check and to be subject to monitoring should still apply only when the amount of contact is above a certain threshold. Our amendments will clarify that threshold, taking on board our debates on the issue.
Amendments Nos. 140, 142, 153, 157 and 169 set out the circumstances in which the Government intend that the requirements to check and to be subject to monitoring should kick in. They ensure that activities that take place overnight will be regulated activity. They also define contact taking place on three or more days in a 30-day period as regulated activity. Those circumstances are referred to in amendment No. 169 as the “period condition”. Similar revisions are made to the definition of controlled activity by amendments Nos. 56, 57 and 64.
That means that employers will be required to check, and individuals will need to be subject to monitoring, if they are operating, for example, a conference crèche for children that lasts for three days or longer.
Annette Brooke: I thank the Minister for giving way, because I want to put a specific question, and he might be able to answer later if I ask it now. Can he confirm that a crèche that is operated for less than two hours per day, which means that it does not come within Ofsted regulations, but which is in a fairly public place—for example, a sports centre in a town centre—and which, for the most part, but not necessarily, has different children attending every day, is covered by the provisions in the Bill?
Mr. Dhanda: I understand that that is a regulated activity, but these provisions are not about the frequency of the activity provided by the provider, but how frequently an employee is at work. If the hon. Lady is asking about an employee who works for only two hours a month, that is a different question. If she is asking about regulated activity, that is defined by the nature of that activity. So, yes, I understand that that is a regulated activity.
Similarly, a volunteer helping out at a school campsite will need to be subject to monitoring if they are looking after the children overnight. It will be optional for employers to check individuals engaged in regulated activity lasting less time than those circumstances specified in the “period condition”, to which I think the hon. Member for Basingstoke (Mrs. Miller) will refer.
Beyond those situations, the requirements to check and to be subject to monitoring will still apply when an activity is carried out “frequently”. The word “frequently” will take its normal meaning and, as I have said previously, guidance will set out the Secretary of State’s broad interpretation that the term will cover activities that are carried out once a month or more often. However, to provide a measure of protection for employers and individuals who follow that guidance, we have tabled amendments Nos. 33, 45 and 49, which will require the court to take into account when imposing penalties for failure to comply with the regulated activity requirements the extent to which employers and individuals have followed the Secretary of State’s guidance.
We have listened carefully to previous debates, and I believe that those amendments will be welcomed, as they ensure that being barred means precisely that. They clarify when the requirements to check and to be subject to monitoring apply, and they reduce the risk of employers and individuals being unfairly penalised in circumstances where they have followed the Secretary of State’s guidance. On that basis, I commend the amendments to the House.
8.15 pm
Mrs. Miller: Yet again, we are considering an important string of amendments—important because “frequent” and “occasional” have been among the most problematic terms in the Bill and have given cause to considerable debate in the House and in the other place. Also, a great many representations have been made by stakeholder groups.
The Government’s original position in Committee, when they were pressed on the matter, and indeed on Second Reading, was that those definitions did not require further clarification because they would take their “everyday meaning”—despite the fact that both terms are relative and that there is no generally accepted everyday meaning for either “frequent” or “occasional” in English law.
Many hon. Members, including those on the Conservative Benches, felt that to leave such a key concept undefined would be to store up a great deal of trouble, not to mention create extra work for the army of lawyers that has clearly been involved in drafting the Bill. Therefore, we are glad that the Government have worked over the summer, through a working party including many reputable organisations, to reconsider the position and take into account some of the debate in Committee. The tabling of amendments Nos. 56, 57 and 64, which tightly define “frequently” as any two-day period occurring in a 30-day period, has allowed us to start to get a feeling for what is meant here.
Amendment No. 169 takes that welcome clarification a little further by specifying that that new “period condition”, as it is called, is also satisfied if the activity in question occurs between 2 am and 6 am, covering another area that was debated hotly in
Committee regarding overnight stays. That activity also needs to give the opportunity for face-to-face contact with children or vulnerable adults.
No doubt the wording is better than the original, but Conservative Members feel that there is room for a little more improvement. Before we get on to that, I want to ask the Minister to provide further clarification on amendments Nos. 33, 45 and 49, which, again, will introduce a new idea to the Bill on Report. Those amendments provide that the courts may take into account the extent to which employers and individuals guilty of offences under clauses 8, 10 and 11 have taken account of guidance as to the meaning of “frequency”. We have not debated that previously, and it would be interesting to know the Government’s intent. As we have said, the vetting and barring system must be robust—the reason for the Bill is that the current system is not robust. It must also be simple for employers and employees to navigate and understand; otherwise, it will not move us forward.
The amendments might suggest—perhaps the Minister will elaborate—that the Government think that the new rules will not be well understood, and that employers and employees may unintentionally misapply the rules and be guilty of criminal offences. Is the Government’s intention to try to provide a caveat in case of misunderstanding? If so, we might need to discuss that further. Perhaps the Minister will also enlighten the House as to how often he expects the provisions to be used, and whether he will monitor them to assess whether there is a fundamental flaw in the working of the Bill. Will he tell us how he will conduct that monitoring, and what actions will be taken?
As many hon. Members and other groups have mentioned, the amendments also touch on the need to communicate clearly to employers and employees their rights and responsibilities under the law, and to inform barred persons of which activities they can and cannot engage in. The system is complex, so it is imperative that the Government communicate adequately to all concerned, as we have discussed. However, amendments Nos. 33, 45 and 49 imply an expectation that in at least some cases people will commit offences due to a lack of understanding of the rules. By tabling the amendments, perhaps the Minister has inadvertently reiterated the official Opposition’s case, which is supported by our Liberal colleagues, that further communication is needed.
On a related point, we are also concerned that the Bill does not do enough to involve those on the front line who will try to implement this increasingly complex legislation, particularly employers. In Committee, the Government said that there was a great difference between different settings, so the idea of one definition of frequency simply would not work, and that flexibility was needed to ensure that the Bill would work in practice. Obviously, the Government have slightly changed their position, and now have a much tighter definition.
Our amendment No. 199 would provide a little more of what the Government have been trying to achieve in the Bill—not just providing a structure and a process but engendering a culture of vigilance among those dealing with children and vulnerable adults—and could
be just what the Minister is looking for. It allows employers to use their own professional judgment to determine what constitutes a frequent activity in relation to their own setting, but only if the definition were equal to or less than that contained in the Bill—two days in any 30-day period. The amendment would put some of the responsibility on those who must implement the Bill, rather than perpetuate a tick-box culture in which it is felt that as soon as the Bill has been put in place, everything that is required has been done. I hope that the Minister will give further consideration to the amendment. The maximum period defined by amendments Nos. 56, 57 and 64 would not be threatened, but more people would be involved in the process.
Amendments Nos. 28 and 37 would allow barred persons to engage in regulated activities in emergency situations, of which the Minister gave an excellent example. Again, we have not debated the issue previously, so perhaps the Minister needs to provide a little further explanation . Although we have not tabled an amendment because of lack of time, given the extent to which certain individuals look for loopholes in the law—let us not revisit Kazakhstan at this stage, but I would tell the House that its capital is Almaty—does he not think that the two amendments may have a perverse consequence? Amendments Nos. 28 and 37 would give barred persons a right to engage in regulated activities in an emergency. For instance, a doctor who is barred would be able to administer first aid to a child who had collapsed. What would apply in a situation in which an individual who is not monitored, as opposed to barred, wants to provide emergency assistance to a child or vulnerable adult? It could be argued that such a person would be in a worse situation than one who has been barred.
Perhaps the Minister needs to provide further explanation, but there is no provision in the Bill to allow those who are not monitored to administer what would otherwise be defined as a monitored activity. Last week, there was a wonderful example, which I am sure that the Minister heard about, of a lollipop man being taken ill. A local council did not feel it appropriate to permit any other individual to help children cross a road, and the police unfortunately could not supply the manpower. Instead of having an adult help them cross the road, children had to cross a major road, which had been associated with a number of fatalities, by themselves. Will the Minister clarify whether amendments Nos. 28 and 37 would mean that a barred person would be able to help a child who was in danger trying to cross a road? Would the non-monitored person be at a disadvantage? I am sure that the Minister has already thought about that potential perverse outcome of the Bill, but because we cannot debate the issue further, given the lateness of tabling, I would very much value his feedback.
Annette Brooke: We are grateful that the Government have listened and have tabled amendments in relation to the definition of frequency. I was troubled when the Committee stage finished, as I genuinely thought that a big loophole existed in relation to five-day overnight camps, on which I spoke at great length. I am relieved that the amendments have been tabled. I thank the Minister for listening, and the civil servants who have worked hard on the amendments.
I do not share the concerns of the hon. Member for Basingstoke (Mrs. Miller) about exceptions, such as cases in which someone responds to an emergency. I have a friend whose heart stopped beating, and 10 years later, we can truly say that she is here only because there happened to be a doctor walking next to her on the pavement. If he had been on the adults’ barred list, he could not have carried out that function, so I understand the purpose of the amendment, even if there is concern about unintended consequences. I have a few worries about the implementation of amendment No. 199, as problems with employment law and other legislation could arise. However, I entirely understand the sentiments behind it, and what it is trying to achieve.
8.30 pm
Mr. Dhanda: First, on guidance on frequency for the courts, the Secretary of State will issue guidance on his broad interpretation of the term, “frequently”. When a regulated activity offence has been committed, and the court is deciding a sentence, it must consider the extent to which the employer or individual interpreted “frequently” in line with the Secretary of State’s guidance. If the court reaches a different interpretation of “frequently”, the intention is that it will be more lenient in its sentence if the offender has adhered to the guidance. For example, an employer may be prosecuted in court because he did not make a check for an activity that took place once every six weeks; instead, he made checks only once every four weeks, because that was what was recommended in the guidance. The amendments will essentially provide a measure of protection for employers and individuals who have to interpret “frequently”.
The hon. Member for Basingstoke (Mrs. Miller) spoke about “frequently”, and wished that the provisions went further, so that checks could be made on people who are employed for under two days or a week, or who are not employed for overnight periods. Organisations are allowed to do that—they are well within their rights to do so. Under the Bill, a school or other organisation is entitled to make that check if it wishes to do so.
With regard to people who are not monitored, the hon. Member for Mid-Dorset and North Poole (Annette Brooke) and I mentioned the example of someone falling ill in the street, and a person giving them emergency first aid. If someone is not monitored, they are not part of the scheme, and may never have applied to be part of it, so there is nothing to prevent them from administering first aid or helping in an emergency. It would be different if they did so frequently, as a job—
Tim Loughton: If they were ambulance chasing.
Mr. Dhanda: Yes, or if they took such action regularly as a volunteer. That is the key difference, so I hope that I have helped to explain the situation.
Amendments made: No. 29, in page 4, line 21, at end insert—
‘(4) For the purposes of this section, Schedule 3 is modified as follows—
(a) in paragraph 1, sub-paragraphs (1)(b) and (3)(a) must be disregarded;
(b) in paragraph 6(1), the words “if it is carried out frequently by the same person or the period condition is satisfied” must be disregarded;
(c) in paragraph 6(4), paragraph (a) must be disregarded.’.
No. 30, in page 4, line 21, at end insert—
‘( ) In relation to an offence committed before the commencement of section 282(3) of the Criminal Justice Act 2003 (c. 44), the reference in subsection (2)(b) to 12 months must be taken to be a reference to six months.’. —[Mr. Dhanda.]
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