Safeguarding Vulnerable Groups Bill [Lords]

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Mr. Dhanda: As I said to the hon. Member for Basingstoke earlier, I am happy to provide a written update on IMPACT. However, I can assure the hon. Gentleman that the working of the vetting and barring scheme is not dependent on the roll-out of IMPACT. There are existing CRB processes that are adequate for the scheme, although IMPACT will obviously help to improve matters.
On Scotland and Northern Ireland, clause 3 provides that a person who is on one of the barred lists or on specified barred lists in Scotland and Northern Ireland is also barred from regulated activity relating to the relevant group in England and Wales. The clause ensures that the scheme will take account of similar lists elsewhere in the UK. That will help prevent anyone who has been listed anywhere in the UK as a risk to children or vulnerable adults from gaining access to work with those groups. I therefore commend clause 3 to the Committee.
Tim Loughton: I hope that my queries will get a slightly more detailed response than that, and that if the Minister is going to write to me he will be able to answer the specific points that I made. He said that the scheme is not dependent on IMPACT and that the existing CRB checks are adequate. Clearly, they are not. Some of the people who were caught in January and who were the cause of the legislation being instigated had committed offences that had not been properly investigated and that were not subject to CRB checks. They were still dealing with children in a neighbouring authority, including in my own constituency. The problem with CRB checks is that they are out of date the day after they are sought and they do not become effective and useful until somebody has actually committed an offence and has become the subject of a CRB check. Lots of people are caught in between.
Mr. Dhanda: I do not know the exact circumstances of the hon. Gentleman’s constituency, but the example he gives might well have concerned people on the sex offenders register, and the lack of cross-reference with List 99. There is also a vulnerable children’s list. The whole purpose of the vetting and barring scheme is to amalgamate those registers and lists into two: a barred list to preclude people from working with children, and a list to prevent them from working with vulnerable adults, with cross-referencing between the two.
I accept the point about IMPACT being of great assistance. It is a point that the Minister for Children and Families made on Second Reading in answer to a question posed by the hon. Gentleman. As I said, I am happy to give him an update on IMPACT, but the establishment of the scheme is not dependent on it. I do not want to comment on the circumstances in his constituency, but issues in some parts of the country were about the interrelationship with the lists, which is what we are clarifying in this process. I made clear on Second Reading some of the changes in Scotland and Northern Ireland. A process in Scotland will mirror our operation here, and likewise in Northern Ireland. The schemes will link up to ensure that, if people were barred in one place, they would be barred in another. With that explanation, I hope that members of the Committee are satisfied that the clause can stand part of the Bill.
Question put and agreed to.
Clause 3 ordered to stand part of the Bill.

Clause 4

Question proposed, That the clause stand part of the Bill.
Annette Brooke: I want to make just one point about the clause. It is pleasing that the grounds on which an appeal might be made have been expanded slightly. Of course, the appeals apply only under the three categories other than the automatic bar. An appeal can be made on the basis of a fact, which is to be welcomed. It sounds as though it will produce a fairer result. At least it gives some feeling that justice will be applied. However, if facts emerge after the tribunal hearing, will it be possible to appeal on the grounds of new evidence? When the Minister sums up, will he deal with that question?
Mr. Dhanda: I shall come to that point in a moment. Clause 4 provides for an appeal to the Care Standards Tribunal on a point of law or a point of fact, as the hon. Lady said. A decision of the IBB to include or keep someone on the children or vulnerable adults list was a concession made in another place. Subsection (1) sets out the decisions against which individuals can appeal. They may not appeal against an automatic bar under paragraphs 1 and 6 of schedule 2. Under subsections (2) and (3) of the clause, an appeal can be based on points of law and findings of fact. However, it is important for me to say that an individual cannot appeal against the judgment of the IBB when the facts or law are not in question. When someone has accepted a caution or been found guilty of a crime, for example, we are talking about periods of 10 years or five, if that person happens to be under the age of 25, before the person may apply for a review of his inclusion on a barred list.
Subsection (4) provides for the tribunal to give permission for an appeal. Subsections (5), (6) and (7) set out the actions that a tribunal can take. It may confirm the IBB decision, it may remit the case to the IBB for a fresh decision, it may set out new findings of fact for a fresh IBB decision, or it may direct the IBB to remove the individual from the list. Subsection (8) allows the Secretary of State to make regulations specifying the procedure of the tribunal and, if appropriate, the award of costs by the tribunal.
Subsection (9) provides that the Court of Appeal will hear appeals on points of law in respect of a tribunal decision. It is of great importance that the right to appeal on points of law should generally be available so that the courts can give guidance on the proper interpretation of the law and avoid inconsistent rules by tribunals. The right to appeal on points of fact ensures that, when a mistake has been made in findings of fact, there is a proper opportunity to revisit the decision. I hope that my explanation has satisfied the hon. Lady. I recommend that the clause stands part of the Bill.
Question put and agreed to.
Clause 4 ordered to stand part of the Bill.

Clause 5

Regulated activity
Question proposed, That the clause stand part of the Bill.
Mr. Dhanda: Clause 5 provides that regulated activity relating to children and vulnerable adults will be set out in schedule 3. Regulated activity is a key term in the Bill. It is activity that will be prohibited for an individual on a barred list. Broadly speaking, it represents work involving close contact with children or vulnerable adults.
The clause will allow the Secretary of State to amend the definition of “regulated activity” by order, providing the flexibility to respond to changes in the work force and in how services are provided. Clause 46(3) provides that any order made under clause 5(3) to vary the meaning of regulated activity must be subject to the affirmative resolution procedure. The definition is key to the scheme. I commend the clause to the Committee.
Question put and agreed to.
Clause 5 ordered to stand part of the Bill.

Schedule 3

Regulated Activity
Annette Brooke: I beg to move amendment No. 112, in schedule 3, page 42, line 33, leave out sub-paragraph (b).
The Chairman: With this it will be convenient to discuss the following amendments: No. 125, in schedule 3, page 42, line 38, leave out sub-paragraph (a).
No. 126, in schedule 3, page 46, line 34, leave out from ‘adults’ to end of line 35.
No. 127, in schedule 3, page 47, line 15, leave out sub-paragraph (a).
Government amendments Nos. 146 to 148.
Annette Brooke: I shall address only amendments Nos. 112 and 113. It is a long string of amendments, and I want to concentrate on our two amendments. They are quite complex but nevertheless important.
The amendments seek to address the concerns that I mentioned on Second Reading about the definition of “frequency”. I have great concerns about it. I have read closely the notes issued by Lord Adonis, and the more I read them, the more I become convinced that there are potential loopholes. If you will forgive me, Mr. Martlew, I will go through the matter in some detail, because I sincerely believe that there is a big potential loophole in the protection of vulnerable people.
It is important to consider the two amendments together and to see the need for flexibility, particularly in monitoring. A consequence of the Bill for flexibility in monitoring is that it could impose a huge administrative difficulty on organisations for one often limited contact. I understand that that is why the clause includes the rather tortuous “frequent and occasional”—to get the right balance so that it does not impose too much bureaucracy. Proportionality and balance are an issue, but if the loophole is present, one would have to err at the end of the day toward less flexibility. I shall consider some examples of what could happen.
It is possible, for example, that a barred individual who has harmed children and poses a risk could get access to regulated activity lasting less than a week. That is the main problem. As I read the suggested regulations, “frequently” could mean once every six months or once a month, but it must be less than a week. If that is accepted and the word “frequently” is included in the clause, I envisage that a holiday play scheme lasting five days could pose a real danger.
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I have mentioned unregulated crèches, which again, for the most part must be unregulated. Nevertheless, if a crèche facility were provided at a week-long conference somebody could get quite involved with some of the children. I was particularly concerned when I thought about a youth group going away for a five-day camp. As far as I see it, the definitions here would allow a person who is on the barred list to be involved. It is a question of how much monitoring there is. I am not sure that I would be happy if someone on the barred list went away on a youth camp for five days. I hope that the Minister can be clear about the grouping of days within a week because that is where the concern arises.
I should like to move on to the definition of an occasional basis, which comes under clause 10, and whether a regulated activity provider may use a person not subject to monitoring. There is a problem again because, under the Bill, it is an offence for a barred individual to engage in regulated activity in a regulated position. However, more latitude is given to regulated activity providers who are not required to carry out a check under clause 10(4) when the contact is for less than a week or for less frequent intervals than once per month. That seems rather bizarre, because it is clear that a dangerous banned adult, let us say a paedophile who wishes to access children in certain settings, could exploit the loophole for the monitoring of posts of short-term duration. That might even be in the setting of a children’s home.
The two amendments are meant to be taken together. In a sense, the second amendment on the use of the word “occasional” is trying to loosen things up slightly. I should like the Minister to concentrate on our first amendment, which removes the term “frequently”. By taking a very drastic step, we would remove the possible loophole altogether. I hope that the Minister can look at this again because there is probably a way of closing that loophole in a less bureaucratic manner. I want to be assured that what I am pretty certain is a loophole is closed before the Bill reaches the statute book.
Mrs. Miller: I wish to speak to amendments Nos. 112, 125 and 127. I may also comment on some of the Government amendments too. It does not often happen, but great minds think alike on this. The Liberals and the Conservatives tabled exactly the same amendment in amendment No. 112. That perhaps shows the strength of feeling on this matter. Certainly it was an issue that was debated at length in the other place. Amendments Nos. 112, 125, 126 and 127 would remove the concept of “frequently” from the Bill. Ultimately, the amendments have been tabled to probe further on who the Bill seeks to monitor. Given the strength of feeling on Opposition Benches and among other interest groups, it would be interesting to hear the Minister’s response.
Before the Bill comes anywhere near the statute book, the situation with regard to who should be CRB checked is less than satisfactory for a number of organisations. I know from speaking to teachers in my constituency that they find it difficult to understand the concept of “regular” in connection with those who need to be CRB checked. The current situation causes concern, which was reiterated in the consultation on the matter.
We all understand the Government’s intention in trying to grapple with the concepts of “frequently” and “occasionally.” It is interesting that the Liberals and the Conservatives have come up with the similar solution—it is worthy of the Government’s further consideration—of removing the concept of activities carried out “frequently” and encouraging consideration of the word “occasionally.” I tabled an amendment that would have enabled us to examine further the use of that word, but unfortunately it was not selected. The matter should be considered with this group of amendments to understand fully our thinking.
The probing amendments would remove the word “frequently”. The amendment that was not selected would have enabled people and employers to define what constituted occasional activity in a particular setting. We felt that that was an interesting concept to play with. The Minister jokingly asked me on Second Reading—or perhaps he was not joking—to define “frequently” for him, which we have found difficult to do. The debate in the other place and the subsequent communication from Lord Adonis showed that a number of enormous loopholes are created by such definitions. I think of my own children, who are in a holiday club lasting for five days. It falls into the category that the hon. Member for Mid-Dorset and North Poole mentioned and, under the Bill, the people running it would not need to be checked at all. That is a concern.
The amendments are intended to challenge the Government on whether we need the word “frequently” in the Bill. Would it not be simpler to remove it so that monitoring relates to the extensive list of settings and positions in the Bill and so that it is left to local employers, whether schools, youth clubs or whatever, to identify exceptions to the broad need for monitoring and decide when they need exemptions for people who occasionally help out?
Within the many settings to which the Bill will apply, the definition of “occasional” could vary. In some organisations, an individual working with children for five days alongside a member of staff would not cause any problems. As a school governor myself, I have seen instances in which outside organisations have come into the school without ever being left in sole charge of the children with whom they come into contact. There will be activities that do not need to be monitored, but equally there will be circumstances, such as those outlined today, that would fall foul of Lord Adonis’s definitions of “frequently” and “occasionally.” Those terms do not help to clarify the situation.
For clarity and for the record, I say that the amendments that we are considering are not the full set of amendments that we tabled. We recognise the need for people to go into monitored settings occasionally, but there should be an opportunity for local employers to decide for themselves whether that should be monitored.
I shall give the Minister another example of the need to be aware of the implications of the Bill. There is a very successful community school in my constituency that has an open access policy for parents. How should its head teacher interpret the Bill? Will parents going on to the campus of the school regularly—on more than five consecutive days or more than once a month—need to be monitored? According to the Bill, it appears that they would need to monitored, although I am not entirely sure that that is the intention, nor is it absolutely necessary.
The intention behind the amendment is to consider the issue from the point of view of those who have to implement the legislation on the ground—in our schools and our playgroups, and in other settings as defined in the Bill—to ensure that they have a clear idea of who should be monitored and that they are empowered to identify those groups that feel should occasionally be allowed within the school. However, we would force governing bodies and other groups to think that through for themselves. If the Minister could give us a positive response on those issues, it would be a most welcome addition to the Bill.
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