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they are out of date the day after they are sought and they do not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
4Appeals 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
5Regulated
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
3Regulated
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. 6
pm 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.
| 
