The
Parliamentary Under-Secretary of State for Health (Mr. Ivan
Lewis): I welcome you to the Chair, Mr. Conway.
This is the first time that I have spoken in Committee with you in the
Chair, and it is good to see you.
This debate is sensible and
important. The concepts of direct payments and individual budgets are
at the heart of public service reform, empowering individuals with far
more control over the services provided for them. It is right to make
the point, as did the hon. Member for East Worthing and Shoreham (Tim
Loughton), that that will be a significant part of how services are
provided in future. We
must strike the right balance. We must ensure that people receive
appropriate protection and safeguards without undermining the principle
of empowering them by giving them more control and choice. We must not
place onerous and undue requirements on them but must give them every
assistance and support to ensure that they can employ anybody they
choose, either on their own behalf or on behalf of a family friend or
relative. Individual
budgets and direct payments will be a greater part of the mainstream
care system than they have been. We are running 13 pilots at the moment
for individual budgets, and we want to learn from those before we
decide whether to roll out individual budgets as a national option or
an entitlement for
people. 9.15
am We should be
trying to incorporate into those 13 pilots, which are at an early
stage, a means to ensure that people understand their right to seek
information and make the necessary checks so that they have the maximum
protection. During those pilots, I shall certainly look at lessons that
can be learned. On
amendment No. 105, we do not believe that it would be appropriate to
bring a family member or friend within the definition of a regulated
activity provider. We should enable and assist relatives and friends to
have the right to make the necessary checks, but it would be
inappropriate to oblige them to do so by
statute. On amendment
No. 106, we agree that all individuals in receipt of a direct payment
should be aware of the vetting and barring scheme, and of their right
to engage with it. I shall try to assure hon. Members. In another
place, we gave a commitment to introduce a Government amendment placing
a duty on local councils to inform direct payment recipients of their
right to engage with the new scheme. As hon. Members are aware, we have
tabled that amendment, and either I or the Under-Secretary of State for
Education and Skills, my hon. Friend the Member for Gloucester
(Mr. Dhanda), will speak to it later. That should meet the
intention of the amendment tabled by the hon. Members for Mid-Dorset
and North Poole and for Brent, East (Sarah
Teather). In
addition—I hope that this gives further assurance to the
Committee—we are exploring how people who require help in making
checks can be assisted by local authorities. We envisage direct payment
support services playing a key role in that area. The new scheme will
allow all private, domestic employers, including direct payment
recipients or their nominees, to check an individual’s status in
the scheme online, or via other means. At this stage, we do not think
that it is necessary to put a requirement on local councils to do that
on an individual’s behalf.
On amendment No. 107 relating to
criminal offences—I do not think that the hon. Member for
Mid-Dorset and North Poole referred directly to it—the Bill
provides already for a number of offences, where appropriate. We are
not convinced by the argument for specific or additional offences in
respect of direct payments and individual budgets. Therefore, although
it is right that we send a strong message about the consequences of
breaching the law, to introduce specific offences relating to those
issues is neither necessary nor
desirable. I like to
think that we have given way significantly since the debate began in
the other place. We are all learning as the concept of individual
budgets and direct payments develops and we will need to reflect on the
lessons learned. However, I think that the Bill just about strikes the
right balance between enabling and supporting people to have access to
the relevant vetting process and procedures and not placing an
inappropriate duty on them. It will give them more freedom and control
over the choice of care provided. On that basis, I ask hon. Members not
to press their
amendments.
Annette
Brooke: I thank the Minister for his comforting words. At
this stage I shall be happy not to press the amendments. However,
although I did not refer specifically to amendment No. 107, I do think
that, if we consider the matter important, it needs to have some legal
force. For example, in children’s legislation, we had to clearly
make a person responsible within a local authority. In this area, we
have seen so much buck-passing over the years that, if we consider it
to be of importance, we must be clear that there is a designated person
who has
responsibility. Amendment
No. 107 follows if we accept the logic of amendment No. 106 that we
cannot leave direct payments out of the whole scheme. We must bring
them in, as the Minister says, in such a way that they are not a burden
and do not upset long-standing arrangements, but give the necessary
protection. I may revisit the matter, but given the Minister’s
comments, I beg to ask leave to withdraw the amendment.
Amendment, by leave,
withdrawn. Amendment
made: No. 144, in clause 6, page 3, line 35, after
‘(m)’ insert ‘,
(ma)’.—[Mr. Ivan
Lewis.] Clause
6, as amended, ordered to stand part of the
Bill.
Clause
7Barred
person not to engage in regulated
activity Mrs.
Maria Miller (Basingstoke) (Con): I beg to move amendment
No. 136, in clause 7, page 4, line 14, leave out subsection
(3). The amendment was
originally intended to be read alongside another amendment, which
unfortunately was not selected. We have made the Minister’s
office aware of that, so that he understands the tenor of this debate.
The amendment seeks to remove from the Bill the defence of an
individual not knowing that they were barred. We shall seek to add a
further amendment
to ensure that the clause makes it clear that it is an offence for an
individual intentionally to mislead an employer about their barred
status. As we know,
the clause creates an offence, punishable by up to five years’
imprisonment, of seeking to engage in regulated activity if barred. It
also allows for an individual to put forward a defence of not knowing
that they were barred from regulated activity, or that they could not
reasonably have been expected to know that they were barred. It is
clear from those particular provisions that it is not the
Government’s intention to criminalise people who may have been
barred but for whatever reason are not aware of that
situation. This debate
was had in the other place but we feel that it is important to continue
it. The reason why we tabled the amendment is that a broad scope of
regulated activities is included in schedule 3, meaning that many
thousands of people who are not involved directly in teaching or caring
will fall under the schedule’s provisions. It is easy to imagine
a situation where an individual who has been barred may not be fully
aware of the wide range and extent of the activities that are covered
in the barring process.
The vetting procedure would,
for the most part, ensure that any of those barred people would not be
able to work face-to-face with any vulnerable groups covered in the
Bill. As the Minister will be aware, the criminal act includes seeking
or offering to engage in activity from which an individual is barred;
it is not only working with vulnerable groups or children, but offering
or seeking to engage in that employment. It is important that we focus
on that point. As I
said, this is an important issue that was debated at length in the
other place. Indeed, Lord Adonis provided clarification on Report on
the issue. In underlining the need to address it, he set out quite a
lot of detail on how the procedure will work, particularly on how
barred people will be informed of their status. The system sounds
robust, but its complexity—the number of activities that will be
subject to monitoring and barring—means that more discussion is
needed. The Minister
has assured us on a number of occasions in the debate that there will
be a great deal of communication about the Bill with those who are
barred and with the employers of those who will be monitored or subject
to barring. Our concern is that the Bill’s complexity means that
people could put themselves forward for employment without any
intention whatever of undertaking a criminal act, and that they will be
criminalised and subject to quite severe penalty. The amendment, hand
in hand with subsequent amendments that would include a requirement of
intention to mislead, is a way of closing what we feel is a loophole in
the Bill. I look forward to hearing from the Minister whether any
further thought has been given to the issue since the debate in the
other place.
Sarah
Teather (Brent, East) (LD): I heard the context of the
hon. Lady’s proposed amendments and I am sympathetic to her
sentiments. In his reply, will the Minister explain why the Government
decided to draw the clause so broadly that individuals will have to
prove that they did not know, rather than prove that they
were acting misleadingly? The narrower definition would be much more
likely to criminalise the people that the Government are seeking to
criminalise, and would avoid catching many others who would not
otherwise be caught under the umbrella.
The Government obviously intend
to protect vulnerable children and adults rather than criminalise such
other people, but there is already plenty of other legislation with
that purpose, and it is inappropriate to criminalise those who, as the
hon. Lady said, may not understand the full scope of regulated
activity. They may understand that they have been barred from one
activity but, as we discussed on Tuesday, there is difficulty in
defining exactly what is meant by regulated activity and it is
perfectly conceivable that a barred person may not appreciate that
other forms of activity may bring them into the category that would
cause them to be criminalised. Will the Minister therefore say why the
Government decided to draw the provision so broadly and whether they
might consider an amendment on Report that would narrow the
definition?
Mr.
Dhanda: First, it is important to say that I entirely
understand what the hon. Member for Basingstoke (Mrs.
Miller) said about intentionally misleading. We are at one on
that—it is the Government’s intention that it be covered
in the Bill. The amendment relates to the clause that will make it a
criminal offence for a barred person to engage, seek to engage or offer
to engage in a regulated activity. However, it is a defence to prove
that the person did not know, and could not reasonably have been
expected to know, that he was barred. The amendment would remove the
defence. Paragraph 12
of schedule 2 imposes an obligation on the IBB to take all reasonable
steps to notify a person that he is barred. Clearly, it would be unfair
to penalise individuals who did not know that they were barred because,
despite best efforts, the IBB had been unable to contact them. We hope
that such situations are kept to a minimum, but removing that defence
would criminalise people unreasonably. We do not seek to do that;
hence, we oppose the amendment. However, underlying the amendment is a
concern to ensure that barred individuals who apply for work without
realising that such work is a regulated activity are not criminalised.
That also covers what the hon. Member for Brent, East was trying to
say. 9.30
am
I understand hon.
Members’ concern, and we do not wish to criminalise individuals
unfairly. However, we will ensure that the scheme is well publicised
and we will issue guidance to provide further detail about what type of
activity will be a regulated activity. Furthermore, when an individual
is informed that they are barred, the intention is that the types of
activity for which they are barred will be explained to them.
Sarah
Teather: Given the difficulty that we had on Tuesday
defining exactly what regulated activity was, does not the Minister
concede that it would be perfectly logical for somebody else to be
unable to appreciate the full extent of the activities from which they
may be barred?
Mr.
Dhanda: I take on board that point but, at the same time,
the hon. Lady must understand the situation when, for example, a
predatory paedophile applies to work in a school. Many people in
regulated activities are part of the school work force. That is a
simple example of why we need the provision. People may try, perhaps
deliberately, to get into those workplaces, and the Bill exists, so
that we can err on the side of caution and protect children. That is a
relevant part of the issue.
Sarah
Teather: The point that the hon. Member for Basingstoke
and I made was that, if we redrafted the clause so that it specifically
ruled out behaviour that intended to mislead, such as applying in a
false name or the Minister’s example, it would capture those
individuals but not others who did not intend to act
criminally.
Mr.
Dhanda: As I have already said, we do not wish to
criminalise those who genuinely do not know or have not been informed,
but that is a matter for the police, who will have to consider the
evidence. The judgment is best made by them, rather than us, because we
would have to come up with a prescriptive list of circumstances, to
which the hon. Lady seems to allude. We cannot do that, and it is more
effective to rely on the police to do their job. The right thing to do
is to err on the side of caution, and on the side of those vulnerable
adults and children who need protecting.
We intend that there should be
a widespread communications campaign to ensure that all groups affected
by the Bill know their new responsibilities and consult with
stakeholders on the most appropriate methods for information
dissemination. We will use a range of media, including the trade press,
websites, newsletters and practitioner workshops and seminars, to get
the message across.
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