Safeguarding Vulnerable Groups Bill [Lords]

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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.
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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 7

Barred 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.
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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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