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|Session 2007 - 08|
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Public Bill Committee Debates
Draft Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria) (Transitional Provisions) Regulations 2008
The Committee consisted of the following Members:
Mark Oxborough, Committee Clerk
attended the Committee
The following also attended, pursuant to Standing Order No. 118(2):
Third Delegated Legislation Committee
Tuesday 25 March 2008
[Joan Walley in the Chair]
Draft Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria) (Transitional Provisions) Regulations 2008
The Parliamentary Under-Secretary of State for Children, Schools and Families (Kevin Brennan): I beg to move,
That the Committee has considered the draft Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria) (Transitional Provisions) Regulations 2008.
It is a great pleasure to serve under your chairmanship for the first time in a Committee, Ms Walley. These regulations arise out of two elements of the legislation. First, the Safeguarding Vulnerable Groups Act 2006 created a new Independent Safeguarding Authority, which is referred to in the legislation as the independent barring board. Secondly, the 2006 Act established a scheme to prevent those who pose a risk of harm to children or vulnerable adults from getting access to them through their work. As part of that scheme, we want the Independent Safeguarding Authority to ensure, when its new barred list comes into effect, that those persons who are currently barred from working with children and vulnerable adults will continue to be barred if it deems them to pose a sufficient risk.
To support the debate, I published an information note for hon. Members, explaining that process and the future proposals that relate to the regulations, and I hope that that has been helpful. Members will be aware that both the Joint Committee on Statutory Instruments and the Merits of Statutory Instruments Committee have considered the regulations, and neither thought that the Houses attention should be drawn to them.
The regulations will determine those cases in which individuals will not have the right to make representations about their inclusion on the Independent Safeguarding Authoritys new barred list. Such individuals have perpetrated one or more of the most serious high-risk offences against children and vulnerable adults. That establishes that they pose a significant risk of harm to those groups, and as a result, they are automatically barred, with no right to make representations in support of their case. In relation to children, the regulations build on those that lead to automatic barring without the right to make representations currently in force in relation to list 99.
There has been much consideration and extensive consultation on which offences should lead to automatic barring, but the regulations under consideration today relate solely to the inclusion on the new lists of those individuals who are already barred under existing arrangements. Those individuals who are already barred but have the right to make representations in support of their case can do so under the transitional provisions
Mr. Humfrey Malins (Woking) (Con): Will the Minister say a little more about the right to make representations? Although one understands that those who pose a significant risk to vulnerable people and children might not have the right to make representations, when they come to be releasedI speak with my judicial hat onfrom prison after parole, it is sometimes on the basis that that risk has disappeared. Would they be prejudiced after that or, if the authorities have judged that they are no longer a risk, would they have any chance in this regard?
Kevin Brennan: The hon. Gentleman speaks with great experience on such matters, and he is absolutely right. Of course, we are talking about those individuals who are already barred without the right to make representations. Those individuals will have had, as part of their conviction and the judicial process that they have been through, a date set at some time in the future when the bar on them working with children or vulnerable adults might be reviewed. That will be unchanged by todays regulations, which, in a sense, simply passport those people into the new scheme. We will make a full set of prescribed criteria regulations on the Independent Safeguarding Authority taking barring decisions on new cases. Those will be considered separately under the affirmative procedure in the near future.
If the regulations are approved, inclusion on the new list for the most serious offenders will commence in April. That will represent the first step in establishing the new scheme. I am sure that the Committee will agree that there is nothing more important than protecting children and vulnerable adults from those who pose a serious threat to them. It is the responsibility of us all, including the Government, to do everything that we can to protect such people. I am sure that hon. Members will have questions about the regulations, but for the time being, I commend them to the Committee.
Mrs. Maria Miller (Basingstoke) (Con): It is a pleasure to serve under your chairmanship, Ms Walley.
I thank the Minister for his clear and concise opening. There was a great deal of debate when the Safeguarding Vulnerable Groups Act 2006 was considered at its various stages in the House. Those of us who were involved know that there was a great feeling that the required detail was not in the Act and that Committees such as this would be very important in fleshing out the intentions behind it and how it would work in practice. The Under-Secretary of State for Communities and Local Government, the hon. Member for Gloucester (Mr. Dhanda), who was the Under-Secretary of State for Education and Skills during the passage of the 2006 Act, acknowledged the importance of regulations. I hope that the Minister will allow me to pose a few questions to ensure that we have a full and clear understanding of how the regulations will work in practice. I thank him for his letter of 20 March because it helped to side-step some of the questions that I had.
As the Minister said, the regulations are tightly focused on migration to the new system for those who are currently restricted from working with children and vulnerable adults as a result of committing an offence deemed so severe that they were barred without the right to make representations as to their removal from the list. That is to be maintained by the newly named Independent Safeguarding Authority. Lord Adonis remarked in the other place that there will be about 14,000 migration cases, as they are termed. Of those, only some hundreds will be migrated to the new system without representation. We are dealing with only a handful of cases.
However, the implications of the regulations are far broader. According to the explanatory notes issued by the Government to clarify the regulations,
the basis on which a person who is included in the new lists under the TPO will be denied the right to make representations will
for reasons of consistency
be as close as possible to that on which people in future cases will be included in the barred lists automatically.
In short, the regulations lay the foundations for how future regulations will work. It is therefore important that we have a clear understanding of how the regulations will work in advance of further regulations.
I will raise four issues with the Minister, which I hope will cover some of the main questions that are outstanding. The first issue is about the impact of the regulations on those who will be transferred. As he said, there is nothing more important than ensuring the safety of children and vulnerable adults. The smooth transfer of this group of people to the new system is an important part of that. The regulations are about the administrative transfer and the migration of those names. The Safeguarding Vulnerable Groups Act (Transitional Provisions) Order 2008, S.I. 2008/473, makes it clear that those involved will continue to be covered by existing regulations until the new provisions come into force. Will he tell the Committee when that will happen?
As the Minister will know from reading the debates that we had when the 2006 Act was before the House, a number of new offences will come into play for the people affected by these provisions. In particular, it will be an offence to apply for a job involving a regulated activity, as detailed in section 7. As he knows, there is nothing in the regulations or the 2006 Act about how those who will be affected will be told about the implications for them and their future employment. Those changes will be important. It is surprising that there is no mention of communications either in the letter that the Minister so kindly sent to us or in the regulations, because strong undertakings were given in Committee that communication of the implications of the regulations was an important part of the process. Perhaps the Minister will take the opportunity presented today to tell the Committee how that will work in practice.
The second matter that I would like to raise is that of the offences included in the automatic barring list. The barring consultation report issued by the Government in November last year was incredibly useful. Some two thirds of those who participated in it agreed with the Governments proposed list of offences that would be automatically barred.
The Minister will also be aware that there was lengthy debate on the matter both here and in the other place. Indeed, on Second Reading of the Safeguarding Vulnerable Groups Bill, as it was then, in the other place, Lord Adonis specifically undertook:
In deference to our duties under the Human Rights Act...to have a shorter list than currently applies under the List 99 arrangements.[Official Report, House of Lords, 28 March 2006; Vol. 680, c. 756.]
However, the Government consultation report, in response to a number of questions on the matter, states:
Our proposals for automatic barring under the ISA scheme will include all the criteria which currently results in automatic barring under List 99.
There is obviously a contradiction in those two statements that would benefit from the Ministers clarification of the Governments position. Has there been a change of heart? Can he confirm the differences in the list of offences that he is putting forward? Given the statement that Lord Adonis made in relation to the Human Rights Act, can the Minister guarantee that the Government will not be involved in lengthy and expensive challenges to the Safeguarding Vulnerable Groups Act, if it is to proceed in the way that the consultation paper implies?
Furthermore, can the Minister explain the consistency of the Governments thinking, given that offences such as child prostitution and inciting child pornography apparently will not be included in automatic barring? It is important that there should be a clear and understandable approach to the offences included in automatic barring because it is a strong measure. I am sure that the Minister will want to clarify the situation.
The third issue, which I am sure that the Minister will be expecting me to raise, because I and the hon. Member for Mid-Dorset and North Poole have raised it on a number of occasions, is that of overseas workers. The Bill still appears to have a lack of architecture to deal with that significant matter. With regard to the remarks made by Lord Adonis in the other place, may I remind the Committee that 14,000 cases will be migrated, hundreds of which will be people who will be automatically barred? Given the lack of reference to relevant offences committed overseas, can the Minister guarantee that none of the 14,000 cases that will be migrated involve any relevant offences committed overseas? Will he confirm that there is therefore no provision in the regulation to deal with that eventuality and to assess whether the offences should warrant automatic barring without representation?
Michael Fabricant (Lichfield) (Con): Is it not the case that the principle of one-size-fits-all cannot apply to people coming from overseas, where the regimes in, for example, the United States, New Zealand or Israel are completely different from those in other countries or regions, such as Africa and possibly the far east, that are not quite so thorough?
Mrs. Miller: My hon. Friend makes an excellent point. Considering the number of people involved in working in important areas relating to children and vulnerable people, it is not a marginal matter, but a significant one.
I read in the notes from the labour force survey that some 20 per cent. of nurses working in the UK come
Overseas workers, and British citizens who have chosen to work overseas for a period of their career, play a vital role in a number of critical services that are delivered for children and vulnerable adults. I am sure that all hon. Members present will agree with thatit is the case in my constituency. Many of our care homes could not operate without the expertise and dedication of those workers, but we need a robust system that does not leave employers, or children and vulnerable adults, exposed to uncertainty and indecision.
When the issue was raised by my noble Friend Baroness Morris of Bolton in the other place, Lord Adonis risked giving the impression of complacency by focusing in his response on the work being done in Australia to try to ease the flow of information between our two countries. Just 1,000 nurses from Australia work in the UK, compared with 32,000 from Africa. Those are Office for National Statistics labour force survey figures. Just 9,000 teachers from Australia work in this country9,000 important teachers, but still 9,000versus 18,000 from the Americas. Perhaps we therefore need to consider the work that has been done to maximise the flow of information from other countries as well.
The Government have systematically failed to deal with the problems of vetting overseas workers. In Committee, they would not support Conservative amendments that would have given practical support to employers by highlighting that a monitored individual had worked abroad and that, as a consequence of the British system, monitoring could be incomplete. We also recommended a code of practice to support employers in the processes and procedures that could be put in place when employing an individual with an incomplete record. I remain disappointed that that has not been taken up. The then Under-Secretary of State for Education and Skills eventually conceded that that was an issue, and I hope that the Minister can tell the
Mrs. Miller: I accept your ruling, Ms Walley. I hope that the Minister can help the Committee to understand his work in that area.
The fourth and final issue is that of cautions. We on this side of the Committee remain concerned that individuals who have been cautioned will be included in the automatic barring list. I fully understand that, in law, accepting a caution is an admission of guilt. Is the Minister completely happy, however, that everybody
I refer back to Lord Adoniss remarks in the other place last week. The issue clearly caused concern in the Government. In his note on the Bill issued by the then Department for Education and Skills in April 2006, Lord Adonis clarified that although conditional cautions were not used for sexual offences, simple cautions were used for a wide range of sexual offences. As a result, the Government undertook to work with the police and the Home Office to ensure that the implications of the proposed arrangements are taken into account when cautions are issued. When the regulation was dealt with in the other place, Lord Adonis announced that the Association of Chief Police Officers would issue guidance. Can the Minister tell us what account forces will take of such guidance? It is not an insignificant problem.
Parliamentary answers have revealed that a large handful of cautions are issued for sexual offences each and every year. In the police authority area of West Mercia, 65 cautions were issued for sexual offences in 2005, which is the latest year for which figures are available. If we look at other areas, we will see that there are similar figures for cautions, such as 24 in the police authority of Cambridgeshire. That is not a small issueeach area has a handful of cases.
In his response, will the Minister tell the Committee how he will ensure that the new ACPO guidance is practised by all officers, and whether ACPO has consulted its members on how the new guidance will be implemented on the ground by officers dealing with those issues? Many of us in this room today have been involved from the start in the lengthy discussions over the 2006 Act. The Minister might be something of a newcomer, but he is a welcome newcomer to the 2006 Act, and I am sure that his clarity of thinking and his understanding of these issues will be important in ensuring that the regulations are as helpful and unambiguous as possible.
Annette Brooke (Mid-Dorset and North Poole) (LD): It is a pleasure to serve under your chairmanship for the first time, Ms Walley. I also thank the Minister for sending us the detailed note, which was indeed helpful.
Nothing can be more important than safeguarding children and vulnerable adults, and this issue is close to my heart. However, as the hon. Member for Basingstoke said, throughout our consideration of the 2006 Act we had a number of concerns, which I should like to touch on. I shall be brief on matters outside the measures before us, but I want to reiterate the importance of communication. I have received representations from constituents who are alarmed at what might be required of people, so I should like to know what progress has been made on a communication strategy. There is so much responsibility on employers and potential employees
I endorse the points made about overseas workers. I do not think that there is a quick and easy solution to that issue, but we must not lose sight of it, because there is so much potential for damage, and that would totally undermine these extensive measures. Therefore, I simply ask the Minister to ensure that we continually address the problems that arise in trying fully to vet overseas workers coming to work with vulnerable groups in this country.
The issue that is before us today was of great concern, certainly to Liberal Democrats, and I have briefly looked back at our debates on the matter on Report and Third Reading of the 2006 Act. The concerns centre on the idea of barring without representation, because there is something about that that seems rather wrong in our country. However, the regulations merely transfer people who are already barred, and I assume that those cases have been looked at closely.
Particular concern arises when we have a situation where someone has accepted a caution. I can understand that quite a few people will have accepted cautions and are on the list. For example, we know that Operation Ore threw out so many cases that the only practical move forward was to deal with cautions. Nevertheless, those issues had to be dealt with. When looking at the list of offences, it would be pretty horrendous to think that someone would receive a caution for any of the offences listed in that category today.
What is the general approach within the criminal justice system with regard to the whole system of issuing a caution? Obviously that covers the whole criminal justice system; it cannot be right to think about giving a caution in cases of the rape of a child, for example. None of the offences where a caution should be given resonate with the general public. We know that they were given in the past, because the debate on the Act threw up cases where, for example, there were teachers who had cautions but who were teachingone case was very near my own constituency in Bournemouth. It was right that that issue was considered then.
Straying slightly beyond that point, two Secretaries of State ago, the right hon. Member for Bolton, West (Ruth Kelly), was, I believe, left with the difficult situation of reviewing many cases about people whom civil servants had recommended did not need to go on the sex offenders register.
The Chairman: Order. I hope that the hon. Lady will confine her comments to the regulations that have arisen out of previous discussions in this place.
Annette Brooke: I promise that I will do so quickly. For this measure, it would be helpful to know what progress is being made in the Department for Children, Schools and Families in reviewing those back cases. Some of those people should come forward to be on the Independent Safeguarding Authority. There has been a review, but outside of Government, I do not think that anybody knows the outcome of it and there are concerns about people who were cleared in the past but would not be cleared under todays measures, who might be teaching or working with vulnerable adults. I hope that I have demonstrated the relevance of the
My final concern looks to the future. When we considered the idea of barring people without representation, we had a list of offences that nobody could quarrel with. However, in agreeing that under the affirmative resolution, it was obviously impossible to amend the list. I do not want to amend the list before us, but the next stage will bring new cases. The Minister said, I believe, that subsequent criteria will be brought forward through the affirmative resolution process, and I should like that point confirmed. It is unclear how much movement there will be in the future from the offences before us today, and as we add more, new people to the list. Clearly, we should expect some new offences in this area due to all the legislation.
Let me be clear. My concern, and the amendments that I tabled on Report, particularly related to people given cautions against what are effectively unknown offences, because of the way that the Bill was dealt with. We can, perhaps, trust the present Government, but we do not know how such power could be used in the future. As we move to the next stage, I want to know that there will be a full debate about all the criteria, if they are changed at all. Returning to that important point, I want to ask the Minister what engagements he will have with the whole criminal justice system about the possibility of cautions being given for any of the horrendous offences mentioned today.
Kevin Brennan: I thank the hon. Members for Basingstoke and for Mid-Dorset and North Poole for their contributions. They have a great deal of experience, having been involved in the Bill from its beginning. However, hon. Members will be glad to know that, even for nostalgic reasons, I will not be tempted to go back over all the things that were discussed in the Bill. I will try to focus on todays regulations, while being as helpful as possible to hon. Members in relation to the issues raised.
The hon. Member for Basingstoke referred to four different issues in her remarks, including the impact on those being transferred, the offences in relation to overseas workers and cautions. The hon. Member for Mid-Dorset and North Poole also raised a number of points, so I shall try to deal with them in turn.
With regard to the impact on individuals, those individuals concerned will be notified by the Independent Safeguarding Authority about their inclusion on the new list and the implications of that. Of course, it is already an offence for barred individuals to seek employment with vulnerable groups, and they should be aware of that if they are already barred.
With regard to overseas workers and overseas offences, those already barredwith whom the regulations dealwere barred under the existing statutory regime, which allows barring to take place on the basis of an offence committed abroad. I have said that we will come forward with further regulations at a later date, when some of those matters can be discussed in more detail. We will ensure that barring can take place on an equivalent basis when we lay the full set of regulations before the House. I will not attempt to debate that today, but that will of course be relevant at that time.
Mr. Malins: I am listening carefully to what the Minister is saying. In relation to workers from the EU, is there an absolutely cast-iron process to ensure that there is notification when an EU worker comes to this country by right and has a similar conviction, perhaps under a different criminal justice system?
Kevin Brennan: May I come back to that point in a moment? I intend to deal with the point about the EU later in my remarks and will answer the hon. Gentleman then. If he wishes to do so, he can return to the matter.
Mrs. Miller: Do I take it from the Ministers remarks that none of the current 14,000 migration cases fall into the category of offenders who have offended overseas? Will he address that point later?
Kevin Brennan: I am not in a position to say that at this stage. Perhaps I can give an explanation in relation to the offences. All overseas equivalent offences will be captured in the same way as UK offences. All other relevant information, regardless of origin, will be considered when making a barring decision. We are exploring those reciprocal arrangements with various countries for sharing information. That obviously includes the EU, but other countries as well.
The hon. Lady mentioned Australia. I understand that that was given as an example, but it is not the only instance and, to answer the point that she made in her speech, there is certainly no complacency in relation to that matter. Information sharing with other countries for safeguarding has a high priority. My right hon. Friend the Home Secretary and the Under-Secretary of State for the Home Department, my hon. Friend the Member for Hackney, South and Shoreditch (Meg Hillier), are also taking a close look at that matter and are currently discussing the issues with their counterparts in Europe.
We have signed the Council of Europes convention on the protection of children against sexual abuse and exploitation, which recognises the need to share information among member states for child protection purposes. We welcome the report recently issued by the National Society for the Prevention of Cruelty to Children, Protecting children from sexual abuse in Europe: Safer recruitment of workers in a border-free Europe, which argues for the closer co-operation to which we are very much committed. We agree that there is a need for further action in that area, but the Government certainly have it as a high priority and we take it very seriously indeed.
With regard to cautions, which were raised by the hon. Members for Basingstoke and for Mid-Dorset and North Poole, of course cautions for the type of offences that we are discussing today are only given in exceptional circumstances. However, there might be a case in which a witness, for one reason or another, is not able or willing to give evidence in court, and the evidence available might be judged insufficient to gain a conviction. Under those exceptional circumstances, it is better if the perpetrator can be persuaded to accept a caution, which is an admission of guilt and allows them to be barred. The other possibility is that they would be acquitted in court for lack of evidence from a
I understand the point being made, however, so I shall describe some of the safeguards being put in place to ensure that people understand what is meant when accepting a caution. The police must first have sufficient evidence to issue a caution. Current guidance requires a clear and reliable admission of an offence by the offender, which has to be corroboratedit is not good enough just for them to admit to an offenceby other material or significant evidential fact. The offenders acceptance of a simple caution is a means of disposing of the offence. The principle of auto-barring, as a result of cautions, is not new, and does not come into force as a result of the regulations. It is a feature of the amended list 99 regulations, which came into force on 28 February 2007. There is already an impact beyond that and other current schemes if someone accepts a caution, because, of course, it will appear on a Criminal Records Bureau disclosure.
The hon. Member for Basingstoke mentioned ACPO and its guidance, which has been revised to ensure that police officers explain the significance of accepting cautions for the offences listed. The Home Offices guidance stipulates that the implications of accepting a caution must be fully explained to an offender. As I said, the guidance is being revised to include that requirement. Individuals covered by the regulations will be barred already. Representations are allowed for older convictions and cautions, if an offence was committed more than 10 years ago.
The hon. Lady mentioned the issue of communications, in which, in a former life, she had some expertise. Of course, ensuring timely and effective communication of the Act and its details is vital to the ultimate success of the new scheme. A multi-million pound communications and marketing campaign is being developed and delivered to key stakeholder audiences. Officials have already spoken face-to-face with more than 10,000 stakeholders at a series of nationwide awareness-raising events and thousands more individuals have been addressed at a wide variety of other conferences, seminars and workshops.
A suite of fully-branded publicity materials are available from a brand new website and other brochures and publications are being developed and delivered to stakeholders. Those will continue to be expanded and improved. Public and private sector communications partners have been identified and brought on board to deliver a series of major national marketing campaigns that will begin this June. I hope that the hon. Lady will have an opportunity to see those when they come into force.
The hon. Member for Mid-Dorset and North Poole raised issues about the numbers on the automatic barred list. The best thing that I can do, without stretching your patience too far, Ms Walley, is to refer her to the written ministerial statement from my right hon. Friend the Secretary of State for Children, Schools and Families on 17 March. That contains the latest information on those figures.
I know that we all agree that keeping children and vulnerable adults safe from harm is an important responsibility and I welcome the cross-party work done during the passage of the Act and now to ensure that we get things right. The regulations are yet another step
Mrs. Miller: Perhaps I missed my opportunity a little earlier to pick up on my point about cautions and any legal implications of challenges that individuals might make under the Human Rights Act if they cannot take up certain types of employment, and about whether the offences list that the Minister put forward is the same as list 99.
Kevin Brennan: I apologise to the hon. Lady. I will of course refer to that point. I am unable, as she asked, to guarantee that there will be no legal action under the Human Rights Act. It would be very foolish to make any such guarantee. However, on the best available advice, I am content that we are compliant with the Human Rights Act.
The list of offences now includes offences specifically related to the health sector, such as care workers abusing their patients. That change reflects the scope of the new scheme, which is different in some areas from the previous scheme. We have now included section 8(1) of the Sexual Offences Act 2003 on causing a child under 13 to engage in sexual activity in the childrens no representations list. In list 99, only subsection (2), which relates to activity involving penetration, is included under the no representations category. After further consideration of this point and discussions with experts from the Crown Prosecution Service, the police and the judiciary, we felt that those who incite young children to engage in sexual activity pose a significant
I thank hon. Members for their contributions to the debate.
Mr. Malins: The Minister was going to come back to me in answer to a specific question about whether there is a definite system of notification about any EU worker coming to this country who has the same or a similar conviction. Is there a cast-iron method of notification so that authorities here will be able to prevent a problem?
Kevin Brennan: I intended my comments on Europe to deal with that point, which is to say that there is work in progress on that matter. Perhaps if I write to the hon. Gentleman and Committee members with more detail in relation to that, that might answer the point with regard to the regulations. I commend the regulations to the Committee.
Question put and agreed to.
That the Committee has considered the draft Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria) (Transitional Provisions) Regulations 2008.
Committee rose at thirteen minutes past Five oclock.
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