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Public Bill Committee Debates

Draft Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria) (Foreign Offences) Order 2008

The Committee consisted of the following Members:

Chairman: Mr. Christopher Chope
Blackman, Liz (Erewash) (Lab)
Brooke, Annette (Mid-Dorset and North Poole) (LD)
Butler, Ms Dawn (Brent, South) (Lab)
Fabricant, Michael (Lichfield) (Con)
Field, Mr. Mark (Cities of London and Westminster) (Con)
Gibson, Dr. Ian (Norwich, North) (Lab)
Laws, Mr. David (Yeovil) (LD)
Lepper, David (Brighton, Pavilion) (Lab/Co-op)
McCarthy-Fry, Sarah (Parliamentary Under-Secretary of State for Children, Schools and Families)
Miller, Mrs. Maria (Basingstoke) (Con)
Morley, Mr. Elliot (Scunthorpe) (Lab)
Sharma, Mr. Virendra (Ealing, Southall) (Lab)
Tredinnick, David (Bosworth) (Con)
Truswell, Mr. Paul (Pudsey) (Lab)
Walter, Mr. Robert (North Dorset) (Con)
Williams, Mrs. Betty (Conwy) (Lab)
Mike Clark, Committee Clerk
† attended the Committee

Third Delegated Legislation Committee

Monday 3 November 2008

[Mr. Christopher Chope in the Chair]

Draft Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria) (Foreign Offences) Order 2008

4.30 pm
The Parliamentary Under-Secretary of State for Children, Schools and Families (Sarah McCarthy-Fry): I beg to move,
That the Committee has considered the draft Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria) (Foreign Offences) Order 2008.
The Chairman: With this it will be convenient to consider the draft Safeguarding Vulnerable Groups Act 2006 (Transitory Provisions) Order 2008.
Sarah McCarthy-Fry: May I say what a pleasure it is to serve under your chairmanship, Mr. Chope, to debate my first statutory instrument as a Minister? The orders that we shall debate today arise from two different effects of the 2006 Act on the barring of unsuitable persons from work with vulnerable groups. The Act requires us to go through a transition from barring decisions taken under current schemes by the Secretaries of State, as happens now, to barring decisions under the new vetting and barring scheme, which is due to go live in October 2009. Those decisions will be taken by the new independent safeguarding authority or ISA, which the order refers to as the independent barring board.
Secondly, the Act was passed in 2006 before our amendments to the current list 99 scheme in 2007, which expanded its coverage to foreign offences. I wish to thank both the Joint Committee on Statutory Instruments and the Merits Committee for carefully considering the orders—as hon. Members know, neither Committee found anything on which to comment. The Merits Committee said that the orders are of interest and published brief supplementary information provided by my officials. I have published an information note for members of the Committee to inform the debate, and it explains in detail how we wish to make use of the functions created by the foreign offences order in future proposed regulations.
Michael Fabricant (Lichfield) (Con): The Minister will be aware that some people have talked about a possible human rights violation. What assurance can she give the Committee that an attempt to delay the order by judicial intervention under the Human Rights Act 1998 would not prevail?
Sarah McCarthy-Fry: It is not exactly clear what the hon. Gentleman is referring to. Does his point concern the implementation of this particular order being delayed by some form of judicial review?
Michael Fabricant: I do not necessarily agree with them, but some people have said that, if the order were passed in Committee today, it might be in breach of the Human Rights Act. To what extent has the Minister’s Department ensured that that is not the case and that it would not delay the implementation of the statutory instrument?
4.33 pm
Sitting suspended for a Division in the House.
4.45 pm
On resuming—
Sarah McCarthy-Fry: I was answering a question asked by the hon. Member for Lichfield. If he reads the explanatory memorandums, he will see that Baroness Morgan of Drefelin has stated that, in her view, the orders are compatible with the convention rights. The Department provided specific information in a memorandum to the Merits Committee, but I do not intend to read it out as it is two pages long. However, I am happy to send it to the hon. Gentleman.
I will set out the main reasons for the orders. We propose to handle the transition by undertaking it in stages. The transitory provisions order will require Ministers to stop taking barring decisions under current schemes on new referrals and, instead, the ISA will be required to take those decisions. Ministers will decide on the remaining existing referrals. Bodies such as employers, who have a duty under current legislation to make such a referral—for example, when they dismiss an employee because there is a risk of harm to children—will generally have to make new referrals directly to the ISA. The exception is that referrals under list 99 legislation in Wales must still be made to Welsh Ministers, who will pass them to the ISA.
We aim to bring the transitory order into force by 19 January 2009, and ISA decision making would start from that date. That is subject to parliamentary approval of these orders and of any regulations concerning which offences would lead to an automatic bar. We aim to lay those regulations promptly, if Parliament approves the foreign offences order.
The benefit of starting ISA decision making before the vetting and barring scheme goes live is that it will help us to manage the transition more smoothly. The existing stock of barred cases decided by Ministers must be referred to the ISA. The ISA will include—or consider including—those cases in its new barred lists under a transitional provisions order made during the spring.
The effect of switching decision making to the ISA from January 2009 will be to reduce the number of cases that go through the lengthier process of decision by the Secretary of State, followed by migration by the ISA on to the new barred lists. Instead, there will be a more streamlined approach for new cases and a decision straight away by the ISA. After the new scheme has gone live, that new approach will minimise the period in which current arrangements need to be preserved while the Secretary of State completes the cases that are left for him to decide on. The ISA will then migrate those cases to the new barred lists.
The foreign offences order enables the 2006 Act to catch up with an improvement made in 2007 to the list 99 regulations. That provided for an automatic bar in the case of a person convicted of a specified foreign offence. We want to have that power under the 2006 Act, so as to increase protection for vulnerable groups and honour our commitment that statutory safeguards under the Act are not fewer than those under the current schemes, including list 99. The information note sets out how we intend to use that power.
Finally, when we debated the orders under the 2006 Act last spring, my hon. Friend the Member for Cardiff, West (Kevin Brennan) wrote to the hon. Member for Woking (Mr. Malins) about work under way to improve the exchange of criminal record information between EU member states. Details of that work are in the explanatory memorandum to the order.
Nothing is more crucial than safeguarding vulnerable groups from those who pose a serious risk of harm. Although everyone has a responsibility, the Government play a key part. We are determined to do everything that we can to safeguard children and vulnerable adults, and I commend the orders to the Committee.
4.49 pm
Mrs. Maria Miller (Basingstoke) (Con): It is a pleasure to serve under your chairmanship, Mr. Chope, and I also welcome the Minister to her new role. I have had the pleasure of attending parliamentary questions with her, but this is the first time we have served together in Committee, and I am sure that it will be productive.
Orders such as this to the Safeguarding Vulnerable Groups Act 2006 will hopefully make a significant change to the way in which thousands of people are assessed on their suitability to work with children. As we grapple with some of those issues, we should not forget the events that necessitated those changes. It is now two years since the Act was originally introduced in the House, and reports and analyses were being done in preparation for it four years before that. The years may pass by, but we are still awaiting the scale of the change in the system of vetting to reflect the events that caused their introduction.
I also remind the Committee about its crucial role in relation to the 2006 Act. As the hon. Member for Mid-Dorset and North Poole and I have emphasised throughout, the lack of detail in the 2006 Act makes it highly dependent on secondary legislation, which is why these delegated legislation Committees are absolutely vital. We were disappointed that the Government took the approach of introducing a hollow Act to be filled with secondary legislation, which made it difficult to look at the details when we discussed the 2006 Act in Committee.
It is also striking that we are now on to our third Minister. When the Government take a number of years for a piece of legislation to make its long journey through the House, there is a lack of consistency in ministerial responsibility. However, I am sure that the hon. Lady will have been assiduous in her work prior to this Committee to make sure that we can make the most of today’s proceedings. I hope that she is in her place for the remainder of the statutory instruments that need to come into play before the system goes live in just under a year’s time.
I shall now turn to the order and, specifically, look at overseas offences. Before we discuss those important provisions, it is vital that we recognise the role that overseas workers now play in the UK: they account for more than one in 10 of the UK work force; they account for 18 per cent. of the UK social work work force; and in the medical profession more than one in four individuals is an overseas worker. They are therefore crucial, which makes the order even more concerning than it might, at first, appear.
The order contains a series of amendments that play catch up as a result of changes to list 99, as the Minister has said. To take a slightly different view, that perhaps highlights the point that the 2006 Act does not yet adequately deal with the issue of vetting overseas workers. That is something that we spent a great deal of time talking about in the Committee that considered the 2006 Act. Perhaps the Minister will take the opportunity afforded by today’s discussions to come clean with the Committee and set the record straight as to whether this particular order deals with an omission in the 2006 Act, rather than just playing catch up. I should have thought that if the order were about playing catch up, the amendments to list 99 would be taken as a matter of course within the content of the 2006 Act. Perhaps the Minister will inform the Committee about the details on that.
When the Minister’s predecessor was challenged in Committee on that very issue, he said:
“The Bill...ensures that the barring scheme can take account of offences committed abroad.”——[Official Report, Safeguarding Vulnerable Groups Public Bill Committee, 13 July 2006; c. 151.]
Today, we have been presented with an order that, on the face of it, takes the intent behind amendment No. 194 that my hon. Friends and I introduced in the Public Bill Committee. It places the need to take account of offences committed overseas in the 2006 Act, which we have been calling for since Second Reading in June 2006.
I understand that the Minister is in a difficult position. Perhaps we should be thanking her for ensuring that, at last, our concerns have been heard. However, the Committee expects some sort of explanation from the Minister on behalf of her two predecessors, who gave, for whatever reason, assurances when considering the 2006 Act in Committee and even on the Floor of the House that those matters had been adequately dealt with. I am not sure whether today’s order substantiates those assurances.
Will the Minister explain why the situation has changed, over and above the changes in list 99? Why would the changes not be taken into account automatically, because list 99 is already mentioned in the 2006 Act? Why are amendments needed now, and what has changed to bring that about? Have there been changes with regard to the information available to vet overseas workers that make it necessary to place the provisions in the 2006 Act, which was dismissed in Public Bill Committee as unnecessary?
The Criminal Records Bureau has approached European Union member states to ask whether they are willing to share criminal conviction information. I understand that EU legislation may be in place, but the reality is that few countries are sharing data on sexual offences, even at an EU level. How many countries have adopted the framework for the collection of information on sexual offence convictions and are now actively sharing such information? Is there concern about whether or not the information will be forthcoming? Also, what progress has been made in dealing with inconsistencies in how sexual offences are treated by different European countries? I remind the Committee that in Sweden, in particular, sexual offences are deleted from an individual’s record after 10 years, if there are no subsequent convictions.
Michael Fabricant: That is particularly pertinent, because I have a constituent who had sex with a 14-year-old, although he was 15 at the time and they were at school. I do not condone that sort of thing, but his record as a sexual offender is now there for the rest of his life. Overseas visitors, who might be in a similar situation, could find themselves so branded, even though society might say that the circumstances were different from, say, a 30-year-old having sex with a 14-year-old.
Mrs. Miller: My hon. Friend has raised an important point, which we discussed in Committee and on which a view will be taken when it comes to barring in the long term. The issue here concerns overseas workers, and few individuals appear to have had such offences recognised in this country. I shall draw the Committee’s attention to some details that I have found out about that in a moment.
As the Minister knows, the problem that I am highlighting is not abstract, and it is an issue in other European Union member states. The Minister will be aware of the 2004 Fourniret case—an individual convicted in France of sex offences against children, as well as murder, moved to Belgium, where he gained employment in a school, only to commit a further series of murders and sexual assaults against children. Neither the Belgian authorities nor the school were aware of his previous convictions. Will the Minister confirm the current procedures for dealing with overseas convictions? What changes have been made since my hon. Friend the Member for Havant (Mr. Willetts) first raised the issue with the then Secretary of State almost three years ago? That was well before the more recent revelations of January 2007 that 27,529 overseas convictions for UK nationals had not been entered on to the British police national computer.
We need to be clear why the matter is so important. The new system will be seen as a tighter form of vetting, and employers have already been told that. However, one in 10 of the work force—perhaps more people in areas such as care for the elderly and education—will be effectively unmonitored. There continues to be no process for easily accessing information about convictions for sexual offences even inside the EU, let alone in Africa and Asia. We know that there are a number of individuals from those continents working in the UK, so why are the Government continuing to bury their head in the sand on the issue? At best, they are ignoring the problem, and at worst they are creating an illusion for employers that the problem is being dealt with.
Will the Minister consider adopting a further proposal, which we put forward in Committee, about flagging individuals who have worked overseas for a prolonged period of time? They should be highlighted with a flag on the monitoring system, so that, when employers come to employ an individual who has worked overseas, that is fully brought to their attention. Perhaps under the auspices of the IBB guidance can be identified on the procedures employers should follow in such cases. It is really not acceptable for the Government to continue to ignore this gaping hole in their new vetting system, which will not go away.
We need to hear from the Minister about what will happen next. Her predecessor promised us that there would be full regulations on how the issues regarding overseas workers would be dealt with. We are discussing a couple of amendments to bring the legislation up to date—as she has put it, this is catch-up legislation. What further regulations can we expect and when will they be forthcoming? Time is ticking on this one.
Under the second order, the IBB will take barring decisions rather than the Secretary of State, and the decision-making process will be based on the new legislation, but the consequences of barring will remain the same as under existing legislation. That is a little difficult to grasp for those of us who were fully involved in the 2006 Act, and it is certainly quite complicated for employers and those affected to grasp. Will the Minister tell us how those who are barred will be affected by the proposed changes?
Schedule 3 to the 2006 Act introduced the concept of “risk of harm”, which the Government argue is clearer than the current wording of
“unsuitable to work with children”.
Is that the only difference? When the IBB is fully launched, a far wider range of jobs will be affected by the barring procedures. How will those who are barred under the transitional arrangements be informed of such changes? It might be prudent to ensure that individuals who are barred under the transitional arrangements know the future implications of their barring straight away, so that they can better plan their route into employment. How should employers treat the change? Can they decline to employ an individual, if the job will become a regulated activity when the full IBB system goes live? I apologise for using IBB rather than ISA, which was ingrained into me during the Committee stage of the 2006 Act. How would that particular challenge be treated in employment law? The Minister could take this opportunity to clarify that for people who are following our proceedings in some detail. It is complicated for all parties, and we need to know the implications of what is being proposed.
There is an important role for communication in this process. I stressed that point during the Committee stage of the 2006 Act, and it is particularly relevant now because of the complexities of the transfer to the new system. A good website and programme of communication has been established jointly between the Minister’s Department and the IBB to inform consultative and regulatory groups. I know that further work will be done in terms of direct media and road shows, but there are already indications that communications are a challenge, and there will be further challenges following the orders. That underlines the need to ensure that consultative and regulatory groups are cascading the information that people on the ground need to know if the orders and the 2006 Act are to work as the Government hope that they will. From my informal discussions with people who are involved in governing bodies, there is a lack of clarity about the implications of being on the monitored list, particularly in terms of payment. Even within the useful guidelines on the IBB website, there are some contradictions that, while they are slightly outside the scope of this Committee, the Minister may want to comment on.
I would also like the Minister to consider the importance of good quality information. Is she happy that the IBB will have access to all the information that it needs to make barring decisions? In response to a written question that I tabled in April this year, the Home Office confirmed that there have been just 62 cases where an individual from overseas has had their sexual offence recognised in a magistrates court, yet there are 3.6 million overseas workers in the UK. If one does the maths, one finds that there is either a very different population coming into the UK to work, or that there has been an under-reporting of convictions for sexual offences committed by people who are coming to work in this country. The Committee and, indeed, the House, would find it useful to know whether the Minister is satisfied with the present situation regarding how sexual offences by overseas workers are recognised in this country, and whether she feels that the current situation is a true reflection of reality. She must take time to respond on those important issues, and I look forward to hearing her thoughts.
5.5 pm
Annette Brooke (Mid-Dorset and North Poole) (LD): It is a pleasure to serve under your chairmanship this afternoon, Mr. Chope. I, too, welcome the Minister to this forum, although we have already had some exchanges on the Floor of the House.
I should like to begin with a basic point. Throughout the debate on this legislation, we have been concerned about its complexities and about whether people outside this place will understand everything that it entails. I must say that I found the paperwork incredibly confusing when I read it this afternoon. We are switching from the IBB to the ISA. Will the Minister clarify that? It seems to me that, at this stage, it would have been better to have firmed-up the name so that everyone is sure what we are talking about. The explanatory notes refer to the ISA, but the legislation refers to the IBB. How we can expect the general public to understand the processes that are being introduced when the name keeps being switched? That is my first point, because the confusion of the switch between the two names really came home to me.
I also want to touch on the communication strategy. There is no doubt about it—there is an incredible amount of misinformation in the real world about the legislation. I have had approaches from business people, for example, who tell me that they do not want to take people on work experience because their employees will have to be checked. Although we have got the communication strategy at one level, it is not filtering down to where it really matters. That will have an adverse effect on, for example, young people being offered work experience, because people will see it as complicated and costly.
Like me, the hon. Member for Basingstoke recalls that we discussed the issue of foreign workers at great length in the Committee that considered the 2006 Act. Remarkably, some of the points that we made in those debates were picked up in regulations introduced in 2007. It is almost as if there is a time lag and new measures are being introduced later. Any measure is welcome, because it has to improve the situation. However, we do not seem to be anywhere near a foolproof system. While we do not have such a system, it is absolutely vital that there is clear guidance to all concerned on the sort of questions that they should ask when they employ somebody.
My understanding is that when somebody seeks a CRB reference on an individual, the CRB gives information primarily from this country. Unless a secondary question, “Have you worked abroad at all?” is asked, no one will have a clue that something needs to be followed through. The measure will obviously provide the CRB with more information on some people, but some people will still not be picked up. It is vital that employers ask that question, because there are ways in which to gather information directly from the countries in which people have been working. I came across an example where local authorities were accepting CRB references on people and transferring them, but they were not necessarily asking whether those people had worked abroad.
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