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Public Bill Committee Debates

Draft Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2008

The Committee consisted of the following Members:

Chairman: John Cummings
Brooke, Annette (Mid-Dorset and North Poole) (LD)
Burden, Richard (Birmingham, Northfield) (Lab)
Butler, Ms Dawn (Brent, South) (Lab)
Curtis-Thomas, Mrs. Claire (Crosby) (Lab)
Dobson, Frank (Holborn and St. Pancras) (Lab)
Dorries, Mrs. Nadine (Mid-Bedfordshire) (Con)
Evennett, Mr. David (Bexleyheath and Crayford) (Con)
Laws, Mr. David (Yeovil) (LD)
McCafferty, Chris (Calder Valley) (Lab)
McCarthy-Fry, Sarah (Parliamentary Under-Secretary of State for Children, Schools and Families)
Miller, Mrs. Maria (Basingstoke) (Con)
Naysmith, Dr. Doug (Bristol, North-West) (Lab/Co-op)
Plaskitt, Mr. James (Warwick and Leamington) (Lab)
Russell, Christine (City of Chester) (Lab)
Timpson, Mr. Edward (Crewe and Nantwich) (Con)
Whittingdale, Mr. John (Maldon and East Chelmsford) (Con)
Laurence Smyth, Committee Clerk
† attended the Committee

Sixth Delegated Legislation Committee

Tuesday 16 December 2008

[John Cummings in the Chair]

Draft Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2008

10.30 am
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 and Miscellaneous Provisions) Regulations 2008.
It is a pleasure to serve under your chairmanship, Mr. Cummings. The draft regulations illustrate the offences that will lead to an automatic bar under the new vetting and barring scheme. The scheme is designed to prevent those unsuited to working in the children and vulnerable adults work force from doing so. I thank both the Joint Committee on Statutory Instruments and the Merits of Statutory Instruments Committee for carefully considering these draft regulations. I have noted their comments about the confusion of the name change from the Independent Barring Board to the Independent Safeguarding Authority. Under the new scheme, barring decisions will be taken by the new Independent Safeguarding Authority, or ISA, currently referred to in the legislation as the Independent Barring Board. In a previous debate we had considerable discussion about that, and the Government intend to change the legislative name to the ISA as well, and will do so at the earliest opportunity.
To support this debate, I have published an information note for Members, which explains in detail the offences set out in the regulations and how the barring processes will work. In future the ISA will make barring decisions on the cases referred to it and will base its decisions on information gathered from various sources, such as the police, regulatory bodies and referrals from employers. The ISA will send a letter to individuals it proposes to bar, informing them of their right to make representations and, if the bar is confirmed following representations, their right to seek leave to appeal. However, some of the offences listed in the draft regulations are so serious that the person responsible must be barred automatically when guilt has been established. In the case of a conviction, guilt has been proved beyond reasonable doubt and in the case of a caution, the individual has admitted guilt.
We consulted experts and took account of the offences that lead to an automatic bar on list 99 or a disqualification order. In the most serious offences, for example sexual offences with violence, there will be no prospect of mitigating circumstances that might cause the ISA to overturn the bar. In those types of cases the individual will not be able to make representations against the automatic bar. In other cases we accept the possibility that there may be mitigating circumstances, and the draft regulations allow representations to the ISA. Where an individual has been barred, they will have the right to seek permission for a review of the bar after a set period has elapsed. The information note gives details of that aspect of the scheme.
Although the regulations focus on offences, they also include two other provisions—regulation 7 about independent schools and regulation 8 about disqualification orders from working with children. The aim of regulation 7 is to give independent schools the same duty to refer cases to the ISA that maintained schools have under the Safeguarding Vulnerable Groups Act 2006 (Transitory Provisions) Order 2008, which the House approved last month. Under regulation 8, if a court imposes a disqualification order after the start of ISA decision making, the ISA must automatically bar the person, instead of the Secretary of State barring them and then returning the case to the ISA. That will create a more streamlined procedure.
I shall comment on the list of offences. Automatic barring is of course a serious matter, and Parliament required in the Act that regulations establishing offences that lead to automatic barring should be made by an affirmative resolution. However, this is not the first time that such offences have been subject to public scrutiny and it may be helpful if I outline the steps we have gone through. While the Act was proceeding through Parliament, we published an information note that showed how we intended to exercise the power. We also conducted a full public consultation in summer 2007 on the list of offences and the Government’s response was published in November 2007, receiving widespread support.
In March this year, Parliament debated and approved the transitional version of the regulations. It contained only the “with no right to representations” offences, its purpose being to determine which of the currently barred individuals are to be included on the new barred lists, with no right to make representations. In order for Parliament to see the whole picture, we produced an information note at the time of those debates, stating how we intend to use the powers for automatic barring.
Last month, we debated an order that will allow the ISA to take barring decisions on referrals to the current schemes, together with an order allowing us to include foreign offences in the regulations. Members will see that we have also included equivalent foreign offences, as I undertook to do when we debated the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria) (Foreign Offences) Order 2008. That debate was supported by a further information note on our intentions in relation to automatic barring offences.
Since February 2007, automatic barring in the children’s work force has been operating under the list 99 arrangements. These regulations include all the offences in the current list 99 regulations, so Members can be assured that there will be no diminution in safeguarding as a result of approval of the new arrangements.
When the new scheme comes into force—planned for October 2009—it will cover the wider range of work forces specified by the Safeguarding Vulnerable Groups Act 2006. Before then, the ISA will make decisions to bar people on referral to the existing barred lists, under the terms of the transitory provisions order we debated last month. Our intention is that these draft regulations will come into force at the same time as the transitional ISA decision-making phase. Subject to parliamentary approval, our intention is to bring these regulations, and ISA decision making for England and Wales, into force by 20 January 2009.
The effect of the regulations will continue in force once the transitional period is over and the new scheme is fully operational. I am aware that when we debated regulations under the Act last spring, my hon. Friend the Member for Cardiff, West (Kevin Brennan)—now the Parliamentary Secretary, Cabinet Office—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 laid with the foreign offences order.
There is nothing more important than safeguarding children and vulnerable adults from those who pose them a serious risk of harm. It is a responsibility we all share. We are determined to do everything in our power to play our part in that work, so I commend the regulations to the House.
10.38 am
Mrs. Maria Miller (Basingstoke) (Con): It is a pleasure to serve under your chairmanship on this important Committee this morning, Mr. Cummings. I thank the Minister for her note explaining some of the details of the order. However, the Christmas post rather got in the way and I only received it this morning, so I hope she will accept my apologies as I have not been able to go through it in the detail that I would have liked.
I welcome the opportunity of today’s debate because as all of us who served on the Bill Committee know, our debates were somewhat lacking in detail. That was because the Bill itself lacked the detail that we required—particularly in the areas of offences, which we are discussing today. The devil is in the detail. That is particularly true of the 2006 Act, where there is almost a double dose of detail because of the transitional regulations that we have already had to debate in connection with the interim period before the ISA goes fully live.
There is nothing more important than the need to determine the offences that will result in an automatic barring—particularly where there is no right of representation. It is thus a key step in the construction of the foundation of the new scheme and I should like to bring a number of issues to the attention of the Committee. I hope that other Members will also be able to contribute to the debate.
First, I turn to offences that would lead to automatic barring without representation. When we discussed them under the transitional arrangements in March 2008, the good argument was put forward that it was not possible to consider changing the list of offences that would be included in those regulations because they were about passporting to the new system individuals who had already been barred. Changing the offences might thus have been an unnecessary complication. However, today we are talking about non-migration cases so there is an opportunity for the Government to review some of the undertakings that were made during the two-year passage of the Bill.
When Lord Adonis was the Minister in the other place, his notes issued in April 2006 made it clear that to ensure Government compliance with obligations under the Human Rights Act 1998, it was necessary to review the details of the offences involved:
“In deference to our duties under the Human Rights Act, and with a proper sense of proportionality, we intend 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’s explanatory notes state that the list of offences for which a person would be automatically barred, is in essence the same as the transitional regulations: list 99 and the Protection of Children Act 1999—POCA—and Protection of Vulnerable Adults—POVA—lists. I refer again to the Government’s note to show that the criteria prescribed in the regulations for automatic barring without the right to representation are in essence the same as those in the transitional regulations. That is a contradiction so perhaps the Minister could explain it in more detail. The list of offences is extremely lengthy, and it would be difficult for anyone other than an expert to understand where changes have been made to ensure that the current list adheres to the spirit of what Lord Adonis said two years ago.
I would be interested in any legal advice that the Minister has received regarding the compliance of the regulations with the Human Rights Act, and in any representations that she has received from the Crown Prosecution Service, the police and the National Offender Management Service about the offences included in each category. She referred to the consultation; I have looked at the summary but I could see no direct references to changes in the offences. Perhaps the Minister can help me further.
The second issue is a critical one, which we were unable to debate as we would have wished to do on the Floor of the House. It concerns those who have been cautioned but not convicted of an offence, but who could be barred automatically without right of representation. The Secretary of State has determined that cautions and convictions in that instance should be treated in the same way. We have previously expressed concerns that the full implications of a caution might not always be clear. In her introductory remarks, the Minister stated that cautions would be issued only if an individual had admitted guilt. I do not know how she can be so certain and categorical in her assertion—perhaps she could enlighten us.
The Minister will remember that my hon. Friends and I expressed concerns when the Government introduced the new list 99 regulations in February 2007, including the change in the way that cautions are treated. I raised the issue with her predecessor, the hon. Member for Cardiff, West (Kevin Brennan), who brought up further concerns in his response. He said that cautions would be given only in exceptional circumstances, such as the likelihood of acquittal because of the lack of evidence from a witness. In such situations, there would be some level of doubt as to the position of the individual who had been cautioned.
Mr. Edward Timpson (Crewe and Nantwich) (Con): Does my hon. Friend agree that cautions are sometimes issued to people suspected of an offence before they have had the opportunity to seek legal advice and representation? Often a caution is given as an alternative to the charge of a more serious offence, and is accepted to deal with the matter more swiftly and without the prospect of a custodial sentence. Is that a cause for concern? Does she agree that the system currently proposed, in which caution and charge are treated equally, could lead to injustice for those who have been barred indefinitely for an offence, because at the time they are cautioned they will not understand that it will lead to that outcome?
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Prepared 17 December 2008