Mrs.
Miller: In his usual style, my hon. Friend makes a
pertinent point based on his extensive experience of dealing with such
issues. He speaks with great authority on those issues and has
absolutely put his finger on the concern that I and others have about
how the Act is proceeding, because we must have absolute confidence in
the proposed new system. We should remember that we are today
considering putting in place a new system of vetting and barring
because previous systems simply lost the confidence of the Government
and our communities. It is absolutely vital that the new system is as
watertight as it can be, and I know that the Minister will agree with
me on that. I know that she has a difficult job in balancing these
things so I hope that she has listened carefully to my hon.
Friend’s point.
The figures
show that the police regularly use cautions for sexual offences. The
2005 figures show a handful of cases in each police authority
area—for example, 34 in Essex and 85 in west Yorkshire. More
interestingly, the number of cases in which cautions are given for
sexual offences has increased dramatically in some police authority
areas. In
April 2006 Lord Adonis, then the Minister responsible, undertook to
work with the police and the Home Office to ensure that the
implications of the new arrangements could be taken into account when
cautions were issued, although after listening to my hon.
Friend’s intervention it is difficult to see how a police
officer could make an individual fully aware of the implications of a
caution, particularly if it is given when legal advice might not be at
hand. Perhaps the Minister could update the Committee today on the work
of the Association of Chief Police Officers in issuing guidance. Has
that guidance been issued and consulted on, and what reaction has ACPO
received from its members to the new
arrangements? My
third point relates to human rights. When we discussed the Bill on the
Floor of the House, Ministers gave several firm assurances that it was
human rights compliant. Indeed, in March I asked for an assurance on
that from the Minister’s predecessor, the hon. Member for
Cardiff, West, which he gave. Is the Minister as content on that point
as were her predecessors, especially after the former president of the
care standards tribunal is reported to have said only last week that
the provision appears to be contrary to article 6 of the European
convention on human rights, which relates, as I am sure she is aware,
to the right to a fair trial? He went on to say that it will
“almost
certainly be an issue that the tribunal will have to
consider”.
What action are the
Government taking as a result of that statement from one of the most
senior judges in the tribunal, an individual who would, I hope, be
aware of the implications of making such a bold statement?
The issue was
raised by my noble Friend Baroness Verma in the debate yesterday in the
other place, and I should like the Minister to build on what was not an
extensive answer from her noble Friend in that place. In
the Minister’s response, I should like her to focus on advising
the Committee about cautions where there has been no trial, as we could
be depriving people, without due process, of the ability to practise
their chosen profession. A caution, as she will be aware, is not due
process because it is not determined by an independent court or
tribunal. That brings me back to my earlier point that the structure
for the new system of vetting and barring needs to have the confidence
of all involved, so we should all be concerned that at this early stage
such fundamental questions are being asked by the people who will have
to implement it. The other
issues to which I would like to draw the Committee’s attention
must include foreign workers. We discussed them at length in connection
with the Bill and my noble Friend Baroness Verma raised the issue in
the other place yesterday. I reiterate one point that she raised about
the importance of linking into the European criminal records database
and the Schengen information system II, as it was clearly not possible
to get a full response during that debate. I was concerned by the
response of the Minister in the other place to my noble Friend. After
our extensive debates on foreign workers, for the Government simply to
hope for or aspire to a strategy is a wholly inadequate response to a
pressing issue for me and other hon. Members who have been involved in
the Bill from the start. To read that the Government are no further
than having an aspiration to get better quality information put on to
the criminal records database is concerning. Can the Minister clarify
her noble Friend’s comments yesterday? I had hoped that we would
have moved a little further after two years of debating the problems of
gaining accurate data about individuals who come to work in the UK from
overseas; as the Minister knows, they make up a sizable proportion of
those who work in the health, social care and education
sectors.
I want to
touch on some other points. First, can the Minister confirm that there
are no costs for individuals volunteering to enrol on the new vetting
and barring system? There is misunderstanding at grassroots level, as I
found in my constituency. There is a feeling that volunteers will pay
an element of the fee, particularly the initial registration fee,
because although a criminal records check may already have been
undertaken, part of the £64 will be payable by volunteers. Can
the Minister clearly state for the record that that is not the case?
How the fee may affect volunteers concerns a great many voluntary
organisations. Secondly,
there is the impact on businesses. The notes accompanying the statutory
regulations have rightly identified the need to ensure that the impact
on small businesses is not disproportionate. I wholeheartedly endorse
that sentiment, but exactly what is expected of smaller businesses? The
explanatory notes state that it is proposed that there be no
requirement for an employer with fewer than 25 employees to register or
to check, if they have youngsters coming in for work experience or,
indeed, if they are employing under-16s. However, the notes go on to
say that the employer still has a responsibility to decide which
workers to check and that a barred person should not be allowed to work
in that situation. Can the Minister explain that more fully? It may be
the way that the guidance has been phrased, but if I am finding it
difficult to pick up, others may too. The regulations could be
confusing and leave smaller employers inadvertently liable to fall foul
of the law.
The
explanatory notes refer to online checks; employers can check the
registration status of an applicant. Given that the point is made in
the explanatory notes, can the Minister take this opportunity to say
what progress has been made? The ability to check online was heavily
trailed when the Bill was introduced. Has it been delayed, in the same
way as ContactPoint has been, due to the security breaches that have
dogged so many IT projects that the Government have undertaken in
recent
years? Finally,
I would like to raise the issue of the quality of data. We have talked
a lot about processes and procedures, but the new ISA will be only as
good as the quality of its information. There has been much debate in
the past about whether the information on the criminal records database
was always completely accurate. I know that the Government have been
doing a great deal of work on that, but what reports has the Minister
received from her colleagues on the reliability of PLX—the
police local cross-check system? It will have an important role to
play. As
the Minister knows, courts have an important role to play in the flow
of information. Many of us who examine how courts work know how
overloaded they are at the moment. Is she happy that courts have
procedures in place to guarantee that the new ISA system will be
updated regularly? Who will be responsible for ensuring that that part
of an important process is implemented
successfully? I
have made many comments because great importance attaches to the
statutory regulations. I hope that the Minister can
respond to my questions because they go to the heart of how
the Act will work. As it will have an impact on many millions of
people, it deserves a full
debate. 10.55
am
Sarah
McCarthy-Fry: I thank the hon. Lady for her contribution
to the debate and the hon. Member for Crewe and Nantwich for his
intervention. Safeguarding vulnerable groups is a high priority for the
Government, but it is important that we do it fairly and
proportionately so it is right that we consider the regulations
carefully.
Before I
respond to the specific queries that have been raised, I want to point
out that the regulations will illustrate how automatic barring will
work under the new vetting and barring scheme. They will improve the
automatic barring processes within the children’s work force
under the list 99 arrangements. They will also make two miscellaneous
improvements to how ISA decision making will work in the future. As I
said earlier, there has already been extensive consultation on the list
of automatic barring offences with and without representations, and
that has involved several experts and stakeholders in the
field. The
hon. Lady said that Lord Adonis had said that the list would be
shorter. When the Bill was being enacted in spring 2006, list 99
auto-barring had not started. It started only in February 2007. The
regulations carry through the list of offences from February 2007, and
we made it clear in March that the final list of offences would be
consistent with the transitional set. The hon. Lady will note from the
explanatory memorandum the few minor technical arrangements, such as
new Northern Ireland offences that were not on the statute book, a
Scottish offence that was not in the transitional regulations and a
slight amendment to the circumstances of
commission.
Mrs.
Miller: I was saying that Lord Adonis felt that to be
compliant with the Government’s obligations under the Human
Rights Act there would need to be a shorter list. That is made clear in
his notes. Was that wrong or has the world moved
on?
Sarah
McCarthy-Fry: I have not had the opportunity to consult my
noble Friend, but I am clear that we are compliant with human rights
legislation. Our first priority is to make sure that we are
encompassing the correct offences to protect
children. The
hon. Lady asked what legal advice has been received, and what advice
has been received from the police and the CPS in collating the list of
offences. The offences proposed for inclusion in the regulations were
subject to wide consultation and responses were received from a wide
range of bodies, including the CPS. The Government have, of course,
taken legal advice on the content of the regulations and we are
confident that they are compliant with the ECHR. I shall give some
detail. We received 182 responses to our consultation from various
bodies, including local authorities, local safeguarding children
boards, voluntary sector organisations and parents, and no substantive
points about the prescribed criteria were raised in the consultation
process. The
hon. Lady and the hon. Member for Crewe and Nantwich spoke a great deal
about cautions, which came up in the previous debate on the regulations
in which I was involved. I understand the difficulties and we agree
that the issue is important. Home Office guidance to the police and the
Crown Prosecution Service on cautioning adult offenders states
that, “before
the police can issue a standard caution...the offender must
clearly admit the offence, and accept that the police will issue the
caution...the police must explain the consequences of admitting
the offence and accepting a caution...the police must explain
where accepting a caution on a sexual offence puts the offender on the
‘sex offenders register’ for 2 years from the caution
date...if the caution leads to automatically barring an adult from
work with children, the police must explain
that.” The
guidance
continues, “when
the caution is issued...offender and police should both sign an
acceptance form clearly explaining the consequences, including for a
sexual offence (e.g. a bar on work with children)...the offender
should sign to say he has read and understood the
information...the offender should be given a copy of the form to
take
away.” Another
point made by the hon. Lady was about the judge who had implied that
ISA appeals were not ECHR-compliant. We believe that the scope of ISA
appeals, which can be on a point of law or a finding of fact, complies
with the right to a fair trial, because the current scope of appeals
gives the upper tribunal, which will hear ISA appeals, all the powers
it needs to overturn any unsound barring decision by the ISA. In
particular, an appeal on a point of law can include an appeal on the
basis that the ISA decision might be unreasonable. Appeals should not
extend to the ISA’s expert judgment on whether to bar a person,
which is separate from the ISA’s finding of fact about that
person. The tribunal would not be in a position to make a similar
expert judgment. The Act’s compliance with human rights
legislation was tested thoroughly during the passage of the
Bill. On
the hon. Lady’s point about linking to the second generation
Schengen information system, it is our intention to join the SIS II
database. We want to work with other
EU countries to allow greater scrutiny and sharing of criminality
information. Doing so for employment vetting and barring is a priority
for the Government, and we shall be taking it forward on the next
justice and home affairs
agenda. The
hon. Lady referred to children in employment. The Government’s
intention is to maintain the existing disciplines for small businesses;
it is for the employer to decide who to check. That does not represent
a new burden on business. It is important that we get the balance
right—that we make sure that children are safeguarded, but that
we recognise the burdens on small businesses. For the record, I am
pleased to reiterate that there is no fee for those who wish to work
only as unpaid volunteers.
The hon. Lady
asked about the delay in online checks. We are still on track to enable
employers, including small businesses, to make a free online check from
the start of the requirement for workers to register with the
ISA.
Mrs.
Miller: I thank the Minister for updating the Committee on
online checks. Have there been any delays because of security issues,
which have dogged many other IT projects? As she will be aware, on
Second Reading and Report, a great deal of concern was expressed by
hon. Members about whether the information would be
secure.
Sarah
McCarthy-Fry: I am not aware of any delays, but I
undertake to look into the matter and write to the hon. Lady if there
is any such
evidence. The
hon. Lady’s final point was about the flow of information from
the courts. That is the subject of another Bichard recommendation,
which is being led by the Home Office and the Ministry of Justice.
Again, I shall look into the matter and write to the hon. Lady to
update her on our
progress. I
hope you agree, Mr. Cummings, that we have had a useful
debate. I know that we all agree that nothing is more vital than
safeguarding children and vulnerable adults from those who pose them a
serious risk of harm. A further step has been established by the
regulations. The Independent Safeguarding Authority plays an important
part in the Government’s agenda to meet the Bichard
recommendations, ensuring that the most robust safeguarding procedures
are in place. I commend the draft regulations to the
Committee. Question
put and agreed
to. Resolved, That
the Committee has considered the draft Safeguarding Vulnerable Groups
Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations
2008. 11.5
am Committee
rose.
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