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

[back to previous text]

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 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.
That the Committee has considered the draft Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2008.
11.5 am
Committee rose.
Previous Contents
House of Commons 
home page Parliament home page House of 
Lords home page search page enquiries ordering index

©Parliamentary copyright 2008
Prepared 17 December 2008