Protection of Freedoms Bill

Memorandum submitted by NSPCC (PF 30)

Summary

The Protection of Freedoms Bill will legislate to reform the system of vetting and barring, and criminal records checks for individuals who work with children and vulnerable adults. Vetting and barring arrangements play an important role in protecting children, and the NSPCC welcomes the UK Government’s goal of developing a simpler and more proportionate approach.

The NSPCC agrees with many of the UK Government’s proposed reforms to vetting and barring arrangements. The proposed system maintains most of the key protective elements of previous arrangements. The simplification of the system – removing the need to register with the ISA, and introducing portability and online updating for CRB certificates - should make it easier for employers, employees and volunteers to carry out checks. We also support the application of sensible and consistent rules about the disclosure of non-conviction information and the proposal to remove Controlled Activity category.

However, we do have some concerns about specific aspects of the proposed arrangements and suggestions for further improvements. These four related issues are explained in detail in this paper:

1. The new definition of regulated activity excludes many people who have regular and close contact with children, including many individuals who are supervised whilst working with children. People in non-regulated activity will not have to be checked, and even if they are, this will not reveal whether they have been barred. This creates a risk that unsuitable individuals may gain and exploit positions of trust.

We also had worries about the proposal to exempt those working with 16 and 17 year olds in education, faith and sports settings from regulated activity. However following helpful conversations with Ministers and officials about these concerns they have now agreed to amend the Bill to remove this exemption.

2. Under the proposed arrangements, a number of people who have close contact with children and vulnerable adults will not be covered by regulated activity. If these individuals have a CRB check, this check will not disclose if they are barred by the ISA. In addition, it may not even reveal the issues or concerns that resulted in the bar. This means that people could work with children without employers being aware of the risks they may pose. We have made a number of suggestions about how Government can ensure information is shared with the police, so that the information they reveal on CRB checks gives a more comprehensive but relevant picture of what is known about an individual.

3. Under the new arrangements, the ISA will bar individuals who are, have been or might be engaged in regulated activity but not in non regulated activity. Individuals may harm children in non-regulated activity without it necessarily being referred to the ISA or resulting in a bar. Those individuals may then be able to move into regulated activity in the future. We are keen to work with Government to ensure that concerns about individuals working with children outside regulated activity are not lost.

4. There are some practical issues that need to be ironed out in order to ensure that checks are portable: in particular, if information on criminal records certificates is tailored to a particular type of job, then portability may be limited. We are asking the Government to ensure that all aspects of the scheme are free for volunteers.

Background

Vetting and barring arrangements play an important role in protecting children from abuse. Sadly, most abuse of children is carried out by people who know them and who they trust. [1] Vetting and barring arrangements can help prevent unsuitable people working closely with children or gaining access to positions of trust where they can more easily harm children, and are an important part of safe recruitment. They are necessary, although not sufficient in themselves, and must be accompanied by robust child protection policies and good employment practices.

The current Vetting and Barring Scheme in England, Wales and Northern Ireland was developed following the Bichard Inquiry after the murders of Holly Wells and Jessica Chapman in Soham in 2002 [2] . The foundations for this Scheme were set out in the Safeguarding Vulnerable Groups Act (2006) and corresponding Safeguarding Vulnerable Groups (NI) Order 2007. Many of the new arrangements in the Act had been implemented, with the exception of the continuous monitoring element, which was due to begin in 2010.

The UK Government set out proposals to scale back the scheme to common sense levels in the report on the review of vetting and barring [3] and in the parallel review of criminal records by Sunita Mason the Government’s Independent Advisor for Criminality Information Management [4] . Many of the legislative changes proposed by these reports are given effect in the Protection of Freedoms Bill.

The Government has outlined a single, simplified arrangement which combines the work of the Criminal Records Bureau (CRB) and Independent Safeguarding Authority (ISA), so that individuals can receive portable CRB checks, which can be continuously updated, and which, where relevant, provide employers with information about whether an individual is barred from working in regulated activity with children and vulnerable adults. The vetting and barring arrangements will extend to England, Wales and Northern Ireland with the provisions relating to criminal records to England and Wales.

The new arrangements mean that CRB certificates will be issued only to applicants so that they have an opportunity to review and, if necessary, challenge, information in the certificate before it is shown to an employer. Employers will be able to check online to ensure that certificates are valid and up-to-date.

The Government is removing the category of controlled activity and is changing the definition of regulated activity so that substantially fewer posts will be subject to vetting and barring. This means fewer people will have to be checked before starting work, and people who are on barring lists will be able to work in more positions than under the previous arrangements. The Protection of Freedoms Bill also creates additional safeguards to control the non-conviction information revealed on criminal record certificates, based on the recommendations on the Mason report.

The NSPCC Response

The NSPCC agrees with many of the UK Government’s proposed reforms to vetting and barring arrangements. The proposed system maintains most of the key protective elements of previous arrangements. The simplification of the system should make it easier for employers, employees and volunteers to carry out checks and the portability of certificates within regulated activity is very sensible reducing the need for separate certificates when an individual works or volunteers in a number of regulated activity posts. We also support the application of sensible and consistent rules about the disclosure of non-conviction information and welcome the government’s intention to raise awareness of safeguarding issues with employers and the wider community.

However, we have some concerns about specific aspects of the proposed arrangements and we also have a number of suggestions for improvement.

1. The Definition of Regulated Activity

Regulated activity refers to activity involving close contact with children and vulnerable adults. It defines the activity for which individuals require to be vetted and from which they can be barred. Employers of individuals in regulated activity can access information relating to the barring. People entering positions that are not covered by the definition of regulated activity do not have to be CRB checked although some may still be checked. Even where they are eligible for a CRB check, such checks will not reveal if they have been barred. The NSPCC believes that a CRB check should disclose sufficient relevant information to allow employers in non regulated activity to make an adequate assessment of the suitability of individuals to work with children and vulnerable adults. If the fact of barring is not to be disclosed, then, where appropriate and relevant, the circumstances leading to the barring decision should be disclosed.

Clause 63 of the Protection of Freedoms Bill defines regulated activity relating to children, to focus on those roles with close and regular unsupervised interaction with children, or roles in specified settings such as schools and children’s homes. The NSPCC is concerned about the proposals to remove some supervised work, work with 16 and 17 year olds and supervised voluntary work in prescribed settings from the regulated activity category. These concerns are explained in more detail below.

Supervised workers

Regulated activity will no longer include "any supervised teaching, training or instruction of children or the provision of any care or supervision of children by a person who is being supervised by another [5] " unless such activities take place by a paid person in specified places, such as a school, child care setting, children’s home or children’s centre (volunteers in supervised work in these settings are exempt).

Supervised employees and volunteers however may still able to develop and exploit relationships with children and therefore we believe that they should not be exempt from vetting and barring arrangements unless very closely monitored. For example, a volunteer part-time teaching assistant in a classroom of 30 children, with only light-touch supervision by the classroom teacher, has opportunity to groom children which may lead to them meeting outside of the supervised setting. Furthermore, the voluntary and community sector in particular, has a more fluid structure and the distinction between supervisors and others is not always clear.

The Bill currently states that there should be ‘regular, day to day’ supervision. The NSPCC feels that supervision should be defined more tightly in the Bill, so that only cases where there is close and constant supervision of an individual’s work with children are exempt from regulated activity. It would be helpful if this definition was also reinforced in guidance.

Those working with 16/17 year olds

The Bill proposed exempting from regulated activity many activities relating to 16/17 year olds. The NSPCC was concerned by the proposal given we consider this to be an area where there are particular risks and a strong evidence base suggesting the need for additional safeguards. However, we have had helpful discussions with Ministers and of officials and welcome the government’s intention to bring forward an amendment to the Bill to remove the exemption to work with 16/17 year olds.

Volunteers in prescribed settings

The revised definition of regulated activity distinguishes between paid and unpaid employees in some settings. For example, paid work with children in schools counts as regulated activity, but supervised voluntary work does not. So a person may be barred from being a teacher or school caretaker, but permitted to work as a voluntary classroom assistant. We think this distinction and whether an individual is paid or gives their time freely does not affect the level of risk they may pose. While we welcome the Government’s intention to encourage volunteering, decisions about thresholds for vetting and barring should be made on the basis of risk and volunteers are no less likely to harm a child than paid employees. In fact, as recruitment processes can be lighter touch for volunteers, it can be easier for dangerous adults to gain unpaid positions than paid ones. The NSPCC suggests that Government should amend the text in paragraph 5 of clause 63 of the Protection of Freedoms Bill so that it does not distinguish between paid and unpaid workers.

2. Information provided on enhanced CRB checks for non-regulated activity

Ultimately, any positions where an individual can gain a position of trust and has close regular contact with children or vulnerable adults should be regulated activity so that barred people cannot work in these positions.

The UK Government’s proposals to scale back the definition of regulated activity in the Protection of Freedoms Bill mean that many more positions will not count as regulated activity. While employers will still be able to apply for a Enhanced Criminal Record Disclosure when a post is outside of regulated activity but involves regular work with children or young people it is important to understand what enhanced CRB certificates do and do not contain for these positions: They will provide relevant conviction and non-conviction police intelligence, but will not reveal if someone is barred, or if the ISA has information on them that is not known to the police [6] . In some situations, police information on CRB checks may give a full picture of the risk an individual is known to pose to children and vulnerable adults, but this is not always the case. We know that abuse, particularly sexual abuse, is under reported, and there will be some cases where information reported to the ISA is not known to the police. In these cases a person could be barred, but their CRB check would not reveal the full extent of their concerning behaviour. The ISA might receive referrals and verify that an individual has exhibited worrying behaviour but this would not automatically be known to the police.

To illustrate, an individual might be dismissed from a series of positions as a sports coach because of concerns about their behaviour with children. The organisations involved might refer these concerns to the ISA, but not to the police because they do not feel there are sufficient grounds for a prosecution, or because the children involved are reluctant to pursue the issue further. The ISA might look into the incidents and decide that they have sufficient information to bar the person from regulated activity. However if this individual then applied to work as a supervised volunteer helper at their local sports club, any CRB check would not reveal the barring or the incidents that led to this bar since these would not be captured in police intelligence.

To close this gap, the NSPCC believes that the Government could take steps to ensure that employers get more relevant information through the non-conviction information on enhanced CRB checks. There are a number of ways of doing this for example the Bill could place a duty on the ISA to report significant information it receives to the police and could extend the duty to refer, so that organisations who refer information to the ISA also pass this information on to the police. This would mean that intelligence about an individual would available to the police to reveal as part of relevant non-conviction information on an enhanced CRB certificate if they judge it to be appropriate. It would also enable the police to be alert to, and manage any risks and individual may pose. If these duties are not included in primary legislation then a provision of statutory guidance to emphasise the need for employers and organisations to report incidences involving harm or risk of harm to children to the police as well as ISA could be an alternative.

3. Inclusion on barring lists

Clause 66 of the Bill changes the tests used to determine whether someone should be placed on the ISA barred lists, which would prevent them from working in regulated activity. It states that people can only be placed on the barred list if they are, have been, or might in the future be engaged in regulated activity. If this test is strictly applied (ie. if the ISA looks for firm evidence that a person may be inclined to work in regulated activity in the future) then it could mean many people are exempt from inclusion on the barred lists.

The NSPCC is concerned by the implications of this change. It means that a person who harmed children or posed a risk of harm outside of regulated activity would not trigger an employer-referral to ISA or a subsequent bar. Therefore they could continue to have close contact with children, and might in the future, be able to begin working in regulated activity.

This change removes the opportunity to identify and address potentially concerning and/or abusive behavior at an early stage. We know that some abusers can be effectively deterred if their behavior is identified and addressed early on. The NSPCC believes that employers should be encouraged to refer concerns about any individuals working with children or vulnerable adults, irrespective of whether or not they are working in regulated activity.

4. Portability, continuous updating and costs

Clause 80 of the Bill enables CRB checks to be portable: If an applicant subscribes to updating arrangements, employers will be able to check online to see if new information has been generated since the CRB certificate was issued which means a new certificate should be applied for. The NSPCC welcomes the introduction of portable CRB checks, which greatly simplifies the scheme and reduces bureaucracy.

However there are a number of questions about the practicalities of the arrangements; for example, barring information only provided on enhanced checks for people wishing to work in regulated activity results in checks not being portable between non-regulated and regulated positions.

This clause also provides for the payment of an initial fee for CRB checks, and then an annual subscription fee to enable employers to see if any new information is available. Government has stated that CRB checks will still be free for volunteers but, so far, it is not clear if they will also be exempt from this ongoing subscription. We are asking for reassurance on this since it reinforces the removal of barriers to individuals becoming volunteers. Also, if volunteers don’t subscribe to online checks this will create a two tier system whereby paid staff have portable checks, but voluntary workers have to get a new certificate every time they enter a new job.

March 2011


[1] Child Maltreatment in the UK: A Study of the prevalence of child abuse and neglect, NSPCC, 2000

[2] http://news.bbc.co.uk/1/hi/uk/3312551.stm

[3] http://www.homeoffice.gov.uk/crime/vetting-barring-scheme

[4] http://www.homeoffice.gov.uk/publications/crime/criminal-records-review-phase1/criminal-records-review?view=Binary

[5] Paragraph 258, Page 54, Explanatory Notes for the Protection of Freedom Bill

[6] The ISA has a variety of information at its disposal when making a barring decision. Enhanced CRB checks provide relevant conviction and non-conviction police intelligence. The ISA also has information collected from organisations who have a “duty to refer”. It also

[6] the power to require organisations to provide information, and is entitled to receive information from any source, provided that it ensures that it is relevant to its consideration.