Protection of Freedoms Bill

Memorandum submitted by the Public and Commercial Services Union (PF 56)


On 11 February 2011 the government published the outcomes of the reviews that it commissioned in October 2010 into the proposed Vetting and Barring Scheme (VBS) and the Criminal Record Checking (CRC) regime in England and Wales.

Within the Protection of Freedoms Bill, chapters 1 and 2 of Part 5 of the bill propose changes to the way the Vetting and Barring Scheme and the Criminal Records Bureau operate, through amendments to the Safeguarding Vulnerable Groups Act 2006 and Part V of the Police Act 1997.

Each review made key recommendations which are summarised in annexes A and B.

PCS represents 86% of staff at the Criminal Records Bureau (CRB) as well as staff at Independent Safeguarding Authority (ISA).

PCS response to recommendations

Having now had time to consider the recommendations our response is set out below:

(i) PCS recognises that there is always room for improvement in the provision and delivery of services and welcomes these reviews of the current CRC regime and services and the previous plans for the VBS.

(ii) While we welcome some of the key recommendations of these reviews, such as tighter monitoring and policing of eligibility, some of the findings of the reviews amount to a disproportionate response to some of the legitimate concerns raised by members of the public and others about the current CRC regime and VBS proposals.

(iii) For example, in the independent review of the current CRC arrangements, Sunita Mason, makes reference to the ‘Your Freedom’ website as a source of some of the key issues or concerns about the current CRB service and arrangements. However, she fails to mention that there were only 186 complaints about the CRB or the VBS proposals on the ‘Your Freedom’ website. This also ignores the CRB’s customer satisfaction and public approval ratings, which were well in excess of 90% in independent Ipsos/Mori surveys conducted in 2010.

(iv) PCS is also concerned that by focussing too much on the concerns of a small number of unsatisfied individuals, it is ignoring the wider public good that these systems exist to deliver and is potentially increasing the risk to the safety of children and vulnerable adults that these systems are designed to protect. For example, we believe the proposal to scale back eligibility for CRCs, so that they are no longer available for under 16s or, in certain instances, they are no longer required for certain voluntary positions, creates a serious risk that persons with serious criminal convictions might be placed in positions of trust without the necessary safeguards and checks having been conducted.

(v) PCS is also concerned about the potential scope and pace of some of these proposed changes and believes that introducing too much change too quickly could seriously jeopardise the current safeguarding arrangements and services. We will, therefore, be calling on the government to think again about some of these proposals and, if necessary, asking MPs to ask questions and table amendments to the Protection of Freedoms (PoF) Bill that is currently passing through parliament to prevent or mitigate some of the proposed changes.

(vi) PCS is also concerned that, at a time when the government is purporting to reduce the burden on the taxpayer, businesses and public finances, it is has recently tabled proposals (SI 719/2011) to increase the fee for an enhanced CRC by £8 with effect from 6 April 2011 (from £36 to £44), an increase of 22%. This increase will not bring any clear or immediate benefits or improvement to the service and has been introduced without any prior equality impact assessment or consultation with key stakeholders or customers.

Clauses in the Protection of Freedoms Bill

PCS has concerns relating to specific clauses in the Bill which are detailed below with proposed amendments:

· Clause 63 of the Bill seeks to restrict the definition of a ‘regulated activity’ relating to children, to only those roles which involve close and regular unsupervised interaction or paid roles in specified settings such as schools and children’s homes.

These amendments ignore the ability of people who work in supervised or voluntary roles to build significant relationships with children. For example, somebody working as a volunteer children’s football coach would no longer need to be subject to vetting and barring under these arrangements.

Proposed Amendment - Remove this clause and retain current provisions.

· Clause 66 changes the criteria used to determine if somebody should be placed on the ISA barred lists. It restricts the Independent Safeguarding Authority’s ability to place somebody on the barred lists unless they are, have been or might in the future be engaged in a regulated activity.

If this criteria is applied as drafted, it could mean that many people who are unsuitable to work with children will be exempt from inclusion on the barred lists

The Government have also previously confirmed that barring information will only be revealed for roles classed as a regulated activity, meaning employers will have no access to the barred status of those in non-regulated activities which nevertheless involve close contact with children and the vulnerable.

Proposed Amendment – Remove this clause and retain current provisions

· Clause 78 (1) (aa) introduces a minimum age of 16 for applicants applying for a CRB check.

We do not believe this is consistent with the legal age of criminal responsibility in England and Wales i.e 10 years old. We believe that this proposal could lead to some serious, relevant convictions being missed, particularly in the case of positions such as fostering and adoption and for home-based occupations.

Proposed Amendment – Remove clause and retain current provisions.

· Clause 79 (2) seeks to place a limit on the amount of time that police forces have to respond to requests for non-conviction information on applicants.

The independent review of Criminal Record Checking carried out by Sunita Mason and published on 11 February recommended that this time limit should be 60 days.

Whilst we recognise that delays can lead to inconvenience and hardship for applicants, we believe that this will bring little benefit to employers or applicants as it will lead to incomplete checks being issued and creates the potential for recruitment decisions being made by employers before all relevant information is known.

It could also lead to the possibility that Police will release more information than necessary through ‘common law’ powers, as they will be eager to remove any liability or risks that this deadline will create. This will only lead to less transparency and consistency for applicants.

Proposed Amendment – Remove clause and retain current provisions


PCS very much welcomes these reviews and fully recognises that there is always room for improvement in the provision and delivery of public services. It also recognises and agrees that there is always a proper place for reviewing the scope and balance of public services between an unnecessary intrusion into the private lives of individuals and the wider public good of protecting children and vulnerable adults.

However, we are concerned that through the recommendations of these reviews and the government’s response, the balance is tipping too far and that some of these recommendations represent a disproportionate response to exaggerated problems and shortfalls in the current arrangements. It will, therefore, be looking to engage constructively with the government and the Home Office /employer locally and nationally to work through the detail of these proposals and seek to amend or mitigate what it perceives to be any negative effects on the jobs of our members or the value, quality and integrity of the services they provide.

Annex A - Overview of Criminal Records Review Recommendations

· I recommend that eligibility for criminal records checks is scaled back (recommendation 1)

· I recommend that criminal records checks should be portable (transferable) between jobs and activities (recommendation 2)

· I recommend that the Criminal Records Bureau (CRB) introduce an online system to allow employers to check if updated information is held on an applicant (recommendation 3)

· I recommend that a new CRB procedure is developed so that the criminal records certificate is only issued directly to the individual applicant (recommendation 4)

· I recommend that the Government introduces a filter to remove old and minor conviction information from criminal records checks (recommendation 5)

· I recommend the introduction of a package of measures to improve the disclosure of police information to employers (recommendation 6)

· I recommend that the CRB develop an open and transparent representations process and that the disclosure of police information is overseen by an independent expert (recommendation 7)

· I recommend that where employers knowingly make unlawful criminal records check applications the penalties and sanctions are rigorously enforced (recommendation 8)

· I recommend that basic level criminal record checks are introduced in England and Wales (recommendation 9)

I recommend that comprehensive and easily understood guidance is developed to fully explain the criminal records and employment checking regime (recommendation 10)

Annex B - Overview of VBS Recommendations

a) A state body should continue to provide a barring function to help employers protect those at risk from people who seek to do them harm via work or volunteering roles.

b) The Criminal Records Bureau (CRB) and Independent Safeguarding Authority (ISA) should be merged and a single Non-Departmental Public Body or Agency created to provide a barring and criminal records disclosure service.

c) The new barring regime should cover only those who may have regular or close contact with vulnerable groups.

d) Barring should continue to apply to both paid and unpaid roles.

e) Automatic barring should apply for those serious offences which provide a clear and direct indication of risk.

f) Registration should be scrapped – there should be no requirement for people to register with the scheme and there will be no ongoing monitoring.

g) The information used by the state barring body (currently the ISA) to make a barring decision should be serious in nature.

h) Criminal records disclosures should continue to be available to employers and voluntary bodies but should be revised to become portable through the introduction of a system which allows for continuous updating.

i) The new regime should retain current arrangements for referrals to the state barring body (currently the ISA) by employers and certain regulatory bodies, in circumstances where individuals have demonstrated a risk of harm to children or vulnerable adults.

j) The current appeals arrangements should be retained.

k) The state barring body should be given a power to vary review periods in appropriate circumstances.

l) Services relating to criminal records disclosure and barring provisions should be self-financing. We recommend the Government consults on raising the cost of the criminal records disclosure fee to cover the costs incurred.

m) The new system will retain two offences; it will continue to be an offence for a barred person to work with vulnerable groups in regulated activity roles. It will also be an offence for an employer or voluntary organisation knowingly to employ a barred person in a regulated activity role.

n) Finally, the Government should raise awareness of safeguarding issues and should widely promote the part everyone has to play in ensuring proper safeguarding amongst employers, volunteer organisations, families and the wider community.

April 2011