Protection of Freedoms

Memorandum submitted by the NSPCC (PF 61)

This briefing sets out the NSPCC’s position on a number of amendments which will be considered by the Protection of Freedoms Bill Committee on 3rd May 2011.

Amendment 131

Clause 63, page 45, line 45, leave out subsection (10).

What does the Bill propose?

Clause 63 of the Protection of Freedoms Bill revises the definition of Regulated Activity, i.e. those positions covered by vetting and barring arrangements.

Subsection 10 of Clause 63 exempts people who work closely with 16 and 17 year olds from Regulated Activity (unless they are providing personal, social or health care). This means these people would not be covered by vetting and barring arrangements: Employers will not have to CRB check people who work in these positions, and even if they do, they will not be told if the individual is barred by the Independent Safeguarding Authority (ISA.)

What difference will this amendment make?

This amendment removes the proposed exemption, so that work with 16 and 17 year olds is treated in the same way as work with young children when defining Regulated Activity.

Why does the NSPCC support this amendment?

The NSPCC strongly supports this amendment because there is compelling evidence that 16 and 17 year olds are vulnerable to abuse from adults who work closely with them. This is particularly true in sport settings where young athletes develop closeness and levels of trust with coaches, which can be exploited by those who groom them with the intention of developing a relationship. It is therefore important that adults who gain positions of trust with these young people are properly checked. Under the United Nationals Convention on the Rights of the Child, 16 and 17 year olds are still children and deserve the same level of protection as other children.

Amendments 148 and 149

Clause 76, page 63, line 19, after ‘officer’ insert ’,

d) any prescribed purpose’.

Clause 76, page 63, line 19, at end insert –

‘(4) After section 50A(1) of that Act insert –

"(1A) ISA must, for use for any of the purposes mentioned in subsection (1), provide to any chief office of police who has requested it information as to whether a person is barred.

(1B) ISA may, for use for the purposes of the protection of children or vulnerable adults, provide to a relevant authority any information which ISA reasonably believes to be relevant to that authority.

(1C) ISA must, for use for the purposes of the protection of children or vulnerable adults, provide to any relevant authority who has requested it information as to whether a person is barred."

(5) After section 50A (3) of that Act insert –

"(4) In this section "relevant authority" means –

(a) the Secretary of State exercising functions in relation to prisons, or

(b) a provider of probation services (within the meaning given by section 3(6) of the Offender Management Act 2007).

What does the Bill propose?

Section 50A of the Safeguarding Vulnerable Groups Act 2006 gives the ISA a power to provide any information to a police officer for the prevention, detection and investigation of crime and the apprehension and prosecution of offenders.

The Protection of Freedoms Bill adds a paragraph to Section 50A, to give the ISA a power to provide the police with information for the purpose of recruitment to the police service.

What difference will these amendments make?

Amendment 148 gives the ISA the power to provide information to the police for any prescribed purpose.

Amendment 149 creates an obligation for the ISA to provide barring information to the police on request, and also gives the ISA a power to share relevant information with the Secretary of State exercising functions in relation to prisons, and with probation providers. Prison and probation services would benefit from knowing that an individual has caused harm to children or vulnerable adults, so that this information is taken into account in the rehabilitation and management of offenders.

Why does the NSPCC support these amendments?

The NSPCC supports any moves to enable and encourage the ISA to share information with the police and other relevant organisations who can help keep children safe.

At the moment, there are individuals who are barred from Regulated Activity because they are judged by the ISA to pose a risk to children or vulnerable adults, but who are not known to the police. Roger Singleton, Chair of the ISA has estimated that one in five people who are barred by the ISA have "not been near the police" [1] .

It is important to ensure that when there are concerns about an individual that are significant enough to lead to a bar that these concerns are passed to the police. This would ensure that police are able to alert employers to concerns about an individual in the non-conviction information on a CRB certificate. It would also enable the police to be alert to and manage any risks and individual may pose.

Amendment 166

Clause 70, page 53, line 28, at end insert –

‘(4) The sponsor of any individual engaged in Regulated Activity as listed in the Safeguarding Vulnerable Groups Act 2006 will be informed as to whether that individual is on a barred list held by the Independent Safeguarding Authority.’

What does the Bill propose?

Under the proposed reforms, an employer or voluntary organisation who employs someone to work in Regulated Activity will only find out that that individual is barred when they receive their CRB certificate. This CRB certificate will first be sent to the individual, who must then share it with their employer. If an individual is barred whilst already in employment, the employer will not find out about this until another CRB check is carried out.

What difference will this amendment make?

This amendment suggests that employers or volunteering organisations that provide Regulated Activity (here called ‘sponsors’) will always be informed when an individual who works in, or applies for, a regulated position in their organisation is barred. This would mean they do not have to wait until a CRB check is carried out and the individual shares their CRB certificate.

Why does the NSPCC support this amendment?

The NSPCC supports this suggestion because it ensures that organisations know instantly when someone is barred and take necessary steps to prevent that person from working in Regulated Activity.

Amendment 167

Clause 63, page 44, line 10, leave out subsection (5) and insert –

‘(5) After paragraph 1(2) insert –

"(2A) Work falls within this sub-paragraph if it is any form of work, other than any such work which –

(a) is undertaken on a temporary or occasional basis, and

(b) is not an activity mention in paragraph 2(1) disregarding paragraph 2(3A) and (3B) (b).".’.

What does the Bill propose?

Under the vetting and barring arrangements, nearly all work in some ‘prescribed settings’ such as schools counts as Regulated Activity. Sub-section 5 of clause 63 exempts some people in these settings.

Sub-section 5 distinguishes between paid and unpaid employees in prescribed settings. It proposes that paid work in prescribed settings that is undertaken as part of a contract for occasional or temporary services should be exempt from Regulated Activity, unless it is an activity described in paragraph 2(1) of schedule 4 of the act. It also proposes that similar temporary or occasional unpaid work in prescribed settings should also be exempt from Regulated Activity, and also says that unpaid work should be exempt from Regulated Activity if it is supervised. This means that, for example, a paid teaching assistant working under supervision with children in schools may be included in Regulated Activity, but an unpaid assistant in a similar post would not.

What difference will this amendment make?

This amendment removes this distinction so that paid and unpaid work are treated the same. Unpaid staff in schools will not be exempt from Regulated activity simply because they are supervised.

Why does the NSPCC support this amendment?

The NSPCC welcomes this amendment. 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

Amendments 168-173

Clause 63, page 44, line 23, leave out ‘day to day’ and insert ‘close and constant’.

Clause 63, page 45, line 28, leave out ‘day to day’ and insert ‘close and constant’.

Clause 63, page 45, line 38, leave out ‘day to day’ and insert ‘close and constant’.

Clause 63, page 44, line 23, leave out ‘day to day’ and insert ‘regular and direct’.

Clause 63, page 45, line 28, leave out ‘day to day’ and insert ‘regular and direct’.

Clause 63, page 45, line 38, leave out ‘day to day’ and insert ‘regular and direct’.

What does the Bill propose?

Clause 63 of the Protection of Freedoms Bill exempts many positions from Regulated Activity simply by virtue of them being supervised on a ‘regular, day to day’ basis.

Regulated Activity relating to children no longer includes any supervised teaching, training or instruction of children or the provision of care or supervision of children, by a person who is being supervised by another. The only exceptions to this are certain types of personal care or health care provided to children, or where activities are carried our by a paid person in a specified place such as a school, childcare setting, children’s home or children’s centre.

If supervised activity is exempt from vetting and barring arrangements, this means individuals who work in these positions do not have to be CRB checked, and that barred individuals can work in these positions.

What difference will these amendments make?

These amendments tighten up the definition of supervision, so that instead of ‘regular, day to day’ supervision being sufficient for exemption from Regulated Activity, supervision must be either ‘close and constant’ (amendments168-170) or ‘regular and direct’ (amendments 171-173).

Why does the NSPCC support this amendment?

The NSPCC strongly believes that people who work with closely children on a frequent and regular basis should be covered by Regulated Activity unless they are under close supervision, which is sufficient to ensure they are not able to harm children. ‘Regular, day to day’ supervision is not sufficient to keep children safe.

It is difficult to define in one sentence on the face of the Bill, the nature of supervision that would be acceptable for someone exempt from Regulated Activity. We can articulate clear examples of what we believe should and should not be Regulated Activity:

• An expert speaker who goes to Scout Groups to deliver sessions on a particular issue, and who works with the whole group with a Scout leader watching over the session need not be in Regulated Activity, since the Scout leader is able to watch what he is doing all the time, and he or she cannot develop close relationships with particular children.

• An assistant football coach who coaches a group of children for significant periods of time on a pitch that is away from where the main coach is working should be in Regulated Activity, since no one is directly supervising his interactions with the children, and he has the opportunity to develop close relationships which could be exploited.

It is difficult to define a clear threshold that allows us to distinguish between these cases, but it is clear that the current requirement of ‘regular, day to day supervision’ is not sufficient since the assistant coach in the example above is under regular supervision from his main coach. ‘Close and constant’ or ‘regular and direct’ supervision are more satisfactory. The NSPCC prefers the phrase ‘close and constant’ supervision, because we believe that individuals who are left alone with children in their work should always be CRB checked.

Whatever definition is used on the face of the Bill, clear guidance will be needed to support employers and volunteering organisations to understand what counts as supervision.

May 2011


[1] Evidence given to the Protection of Freedoms Bill Committee, 21 st March 2011