Protection of Freedoms Bill

Memorandum submitted by the Association of Managers in Education (PF 77)

The Association of Managers in Education (AMiE) provides trade union and professional services for over 6,500 leaders and managers in colleges and schools: it is the leadership and management section of ATL, the education union .

The Association wishes to comment on certain aspects of the bill that pertain to schools and colleges of further education.

Biometric data

1. The proposed requirement to obtain written permission, normally from both parents, before a school or college can obtain and process a child’s biometric data is an unnecessarily bureaucratic solution to a problem that does not exist. There is no evidence of abuse or misuse of such systems. In August 2008 the Information Commissioner issued a brief and balanced statement about the use of biometrics in schools. It contains a number of safeguards and while it addresses the issue of parental consent it does not advise that it is necessary to obtain written consent from both parents.

2. AMiE’s view is that Clauses 26 and 27 should be withdrawn and that if some further safeguard is necessary, parents should be given the option to withdraw their child from a biometric system in the same way that they can opt to withdraw them from religious education.

Restriction of the scope of the vetting and barring scheme

3. Clause 63: AMiE welcomes the fact that the government has reversed its decision to exclude children aged 16 and 17 from the protection afforded by the safeguarding legislation.

4. However, it has continuing concerns about the proposal to exclude supervised volunteers from regulated activity. Activity by supervised volunteers working with children or vulnerable adults (e.g. mothers or grandfathers assisting in a classroom) has been taken out of the scope of regulated activity. It will not be unlawful for a barred person to do it. And because it is not regulated activity even an enhanced CRB disclosure will not show that the person is barred. This is the nub of the problem caused by the two changes: it is reasonable to take supervised volunteers out of the scope of regulated activity so that the activity providers have the professional discretion to decide whether to carry out a CRB check but, by also changing the nature of the CRB disclosure so that it doesn't include barring information if the activity is not regulated, the activity provider isn't given the full picture about someone they think needs checking before being allowed to volunteer. The government is arguing that it will be possible to infer from the information on the certificate whether a person has been barred, but that will not always be the case and, if it is the case, why can't the certificate say so plainly?

5. Clauses 64 and 65 mean that no activity carried out by further education colleges will come within the scope of regulated activity with vulnerable adults. AMiE is deeply concerned by this as many vulnerable adults with learning and physical disabilities are supported in their difficult lives by their studies in further education. It is essential that they are given the protection of this safeguarding legislation.

6. Clause 66 alters the test for barring decisions so that a person may only be barred if they have been, are, or might in future be engaged in regulated activity. It is impossible to be certain that someone who is considered for barring will never in the future engage in regulated activity. Indeed, if someone has done something that warrants inclusion on a barred list, it is likely that they will in future seek employment or volunteer for a role that offers an opportunity for further misdeeds, but they are certainly not going to admit their intention to do so. People should be included on barred lists irrespective of their stated future intentions so that they will definitely appear on the list should they at some point apply to engage in regulated activity.

7. Clause 67 abolishes controlled activity. AMiE has long argued for this and welcomes the change.

8. Clause 68 puts an end to the proposal to establish the ISA registration database. Again, AMiE has long argued against this and welcomes the change.

9. Clause 70 deals with the review of barring decisions but it contains no proposals to change the arrangements for appealing against barring decisions. AMiE presented a successful motion to last year’s TUC Congress arguing that people should have the right of personal representation, not just written submissions, when appealing against a barring decision. Sunita Mason’s Phase 1 Review of the CRB regime in England and Wales recommends "that the CRB develop an open and transparent representations process" (recommendation 7). In the light of this and in the interests of natural justice and human rights, we would urge the government to allow personal representations in appeals against barring decisions.

10. Clause 76 rather surprisingly includes a provision changing the duty on a local authority to provide information to the ISA that might be relevant to a barring decision to mere discretion to do so. This seems perverse given that the Bichard Inquiry identified the failure to share information between authorities as the major failing leading to the Soham murders.

Changes to the CRB regime

11. Clause 77 means that CRB certificates will be issued only to the individual and not simultaneously to a potential employer. AMiE welcomes this change as it allows someone to make representations to the CRB about any inaccuracies in the certificate before it is seen by the employer. The crucial thing will be that this process should take place quickly so that employment opportunities are not lost. Nevertheless, we continue to support the position of ATL that the fee for CRB certificates should be paid by the employer rather than the employee.

12. Clause 79 also introduces welcome additional safeguards about the information that the police have the discretion to include in CRB certificates. These should also help to protect people from inaccurate allegations.

13. Clause 80 introduces a very welcome and simple procedure for updating CRB certificates and making them portable. This is so much better that the original ISA registration scheme and AMiE welcomes it wholeheartedly.

14. One final and vital plea concerning guidance:

We have already illustrated in paragraph 4 above the importance of the interaction between changes to the vetting and barring scheme and changes to the CRB regime. It is our understanding that the restrictions to the scope of regulated activity will not rule out the use of CRB checks for some non-regulated activity, principally that which was formerly regulated. The requirements and eligibility to apply for various levels of CRB certificates will be affected by this legislation, by sectoral regulations, and also by existing Statutory Instruments that might or might not be amended as a consequence of the legislation.

Much of the controversy about the current regime has arisen because people have not understood the requirements concerning CRB checks and therefore in many cases interpreted them over zealously,

It is essential that these matters are decided in a coherent and comprehensive way so that all the regulations are clear and consistent. It is similarly essential that the guidance that is to be issued about the new scheme clearly covers all aspects: vetting and barring in respect of regulated activity and CRB checks as they apply to both regulated and non-regulated activity. The guidance must bring together in one place this legislation, the associated statutory instruments, and sectoral regulations. Sunita Mason emphasises the importance of this: "I recommend that comprehensive and easily understood guidance is developed to fully explain the criminal records and employment checking regime" (recommendation 10).

May 2011