House of Lords - Explanatory Note

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Session 2005 - 06
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Safeguarding Vulnerable Groups Bill [HL]

These notes refer to the Safeguarding Vulnerable Groups Bill [HL] as introduced in the House of Lords on 28th February 2006 [HL Bill 79]

SAFEGUARDING VULNERABLE GROUPS BILL [HL]

EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Safeguarding Vulnerable Groups Bill [HL] as introduced in the House of Lords on 28th February 2006. They have been prepared by the Department for Education and Skills in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. Where a clause or part of a clause does not seem to require any explanation or comment, none is given.

SUMMARY AND BACKGROUND

3.     The current system for vetting people who wish to work with children or vulnerable adults operates through employers obtaining a CRB disclosure for new job applicants. CRB disclosures give employers information about an individual's criminal records history, which informs their assessments about the individual's suitability to work with children or vulnerable adults.

4.     There are also three separate lists of persons who are barred from working with children or, as the case may be, vulnerable adults. These lists operate under different legislation and with different criteria and procedures: List 99 (maintained under section 142 of the Education Act 2002), the Protection of Children Act (POCA) List (maintained under the Protection of Children Act 1999) and the Protection of Vulnerable Adults (POVA) List (maintained under Part 7 of the Care Standards Act 2000).

5.     The Bichard Inquiry Report (June 2004), available from http://www.bichardinquiry.org.uk/, identified systemic failures in current vetting and barring systems. These included the following factors:

inconsistent decisions were being made by employers on the basis of CRB disclosure information

CRB disclosure information is only valid on the day of issue

there are inconsistencies between the List 99, the POCA list and POVA list

the current barring system is reactive to harmful behaviour rather than preventative

there are inconsistencies in police disclosure of information between police authorities

This Bill provides the legislative framework for a new vetting and barring scheme for people who work with children and vulnerable adults. A public consultation for the new scheme, Making Safeguarding Everybody's Business: A Post-Bichard Vetting Scheme (Ref: 1485-2005DOC-EN), ran from 5 April - 5 July 2005. This consultation paper and a summary of the responses to it can be found at www.dfes.gov.uk/consultations.

6.     The purpose of the new scheme is to minimise the risk of children and vulnerable adults suffering harm at the hands of those employed to work with them. It seeks to do this by:

ensuring that where evidence suggests an individual presents a risk of harm, he/she is barred as soon as possible from working with children and/or vulnerable adults by a centralised vetting process; and

ensuring that where an individual will be working closely with children and/or vulnerable adults, the employer is required to use only an individual who has been through this centralised vetting process.

7.     The Bill provides that -

There will be two aligned barred lists - one for those who are barred from working with children (the "children's barred list"), and one for those who are barred from working with vulnerable adults (the "adults barred list")

There will be an Independent Barring Board ("IBB"). The IBB will maintain the children's barred list and adults' barred list and will make decisions about whether an individual should be included in a barred list.

A person will be able to apply to become subject to monitoring by the Secretary of State in respect of regulated activity relating to children or vulnerable adults or both. Where a person is subject to monitoring the Secretary of State obtains details of that person's convictions and cautions and relevant information from police forces and may pass such relevant information to the Independent Barring Board for its purposes.

There will be a right of appeal against inclusion in a barred list, with leave and on a point of law, to the Care Standards Tribunal

There will be four categories of behaviour that may lead to inclusion on one or both of the barred lists:

Behaviour specified in regulations that will lead to automatic inclusion on one or both of the barred lists

Behaviour specified in regulations that will lead to inclusion on one or both of the barred lists subject to consideration of representations

Specified behaviour that leads to consideration for inclusion on one or both of the barred lists

Risk of harm: where evidence suggests that an individual may present a risk of harm to children or vulnerable adults, this evidence leads to consideration for inclusion on one or both of the barred lists

An individual who is included in the children's barred list must not engage in regulated activity in relation to children. An individual who is included in the adult's barred list must not engage in regulated activity in relation to vulnerable adults

Broadly, regulated activity will cover close contact work in key settings such as schools and care homes and key positions of responsibility such as the children's commissioner and the director of adult social services.

A barred individual may engage in a controlled activity but the employer or other person with responsibility for managing that activity must have regard to statutory guidance issued by the Secretary of State in relation to the steps to be taken by that authority before permitting a person to engage in a controlled activity.

Broadly, controlled activity will cover ancillary work in health and further education settings such as cleaning, catering and administration.

There will be a series of criminal offences to:

a)      prevent barred individuals from engaging in regulated activity with children or vulnerable adults

b)      ensure that people permitted to engage in regulated activity with children or vulnerable adults are subject to monitoring

c)      ensure that relevant employers check whether an individual is barred before engaging an individual in a regulated activity with children or vulnerable adults

There will be monitoring of all those who have applied to become subject to it so that new information can be considered by the IBB.

Employers must check the barred status of an individual who they are allowing or intending to allow to engage in a regulated or controlled activity relating to children or vulnerable adults.

Information will be referred to the Secretary of State. The police will be under a duty to provide relevant information for monitoring purposes. Information may also come from employers, professional and regulatory bodies, local authorities and others.

TERRITORIAL COVERAGE

8.     The Bill extends to England and Wales. This reflects the current position in relation to POCA and POVA and is currently the agreement for List 99.

9.     Northern Ireland: the following provisions in the Bill extend directly to Northern Ireland: the establishment of the Independent Barring Board; provisions relating to the information monitor for the purposes of the Police Act 1997; amendments to the Police Act 1997; and the provision of information to professional regulatory bodies that are not devolved. The intention is that the remainder of the provisions in the Bill will be applied to Northern Ireland through an Order in Council. This will enable provisions specific to Northern Ireland to be made.

10.     Scotland: the Bill does not extend to Scotland save in so far as it includes provisions for the supply of information from the Independent Barring Board and the Secretary of State to professional bodies. But that does not have effect in relation to a profession in so far as provision may be made for the regulation of that profession by an Act of the Scottish Parliament.

11.     Crown Dependencies: The Insular Authorities have agreed that the Bill should include a permissive extent clause. This allows for any part of the Bill to extend through an order in council to the Isle of Man, Jersey or Guernsey in due course, subject to necessary developments in their systems and legislation.

COMMENTARY ON CLAUSES AND SCHEDULES

BARRING

Clause 1: Independent Barring Board

12.     Clause 1 establishes a new statutory body to be known as the Independent Barring Bo     ard (the IBB).

Schedule 1 -Independent Barring Board

13.     This schedule makes provision regarding IBB including its membership and staffing arrangements. It also sets out the responsibilities it will have for reporting to Parliament and the Secretary of State.

14.     It allows IBB to delegate its functions internally to allow its workload to be managed effectively. It can also delegate its non-core functions, for example purely administrative functions, to people outside IBB, such as for example, to the Criminal Records Bureau.

Clause 2: Barred lists

15.     This clause provides that the IBB must establish and maintain two new barred lists - a children's barred list and an adults' barred list. Schedule 2 makes provision regarding inclusion on the barred lists.

Schedule 2 Barred Lists

Part 1 sets out how someone may be included in the children's barred list. Part 2 covers the equivalent rules in relation to the vulnerable adults' barred list.

In relation to both lists there will be four types of cases:

Paragraphs 1 and 6 make provision for automatic inclusion. Individuals who satisfy any of the criteria which are prescribed in regulations made under paragraph 19 will be automatically included on the barred list. There will be no right to make representations.

Paragraphs 2 and 7 make provision for inclusion subject to consideration of representations. Individuals who satisfy any of the criteria prescribed in regulations made under paragraph 19 will be automatically included on the barred list but given the right to make representations to IBB as to why they should be removed from the list.

Paragraphs 3 and 8 are concerned with behaviour: Where individuals have engaged in certain behaviour, as specified in the Bill, IBB will allow the individual to make representations on the circumstances of their case, consider these representations and then decide whether it would be appropriate to include the individual on the children's barred list.

Paragraphs 5 and 10 are concerned with risk of harm. Where there is evidence that an individual may present a risk of harm (even if he has not engaged in any particular behaviour), IBB will allow the individual to make representations on his case, consider these representations and then decide whether it would be appropriate to include the individual on the children's barred list.

16.     Part 3 of the Schedule makes additional provisions in relation to barring.

17.     Paragraph 14 makes provision for individuals to be able to apply to the IBB to have their case reviewed after the minimum prescribed period has elapsed. The IBB must give leave for a review to happen and this will require the IBB to be satisfied that the individual's circumstances have changed since he was included in the list. It also sets out the possible criteria for establishing the minimum period of time that must elapse before the review can take place.

18.     Paragraph 15 states that a person who was included on a barred list only as a result of a conviction for an offence against a child must be removed from the list if a court has considered making a disqualification order under the Criminal Justice and Court Services Act 2000 in respect of that conviction and has decided not to.

19.     Paragraph 16 This clause provides a power for the IBB to obtain relevant police information in relation to individuals within the scheme.

20.     Paragraph 19 provides the power to prescribe criteria for the purposes of automatic barring and barring subject to representations. This may be based on serious offences.

21.     Clause 4: Appeals This clause provides for an appeal to the Care Standards Tribunal on a point of law against a decision of the IBB to include or keep someone on the children's or vulnerable adults' list. It provides for regulations specifying Tribunal procedure. The Court of Appeal will hear appeals on a point of law against a Tribunal decision.

REGULATED ACTIVITY

Schedule 3- Regulated activity

22.     Paragraphs 1 to 4 define regulated activity relating to children as follows:

23.     Certain types of activity (specified in paragraph 2(1)) either carried out frequently (e.g. teaching, caring for children) or carried out other than frequently in an establishment specified in paragraph 3(1), such as school or a children's home.

24.     Any activity carried out frequently in a specified establishment which gives a person the opportunity to have contact with children in pursuance of his duties there (such as a school secretary)

25.     The inspection of specified establishments on behalf of the organisations specified in paragraph 1(5)

26.     The day-to-day management or supervision or a regular basis of any person carrying out the above

27.     The exercise of a function of the positions specified in paragraph 4(1) (e.g. school governor, children's commissioner, trustee of children's charity)

28.     Paragraph 5 - Regulated activity relating to vulnerable adults

This paragraph covers activity that individuals on the adults barred list will not be able to undertake.

It is important to note that Clause 42 of the Bill prevents any activity within the context of a familial relationship and certain types of activity within the context of a friendship from being a regulated activity relating to children or vulnerable adults for the purpose of the Bill

Regulated activity providers

29.     Clause 6: Regulated activity providers This clause defines a "regulated activity provider" for the purpose of the Bill, on whom a number of obligations are imposed by its other provisions. A regulated activity provider is an individual or organisation responsible for the management or control of regulated activity who makes arrangements for a person to engage in that activity. Those who employ others to engage in a regulated activity will be caught within the definition, but there is no requirement that there should be a contract, so voluntary work is covered. A person who simply uses services provided by another (for example, a nanny who places a child in the care of a supermarket crSche) will not be a regulated activity provider because [s]he will have no responsibility for the management or control of the regulated activity. But the supermarket in this case will be a regulated activity provider.

30.     A person who makes arrangements for another to engage in regulated activity for his own benefit or for a child or vulnerable adult who is a member of his family or is a friend of his (construed in accordance with section 42) does not fall within the definition of "regulated activity provider". So, for example, a parent who employs a nanny will not be a regulated activity provider for the purposes of the Bill.

Subsection (6) provides that a person who appoints, or participates in the appointment of, a person to a position referred to in that subsection is not a regulated activity provider. So, for example, those who elect the trustees of a children's charity will not be regulated activity providers for the purpose of the Bill or subject to the obligations imposed on regulated activity providers.

Subsection (7) makes provision for liability under the Bill in any case where a regulated activity provider is an unincorporated association.

Restrictions on participating in regulated activity

31.     Clause 7: Barred person not to engage in regulated activity This clause makes it an offence for a barred person to seek to, offer to or engage in an activity from which he is barred. Subsection (3) provides a defence if the person can prove that he did not know, and could not reasonably be expected to know, that he was barred. A person who, for example, could not be contacted by IBB either when it was considering whether to include him in the list (so as to give him an opportunity to make representations) or when it made known its barring decision would benefit from this defence.

32.     Clause 8: Person not to engage in regulated activity unless subject to monitoring Subsection (1) makes it an offence for a person to engage in regulated activity with the permission of a regulated activity provider unless he is subject to monitoring. (A person may apply to become subject to monitoring under clause 21.)

33.     Subsection (2) makes it an offence for a person to act as governor of an educational establishment of the kind mentioned in subsection (4) unless he is subject to monitoring in relation to regulated activity relating to children.

34.     Subsection (7) provides that no offence is committed if a person engages in a regulated activity in an establishment mentioned in paragraph 3(1) of Schedule 3 if he does so on an occasional basis while not being subject to monitoring in respect of a regulated activity relating to children. This means that a parent can come in to assist with certain activities in a school without having to be subject to monitoring if he does so on an occasional basis.

35.     Subsections (5), (6), (8) and (9) make provision for those engaged in regulated activity by virtue of positions or appointments prior to the commencement of the clause. No offence is committed by a person who is not subject to monitoring where he continues to engage in regulated activity in that position or appointment where permission was granted (or, in the case of a governor, his appointment as governor took effect) before the commencement of the clause, until such time as the Secretary of State specifies by order. This is intended to enable the new regime to be phased in in relation to those who are currently engaged in activities which the Bill categorises as regulated activity.

36.     Clause 9: Use of barred person for regulated activity This clause makes it an offence for a regulated activity provider (defined in clause 6) and an individual to permit a person to engage in regulated activity if he knows or has reason to believe that the person is barred from that activity. There is a similar offence in respect of a personnel supplier (defined in clause 44) who supplies a person to a regulated activity provider.

37.     Clause 10: Use of person not subject to monitoring for regulated activity This clause makes it an offence for a regulated activity provider to permit an individual to engage in regulated activity if he knows or has reason to believe that he is not subject to monitoring in relation to that activity. A similar offence is created in relation to a personnel supplier who supplies a person in these circumstances.

38.     Provision equivalent to that in clause 8(7) is made in subsection (4) in relation to an establishment mentioned in paragraph 3(1) of Schedule 3 (see paragraph 34 above).

39.     Provision equivalent to that in clause 8(5) is made in subsections (5) and (6) for pre-commencement positions and appointments (see paragraph 35 above).

40.     Clause 11: Regulated activity provider: failure to check This clause makes it an offence for a regulated activity provider to permit an individual to engage in regulated activity without first making an "appropriate check". An "appropriate check" is one made with the Secretary of State to obtain "relevant information" as defined in Schedule 4. "Relevant information" includes information as to whether or not the individual is barred from the relevant regulated activity or is subject to monitoring in relation to it and may be obtained either by making an application under Schedule 4 or by obtaining an Enhanced Disclosure from the Criminal Records Bureau.

Subsection (4) exempts certain regulated activity providers, mentioned in clauses 14 and 15, from the duty to check.

41.     Subsection (6) allows a regulated activity provider to rely on written confirmation obtained from another regulated activity provider.

42.     Provision equivalent to that in clause 8(7) is made in subsection (5) in relation to an establishment mentioned in paragraph 3(1) of Schedule 3 (see paragraph 34 above).

43.     Provision equivalent to that in clause 8(5) is made in subsections (7) and (8) for pre-commencement positions and appointments (see paragraph 35 above).

44.     Clause 12: Educational establishments: checks on members of governing body This clause provides that an appropriate officer commits an offence if he fails to obtain within a prescribed period relevant information (as defined in Schedule 4) in relation to a governor of an educational institution. The "appropriate officer" for each type of educational establishment, e.g. maintained schools, academies, etc. will be prescribed in regulations.

45.     Provision is made in subsections (3) and (4) for pre-commencement positions and appointments (see paragraph 35 above).

46.     Clause 13: Personnel suppliers and regulated activity This clause applies where a regulated activity provider permits an individual supplied by a personnel supplier to engage in regulated activity (e.g., a supply teacher supplied by an agency to a school). The regulated activity provider, instead of doing his own "appropriate check" for the purpose of clause 11, may in certain circumstances rely on written confirmation obtained from the personnel supplier that it (i) has ascertained that the individual is not barred from the relevant regulated activity and is subject to monitoring in relation to that activity and (ii) has no reason to believe that this has changed.

47.     Subsections (5) to (8) make it an offence for the personnel supplier who provides written information when he has himself either made no check or having made a check subsequently learns that the person is barred or is not subject to monitoring.

48.     Clause 14: Exception for requirement to make monitoring check This clause lists those regulated activity providers (in relation to vulnerable adults) exempted from the obligation to make an appropriate check under clause 11. Subsection (1) sets out where the exemption will apply, that is those who provide complementary or alternative therapies; those responsible for the management of a prison or a probation service; those providing a service or an activity because of their age, health or disability; those who provide housing (including sheltered housing); and those who lack capacity to make decisions and have someone appointed to do so on their behalf. This is because there are some sectors where we wish to enable a check to be made, but do not wish to make them mandatory. The clause allows for this list to be amended in the future.

49.     Clause 15: NHS employment This clause lists certain regulated activity providers exempted from the obligation to make an appropriate check under clause 11. This relates to NHS employers who use staff supplied by agencies (e.g. NHS Professionals) in certain NHS employment where the member of staff is already engaged in other NHS employment and so will have been checked for the purposes of that employment.

Controlled activity

50.     Clause 18: Controlled activity relating to children This clause defines controlled activity relating to children. Broadly, this is any activity in the FE and health sectors which is carried out frequently and involves the opportunity for contact with children or access to children's medical records but is not a regulated activity. This will include ancillary work in such sectors, such as cleaning, administrative work, etc.

51     Clause 19: Controlled activity relating to vulnerable adults This clause defines controlled activity relating to vulnerable adults. Broadly, this is activity in the health and social care sectors which is carried out frequently and involves the opportunity for contact with vulnerable adults or access to vulnerable adults' medical records but is not regulated activity. This will include ancillary work in such sectors, such as cleaning, administrative work, etc.

52     Clause 20: Controlled activity: guidance This clause provides that the Secretary of State (or the National Assembly for Wales as regards functions carried out in relation to Wales) can issue guidance to certain bodies such as NHS associates, FE institutions, local authorities as to the steps they should take when employing individuals to do controlled activities.

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Prepared: 3 March 2006