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Baroness Buscombe: My Lords, I thank the Minister for introducing the Bill to your Lordships' House. In principle, we on the Conservative Benches welcome the Bill. The safeguarding of vulnerable groups is an issue which must receive a constructive, cross-party approach. The Bichard report exposed an inadequate system of protection. It is positive to see that the Government are now legislating to rectify that. That said, with our support of the general objectives of the Bill, we have a number of questions and concerns about its implementation.
We welcome the establishment of the Independent Barring Board. Members of these barring boards must have the requisite skills to form objective and sensible conclusions. Under Schedule 1 to the Bill, the chairman and members,
"must appear to the Secretary of State to have knowledge or experience of any aspect of child protection or the protection of vulnerable adults".
Surely members of these boards must demonstrate more than just appearing to have knowledge or experience. They will be expected to make some difficult decisions. There is a real case for manning these boards with professionals seconded from various authorities such as the police and social services together with committed, proven and competent laymen.
One significant area of concern that needs to be addressed is why there is a need for two separate lists, rather than one central point of reference. Should an individual who is barred from working with vulnerable adults reasonably be permitted to work with children and vice versa? I certainly would not feel comfortable knowing that an individual barred from working with my children was providing care to my parents.
Research by the Ann Craft Trust has shown that one in five people who sexually abused older people had also sexually abused children. Abuse is about power, not age, and those people who abuse vulnerable adults will potentially abuse children, and vice versa.
Ultimately, there is a duty of care that must be provided to all vulnerable groups. It is telling that the Commissioner for Older People in Wales has been established along the same or similar lines and principles as the Children's Commissioner.
We accept that there may be circumstances where individuals need only be placed on one of the lists. However, it would be irresponsible for the Independent Barring Board not to be duty bound to consider individuals who come before it for both lists. If there is a possibility that an individual poses a threat to the vulnerable, there is a real case that the IBB must be obliged to consider them for both lists.
Will the lists be accessible over the internet? Who can access the lists? They must be secure, in which case what information will be accessible to employers? Will specific details relating to individuals being barred be available to those using the internet facility?
If the Criminal Records Bureau is to provide an administrative function, does it have the necessary resources to cope? We are aware that the computer
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system, Information Management, Prioritisation, Analysis, Co-ordination and Tasking (IMPACT), is not to be fully operational until 2010. That is certainly a worrying factor. For example, we have concerns about the proper vetting of agency staff, the self-employed and volunteers. Domestic employers must have sound guidelines. For example, within what actual proximity to children and vulnerable groups will barred individuals be permitted to come? Administrative and clerical staff who work in organisations that may deal with vulnerable groups on the fringe are certainly a cause for concern. The Bill contains sanctions against employers, with fines and a potential custodial sentence if they hire a barred individual. Given the necessary increased obligations placed on employers, what will responsible employer analysis of individuals involve?
Turning to the provisions in Schedule 2, Part 3 on "prescribed criteria", we have genuine concerns about exactly what those criteria will cover. For example, under paragraph 19 of Schedule 2:
Is that rather loose phraseology intentional? Surely, we should seek to be as unambiguous as humanly possible and to provide the IBB—which must have solid guidelines if these lists are to have complete integrity—with ultimate clarity.
It is welcome that those acquitted of an offence may still be on a list if the board deems them a threat. However, that must be subject to checks and balances. An individual must have a right of appeal to make his case to the IBB on a point of law. As for automatic inclusion on lists, we are aware that Liberty believes that the absolute nature of such a bar may breach the European Convention on Human Rights. Is that the case? The Explanatory Notes certainly allude to it. Furthermore, will those individuals subject to such automatic inclusion be permitted to appeal on a point of law? We will certainly want to monitor that area as the Bill progresses.
Notwithstanding the Government's possible intention to ensure "joined-up government", implementing this Bill will require more than co-operation in Whitehall. There must be co-operation and consultation on many levels. The IBB must look at evidence from a number of sources—including the courts, local authorities and the police—to build up a picture of an individual and whether they are a threat. Furthermore, in terms of a joined-up approach, it is welcome that competent bodies may make "findings of fact". Co-operation between the IBB and bodies such as the GMC, the General Teaching Council and General Social Care Council—among others that the Bill mentions—will be significant in monitoring questionable behaviour.
Will the Minister indicate how foreign nationals are to be monitored or barred? I listened with care to what the Minister said about arrangements for vetting and recruiting overseas staff. However, while cross-European co-operation is all very well, our information systems in the UK are not up to scratch. Liaison with foreign governments will certainly
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challenge that system. It is worth noting that the Home Office is unaware of the number of illegal immigrants currently living and working in the United Kingdom, so there will be no records available for such persons. Furthermore, in terms of devolved government, those individuals barred or monitored in Scotland or Northern Ireland must be made known to the relevant organisations in England and Wales. Differing information management systems must not prevent that process.
In conclusion, as citizens we have a duty of care to protect all vulnerable members of our society, whether in nursery school or in a care home for the elderly. Abuse of the vulnerable is an abuse of power and trust. It has taken some horrific cases to expose weaknesses in the system. We support the objectives of the Bill. As an improved system of protection and vetting develops, we want to ensure that it is implemented as successfully and speedily as possible—with the necessary checks and balances in place. Furthermore, we wish to see such a system having the integrity and efficiency required genuinely to ensure that future abuse cannot occur. As such, we shall be seeking to amend some parts of the Bill to offer greater clarity.
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Baroness Walmsley: My Lords, I, too, very much welcome the Bill, and I believe that the framework that it proposes will make children and vulnerable adults safer than they were before. If I express any concerns or propose any changes, they will be ones that will improve the Bill without interfering with the powers of the Independent Barring Board to set up and maintain an effective system to protect children; indeed, they will strengthen it. That is my main objective, in common with the Minister and other noble Lords.
Safeguarding children requires much more than a barring list. It requires a whole child protection mindset, a culture of vigilance, a clear understanding of roles and expectations and appropriate training for all those who need it. I have tabled amendments to the Childcare Bill about that, but that Bill only covers very young children, whereas it is often older children on whom unscrupulous people prey.
There is no absolute right to work with children or vulnerable people. The levels of vetting that can be expected for those wishing to do so should be rigorous and far beyond those relevant to other areas of employment. However, my main problem with the Bill is its lack of clarity, and we will need to work on the detail in Committee.
There are also matters of principle. I, too, am particularly worried about the scope in Schedule 2(1) for automatic inclusion of people on the barred list without the right to representation. Details of the offences that will lead to that automatic inclusion will be in regulations that are not yet published. That makes proper parliamentary scrutiny impossible. I will therefore be proposing at a later stage a way of giving Parliament an opportunity to debate and amend the regulations. Even the affirmative resolution procedure is a blunt tool for legislative scrutiny. Parliamentarians
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may agree with some but not all of a list of prescribed offences, but they will be unable to amend it. Besides, this shows the Government's lack of trust in the IBB's ability to hear all the evidence and still avoid allowing unsuitable people to work with children. It is also in danger of contravening Article 6.1 of the European Convention on Human Rights. I would be interested to know what the Joint Committee on Human Rights thinks of this part of the Bill, since it is clear that case law has established that any procedures where civil rights are determined without ever hearing from the parties would be incompatible with the convention. I am not suggesting that people in this category are suitable to work with children, but we should have due process in all cases.
In Schedule 2(3) on "Behaviour", there is also lack of clarity in the phrase "relevant conduct", which is not defined. Schedule 2(4) states that,
would be defined as "relevant conduct" if—
That leaves it unclear what and how conduct of a sexual nature involving a child or children would ever be acceptable. Indeed, I wonder whether we are back to the arguments that we had on the Sexual Offences Act 2003 about agony aunts and their sexual advice to young people. That Act throws a very wide net of criminality so that, for example, all sexual contact between under 16s is technically illegal. That is another reason why blanket bans often lead to unfair treatment.
I raised with the Minister during the Second Reading of the Childcare Bill last week the issue of whether a person under 18 could be included on the new barred lists. There are a number of services, including those run by Barnardo's and the NSPCC, that help those children who display sexually harmful behaviour. In the past, it has been assumed that such children were at high risk of reoffending, but if they have received expert, targeted intervention that is no longer true. That is why such children are more appropriately dealt with by the welfare system than by the criminal justice system. However, until such time as that happens, it would be quite wrong for their troubled childhood behaviour to automatically lead to their being put on a barred list, with the adverse effect that might have on their future career.
Today, I have had a reply from the Minister saying, in effect, that the list of offences is that in the Day Care and Childminding (Disqualification) (England) Regulations 2005—SI 2005/2296. He also says that the protection for very young offenders would be the fact that Ofsted will continue to be able to waiver disqualification in certain circumstances; I presume, for example, where the offender was very young at the time and does not present a current risk to children. However, I would like to explore the matter with the Minister, since I feel that it should be clear in the Bill, or people will not know where they are. I also think that there may be situations covered by the Bill in which Ofsted has no jurisdiction, so I do not see this as a full reassurance.
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Paragraph 5 of Schedule 2 refers to the possibility of future risk of harm to a child. It is unclear how that will be assessed, but I assume it will be on the basis of past behaviour, in which case I wonder why the person in question does not fall into the category of paragraph 3, which relates to behaviour. It is therefore hard for me to see why we need paragraph 4 at all. To bar someone from working with children on the basis of what they might do takes us into a difficult area and will inevitably raise concerns about inappropriate barrings.
We need a better definition of all the thresholds at which barring decisions will be made and the factors that lead to them. It is crucial that they are clear. They must be set at the right level and we need to know what those levels are. There is a need for balance and proportionality. It is important to avoid mistakes, to protect the innocent from ill-founded allegations, to respect privacy and protect young people who make minor misdemeanours from being blighted in later life.
One of the most difficult areas the IBB will have to consider is the "soft" area of evidence: intelligence, behaviour and risk of harm. How will the IBB assess what is known as non-conviction data? Indeed, there are other factors it might consider, such as matters arising from private law proceedings where there is evidence that children have been harmed; matters arising from inappropriate behaviour with vulnerable adults; matters arising from medical or social care intervention; and offences under a professional code of practice. How will the IBB deal with these, or is it even empowered to do so?
In relation to "soft evidence" the police will need clear guidance as to what level of data they should retain and submit to the IBB and this should be consistent throughout the country. One of the problems emerged during the Bichard inquiry. It seems that the guidance issued by ACPO on retaining intelligence relating to non-conviction information made it difficult for police officers to determine whether to retain or delete information. Evidence submitted by the Police Federation to the inquiry stated that where there had been any doubt about whether soft information should be retained, officers erred on the side of caution and deleted it. However, following the Soham murders it is easy to see how the pendulum could swing too far the other way so that any allegation made about an individual could be retained. Information weeding is not a precise science, so I hope the Minister can reassure us, during his response, that the code of practice to which he referred in his opening speech is working fairly and effectively.
I welcome the duty in Clause 30 and Schedule 2(2) for local authorities to refer appropriate people to the IBB if they fall within certain categories, are working with children or vulnerable adults and the harm test is satisfied. But harm is not defined in the Bill. I suggest we need a definition here and I will table an amendment saying that the threshold of significant harm in Section 31(9) and (10) of the Children Act 1989 is the one that should apply. If we do not have a clear definition, social services could get tied up in a
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lot of inappropriate referrals and we do not want that since it could lead to costly litigation. There is also a need to be clear about how frequently the information will be updated and how often rechecking will take place.
One of the stated objectives of the Bill is tightening up and simplifying the system, but there are still to be two barring lists. While this is better than nine, we need to know about the relationship between the two. How do they interact? Given the evidence that abuse of children and vulnerable adults is a power crime and that the two have much in common, it is essential for consideration to be given to whether a person should be put on both lists if he qualifies to be put on one of them. I will be tabling an amendment to put a duty on the IBB to give consideration to this matter in every case.
Fortunately, most of the people who do wonderful and worthwhile work with children and young people need never fall foul of any barring list. But it is worth considering the availability of some sort of accreditation for people who fall outside the regulated or controlled work categories, to enable them to show positively that they are the sort of people who are suitable to work with children if required. I have in mind something like the kitemark in the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003.
Speaking of the regulated and controlled categories of work, I, too, would like to ask why we need two categories at all. Surely everyone who works with children at any time would have an opportunity to abuse and should therefore be checked as to whether they appear on any barred list—and the simpler the process, the better.
The IBB will have a very important job to do and its membership should include people with a wide spectrum of experience as well as knowledge of child protection. I refer to employment law, criminal law and the management of sex offenders, and I include those involved with probation, the police and multi-agency public protection arrangements, as well as legally qualified people. Can the Minister reassure us about that? He can be assured that we will respond to the document that we received from him today about it.
Can the Minister also tell us how the board will interact with the CRB and the Home Office? Will it be entirely independent or will it be linked in some way? To whom will it report? That is not clear in the Bill. I presume that the Secretary of State referred to is the Secretary of State for Education and Skills, but perhaps the Minister could confirm that.
This Bill is still more complex than I think it needs to be, so there is a need for a full communication process, since there will be huge consequences for people working in previously unregulated posts. This could particularly affect the voluntary and community sectors. People need to know what is meant by the two categories of "controlled" and "regulated" activity. They need to know where the dividing line is and what "frequently" and "occasionally" mean in the Bill. If
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people are not sure, they will protect their backs and carry out checks anyway, particularly in view of the criminal penalties for mistakes of omission. We do not want people checking inappropriately, because they can have their right to check taken away if they do so. Also, that would clog up the system.
Just sending out information packs will not do. We need face-to-face briefings, plus a website, a helpline and information about the timescales for, as well as the details of, implementation. It is particularly important to have easily accessible information available to individual parents who employ someone to look after or teach their child. They need to know that they have a new right to check and they need to know how to go about it. Perhaps the Minister could also tell us what individual checks will cost.
Finally, I will say a word about overseas workers. This is a very difficult area for employers, who have to rely on what they can get from abroad. It would be quite wrong to prevent someone working with children or vulnerable adults just because they came from a country that did not have the same rigorous system as we are currently trying to devise. In fact, care homes for elderly people rely on many workers from abroad. Therefore, I was glad to hear what the Minister said in his opening remarks about the Home Office's work with other countries.
I wonder whether the Government have considered a probationary period for overseas staff, with an extra level of supervision until the authorities in this country have been satisfied. That would not be perfect, but it would be better than what we have now. Alternatively, there could be a mandatory duty for an employer to prove that they have taken steps to obtain criminal records or other relevant information from abroad if their employee is from there, although I do not underestimate the difficulty for employers of having to do that.
I am excited about the possibility of a better system to protect the vulnerable in our society. I look forward to having the opportunity to work with the Minister and your Lordships to improve this basically sound Bill to ensure that its fine objectives are achieved without anyone being unfairly treated.
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