APPENDIX 2: DRAFT SAFEGUARDING VULNERABLE
GROUPS ACT 2006 (PRESCRIBED CRITERIA) (FOREIGN OFFENCES) ORDER
2008 AND ONE OTHER RELATED INSTRUMENT
Memorandum from the Department for Children, Schools
and Families
The Committee asked for some information about two
further Instruments which have not yet been laid but which are
mentioned in the supplement to the Explanatory Memoranda to two
draft Orders (one relating to transitory provisions and the other
to foreign offences) laid by DCSF on 15th October 2008 under the
Safeguarding Vulnerable Groups Act 2006 ("the Act").
The two further Instruments mentioned in the supplement are the
Safeguarding Vulnerable Groups Act 2006 (Prescribed Information)
Regulations 2008 ("the Prescribed Information Regulations")
and what will now be the Safeguarding Vulnerable Groups Act 2006
(Prescribed Criteria and Miscellaneous Provisions) Regulations
2008 ("the Prescribed Criteria Regulations"). In relation
to the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria)
(Foreign Offences) Order 2008 ("the Foreign Offences Order"),
the Committee also asked for further information as to the process
by which the Government is able to gain a reliable understanding
of foreign offence descriptions.
Prescribed Information Regulations
Q1: What will these
Regulations do?
A1: The Prescribed Information
Regulations will prescribe the information and details which must
(and in some cases may) be provided to the Independent Barring
Board ("IBB" - which is established under section 1
of the Act and works under the name of Independent Safeguarding
Authority - ISA) under various provisions in the Act and prescribe
information that the IBB must provide to the Secretary of State
in certain circumstances.
These Regulations will specify the information prescribed
for the purposes of the duties and powers under sections 35 to
37, 39 to 42 and sections 45 and 46 of the Act and also under
paragraphs 19(1) (b) and 21 of Schedule 3 to the Act. These provisions
include duties and powers to refer prescribed information about
an individual to the IBB in specified circumstances and duties
to provide such information, on request, where the IBB is considering
including a person in a barred list or removing a person from
such a list. Paragraph 21 of Schedule 3 refers to the duty on
the IBB to provide prescribed information to the Secretary of
State.
Some of the provisions in the Regulations will be
brought into force earlier than other provisions, namely those
which prescribe the information that must be provided to the IBB
on request. This is to enable the IBB to exercise its functions
under transitional provisions contained in the Safeguarding Vulnerable
Groups Act 2006 (Transitory Provisions) Order 2008 ("the
Transitory Provisions Order"). Under that Order, the IBB
will in December 2008 commence making decisions in accordance
with Schedule 3 to the Act (as modified by the Order) as to whether
or not to include a person in the children's or adults' barred
list (or both).
The Regulations will be made under the negative resolution
procedure and the DCSF plans to make and lay them in good time
for them to come into force at the same time as the Transitory
Provisions Order.
Prescribed Criteria Regulations
Q2: Why can the Prescribed
Criteria Regulations be laid only after the current SIs have been
approved?
A2: The Prescribed Criteria
Regulations will prescribe the criteria which determine whether
a person should be included automatically in the children's barred
list or the adults' barred list maintained by the Independent
Barring Board under section 2 of the Act.
The criteria will be that a person has been convicted
of or cautioned in relation to one of a range of serious offences
which, by their nature, will indicate that the offender would
present a risk of harm to children and/or vulnerable adults. In
some cases, the criteria will not be met unless an offence has
been committed in circumstances specified in the Regulations.
As stated in paragraph 4.4 to the Explanatory Memorandum
to the Foreign Offences Order, the Education (Prohibition from
Teaching or Working with Children) Regulations 2003 (which relate
to directions made by the Secretary of State under section 142
of the Education Act 2002, underpinning what is known as 'List
99') were amended in early 2007 - by which time the Act had already
received Royal Assent - and provided for an automatic bar in the
case of a person who had committed a specified foreign offence.
The Government's aim is to continue with the policy
under the List 99 legislation and to include, in the Prescribed
Criteria Regulations, convictions for foreign offences that are
equivalent to the UK offences prescribed in the Regulations. This
is in line with the Government's commitment to ensure that the
safeguards under the Act would not be less than those provided
for under current legislation.
As currently enacted, paragraph 24 of Schedule 3
to the Act limits the offences that can be prescribed for the
purposes of automatic inclusion in the barred lists under the
Act to offences under the law of England and Wales and other parts
of the British Islands. There is, therefore, currently no power
under the Act to prescribe offences under the law of a country
or territory outside of the British Islands. The Foreign Offences
Order, if approved, will remedy this and enable the Secretary
of State to prescribe offences committed in other jurisdictions
thereby aligning the safeguards available under the Act in this
respect with those available under current legislation.
Consequently, the Government can only lay the Prescribed
Criteria Regulations (which will include convictions for specified
foreign offences) once the Foreign Offences Order, if approved
by Parliament, is made and is in force.
Foreign Offences Order
Q3: The Explanatory
Memorandum for the Foreign Offences Order says: "Even where
another jurisdiction is willing to exchange such information,
detailed work is still needed with each overseas jurisdiction
on a range of issues including forming an understanding of offence
descriptions which may differ from those used in UK jurisdictions
and establishing exchange arrangements where criminal records
data are not held centrally in the overseas jurisdiction or are
not held electronically". How much of a problem is it in
practice to gain a reliable understanding of offence descriptions
and so ensure that no erroneous barring decisions are made because
of misunderstandings?
A3: For the purposes of
automatic barring under the legislation relating to List 99, DCSF
relies on the police to provide information on convictions and
cautions in relation to foreign offences which, had the foreign
offence been committed in any part of the UK, would constitute
an offence under domestic law. The police have advised us of the
difficulties in practice of establishing a reliable understanding
of offence descriptions to enable them to refer the relevant overseas
offences to the Department. In particular, a read-across has to
be established between a foreign offence and an offence as described
in the UK. This involves an assessment by police, acting with
legal advice. However, it is possible, in some instances, to be
sufficiently confident that a foreign offence is equivalent to
a prescribed UK offence and a number of 'foreign offence' cases
have been referred to us for barring under the List 99 regime
since the amendment to the List 99 regulations came into force
in February 2007.
October 2008
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