APPENDIX 2: DRAFT SAFEGUARDING VULNERABLE
GROUPS ACT 2006 (PRESCRIBED CRITERIA) (TRANSITIONAL PROVISIONS)
REGULATIONS 2008 AND TWO OTHER INSTRUMENTS: EXPLANATORY INFORMATION
Memorandum by the Department for Children, Schools
and Families
Q1:
In order to understand why the provisions described at 4.4.3(i)
of the overarching memorandum, i.e. withholding the right to make
representations or appeal, are deemed compatible with the right
to a fair trial (Article 6 of the ECHR), the Committee would like
more information about what individuals would be covered by them,
i.e. what are the offences / criteria that would place them in
this category.
A1: The information requested is below.
1. By way of introduction:
(a) in the Government's view, the act of barring
a person from engaging in an area of activity automatically, without
the right to make representations (as described in para. 4.4.3(i)
of the Overarching Memorandum) does not constitute the determination
of a civil right. Consequently, the Government's view is that
the right to a fair trial is not engaged by these Regulations.
As the Minister said in his reply to the Joint Committee on Human
Rights:
"Article 6(1) provides: "In the determination
of his civil rights and obligations … everyone is entitled
to a fair and public hearing within a reasonable time by an independent
and impartial tribunal established by law …". But these
guarantees apply only where there is a determination of a person's
civil rights. As the bar is an automatic one, arising by operation
of law, there can be no dispute of law and so I am advised that
article 6 has no relevance." (PUSS Parmjit Dhanda MP to Andrew
Dismore MP, Chair, JCHR, 10th October 2006);
(b) paragraph 4.4.3 of the Overarching Memorandum
relates to how barring will work once the Safeguarding Vulnerable
Groups Act 2006 has been brought into force fully, rather than
to the process of transferring everyone who is currently barred
from working with children or vulnerable adults to the new lists.
The intention is that the future list of offences which will lead
to a person being included in a barred list without the right
to make representations should be as close as possible to the
list which will mean that a currently barred person has no right
to make representations when transferred to new lists under the
2006 Act: see paragraph 7.5 of the Explanatory Memorandum for
the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria)(Transitional
Provisions) Regulations.
2. Turning to the specific information requested
by the Merits Committee: as stated at para 4.9.4 of the overarching
memorandum, it is the Prescribed Criteria - Transitional Provisions
regulations themselves which specify the criteria which will enable
the Independent Safeguarding Authority (the ISA; called IBB in
the legislation) to identify individuals who "will not
have the right to make representations". The offences
and criteria are in the schedule: paragraph 1 and its table relate
to children; paragraph 2 and its table relate to vulnerable adults.
3. The Committee will appreciate that the nature
of the offences here is very high-risk and serious, and along
with the specified circumstances of commission (e.g. where the
offence was committed against a child) very specific. They are
all offences of a sexual nature, involving young children, a lack
of consent and/ or an abuse of a position of trust. In addition,
they relate to where the offence was committed fairly recently
- within the last 10 years - which places it at the high end of
the risk spectrum. The Committee might wish to note that the starting
point for this list of offences was the list that currently leads
to an automatic direction, without the right to make representations,
under section 142 of the Education Act 2002 (which governs "List
99"). To this were added some further offences, particularly
offences relating to the health care sector. However, the key
point that we would wish to draw to the Committee's attention
is that the concept of a scheme under which a person may be barred
from working with a particular group without being given the chance
to make representations in his own favour is nothing new.
4. Finally, the Committee may find it helpful
to note that these regulations cover individuals who are already
barred, and will continue to be barred on the current lists until
the new scheme comes into force. The new scheme merely changes
the scope of that bar. A barred individual will of course have
an opportunity to apply for a review of his listing at the end
of his barred period if his circumstances change. And the provisions
of the associated Barring Procedure Regulations mean that this
period is merely the balance of the period of his original bar.
Q2: What is the definition
of a "vulnerable adult" for these purposes?
A2: Vulnerable adult is
defined at S.59(1) of the 2006 Act as follows:
"59 Vulnerable adults
(1) A person is a vulnerable adult if he has attained
the age of 18 and—
(a) he is in residential accommodation,
(b) he is in sheltered housing,
(c) he receives domiciliary care,
(d) he receives any form of health care,
(e) he is detained in lawful custody,
(f) he is by virtue of an order of a court under
supervision by a person exercising functions for the purposes
of Part 1 of the Criminal Justice and Court Services Act 2000
(c. 43),
(g) he receives a welfare service of a prescribed
description,
(h) he receives any service or participates in any
activity provided specifically for persons who fall within subsection
(9),
(i) payments are made to him (or to another on his
behalf) in pursuance of arrangements under section 57 of the Health
and Social Care Act 2001 (c. 15), or
(j) he requires assistance in the conduct of his
own affairs."
We have just finished consulting publicly on minor
refinements, but the definition will remain substantially as above.
Q3: If two young people
both under the statutory age of consent have sex with each other,
are they likely to be affected by barring provisions?
A3: Not by automatic barring provisions,
and hence not by the provisions in these regulations. Quite apart
from the question of whether they would be prosecuted, the 2006
Act says that the prescribed criteria do not catch offences committed
by, or orders or directions made in relation to, a person before
they have reached the age of 18. Therefore when an under-18 is
convicted of, or cautioned for, an offence which, for an older
person, would lead to automatic barring, the ISA must only consider
whether to bar the person ; see para 4.4.3 (iii) of the overarching
memorandum, which also says "in this case, the relevant
individual will have the opportunity to make representations before
they are included in a list and will have a subsequent right of
appeal". In any case, the ISA's consideration will not
lead to it barring an individual, unless it concludes that he
poses a risk of harm to children or vulnerable adults. It's hard
to imagine there would be many cases where the ISA would reach
such a conclusion in the circumstances which the Committee has
mentioned.
The dis-application of the prescribed criteria to
under-18s is in the 2006 Act at Schedule 3, para 24(4):
"(4) For the purposes of determining whether
any of the criteria is satisfied in relation to a person, ignore
-
(a) any offence committed before he attained the
age of 18 ;
(b) any order or direction made before that time."
Department for Children, Schools and Families
March 2008
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