6 Dec 2011 : Column 611
6 Dec 2011 : Column 611
6 Dec 2011 : Column 611
Tuesday, 6 December 2011.
2.30 pm
Prayers-read by the Lord Bishop of Newcastle.
Phone Hacking
Question
2.36 pm
To ask Her Majesty's Government what estimate they have made of the number of people affected by newspaper phone hacking.
The Minister of State, Home Office (Lord Henley): My Lords, the number affected is being assessed as part of the current investigation by the Metropolitan Police Service. At this stage, no final estimate has been made, but the Met recently reported that it has contacted more than 1,800 people, of whom around 600 are identified as victims or potential victims of phone hacking.
Lord Fowler: My Lords, even that figure of course understates the true position. Is my noble friend aware that the Metropolitan Police itself has now said that it has identified the names of 5,800 people in the notebooks of a private investigator who for six years was employed by the News of the World to hack into mobile phones? Is there not now conclusive evidence that some journalists have perverted the traditional role of the press-to expose injustice and wrongdoing-by a total determination to expose private lives? What is needed now is an effective and, above all, independent means to ensure that such abuses never happen again.
Lord Henley: My Lords, my noble friend is right when he quotes the figure of 5,795 people who the police have said may-I stress, may-have had their phones hacked. The police stressed that at this stage they cannot give a figure, which is why I gave the other figure of 1,800 people who the police have identified as potential victims, and the 600 with whom they have been in contact. I note what my noble friend said about setting up some independent body as a result of these matters. At this stage, I cannot possibly comment and we must await the outcome of the inquiry by Lord Justice Leveson. When that happens, I am sure that we will act.
Lord Rosser: My Lords, when giving evidence recently to your Lordships' Communications Committee inquiry on the future of investigative journalism, the Culture Secretary, Mr Jeremy Hunt, said that newspapers are likely to come under the auspices of a new regulatory body that is,
than the Press Complaints Commission. Can the Minister confirm that this is now the policy of Her Majesty's Government?
6 Dec 2011 : Column 612
Lord Henley: My Lords, my right honourable friend was giving his view correctly to that committee, but I am sure, as the noble Lord is aware, that we cannot make any firm decisions-and it would be wrong to do so-until the Leveson inquiry has concluded. That is what we will do at the appropriate time.
Lord Soley: Do the Government have any knowledge of any other newspapers being involved in phone hacking?
Lord Henley: My Lords, I do not, but if the noble Lord wishes to provide some information, I am sure that the Leveson inquiry would be grateful. Whether or not the noble Lord's phone has been hacked, I cannot comment.
Baroness Bonham-Carter of Yarnbury: My Lords, does my noble friend not agree that the abuse has not just involved hacking? I sit on the Commons and Lords Joint Committee on Privacy and Injunctions and heard what Hugh Grant said yesterday about the behaviour of the paparazzi. Is it not wrong that, as Sienna Miller told the Leveson inquiry, 10 burly men can pursue a young woman down a dark alley spitting and hurling abuse at her with impunity because they are carrying cameras?
Lord Henley: My Lords, again my noble friend makes a very good point and was right to emphasise that this evidence was adduced to Lord Justice Leveson's committee. No doubt he will consider that and, after that, the Government will-as I said earlier, and I repeat-consider any reports made by the inquiry, particularly where it seeks legislative changes by the Government.
Lord Mackenzie of Framwellgate: My Lords, given the emerging evidence of the employment of private investigators by the press involved in phone hacking, can the Minister give us an idea of when the Government intend to license such people?
Lord Henley: Again, my Lords, I would not want to take these matters further at this stage. I suspect that I shall repeat the same answer quite a few times during the course of this Question; we want to wait until Lord Justice Leveson has reported.
Baroness Trumpington: My Lords, the Minister has answered various points on numbers. How do people know if they are being hacked?
Lord Henley: My Lords, that is a technical problem on which I am afraid I cannot assist my noble friend. I am sure that many people throughout the country, and no doubt many Members of this House, think that they may have been hacked. If they think that they have, I suggest that they let the police know and ask them to make appropriate inquiries.
Lord Brooke of Alverthorpe: My Lords, is the noble Lord stating that the Government have no interest in what is happening with any other newspapers unless individuals produce evidence themselves?
Lord Henley: My Lords, that is nonsense. Of course we have an interest in these matters, but at this stage it is right and proper that the Government wait until
6 Dec 2011 : Column 613
Lord Martin of Springburn: My Lords, when the BBC acquires ex-directory phone numbers, does it have a responsibility to tell the subscribers of those numbers where it got the numbers from?
Lord Henley: My Lords, the noble Lord is going slightly beyond the Question on the Order Paper, but I shall certainly make inquiries for him and write in due course.
Lord Inglewood: My Lords, does the Minister not agree that the fact that the Government have set up the Leveson inquiry is proof positive that they recognise that the existing arrangements are inadequate for regulating the press and that something needs to be done to improve matters, the detail of which, as yet, is not clear?
Lord Henley: My Lords, as evinced by the number of questions that my noble friend Lord Fowler and others have asked in this House, as well as by questions asked in another place and concerns raised elsewhere, there has been considerable concern about the degree of phone hacking. Quite rightly, the Government responded to that concern and set up the inquiry by Lord Justice Leveson. They will respond in due course.
Lord Davies of Coity: My Lords-
Lord Phillips of Sudbury: My Lords-
Lord McNally: We shall hear from the noble Lord, Lord Maxwell, please.
Lord Maxton: My Lords, Maxton is the name. Why are this Government quite happy, as is Parliament and as previous Governments have been, to regulate television, radio and even the internet but are not prepared to undertake the statutory regulation of the print media?
Lord Henley: My Lords, I repeat what I said earlier: we will consider the results of this report and make the appropriate response at that stage.
Lord Phillips of Sudbury: My Lords, does my noble friend accept the gravamen of the Justice report last month-a comprehensive report into hacking of all sorts-that this issue goes far, far wider than the press? Will the Government kindly consider reviewing the Regulation of Investigatory Powers Act to try to bring it up to date and make it effective?
6 Dec 2011 : Column 614
Lord Henley: My Lords, I always take notice of any report produced by a body such as Justice, and we will always keep the operation of RIPA 2000 under review. However, again, that will be a matter to be dealt with at the conclusion of this inquiry.
EU: Repatriation of Powers
Question
2.44 pm
To ask Her Majesty's Government whether they have agreed a list of powers to be repatriated from the European Union, and, if so, when they expect to launch negotiations with the United Kingdom's European partners.
Lord Wallace of Saltaire: My Lords, the Government are committed under the coalition agreement to examining the balance of competences between Britain and the EU. We have made no commitment to a particular outcome of this review. Work on the review has begun and is in its early stages.
Lord Grenfell: My Lords, I am relieved to read that the Prime Minister has recognised that Friday's negotiations on a fiscal compact are not the occasion to try to repatriate any powers. That is good news, and it should at least save the Prime Minister from having another ASBO slapped on him by the President of France. The Prime Minister says that he wants to be constructive at these negotiations but that he will have some modest demands to make. Does the Minister agree that the chance to participate constructively in the negotiations being held among the 27 depends on them being among the 27, because that gives him a seat and a voice, whereas if negotiations were confined to the 17 eurozone members he would have neither? If the Prime Minister arrives in Brussels with a list of concessions which he wants granted as a price for his co-operation, there is a serious risk that the 17, tired of Britain's repeated requests for special treatment, will simply close the door on the 10 outsiders and negotiate without them. What influence will he then have on the outcome?
Lord Wallace of Saltaire: My Lords, we are now facing a clear difference of timescale in the things under way. There is a real urgency about managing the eurozone crisis. That is a matter of weeks. Examining the balance of competences within the European Union is a much longer-term investigation, with which the British Government are engaged, and on which we expect to have plenty of allies among the other member states of the European Union.
Baroness Falkner of Margravine:My Lords, would my noble friend accept that, in a spirit of constructive engagement, the Prime Minister has made it very clear that he is not about to go to the European Council with a shopping list of powers to be repatriated, that the coalition agreement did not envisage that, that the
6 Dec 2011 : Column 615
Lord Wallace of Saltaire: My Lords, we all recognise that Britain's future economic prosperity depends on the eurozone not collapsing and that it is therefore very strongly in our interest to do everything we can to assist in the management of this current crisis. Britain's priorities are: first, to maintain the integrity of the EU 27; secondly, to maintain and strengthen the single market; thirdly, to promote recovery and economic growth; fourthly, to defend specific British interests in financial services; fifthly, to ensure that social and employment legislation does not hold back growth; and also to rebalance competence away from detailed regulations on matters better left to national, regional or local government.
Lord Tomlinson:Many Members of the House will agree with the first five items on that list, but as far as the sixth item is concerned-the question of better balance-will the Minister recognise that at the moment his right honourable friend the Prime Minister, in trying to appease his Back Benches, is making it almost impossible to negotiate properly in Brussels?
Lord Wallace of Saltaire: My Lords, the problem of creeping competence has been there for some time. I remember a pamphlet published 10 years ago by a rather bright young man, whom my wife once taught, called Nick Clegg on doing less better. That is what many of us want to achieve in Brussels. We all know that the Commission sometimes wants to take powers over everything. I regretted that there was a report the other week from this House's EU Committee on Commission proposals for closer co-operation on grass-roots sport. It seems to me that grass-roots sport ought to be left to the grass roots and that sport at the international level should be dealt with by the EU. That is a reasonable, long-term proposal. Liberal Democrats have held that view for a long time and continue to hold it, perhaps against the centralisers at the European level within the Labour Party. I see the noble Lord shaking his head.
Lord Hannay of Chiswick: My Lords, what would the Government's response be if, in the intergovernmental conference about to meet, a member state other than Britain were to introduce a proposal for the repatriation of some portion of the single market?
Lord Wallace of Saltaire: My Lords, I am happy to say that that is extremely unlikely. We are some way off an intergovernmental conference. The German Government believe that we can have a very short IGC next March and hope that ratification of limited treaty change can then take place by the end of 2012. The position of Her Majesty's Government is that treaty change is not necessary, as we argued when ratifying the Lisbon treaty and again on the EU Bill. The Lisbon treaty has an enormous amount of headroom under which powers can be taken, and we think advantage should be taken of that, rather than getting into the messy, unavoidably uncertain and long process of treaty change.
6 Dec 2011 : Column 616
Lord Liddle: Does the noble Lord agree with the article in the Financial Times this morning by the Conservative Member of Parliament, Jo Johnson, in which he says that the last thing the City of London needs to protect its interests is for the British Eurosceptics to plaster a union jack all over it? Does he agree that the best way to defend our vital national interests in Europe is to be in, engaging our partners, rather than out, shouting on the sidelines and demanding repatriation of powers?
Lord Wallace of Saltaire: My Lords, I entirely agree with the article, which I thought was excellent, and I am very happy that the chair of the relevant European Parliament committee on this is a British Liberal Democrat Member of the European Parliament, Sharon Bowles.
Lord Dykes: Would my noble friend agree that the only important repatriation of powers for the Government-because they need to be careful on this matter-would be to repatriate Bill Cash away from the chairmanship of the European Scrutiny Committee of the House of Commons? Would he further agree that with so many exclusions, derogations and exceptions already, not least on the single currency, we have gone far enough down that road and that we need to be a good European partner again?
Lord Wallace of Saltaire: My Lords, the Lisbon treaty envisaged that national parliaments should play a much more active part in scrutiny and indeed in insisting on the importance of subsidiarity and resisting overcentralisation. This House currently does it better than the other House. We very much hope that the House of Commons will also improve and extend its scrutiny of EU measures.
Lord Pearson of Rannoch: My Lords, given the requirement for unanimity among 27 nation states before a single comma can be retrieved from the treaties of Rome, is not all talk of repatriation a convenient red herring?
Lord Wallace of Saltaire: No. There is constant negotiation. The working time directive is currently under review, as the noble Lord will be aware. Sixteen member states, including Britain, currently have opt-outs. Twenty-three member states, not including Britain, are currently under contravention for not implementing the working time directive. There is therefore room for reconsideration.
Health: Oral Cancer Detection
Question
2.52 pm
Asked By Baroness Gardner of Parkes
To ask Her Majesty's Government whether they will make representations to the General Dental Council to raise the priority accorded to oral cancer
6 Dec 2011 : Column 617
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, yes, the department will be raising this issue with the General Dental Council. I understand that the General Dental Council is currently at the early stages of reviewing its continuing professional development requirements for registrants and plans to hold a formal public consultation on its draft proposals, probably in the first half of 2012.
Baroness Gardner of Parkes: That is a very helpful Answer because the profession wants to see that. As the Minister knows, I have encouraged the continuous inspection of people's mouths whenever they present for some other cause. The really important thing is that when they are referred up, the person seeing that patient knows what the position is. In view of the report last week about the vast increase in hepatitis among young people due to alcohol, will the Minister comment on whether he thinks there is a parallel with our 2009 debate, when that was raised as a factor in the great increase in mouth cancer among young people?
Earl Howe: My noble friend is quite right that the worrying feature of oral cancer is that it is increasingly appearing in the young. The risk factors that have been identified for oral cancer are primarily smoking and consumption of alcohol, but particularly the two combined. It is important that we get to grips with this. A number of public health campaigns are in train, certainly on smoking, and our alcohol strategy is due out very shortly, which will also address drinking among the young.
Baroness Masham of Ilton: My Lords, does the Minister think that HPV and HIV can be first detected in the mouth by dentists, and does he not think that dentists should have more training?
Earl Howe: My Lords, my understanding is that HIV needs to be fairly far advanced before it manifests itself in the mouth. However, the noble Baroness is absolutely right with regard to HPV-human papilloma virus-because since 2009 there has been further research suggesting a link between HPV and oral cancer. There is now a sufficient evidence base to suggest that infection with HPV is a risk factor, particularly for the soft tissues at the back of the mouth. Her point about dentists picking this up is very well made. My understanding is that dentists are very much on the lookout for these symptoms.
Lord Sharkey: My Lords, according to Macmillan Cancer Support, mean survival times for cancers of the stomach, oesophagus, pancreas, brain and lung have barely increased in the last 40 years. These cancers account for 39 per cent of all cancer deaths, but attract only 13 per cent of all cancer research funding. Does
6 Dec 2011 : Column 618
Earl Howe: My Lords, I agree with my noble friend that it is not satisfactory. However, the position with research funding from government sources is that proposals are evaluated on the basis of merit; there is no predisposition to any particular kind of research as long as it is high quality. Both the MRC and my department, with the National Institute for Health Research, are open to proposals of high quality to address unmet areas of research.
Baroness Thornton: My Lords, I congratulate the noble Baroness, Lady Gardner of Parkes, because I answered Questions that she asked on this issue in my time. She has shown great persistence and no small amount of success in pushing this issue along. I would like to ask the Minister a question about smoking, because, as he rightly says, smoking is a factor in the incidence of mouth cancer. In the public awareness campaign about tobacco and tobacco regulations, are the Government including the implications of mouth cancer?
Earl Howe: Yes, we are continuing to invest in tobacco control activities. The noble Baroness will know that in March, we published our tobacco control plan for England, which sets out a range of action points. We are running marketing communications campaigns, with a campaign currently on television. In the new year, we will be making Quit Kits available through pharmacies across England; in the spring, we will run a campaign to highlight the risks of exposure to second-hand smoke and to encourage smokers to make their homes and family cars smoke-free.
The Earl of Selborne: Will the Minister tell us whether the tobacco industry is giving full support to this campaign?
Earl Howe: It has raised no objection.
Energy: Tariffs
Question
2.58 pm
Asked By Baroness Smith of Basildon
To ask Her Majesty's Government what action they will take to ensure that all energy companies provide a straightforward and easily understood tariff structure for customers, in the light of the report by Ofgem published on 1 December.
The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Lord Marland): My Lords, the Government welcome proposals published last week for consultation by Ofgem to simplify tariffs and billing information. The proposals should make it much easier for consumers to understand and compare tariffs. It is for Ofgem, as the independent regulator, to take forward the proposals.
Baroness Smith of Basildon: My Lords, some things work better in principle than in practice. Is the Minister aware that Ofgem admits that its proposals to do the very things he just outlined may not be implemented
6 Dec 2011 : Column 619
Lord Marland: The Government are going to do a lot to help customers. Ofgem's proposals to simplify bills and make them transparent are ground-breaking-particularly the proposals to have standing order charges on the bill and set by Ofgem. Make no mistake: the Government's entire policy is based on what is to the benefit of the consumer. That is at the heart of every decision we make. In the consultation process, this Government will be talking through the proposals with Ofgem. It is not surprising that they will not be implemented until 2012 because they are under consultation. Until the consultation is over, and Ofgem has had reports from the electricity companies, we will not be able to see the final outcome.
Lord Teverson: My Lords, does the Minister agree that the Government's plan to roll out smart meters over a five-year period from 2014, rather than have the current dumb ones, is the real way to give consumers control over their energy charges? Should smart meters not automatically be able to tell consumers the best tariff?
Lord Marland: I totally agree with my noble friend. We intend to start rolling out smart meters in 2014. Our department is spending nearly £40 million on the development of smart meters, which will be state of the art. By 2019, every home should have a smart meter that should provide this vital information for people to be able to compare the tariffs.
Lord Campbell-Savours: My Lords, how are we getting on with proposals for a rising block tariff system of energy prices whereby low volume consumers of power pay a lower price per unit than high volume users of power?
Lord Marland: I am grateful to the noble Lord for explaining high block tariffs. Clearly, it is an issue which finds favour with both sides of the House and I have noble friends on this side who are very keen to see this happen. We have facilitated consultation with Professor Hills, for example, on this subject, so that he can take it into account in the fuel poverty review he is carrying out at the moment. It is something of great consideration. The noble Lord has a long history in raising this point and I am grateful to him.
The Lord Bishop of Chester: My Lords, in the interests of the transparency to which the Minister has referred, will the Government ensure that on their bills to consumers, all energy companies include an accurate list of all the costs of government obligations-for example, under the renewables obligation?
6 Dec 2011 : Column 620
Lord Marland: It is not for the Government to insist on what is on the energy bills. It is up to Ofgem to insist on that, which is why it is bringing in this consultative period during which it can review what is on such bills. I am sure that Ofgem will be extremely pleased to hear from the right reverend Prelate on this very constructive suggestion.
Lord Faulkner of Worcester: Will the Minister encourage the energy companies to desist from making unwanted, unsolicited and deeply irritating calls to householders attempting to entice them to change supplier and suggest instead that they should concentrate on improving their services?
Lord Marland: It is an area of grave concern, which I share completely with the noble Lord. It is particularly important when we look at things such as the Green Deal groundbreaking legislation that we are bringing in to ensure that the consumer is protected against mis-selling and is not taken advantage of in overselling. We shall look carefully with Ofgem at that.
Lord Stoddart of Swindon: Will the noble Lord tell this House exactly how much bills are increased by government action on their green energy plan? Will he also confirm or deny reports that have appeared in the press that the Energy Secretary wishes to build 32,000 more wind turbines? Does he realise that if that is achieved, it will provide 64,000 megawatts of power, which is equivalent to rather more than the present capacity of the electricity industry?
Lord Marland: I do not think that my colleague, the Energy Secretary, is in for building wind turbines yet. Clearly, there is a framework for doing so. It will not be a decision made by him: it will be for communities to decide whether they want to have onshore wind in their community. But it is part of the Government's policy that we should continue to have them. That I think answers the second question.
On the first question, this Government are committed to green energy policies. It is part of our endeavour to have security of supply, which we had in the good old days of oil on tap but do not have any more. It is very difficult to compare what the price of green energy would be against the cost of the increased oil price which we no longer have.
Lord Grantchester: My Lords, is this not a matter of such urgency that it should not wait until 2012? With this winter seeing the highest fuel and energy prices, and given the increasing levels of fuel poverty identified by Professor Hills, could not the Government look at the level of cuts they are now imposing on winter fuel payments?
Lord Marland: I do not think the Government are making cuts in payments to the vulnerable, which I think is the general tenor of the noble Lord's question. Let us be fair. We have the warm home discounts worth £120 which go to 600,000 homes; we have Warm Front which is still at around £100 million; we have winter fuel payments worth around £100 for
6 Dec 2011 : Column 621
Renewable Transport Fuel Obligations (Amendment) Order 2011
Motion to Approve
3.06 pm
Relevant documents: 33rd Report from the Joint Committee on Statutory Instruments, 44th Report from the Merits Committee, considered in Grand Committee on 5 December.
Earl Attlee: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Lord Bradshaw: My Lords, before the Motion is put to the House, I should like to draw to the attention of the House the fact that the report of the Merits Committee on this order was published last Thursday. Nine noble Lords then debated the order yesterday in the Moses Room so we all expected that some notice would be taken. This morning the order appeared on the Order Paper and so there has been no opportunity to consider what was said in the Moses Room. This does not reflect well on the House or show that the Government really value the opinions of Peers before they place matters on the Order Paper.
Lord Palmer: My Lords, I should like to echo the words of the noble Lord, Lord Bradshaw. Surely it must be an insult to those of us who spent 90 minutes yesterday in the Moses Room in that the noble Earl agreed to come back to several of us on many major points at issue on this extremely complex subject. Now, less than 24 hours later, we are being asked on the Floor of the House to agree to the order.
Lord Davies of Oldham: My Lords, the Minister had a difficult time with this order yesterday, not least because, as the noble Lord, Lord Bradshaw, indicated, the Merits Committee took a rather dim view of its inadequacies. Her Majesty's Opposition think that this order should go through because of the real urgency of the position for the industry. But what I sought to point out yesterday, and what other noble Lords pointed out more forcefully than I did, were the inadequacies of the instrument. I am certainly of the view that we should let it go through today but I hope that the Minister will take on board the fact that the criticisms yesterday were serious ones and that we expected the Government to have taken a more definitive position on the issue so as to reassure the industry in
6 Dec 2011 : Column 622
Viscount Eccles: My Lords, I do not often find myself in agreement with the noble Lord, Lord Davies of Oldham, but on this occasion he is about 110 per cent right.
Earl Attlee: My Lords, I accept the thrust of what noble Lords are saying. Regrettably this order is on a very tight timescale for a variety of reasons. I would like to make it clear that I very much value what noble Lords are saying. Yesterday, in Grand Committee, the noble Lord, Lord Davies of Oldham, said, at col. GC 160 of the Official Report, that the Opposition support the measure "inadequate" though it is. By using the word "inadequate", I take it that he meant that the order deals only with sustainability and not the trajectory of biofuel take-up. I did of course deal with that point yesterday, and was very happy to do so.
With regard to the issue of used cooking oil, I recently answered an Oral Question on that and I agreed to write on a number of points. I am not known for speaking at length, but I spent 23 minutes responding to the debate yesterday despite the pleading looks from my noble friend Lady Verma. Relevant letters are nearly ready despite their complexities. My expectation is that I will send out all the letters strictly relevant to the order by the end of the week at the latest and some may well be sent tomorrow. I accept that the timescale is tight, but I think it is better to agree the Motion now rather than go right up to the wire later. I beg to move.
Protection of Freedoms Bill
Bill Main Page
20th Report from the Constitution Committee.
20th Report Delegated Powers Committee
Committee (2nd Day)
3.10 pm
Relevant document: 20th Report from the Constitution Committee, 20th Report from the Delegated Powers Committee.
Clause 64 : Restriction of scope of regulated activities: children
Baroness Heyhoe Flint: My Lords, I am glad to have the opportunity to build on the comments I made during Second Reading, which highlighted the efforts made by sports bodies to provide the safest possible environment for young people to enjoy sporting activity. As I said at Second Reading, the sport and recreation sector has voiced the concern that many individuals
6 Dec 2011 : Column 623
The Bill's criterion of "supervision" is considered by many to be a concern in relation to sport. The amendment aims to rectify this by being an exception for sport and recreational activities, thereby allowing the governing bodies to manage their risks as they deem appropriate in the context of their own activity. Sport and recreation are delivered in a wide range of environments-in sports halls, swimming pools, football pitches, on a river or, if one is so disposed, even on the side of a mountain. These are all situations in which governing bodies have to protect their young participants, yet within all these environments the nature of interaction between participants differs greatly, as does the nature of supervision.
At present governing bodies are trusted to make their own assessments of risk and implement safeguards accordingly. I think that this is a balance they currently get right. In fact, the spirit of this amendment is consistent with the position adopted by the Government. From conversations with various governing bodies, not least the England and Wales Cricket Board, of which I am a board member, it is clear that they are both willing and able to continue to take responsibility as the Minister has described. The sentiment is also expressed in the amendment tabled by my noble friend Lady Walmsley, which I also support.
There is a second and more pressing point to make on the subject of supervision in the Bill, which is that it contradicts the experience of the sports governing bodies to assume that the danger presented by an individual correlates with the degree to which they are supervised. The individuals that we seek to protect against are manipulative and calculating. They will undoubtedly seek to occupy those roles which are unregulated, and we must therefore ensure that the scope of regulated activity captures everyone who has the ability to develop a relationship of trust with a child. Therefore, I would welcome comments from the Minister about what the "supervision" criterion means for sport in practice, and I would welcome the Government's commitment to provide guidance on this issue. Sport and recreation organisations believe that an individual who has the ability to develop a relationship of trust with a child should be regulated, regardless of supervision.
3.15 pm
During the Committee stage in the other place, my honourable friend Lynne Featherstone stated that the Government would introduce guidance on the definition of "supervision". She said:
"We will publish draft guidance well before Royal Assent, which will go into more detail, with case studies on supervision. The real point is that we do not want either extreme-neither a manager who pops in only once a day, nor a supervisor who is never out of the room".-[Official Report, Commons, Protection of Freedoms Bill Committee, 3/5/11; col. 547.]
Lynne Featherstone also stated during the Bill's passage in the other place that the employer or organisation concerned should take responsibility for managing risks:
6 Dec 2011 : Column 624
"We are trying to say to the employer or the organisation that they have the joint responsibility in not just their procedures, but the judgment of what supervision is and what the risks are".-[Official Report, Commons, Protection of Freedoms Bill Committee, 3/5/11; col. 541.]
I tabled this amendment to seek assurances that the guidance will address the specific concerns of the sport sector, which has its own unique scenarios to grapple with. On the cricket field, a regulated coach in a supervising role may be training batsmen at one end of the ground, whereas in the far distance the assistant coach, unregulated, will spend time focusing on other areas of the game. Similarly in football, the regulated coach may be attending to an injury at one end of the pitch, while miles away on pitch 72 on Wandsworth Common, the unregulated assistant continues to oversee the game in progress. Similarly, at a swimming pool, a regulated supervisor can see everything happening but cannot hear the conversation between the unregulated assistant coach and the swimmer at the other end of the pool.
In all these examples, all the sports individuals occupy the same open space. Everything that happens will be in line of sight of the supervising regulated coach, but his or her attention could be directed elsewhere. I humbly ask that the Minister continues to engage with the sport and recreation sector to develop clear guidance that reflects the day-to-day realities of the sport environment. I thank him most generously for twice meeting us and allowing us to meet, with his officials, representatives of the major governing bodies to seek additional clarification. May the sport and recreation sector be consulted on supervising guidance, and guidance be provided that is specific to that sector, which in many cases owes its existence to the tens of thousands of volunteers and voluntary administrators who run and co-ordinate the sport?
Baroness Royall of Blaisdon: My Lords, I shall speak to Amendments 59, 63A-which is on the Marshalled List but was not included on the list of groupings-60, 64 and 65. I support the noble Baroness, Lady Heyhoe Flint, and the amendment from the noble Baroness, Lady Walmsley. However, I do not think that they go far enough and I am looking for a more comprehensive approach to the problem we have before us today. In relation to Amendment 61, tabled by the noble Baroness, Lady Heyhoe Flint, I ask the Minister how he would define "recreational". I wonder if the word would encompass all after-school clubs, youth clubs et cetera. I need further clarification on the definition. Amendments 59 and 63A reverse government provisions to admit supervised volunteers and supervised employees in places other than schools, children's homes or children's centres from the scope of regulated activity. Amendments 60, 64 and 65 would tighten the statutory definition of supervision from "day to day" to "close and constant".
On entering government in 2010, the coalition announced that it would suspend the rollout of vetting provisions under the Safeguarding Vulnerable Groups Act 2006 and undertake a review of vetting and barring procedures, with the aim of restoring common-sense levels of safeguarding. This was despite the implementation of key recommendations from the
6 Dec 2011 : Column 625
Representations from the Sport and Recreation Alliance described safeguarding requirements under the 2006 Act as "welcome burdens". Girlguiding UK, of which I am proud to be a member, says:
"We would like to reiterate that in our experience the requirement to undergo a CRB check, along with Girlguiding UK's own stringent checks to ensure the protection of the girls and young women in our care, does not deter potential volunteers".
The Government's other principal argument is that overreliance on the state to certify safety of employees leads to complacency among employers on safety and a perception that it is solely the responsibility of the state to ensure safety. However, we do not believe that that conjecture is supported by the evidence. Of course, CRB and ISA checks are not the be-all and end-all of child protection and neither is that borne out by the attitudes of the industry, with many organisations having developed their own independent standards of best practice on child safety. For instance, 76 per cent of the England and Wales Cricket Board's local clubs either have or are working towards independent child protection accreditation. The view from children's charities and voluntary sector organisations such as the Sport and Recreation Alliance is clear. For example, the NSPCC says that a new definition of regulated activity excludes many people who have regular and close contact with children. This creates a risk that unsuitable individuals may gain and exploit positions of trust, and there are numerous other organisations that feel similarly. For example, Fair Play for Children has stated:
"We believe that this Bill ignores entirely the major issue of secondary access".
I could cite many case studies, but one example is from 1998, when Barry Bennell, aged 44, was jailed for nine years for the serial abuse of young boys from 1978 to 1992, when he was the scout for north-west and Midlands junior football teams. For over a decade, he used his position to invite boys to stay with him at his home and take teams on tour, where he sexually abused them. Critically, the issue was not whether he was supervised in the workplace but that without proper checks he was able to establish a trusted position and gain unsupervised access to vulnerable adults. The Government's changes to the scope of regulated activity take a clear system and open it up to discretion and abuse, admittedly by a small minority, but nevertheless by predatory individuals.
6 Dec 2011 : Column 626
In relation to Amendments 60, 64 and 65, our view is that the Government should scrap altogether their proposed distinction between supervised and unsupervised work with children and vulnerable adults. However, if the Government are not prepared to move on this, we would probe the Minister's opinion on a consensus position which would at the very least tighten the statutory definition of "supervised" better to capture the sort of roles that we feel should be included in regulated activity. On Report in another place, the Government conceded that greater clarification was needed and agreed to publish draft guidance on the definition of supervision, as the noble Baroness said. We welcome that step and ask the Minister whether he agrees to publish that draft guidance before the end of the Committee. However, like many voluntary organisations, we are concerned that the issue of guidance still leaves too much room for discretion and that, while the best organisations will continue to co-operate with the highest standards of protection, others with fewer resources will shrink back to the legal minimum.
I wish to place on record the fact that although we wish to ensure that the scope of regulated activity is not restricted, we absolutely do not wish to discourage sporting and other organisations from employing those who have previously been in prison or who have been young offenders-that is, those people who do not have a history of violence or sexual abuse. I say this because yesterday, together with other noble Lords, I met with User Voice, a charity led and delivered by young offenders. Some of those young offenders who have not offended for three, four or five years now wish to give something back to society and have been working with young potential offenders to deter them from offending, because as offenders they have been through exactly the same process. They said that they found it very difficult to find work or recreational activity in sporting clubs, precisely because they have a record. Those young people have turned around their lives and it is important that, in ensuring that people are properly checked, we do not deter sporting organisations and others from employing those who have turned the corner and, as I say, wish to deter other young people from following in the steps that they have already trod.
Lord Bichard: My Lords, as chairman of the Soham inquiry there are perhaps some who think that I was the instigator of the arrangements in place for child protection, which this legislation seeks to change, and that I would therefore inevitably be opposed to these proposals. In fact, if your Lordships looked at the Soham report, you would see that I was looking for proportionate arrangements. I believe that, in some respects, the arrangements that were subsequently introduced were disproportionate and I am not therefore in principle opposed to some amendments. I want to make it clear that I will be looking carefully at the proposed legislation when it leaves Committee to see whether the new proposals are, in my view, proportionate. If I do not think that they are, I will want to move some amendments on Report.
However, it is right to say at this point that I have particular concerns about the issue of supervision. As has already been said, we are dealing on occasions
6 Dec 2011 : Column 627
The Lord Bishop of Newcastle: My Lords, I have anxieties about this concept of supervision because the Bill does not actually define what that means. As I understand it, the definition is to be left to employers, although guidance is planned. But the Bill and these proposed amendments do not quite recognise some of the challenges that we face in a church environment. Just imagine a youth club worker, for example, who may well be supervised during a formal session but who may well have other, unsupervised contact with children and young people at other church activities, thus leaving plenty of opportunity to develop inappropriate relationships and, indeed, to groom children. It should also be recognised that those who are being supervised can still develop relationships with children who could be exploited. The limitations on regulated activity, based on this rather nebulous concept of supervision, seem to leave a great big gaping hole in the Bill.
3.30 pm
Lord Addington: My Lords, I support my noble friend. I believe that this is the first amendment that she has moved in this House, and I congratulate her on that. The idea for Amendment 62, which stands in my name, was taken from sport. As my noble friend has stated, it is very difficult to decide who is actually in charge of a particular part of a sporting activity when it comes to training. In certain sports-Rugby Union is a good example-the sub-coach may be in charge of a session that deals with an aspect of the activity. This is the driving force behind the amendment. The noble Baroness, Lady Royall, has pointed out that the Bill goes much wider, and I look forward to clarification from the Minister.
The importance of the amendment is that it points out that in a very big sector-sport is one of the most important sectors for volunteers and one of the biggest individual volunteering sectors-you do not really know, when you are taking part in this structure of coaching, exactly who is in charge at any time. People will be taken away for specific coaching-strength, speed, endurance or technical-and will be out of the supervision and control of the overall body and will be undertaking something that the overall coach may not be able to understand; that may be why they are there.
We have to get to a position where everyone with that degree of power and control has had a full check. That is really all that this is about. I do not criticise the
6 Dec 2011 : Column 628
I hope that my noble friend will be able to tell us that our interpretation of what he is saying is wrong, and that the extension of this and other types of activity will be caught by the Bill. If not, we will have to change it, but I hope he will be able to give us some assurances that we are worrying unduly and give us examples of why that is the case.
Baroness Walmsley: My Lords, I have two amendments in this group, Amendments 63 and 66. Amendment 63 would provide a level playing field between schools and colleges in relation to the information that they receive to help them with safe recruitment. The effect of the Bill as it stands is that colleges will no longer be able to access barring information about any newly appointed non-teaching staff, whereas schools will still continue to be able to receive this information.
All children should be given the same protection under the law wherever they study, and therefore all educational institutions should have identical access to criminal records and barring information. The current proposal places further education colleges on the same basis as leisure centres or places of worship, which children attend only occasionally, rather than in the same category as schools, which, like colleges, children attend on a daily basis and where they meet the same staff, both teaching and non-teaching, day in and day out.
This is not a minor matter affecting small numbers of young people. There are nearly 900,000 16 to 18 year-olds studying in colleges, about double the number of the same group attending sixth-forms. This number will rise when the participation age goes up to 17 and then to 18. There are also 63,000 14 to 16 year-olds who spend at least one day per week in a college, and that number is likely to increase following implementation of the recommendations of Professor Alison Wolf.
Colleges are clear that they want the ability to check that the staff they employ do not pose a risk to their students aged under 18. All staff in educational establishments are seen by children as trusted adults. Colleges want to maintain a safe recruitment procedure. The key to this is to ensure that they are able to make informed decisions regarding the suitability of applicants by continuing to receive barring information in addition to the criminal record check. This amendment would remove the anomalous differences between schools and colleges in respect of young people of exactly the same age group. It surely must not be the Government's intention that a 14 year-old should have the full protection of the vetting and barring system from Monday to Thursday when she is at school and not have such protection on Friday when she goes to college.
The idea for Amendment 66, which is in my name, came to me during a meeting with my noble friend the Minister and my honourable friend Lynne Featherstone,
6 Dec 2011 : Column 629
However, these organisations, as we have heard, are very concerned about the wholesale removal of many potential volunteers from the scope of regulated activity. They and I are concerned about what is called secondary access. We recognise that much of the abuse does not take place during the activity itself but elsewhere or on another occasion when the abuser takes advantage of the relationship of trust that he has been able to build up with the child during the activity, even where it has been closely supervised. They and I are also very doubtful as to whether any official guidance, however carefully crafted, can adequately identify the level of day-to-day supervision necessary to ensure protection and roles in which the adult cannot build up this relationship of trust.
These organisations are also concerned that although a registered body can ask for an enhanced CRB check on someone in an unregulated role, they cannot get information on whether that person is barred or not. A person can be barred on the basis of important and significant information other than by involvement with the police. Unless the information is known to the police, the organisation taking them on as a volunteer cannot get hold of it and may unwittingly take on someone who is barred and absolutely unsuitable in an unregulated role.
I think I have the solution to this problem. The people best placed to specify which roles within their organisations would give an adult the opportunity to build up that relationship of trust are the management of the organisations themselves. That is what my amendment says. It perhaps picks up the concerns expressed by the noble Lord, Lord Bichard, about the difficulty of specifying the level of supervision required. These organisations understand the situation on the ground much better than any civil servant sitting in the department writing guidance.
This amendment does exactly what the Government have said they want organisations to do. This is what it says in a document on frequently asked questions that was recently circulated by the Minister:
"The purpose of the change to the scope of regulated activity is two-fold. Firstly, it is to provide greater flexibility to employers and to organisations in using volunteers and staff who are supervised by not requiring them to carry out the checks that apply to regulated activity, but for such employers to have some flexibility in determining the level of vetting that they decide is appropriate in relation to any work. Secondly, it is to place the responsibility for safeguarding children sensibly with those who are directly responsible for the provision of services to children and to encourage them to have in place proper supervision and other safeguards".
6 Dec 2011 : Column 630
With that in mind, and bearing in mind similar statements made by the Minister in another place, I am very optimistic that my noble friend the Minister will accept my amendment, since this responsibility, which the Government require in the hands of the registered bodies, should be placed in the Bill.
Baroness Grey-Thompson: My Lords, I support the amendment, which was very comprehensively moved by the noble Baroness, Lady Heyhoe Flint, and supported by the noble Lord, Lord Addington. I declare an interest as a board member of UK Athletics and the London Marathon and a trustee for the Laureus Sport for Good Foundation. I believe that the definitions are incredibly important. I, too, would like to have some greater understanding of what the supervisory role comprises. In the course of my research I spoke to my own governing body, UK Athletics. It has no evidence whatever to suggest that criminal record checks put off any coaches from being involved in sport. While I accept that the CRB does not solve every problem that we might have in sport, in the early years of CRB checks UK Athletics received many complaints every week, but in the past 12 months it has not received a single complaint about the CRB process. My concern is with the grooming process. Coaches are in an incredibly powerful position. They instruct young people not just on the training programmes but on how they dress, behave and where they go. They are in charge of whether the young people are selected for the team. That might be a club team but it can get people on the path to competing at a higher level.
In recent years, two cases within my own sport have become known to the public. A 77 year-old coach was barred from working with athletes for 15 months. He had been exposed by a local newspaper but was back in a club working in a supervisory role. The danger of coaches coming back into sport after such incidents poses too great a risk to young people. Further, a 43 year-old coach abused a 14 year-old girl. Neither of these incidents took place at a club or training ground but in the coaches' own homes. The parents of the young people involved trusted the coaches. The latter case came to light when the girl at the age of 15 reportedly ended the affair. The coach in question was sentenced to 17 years in prison. That goes to show how powerful the relationship is between a coach and young person and how easy it is for some people to groom young athletes, whether that process takes place over weeks, months or years.
There have been three very high profile cases in the US. The most recent occurred last week at Pennsylvania State University, where an assistant coach who had been abusing young boys over a number of years was exposed. Although the matter had been reported to the head coach-he has since lost his job because of this matter-and at higher levels in the university, no action was taken. It is easy to say that different circumstances apply in that case as it occurred in a different country within a university system. However, it highlights the power wielded by assistant coaches, head coaches and all coaches over the individuals with whom they work.
I understand that we need to protect the 92 per cent of people who have no CRB record and we have to make the process easier if we are to encourage people
6 Dec 2011 : Column 631
Baroness Randerson: My Lords, I rise to speak specifically to Amendment 63, which was introduced by my noble friend Lady Walmsley. I was a further education lecturer for more than 20 years and so I have some residual understanding of the relationship between further education lecturers and their students. We are not talking just about 16 to 18 year-olds. As my noble friend made clear, increasing numbers of 14 to 16 year-olds are spending at least part of their week in our further education colleges. That trend has grown considerably over the years, particularly in the past few years. We need to look at why the trend has grown. First, there has been a recognition by both the previous and current Governments that for many 14 year-olds school is no longer the most suitable environment. They do not respond well to school. Secondly, there is the Government's desire to raise the status and popularity of vocational qualifications. Unless we get the legal structure right in this regard, parental support will not be forthcoming for young people between 14 and 18 to go to college rather than to stay in school. Therefore, schools and colleges should fall in the same category. This has been recognised in other respects by the University and College Union, which has campaigned for example on the issue of the registration of further education lecturers. The union sees that parental support and confidence in colleges is dependent on their being seen as being on the same level playing field as schools.
3.45 pm
It is true that every college is full of hundreds if not thousands of adults who cannot all be CRB-checked because some are also students. However, it is important to bear in mind that lecturers have a very important power and influence over their students. They develop a position of trust with them. I know that I have the support of the Association of Colleges when I say that schools and colleges need to be in the same category in this respect. This is what the amendment does. The teacher in front of the class and the lecturer in front of the class are essentially in exactly the same position of trust.
I will take this one step further by saying that this is not just about children. Our further education colleges continue to educate the most vulnerable adults. I give as an example South Thames College, which runs a course for mainly, but not exclusively, autistic young people. They are very vulnerable and impressionable. Many of them are too old to be legally considered as children, but they are nevertheless vulnerable adults. They are particularly inclined to put their lecturers on a pedestal and invest emotional trust in them. It is important that the Government take this into account.
6 Dec 2011 : Column 632
Our most vulnerable adults who are sent to education are sometimes sent to residential colleges, where the risks and dangers-as well as the advantages and benefits-are at their greatest. I ask the Minister for clarification on the position of vulnerable adults who are learning in further education institutions, whether on a day-by-day basis or in residential institutions.
Baroness Hamwee: My Lords, perhaps I may make some more general points following the comments in particular of the noble Lord, Lord Bichard. I struggled with both the terms "day-to-day" and "close and constant" and rather came to the conclusion that there may not be a snappy phrase that will deal with the issue that noble Lords have identified so powerfully. We may know the situation when we see it, but we may not be able to find a couple of words to describe every such situation about which we are concerned. I was glad to read-noble Lords referred to this-that the Government will provide guidance on the question of supervision. However, the guidance cannot go beyond the legislation.
It troubles me that we may be trying to find a way of putting succinctly into legislation something that will not quite fit. This might be an occasion when we have to be a bit more verbose than we would normally want to be-I do not know; other people's language skills will be better than mine. However, I was left with the concern that we should not rely on guidance saying something in addition to what the legislation says, because it cannot.
I hope that the guidance which emerges at the end of this process is easier than the language in the Bill. I struggled an awful lot with the double negatives. It will not be a service to those who are working in the field if we cannot produce something that is much easier to follow.
I want to add one other thought which is very much implied, if not explicit, in what other noble Lords have said. Whom does a child trust more: the worker, for want of a better word, with whom he develops a close relationship; or a supervisor who has perhaps not been in a position to create the same trust, because the supervisor is the authority figure and may not be perceived as being on the child's side?
The Minister of State, Home Office (Lord Henley): My Lords, I am grateful to my noble friend Lady Hamwee for, in effect, finishing off this debate. She took us back to the general, which is what I want to start off with. I think that it was the noble Baroness, Lady Royall, who was somewhat critical of what we are proposing in this area and quoted a great deal from, I think, User Voice. I was then grateful for the intervention from the noble Lord, Lord Bichard, the author of the Soham report, who reminded the Committee that, as he put it, what had followed his report-the recommendations, if I may summarise them-was not exactly quite as proportionate as he felt it should be. I stress that we are looking for the right degree of proportionality and the right balance in the Bill. That will obviously be difficult to achieve. I am therefore grateful for the chance to address just some of the issues in relation to this amendment.
6 Dec 2011 : Column 633
Sticking with that generality and the quotations that the noble Baroness, Lady Royall, gave from User Voice, I should remind her that there was considerable support for the Bill and the proposals in this area when they came out. I can quote Anne Marie Carrie, the chief executive of Barnardo's, who said that the Government's proposals were a "victory for common sense". She said:
"There is already enough safeguarding in place for people who have unsupervised, substantial access to children";
"This approach will make it easier for grandparents, parents and neighbours, who should be able to play an important role in a child's life without unnecessary red tape".
There was also support from the Scout Association, Nacro and others-I could go on. The question that we want to address is how to get the right degree of proportionality.
The amendments are very much in three groups. I do not know the intention of the noble Lords who tabled the various amendments, but if it is thought that we might vote on them, I should say that I am fairly sure that the amendments tabled by the noble Baroness, Lady Royall, would not be consequential on Amendment 58. However, we will get to that in due course.
Amendments 58, 61 and 62 were tabled by my noble friends Lady Heyhoe Flint and Lord Addington. I am grateful to them, and to my noble friend Lady Walmsley, for reminding us that my honourable friend Lynne Featherstone and I had an opportunity to discuss this matter with a large number of representatives of the sports and leisure sectors as well as a number of my noble friends at a meeting in the Home Office. There have been subsequent meetings and we have listened very carefully to the arguments presented. I think that we have taken on board some of those concerns.
Obviously one of those concerns is that supervision is very difficult to provide in the context of sport. That is what we want to deal with at this stage. The Bill now requires that we provide statutory guidance in relation to supervision to assist sports governing bodies, and others, to decide on whether a particular employee or volunteer falls within or outside the scope of regulated activity. As we have made clear, we intend to consult on draft guidance in advance of Report. I can assure the Committee that we will include the sport and recreation sector in that consultation. I can also assure the Committee that the guidance will include elements specific to that sector.
The noble Baroness, Lady Royall, asked me whether I could get the response to that consultation out before Report. I appreciate that Report, given the speed at which we are moving, is some time off and getting a response to that consultation might be somewhat difficult. However, we certainly hope to get the consultation out and that will be useful for the House to have a look at in advance of Report.
We do not, in principle, see the need to move away from the notion that where individuals can be properly supervised, then in some circumstances there is no need for their work to fall within regulated activity or
6 Dec 2011 : Column 634
This provision is intended to provide additional flexibility for employing organisations and to help ensure that individuals are not dissuaded from volunteering. One of the bodies that commented on this was the Scout Association, which said that it preferred to supervise individuals when they first join the organisation before barred-list checks become necessary. There is of course no compulsion in the Bill for an organisation to provide supervision. Where it is unable to do so, activities will remain regulated and barred-list checks must be made.
My noble friend Lord Addington looked for examples of what would be adequate supervision. This will obviously vary according to where you are and what you are doing. In a classroom or indoor venue, the supervisor should be in the same room for the majority of the time, excepting that they may on occasion need to leave for a short break. In a classroom, a teacher or other adult in a regulated activity should be in the room with the supervised assistant and be able to see their work for most of the time. Matters would obviously be different in an outdoor context, and my noble friend was right to draw on this. On playing fields, one coach or supervisor should be able to supervise an individual on the same or a neighbouring pitch-for example, an assistant football or rugby coach helping with the same match or on a next-door pitch, but not across a vast number of pitches or where activities take place at a considerable distance. My noble friend also gave the example of an assistant coach who might have some special expertise that his superior would not understand. Again, if that were the case, the appropriate checks would have to be made because, I should make clear, the whole matter would be a question of tact and degree according to the facts of the case at any point.
Perhaps I may also say a word or two about the drafting of Amendment 61, because the noble Baroness, Lady Royall, raised a concern regarding the meaning of "recreational". As drafted, that amendment would not in any event achieve the desired intention. It would not extend the list of establishments to include sports venues. It simply adds sport to the description of work in the existing list of circumstances. Its effect, therefore, is that supervised volunteers coaching sports in schools would be in regulated activity, but supervised coaches elsewhere-paid or unpaid-would not be. In addition-a point queried by the noble Baroness, Lady Royall-it provides no definition of a recreational activity, which could mean that the amendment would inadvertently catch a wider range of activities than intended.
6 Dec 2011 : Column 635
4 pm
Baroness Royall of Blaisdon: I am grateful for that response from the Minister but I surmised from what the noble Lord, Lord Addington, said that the intention behind the amendment was indeed to capture a wider activity than just a sporting activity and to open it up a bit further to encompass youth clubs or whatever. However, I may be wrong about that.
Lord Addington: Perhaps I may come in here to clarify the matter. I was using sport as an example of where you get activity. The noble Lord has started to answer my concern but, although he has gone some of the way in his initial response, I do not think that he has totally embraced the position of control that can be taken on by a coach, even if that coach has a subservient role to the main coaching structure. For instance, if you are a potential shot-putter, you need a strength coach. You need someone to control your diet, your exercise and the way you sleep. I am trying to get at whether that degree of control is within an organisation. The noble Lord is starting to get there but I am just saying that, unless that degree of control in this one sector is addressed, he is going to miss out a lot of things in other sectors.
Lord Henley: My Lords, obviously at this stage I cannot define "recreational" as used by my noble friends in their amendments. It is not for me to define it; an explanation will have to come from noble Lords themselves as they move their amendments. The subsidiary point to that-the concerns expressed by my noble friend-may be best addressed by my noble friend Lady Hamwee's comments when she talked about the difficulty of getting it down to just one or two words. She talked about the need to get this consultation, and the guidance ensuing from it, which is exactly right. I hope that my noble friend now accepts that that is what we are trying to do. That is why I want to make sure that the consultation is out before the next stage of the Bill. I see the noble Baroness, Lady Farrington, twitching to get up, so I shall give way.
Baroness Farrington of Ribbleton: Can the Minister give the assurance which I understood his noble friend Lady Hamwee was seeking? He used the term "proper supervision". I understood the noble Baroness, Lady Hamwee, to say that there ought not to be anything stronger in the guidance than the wording in the Bill defining "supervision". It would be very helpful if the Minister could give an undertaking that that fear is totally unfounded and ensure that his sense of "proper supervision" is defined as much in the Bill as in the guidance.
Baroness Hamwee: Perhaps I should see whether I can make myself absolutely clear. My concern was that primary legislation must trump guidance and that guidance cannot go further than the legislation. That is what I was trying to express.
Lord Henley: The noble Baroness, Lady Hamwee, is a lawyer and she has expressed exactly how it should be. Obviously guidance does not go beyond the legislation.
6 Dec 2011 : Column 636
Perhaps I may now deal with the noble Baroness's Amendments 59, 60, 63A, 64 and 65. As always, we want to strike the right balance. Balance is the new word that I have learnt in the Home Office, and it is very important in this Bill that we get that right. I think it was the theme behind what the noble Lord, Lord Bichard, said. It is a question of proportionality. Our definition in this provision insists that it must be substantial. For example, an occasional, or even weekly, meeting between the supervisor and the supervised would not be sufficient.
The noble Baroness's amendments would change the wording to "close and constant", which would render the definition of supervision unworkable and go against the Government's intention of having more proportionate disclosure and barring arrangements. If you think about it, the words "close and constant" are pretty severe. I gave the example of the classroom environment, and "close and constant" does not even allow leaving the room occasionally. They would in effect mean that the work of a volunteer working in a sports club under the supervision of a qualified sports instructor would become regulated activity if that qualified instructor left the room at any stage, because the supervision would then not be constant. That goes too far and undermines our proposals to scale back disclosure and barring to common-sense levels by imposing an unrealistically high test for supervision.
We believe that the Bill as drafted, coupled with the statutory guidance that we will publish following the consultation, will produce the right result in setting the boundaries of regulated activity. For that reason, when we get that consultation out, I look forward to comments from all around the country and from all noble Lords, and I hope that the noble Lord, Lord Bichard, will feed his experience into it.
Finally, I turn to the amendments tabled by my noble friend Lady Walmsley. Amendment 63 seeks, in effect, to bring all those who work in FE colleges within the scope of regulated activity. I should first stress that all paid teaching and non-teaching staff in establishments, including further education colleges, that wholly or mainly provide full-time education to children will remain within regulated activity and therefore must undergo a barred list check as part of their pre-employment checks. In addition, the unsupervised teaching, training, instruction, care or supervision of children in further education institutions will remain a regulated activity, even where such an institution provides education mainly to adults.
Amendment 63 would go further by bringing into regulated activity all work by any staff in further education colleges providing education to even a small number of children where staff have the opportunity for contact with children. Under the current scheme, such work is "controlled activity". Controlled activity
6 Dec 2011 : Column 637
The Government do not consider it proportionate for the state to require or allow barred list checks on activities that are currently defined as controlled activities. Such activities generally entail only incidental contact with children. I question whether all colleges would really welcome a duty to check hundreds of staff just because the college takes on, for example, half a dozen 17 year-old students.
Baroness Hamwee: Will the Minister move away from the wording of this amendment-I take the point he makes about it perhaps being too blanket in its coverage-and address the point about who is a child for the purposes of the protection that we are seeking to apply? I think that is what underlines the points made by my noble friends in addressing this. Technically, this may not be right, but they are concerned about the subject of the protection.
Lord Henley: My Lords, I understand the concern, and I think it might be necessary for us to have further discussions on this outside the House. I think my noble friends understand the importance of proportionality-I use that word again. The example I was giving when my noble friend interrupted me was about a college that takes on half a dozen 17 year-olds being affected. It might be that if it was half a dozen 14 year-olds, things would be different. It is a question of balance which, again, we will have to look at. I was about to say that the amendment goes too far; my noble friends agree that it goes too far. They will not press it, but obviously there might be scope for further discussions in due course.
Amendment 66 could also be very wide-ranging in its effect. It sets out that a regulated activity provider may decide whether other activity that it carries out is analogous to regulated activity. It also creates a new duty on the Disclosure and Barring Service to provide information that would otherwise be provided only in respect of regulated activity for any such activity that the provider decides is similar to regulated activity. We have stated that we do not think it is right to provide barred list information for activity that is not regulated activity. We have set out in Clause 64 what activity should be defined as regulated activity in relation to children. This amendment would in effect give regulated activity providers the ability to define any activity as similar to regulated activity and request barred list information from the Disclosure and Barring Service; for example, they could designate someone who has merely the slightest contact with children in a sport or recreation setting, or an employee providing first aid as an ancillary part of their job.
We do not think that Amendment 66 does what it says on the label, as it were. Again, I might have misunderstood what my noble friend is getting at with that amendment. If she would like to have further
6 Dec 2011 : Column 638
Baroness Walmsley: Perhaps my noble friend the Minister will allow me to clarify my thoughts on this matter. The main point I am trying to make is that we are having very great difficulty defining what is meant by the level of supervision that the Government want to put outside regulated activity. The point I am trying to make is that the best people to decide the roles that should correctly be within regulated activity are the organisations themselves. They know whether those roles give the person the opportunity to develop that relationship of trust with the child, and no civil servant sitting in Whitehall can possibly do that. The very fact that we are having such difficulty defining the level of supervision that we mean is an indication that I am right about that.
Lord Henley: It may or may not be an indication that my noble friend is right, but I think that further discussions, even if they do result in further amendments, might be appropriate.
Baroness Royall of Blaisdon: My Lords, it is absolutely right that the noble Lord has offered to have further discussions with the noble Baroness about this amendment, and I welcome that. Clearly we are not going to have another opportunity to discuss my amendments to do with "close and constant". The noble Lord said that "close and constant" would be too prescriptive in the Bill and would destroy the balance he is seeking to ensure. However, after the noble Lord, Lord Bichard, expressed disquiet about the balance in the Bill, will the Minister agree to have further discussion with us about the words "close and constant"? The noble Lord says that the consultation will be launched but that he will not be able to provide the Government's response to the consultation before Report. I am slightly alarmed. The consultation is to be welcomed, but then we are going to be expected to decide what is going to be in the Bill before we know the Government's response to the consultation, and that seems a bit topsy-turvy to me.
4.15 pm
Lord Henley: We can have a meeting if the noble Baroness wishes; my door is always open. I just think that "close and constant" goes far too far and more or less negates the point of what we are trying to do in this area. Obviously, we would also listen to what the noble Lord, Lord Bichard, has to say on these matters, and I will give way in a minute; we welcome his experience. I remind the noble Baroness, however, that he was not totally uncritical of what followed his report and what was done; if I can paraphrase the noble Lord, he said it was not quite as proportionate as it might be.
Lord Bichard: My problem, which is not yet being addressed, is this: we have checks to ensure that inappropriate people do not get access-particularly
6 Dec 2011 : Column 639
Lord Henley: The noble Lord seems to be suggesting that we get rid of the idea or the concept of supervision in its entirety. I simply do not accept that. I think there is a role here for making it easier for people to get involved, with the appropriate degree of supervision where necessary. I take it that the noble Lord does not agree with me on that and it might be that the noble Baroness, Lady Royall, does not agree with me on that: in which case, we will have to differ. We on this side see a role-and so do many other bodies outside-for the appropriate supervision to allow people to take on such a role. For that reason, I am not sure that a meeting on this matter would necessarily be fruitful.
Baroness Farrington of Ribbleton: There is a world of difference between close and constant, and occasional. There is a further concern that could be raised about those who are deemed to be in supervision. Were things to go wrong-and in the best of all possible worlds, there will tragically be such occasions-we must consider those who will be deemed to have been in a supervisory capacity, where they must rely on their judgment about the individual. Some people have referred to them as manipulative: they are deadly.
Furthermore, I refer to a quote in connection with a case involving a member of the Scouts. When I spoke to a young person who had come into contact with this predator, the young person said:
"We worked out that he was the one who looked for the child with no friends".
I am concerned that if in the future we are going to rely on somebody being in a supervisory capacity, they need protection from any allegation at a later stage that they failed to supervise.
Lord Henley: My Lords, I think that we are moving away from what the amendments originally were about. There now seems to be a general attack on any idea of supervision at all. I am making it clear that we believe that supervision is appropriate but that it is just a question of getting that balance and proportionality right. For that reason, we think that we have got it right and that is why we will consult on the detail, which, as my noble friend Lady Hamwee made clear, was a matter more appropriate for the Bill. I do not
6 Dec 2011 : Column 640
Baroness Heyhoe Flint: I thank my noble friend for his response. Having lobbed the pebble in the water, it has drawn up several matters that I had not envisaged in my amendment. I am encouraged that the Minister has listened to my pleas, which perhaps is rather selfish, and has given assurances concerning governing bodies and further education. Working on the premise that it is better to be safe than sorry and having had the assurance that there will be further guidance and consultation, which I am sure will be balanced and proportionate, I beg leave to withdraw the amendment.
Amendments 59 to 66 not moved.
Clause 66 : Restriction of scope of regulated activities: vulnerable adults
Baroness Stowell of Beeston: My Lords, these government amendments are to remedy an anomaly in the definition of regulated activity for adults. The Bill provides that regulated activity relating to adults can be broadly split into six categories, one of which is the provision of personal care. The personal care definition currently includes "physical assistance" with the care of,
which is on page 64 of the Bill.
These amendments will remove the current exception,
as the exception creates an anomalous situation where chiropodists and podiatrists are in regulated activity because they are regulated healthcare professionals except when providing nail care. The amendments will achieve the Government's policy aim that chiropodists and podiatrists are wholly within regulated activity and therefore within the scope of the revised vetting and barring scheme. I beg to move.
Clause 66, as amended, agreed.
6 Dec 2011 : Column 641
Clause 67 : Alteration of test for barring decisions
68: Clause 67, leave out Clause 67 and insert the following new Clause-
"Alteration of test for barring decisions
(1) In sub-paragraph (3) of paragraph 2 of Schedule 3 to the Safeguarding Vulnerable Groups Act (inclusion subject to consideration of representations), after paragraph (b) insert-
"(c) give the person the opportunity to present evidence and call witnesses at an oral hearing in front of a panel of at least two persons.".
(2) After sub-paragraph (2) of paragraph 3 of that Schedule (behaviour) insert-
"(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.".
(3) After sub-paragraph (2) of paragraph 5 of that Schedule (risk of harm) insert-
"(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.".
(4) After sub-paragraph (3) of paragraph 8 of that Schedule (inclusion subject to consideration of representations) after paragraph (b) insert-
"(c) give the person the opportunity to present evidence and call witnesses at an oral hearing in front of a panel of at least two persons.".
(5) After sub-paragraph (2) of paragraph 9 of that Schedule (behaviour) insert-
"(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.".
(6) After sub-paragraph (2) of paragraph 11 of that Schedule (risk of harm) insert-
"(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.""
Lord Rosser: I shall speak to the two amendments in this group. Amendment 68 would reverse provisions to restrict automatic inclusion on the barred list and introduce a right of appeal for the individual to be taken off the list. It seeks to take account of the recommendation of the Joint Committee on Human Rights that there should be a right of appeal against all barring decisions.
Under Amendment 69, an enhanced Criminal Records Bureau check would reveal whether an individual had been barred from working with vulnerable adults or children. After the lengthy debate that we have just had on the first group of amendments, there is inevitably some degree of repetition on this group but I will endeavour to be reasonably brief.
We have heard that, as a result of the proposed restrictions to the definition of regulated activity, individuals working under supervision with children or vulnerable adults will no longer require CRB checks or have their barred status revealed. Therefore even if the employer chooses to apply extra caution and request an enhanced CRB check on an individual, it will not state whether that individual has been barred by the Independent Safeguarding Authority as this information
6 Dec 2011 : Column 642
First, however, barring decisions are not just based on police records. They take into account information from past employers and they analyse allegations that may not have been pursued with the police. That is especially important information when it comes to work with children and adults because of the well known problems with evidence and the particular vulnerabilities of witnesses and victims. An example of this is that the ISA may consider a situation where an allegation has been made by a dementia sufferer but was not reported to the police because of the perceived reliability of the evidence. An enhanced CRB check on a volunteer in a care home would not alert the employer to this. Secondly, in not granting all registered employers access to ISA decisions, the Government's proposals could in fact lead to greater prejudicial and unfair rejection of candidates, as employers will be expected to use their own judgment to assess the relevance or seriousness of the information in front of them rather than utilising the expert opinion of the ISA.
So far as Amendment 69 is concerned, in addition to the restrictions on the scope of regulated activity under Clause 67, individuals who have committed a serious offence will no longer automatically be placed on the barred list. Instead, they will be barred only if they have worked or are deemed likely in the future to work in a regulated activity. An individual who has committed a serious barring offence will no longer be barred from gaining close contact with children and vulnerable adults as, for example, a football coach, provided that they are subject to some form of supervision. As has already been said, the crux of the problem is secondary access, and the upshot of Clause 67 is that individuals convicted of a barring offence will be able to gain access to and build up trust with children and their parents which could be exploited. If there are grounds to bar an individual from working with children or vulnerable adults unsupervised, that individual should not be undertaking work in regular close proximity with children and vulnerable adults regardless of whether it is supervised or unsupervised, paid or unpaid.
The NSPCC appears to take a similar view, because the Government's own review on the vetting and barring scheme states that:
"The NSPCC's view is that some offences against children should always be grounds for barring".
Amendment 68 would erase the new distinction among convicted offenders for placing on the barred list. It would also introduce the right to a full merits appeal against barring decisions, with the right to present evidence and call witnesses at an oral hearing, thus reflecting the principle of the High Court decision on the Royal College of Nursing v the Secretary of State for the Home Department and the JCHR
6 Dec 2011 : Column 643
4.30 pm
The key message that has been stressed again today-and it is it stressed also by children's charities-is the importance of transparency and information sharing to ensure that crucial warnings do not fall through the cracks or not get passed on. The combined result of the Government's restrictions on the scope of regulated activity and on the disclosure and application of barring decisions is that individuals who have been barred for committing serious offences will be able to apply and work with children and vulnerable adults without detection.
I appreciate that the Home Office review into vetting and barring, which was published at the beginning of this year, stated that:
"Key to any new system will be a recognition, that employers have a critical role to play in ensuring safe recruitment practices and it is arguable that the balance of responsibility for ensuring safe recruitment became too heavily skewed towards the state under the previous arrangements".
Frankly, the effect of government proposals is exactly the opposite. The Bill restricts the discretion of employers to seek a greater degree of information on applicants for positions, should they regard those positions to be of greater than normal risk. It is our view, hence these amendments, that by far the simplest, least bureaucratic and most watertight system-and surely that is what we want-would be to give employers the ability to view ISA barring decisions on all individuals for whom they seek an enhanced CRB check.
The Lord Bishop of Newcastle: My Lords, I would be grateful if I could ask the Minister for clarification. As I understand it, the intention is that the vetting and barring scheme will continue, albeit in a more scaled-down way. I understand that the current legal requirement to refer for possible barring any employee or volunteer who is deemed to represent a risk to children will continue, but the scope has been narrowed so that people will be placed on the barred list only if the ISA has reason to believe they are, have been or might in the future be working in a regulated activity. Yet at the same time the definition of regulated activity is being narrowed.
I ask the Minister if this means, for example, that a person may be barred from teaching, a regulated activity, but not from working as a voluntary teaching assistant, which is a non-regulated activity, if there is supervision; and that, further, any CRB check for the
6 Dec 2011 : Column 644
Lord Henley: My Lords, I thought that the noble Lord, Lord Rosser, had managed to silence the entire House, but the right reverend Prelate proved me wrong. I hope I will be able to respond to the remarks of the right reverend Prelate in due course.
I am grateful to the noble Lord for his explanation of Amendments 68 and 69, which make three substantive changes to the barring arrangements. First, they would reverse the change in Clause 67, which limits bars to those people who have been, are, or might in the future be engaged in regulated activity. The effect of this amendment would be that the barring regime would continue to extend to many people who do not work with, and do not intend to work with, children or other vulnerable groups. For example, a lorry driver or an office worker who has not worked with vulnerable groups and does not intend to would be barred from such work. We do not think that this fits with the purpose of the scheme and it does not accord with our aim of reducing the barring arrangements to common-sense levels.
Bars should continue to apply to those who have been engaged in regulated activity or who are likely to be so in the future. If an individual applies for an enhanced criminal record certificate or a barred list check, indicating that they may seek work in regulated activity, any automatic barring offences will be disclosed and referred to the barring authority at that point. In addition, enhanced criminal record certificates will continue to be available to employers of those working with children or vulnerable groups-including volunteers-and will provide information on previous criminal offences.
The second of the three changes that this amendment seeks to make concerns the category of offences that lead to an automatic bar, in relation to which representations can be made. Under the current arrangements, such representations can be made only after the person has been placed on a barred list. As a result of Clause 67, individuals would be able to make representations before the barring decision is made. Amendment 68 seeks to reverse that change, such that representations would still be made retrospectively. The provision in Clause 67 was made in response to a recent court ruling; but even if that were not the case, it seems to be a matter of basic fairness that representations about a decision should be considered when there is still a chance to influence that decision. Currently, someone may be barred, and even if that bar is revoked, they may already have been denied employment as a result.
The third change is that representations in both automatic and discretionary barring cases would be accompanied by the right to oral hearings. I do not consider that to be necessary. We have to remember that the Independent Safeguarding Authority is not a primary fact-gathering organisation but depends on information that comes from employers, regulators
6 Dec 2011 : Column 645
Amendment 69 proposes that information about whether somebody is on the relevant ISA barred list should be made available on all enhanced criminal record certificates, regardless of whether the post falls within the barring regime. The Government's position is that although there is a case to make such information available for a few specific cases falling outside regulated activity-such as applicants to foster or adopt a child-barred list information should otherwise be made available only for positions falling within regulated activity. This represents a very simple but important principle: barring by the ISA is about regulated activity and barring decisions are made in order to prevent people, by law, from working in regulated activity. They are not intended as a broader advisory tool for employers. An employer providing regulated activity needs to know if someone is barred, because they are then required by law to refuse that person's job application. However, it is not relevant for an employer to know this when they are seeking to engage someone in non-regulated activity. Such information would only tell them that the person was barred from another area of work and making it available would be detrimental for potential employees-it is very likely that an employer in such a situation would refuse employment because they saw the word "barred", even though the person may not represent a risk to any vulnerable people in that job. I do not believe that is a new principle. Under the existing arrangements, barred list information is not generally disclosed for positions falling outside regulated activity, so I am a little surprised that the noble Lord now advocates such a change. The changes we are making are to the scope of regulated activity.
The right reverend Prelate asked whether a person barred from teaching, but not from being a teaching assistant, could still be allowed to work. If the supervised volunteer was not on the payroll of the school, it is possible that that supervised volunteer could be barred from regulated activity and could still undertake this not-regulated activity. CRB checks and references, plus the supervision, should provide the necessary safeguard. Bars have only ever been applied to the regulated activity. That was the case before and will be the case in future. The answer, if I have got it right, is very simply that the teaching assistant could work but that obviously there would be adequate supervision -a matter that we discussed under an earlier amendment.
6 Dec 2011 : Column 646
I hope that with those explanations, the noble Lord will feel able to withdraw the amendment. If not, I leave that matter to him.
Baroness Farrington of Ribbleton: My Lords, I hope that the Minister will take away and think about the fact that the degree of supervision that the person in the supervisory capacity feels it necessary to give may vary according to the degree of knowledge that they have about the background of the person concerned. The right reverend Prelate raised a very important issue. I go back to my point about the duty and responsibility of those in the supervision capacity.
Lord Henley: I have a sneaking feeling that the noble Baroness just does not like the idea of supervision coming in at all and would like to see yet further, more stringent measures being applied. It is a very good way in which to make sure that the appropriate checks and balances can be found. There is the appropriate degree of proportionality and there will be the appropriate supervision, which we will consult on in due course.
Baroness Farrington of Ribbleton: The Minister misunderstands my position. My primary concern is the care of children, which I share with everybody else involved with this Bill. My secondary concern is that I agree with the principle of supervision, provided that I know what it is.
Lord Henley: I think that I can agree with the first point made by the noble Baroness entirely. As for the second point, that is what we have to get right, and that is why we are going to consult and produce the appropriate guidance. But that is not something that we can get down in the Bill.
Lord Rosser: My Lords, I noticed the response that the Minister gave to the right reverend Prelate, and I think that the short answer is that the concerns expressed by the right reverend Prelate would be largely addressed through the acceptance of the amendments that we have tabled and that the Minister has declined to accept.
The Minister raised the issue of the appeal. Clearly, the Government's intentions about appeals do not appear to meet the recommendations of the JCHR. He raised the query that, under the Government's proposal, people could appeal when informed of the ruling or the decision and before the implementation. I should just make clear our stance, which we have taken throughout-that we want people automatically barred if they commit a serious offence and then to appeal if they feel that the decision to bar them has precluded them from taking up a particular position. We come at it from a different angle from that of the Minister.
There is clearly a considerable difference between us, and it came out in the first group of amendments that we discussed and again in this group. We will need to reflect on the response that the Minister has given before deciding whether to pursue the specific issue again on Report. In the mean time, I beg leave to withdraw the amendment.
6 Dec 2011 : Column 647
4.45 pm
Clause 72 : Information about barring decisions
Baroness Hamwee: My Lords, I hope that we can dispose of this quickly. Clause 72 deals with information about barring decisions and my question is about the consent given by the object, if I can put it that way, of an inquiry who may consent to the provision of information when that consent, we are told in proposed new Section 30A(4) of the 2006 Act,
the same inquirer. I would be grateful if the Government can confirm that, in this context, consent can be withdrawn. I would read it that way and think that it is implied. However, there is certainly one example within the Bill: Clause 27, concerning biometric information of children in school, which deals with the consent of the parent and which says in terms that consent,
If it is necessary to spell that out in Clause 27, I would like to be quite certain that consent can be withdrawn effectively under the proposed new section contained in Clause 72. I beg to move.
Baroness Stowell of Beeston: My Lords, I am grateful to my noble friend Lady Hamwee for her explanation in moving her amendment. Clause 72 introduces proposed new Section 30A into the Safeguarding Vulnerable Groups Act 2006. That section will allow regulated activity providers and others with a specified connection to a person to ask the Secretary of State whether that person is on the relevant Independent Safeguarding Authority barred list, or lists. For this, the person must provide their consent to the release of information about them. Proposed new Section 30A specifies that consent given for one such check would serve as consent for subsequent checks about that person made by the same party, as my noble friend has already explained. The aim of that final provision is to reduce bureaucracy for employers and others. If a person has consented to the provision of information, it makes no sense for an employer to have to seek a new declaration from them every time that they need to do a new check. Clearly, however, the consent must be valid.
In moving her amendment, my noble friend seeks to specify that prior consent will not be valid for future checks if that consent has been withdrawn. Our view-this is where I hope to be able to give my noble friend the assurance that she seeks-is that the current drafting of the Bill achieves this policy intention. If
6 Dec 2011 : Column 648
It is probably worth mentioning, while I have the opportunity, a wider point in the context of Clause 72. Consent could be freely given, given the potential detrimental consequences to an individual. This was something which the Information Commissioner raised in a letter that he sent quite widely to noble Lords between Second Reading and Committee. He was seeking some clarification on this. Importantly, there is only a certain degree to which the state can and should intervene in the relationship between employer and employee. Naturally, if an employer should do anything untoward, an employee has access to the appropriate legal remedies but we do not anticipate that most employers would seek to coerce their employees.
The alternatives in this case are a system where consent needs to be given or one where it need not be. We choose the former because while pressure by an employer can never entirely be ruled out, it is better than information about someone being given to a third party without their knowledge. As the Information Commissioner noted in the briefing that he provided, a barred list check under proposed new Section 30A is only one of various ways for an employer to discharge their duty to check barred status so, should consent ever be an issue, there are alternatives. However, it is worth pointing out that criminal records checks themselves require the person who is the subject of the check to make the application.
Overall, I hope that what I have been able to say provides reassurance to my noble friend that the policy intention of her amendment, with which we agree, is catered for in the current drafting and that she will therefore feel able to withdraw her amendment.
Baroness Hamwee: My Lords, the Minister read my mind. I had wondered whether to draw to the attention of the House the points made by the Information Commissioner, and I thank her for answering them without my asking. Her response on what is meant by "consent" is helpful, and I beg leave to withdraw the amendment.
70: After Clause 78, insert the following new Clause-
(1) The Protection from Harassment Act 1997 is amended as follows.
(2) In section 2 (offence of harassment) for subsection (2) substitute-
6 Dec 2011 : Column 649
"(2) A person guilty of an offence under this section is liable to imprisonment for a term not exceeding five years, or a fine not exceeding the statutory maximum."
(3) For section 4 (putting people in fear of violence) substitute-
(1) A person ("A") commits an offence to be known as the offence of stalking, where A stalks another person ("B").
(2) For the purposes of subsection (1), A stalks B where-
(a) A engages in a course of conduct,
(b) subsection (3) or (4) applies, and
(c) A's course of conduct causes B to suffer fear or alarm.
(3) This subsection applies where A engages in the course of conduct with the intention of causing B to suffer fear or alarm.
(4) This subsection applies where A knows, or ought in all the circumstances to have known, that engaging in the course of conduct would be likely to cause B to suffer fear or alarm.
(5) It is a defence for a person charged with an offence under this section to show that the course of conduct-
(a) was authorised by virtue of any enactment or rule of law,
(b) was engaged in for the purpose of preventing or detecting crime, or
(c) was, in the particular circumstances, reasonable.
(a) following B or any other person,
(b) contacting, or attempting to contact, B or any other person by any means,
(c) publishing any statement or other material-
(i) relating or purporting to relate to B or to any other person,
(ii) purporting to originate from B or from any other person,
(d) monitoring the use by B or by any other person of the internet, email or any other form of electronic or other communication,
(e) entering any premises,
(f) loitering in any place (whether public or private),
(g) interfering with any property in the possession of B or of any other person,
(h) giving anything to B or to any other person or leaving anything where it may be found by, given to or brought to the attention of B or any other person,
(i) watching or spying on B or any other person,
(j) acting in any other way that a reasonable person would expect would cause B to suffer fear or alarm, and
"course of conduct" involves conduct on at least two occasions.
(7) The Secretary of State may by regulations made by statutory instruments add additional forms of conduct under subsection (6).
(8) A person convicted of the offence of stalking is liable-
(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both,
(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.
(9) Subsection (10) applies where, in the trial of a person ("the accused") charged with the offence of stalking, the jury or, in the summary proceedings, the court-
(a) is not satisfied that the accused committed the offence, but
(b) is satisfied that the accused committed an offence under section 2.
6 Dec 2011 : Column 650
(10) The jury or, as the case may be, the court may acquit the accused of the charge and, instead, find the accused guilty of an offence under section 2.""
Baroness Royall of Blaisdon: My Lords, Amendment 70 would introduce a new criminal offence of stalking in place of the existing offence of putting people in fear of violence under the Protection from Harassment Act 1997, and would clearly define stalking behaviour in legislation while leaving scope for the inclusion of additional types of behaviour should evidence suggest that it was needed. The amendment would also increase the statutory maximum penalty for harassment from six months to five years, and it would allow cases to be tried in the Crown Court as well as the magistrates' court.
Before going any further, I wish to place on record my thanks to Laura Richards of the charity Protection Against Stalking and Harry Fletcher of Napo for their fantastic research and the briefing that they have provided to all noble Lords who are interested in this issue. I am also grateful to them for the independent people's inquiry that they are undertaking.
We have debated on many occasions the freedoms of defendants and, in some cases, criminals, but now we have the opportunity to debate the protection of the freedoms of victims of stalking, many of whom are women, who are insufficiently protected at present by the legal arrangements. The British Crime Survey for 2006 estimates that up to one in five people will experience stalking in their lifetime, and that there are about 120,000 separate incidents of stalking and harassment each year. The current law is patently not working and the state is failing victims, 80 per cent of whom are women, according to data from the National Stalking Helpline.
The Protection from Harassment Act 1997 was brought in by the Labour Government to provide proper protection for victims from serious cases of harassment and stalking. However, those same victims who successfully campaigned for a change in the law back in 1997 now say that the law, when introduced, was too broad and did not go far enough to identify and prosecute the types of behaviour that distinguish stalking from other, milder cases of harassment.
Tracey Morgan is one of those leading campaigners, and I commend her for the extraordinary courage and determination that she has shown over the past 15 years in campaigning to increase awareness around stalking and to ensure that other women will not have to endure the terrible experiences that she did. For those noble Lords who are not familiar with her story, Tracey was stalked for 10 years by Anthony Burstow. Aged 22 and happily married, Tracey had sympathy for Burstow, who was a colleague and whose wife was serving abroad, inviting him out several times with her husband Andy. However, Tracey began to be disturbed and increasingly frightened by the number of times that she bumped into him outside the workplace, and then she noticed him parked outside her home. It was a pattern of behaviour that escalated into a terrifying ordeal that lasted for almost 10 years. Tracey was one of the key campaigners for the Act and is now leading the voices calling for a change in the law to create a specific offence of stalking. She states:
6 Dec 2011 : Column 651
"Victims are never taken seriously-from police forces, to courts, to the whole criminal justice system. Claire Waxman is saying the same thing I was 15 years ago. What's changed? There needs to be a sea change in attitude. It's about murder prevention".
Leading campaigners such as Tracey and organisations such as the National Association of Probation Officers and Protection Against Stalking all argue that the law in its current form is not set up to deal adequately with cases of stalking. We therefore believe that the existing sentencing provisions must be changed to allow greater protection to victims and recognise the seriousness of the crime. The prosecution of stalking under the offences of harassment or putting a person in fear of violence rarely results in a prison sentence. Responses to Parliamentary Questions tabled in the spring of this year showed that of the 4,365 found guilty of the offence of harassment under Section 2, only 565 received a custodial sentence. The overwhelming majority of sentences were of less than 12 months and some were of a matter of days.
Just as alarming is the lack of data on the true extent of stalking. Answers to Parliamentary Questions tabled this year reveal that the Government have no idea how many homicides were preceded by stalking behaviour, or how many domestic homicides were stalking-related, since probation reports do not routinely contain social histories but focus rather on the offence in front of them. A report on the Victim's Voice survey of 143 victims, published by Protection Against Stalking, states that there is an overwhelming feeling among women victims in particular that, despite reporting numerous past incidents, which occurred time and again, these are not taken into account by the courts when assessing the seriousness of the indexable incident before them. Police, prosecutors and courts are in general incident-focused and so will look at the offence in front of them when sentencing, rather than draw conclusions from the pattern of behaviour that led up to it. However, we know from cases such as Tracey's that it is this pattern of behaviour, escalating in threat and intensity, that provides the crucial warning signs of stalking that are all too often missed.
The tragic case of Clare Bernal is a case in point. In September 2005 she was shot dead in a store in Knightsbridge by Michael Pech. He had stalked her after their three-week relationship ended, following her in the street and bombarding her with threatening calls and messages. However, after being arrested and charged with harassment, he was bailed and travelled back to Slovenia, where he purchased the gun that he used to shoot Clare while awaiting sentencing. We need greater clarity in the law to ensure that other women do not have to experience what happened to Clare. A report by Protection Against Stalking identified countless similar cases in which the law in its present form failed to protect victims-most of whom are women-and failed to intervene until it was too late.
The amendment before us today would represent the first step in ensuring that the criminal justice system properly recognises and responds appropriately to cases of stalking, not only by identifying a clear definition in law but by ensuring that victims are properly protected from perpetrators by increasing the statutory maximum penalty for harassment from six months to five years, and by allowing cases to be tried
6 Dec 2011 : Column 652
As I said at Second Reading, the Government seem to be very keen on the Scottish way of doing things in other areas of criminal law. Therefore, I hope that the Minister will support the amendment today. It replicates the offence of stalking and the accompanying charges and sentencing that were introduced in Scotland by the Criminal Justice and Licensing (Scotland) Act 2010. If ever evidence were needed of a successful change in the law, the experience in Scotland provides it. In the 10 years prior to the Act, an estimated 70 cases of stalking were successfully prosecuted. Following the introduction of an offence of stalking, 140 prosecutions were made in the first four months in Strathclyde alone. Following on from Scotland, a criminal offence of stalking was introduced in Sweden in October of this year.
The people's inquiry into stalking, the National Association of Probation Officers, Protection Against Stalking, many courageous women such as Tracey Morgan and the parents of stalked women, such as John and Penny Clough and Tricia Bernal, are all calling for a change in the law to create a specific criminal offence of stalking and increase the sentencing arrangements. We welcome the announcement of a government consultation on the introduction of an offence of stalking following calls from my right honourable friend Yvette Cooper at the Labour Party conference. However, we urge the Government to use this as an opportunity for a comprehensive root-and-branch evaluation of how the criminal justice system deals with vulnerable women and male victims of stalking and other related offences.
5 pm
An offence of stalking will not be sufficient in itself to provide the sea change in attitudes needed towards this hidden crime. Proper training is badly needed in order to ensure that stalking behaviours are identified early by the police and other front-line victim support services. Currently, officers in England and Wales receive no specific training in stalking and the CPS has only recently started issuing guidance to prosecutors on this issue. We also urge the Government to undertake work to develop and implement a proper risk assessment model for police forces. We know how risk assessment models work. The SPECSS model used by the Met to tackle domestic abuse and honour-based violence saw a 58 per cent reduction in homicide and serious incidents in the first four years.
We believe that speed and time are of the essence and that the law needs to be changed at the earliest opportunity. The considerable evidence presented by the Protection Against Stalking's Victims' Voice survey, the National Association of Probation Officers, as well as the evidence from Scotland and Sweden, is in our opinion more than sufficient justification for a change to be made in the law now. To wait until the results of the consultation would mean asking victims to wait for another year or more before any change in
6 Dec 2011 : Column 653
Baroness Howe of Idlicote: My Lords, I fully support the amendment of the noble Baroness, Lady Royall of Blaisdon, which aims to incorporate the same law against stalking in English and Welsh law that already exists in Scotland. The campaign to establish a law against stalking in Scotland was launched in March 2009 by Ann Moulds, who was herself a victim of stalking, and other supporters. These efforts led to two clauses being inserted in the Criminal Justice and Licensing (Scotland) Act 2010.
It is particularly significant that the Scottish campaigners decided not to press for a version of the Protection from Harassment Act 1997-the current law in England and Wales. As we have already heard from the noble Baroness, Lady Royall, a similar position was taken in September 2011 by the Swedish Government. Their decision was taken on the grounds that the 1997 Act does not in practice contain sufficient powers to deal with the increasingly complex crime of stalking. In their view, harassment covers everything from rows between neighbours to domestic disputes but omits to recognise stalking behaviour per se. Stalking, they argued, is quantifiably different from harassment in law, not least in its increasing use of modern technology, particularly the internet, for what is now known as cyberstalking. It is all too easy for a stalker to reinvent himself as somebody else making inquiries about his victim. That has opened up a whole new area.
The campaign in Scotland was launched at a meeting in Ayrshire. It gathered momentum during that year and involved lobbying MSPs, officials, pressure groups, government departments and third-sector organisations over a 12-month period. During the 10 years to 2010, Ann Moulds estimated that no more than 70 cases of stalking were successfully prosecuted under British legislation. However, since the introduction of the new Act in Scotland, there has already been a number of prosecutions in Strathclyde alone in the first four months, as we have heard.
The campaign to establish a stalking law and offences of causing fear and alarm was achieved in a remarkably short period. The campaign ran for roughly a year and led to all-party agreement on legislation. The legislation has the support of the police, who have adopted operational guidelines to ensure that police are aware of stalking and harassment behaviour and take appropriate action. Again, as has been stressed, much more training will be needed.
Since the Scottish Act took effect, the number of prosecutions has visibly increased, with the vast majority of those prosecuted pleading guilty. The experience of Ann Moulds and other victims prior to the introduction of the legislation was the same as in England and Wales: namely, a feeling by victims-the vast majority of whom, as we have heard, are women-that the crimes were not taken seriously and that there was underreporting and underrecording, a lack of confidence
6 Dec 2011 : Column 654
The seeds of the English and Welsh campaign are already being sown. We owe a tremendous amount to Harry Fletcher of Napo and Laura Richards of Protection Against Stalking. Among other things, they have encouraged the setting up of a cross-party group of parliamentarians who have taken evidence for the past few months. We hope that a report will be produced in the new year that will speed up decision-making on the legislation that we need in this country.
Stalking is a dangerous and often vicious crime that causes not just immense concern but a huge amount of damage to the individuals involved and all their family. Violence plays an inevitable part, particularly if early action is not taken. Other forms of psychological harm are used the whole time. I hope that if not today then on Report we can debate the issue in much greater depth and, I hope, reach the same conclusions as in Scotland that such a law is certainly needed urgently in England and Wales, too.
Baroness Brinton: My Lords, it is frequently said that one of the strengths of this House is its expertise and experience. However, I am afraid that I have some unwelcome experience in this area that colours my views about the effectiveness, or otherwise, of the Protection from Harassment Act 1997 and the stalking Act in Scotland on which Amendment 70 is based. I had the misfortune to be the target of a sustained, three-year criminal campaign that included a number of stalking and harassment incidents, as well as criminal damage, which was waged by my Conservative political opponent Ian Oakley when I stood for Watford at the 2005 and 2010 general elections.
It started in the run-up to the general election of 2005 when posters with my name had very unpleasant swear words painted on them in large letters. To spare noble Lords' blushes, I will refer to the C-word, the WH-word and the B-word. They were so graphic that at the sentencing of the perpetrator they were not read out in court. Although it was unpleasant, the police and my team felt that it would stop when the 2005 election was over-at this point we did not know who was doing it.
Sadly, that was not the case. Over the next three years, the individual's campaign escalated to include repeatedly sending me and mainly six other individuals gay and lesbian literature, including very unpleasant and increasingly hard-core pornographic material, making repeated silent telephone calls, particularly late at night after I had gone to bed, and sending a large number of untrue and very unpleasant letters first to party supporters and then increasingly to neighbours and random members of the public. I often felt that we were being watched, and I certainly did not like being on my own.
The perpetrator continued the campaign of minor criminal damage, which also escalated from breaking car wing mirrors and fence-posts to repeatedly slashing tyres on people's driveways-not just one tyre but three or four on each car on a driveway, and done with, the police told us, a large nine-inch knife. The nature of the letters, notes and fake leaflets became more offensive and sexually explicit, which was very distressing.
6 Dec 2011 : Column 655
Here I want to raise the issue of stalking of men. Well over 80 per cent of victims are women and the public are often unaware that men are targeted too. My close friend and colleague, a local councillor who became the second principal target in Watford, was at the receiving end of really vicious treatment in the same campaign. He was targeted simply because the perpetrator did not like the idea of a Liberal Democrat councillor in what had previously been an exclusively Conservative ward. His neighbours received anonymous letters saying that he had not paid his ex-wife's maintenance-he is still happily married to his lovely first wife. A few months later his neighbours and some random members of the public received letters saying that the councillor was a convicted sex offender. A letter a few weeks later "named" the little girl and the effect this was having on her family. The whole thing was pure fiction. But those who did not know him said to me, "There's no smoke without fire", even when told it was not true. It affected him, his wife and his adult children. This was typical of the power that stalkers try to gain over their victims through using other people near and dear to them and, sometimes, complete strangers.
As the main target, and because I was the parliamentary candidate, I co-ordinated the reporting of all these events, because in the early stages we could not get the police to take them seriously. Surveys of stalking victims show that often they suffer 100 incidents before they go to the police or can get the police to take it seriously. So it was in our case. Only when I collated all these so-called minor incidents and put them in a spreadsheet with dates, times and locations-and often one incident covered actually eight incidents of criminal damage-did the police recognise that this was more than, in their description, occasional interparty political games but was a determined and sustained campaign by an individual.
When the tyre slashing started, the police attitude changed completely. Their profiler said that the next step would be danger to people and we were warned and trained how to deal with any future events. This included saying a code word-"Operation Tuition"-when ringing about an incident so that anyone taking our call in the police control room would alert detectives immediately. This worked for a bit, but as personnel changed so the vigilance dropped, and on at least two occasions the perpetrator could have been caught if control had responded as originally intended.
My husband installed around a dozen CCTVs at the homes of the main targets, including ours, at his own personal cost and time, in an attempt to get the perpetrator's fingerprints. The targets and our families, including my teenage children, already alarmed at what was going on, were taught to use police-issue gloves to pick up anything posted through our doors.
Following an incident where my husband took a photo of the perpetrator when he was being very aggressive to me and two councillors one day, the police were able to use the photo and subsequent CCTV of a graffiti incident to link him to the vandalism, and at last, in July 2008, he was caught. Thankfully, given the weight of the evidence, he pleaded guilty to seven specimen charges: five of criminal damage and
6 Dec 2011 : Column 656
Our case was typical of this kind. Having got some evidence, the police and the CPS wanted to close it down quickly, for which I have some sympathy. This meant that they used the incidents with forensic evidence for the charges, but stalking and harassment is harder to prove. In fact, in law, an "index" crime such as GBH or ABH will at present cancel out the need for the harassment even to be logged. This must be changed as it is making stalking and harassment invisible. We also need a higher sentencing tariff than is currently available under the harassment Act.
It may be peculiar to say this, but I was lucky-lucky because I was not on my own. With six other colleagues-five councillors and a candidate-who were also targeted by this man, and dozens of supporters having criminal damage to their properties or receiving extremely unpleasant literature about me or my colleagues, we were able to band together as a little team and support one another. Most victims of stalking are on their own. They do not have the benefit of knowing how to explain to the police or of having local newspapers, such as the Watford Observer, taking them seriously and refusing to publish the repeatedly really offensive letters about me. It is therefore essential that more support and advocacy is available to victims of stalking, especially those struggling on their own.
5.15 pm
All these are reasons why we need legislation on stalking, and I am grateful to the noble Baroness, Lady Royall, for her amendment, which is fine as a probing amendment. However, its timing is just a little too early. The people's stalking inquiry, with the all-party support to which the noble Baroness, Lady Howe, referred, set up by the National Association of Probation Officers and Protection Against Stalking, of which I am a member, is due to submit its report to the Prime Minister early in the new year and, at the same time, the Government's own consultation will conclude.
To date, the stalking inquiry wants to recommend much of the legislation made in Scotland, on which the amendment is based, but we believe that some parts of it need to be strengthened, especially regarding training for all parts of the justice system. More specific recommendations are needed relating to the treatment of perpetrators and understanding the nature of the escalation of behaviour and violence-rather than focusing just on the length of the sentence. The treatment of perpetrators is critical. In return for his prison sentence being suspended, our perpetrator agreed to have treatment because clearly there were mental health issues. Both myself and my councillor colleague who was targeted as the fictitious sex offender were content with this. Prison on its own would have neither resolved the issue nor helped him come to terms with his behaviour. That is one of the reassurances we had.
During the whole experience, I refused to allow myself to be described as a victim, nor did I think myself as one. That is why I repeatedly used the word "target". Becoming a victim would have played into
6 Dec 2011 : Column 657
Talking about this has been a cathartic experience for me, and I did not understand how deeply it affected me until after the perpetrator's conviction, and it still does. But please do not focus on my journey; I use it merely as past illustration and, compared with the horrible-horrible-experiences of many other serious stalking cases, mine was minor. Let us start at last to get effective justice and support for the thousands of victims of stalkers who are relying us to get it right. We can do that at the Report stage of the Bill, if we move fast enough. Nietzsche famously said:
"That which doesn't kill us makes us stronger".
The problem for too many victims of stalking is that being killed or maimed is a real threat. There is no point in strength there. Let us not rush this. Let us get it completely right and then do it-and do it early next year. We owe it to those who have given their lives or live in fear of them.
Lord Dear: My Lords, I shall be brief. I support the amendment as set out by the noble Baroness, Lady Royall of Blaisdon, who has made a very adequate case for this change. I have changed my mind on this issue over, I suppose, the past six months or so. I had for a long time thought that the current legislation, the Protection from Harassment Act, was sufficient, but I now realise that the terminology in it is too strict. The term "violence" needs to be ameliorated in some way and the wording in the amendment that refers to "fear or alarm" would take us closer to the course of conduct referred to in many parts of your Lordships' House.
| Next Section | Back to Table of Contents | Lords Hansard Home Page |