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Safeguarding Vulnerable Groups Act 2006 (Transitory Provisions) Order 2008

Volume 705: debated on Thursday 6 November 2008

rose to move, That the draft order laid before the House on 15 October be approved.

The noble Baroness said: My Lords, the orders arise from two different effects of the 2006 Act on the barring of unsuitable persons from work with vulnerable groups. First, the Act requires us to go through a transition from barring decisions taken under the current schemes by the Secretaries of State, as happens now, to barring decisions under the new vetting and barring scheme, which is to go live in October 2009. The barring decisions under the new scheme will be taken by the new Independent Safeguarding Authority or ISA, referred to in the legislation as the Independent Barring Board. Secondly, the Act was passed in 2006, before amendments to the current List 99 scheme in 2007 which expanded List 99 coverage to foreign offences, so we want to update the Act to catch up with the expansion of the List 99 scheme.

I thank both the Joint Committee on Statutory Instruments and the Merits Committee for carefully considering the orders. As noble Lords will be aware, neither committee found anything to comment on in the orders, but the Merits Committee reported the orders because it felt that they were of interest, and published brief supplementary information provided by my officials.

I have published an information note for noble Lords to support the debate, which explains in detail how we wish to make use of the functions created by the foreign offences order in future proposed regulations on automatic barring. I will not repeat the detail from that note about the automatic barring regulations as the regulations will be affirmative and we will have the opportunity to debate them in their own right. I will, however, outline the main reasons for the orders.

First, we propose to handle the transition by undertaking it in stages. The transitory provisions order requires Ministers to stop taking barring decisions on new referrals under the current schemes. Instead, it requires the ISA to take the barring decisions on those referrals under the Safeguarding Vulnerable Groups Act. Ministers will decide on the remaining tail of existing referrals. Bodies such as employers, who have a duty under the current legislation to make a referral—for example, where they dismiss an employee because of a risk of harm to children—will generally have to make new referrals directly to the ISA. The exception is that referrals under List 99 legislation in Wales will still have to be made to Welsh Ministers, who will pass them on to the ISA.

We aim to bring the transitory provisions order into force by 19 January 2009, a very important date. The ISA will start to take decisions from the date on which the order comes into force, subject to parliamentary approval not only of these orders but of the regulations on which offences will lead to an automatic bar. We aim to lay those regulations promptly if Parliament approves the foreign offences order.

The main benefit of starting ISA decision-making before the vetting and barring scheme goes live is that it helps us to manage the transition more smoothly. All individuals placed by Ministers on current barred lists will be referred to the ISA. The ISA will then include them, or consider including them, in its barred lists under an order made by Ministers in the spring. By moving decision-making to the ISA from January 2009, we will reduce the number of individuals whom first the Secretary of State and then the ISA must decide whether to bar. Instead, the ISA will take a single decision straightaway. This is the most streamlined and efficient approach. It will also minimise any period, after the new scheme goes live, when current arrangements will need to be preserved while the Secretary of State completes the decisions on the tail of cases that are for him to decide and the ISA migrates those cases to the new barred lists. If I dare, I shall say a little more on this in a moment.

Secondly, the foreign offences order enables the 2006 Act to catch up with an improvement that was made in 2007 to the List 99 regulations, to which I have already referred. This provided for an automatic bar in the case of a person convicted of a specified foreign offence. We want to have this power under the 2006 Act as well to increase protection for vulnerable groups and to honour our commitment that statutory safeguards under the Act are not less than those under current schemes, including List 99.

The information note, which we have circulated, sets out how we intend to use that power. It contains a list of offences and the circumstances of commission. We propose that when the ISA is informed of an individual being convicted or cautioned for any of those offences in those circumstances, or convicted of an overseas equivalent offence, the ISA must automatically bar that individual.

I will say a little more about the transitory provisions order and our reasons for proposing to tackle this stage of transition in this manner. My right honourable friend Ruth Kelly made a commitment to Parliament in January 2006 to put decision-making in the hands of experts who are independent of government. Having the ISA take over decision-making on new referrals at this stage is the earliest possible fulfilment of a major part of that commitment. It also supports the ISA in preparing in a stable and thorough way for the launch of the new scheme, which is scheduled for October 2009. Reducing the number of decisions to bar individuals which the Secretary of State must take—individuals whom the ISA would then have to consider for inclusion on its barred lists—helps the ISA to complete a significant share of those transition cases before the go-live date.

This makes things a bit simpler for the employer and the barred person, because they will have dealings with just one body, the ISA. For employers, the order makes hardly any change to current arrangements. In particular, employers must continue to make referrals in the same circumstances in which they make them now under current schemes. I will highlight one or two of those changes. With the exception of List 99 cases in Wales, employers will have to send new referrals directly to the ISA. Where the Secretary of State now asks for information held by employers, regulators and similar bodies, they will have a statutory duty to provide that information to the ISA. We will make a commencement order to bring relevant sections of the Act into force, and will lay regulations in a few weeks time to prescribe the information that these bodies will have to provide on request.

The automatic barring of individuals who have been newly convicted or cautioned for more serious offences, which happens now under List 99, will be extended to all the workforces from which persons are barred by current schemes. The offences are listed in the information note. Just as the Secretary of State now writes to persons whom he has barred or intends to bar, the ISA will write to persons whom it proposes to bar, or has automatically barred, informing them of their rights to make representations. If the bar is confirmed following representations, the ISA will write to them informing them of their right to seek leave to appeal, except for the most serious offences where those rights do not apply, and their right to seek permission for a review of the bar after a set period. The ISA will inform them that, before the new scheme goes live, the bar covers the same workforces as a bar by the Secretary of State under the current schemes; and that, after the new scheme goes lives, the bar will cover the wider range of workforces specified by the Safeguarding Vulnerable Groups Act, of which noble Lords are well aware.

Nothing can be more vital than safeguarding children and vulnerable adults from those who pose a serious risk of harm. While we all have a responsibility, the Government are determined to play their part by doing everything that they can to safeguard them. I therefore commend the orders to the House. I beg to move.

Moved, That the draft order laid before the House on 15 October be approved. 28th Report from the Joint Committee on Statutory Instruments.—(Baroness Morgan of Drefelin.)

My Lords, I apologise for not being here when the Minister began her remarks. I am afraid that I was taken up entirely by our amendments to the Education and Skills Bill and did not notice the time.

I thank the Minister for explaining why these orders are being implemented and what they aim to achieve. She explained that, to help the transition, it is necessary—indeed, desirable—to undertake it in stages. I observe, however, that these are orders to an Act that has now been around for two years, and that the preparation and reports that were produced for that Act had been swirling around Whitehall for some time before that. It is a measure of how dependent the 2006 Act was on secondary legislation to fill out the details that we are discussing these very important orders in November 2008. Perhaps the Minister will appreciate why we Opposition Peers so frequently express our unhappiness at being assured that the detail is coming, when we see that years can pass before the full picture of a Bill emerges.

Of the two statutory instruments, the foreign offences order gives rise to the most serious questions. Maria Miller, my honourable friend in another place, pointed out what a significant part overseas workers play in our workforce. They are as many as one in 10 of the overall workforce. In healthcare, one person in four comes from overseas. It is therefore vital to address the issue of how overseas workers are vetted. The order brings us back to a point which the Conservatives made when the Act was still a Bill: that offences committed overseas must be taken into account. I am unsure why, having thought that the matter was suitably covered then, the Government have now realised that it needs to be examined. None the less, I am grateful that they are now doing so.

Overseas workers pose a major loophole in the vetting procedure. Put simply, if they have committed crimes in other countries they may not show up on a CRB check. I have two problems with that situation. The first should be obvious: it is not remotely acceptable to have 10 per cent of the workforce or, as I said, in some sectors as much as 25 per cent dropping beneath the radar in criminal background checks, so that we effectively cannot say one way or another whether they should be considered safe.

The second point follows directly from the first: if people are to be vetted, and if necessary barred, it strikes me as hugely unfair that everyone is not subject to the same rigours. How do the Government intend to make checks on those overseas workers who may or may not have committed an offence? The same goes for workers who have merely spent some time overseas. Presumably, any check on them will turn up nothing for the period during which they were out of this country. I am not sure that it would even be enough to flag up such individuals so that employers are put on notice. What exactly should employers be expected to do with that information?

What reciprocal arrangements are in place with other countries to exchange such data? I understand that a scheme is in place with Australia and France. But is that all? How are those schemes working in practice? What are the Government doing to obtain information from other countries? How reliable can we expect that information to be? What do the Government propose to do about cases where the offence is a crime in the other country, so may be flagged up by a check, but is not an offence here? Will that person still be considered a risk? How will the Government deal with such disparities in differing criminal justice systems? How will those individuals get through the system if a system is put in place?

I am glad that we have finally had the chance to debate these measures. The noble Baroness, Lady Walmsley, and I tried to bring these issues up when discussing previous orders on safeguarding vulnerable groups. I hope that the noble Baroness sees that there are still awkward questions which need to be answered.

My Lords, it is true that this legislation was drafted and put through Parliament in a bit of a hurry. It suddenly dawned on Ministers that they are not the appropriate people to make these decisions. Although it has taken a couple of years to get to the first stage of implementation, I am very pleased that, at the very least, as soon as the expert board was created it started to advise Ministers in a formal way, which is a good thing. The Minister knows how supportive both opposition Benches were about the main thrust of this Act when it went through your Lordships’ House.

It is right that there should be a transitional period; otherwise the burden of cases probably would cause undue delay, and none of us wants that. However, the crucial issue is the extent to which employers and those who may be affected by banning orders know and understand where we are up to in that process of transition, what they have to do in the case of employers and how the ban affects them in the case of banned individuals. How will the Government ensure that all that is clearly understood during the transition phase? Do people know the difference between the ISA and the IBB? I understand that there is no difference. I should like to know why it is necessary for the board to be referred to by two different names.

On the foreign offences order, we have had a lot of information about the extent to which the exchange of information about offences in other countries has progressed. Clearly, collaboration is not perfect yet. The whole process still relies on two things. The first concerns an employer asking an applicant whether he has worked abroad. What can be done about that? How can we make sure that employers always ask that question? The second thing is whether other countries let us have information about offences when the ISA asks for it. Perhaps the Minister will answer the questions posed by the noble Baroness, Lady Morris, which are also in my mind, about where the gaps are in other countries. If the ISA does not ask for the information, because no one knows that the applicant has worked abroad, the whole thing falls apart however good the communication between our law officers and those of other countries.

The information note, which the Minister was kind enough to send us, has 26 pages of UK offences that would result in a bar, either with or without representation. I should like to know who decides about the equivalents of these UK offences in other countries. Some of them are technical and include an element of the age either of the perpetrator or of the victim, which might vary in respect of offences in other countries. Does it have to be done in detail country by country, looking at a list of our offences compared to a list of their offences, or is there an international table of equivalents which can be referred to?

The noble Baroness, Lady Morris, referred to a situation where someone commits an offence in another country which is not an offence here. I should like to ask about the reverse of that; namely, if something is not an offence in another country—say, to have sexual relations with a child of a particular age—but it is an offence in the UK, how will the Government find out if any applicant has done that? Presumably, the authorities in the other country will have no reason to have a record if it is not an offence in that country. I accept that people will be barred for an offence overseas only if that offence is also an offence here. But what if one of our offences is not an offence there? Such a person would not come to the notice of the authorities in the other country.

That raises two real issues; that is, first, knowing whether a person has worked abroad, so that the questions can be asked in the first place and, secondly, those offences that are offences here—we would like to take them into consideration if someone applies to work with a vulnerable group—but are not offences in the country where the act was committed. Will the noble Baroness clarify the position?

When the 2006 Act was going through the House one of our main worries was whether people who were accused of one or more minor offences really understood the consequences of accepting a caution in relation to a future career involving working with children. Has the Minister any further evidence on that situation since we first debated the matter two years ago? Has any research been done on the extent to which those who have accepted a caution really understand what it means to them in relation to working with any particular group? I still am worried that when people accept a caution it is because they consider it to be the easy way out rather than going through a court. They may not be guilty of committing an offence, but they may accept a caution without realising the effect it could have on their future career.

My Lords, perhaps I may add another situation for the Minister to comment on; namely, those people whose behaviour in the past might be considered to pose a risk and might be presented for consideration under the system, but who do not have a criminal conviction of any sort or a caution. Will the ISA/IBB provide guidance for those of us who manage large numbers of people on how we should handle those situations?

There is also concern about appeals. People who do not have any sort of criminal conviction, but nevertheless may be considered to be a risk, are being drawn into a lengthy, legal process as regards barring. How does the Minister see the appeal system working through this process?

My Lords, I thank noble Lords for taking part in this short debate and for giving me the opportunity to answer their questions. If I do not cover them adequately, I will write after I have cross-checked questions and answers in Hansard. I will undertake to make sure that all noble Lords have the information they seek.

The noble Baronesses, Lady Morris and Lady Walmsley, asked about gathering more information on convicted foreigners seeking to work with children and vulnerable people here. The EU Council decision taken in November 2005 ensures that an EU state must inform the UK if a UK national is convicted in that state, and under the same decision criminal conviction information can also be sought on EU nationals being proceeded against in this country. The UK sees information-sharing as a key priority for the next EU work programme, and, as noble Lords will be aware, we have signed the Council of Europe Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse, which recognises the need to share information for child protection purposes. The noble Baronesses also asked about bilateral efforts between countries. The Criminal Records Bureau is pursuing bilateral agreements, and in her speech the noble Baroness, Lady Morris, referred to the examples of France, Ireland, Poland and Australia on their agreements to exchange information for employment vetting purposes. However, this is difficult territory and so far only three of the 26 EU countries have said that they can co-operate with us on these bilateral agreements. That is an indication of how far we have to go. We recognise that there is an enormous amount of work to do.

Noble Lords will be aware of Sir Ian Magee’s review into sharing information on criminality, published in the summer. The review recommends that we expand information flows with other countries. Doing so will provide a more co-ordinated approach, and Sir Ian has said that vetting and barring will be a priority in this work. I was asked whether a clear CRB check provides evidence of a clean record. We agree that this is an important point. As the noble Baroness pointed out, when someone comes from abroad, a clear CRB check does not necessarily mean that they have a clean record. That is why our guidance to schools states that additional checks should be made on the work carried out by people overseas. Those checks should include, for example, certificates of good conduct from the relevant embassy. I want also to make absolutely clear the duty on employers because the new scheme is not a substitute for employers’ general duties and responsibilities. It complements rather than replaces them. Employers should inquire into a person’s career history, take up references and ask searching questions about any gaps, as they do now. The noble Baroness, Lady Morris, said that she was not convinced about a flagging scheme because it can only do so much and would mean a massive increase in the scheme’s complexity. If we were to attempt to track through this scheme all employees who travel abroad, that level of complexity would make it unmanageable. It is therefore important to stress that the scheme does not replace the duties on employers.

I understand that in the Commons Committee there was a debate on an amendment that would have required the Secretary of State or the ISA to inform a relevant regulatory body like the General Teaching Council or the General Medical Council if we or the ISA became aware that an individual had been charged or convicted of a foreign offence which, had the act been committed in the UK, might have lead to the individual either being barred or considered for it. That is not the same as using the information to bar an individual automatically. The Act provides that if someone is on an equivalent barred list in a foreign country or subject to a foreign order such as a sexual offences prevention order, they can be automatically barred. At the moment, the Act does not provide for someone to be automatically barred where there is just an equivalent foreign offence. However, the ISA will be able to take into account information it considers appropriate, which is a wide power that needs to be borne in mind.

The noble Baroness, Lady Walmsley asked about the change of name from the Independent Barring Board to the Independent Safeguarding Authority. The IBB is only the legislative name for the ISA. I appreciate that changes of name, complexity of processes, the order and timetabling of regulations and so forth can be bewildering, but I want to make it clear from this Dispatch Box that we in the department will do all we can to ensure that noble Lords have the information and support they need to scrutinise these proposals in a timely manner. Name changes and timetables should not stand in the way of appropriate and searching debate in your Lordships’ House.

All communications with the general public about the vetting and barring scheme will refer to the Independent Safeguarding Authority, which will be the “brand”, and the IBB will not be referred to. All individuals and employers using the scheme will first look at the guidance rather than a copy of the Act, which I am sure will come as no surprise to any noble Lord. We believe that those using the scheme will be clear about the correct name, the ISA. I hope that I have reassured the noble Baroness on that point.

We recognise that there are difficulties surrounding foreign offences and that this is not a straightforward area. We have already provided some information to the Merits Committee but we will be happy to go over it. Our full response to the committee has been published in its report, but I want to make it clear that the police provide us with information on the read-across between foreign offences and their UK equivalents. This is important for the ISA. In particular, the UK Central Authority for the Exchange of Criminal Records has developed significant expertise over the past two years in interpreting foreign convictions and a track record is developing in this regard.

The noble Baroness asked about offences committed abroad which are not considered to be offences over here. There will be no automatic barring in such cases. Only foreign offences which have an equivalent to a UK automatic barring offence will lead to such barring, but I stress again that the ISA will take into account those offences. However, they will not be automatic.

I turn to the point raised by the noble Baroness, Lady Walmsley, about cautions. ACPO has strengthened its guidance to police forces to ensure that when in the UK cautions are accepted for an automatic barring offence, the individual understands that he or she will be barred. I am not sure whether that fully answers her question, so I will check further into the position with regard to offences for which there is not an automatic bar and come back to her more fully.

The right reverend Prelate asked about guidance for employers and in general on the system. We will be issuing comprehensive guidance to employers and I shall check personally that the right kind of information is being provided to all those who are engaged with the system, whether they are large or small employers, or in the voluntary sector. It is important that that is done properly. I am afraid that I do not have the answer to the question of research into cautions, but I will get back to the noble Baroness, Lady Walmsley, as quickly as possible.

I hope that I have answered the questions raised, although I feel that I may not have answered all of them fully. An enormous amount of work is needed to get this right and more regulations will be forthcoming. To get it right, it has to be done properly and we have to get the transition working well. I am grateful to all in the House who have helped us. They have challenged us but they have always put the need for safeguarding children and vulnerable young people at the centre of the debate. Ultimately, that is what we are all concerned to achieve.

On Question, Motion agreed to.