That the Grand Committee do report to the House that it has considered the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2008.

Relevant document: 32nd Report, Session 2007-08, from the Joint Committee on Statutory Instruments

The draft regulations we are debating today set out the offences that will lead to automatic barring under the new vetting and barring scheme. I thank both the Joint Committee on Statutory Instruments and the Merits Committee for their careful consideration of these draft regulations. I have noted their comments on the issue of the name change from the Independent Barring Board to the Independent Safeguarding Authority.

Barring decisions under the new scheme will be taken by the new Independent Safeguarding Authority, or ISA, currently referred to in the legislation as the Independent Barring Board. We intend to legislate at an early opportunity to put that change of name into law, an issue that noble Lords raised last time, so that we can make things simpler in the law in future.

The Safeguarding Vulnerable Groups Act also provides for automatic barring where the individual has committed one of a set of prescribed offences. I have published an information note for noble Lords to support this debate that explains the offences in these regulations in more detail and explains how the barring processes will work. The ISA will make barring decisions on the cases referred to it, basing its decisions on information gathered from police sources, regulatory bodies and referrals from employers. The ISA will write to individuals whom it proposes to bar, informing them of their right to make representations and, if the bar is confirmed following representations, their right to seek leave to appeal. However, some offences, which are listed in these draft regulations, are so serious that the perpetrator must be barred automatically. Where guilt has been established, in the case of a conviction, it has been proved beyond reasonable doubt or, in the case of a caution, the individual has admitted guilt. The offences listed in these regulations are sufficiently serious for the presumption to be made that the individual poses a risk of harm.

We consulted experts and took account of offences which lead to an automatic bar on List 99 or a disqualification order. In the most serious cases, such as a serious sexual offence with violence, there will be no prospect of mitigating circumstances that might cause the ISA to overturn the bar and the individual will not be able to make representations against it. In other cases, we accept the possibility that there may be mitigating circumstances, and the draft regulations allow representations to the ISA. Where an individual has been barred, they will have the right to seek permission for a review after a set period has elapsed. The information note gives more detail on that aspect of the scheme.

While these regulations are mainly about the offences, they contain two other provisions—at regulation 7, about independent schools, and at regulation 8, about disqualification orders from working with children. The purpose of regulation 7 is to give independent schools the same duty to refer cases to the ISA that maintained schools have under the transitory provisions order that your Lordships approved last month. Regulation 8’s purpose is that if a court imposes a disqualification order after ISA decision-making has started, the ISA must automatically bar the person instead of the Secretary of State barring them and then returning the case to ISA. That will create a more streamlined procedure.

On the list of offences itself; automatic barring is a serious matter and Parliament, quite rightly, required in the Act that the regulations establishing offences which lead to automatic barring should be by affirmative resolution. However, this is not the first time that these offences have been subject to public scrutiny and it may be helpful if I outline the steps that we have gone through.

While the Bill was proceeding through Parliament, we published an information note setting out how we intended to exercise the power. In summer 2007, we conducted a full public consultation on the list of offences. The Government’s response was published in November 2007 and there was widespread support for the proposals. In March, Parliament debated and approved the transitional version of these regulations. That version contained only the “no representations” offences as its purpose was to determine which currently barred individuals are to be placed on the new barred lists with no right to make representations. However, in order that Parliament could see the whole picture, we produced another information note for those debates stating how we intended to use the powers for automatic barring.

Finally, last month we debated an order that will allow the ISA to take barring decisions on referrals to the current schemes together with a foreign offences order allowing us to include equivalent offences in these regulations. Noble Lords will see that we have indeed included such foreign offences here, as I undertook to do in that debate, which was again supported with a further information note on our intentions for the automatic barring offences.

Automatic barring in the children’s workforce has operated since February 2007 under the List 99 arrangements. These include all the offences in current List 99 regulations so noble Lords may be assured that there will be no diminution in safeguarding from approving these new arrangements. When the new scheme comes into force, which we intend should be from October 2009, it will cover the wider range of workforces specified in the Safeguarding Vulnerable Groups Act. Before then, however, the ISA will make the decisions to bar people on referral to the existing barred lists under the terms of the transitory provisions order that we debated last month.

We intend that the draft regulations will come into force at the same time as the transitional ISA decision-making phase, subject to parliamentary approval, on 20 January 2009. The effect of these regulations will continue in force once the transitional period is over and the new scheme is operational. Nothing is more important than safeguarding children and vulnerable adults from those who pose a serious risk of harm. It is a responsibility that we all share. The Government are determined to do everything they can to play their part in this work. I commend the regulations to the Committee.

I thank the Minister for a well-informed introduction. Noble Lords will be aware that when the Bill was discussed my noble friend Lady Morris of Bolton made clear our view that protecting the most vulnerable in our society is of the utmost importance. For that it was essential that the Government should ensure that training and support are provided.

In declaring an interest in adult social care, I should say that my staff often work with vulnerable people. While I accept that CRB, POVA and POCA checks are asked for, will the Minister look at ensuring that the costs of these inquiries do not continue to increase as rapidly as they have recently as this will lead to less scrupulous employers taking short cuts? It is also important in terms of the impact on individuals who want to take up voluntary roles.

I want to touch on a point raised by my noble friend Lady Morris concerning the significance of a caution. People often accept cautions without understanding the full seriousness of the implications. Can the Minister tell us what action the Government have taken to ensure that the police are improving public understanding of cautions? To ensure clarity on this issue, in the case of crimes committed over 10 years ago, is the person who committed the crime then able to work with vulnerable children and adults? Further, if a crime was committed a long time ago but the conviction made more recently, does that allow the convicted person to work?

Again mainly for clarity, given that the Minister referred to automatic barring for foreign workers who may pose a threat, are we now linked into the European criminal database, Schengen Information System II? Without this system, how can we stop dangerous offenders who come from outside the country working with vulnerable groups? I ask this given that one in 10 carers working with children in the UK is from overseas, and that only three of the 26 countries concerned actually pass on any information to the UK about child protection registers. I am sure that the Minister will accept that this is a dreadful position and that the Government were wrong to reject amendments that could have assisted in providing protection in these vulnerable areas.

I seek a further point of clarification. Social care staff barred from working with children and vulnerable adults may be unable to exercise their right to a fair appeal hearing when the system changes next year. David Pearl, a senior judge, has said that individuals would not be able to challenge a judgment of the Independent Safeguarding Authority if they considered the sanctions to be too harsh. The honourable Judge Pearl said that:

“This provision appears to be contrary to Article 6 of the European Convention on Human Rights—the right to a fair trial”.

What does the Minister have to say in response to the fears raised by this issue?

Finally, can the Minister elaborate further on why regulation 7 will mean that independent schools have to refer to the ISA rather than to the Secretary of State in cases where a member of staff appears to be unsuitable to work with children?

I, too, thank the Minister for her explanation. I share the concerns of the noble Baroness, Lady Verma, about the issue of cautions and foreign workers, and I believe that I have said so on the several previous occasions that we have debated the subject. How regularly will the House receive updates on the UK Government’s relationship with foreign Governments and on the information we obtain regarding the offences of those who want to come to this country to work with vulnerable people?

These regulations, which allow the ISA to deal with non-migration or new cases, are of course necessary. However, as the Minister might recall, when the original legislation was debated in your Lordships’ House, we on these Benches were concerned about two of the four ways in which individuals could be barred from working with children and vulnerable people. We felt that the balance between protecting vulnerable people and children and the human rights of individuals might not be quite right in certain small matters of detail.

Perhaps I may list the ways in which people can be barred and say which ones we are still concerned about. The first four are: automatic barring without the right to representation; automatic barring with the right to representation; barring at the ISA’s discretion based on previous actions of the person concerned; and barring at the ISA’s discretion on the basis that it judges that the person may behave in a way which would harm a vulnerable person. We still have concerns about the first and last of those. Can the Government assure us that we will get a report on the second way in which people can be barred—that is, barred automatically but with the right to representation? The basis of the decisions following such representation may shed light on whether the first way of barring people—that is, without representation—is the right way to go. If people are automatically barred but then go on to make representations that are accepted and are allowed by the ISA to work with vulnerable people, then perhaps we should look again at the category of those who are barred automatically with no right of representation. If we can be assured that we will receive regular reports on those cases, we might be able to consider whether the first category—barring without representation—is the right way to go.

On the fourth group, the Minister will recall that we were concerned that the ISA has the discretion to bar someone on the basis of what it thinks they might do rather than what they have actually done. It would be helpful to know whether there will be a review of how the ISA has used these powers. It would enable us to judge whether the fourth category of barring is the way to go or whether there are still concerns about the human rights of those being considered for barring.

I have a couple of questions about two other aspects of the regulations. The first is on the representation period. As the Minister said, the ISA will notify the individual when he is automatically barred, and, when it is allowed, he will have eight weeks in which to make representations about it. I notice that the ISA has discretion to extend that period if it is satisfied that there is a good reason for doing so. Can the Minister give any examples of the sorts of reasons that the ISA might accept as justifying an extension of the period from eight weeks?

I hope that I can respond comprehensively to the questions. However, before I do so, I have been rather remiss because I should have welcomed the noble Baroness, Lady Verma, to her position. I think I am right in doing that. We are starting a new Session and I feel that I should have done so at the start. I look forward to working with the noble Baroness. She will bring to this brief her forensic grasp of the importance of the detail of this subject and a great perspective of the bigger picture.

The noble Baroness started her contribution with a very important point. I agree wholeheartedly about two issues: first, the importance of training and support for all staff working in these important areas with vulnerable people, and I have no doubt we will cover that theme again and again in the coming months in our deliberations on the whole issue; and, secondly, the need for Criminal Records Bureau checks to be accessible. Of course, if they are not accessible, the system will start to creak. It is important that that is on the record. Volunteers should not pay a fee for their criminal record checks. That will continue in the new vetting and barring scheme where volunteers will not be charged for registration. We expect volunteers to play their part and become registered in the new scheme and it is important that they do not have an onerous financial burden placed upon them.

The noble Baroness also asked about Regulation 7 and the question of why independent schools should refer to the ISA. The point we are making is that this merely puts independent schools on the same footing as maintained schools. Once the transitional provisions order comes into force, all referrals relating to safeguarding concerns will have to be made in a set way to the ISA regardless of what part of the system the schools are in.

Members asked about automatic barring and the question of a conflict with human rights. We are very clear that there is no conflict between human rights and automatic barring. It is the Government’s view that such barring takes place because of the operation of law. The act of automatically barring a person from engaging in regulated activity without the right to make representations does not constitute the determination of their civil rights. There is no conflict with the human rights convention because automatic barring happens as a consequence of the criminal justice system following on from the conviction, so it is an extension of that conviction. We provided information on that point for the Merits Committee earlier this year when the transitional version of these regulations was debated. I am happy to circulate further the communication with the Merits Committee if that would be helpful.

Both noble Baronesses talked about whether ISA appeals are compliant with the ECHR. We believe that the scope of ISA appeals, which can be on a point of law or on a finding of fact, complies with the right to a fair trial. The current scope of appeals gives the upper tribunal that will hear ISA appeals all the powers it needs to overturn an unsound barring decision. In particular, an appeal on a point of law can include an appeal on the basis that an ISA decision might be unreasonable, so that is the option. Appeals should not be extended to the ISA’s expert judgment on whether or not to bar a person, which is separate from the ISA finding a fact about that person. The tribunal will not be in a position to make a similar judgment. The Act’s compliance with human rights was tested thoroughly through the passage of the legislation. We take this issue seriously and have been careful to think through the implications of automatic barring and the question of how the appeals work where an appeal is possible.

Members asked about the flow of information from the EU. As we discussed last time, there was an EU Council decision in November 2005 that an EU member state must inform the UK if a UK national is convicted in that other EU state. Under the same decision—I think we talked about this on the last occasion, and I apologise if we have already done so—criminal conviction information can also be sought on EU nationals being proceeded against in the UK. To answer the noble Baroness, Lady Verma, a further framework decision is currently under discussion in Brussels to make it compulsory for EU member states to provide us with information on their nationals being proceeded against here. A standard format for securely exchanging information electronically was agreed at the Justice and Home Affairs Committee on 24 October. As the noble Baroness suggested, it will make it much easier. Indeed, it would be unacceptable if it were not to happen. It is important that we have a flow of information.

Noble Lords asked what further work needs to be done in order to gather criminal information from overseas. On 4 December the Government published their response to Sir Ian Magee’s review of criminality information and agreed steps to expand information flows with other countries based on a more proactive, risk-based approach. We have accepted that we should make a more co-ordinated approach to other countries, which I think was the point the noble Baroness sought to make with regard to vetting and barring as priority areas. Our strategy for doing so will be developed by January 2009—next month—so that is a strong commitment for us.

The noble Baroness, Lady Walmsley, asked about the basis for decisions on extended periods. An example might be if a person had moved and there was a delay in forwarding mail, including letters from the ISA, to his new address. These are matters of practicality rather than of substance about the offence itself. I am happy to write to the noble Baroness if there is more information that I can share with her. She asked a number of questions about the right to review, and it might be helpful for me to write to her about that and circulate the letter to other noble Lords.

The noble Baroness, Lady Verma, asked about time lapses in offences and how being convicted of an offence some years previously might affect the ISA’s consideration. We have before us a long list of serious offences, and we must be clear that where those offences have been committed some years ago, if the conviction stands and there is an automatic bar in place, it will stand. It is also important to say that the ISA can take into consideration such information as it sees fit. The noble Baroness, Lady Walmsley, asked about the ISA’s remit to make decisions about things that people might do. We have to make assessments about the risk that people pose to children and vulnerable adults. It is about making a judgment and, from time to time, the ISA may have to make preventative judgments about people.

I accept all that the Minister has just said, but my question was whether information about how the ISA uses these powers will be put in the public domain. If it is, it will enable us to check whether the legislation, particularly those parts of it that give us cause for concern, is working properly.

That leads me to my final point, which is that the ISA will be reporting to Parliament. Obviously, it is an independent organisation but this is precisely the kind of information that we will want to see—that is, where the balance of the numbers falls. Again, I should be happy to write to noble Lords further about the reporting process if that would be helpful.

Perhaps I may clarify one point which I may have missed completely. Did the noble Baroness say that we were signed up to the European criminal database, or is that the Government’s aspiration for January 2009?

The aspiration is to have a strategy for maximising the information flow and making that work practically. Again, perhaps I may give the noble Baroness a fuller response in writing. I commend the regulations to the Committee.