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Safeguarding Vulnerable Groups Act 2006 (Regulated Activity, Miscellaneous and Transitional Provisions and Commencement No. 5) Order 2009

Volume 712: debated on Wednesday 8 July 2009

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Safeguarding Vulnerable Groups Act 2006 (Regulated Activity, Miscellaneous and Transitional Provisions and Commencement No. 5) Order 2009.

Relevant Document: 18th Report from the Joint Committee on Statutory Instruments.

The Safeguarding Vulnerable Groups Act 2006 reforms arrangements for safeguarding children and vulnerable adults from harm, or the risk of harm, by employees whose work gives them significant access to these groups. The new arrangements that it introduces replace those provided for under the Protection of Children Act 1999, the Care Standards Act 2000, the Criminal Justice and Courts Services Act 2000 and the Education Act 2002.

Together, the provisions in this order support the commencement of the full range of barring under the new scheme and the repeal of existing barring schemes, bringing about a further milestone in the transition to the new scheme. The order amends some details of the scope of regulated activity to improve the practical working of the vetting and barring scheme. These provisions are needed so that the Independent Safeguarding Authority—or the ISA, as it is often called—can start the full range of barring under the new scheme on 12 October 2009.

The order slightly narrows the scope of the definition of “relevant child care premises” to make it consistent with the general intention of the Act not to impose requirements on people in their own homes. An amendment is also made to bring childminding premises in Wales within the definition.

The order enables the Secretary of State to refer unfinished List 99 cases to the ISA. That will close off, in a timely fashion, part of the transitional process. Articles 25 and 26 of the order add certain named categories of people to the list of office-holders set out in Schedule 4 to the Act.

The order commences provisions that are inserted into the Police Act 1997 relating to the information that is to be provided to employers who check whether a person is on an ISA barred list. The order also modifies them to ensure that information about any person on the current barred lists is also provided to employers. This last step is an essential part of managing a safe transition from the current schemes to the new scheme. A Criminal Records Bureau disclosure must still show the barred status of any individual who is still on the current barred lists after 12 October 2009.

The order re-enacts some provisions from the current transitional period in order to ensure that the present safeguards remain in place for as long as necessary. Permanent replacement provisions will then come into force over the next year. These measures would enact previously agreed policy. Following consultation, we have included one additional provision on the addition of school governing body associate members and clerks, and local authority chief executives, to the scope of regulated activity. Finally, the order corrects two minor omissions in the prescribed criteria regulations which set out the auto barring offences. This order forms a key part of the transition to the new vetting and barring scheme, and I commend it to the Committee.

Before I start, I should like to declare an interest as a provider in social care. The needs of vulnerable groups in the UK are certainly a huge priority for us all. Careful attention must be given to ensuring that they and their interests are protected. Developing a robust system that has the confidence of the public and all those working with children and vulnerable adults is delicate work. Provisions need to be precise and watertight to avoid the possibility of loopholes being sought. Such an instance would have disastrous effects and in many cases cause serious harm to children and vulnerable adults. This is particularly so in a scheme that operates in England, Wales and Northern Ireland, with parallel provisions being developed by Scottish Ministers.

The ISA was set up to prevent unsuitable people working with children and vulnerable adults. The ISA has the authority to make legally binding decisions on a case- by-case basis about whether a person is suitable to work with these groups. Only individuals who are judged not to pose a risk to vulnerable people can be ISA registered. Employers who work with vulnerable groups will be permitted only to recruit people who are registered. The ISA can bar undesirable individuals from accessing vulnerable children and adults and will hear representations on certain automatic barring provisions where this is facilitated by the legislation. This is both welcome and necessary. This SI builds upon the ISA’s responsibilities by adding new ones and amending the definition of “activity”, as well as making transitional arrangements from the current system of barring and vetting. While we support the overall spirit of what this SI aims to achieve, I have concerns and there are areas in which I would like to seek greater clarity.

The new system is complex and relies on the accurate and speedy work of a number of different organisations that will require extensive auditing, and, despite continued pressure from our Benches, it still contains considerable flaws. Although the SI proposes some changes to the responsibilities of the ISA, it does not address any of the underlying weaknesses of the ISA itself or some of the inconsistencies in the provisions of the Safeguarding Vulnerable Groups Act 2006. The Act states that any “frequent” contact with children and vulnerable adults requires registration with the ISA. The then Minister qualified “frequent” as

“typically, more than one day a month and a contract of more than a week defines frequently”.—[Official Report, Commons, Safeguarding Vulnerable Groups Bill Committee, 11/7/06; col. 81.]

Will the complexity of registering with the ISA stop some organisations using volunteers and stop some volunteers from coming forward? Would not the system be more effective if employers were given more responsibility to use their discretion?

Can the Minister update the Committee on the ISA’s IT systems and the IMPACT programme? Can she assure us that it is now operating in every force in the country? What progress is being made on the correct storage of soft information and intelligence? If not currently, when will IMPACT be fully operational?

There will be online access for both employers and some parents. What progress is being made to ensure that these systems are secure?

The Minister will be aware of the considerable problems experienced in the United States. Eleven states have experienced problems with security systems leaving sex offenders able to change their own data online. What plans are already in place to ensure that this will not occur in the United Kingdom?

Overseas workers remain a real concern. Most EU member states do not have central criminal records. Some 10 per cent of youth and community workers, 15 per cent of care assistants and home carers, 20 per cent of nurses and 10 per cent of teachers are from overseas. The majority are from countries in Asia and Africa that have no system of collecting criminal data centrally. The ISA can include offences committed overseas, but is entirely dependent on the migrants passing on these data themselves. The Government have said that they are developing protocols with 21 countries. How many of these protocols are now in place and operational?

It would be helpful to know why full implementation has been delayed. The extended period of transition caused by these delays requires the ISA and CRB to adopt different procedures and work in different ways over a prolonged period of time until July next year, rather than October this year. Is the Minister confident that implementing the different procedures and work practices in this order, for even longer periods than originally thought necessary, will not create room for error? The new system is complex enough, but we are requiring parallel systems to work over a longer period. The radical changes brought in with the new system could cause chaos without an extensive communication campaign to employers and employees. What is the Minister doing to ensure that this does not occur?

Article 9 of the order modifies Schedule 3 to the Act, regarding automatic barring. This puts in place an interim solution to this issue until legislation comes fully into force. Article 11 modifies Section 113BA of the Police Act to change the information shown on criminal record certificates to show whether a person is eligible to work with children and vulnerable adults, or whether they are being considered for barring. Who will monitor whether that change in the system is properly implemented? It is a vital part of the process, and any error in an untried procedure would be unacceptable. How many cases will be affected by these transitional arrangements?

Can the Minister reassure the Committee that the order is compatible with the Convention on Human Rights? The ISA staff can take as evidence not just criminal convictions and cautions but also mere allegations. Even if one has been found innocent beyond all reasonable doubt, the ISA may still come to its own conclusions on whether someone really did commit a crime. The right to work of an estimated 11.3 million people will be determined by the ISA without the protection of a judge or jury. As the Minister will be aware, there are already a number of cases in the courts. Is she aware of the possibility that the Act could unintentionally criminalise individuals? People applying for jobs that are “regulated”—that is, jobs that bring them into indirect contact with children, such as a receptionist at a dental surgery—also need to be registered with the ISA. Will applying for such a job without being registered be a criminal offence?

Why do the Government consistently work from the cynical assumption that the public cannot be trusted to use their own common sense? Why do they not see that what is necessary is greater flexibility and trust? We must ensure that we do not open the door to a whole raft of unintended consequences in our desire to be prescriptive. I look forward to the Minister’s response.

I thank the Minister for introducing the order. It is a wide-ranging instrument that amends a number of Acts and has a bearing on very many people in different capacities who come into contact with children and vulnerable adults. We welcome measures that make life safer for vulnerable groups, but we seek reassurances that the order will not restrict opportunities for the vulnerable to experience fulfilling and varied lives. If regulations are too stringent, they may deter those who have much to contribute but who hesitate to come forward because of bureaucracy and other deterrents to which the noble Baroness, Lady Verma, referred. Regulations may also incur administration, which takes much needed time and funding away from front-line services.

We have a further general concern about lists, databases and the storage of information, all of which are of great benefit to us all in our everyday lives but can bring great harm if they are inaccurate, if the data are incorrectly analysed or are lost or corrupted, or if they are accessed by unauthorised bodies for use in unauthorised ways. The order amends the criteria for automatic barring which has no right of appeal. Will the Minister assure us that there will be sufficient opportunities for people to correct false or misleading information on their files? What safeguards are in place to ensure that this information will not be used for miscellaneous purposes?

We note that the consultation elicited 326 responses and very high levels of agreement, which gives us confidence that the order will be useful. We also welcome the definition of “relevant child care premises” to exclude,

“the home of a parent of at least one child to whom the childcare or child minding is provided”.

It is common sense and for the general good that parents can continue to help each other out in a personal and informal way without needing to be formally registered, and common sense to exempt people in their own homes. It excludes, for example, cleaners employed in the home.

We support the assurance that no fee will be payable by those in unpaid voluntary work—volunteers need every support; they are much needed and they make an invaluable contribution to working with vulnerable people—and that the fee for the Independent Safeguarding Authority scheme applications has been set at £28, which sounds modest enough not to be a barrier. We hope that that will be matched by speed and efficiency in processing applications, although we note that any person checking an individual will be able to do so by means of a quick and free online check and that there will be safety measures to preserve confidentiality. Perhaps the Minister will assure us that confidentiality, too, has been fully assessed.

The size of the workforce affected by the vetting and barring scheme is estimated to be some 11 million strong. This is a very large proportion of the workforce. Will the Minister say how guidance will be communicated to such a large number of people? How can the Government be certain that everyone involved in these amended regulated activities fully understands the implications of the changes, particularly during the transition phase?

We have concerns about the impact of additional regulation and administration on small businesses and the effect on workplace opportunities for young people. The Government are promoting work experience for all young people, not least those in apprenticeships, and it will be challenging to find sufficient places to meet demand. What assurances can the Minister give that these regulations will not be an additional disincentive to hard-pressed employers to take on young people?

My final query relates to the proposal to replace the Protection of Children Act list, the Protection of Vulnerable Adults list, List 99 and the court-imposed disqualification order regime with two separate but aligned lists. If this reduces bureaucracy, it will be welcome, but will the Minister say what the benefits are of this change when set against the costs of reconfiguring and transferring data?

With those comments and questions, we support the order and look forward to the Minister’s reply.

I am grateful to noble Lords for the opportunity to respond to the many questions following discussion of these important regulations. I hope that I can cover them, but if I find that I cannot, I shall write promptly to both noble Baronesses. Concerns were expressed about the benefits of the enormous commitment and investment that the transition to the new vetting and barring scheme represents. We are clear that the move to the new scheme from the old system is an important step that promotes greater safeguarding. It encompasses changes which came into force in January 2009, the introduction of the new barred list in October 2009 and ISA registration in 2010. These changes will bring clear benefits, in particular the further strengthening of safeguarding, and will deliver the Government’s commitment to establishing the toughest ever vetting and barring scheme. It will place decisions in the hands of independent experts as opposed to Ministers.

We are widening the workforce covered by automatic barring of those newly convicted or cautioned. We are contributing to a well managed and staged transition to the new vetting and barring scheme.

The Minister mentioned that the experts will make the decisions. Will she explain how they will be selected or appointed, and who they are likely to be?

As the noble Baroness is aware, the Independent Safeguarding Authority is chaired by Sir Roger Singleton and staffed by experienced and expert caseworkers. When the registration scheme is up and running, we will have a system that will be the gold standard for the world. I accept that it is taking us time to achieve it, but when we get there, I wholeheartedly believe that there will be great benefits for employers who will be able to use online facilities to get information proactively about the registration status of their employees. That cannot be done using Criminal Records Bureau checks. While there will be real benefits, the transition from the old to the new system is an enormous undertaking. Noble Lords are entitled to feel sceptical about the process of change, but when we get there, we will have the most comprehensive, efficient and user-friendly system. I appreciate that “user-friendly” is not a phrase one would think of using in connection with vetting and barring, but it is important for employers, volunteers and even for people who may potentially be barred that the whole process is run efficiently.

The noble Baroness, Lady Verma, was concerned about volunteering. I do not believe that this will create new barriers for volunteers. Bodies such as Volunteering England and the Girl Guides have welcomed the fact that volunteers will be covered by the new scheme in the same way as paid employees. Not to include them could make parents less willing to leave their children with volunteers, or make vulnerable adults more concerned about volunteers who work with them. It is an important step forward, but we need to remember that registration with the ISA will be free of charge for volunteers. Many volunteers are CRB checked at the moment, so the new arrangement builds on that. I accept, though, that this is not widely understood enough in the voluntary sector. The new voluntary sector safeguarding unit that we have established is going to work hard to put that right and ensure that the voluntary and community organisations know how the system will work for them and what the benefits can be.

The noble Baroness is concerned about why the transition is taking its time. We want the transition to the ISA to take place in stages in order both to ensure that it is effective and to maintain high levels of protection for vulnerable groups at every stage. We are determined to get this right, so we are not rushing it. This is a serious task and we need to ensure that the current vetting and barring lists will hold as we transfer to the new arrangements. That is what the regulations are about.

Noble Lords wanted to know about the numbers on barred lists at the moment and the numbers that are being migrated. In his Statement on 20 January this year, the Secretary of State announced that there were 12,992 people on List 99. That number had risen from the previous year following the implementation of the amended List 99 regulations that came into force in February 2007 and which this House debated in full. The ISA must include or consider including the new barred lists and all those individuals who are barred under the current lists, as you would expect. We will not be able to give a running commentary on the numbers as the ISA works through the list, but a key point to make is that whether 10 people are left on the current barred lists or 100, we need to ensure that the transitional arrangements are in good order so that we can maintain the bars until the ISA deals with those cases and the new system is fully operational. That is why these regulations are before us.

The noble Baroness, Lady Verma, was concerned that the arrangements for July will go ahead as planned. We can confirm that the IT systems are on track for delivery in July, and that includes the risk assessment and the security assessment. If she would like me to write to her in more detail—I have a feeling that I will not satisfy her question on security with these answers—I will be happy to do so and copy it to the Committee.

The question of human rights compliance is very important. Yes, we believe that the order is compliant; it was stated when the Safeguarding Vulnerable Groups Bill, now an Act, was introduced to Parliament that the scheme would be ECHR-compliant. As noble Lords are aware, we need to follow that procedure when we introduce legislation.

With regard to Criminal Records Bureau checks, the noble Baroness asked who will monitor whether changes to the CRB certificates are implemented effectively. The advice I have here states that the independent monitor applies under the Act, and is referred to in Section 28. Again, I am happy to write to the noble Baroness on this question in order to be absolutely clear.

Noble Lords were interested in whether it would be an offence for, say, a receptionist in a doctor’s surgery not to be ISA-registered and asked whether, as we go through this period of change, we will be criminalising people as they go through their job applications. I want to make it clear that it is not our intention to criminalise people who apply for a job in good faith. As the noble Baroness will be well aware, the question is going to be whether the job is a controlled activity. There will be a duty on the employer to check the registration status of their employees, but an employee does not commit an offence if he or she is not registered. The emphasis is put on the duty of employers to know which roles in their organisations include controlled activities. I hope that that provides reassurance on the point.

I was also asked about timing and when registration for the ISA begins. Registration will begin in 2010. I am sorry, but I shall share something else with the Committee because it is important when considering administrative standards. The aim for those using the system is that 90 per cent will receive their registration number about a week after the completed application to the vetting and barring scheme has been received. The advice I have before me is that we are aiming for pretty decent administrative standards so that those who have to engage with the scheme are not left in a state of uncertainty about their registration, provided that they have made the right application.

I want to make a few more points. Concern was expressed about engaging with international protocols. I can confirm that we have an initial agreement with Australia and that we are in ongoing discussions with France and Ireland. This will allow the sharing of criminal records information between our countries. The noble Baroness, Lady Verma, is concerned about this, and rightly so. We are keen to forge international agreements so that we can ensure that this information is shared.

I thank the Minister for giving way. I want to get it clear in my mind that this still means that a large number of people are not going to be covered by the ISA requirements. As an employer, I know that when I take on foreign staff it is very difficult to ensure that all the checks and balances are in place. We go on the say-so of the applicant and there is usually little we can do to check them. My worry is that we will still have within our systems a large number of people working with a lot of vulnerable people who will not have made this application, whereas those here will be overprescribed on application.

The noble Baroness is right. This is where we, the Government, need to be clear. While safe recruiting is extremely important, we can never replace the responsibilities of the employer to ensure that they make use of the vetting and barring scheme when it is fully operational and of Criminal Records Bureau checks. When recruiting from abroad, the employer has a responsibility to seek references and to follow up on as much information as possible. I know that that is very difficult, which is why we are committed to ensuring that we have the protocols to assist employers. We are working hard on that and it is extremely important. I cannot overemphasise the importance of getting bona fide references from foreign employers. I am advised that these are best obtained by the individual, but we will provide guidance to employers and voluntary organisations on the value of the information that should be provided. I cannot stress enough the importance of the point made by the noble Baroness.

With regard to communication about people’s responsibilities for the ISA, we are running a communications campaign and producing detailed guidance, particularly for the voluntary sector. This will be rolled out from the autumn through to the spring. There is a great deal of work to do on that. We are taking our responsibility for communicating very seriously.

I think that the noble Baroness, Lady Garden, asked about young apprentices.

My question was more about whether these extra regulations would deter employers from taking on young people for work experience. Apprenticeships would come into that.

The Act exempts 16 and 17 year-olds in the workplace. Employers will not be legally required to ISA-register staff who supervise 16 and 17 year-olds in employment. An accommodation has been made of precisely that point.

Finally, I will write to noble Lords to ensure that I have covered all their questions. The Safeguarding Vulnerable Groups Act 2006 is essential legislation in the protection of children and vulnerable adults from harm. The order under discussion amends some details of the Act to improve the practical working of the vetting and barring scheme. By doing so, it paves the way for the Independent Safeguarding Authority to start the full range of barring under the new scheme on 12 October 2009. As we know, the order will narrow the definition of relevant childcare premises among other things. Together, the provisions in this order support the commencement of the full range of barring under the new scheme and the repeal of existing barring schemes, bringing about a further milestone in the transition to the new scheme. I commend the order to the Committee.

Motion agreed.

Committee adjourned at 6.19 pm.