Wednesday, 8 July 2009.
Arrangement of Business
Before the Minister moves that the first statutory instrument be considered, I remind noble Lords that in the case of each statutory instrument, the Motion before the Committee will be that the Committee do consider the statutory instrument in question. I should make it clear that the Motion to approve the statutory instrument will be moved in the Chamber in the usual way. I remind your Lordships that if there is a Division in the Chamber, the Committee will adjourn for 10 minutes.
Scottish Parliament (Elections etc.) (Amendment) Order 2009
Considered in Grand Committee
It may be helpful if I briefly set out the background to the order under consideration, which is made under Sections 12 and 113 of the Scotland Act 1998.
Last year, the then Secretary of State for Scotland announced his response to the Gould report on the 2007 Scottish elections. Following those elections, Ron Gould was invited to review what had caused the problems that occurred and make recommendations for improvements. This order, I am pleased to say, takes forward many of those improvements, including reverting to separate ballot papers for constituency and regional votes. The unacceptable number of rejected ballots in 2007 was caused in no small part by the fact that the two papers had been combined. The Government accept the rationale to revert to two papers, and this order effects that change.
Equally contentious was the use of what Gould called “naming strategies” on the regional side of the ballot paper. He recommended that, while parties should still be allowed to use registered descriptions on the regional ballot paper, this should be in a place secondary to the registered party name. We are making this change in the order, along with a change to the constituency ballot paper, where only the registered party name will appear—again, in line with the Gould recommendations.
As a consequence of this change, we have accepted the case for allowing for the prefix “Scottish” to appear in front of the registered party name. We envisage this being used when the registered party is a UK-wide party. It is our view—and, I understand, the view of all the other major parties—that this is less confusing to voters.
The order also removes the option of conducting an electronic count of ballot papers. The disruption and confusion caused by e-counting machines performing poorly in 2007 was well publicised. Ron Gould quite rightly recommended that they not be used again for Scottish Parliament elections until systems had proven themselves more reliable.
We are also extending the timetable for elections so that there is more time between close of nominations and polling day to allow for the efficient issue and receipt of postal votes. With more than 10 per cent of votes now being cast in this way, it has become more important than ever that those votes count. There were some delays with postal votes in 2007, which meant that some voters were not able to cast their vote, never mind being certain that their vote counted. We have accepted the Gould recommendation that more time is needed to ensure better administration of postal votes. There will now be 23 days between close of nominations and the poll, an increase of one week, which will bring these elections into line with European elections.
These changes, along with a small number of minor amendments, have been subject to wide consultation with electoral administrators, political parties and others. In accordance with the Political Parties, Elections and Referendums Act 2000, we have fully consulted the Electoral Commission. Voters have also been asked for their views on matters relating to the ballot paper.
I am happy to report that the changes we are making are broadly welcomed, and I commend the order to the Committee. I beg to move.
I thank the Minister for explaining the order in his very adept way. I can only say that it is July and we are back to considering Scottish elections once again. In July 2005, we had a lunch to discuss the Arbuthnott commission. In March 2007, the order was introduced which caused so much criticism as it came too late to be fully considered and implemented before the election that took place so that in July 2007, we had the Scottish Parliament (Elections, etc) (Amendment) Order, followed by the Gould report in October 2007. Now it is July 2009, and we are considering the Scottish Parliament (Elections, etc) (Amendment) Order 2009. With all the wonders of electoral innovation that we seem to be set upon in Scotland, it is proving to be rather a rocky road.
The measure before us seems to be a bit of a pick and mix from the Gould report. I am very glad to see the measures that have been adopted, such as the amendment allowing more time after the closure of nominations, the amendment for separate ballot papers and even the amendment laying down rather more exactly the names of the parties which will appear on the ballot paper and perhaps limiting the more creative efforts which emanated at one point. I think that one of the nomination papers had a candidate called “Alex Salmond for First Minister”.
Perhaps I have missed some of the procedures that have gone on in the mean time, but will the Minister tell the Committee the Government’s view about some of the early conclusions in the Gould report, one of which was the need to rationalise and consolidate existing legislation? There was also the recommendation that there should be a requirement that any change in the legislation should be in place at least six months before the elections in which they are to be implemented. Does the measure do anything, as requested by Gould, to clarify and define responsibilities that the principal players have in arranging elections; that is, Ministers and civil servants, returning officers and the Electoral Commission? It seems to me that the Gould committee was looking for a chief returning officer to be appointed with properly trained returning officers in each constituency. Have the Government considered this and what is their view? We must all applaud any measures that can be seen to tidy up the unholy mess that ensued from the May 2007 elections. To that extent, we welcome these measures.
I, too, give a general welcome to this order. I regularly used to tease the Minister’s predecessors whenever there was a Scottish order before us, and say, “Well, where is the Advocate-General?” We have a Scottish Minister of the House but some unfortunate Minister is always left to introduce Scottish orders. I repeat my query as to why the Advocate-General does not present these orders himself. However, relief is at hand because the Calman commission has recommended that administration of Scottish elections should be transferred to the Scottish Parliament, which is a long overdue reform. Therefore, I hope that this might be one of the last of these orders that we see in this House.
I entirely go along with three of the four purposes of this order; that is, increasing the time between the close of nominations and the date of poll from 16 days to 23 days, removing the option of having one ballot paper for both the constituency and regional polls, and removing the option of electronic counting. These all came out of the Gould report. I agree with the noble Duke that that is right and I look forward to hearing the answer to his queries about other aspects of the Gould report that do not yet appear in this order.
The one part of the order about which I am still slightly unhappy is the use of the registered party name on nominating papers. I do not think that the order goes far enough. It makes a modest improvement to remove what I thought was an abuse at the last Scottish elections. We had a discussion on this on an amendment that my noble friend Lord Tyler and I tabled to the Political Parties and Elections Bill on the Floor of the House on 17 June. What was interesting about that debate was that there was total unanimity on the Labour Benches, the Conservative Benches and the Lib Dem Benches that something more had to be done to stop what I call sloganising on the ballot paper.
The word used in the order is the same as that used in that Bill. It talks about a party description, but I do not believe that the Electoral Commission has properly interpreted what is a description as distinct from a slogan. The noble Duke gave us the example of “Alex Salmond for First Minister”. Unless we tidy this up, there is nothing to stop the Conservative Party, for example, at the next election running on the description “David Cameron for Prime Minister”. I find that objectionable on constitutional grounds. We do not have a presidential election system and I do not think that slogans of that kind should appear on the ballot paper. We have just had a European election where the BNP campaigned on the description “protect British jobs”, a slogan which has nothing to do with the real purposes of the British National Party. The Government and the Electoral Commission should look again at whether these slogans should be allowed on the ballot paper. It ought to be stopped.
The Minister who was on duty that day did not reply to the debate at all—he just read out his totally inadequate brief. At the end of it, though, was a crumb of comfort. He said:
“These matters are of course kept under review, and since this issue concerns the way in which those standing for election communicate with the electorate, it must be right that any change should be made in discussion with all those who have a stake in the electoral process”.—[Official Report, 17/6/09; col. 1121.]
I do not expect the Minister to be able to deal with this issue now, but we have the Third Reading of the Political Parties and Elections Bill tomorrow on the Floor of the House. I would be grateful if the Minister would take back to his colleagues the fact that there was no satisfactory response to the debate in Committee and that I intend to raise the matter again tomorrow on the Floor of the House. However, with that one caveat, I accept that we should agree to the consideration of the order.
Surely the order is to be welcomed. How are the Scottish ballot papers devised? How are they made up? How are they formulated? Can my noble friend offer any details of the process, because it is clear that that process was greatly deficient ahead of one particular national ballot? I do not think that such a ballot paper would have got by in Wales, but that is neither here nor there in this debate.
The helpful Explanatory Memorandum refers to erroneous references and superfluous references. In his capacity of representing the Scottish Office, can the Minister say whether the officials who devised the most bewildering of ballot papers have in any way been called to account? In the history of elections, constituency and regional, those who devised such ballot papers were surely the subject of some censure. How did chaotic papers such as these get past scrutiny? Were the returning officers involved? Did the Minister of the day see the ballot papers in their draft? I hope that these questions may lead to further information.
I should first declare an interest as a Member of the Scottish Parliament. Currently, I am the only Member of the Scottish Parliament in the House of Lords, although we have some distinguished former MSPs, including the former Presiding Officer of the Scottish Parliament, the noble Lord, Lord Steel, who carried out that job with great distinction. I shall pursue the line of argument that he pursued earlier, so we have today not only our service in the Scottish Parliament in common but our arguments.
The Scottish Parliament, conveniently for me if not for our Whip and our Minister, is currently in recess, so I am able to be here on a Wednesday afternoon, when the Scottish Parliament normally meets. I am afraid that during the time that it does meet, I go up to Edinburgh for the plenary sessions and the committee on which I serve. I am therefore pleased to be able to participate in this debate.
I agree with the noble Lord, Lord Steel, on two points. The separate ballot paper created tremendous problems. I know from participating and from the count the problems that it created. There was huge confusion when people got the two papers mixed up and it was not immediately clear even to seasoned campaigners and politicians what to do. I also agree about the timetable for postal votes. Again I declare an interest, having registered for a postal vote which I hope I will receive for the next election. The tight timetable created problems for returning officers, so that will be an improvement as well.
My only point of disagreement with the noble Lord, Lord Steel, is that I still have some doubts about transferring to the Scottish Parliament all responsibilities for elections to the Scottish Parliament.
I accept that and we are in agreement. I am grateful for the correction. The one thing I am deeply disturbed about, and on which I am going to seek in even stronger terms than the noble Lord, Lord Steel, an assurance from the Minister relates to the terms of this order. What happened was a despicable and deliberate piece of deception by the SNP. It was disgraceful and I have not seen the like of it from any political party. The Liberal Democrats get up to one or two little tricks from time to time, the Tories have been known to do it and even the Labour Party has tried it in certain parts of the country, but I have never seen the like of this before.
I shall slightly correct the noble Duke by saying that it was not the one candidate, but all the candidates for the regional list in every region of Scotland who had as their party description, “Alex Salmond for First Minister”. Not only is that a manifest nonsense as a description of a party and not only was it sloganising and propagandising, but it was chosen so that the SNP would be the first party in the list because the name “Alex Salmond” begins with an “A”. Alex Salmond said that the SNP could not be doing it for that purpose, “because my mother would not have realised that we were going to be standing in these elections when I was born 58 years ago”. But that was not the point. The fact is that Alex Salmond saw the opportunity to use his name as a description and took it, and the SNP would do it again if it had the chance. That is why I have reservations about any suggestion that total responsibility should be passed to a Parliament where he is still the First Minister.
I seek a clear assurance from my noble friend, and if he cannot give one to me today, I concur with the noble Lord, Lord Steel, that we should get it tomorrow or some time soon from the Advocate-General. Indeed, I would like to see the Advocate-General here, since he is paid quite a lot, as I keep reminding him. However, that is in no way to say that my noble friend Lord Brett is not an entirely adequate person to deal with this. However, it would be useful if the Advocate-General or indeed the Secretary of State himself in another place could give a clear, written guarantee that the provisions of this order will stop the abuse that the SNP carried out last time. I am not absolutely sure that it will because I think that ways around it can be found and that the noble Lord, Lord Steel, is correct in his suspicions.
I am sure that the Minister understands our concerns. If he is not able to give us an absolute assurance today that this practice will be eliminated, I hope that he will find an opportunity to do so through one of the other Ministers on another occasion.
I thank all noble Lords who have contributed to what has been a fascinating debate. We all start from the premise that everyone sees the Scottish elections in 2007 as being less than perfect in a number of ways. That is what the Gould report was commissioned to look into and what the government recommendation, through this order, seeks to put right.
I shall deal first, because it is a procedural matter, with the question of the Advocate-General. I am sure that he would have shown even more enthusiasm than I have, had he been able to, but he is representing Her Majesty’s Government at an important court case in the High Court of Justiciary in Edinburgh, which is why your Lordships have a poor substitute in myself.
The noble Duke, the Duke of Montrose, made a good point when he asked when we are going to have some rationalisation and consolidation of this. A full consolidated version of the elections order is being put together and is in an advanced form. We hope to put it in place six months before the 2011 elections. I hope that that will meet some of those concerns.
A number of questions were asked about the Gould report and the aspects that were not accepted, including the question of adopting a returning officer. We can go through them as they are quite easy to deal with. Gould recommended moving to a daytime count. We have heard many complaints about the 2007 elections, but I do not think anyone has made the argument that the overnight counting was responsible for any of the confusion.
We believe that a randomised order on the ballot paper would be confusing to voters. We consulted widely—we even used the dreaded focus groups to find out what people thought about it—and there was a confirmed preference for keeping the alphabetical list and trusting politicians’ mothers when it comes to giving their children names that begin with an early letter in the alphabet. No, that last part is not a serious point. The main recommendations have been confirmed in this order and, I hope, subject to the questions that I am now seeking to answer, command your Lordships’ support.
A number of questions were asked by my noble friends and the noble Lord, Lord Steel, about devolving powers for Administrations. The Government have established a steering group that will look at the recommendations made by the Calman report, and we will consider this recommendation as part of that process.
One learns very quickly, in what in my case will probably be a short political career, that giving assurances is easy to do but difficult to recant. I will therefore resist the temptation to give any assurances, other than that I will ensure that this debate will be made known to my colleagues so that, in any discussions that take place tomorrow on another Bill, they will be well aware of the points that are being made.
My noble friend Lord Jones asked whether Ministers saw the ballot paper in draft. They saw early samples but not the final versions, which were prepared under the auspices of the Electoral Act 2007 steering group and the e-counting project board.
One always wants to be able to say, “It wasn’t my fault”, but I have a horrible feeling that the first drafts were presented to a Committee such as this. One had so little knowledge about how to organise a ballot paper that one was not able to exercise any judgment on them. As has been said, one would like to know the people who designed these ballot papers.
The Minister talked about a consolidated order being brought forward before the next election. It would be interesting to know, in answer to another of my questions, whether there would be more definition of who has responsibility in drawing up these ballot papers and orders.
That is a question to take on board, and we must ensure that when we produce those orders they seek to answer it. No doubt that question will be posed again if the upcoming proposals do not clarify that to a greater degree.
On the question that my noble friend Lord Foulkes asked about deception on ballot papers, I make the point that in responding to the consultation on this order, all the political parties have essentially put their name to it—I say that; actually, I do not think that the Liberal Democrats have responded, but all other parties did—so they are signing up, as I see it, to what we are seeking to do. One can but trust in the veracity and honesty of political parties. I have noticed, both in the noble Duke’s contribution and in the earlier contribution from my noble friend, that sometimes confession is good for the soul. After confessing that we did not get it right in 2007, we hope to be in a position to get it much closer to being right—or 100 per cent right if we can—in 2011.
Sloganising was also mentioned. In fact, under the Political Parties, Elections and Referendums Act 2000, which sets out how the Electoral Commission should determine what descriptions can be registered, the commission will receive ballot papers and designs before any future election. We hope that those proposals will be provided in the near future.
If there are any further questions or if I have missed any points, I will happily respond to noble Lords in writing.
I thank the Minister for his responses. I have been in touch with the Electoral Commission about the descriptions on the ballot paper. The commission answered that it could not do anything about that because it is in statute, but the Minister has just quoted the statute. The Government, on the other hand, say that trying to tighten the role would create difficulties for the Electoral Commission. All I repeat to the Minister is that I was pleasantly surprised in our debate last month on the Floor of the House to find that there was universal concern about this matter. The Electoral Commission and the Government have not yet got it right, and I hope that they will have the chance to get it right in future.
I understand that to be the case. The only other recommendation made by the Gould review that is not being adopted is having a chief returning officer. We want to strengthen the board approach rather than the individual approach.
I assure noble Lords that the points that have been made will be taken back to my department, and I will seek further information on the noble Lord’s question about the circularity between the statute and the Electoral Commission.
Statistics and Registration Service Act 2007 (Disclosure of Higher Education Student Information) Regulations 2009
Considered in Grand Committee
That the Grand Committee do report to the House that it has considered the Statistics and Registration Service Act 2007 (Disclosure of Higher Education Student Information) Regulations 2009.
Relevant Document: 18th Report from the Joint Committee on Statutory Instruments.
These regulations are the second use of the data-sharing power under the Statistics and Registration Service Act 2007 to make possible the sharing of data on students in higher education that otherwise could not be shared. These, and previous regulations that permitted the sharing of data from the school census, are part of a wider programme of work—the Migration Statistics Improvement Programme—which is being conducted by the National Statistician. The programme seeks to address the problems faced in estimating highly mobile populations and takes into account short-term migration.
Access to administrative data that are collected and held by government departments and their agencies is essential if the Office for National Statistics is to meet increasing demands for new and improved population and migration statistics. The Government are committed to doing all they can to help to improve the accuracy of the population estimates, particularly at the local level. Both central and local government need accurate information on migrant numbers and the overall changes to the size and structure of the population at the local level. This is required for resource allocation and for the planning and delivery of local services.
Long-term public expenditure planning, including the calculation and distribution of the formula grant to local authorities, and resource allocation to the Department of Health and the Department for Children, Schools and Families, depend on population statistics. The ONS has evaluated the content of the student record and has identified the information which it needs for its improvement work on population and migration statistics. The regulations will allow the Higher Education Statistics Agency, which collates the information on behalf of the higher education funding councils in England and Wales, to share this information with the ONS. This includes the name, date of birth, gender and ethnicity of the student, and details of their home and term-time postcodes as well as the information to facilitate an understanding of when moves take place. Access to these data will enable the ONS to refine and develop new approaches for the derivation of population estimates and projections.
The benefits of sharing this information include better information on estimates of the number of migrants, improved accuracy of mid-year estimates and projections of population for local areas. These will include areas with high rates of population turnover, improved resource allocation, improved policy formulation and improved planning and delivery of service, as well as the development of ongoing research into the use of administrative data in updating population statistics without a traditional census. In addition, access to those data will help the ONS to improve the enumeration of students in the 2011 census and improve assessment of the quality of the statistics on students taken from that 2011 census.
The regulations also make provision for the ONS to disclose records of students living in Scotland and attending higher education institutes in England and Wales to the General Register Office for Scotland, and the records of students living in Northern Ireland and attending higher education institutes in England and Wales to the Northern Ireland Statistics and Research Agency. This information will be used by these organisations to improve population and migration statistics in Scotland and Northern Ireland which will then be provided to the ONS so that it can produce UK-level migration and population statistics.
Data confidentiality and security arrangements are being assessed as a fundamental part of the preparation for the data sharing agreement between the organisations concerned. The ONS and the Higher Education Statistics Agency already work to tight confidentiality guidelines and have excellent data security records. They will put the necessary measures in place to protect data and avoid the disclosure of any private information about individual students. Information will be available from the ONS to Scotland and Northern Ireland via the secure Virtual Microdata Laboratory. During the debate held in January on schools census regulations, the noble Baroness, Lady Walmsley, raised concerns about the large number of students resident in many cities who are not reflected in the numbers used for resource allocation. In supporting these regulations today, the Committee will help the ONS ensure that students are better represented in the statistics, leading to an improvement in the accuracy of those statistics. I therefore commend the draft regulations to the Committee.
I thank the Minister for introducing the regulations, and perhaps I may add to the welcome given to the noble Baroness, Lady Crawley, earlier. When a similar order was debated last January, my noble friend Lord Bates asked the Minister to say a little more about why it is necessary to introduce children’s names. In making this rather modest request, my noble friend mentioned the Children Act 2004 which refers to the confidentiality of data relating to young people. The Minister replied by saying that only 20 statisticians will have that information. Lacking the charm and tact of my noble friend Lord Bates, I should like to ask the Minister that question a little more bluntly. Why is it necessary for children’s names to be disclosed? The student number is included in the information being requested, so what is the necessity for further information that would enable individuals to be identified?
I would also comment that only one person is needed to leak information, so while restricting the names of students to 20 statisticians reduces the chances of abuse, it does not necessarily prevent it. Statistics are about preparing numbers and percentages, so it is difficult to see why names need to be included for the purpose of producing a series of statistics. The long list of information that can be requested under this order makes me wonder whether information is being collected simply for the sake of it. Does such a mass of information end up being a help or does it become a hindrance, causing the end user to get swamped by unnecessary details?
Who is going to pay for producing all the information that educational establishments are being asked to provide? It will be a long, arduous task to retrieve and collate everything, and it will be a burden on the relevant establishments. They are not so overburdened with funds and personnel that they will find it easy.
I, too, thank the Minister for introducing these regulations. We live in an age when data can be collected and stored very easily. This has enormous benefits, administratively and functionally, for recording and planning, but there are also concerns and cautions, as the Minister has laid out. We read too often of personal or sensitive information going astray, with all the dangers of infringement of civil liberties and possible misuse or abuse of information. There is a further concern that data may be inaccurately represented or analysed, with consequent damage to individuals or institutions. I note with interest the noble Lord’s comments on security.
The Minister set out clearly that the regulations are designed to help in measuring, monitoring and understanding populations of students, with particular reference to migrant students. The funding councils collect information from the student record of each higher education institution, amounting to some 2.5 million students, a massive amount of data. With these regulations, the Statistics Board would be enabled to share information with counterparts in Scotland and Northern Ireland, purely for statistical purposes. However, we on these Benches endorse the comments that have just been made. Why is all the personal information disclosable if the data are solely for statistics? What assurances can the Minister give that personal information, as listed in Article 4(i)(a), will not be shared so widely as to infringe privacy and personal liberty?
We recognise that it may be useful and productive to track the movement of students for demographic or employment or other purposes, but does the Minister agree that safeguards are necessary if we are not to move towards a society where freedom of movement is tracked and, as a result, restricted? Why is disclosure of information required to be backdated to 1 August 2000?
We welcome the internal review after 12 months. Will the Minister give assurances that the results of this review will be brought back to your Lordships’ House for consideration?
We support the regulations, and with those comments and questions I look forward to the Minister’s reply.
I am grateful to my noble friend for his patient exposition. Is each student informed of these regulations, which permit the disclosure of information about that given student? If so, in what way are they informed? Where does it say that students will be informed that these details are likely to be made available? How can we be assured that these details are safe? What process will ensure that only a given office has these details? They seem to be priceless in some respects, when one considers the great detail that is listed. It would be helpful if we could have assurances on these matters.
Are the details of the student ever likely to be made available to other interested bodies? Other noble Lords have mentioned the bodies whose responsibility is to the security of the state. There is not a great deal of information in the order to answer questions such as these. I declare an interest as a university chancellor.
I thank all noble Lords who have contributed to this debate for the interweaving of questions around two areas of concern which are well understood. The questions are: why is a lot of personal information required; what is the risk; and what are we doing to ensure that it is secure? One of the problems that the Government have taken on themselves is to make all leakages of data immediately known to the public, which gives the impression sometimes that there are lots of leaks in government circles and no leaks anywhere else. Most of us know that in the commercial world there are many leakages, but they are not publicised for the very good reason that they would either damage customer confidence or provide information which would be of value to commercial competitors. But they are the genuine concerns that a lot of people have.
On identifiable information—names and so on—we believe that access to recording and identifying information will be essential for data-linking and matching. That will allow the ONS to cross-check the plausibility of information from different sources in order to refine and improve existing methods of estimation. Ensuring that students are counted only once and recorded in the appropriate place—that is, at their term-time address—is again a part of making the information that we have as accurate as possible.
I was asked what the information will be used for. As I have said, it will provide information to the ONS to improve population migration statistics, including small area population estimates, some national population projections, internal migration estimates, international migration estimates, and assessment and adjustment for the 2011 census. This could include linking of the data to other survey and administrative data; for example, the 2011 census GP registers and school census. My noble friend fears that this information could be used for other purposes. The order is specific and we have been specific in saying what the information will be used for. Therefore, it would not be possible for it to be used in any legal form for any other purpose.
As to what will be disclosed to other parties, the regulations would enable onward disclosure, but that is limited to the disclosure of information from the student record in the way that I have mentioned to Northern Ireland and to Scotland through secure systems. My noble friend Lord Jones asked about the review in 12 months’ time and whether it would be brought back to your Lordships' House. The ONS will be responsible for reporting the benefits of this to the Migration Statistics Improvement Programme Board and the Minister overseeing it. It would not, as part of this order, be referred back here because no further legislative proposals would be required. But I am sure that the point about people wanting to be reassured would be sufficient to provide an impetus for us to put information in the public domain.
On how the students are informed about the regulations, the first principle of the Data Protection Act 1998 requires fair processing of the information collected about students via higher education institutes. These institutes provide information to students about the use that is made of these data, which confirms that students will be informed that this information is being collected and, more importantly, in order to reassure students, why it is being used.
I was also asked why data are being collected back to 2000 and who is paying for this. The data are already collected by the Higher Education Statistics Agency from higher education institutes to assist the funding council and the Secretary of State in the allocation of funds. The ONS will pay for anything additional from the HESA. It comes down to the fact that the work is already being collected and the ONS will be responsible for additional finances.
It is worth repeating that the ONS has asked only for information that it believes will be essential to support its work in improving migration and population statistics. Twenty-six student-level data items have been requested, which provide basic information. A full higher education institution record has something like 150 items of information, so in that sense the ONS is seeking not to burden itself with data that it does not need and does not share.
On security issues, people well understand the nervousness about private information being held, whether by banks, by the Government, by the local authority or by anyone else. I can offer only the assurance that security is now recognised as of paramount importance in this. All those involved in this work are committed to meeting the data transfer, storage and handling standards specified by the information assurance arm of the Government Communication Headquarters as the UK’s national technical authority for information. I give the assurance that the Higher Education Funding Council for England and Wales will not share any identifiable information to the UK Statistics Authority until it is satisfied that these standards, and any other specific requirements, have been met.
The other safeguard that we have is that any people who are found to have breached confidentiality will be liable to prosecution. The Statistics and Registration Service Act 2007 contains a confidentiality obligation with a potential criminal sanction for revealing or sharing any information unlawfully. I hope that those safeguards show the Government’s determination to protect this information.
On the question of why records are being backdated to 2001, the answer is to provide comparison with data from the 2001 census and to provide a sound and reliable base for assessing change over time and, where appropriate, revising estimates.
I hope that I have satisfied noble Lords on the questions that they have asked. I will review Hansard tomorrow and, if I have missed any, I will write to the noble Lords concerned.
Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2009
Considered in Grand Committee
That the Grand Committee do report to the House that it has considered the Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2009.
Relevant Document: 17th Report from the Joint Committee on Statutory Instruments.
For many years the Government have expressed their desire to return to jury trial in all cases as quickly as possible in Northern Ireland. Sadly, the risks of community-based and paramilitary-based pressures on jurors in Northern Ireland remain acute, and of a different order from other places in the UK. Although major progress has been made over recent years and local politicians are working together in the Northern Ireland Assembly to create a brighter future, there is still progress to be made.
A small minority of those in Northern Ireland remain wedded to the ways of the past and continue to find terrorism and sectarianism acceptable. We must ensure that the criminal justice system is equipped to deal with these people.
As the issue of non-jury trial was debated in detail in 2007, a light-touch review was undertaken in January this year to inform the decision to extend. Next time, a more substantial review will be undertaken. During this year’s review, a wide range of stakeholders was consulted on potential renewal of the provisions, including the political parties, NGOs and practitioners.
During the development of the current non-jury trial system, the noble Lord, Lord Carlile of Berriew, provided particularly invaluable assistance. As part of the recent consultation he was again consulted. He concluded, based on the discussions that he has had throughout Northern Ireland, that extension was a justified step. The chief constable and Ministers also agreed that extension was necessary.
Although it is difficult to compare the old Diplock system and the new system, there does appear to be a continuing reduction in the number of non-jury trials. During the last two years of the Diplock system, 125 non-jury trial cases were dealt with. As reported to Parliament last year, the DPP issued 29 certificates for non-jury trials during the first year of the operation of the system, relating to 28 cases. Since then, he has issued a further 12 certificates. That means that, in almost two years, there have been only 41 occasions on which the DPP felt that a non-jury trial was necessary because any measures to protect the jury would not suffice.
Our criminal justice system relies on members of the public to act as jurors. The Government must therefore do everything possible to protect them from intimidation and the fear of intimidation. Sadly, even with non-jury trials being available in Northern Ireland, juror intimidation continues. Four cases in particular have been brought to the Government’s attention. In one of them, the judge considered the intimidation to be serious enough to discharge a juror, and in another the entire panel was dismissed. Witness intimidation also continues: 159 offences were reported to the PSNI last year.
There is a fear that the same intimidating tactics would be used against jurors if the option of a non-jury trial for the most serious cases was removed. Cases connected with paramilitaries or serious sectarianism are the most likely to pose these risks to jurors. This was key to including the provisions in the 2007 Act. Since then, we have unfortunately seen an upsurge in activity from dissident republicans. The threat from them is now higher than it was two years ago. This was brutally illustrated recently by the murders of Sappers Quinsey and Azimkar and Constable Carroll at the beginning of March this year. Furthermore, the horrific murder of father of four Kevin McDaid highlights that, while small in number, there are still those who feel that sectarianism and hatred have a place in Northern Ireland.
The order extends the effective period during which persons charged with indictable offences can be tried without a jury in certain circumstances, as set out in the Justice and Security (Northern Ireland) Act 2007. Without this order, the non-jury trial system in that Act will expire on 31 July 2009. Trial without a jury under the Act is possible only where the Director of Public Prosecutions for Northern Ireland has issued a certificate under Section 1 of the Act. The DPP may issue a certificate where he suspects that one or more of four conditions in the legislation are met and is satisfied that there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury.
The four conditions are: that the defendant is, or is an associate of, a current or former member of a currently or formerly proscribed organisation; that the offence was committed on behalf of a proscribed organisation, or that a proscribed organisation was involved with the carrying out of the offence; that an attempt, by or on behalf of a proscribed organisation, was made to prejudice the investigation or prosecution; and that the offence was committed as a result of, in connection with or in response to religious or political hostility. This approach is risk-based and ensures that there is a non-jury trial only where it is absolutely necessary. There is the presumption of a jury trial unless one or more of the conditions applies.
Before issuing a certificate for a non-jury trial, the DPP considers whether other measures, such as making an application to the court for screening off the jury from the public, would allow him to be satisfied that there was no risk that the administration of justice might be impaired if the trial were to be conducted with a jury.
Non-jury trial remains an exceptional measure that is used only where there is no alternative. I am satisfied that extension of the non-jury trial arrangements for a further period is a necessary and proportionate step. I beg to move.
I thank the Minister for so clearly laying out the details of this statutory instrument and in particular for clarifying the conditions under which the DPP can reasonably expect to license a non-jury trial.
My party and I support the order—although, not surprisingly, it is with great regret. I asked the Minister’s officials during the previous debate how many times Diplock courts had been used in recent years, and I should clarify that she gave me the answer just now. The number was higher than I thought. However, it demonstrates to all the truth of what is going on in my home Province.
There is still far too much organised crime; there is, as the Minister pointed out, a significant amount of terrorism from dissidents and—to correct her a little—a certain amount still from loyalists in the line of sectarianism and hatred. Unfortunately, it is now directed against immigrants such as Poles, Chinese and Romanians. It takes the form of gangs and organised crime. We saw the same sort of thing conducted on a smaller scale by a bunch of football thugs in Coleraine after the Rangers-Celtic match, when a father of a family—a very good man, a community worker—was murdered quite unnecessarily.
I have pressed for some time my colleague in another place, Owen Patterson, to be more critical of the way in which the Province is being led, both by its Secretary of State and the PSNI leadership. The chief constable is leaving; he has been known to be leaving for some considerable time; a replacement has not yet been found. The PSNI replaced its deputy, who left some time ago, before replacing the chief, knowing that the two were going to go together, which was ridiculous. It had a wonderful opportunity to pick the No. 1 and let the No. 1 have influence in who his No. 2 was going to be—but, no, they did not do that, because they knew better, didn’t they? That sort of thing is going on in Northern Ireland. It intimidates people and prevents their devolving justice and policing. I would find it very difficult today to vote for devolution of policing and justice—that is a personal issue; where my party stands on it is probably slightly different.
As the Minister said, there is also a serious risk of juries being intimidated—in fact, they are being intimidated from time to time—and it is even more difficult to bring witnesses to court, because they, too, are at serious risk of intimidation due to the family structure of the little Province, where everybody knows everybody, criminal gangs operate in particular communities and it is extremely hard to find witnesses to come forward. I met some potential witnesses after the young police constable was killed in Craigavon. I was there the morning after. It is easy to understand that attitude when you stand on the ground, see the sight-lines and know who lives there. If I was in one of those houses near to where that poor young man was killed, I would not be too keen to go into court as a witness and say, “I saw Bloggs; that was him”. I am making the Government’s case here, in outlining where I believe there is a need to continue, sad as it is, with what I call the Diplock, or non-jury, courts.
What is perhaps more worrying and more interesting is something that I have not actually read, but my noble friend Lord Trimble told me about it. In today’s Irish Times it is reported that the Republic of Ireland, or Ireland as it is now correctly known, is also debating in both Houses of the Dail a proposal to bring in non-jury trials. That is for similar problems to those we have in the north. Much as I would love to see non-jury trials come back to my Province in the next year or two, by the time this order runs out, it depresses me to think that it will not happen. Therefore, I must support the Government’s action in extending the Act.
I, too, thank the noble Baroness for introducing this order in her usual clear and precise way. I want also to place on the record my thanks for the meeting yesterday with the Northern Ireland Office. The officials were extremely helpful and we had a useful exchange of views and ideas. However, it is frustrating and disappointing that the Government did not hold a full public consultation on the immensely important extension of this order.
The noble Baroness referred to a light-touch review being undertaken. It means that neither this Committee nor anyone else in Parliament can scrutinise the basis on which the Secretary of State has taken the decision to extend these provisions.
As we have heard, the primary justification by the UK Government for non-jury trials in Northern Ireland is to avoid paramilitary and community-based pressures on jurors. The Government say that it is difficult to judge the level of juror intimidation in Northern Ireland yet conclude that it remains prevalent, and indeed we have heard the noble Lord explain that. What is happening in Northern Ireland is extremely difficult, but should not be used as an excuse for the police not to look after jurors, although intimidation appears to be a growing problem. However, the Government have failed to provide any substantial evidence to this end. Can the Minister give examples or cite evidence that she may have as opposed to that of the noble Lord, Lord Glentoran?
We also cannot tell whether the Secretary of State considered any revisions to the scheme. For example, the United Nations Human Rights Committee, which monitors the implementation of the International Covenant on Civil and Political Rights, recently raised concerns regarding the use of non-jury trials and the lack of a sufficient appeal mechanism for challenging a decision by the Public Prosecution Service for Northern Ireland to hold a trial in the absence of a jury. The HRC has noted the lack of obligation on the director to provide “objective and reasonable grounds” when applying different rules of criminal procedure, which is contrary to Article 14 of the ICCPR. The right to legal challenge, particularly judicial review, is a basic right that was acknowledged by the Northern Ireland Office in its 2006 consultation paper regarding the replacement of the Diplock courts. It stated that,
“the DPP’s decision will be challengeable by means of judicial review. This will enable defendants to be sure that the decision has been taken properly”.
However, the actual legislation permits judicial review only in exceptional circumstances. Was this something the Government considered amending when reviewing the legislation?
We are further concerned that by continuing with provisions for non-jury trials in Northern Ireland, the Government are sending the wrong signals to the public. Mr Eddie McGrady, the SDLP MLA for South Down, told the House of Commons General Committee on Delegated Legislation:
“If we want to send the message of the return to normality, this is not the message to send. However the proposal is refined by using the phrase ‘non-jury trials’ … in Northern Ireland, they are seen as the continuation of the Diplock courts and the continuation of the oppressive system of justice”.
Northern Ireland is not experiencing an emergency as defined by Article 15 of the ECHR, and to continue to trial provisions in Northern Ireland as if there were an emergency perpetuates a lack of confidence in the rule of law. It may be argued that judges sitting alone can impartially and independently hold trial and therefore non-jury trials are not a breach of the right to a fair trial, but jury trials are inexorably linked to the common law system in legislation, so non-jury trials undermine this principle and weaken public confidence in the justice system and the overall peace process in Northern Ireland.
According to the criminal justice review, more than three-quarters of the population of Northern Ireland believes that juries are better at deciding cases in the Crown Court than are judges sitting alone. In the words of the review, jury trials reflect,
“a symbol of normality with all that means for public confidence”.
The HRC stated that the Government should carefully consider whether the situation in Northern Ireland warrants judicial procedures that are intrinsically different from the rest of the UK, with a view to abolishing such distinctions. The introduction of jury trials for all cases would be a way to acknowledge and commend the enormous political and social strides that have been made in the past decade, furthering reciprocal confidence between the people and the state. The original legislation provided for special measures to protect jurors. Will the Minister tell us how these are working?
Finally, although the Government will have decided to renew the non-jury trial provisions before the acts of decommissioning by loyalist paramilitaries last weekend, which are very welcome, do they not agree that non-jury trials must be looked at in a different context? Will the Minister consider withdrawing the order and replacing it with a provision to extend the provisions for just one year, as proposed by my noble friend Lord Carlile of Berriew?
The Merits of Statutory Instruments Committee, in considering the Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2009, said under the heading “Who supported the extension, and why?”:
“Lord Carlile met and discussed the issues with a wide range of practitioners and stakeholders, including political parties and interested NGOs throughout Northern Ireland. His conclusion, on the basis of the discussions he had, was that the case was made out to extend the provisions for a further year”.
That is not quite what the Minister said, although we know that the provisions in the order are for two years. Perhaps she would consider an extension for one year rather than two years, so that both she and the Committee can reflect on the changed circumstances more promptly. The extension under this order is profoundly regrettable.
I thank the Minister for the exposition that she has given of the case for this instrument. Like other noble Lords today, I am delighted to see her back at the Dispatch Box.
I strongly support the instrument in the terms in which it has been laid out. I wanted to pose a question but, having listened to the Minister, I have changed my mind about what the most burning question is. I had wanted to ask why the Government reasonably believed two years ago that it might be possible at this stage to dispense with non-jury trials as an element in the justice system in Northern Ireland. Listening to her, I accept that the reasons she has given provide an answer, in a way—we are dealing with unprecedented and unpredictable circumstances in the recent revival of republican violence.
I find myself with another question, though: why do the Government believe that two years from now they will not be coming back to this House and asking for a further extension? I want to develop a point made by the noble Lord, Lord Glentoran, when he referred to what is happening in the Irish Republic. In fact, the Dáil has moved beyond the point of discussion of this idea; last night the Criminal Justice (Amendment) Bill in Dublin passed its committee stage and it is expected to become law this week. It will mean, bluntly, that it will abolish the use of jury trial for a range of new offences, especially those concerned with organised criminality of the sort that we are dealing with.
We accept that much of this crime in Ireland has a cross-border basis. Is it realistic to suggest that the Irish Republic is moving towards a system where it accepts that it is not going to be using jurors because of the prevalence of intimidation in many of these cases while a few miles away in Northern Ireland, which is an equally fraught terrain, two years from now we will move completely back to jury trials? My suspicion and my fear—I regret this, because I understand exactly the underlying philosophy motivating what the Minister has said, and I accept the desirability of jury trials—is that, in such circumstances, it will not be possible two years from now unless things develop in Irish society in a way that is more benign than we might believe, or than the Irish Ministry of Justice seems to believe as it lays out the rationale for this major change in Irish law.
I have a question about the relationship between the Northern Ireland Office and the Department of Justice, Equality and Law Reform in Dublin. Going back to the days when Sir John Chilcot was the Permanent Under-Secretary, if not before, the relationship between those two offices has traditionally been a close and friendly one—perhaps closer and more consistently friendly than that with other departments of state in Dublin. I wonder whether the Minister is in a position to say anything about whether these current proposals have been discussed with the Department of Justice, Equality and Law Reform in Dublin in the light of what that department is doing with regard to the Irish Republic, where we are with that relationship and the type of discussions that go on.
I repeat, although with a heavy heart, that it would be irresponsible to do anything other than to accept the basis of the instrument.
I thank the noble Lords, Lord Glentoran and Lord Bew, and the noble Baroness, Lady Harris. I note the concerns of the noble Lord, Lord Glentoran, about which he has been very frank, and I will take them back. He quoted the recent dreadful attack on the Romanian people, and I agree with him that hate crimes and racism have no place in Northern Ireland; those who carried out the attack have no real place. Racist attacks are unacceptable and will not be tolerated. As the noble Lord knows, the police have arrested six people in relation to those attacks. Three have been charged, of whom two were released on court bail and a third was remanded in custody. The other three arrested have been released on police bail pending further inquiries.
I again take note of the observation made by the noble Lords, Lord Glentoran and Lord Bew, that the Irish Government are expanding the Special Criminal Court in Dublin to deal with organised crime cases. As noble Lords will know, the situation here is that under the 2007 Act we are enabled to take such cases to be tried without a jury where they are connected to paramilitaries or sectarianism and there might be a risk to the administration of justice. It all seems to be going in the wrong direction as far as our hopes are concerned.
I hope that noble Lords will bear with me because I believe that the noble Baroness, Lady Harris, deserves a fairly detailed response to several of her questions. I know that she was not satisfied, and certainly her colleagues in another place were not satisfied, with the length of replies to this order. She asked about the rationale for extension. Paramilitary-based and community-based pressures on a jury mean that there is still a risk of perverse verdicts in certain cases. These arrangements are designed to ensure that a fair trial can be provided in all cases where there are ongoing risks to the administration of justice. Where there are ongoing risks, the administration of justice might be impaired, and we must act.
The non-jury trial system targets the particular risks posed by cases involving paramilitaries and serious sectarianism. Sadly, these types of cases continue to arise in Northern Ireland, as shown by the recent murders of Kevin McDaid, Constable Stephen Caroll and Sappers Quincy and Azimkar. We are all aware that the level of threat in Northern Ireland from dissident republicans is now higher than when the Parliament considered these arrangements in detail in 2007 and concluded that they were necessary and appropriate.
If we are looking at the rationale for extension, risks to jurors remain significant. Even with the changes that have been made to the jury system and the ability to hold non-jury trials in certain cases, I am aware of four reported cases of attempted jury intimidation. In one case a juror had to be discharged and in another a whole jury was discharged. Noble Lords referred to witness intimidation; 159 such cases were recorded by the PSNI in 2008. We know that intimidation is significantly underreported, so the real figure is likely to be much higher.
Intimidation is completely unacceptable. It remains a significant issue that the Government are concerned that removing the ability to try certain cases without a jury would expose jurors to a risk of intimidation that is completely unacceptable. If paramilitaries are prepared to use these tactics against witnesses in order to frustrate police investigations and prosecutions, it seems to me that they would be willing to intimidate jurors as well as witnesses. Sadly, Northern Ireland society remains vulnerable to intimidation. People live in small, close-knit communities, as noble Lords have said, where it is much easier to identify those on jury service.
The number of non-jury trials, as I have said, is diminishing. There were 125 Diplock cases in the last two years of that system, which represents 6 per cent of Crown Court cases. In the most recent two years, the DPP has issued 41 certificates for non-jury trial, and 1 per cent of Crown Court cases have been heard been heard without a jury. This is a welcome change and I hope that the numbers continue to fall, but the fact that there have been 41 cases in two years where the DPP has been satisfied that there was a risk of the administration of justice being impaired if they were to be tried before a jury indicates that there remains a significant problem that the Government must address.
The noble Baroness, Lady Harris, asked what right of appeal exists to the DPP’s decisions. She will know that decisions are judicially reviewed where there has been bad faith, or in other exceptional circumstances. However, a defendant will suffer no detriment from being tried without a jury—in some cases, it may even be fairer—and we see no need for other avenues of appeal. Perhaps I could write to the noble Baroness to expand on that.
The noble Baroness also asked whether we were considering amending the legislation. The 2007 Act does not permit amendment, only extension, but the Government have committed to examining the system in detail, with a public consultation, before the next extension in 2011. This issue can be considered then.
The noble Baroness asked about judicial review of juror protection measures. Juror protection measures, including juror anonymity and the abolition of peremptory challenge, were challenged in the McParland judicial review. The court rejected the challenge and ruled that the jury provisions in the 2007 Act did not violate Article 6 of the ECHR. The jury made clear in McParland that the new arrangements pursue a clear and proper public objective and represent a fair balance between the general interests of the community and the personal rights of the individual.
The noble Baroness asked whether the measures could be extended for one year. Our response is that it is not possible under the Act. We have subsequently spoken to the noble Lord, Lord Carlile, who confirmed to us that he supports the extension for two years.
The noble Baroness said that returning to jury trial would be a mark of a return to normality, with which we of course agree—I said in my opening remarks that we would want to return to it as soon as possible. We are on a journey towards a more normal Northern Ireland, although many aspects of the past continue. We all hope that these measures can be ended as soon as circumstances allow.
The noble Lord, Lord Bew, asked why we thought that circumstances would have changed in two years and whether two years would be enough. We do not know at this stage—it is a question of whether the glass is half empty or half full. We hope that the situation is more optimistic in two years’ time. We shall need to consider the situation carefully as part of a thorough review, which will include the views of the public. By 2011 there will be a greater body of evidence on which to make the decision. We talked about the light-touch review in January or February of this year, but the thorough review, in which we consult the public and stakeholders, will give us a clearer picture of the risks and the opportunities involved.
Children Act 1989 (Higher Education Bursary) (England) Regulations 2009
Considered in Grand Committee
That the Grand Committee do report to the House that it has considered the Children Act 1989 (Higher Education Bursary) (England) Regulations 2009.
Relevant Document: 18th Report from the Joint Committee on Statutory Instruments.
These draft regulations set out arrangements for payment of a bursary to care leavers who are over 18, referred to in the Children Act 1989 as “former relevant children”, who go on to pursue a course of higher education. Section 21 of the Children and Young Persons Act 2008 requires local authorities to pay a higher education bursary to those young people, and these draft regulations deliver the commitments that we made during the passage of the Children and Young Persons Bill.
The draft regulations provide for four aspects of these arrangements. Actually, I am not sure whether technically they are still draft regulations when they are laid. If they are, then I shall carry on saying “draft”. They set the amount of the bursary at £2,000 in total for each eligible young person, prescribe the meaning of “higher education”, specify arrangements in relation to the timing of payments of the bursary, whether it is paid as a lump sum or by instalments, and specify the circumstances in which payments can be withheld or recovered by the local authority. The bursary is a key part of the Government’s strategy for improving outcomes for care leavers.
Currently, only 7 per cent of former relevant children aged 19 or over go on to higher education. If we want to see improvements in participation rates and in the number of these young people who go on to complete their courses, we must address the financial disadvantages that many of them face. Research suggests that students from a care background leave university with an average of £2,000 more debt than their peers. The bursary will ensure that those care leavers who go on to higher education receive additional financial assistance. Many local authorities already provide such support, but not all do. By placing a duty on local authorities to pay eligible care leavers a £2,000 bursary, we will remove this financial disadvantage in future. Since April 2008 we have provided local authorities with the money to do this through their area-based grant.
In drafting the regulations we have been at pains to ensure that the arrangements for payment of the bursary are as straightforward as possible. We have therefore aligned the meaning of “higher education” for the purpose of determining eligibility for the bursary with the definition in regulations made under Section 22(1) of the Teaching and Higher Education Act 1998. Section 4(4) of the Act was amended to make it clear that the local authority must, as far as is reasonably possible, consult the young person and give due consideration to his or her wishes before making a decision about payment of the bursary.
There are two limitations placed on the timing of payments. First, where the young person and local authority agree that it would be more appropriate to pay the bursary in a lump sum, it should be paid by the end of the first term. Secondly, where the bursary is to be paid in instalments, the first instalment must be paid during the first term of the course and the final instalment must be paid before the end of the course.
These regulations build on the existing provisions under Section 23C of the Children Act 1989. The new bursary must be paid in addition to any assistance that the young person may be entitled to under Section 23C(4) to meet his or her welfare needs. The level of support provided varies widely between local authorities. These regulations will reduce that differential by creating an additional requirement on local authorities to provide financial support. I commend them to the Committee.
I thank the Minister for introducing this order because it gives us an opportunity to speak about a group of people often left behind in society. The needs of care leavers as they progress into higher education and eventually into employment are a concern for us all. These young people are disadvantaged from the start due to a comparative inability to finance their studies. Given the high level of care leavers not in employment, education or training, this issue demands our full attention. The Government’s own figures on the outcomes for looked-after children show a staggering failure to give care leavers even a fraction of the opportunities that we take for granted for our own children.
As the Minister acknowledges, only 7 per cent of care leavers are on a course of higher education at 19. Given the Government’s blanket target of 50 per cent of young people to attend university, this is a startling figure. Equally sad is the fact that 29 per cent of former care leavers are NEET at 19, which is more than double the national figure of 13 per cent. It is encouraging that the Government have recognised the problem. The higher education bursary will give relief to many care leavers struggling under higher education debt without the financial support that their contemporaries receive from their families. However, the measure seems to be too little, too late. It is being introduced as the Government’s term comes to an end, and by a government who heralded in 1997 the words, “Education, education, education”, but after 12 years in power they have failed to address the disparity of outcomes experienced by care leavers and their contemporaries. Does the Minister agree that this has been a dereliction of governmental responsibility?
There are some concerns about a lack of clarity about eligibility for the bursary, and as the money is available only to those who have spent 13 weeks or more in care, could the Minister make it clear whether this must be consecutive weeks or just 13 weeks in total? If it is 13 consecutive weeks, will there not be an incentive for local authorities to remove children from care prior to them hitting that threshold? Will the higher education bursary be available to young people who have had a special guardianship order placed on them? If not, why is that? Will the Minister also clarify the age limit for the bursary? As it stands, care leavers are classified as “former relevant children” between the ages of 18 and 21, but a young person over 21 who is still receiving support with education and training from a local authority will be a former relevant child until the end of the programme of study. Does this mean that young people who are over 21 qualify for the grant?
I would like some more clarity on the figures involved in these regulations. It would be interesting to know where the nicely rounded figure of £1 million per annum has come from. CAFCASS’s figures show that the demand for care places in March 2009 was the highest recorded in a single month, while care demand was up 3.6 per cent in 2008-09 from the year before. Does the £1 million take into account fluctuating numbers of care leavers at higher education age? Where will the £1 million come from? On what have the Government based the view that there will be a 10 per cent increase year-on-year of care leavers going on to higher education? The Government’s own figures utterly refute this. Is it responsible of the Government to project their spending according to their own hugely optimistic projections for care leavers entering higher education?
Similarly, it would be helpful to know what costs may be involved in marketing the scheme and other transitional costs. How will care leavers be made aware of the higher education bursary? Will that come out of the £1 million or will unexpected costs be involved? It is also of concern that the figure for the bursaries themselves, £2,000, comes from research undertaken four years ago. That may have been the excess debt that care leavers were saddled with then. Can the Minister guarantee that the sum is still appropriate and that it will be regularly reviewed?
Under Regulation 4, the local authority has the power to decide on the method of payment of the bursary. Why is this the case? What is meant by:
“Before making any decision about payment of the higher education bursary the local authority must, as far as reasonably practicable, ascertain and give due consideration to the wishes and feelings of the former relevant child”?
Is there a case for allowing care leavers themselves to decide? We also seek guarantees that this grant will not detract from the local authority’s responsibilities under Section 23. Authorities must not claim that the grant covers costs such as housing assistance that they might otherwise be obliged to provide. Will the Minister offer an assurance that this will not occur?
While it is important to deal with debts incurred by care leavers during their higher education, we must not forget that it is in terms not merely of a lesser ability to pay for university that care leavers are disadvantaged. My honourable friends Michael Gove and Tim Loughton have spoken recently about the disparity of attainment at GCSE level between children in care and their contemporaries. Under this Government, the gap has grown from 46.3 per cent in 2005 to 49.4 per cent in 2008. Will the Minister outline what the Government are doing to ensure that schools give particular attention to the education of children in care, and that universities consider the potential of looked-after children whose grades may have been achieved in circumstances of extreme difficulty and may not accurately reflect their abilities?
While we on these Benches welcome the higher education bursary, the Minister should assure us that everything possible is being done to ensure that the attainment gap between care leavers and their contemporaries is bridged. I shall listen carefully to her response.
I, too, thank the Minister for introducing the regulations. We warmly welcome moves for children who have spent time in care to be given resources to help overcome any disadvantage in relation to their peer group. The evidence set out in the impact assessment shows clearly that looked-after children, as an identifiable cohort, have lower prospects of educational achievements.
Some 13 per cent of looked-after children obtain five good GCSEs compared with 62 per cent for all children, and 64 per cent obtain at least one GCSE compared with 99 per cent of all children. This is proof positive that these young people need additional help if they are to have a full chance of success in life and in the community.
The figure particularly relevant to this order is that 6 per cent of care leavers go on to university—we have heard also 7 per cent: it is of that order of magnitude. That is dramatically below the anticipated 40 per cent to 50 per cent of young people who progress into one form or another of higher education.
It is estimated that around 400 young people will be eligible for this bursary, with, as we have heard, the Government making £1 million available to local authorities for the purpose. The impact of this funding is likely to be modest. As the noble Baroness, Lady Verma, said, it is not just funding that deters these young people from going on in their educational life. Will the Minister reassure us that the cost of administration and bureaucracy for this bursary is proportionate? On quick calculations based on O-level maths from very many years ago, I estimate that around 20 per cent of available funding will be spent on administration, which seems high.
The consultation on the regulations elicited only 23 responses, which is a very small group on which to base proposed regulations. Nearly half the respondents expressed doubt in one form or another about the flexibility for local authorities to manage the payments. Will the Minister clarify what response the Government have made to the doubts that were raised?
We note that the benefits of this proposal will outweigh the costs if it results in five additional care leavers obtaining degrees. Is the aim primarily to reduce drop-out rates, as the target seems to suggest, or to encourage participation?
Might the bursary also be available to young people taking up any vocational programmes of equivalent level at further education colleges? It is mentioned in the Explanatory Note that it takes into account,
“full-time and part-time courses and some courses delivered by distance learning”.
However, if it does not apply to FE colleges, has any thought been given to a similar level of financial assistance for those going on into more skills-based further education? The bursary has been set at £2,000. How and when will this amount be reviewed?
I repeat our support for any innovative measures that give every possible encouragement and opportunity to young people leaving care. I look forward to the Minister’s reply.
These are very welcome regulations. It is rather nice to think that these things are on the move. I thank my noble friend for her exemplary introduction. After looking at the Explanatory Notes and the regulations, how shall we define a pathway plan? What will be its structure? Who will be responsible? How will it be of advantage to the proposed student? Do we know what sums of money are involved for a bursary? I think I have heard that the sum will be only £2,000, which will be a ceiling and will be fixed. Are there any examples of the likely and typical amounts that may be paid under the proposed ceiling? Are there any examples that can be furnished later by letter?
Finally, I know that my noble friend is not a Minister in this Committee for the principality and the matters of the principality, but I ask in curiosity whether there is a similar scheme for Wales. I hope that there is because it clearly will be advantageous for those young people moving into higher and further education. If there is not, why is there not and how might the Minister be influential in the principality?
I am grateful to noble Lords for the enthusiasm that they have shown for this statutory instrument. I shall attempt to answer all the questions. If I fail to pick up on a point, I will be very happy to write further to noble Lords. The noble Baroness, Lady Verma, asserted that this is too little too late and represents a staggering failure. I should like to put on the record that this represents another step in a long list of extremely significant and important commitments that this Government have made to improving outcomes for looked-after children. For me, as a bit of a techie who is sometimes interested in numbers, it is quite remarkable that when the party opposite was in government it chose not even to measure the outcomes for looked-after children. Outcomes became measured only in 2000. I fully appreciate her interest and commitment to the well-being of looked-after children, but I would not take any lessons from the party opposite on how to promote improvements in outcomes.
However, if we look at improving outcomes for looked-after children in comparison with the rest of the child population, I am certainly not satisfied that the outcomes are increasing quickly enough. I certainly do not want to see a situation where the number of young people going into higher education does not increase in the way that we hope to see. But I would look to the evidence so far, from which we know that in 2004 about 5 per cent of care leavers went on to higher education. Now, only a few years later, that has increased to 7 per cent, which must give us a great deal of encouragement. We will ensure that we are tireless in our work to drive up that statistic further.
The noble Baroness, Lady Verma, wanted to know whether the 13 weeks needed to be consecutive. We are talking about the definition of “looked-after child”, which is clearly set out legally; it does not require consecutive weeks. The special guardianship entitlement is based on looked-after status. Special guardianships do not represent looked-after status, so unless young people subject to special guardianship formerly had looked-after status, that would not count towards their 13 weeks.
We are talking about ensuring that a course must start before the young person reaches the age of 26. Care leavers might find that they do not necessarily follow the traditional path of going to school in the normal way, doing A-levels and going on to university. Sometimes they come in and out of education, so it is important that the age limit is there.
A question was asked on the cost of marketing and the £1 million. Marketing would not be necessary. Care leavers are entitled to intensive and important support from the local authority care-leaving service. They have personal advisers whose job it is to help them; those advisers will ensure that they are aware of the bursaries.
I have just been given some clarification. Sorry—the course must start on or before the 25th birthday, not the 26th birthday.
The noble Baronesses, Lady Verma and Lady Garden, and my noble friend Lord Jones asked about the value of the £2,000. As I said and as noble Lords picked up, it was based on the outcome of research comparing the debt of care leavers when they finish higher education courses with that of the normal population. As the Committee knows, the extremely comprehensive reform programme for looked-after children, Care Matters, has an annual stocktake that Ministers are responsible for ensuring. The first will take place in October, and annually it will look at the programme of support and the promotion of improved outcomes for looked-after children. The £2,000 bursary and its effectiveness will form part of the Care Matters stocktake, so that will be an important review point.
The noble Baroness, Lady Verma, was concerned about the local authority method of payment. As I said, we need to be clear that former looked-after children can be some of the most vulnerable young people. It is important that the methods of payment are agreed with them—for example, whether it is their preference to have payment in one lump sum or spread over a period. The noble Baronesses, Lady Verma and Lady Garden, were concerned about additional support—whether the additional £2,000 bursary would be used in the place of other support.
With regard to FE, for example, there are clear instruments that local authorities use, Section 23 being one of them. We have been clear in the guidance that this is in no way intended to replace any other duties that local authorities have to support care leavers. Local authorities support care leavers in a host of different ways; they provide accommodation for holidays and support for books, computers and other ancillary items that care leavers might need when going on to education. This is not meant to undermine that at all, so I can offer the noble Baroness, Lady Verma, in particular the assurance that she was asking for.
What are the Government doing to promote improved educational opportunity for looked-after children? Noble Lords are right—it is not just about a bursary or whether or not young people consider that university is for them; it is also about whether they can achieve the academic qualifications necessary to take that step.
For example, we have been working hard to test out the new role of a virtual head teacher, which has been piloted. Local authorities can appoint a virtual head who takes over the role of co-ordinating the educational support and service for looked-after children in an area and manages it like a school, ensuring that those children get the one-to-one tuition that they are entitled to and that each school that they attend has an appointed special teacher who is their point of contact. The virtual head teacher makes sure that all the good elements that exist are working in one direction towards driving up achievement in the interests of looked-after children. That is making a big difference.
Then there are other issues such as promoting better attendance and making sure that young people who are in care have stability of placement. That is what the Care Matters programme is ultimately all about: promoting stability of placement so that young people do not move around or end up moving school just before their exams and so on. As the noble Baroness, Lady Verma, and other noble Lords are well aware, these are all part of an integrated approach—almost an holistic approach—to ensuring that we drive up educational standards for looked-after children.
The noble Baroness, Lady Garden, talked about the small numbers and whether the impact of the £2,000 bursary was cost-effective. Any regulations that we bring forward need to be looked at in an impact assessment, and we have taken advice from our chief economist. This area is very new and it is difficult to assess the economic impact of something involving such small numbers, but we have every reason to believe that the bursary will help the small numbers involved. Because of that, we are committed to taking it forward. As I have said, in the annual stocktake we will look forensically at the impact that all these initiatives are having on the outcomes for looked-after children.
My noble friend Lord Jones asked about the devolved Administrations. As I understand it, there are similar support packages in place for care leavers in Wales. Wales will choose to manage the support for looked-after children and care leavers in the way that is most suitable for young people in Wales, and I know that it works hard to ensure that care leavers get the best possible opportunities.
There are real requirements on care-leaving services to ensure that young people have pathway plans and a personal adviser who will help them to enter education, training or work. As a corporate parent, the local authority makes a very important contribution in ensuring that the young people whom it parents have what we all want for our children—a decent future, a career or a job, a home, and opportunities for the future. That is what these pathway plans are all about.
With those remarks and the promise to look carefully at Hansard to ensure that I have not missed any important points, I hope that the Committee will support these new regulations.
Safeguarding Vulnerable Groups Act 2006 (Regulated Activity, Miscellaneous and Transitional Provisions and Commencement No. 5) Order 2009
Considered in Grand Committee
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.
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.
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.
That completes the business before the Grand Committee today. The Committee stands adjourned.
Committee adjourned at 6.19 pm.