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Protection of Vulnerable Groups (Scotland) Act 2007 (Consequential Modifications) Order 2011

Volume 724: debated on Tuesday 25 January 2011

Considered in Grand Committee

Moved By

That the Grand Committee do consider the draft Protection of Vulnerable Groups (Scotland) Act 2007 (Consequential Modifications) Order 2011.

Relevant document: 4th Report from the Joint Committee on Statutory Instruments.

My Lords, I formally welcome the noble Baroness, Lady Jones of Whitchurch, to her new post. I look forward to working with her as I did with her predecessor, the noble Baroness, Lady Morgan of Drefelin, on issues such as today’s debate and more generally.

The order makes amendments to support new vetting arrangements in Scotland that were created under the Protection of Vulnerable Groups (Scotland) Act 2007, to which I will refer from now on as the 2007 Act. Scottish Ministers have recently announced that their new scheme will be launched on 28 February 2011. The order is required to help them with the successful operation of their new arrangements and to make sure that we have the sharing of information across borders. Specifically, the order will enable the Independent Safeguarding Authority to provide information to Scottish Ministers for the purposes of their functions under the 2007 Act, and makes a necessary amendment to the Data Protection Act 1998.

This instrument focuses on amendments to the Safeguarding Vulnerable Groups Act 2006 and, as I said, the Data Protection Act 1998. The changes that the order would make to both pieces of legislation are of a technical nature and are being sought so that the scheme created under the 2007 Act can commence as intended, with effect from 28 February.

If I may, I will say a few words about the scheme created under the Safeguarding Vulnerable Groups Act 2006, which would apply in England and Wales, which is commonly referred to as the vetting and barring scheme. Last May, the Government stated their intention to,

“review the criminal records and ‘vetting and barring’ regime and scale it back to common sense levels”.

On 15 June last year, the Home Secretary announced that the intended start to registration would be halted so that the scheme could be reviewed with the aim of making it more proportionate. On 22 October 2010, we announced the terms of reference for the review of the vetting and barring scheme, alongside those for the criminal records review. I am aware that many noble Lords will be keen to know the outcomes of these reviews and I can confirm that the Home Secretary will announce those outcomes very soon. This announcement will propose changes to both the vetting and barring scheme and criminal records regimes, but I am afraid that today I am not able to provide more details or pre-empt the Home Secretary’s announcement.

I would like to make clear that the changes this order makes do not affect the review of the vetting and barring scheme and should not be seen as an indication of any changes to vetting practices within England and Wales. We do not wish to interfere with the wishes of the Scottish Government to proceed with their scheme as planned and so we are making these changes to existing legislation solely to ensure that there are no barriers to the launch of their scheme on 28 February.

Turning to the detail of the order, noble Lords will note that it makes amendments to two Acts of the Westminster Parliament. The first deals with the provision of information by the Independent Safeguarding Authority, otherwise known as the ISA, to Scottish Ministers for the purpose of their functions under the 2007 Act. The second relates to an amendment to the Data Protection Act.

The ISA has, since 2009, been the central body responsible for the barring of unsuitable people from prescribed work with children or vulnerable adults across England, Wales and Northern Ireland. The work of the ISA is focused on making decisions as to the suitability of certain prescribed individuals to work with vulnerable groups and barring those for whom there is a strong indication that they pose a risk to those groups. Its work involves a combination of considering referrals from bodies such as employers, local authorities and voluntary organisations, and looking at those individuals for whom there are grave concerns. It also holds the responsibility for the barring of individuals who have been either convicted or cautioned for a limited range of serious offences.

It is worth emphasising that the decision-making powers of the ISA extend only to England, Wales and Northern Ireland. A separate body, Disclosure Scotland, an executive agency of the Scottish Ministers, has responsibilities for barring decisions in Scotland. The legislation in each of the home territories recognises the bars imposed in the others. However, in order to ensure that the decision-maker in the relevant jurisdiction has all pertinent information available to it, it is vital that the ISA and Disclosure Scotland are each able to make relevant information available to the other where necessary.

This order therefore makes it possible for information relevant to the barring process, which the ISA has gathered, to be shared with Scottish Ministers. This sharing of information cross-border is necessary for the effective working of the Scottish scheme and, particularly in light of mutual recognition of bars, we believe that it is right for the ISA to provide Scottish Ministers with this information.

The second provision, the amendment to the Data Protection Act 1998, extends the current protection that Section 56 of this Act gives to individuals by covering records held under the 2007 Act. This will, for example, protect individuals who have obtained criminal records data under the 2007 Act from Scottish Ministers by use of a subject access request from being forced to reveal that data to an employer. As such, this is an important safeguard which is already in place in relation to the barring schemes in England and Wales and in Northern Ireland and we support the amendment which will give individuals in Scotland the same protection.

The order is drafted so that it would come into force on the day after the day on which it is made. If Parliament approves this order, we intend to have the order come into force in time for the launch date of the Scottish 2007 Act scheme. While the changes this order brings are of a technical nature, it is important that we do not stand in the way of the devolved Administrations exercising their right to govern in accordance with their stated wishes. It is in that spirit that I commend this order to the Committee. I beg to move.

I thank the Minister for his kind wishes and look forward very much to working with him constructively in the future. I thank him, too, for his explanation of the technical nature of the order and the purpose behind it.

The order builds on the important legislation introduced by the previous Government across the UK in response to the Bichard inquiry, which followed the tragic murders in Soham in 2002. As we heard, the Protection of Vulnerable Groups (Scotland) Act 2007 was Scotland’s response to the recommendation for a registration scheme for those working with children and vulnerable adults. We fully support this consequential order and the intentions behind it. Again, I understand that the Minister has underlined its technical nature and that some of the changes and information we request might be more pertinently directed to the Home Secretary when further announcements are made after the review.

In advance of that, I have two questions that the Minister may be able to answer today. First, given the enormous sensitivity of the information contained in the children’s and adults’ barred list, what steps are in place to guarantee the confidentiality of the information provided by the Independent Safeguarding Authority and Disclosure Scotland to Scottish Ministers? Secondly, how is it proposed to store the information? I am sure the Minister will be aware of the stories that blight all Governments about such sensitive information going astray. I would be grateful if he would confirm that proper protection is in place for the storage of that information.

Secondly, the regulatory impact assessment refers to the need for a post-implementation review to measure the time taken to process applications. As the Minister will know, this has been an ongoing source of frustration, particularly for those applying for jobs working with children. It is also potentially frustrating for volunteers who find that their attempts to help out with fairly simple tasks in schools and youth clubs are put on hold while their applications are processed. It may be that the Home Secretary can comment on this, but in advance of that, can the Minister say whether there is anything in the order that might lead to further delays in processing these applications?

Can I ask my noble friend a couple of points on these measures? First, he explained in some detail how the order will allow Disclosure Scotland to obtain information from the Independent Safeguarding Authority in England. Is mirror legislation already in place to allow the ISA to obtain information from Disclosure Scotland? He said that it would be, but I do not know whether it is already. Secondly, is there any way of distributing the costs of obtaining this information between the different devolved authorities? It is an advantage that each authority has access to the other’s material, but there is a danger that it could be interpreted that there should be a monthly update and they would swap the latest information. In that way, each would have an up-to-date database, but again there is the question of security, which has also been raised by the noble Baroness, Lady Jones.

My Lords, I, too, thank the Minister for explaining this order and add my welcome to the noble Baroness, Lady Jones of Whitchurch, to her new portfolio.

I have a few questions. In the past, there has been a problem with the transfer of information across borders, so it is welcome that this matter is being addressed. I wonder why the amendments made to the Data Protection Act 1998 by the Safeguarding of Vulnerable Groups Act 2006 were not made by the Protection of Vulnerable Groups (Scotland) Act 2007, and have not been made until this Parliament. I wonder why the previous Government did not take that opportunity. Perhaps I should not be asking the Minister but addressing my question to the previous Government. I suppose that taking nine months to get round to this matter is not bad, given the major issues that require this Government’s attention. I wondered whether the provisions of this instrument were a matter for public consultation. However, I noticed that paragraph 8.1 of the Explanatory Memorandum mentions that there was no such consultation, despite the fact that there were two general consultations on the overall protecting vulnerable groups scheme.

Reflecting something that the noble Duke has just raised, how frequently will the Independent Safeguarding Authority be expected to report to Scottish Ministers and has any timetable for reports been established?

Finally, I refer again to something that interested me in paragraph 8.1 of the Explanatory Memorandum. It says:

“The Scottish Government’s response (April 2010) to the second consultation listed changes made as a result of the consultation, which included dis-applying some barring offences around ‘host parents’ to provide more local discretion”.

I wonder whether the reference to “host parents” relates to sleepovers. Many children enjoy going to stay with their friends overnight, although in my day sleepovers were called pyjama parties. Is there any plan to follow the Scottish example in England? I know there is a feeling that it should be up to the child’s parents to appoint the child’s friend’s parents in loco parentis. It is felt that parents should take responsibility for ensuring that the friend’s parents are suitable people to have their child under their roof overnight. If that is the case, how will this provision apply to foster parents in Scotland? Does the Minister know whether foster parents will have the same discretion? Furthermore, is there any plan to follow that example in England? I know that there is a lot of concern among foster parents that they do not have the same discretions as parents have for their own children and that sometimes they have to go running to local authorities to obtain permission for things that they should perfectly well be able to decide for themselves.

My Lords, first, I am grateful for the welcome from all noble Lords for the thrust of this order and for their support for it. I fear that I shall need to take advice on some of the specific questions asked by my noble friend Lady Walmsley—particularly about the nature of the regime as it applies in Scotland—and come back to her, because I am afraid that I am not fully sighted on that. I should add that we have all had pyjama parties recently.

My noble friend the Duke of Montrose asked about mirrored arrangements and reciprocity. I understand that the arrangement by which information will be passed from Scotland to the other countries is already in place. However, I shall check that and, if I am wrong, I shall write to my noble friend correcting myself.

I agree with the noble Baroness, Lady Jones of Whitchurch, about the importance of data protection. In looking at these measures, I wanted to satisfy myself as much as I could that proper safeguards would be in place, because, as the noble Baroness said, we are all very conscious of stories about little sticks going missing. I am told that strict safeguards are in place and that Disclosure Scotland also adheres to information security protocols set by a body called the CESG and the Government’s National Technical Authority for Information Assurance. None of the information held by Disclosure Scotland can be stored or transmitted by CD, memory stick or any removable storage device, and no information can ever be transferred to or held on a laptop. I hope that that provides some security on that point.

There was a question about costs. The setting of fees is a matter for the Scottish Government, and fees for vetting in England and Wales would be part of the review announcement that will follow in due course from the Home Secretary. I will follow up the other points raised by the noble Baroness, Lady Jones of Whitchurch. As she said, they are more directly relevant to the Home Secretary, but if I need to come back to her with a more detailed response, I will do so.

Overall, I am grateful for the support expressed for this measure. It is technical in nature but marks an important move forward to help our colleagues in the Scottish Government, and therefore I have great pleasure in commending it.

Motion agreed.