Motion to Approve
That the draft Order laid before the House on 20 May be approved.
Relevant document: 53rd Report from the Secondary Legislation Scrutiny Committee
My Lords, as noble Lords will know, the Disclosure and Barring Service—the DBS—makes considered decisions regarding whether an individual should be barred from engaging in regulated activity, which is close, regular work with children, vulnerable adults or both in England, Wales and Northern Ireland. The DBS also maintains the lists of individuals it has barred from undertaking regulated activity with children or with adults. Individuals can be barred if they are convicted or cautioned for a relevant offence, such as sexual or violent offences, or if they are referred by their employer who is concerned that the individual poses a risk of harm to children or vulnerable adults.
Barring plays a key role in safeguarding children and vulnerable adults from those who pose the greatest risk of doing them harm. It is vital that employers are supported in making informed decisions about an individual’s suitability when they recruit for the most sensitive roles. As noble Lords will know, it is an offence for a barred individual to work or seek to work in regulated activity. This order relates to the process by which an individual may be barred from working with children or vulnerable adults and provides for greater recognition of barring decisions taken in other UK jurisdictions.
The order gives effect to provisions under the Safeguarding Vulnerable Groups Act 2006, also known as the SVGA, to ensure that barring decisions made under the law in Scotland are recognised by the DBS in England and Wales in cases where no additional information comes to light. In particular, an individual whom Disclosure Scotland decided not to bar cannot subsequently be considered for barring in England and Wales on the basis of the same information. To give effect to these provisions, the order specifies that the Scottish Ministers are the “relevant Scottish Authority”, and the lists maintained by the Scottish Ministers under the Protection of Vulnerable Groups (Scotland) Act 2007 are “corresponding lists” to those lists of barred individuals maintained under the SVGA.
As noble Lords will know, criminal records disclosure and barring are devolved matters. As such, it is important that the DBS and its Scottish counterparts work together and recognise each other’s decisions. The existing framework provides that an individual who is barred under Scottish legislation is also barred in England and Wales and vice versa. Therefore, an individual who has been barred in one jurisdiction cannot work with vulnerable groups by seeking employment in another.
The order gives practical effect to that recognition and ensures that effective safeguarding is maintained across the UK. This avoids the possibility of a “double jeopardy” situation for the individual where the DBS might bar an individual whom Disclosure Scotland had previously decided not to bar on the basis of the same information. It is already the case under Scottish law that Disclosure Scotland is not required to consider an individual for barring who has already been considered by the DBS.
A similar statutory instrument will be made by the Secretary of State under corresponding Northern Ireland legislation to ensure consistency across all three jurisdictions. As a result, each barring body will recognise barring decisions taken by another.
I hope that that is a simple explanation that noble Lords will feel able to support, and I commend the order to the House.
My Lords, I thank the Minister for the explanation of the purpose and content of this draft order, to which we are not opposed. Having said that, I hope that the Minister feels more confident than I do that she fully understands it. Much of what I want to say is taken unashamedly from the recent report from the Secondary Legislation Scrutiny Committee, and also, in part, from the wording of the Explanatory Memorandum. I will also raise a couple of points in the light of what was said when the draft order was considered in the Commons.
The Safeguarding Vulnerable Groups Act 2006 sets out the arrangements under which the Disclosure and Barring Service may bar individuals from certain roles which involve working with children or vulnerable people in England and Wales. It also includes provisions setting out the relationship between the barred lists maintained under devolved legislation in Scotland and Northern Ireland. Section 74 of the Protection of Freedoms Act 2012 amended the 2006 Act to place restrictions on duplication with the Scotland and Northern Ireland barred lists. The purpose of this order, as I understand it, is to implement that statutory restriction with regard to Scotland, so that the barring lists of England, Wales and Scotland do not duplicate each other. The restrictions on duplication under the 2012 Act apparently arise from concerns that double barring might create a further burden on individuals who wish to challenge their inclusion on the barred list, as they would need to pursue separate appeal and review processes in each jurisdiction. Duplication also gives rise to the potential that, if an individual’s challenge was successful in one jurisdiction but not another, he or she would remain barred across the whole of the United Kingdom.
The Secondary Legislation Scrutiny Committee asked why, given that the restriction on duplication was introduced in 2012, it was only now being implemented. The answer from the Home Office was that responsibility for the Disclosure and Barring Service was changed to the Home Office following the passage of the 2012 Act, and the delay in bringing the measure forward was an oversight. What changes in processes or procedures have now been put in place to prevent what appears to be a seven-year oversight happening again in the Home Office? It does not inspire confidence in governance arrangements, which one would have thought might have been of some concern to the Home Office board—assuming that body still exists.
In its report on this draft order, the Secondary Legislation Scrutiny Committee said that the Disclosure and Barring Service did not have the technical capability for the automatic exchange of information with Scotland. The committee went on to say that, while it had no information about the efficiency or effectiveness of the current cross-checking system, it did have concerns that it appeared to depend on the vigilance of officials who operate the lists. Could the Minister comment on that point from the committee about the current arrangements and the efficiency and effectiveness of the current cross-checking arrangements? Also, what assurances, backed up by hard evidence, can the Government now provide?
The Committee also reported that a new IT system is planned, to make such cross-checks automatically. It seems that the current IT contract has been terminated, but that there is an extension notice until January 2020 to ensure continuity of services while the procurement process transitions to new suppliers. The committee went on to say that the Home Office could not offer a clearer indication of when the capability to undertake automatic checking of Scotland's barred list would be in place.
Continuing, the committee suggested that the House might wish to seek assurances, which are what I am now asking from the Government, about what mitigation is in place to offset any risk that information about individuals on a barred list in one jurisdiction may inadvertently fail to be shared with another jurisdiction. Also, will the Government provide further information about when and how the new IT system will achieve compliance with the requirements of Section 74 of the Protection of Freedoms Act 2012, to which I referred earlier?
During the debate on this order in the Commons, the shadow Minister expressed her concern that, if the safeguarding of vulnerable adults and children is to be taken seriously—as I do not doubt for one moment that the Government do—we need to bear in mind that some cases of child abuse, trafficking and rape appear to be being dealt with by out-of-court disposal orders, which apparently means that they are omitted from DBS checks. The Minister in the Commons did not appear to respond to that point. Could the Minister now respond on behalf of the Government? Are there examples of such serious offences being dealt with by out-of-court disposal orders—and, if so, do the Government take the view that there is no potential danger in excluding them from DBS checks?
A further point was raised by a Conservative MP when this order was debated in the Commons. He drew attention to the fact that people posing a risk to children was an international problem and not simply a UK problem, and asked what progress had been made in the exchange of information with other countries. The same MP also asked about the length of time taken to get DBS clearance, and referred in particular to teachers who were new to a school, or newly qualified, because in the past it had led to such teachers not being able to take up their position. He asked for an assurance that the time taken to give clearance to essential public workers in particular was not an ongoing problem. The Minister in the Commons promptly gave that assurance, but gave no information on how long such clearance was now taking, and said that the list was,
“reducing at an acceptable rate”.—[Official Report, Commons, 18/6/19; col. 160.]
That is not the same as saying that clearance times are now deemed to be acceptable. Can the Minister provide information on how long DBS clearance is now taking? If it is above an acceptable time span, what is the target figure?
Finally, the Minister in the Commons said that she would be writing to Tim Loughton, the MP concerned, on the issue he had raised about exchange of information with other countries. I too am interested in that point, and I would be grateful if I could be sent a copy of the Commons Minister’s reply.
My Lords, I welcome this order as achieving the necessary consistency between the two jurisdictions. Nobody doubts the value of the barring system in protecting vulnerable children from abuse in its various forms. The position in Scotland is accurately set out in paragraph 7.6 of the Explanatory Memorandum, which states:
“Existing Scottish legislation does not require Disclosure Scotland to consider individuals for barring where the individual has already been considered by the DBS”,
in England or Wales,
“and the DBS has considered all relevant information. Nor does it require Disclosure Scotland to apply a bar in cases that are barred under England and Wales legislation”.
That sets out what in Scotland is the system to avoid duplication, and also to maintain consistency.
As I understand it, the aim of this order is to achieve the equal position in England, Wales and Northern Ireland, with a view to enabling the authorities on both sides of the border to work together better to protect children and vulnerable adults. I think that every noble Lord in this House would support the broad aims. I am not in a position to join with the noble Lord in the criticisms he made—I do not have that information. As far as I am concerned, the order deserves to be supported because it is achieving what everybody wished it to achieve: consistency to enable the authorities to work together.
My Lords, I thank the Minister for explaining this order. I now understand why the noble Lord, Lord Rosser, wanted to speak first—I too am relying on the Secondary Legislation Scrutiny Committee’s 53rd report, so I will try to say things in a slightly different way.
I understand that the purpose of the order is to ensure that those placed on a barred list by the Disclosure and Barring Service in England, Wales and Northern Ireland are not also placed on the barred list in Scotland by Disclosure Scotland for exactly the same reason—so-called double barring—so that, if there is a successful appeal in one jurisdiction, the person does not have to go through a second appeal process in the other jurisdiction. I also understand that this protection against double barring was supposed to have been brought in in 2012 and is being done now simply because of an oversight, as the noble Lord, Lord Rosser, pointed out.
I further understand that the current computer systems do not allow automatic checking of the Disclosure and Barring Service against the Disclosure Scotland barred list but relies on the DBS, for example, asking Disclosure Scotland to do a manual search of their list if it believes the subject has a Scottish connection. There is no date, other than beyond January 2020, for changes being made to the IT systems to allow automatic checking, as the contract with the current IT company has been terminated but the system is being maintained by the current company until the new one takes over in 2020.
While I can understand the reasoning behind the protection against double barring, is it not in the overriding interests of public safety for the name to appear on both lists, rather than relying on the Disclosure and Barring Service making a specific request of Disclosure Scotland if, and only if, they suspect a Scottish connection, at least until the IT issues have been sorted out?
To avoid the scenario where a successful appeal to the Disclosure and Barring Service does not result in the barred person being removed from the Disclosure Scotland list, if the person is barred for exactly the same reason in Scotland, what is to stop the Disclosure and Barring Service, as a matter of course, alerting Disclosure Scotland whenever there is a successful appeal against inclusion in the England, Wales and Northern Ireland list, and vice versa? The Government have failed for seven years to implement the protection against double barring. What difference will another six months or so make, until a reliable IT system is in place that can automatically check one list against another, particularly as there seems to be a perfectly reasonable workaround—or have I misunderstood?
My Lords, I thank noble Lords who have raised questions on this SI. Like the noble Lords, Lord Paddick and Lord Rosser, I requested that the whole thing be translated into English so that I could fully understand it—noble Lords will agree that the language is quite technical. I thank the noble and learned Lord, Lord Hope, for his general support for consistency being employed through the use of this statutory instrument.
The noble Lord, Lord Rosser, asked when the issue was identified and what the reason was for delaying the introduction of the SI. It was identified in May 2018 and was the result of a move of departments—to the Home Office. Departmental responsibility changed following its enactment and we think, as the noble Lord, Lord Paddick, said, that it was an oversight. Once the failure was identified, the Government brought forward the order at the earliest opportunity to give effect to paragraphs 6 and 12 of Schedule 3 to the SVGA.
The noble Lord, Lord Rosser, rightly asked about safeguarding gaps. No safeguarding gap is created by this order not having been in place. Individuals in Scotland, or England and Wales, who pose a risk of harm have continued to be subject to rigorous consideration and, where appropriate, included on the barred lists. It was an interim measure—although a rather long one—done by MoU. It is now, quite properly, done by statutory instrument in your Lordships’ House and in the other place.
The noble Lord also asked about out-of-court disposals. I totally agree with him that it is vital that employers have the right information when they are recruiting people to work closely with children, or indeed other vulnerable groups. That is why, in addition to details of convictions and cautions, the enhanced DBS check is referred to local police forces to include any information the chief officer believes to be relevant to the application, and ought to be disclosed. That might include details of a serious offence dealt with by a community resolution or other out-of-court disposal.
The noble Lord, Lord Rosser, also raised the question that was asked of my honourable friend in the other place, Victoria Atkins MP, about the international exchange of criminal records. She will write to the House on the subject and the response will be shared. I do not, I am afraid, have that answer in front of me at this point.
The noble Lords, Lord Rosser and Lord Paddick, asked when the IT system would achieve compliance with Section 74 of POFA. Section 74 is not yet commenced and could not be until the IT capability to undertake automatic checking of Scotland’s barred list is in place—as the noble Lord, Lord Paddick, pointed out. We cannot give a clearer indication of when the necessarily capability will be in place to allow for Section 74 to be commenced. DBS has recently terminated its contract with its IT supplier but has enforced an extension period to ensure operational continuity of services while the procurement process transitions to two new suppliers. Incremental transition of current services to the new suppliers will commence once contract award approvals are complete. It is expected that this will commence in August of this year. Further changes to the IT system cannot be planned until the new suppliers have fully transitioned. Implementing the requirements of Section 74 could be considered as part of that change programme.
To the question about the average time now taken to get DBS clearance through, the answer is I do not know. I recall a figure of six months, but I could not in all certainty say that it is an accurate figure now. If the noble Lord, Lord Rosser, is content, I will write to him on that.
The noble Lord also asked what mitigation was in place to offset any risk that information about individuals on a barred list in one jurisdiction may inadvertently fail to be shared with another jurisdiction. I can assure the House that appropriate arrangements are in place to ensure that an individual’s barred status will be included on a criminal record check irrespective of which jurisdiction took the barring decision. The DBS has access to the barred list of all three jurisdictions when issuing relevant criminal record certificates. It maintains the children’s and adults’ barred list in respect of England and Wales and Northern Ireland, and operates a reciprocal agreement with Disclosure Scotland routinely to share barred list information for the purpose of producing a certificate in either jurisdiction.
The noble Lord, Lord Paddick, asked about appeals. I think the answer is that a successful appeal in respect of being put on a DBS list will have the appropriate effect in the devolved Administrations—that would be logical—but I am not certain about that and will confirm it in writing to the noble Lord.
I think that I have answered all the questions, but if I have not—
The Minister has certainly answered my questions, for which I am grateful, but I want to pursue one issue—I do so seriously and not frivolously. The secondary legislation committee had asked why, given that the restriction on duplication was introduced in 2012, it was only now being implemented. The answer came back that it was an oversight. My question is simply this: was that because of a breakdown in processes and procedures, or was it just bad luck? Has this been looked into? Is the Home Office taking steps to make sure that such a thing cannot happen again?
What I do know is that it was originally brought in in 2009. I accept that the noble Lord would like more detail. I think that it is simply an omission, which we often correct in secondary legislation, but if there is anything further to add, I will get the information to him.