My Lords, I am glad to have the opportunity to build on the comments I made during Second Reading, which highlighted the efforts made by sports bodies to provide the safest possible environment for young people to enjoy sporting activity. As I said at Second Reading, the sport and recreation sector has voiced the concern that many individuals who have regular and close contact with children will not be regulated due to their being supervised by regulated individuals.
The Bill's criterion of "supervision" is considered by many to be a concern in relation to sport. The amendment aims to rectify this by being an exception for sport and recreational activities, thereby allowing the governing bodies to manage their risks as they deem appropriate in the context of their own activity. Sport and recreation are delivered in a wide range of environments-in sports halls, swimming pools, football pitches, on a river or, if one is so disposed, even on the side of a mountain. These are all situations in which governing bodies have to protect their young participants, yet within all these environments the nature of interaction between participants differs greatly, as does the nature of supervision.
At present governing bodies are trusted to make their own assessments of risk and implement safeguards accordingly. I think that this is a balance they currently get right. In fact, the spirit of this amendment is consistent with the position adopted by the Government. From conversations with various governing bodies, not least the England and Wales Cricket Board, of which I am a board member, it is clear that they are both willing and able to continue to take responsibility as the Minister has described. The sentiment is also expressed in the amendment tabled by my noble friend Lady Walmsley, which I also support.
There is a second and more pressing point to make on the subject of supervision in the Bill, which is that it contradicts the experience of the sports governing bodies to assume that the danger presented by an individual correlates with the degree to which they are supervised. The individuals that we seek to protect against are manipulative and calculating. They will undoubtedly seek to occupy those roles which are unregulated, and we must therefore ensure that the scope of regulated activity captures everyone who has the ability to develop a relationship of trust with a child. Therefore, I would welcome comments from the Minister about what the "supervision" criterion means for sport in practice, and I would welcome the Government's commitment to provide guidance on this issue. Sport and recreation organisations believe that an individual who has the ability to develop a relationship of trust with a child should be regulated, regardless of supervision.
"We will publish draft guidance well before Royal Assent, which will go into more detail, with case studies on supervision. The real point is that we do not want either extreme-neither a manager who pops in only once a day, nor a supervisor who is never out of the room".-[Official Report, Commons, Protection of Freedoms Bill Committee, 3/5/11; col. 547.]
Lynne Featherstone also stated during the Bill's passage in the other place that the employer or organisation concerned should take responsibility for managing risks:
"We are trying to say to the employer or the organisation that they have the joint responsibility in not just their procedures, but the judgment of what supervision is and what the risks are".-[Official Report, Commons, Protection of Freedoms Bill Committee, 3/5/11; col. 541.]
I tabled this amendment to seek assurances that the guidance will address the specific concerns of the sport sector, which has its own unique scenarios to grapple with. On the cricket field, a regulated coach in a supervising role may be training batsmen at one end of the ground, whereas in the far distance the assistant coach, unregulated, will spend time focusing on other areas of the game. Similarly in football, the regulated coach may be attending to an injury at one end of the pitch, while miles away on pitch 72 on Wandsworth Common, the unregulated assistant continues to oversee the game in progress. Similarly, at a swimming pool, a regulated supervisor can see everything happening but cannot hear the conversation between the unregulated assistant coach and the swimmer at the other end of the pool.
In all these examples, all the sports individuals occupy the same open space. Everything that happens will be in line of sight of the supervising regulated coach, but his or her attention could be directed elsewhere. I humbly ask that the Minister continues to engage with the sport and recreation sector to develop clear guidance that reflects the day-to-day realities of the sport environment. I thank him most generously for twice meeting us and allowing us to meet, with his officials, representatives of the major governing bodies to seek additional clarification. May the sport and recreation sector be consulted on supervising guidance, and guidance be provided that is specific to that sector, which in many cases owes its existence to the tens of thousands of volunteers and voluntary administrators who run and co-ordinate the sport.
My Lords, I shall speak to Amendments 59, 63A-which is on the Marshalled List but was not included on the list of groupings-60, 64 and 65. I support the noble Baroness, Lady Heyhoe Flint, and the amendment from the noble Baroness, Lady Walmsley. However, I do not think that they go far enough and I am looking for a more comprehensive approach to the problem we have before us today. In relation to Amendment 61, tabled by the noble Baroness, Lady Heyhoe Flint, I ask the Minister how he would define "recreational". I wonder if the word would encompass all after-school clubs, youth clubs et cetera. I need further clarification on the definition. Amendments 59 and 63A reverse government provisions to admit supervised volunteers and supervised employees in places other than schools, children's homes or children's centres from the scope of regulated activity. Amendments 60, 64 and 65 would tighten the statutory definition of supervision from "day to day" to "close and constant".
On entering government in 2010, the coalition announced that it would suspend the rollout of vetting provisions under the Safeguarding Vulnerable Groups Act 2006 and undertake a review of vetting and barring procedures, with the aim of restoring common-sense levels of safeguarding. This was despite the implementation of key recommendations from the Singleton report by the previous Government, which would have reduced the total number of individuals required to register with the vetting scheme by almost 2 million. The upshot of the review is that regulated activity will no longer include supervised volunteers or employees. This will, we believe, have serious implications for the safety of vulnerable groups. The key arguments put forward by the Government's review into the vetting and barring scheme are that the requirement for CRB checks deters volunteers and creates additional layers of bureaucracy for organisations. Of course, we welcome the introduction of an electronic portable system so that individuals will no longer have to apply for new checks each time they move jobs. However, the Government's criticisms of the scope of CRB regulations are not an accurate reflection of attitudes towards CRB checks in general.
Representations from the Sport and Recreation Alliance described safeguarding requirements under the 2006 Act as "welcome burdens". Girlguiding UK, of which I am proud to be a member, says:
"We would like to reiterate that in our experience the requirement to undergo a CRB check, along with Girlguiding UK's own stringent checks to ensure the protection of the girls and young women in our care, does not deter potential volunteers".
The Government's other principal argument is that overreliance on the state to certify safety of employees leads to complacency among employers on safety and a perception that it is solely the responsibility of the state to ensure safety. However, we do not believe that that conjecture is supported by the evidence. Of course, CRB and ISA checks are not the be-all and end-all of child protection and neither is that borne out by the attitudes of the industry, with many organisations having developed their own independent standards of best practice on child safety. For instance, 76 per cent of the England and Wales Cricket Board's local clubs either have or are working towards independent child protection accreditation. The view from children's charities and voluntary sector organisations such as the Sport and Recreation Alliance is clear. For example, the NSPCC says that a new definition of regulated activity excludes many people who have regular and close contact with children. This creates a risk that unsuitable individuals may gain and exploit positions of trusts, and there are numerous other organisations that feel similarly. For example, Fair Play for Children has stated:
"We believe that this Bill ignores entirely the major issue of secondary access".
I could cite many case studies, but one example is from 1998, when Barry Bennell, aged 44, was jailed for nine years for the serial abuse of young boys from 1978 to 1992, when he was the scout for north-west and Midlands junior football teams. For over a decade, he used his position to invite boys to stay with him at his home and take teams on tour, where he sexually abused them. Critically, the issue was not whether he was supervised in the workplace but that without proper checks he was able to establish a trusted position and gain unsupervised access to vulnerable adults. The Government's changes to the scope of regulated activity take a clear system and open it up to a discretion and abuse, admittedly by a small minority, but nevertheless by predatory individuals.
In relation to Amendments 60, 64 and 65, our view is that the Government should scrap altogether their proposed distinction between supervised and unsupervised work with children and vulnerable adults. However, if the Government are not prepared to move on this, we would probe the Minister's opinion on a consensus position which would at the very least tighten the statutory definition of "supervised" better to capture the sort of roles that we feel should be included in regulated activity. On Report in another place, the Government conceded that greater clarification was needed and agreed to publish draft guidance on the definition of supervision, as the noble Baroness said. We welcome that step and ask the Minister whether he agrees to publish that draft guidance before the end of the Committee. However, like many voluntary organisations, we are concerned that the issue of guidance still leaves too much room for discretion and that, while the best organisations will continue to co-operate with the highest standards of protection, others with fewer resources will shrink back to the legal minimum.
I wish to place on record the fact that although we wish to ensure that the scope of regulated activity is not restricted, we absolutely do not wish to discourage sporting and other organisations from employing those who have previously been in prison or who have been young offenders-that is, those people who do not have a history of violence or sexual abuse. I say this because yesterday, together with other noble Lords, I met with User Voice, a charity led and delivered by young offenders. Some of those young offenders who have not offended for three, four or five years now wish to give something back to society and have been working with young potential offenders to deter them from offending, because as offenders they have been through exactly the same process. They said that they found it very difficult to find work or recreational activity in sporting clubs, precisely because they have a record. Those young people have turned around their lives and it is important that, in ensuring that people are properly checked, we do not deter sporting organisations and others from employing those who have turned the corner and, as I say, wish to deter other young people from following in the steps that they have already trod.
My Lords, as chairman of the Soham inquiry there are perhaps some who think that I was the instigator of the arrangements in place for child protection, which this legislation seeks to change, and that I would therefore inevitably be opposed to these proposals. In fact, if your Lordships looked at the Soham report, you would see that I was looking for proportionate arrangements. I believe that, in some respects, the arrangements that were subsequently introduced were disproportionate and I am not therefore in principle opposed to some amendments. I want to make it clear that I will be looking carefully at the proposed legislation when it leaves Committee to see whether the new proposals are, in my view, proportionate. If I do not think that they are, I will want to move some amendments on Report.
However, it is right to say at this point that I have particular concerns about the issue of supervision. As has already been said, we are dealing on occasions here with people who are extremely manipulative. I seriously doubt whether any form of supervision will prevent the likes of Ian Huntley from perpetrating their evil. As someone who has led and managed many organisations, of course, I am also aware that the quality of any supervision is extremely variable but I believe that it is difficult to supervise the likes of Huntley to the point where we can be satisfied that they will not work their evil. It is particularly regrettable to use words such as "day to day supervision"; I have no idea what that means. I can begin to understand "close and constant", which is suggested in Amendment 60, but I have serious doubts whether any supervision can be close or constant enough to satisfy my requirements.
My Lords, I have anxieties about this concept of supervision because the Bill does not actually define what that means. As I understand it, the definition is to be left to employers, although guidance is planned. But the Bill and these proposed amendments do not quite recognise some of the challenges that we face in a church environment. Just imagine a youth club worker, for example, who may well be supervised during a formal session but who may well have other, unsupervised contact with children and young people at other church activities, thus leaving plenty of opportunity to develop inappropriate relationships and, indeed, to groom children. It should also be recognised that those who are being supervised can still develop relationships with children who could be exploited. The limitations on regulated activity, based on this rather nebulous concept of supervision, seem to leave a great big gaping hole in the Bill.
My Lords, I support my noble friend. I believe that this is the first amendment that she has moved in this House, and I congratulate her on that. The idea for Amendment 62, which stands in my name, was taken from sport. As my noble friend has stated, it is very difficult to decide who is actually in charge of a particular part of a sporting activity when it comes to training. In certain sports-Rugby Union is a good example-the sub-coach may be in charge of a session that deals with an aspect of the activity. This is the driving force behind the amendment. The noble Baroness, Lady Royall, has pointed out that the Bill goes much wider, and I look forward to clarification from the Minister.
The importance of the amendment is that it points out that in a very big sector-sport is one of the most important sectors for volunteers and one of the biggest individual volunteering sectors-you do not really know, when you are taking part in this structure of coaching, exactly who is in charge at any time. People will be taken away for specific coaching-strength, speed, endurance or technical-and will be out of the supervision and control of the overall body and will be undertaking something that the overall coach may not be able to understand; that may be why they are there.
We have to get to a position where everyone with that degree of power and control has had a full check. That is really all that this is about. I do not criticise the main principle in the Bill, but the fact is that certain people will be removed from a position of power by having someone else in charge of the session, and that should not be the case. For certain types of athlete, a certain type of coach will be in a position of power and control and will dominate bits of their lives, and we have plenty of examples where that has gone horribly wrong and there has been an abuse of trust.
I hope that my noble friend will be able to tell us that our interpretation of what he is saying is wrong, and that the extension of this and other types of activity will be caught by the Bill. If not, we will have to change it, but I hope he will be able to give us some assurances that we are worrying unduly and give us examples of why that is the case.
My Lords, I have two amendments in this group, Amendments 63 and 66. Amendment 63 would provide a level playing field between schools and colleges in relation to the information that they receive to help them with safe recruitment. The effect of the Bill as it stands is that colleges will no longer be able to access barring information about any newly appointed non-teaching staff, whereas schools will still continue to be able to receive this information.
All children should be given the same protection under the law wherever they study, and therefore all educational institutions should have identical access to criminal records and barring information. The current proposal places further education colleges on the same basis as leisure centres or places of worship, which children attend only occasionally, rather than in the same category as schools, which, like colleges, children attend on a daily basis and where they meet the same staff, both teaching and non-teaching, day in and day out.
This is not a minor matter affecting small numbers of young people. There are nearly 900,000 16 to 18 year-olds studying in colleges, about double the number of the same group attending sixth-forms. This number will rise when the participation age goes up to 17 and then to 18. There are also 63,000 14 to 16 year-olds who spend at least one day per week in a college, and that number is likely to increase following implementation of the recommendations of Professor Alison Wolf.
Colleges are clear that they want the ability to check that the staff they employ do not pose a risk to their students aged under 18. All staff in educational establishments are seen by children as trusted adults. Colleges want to maintain a safe recruitment procedure. The key to this is to ensure that they are able to make informed decisions regarding the suitability of applicants by continuing to receive barring information in addition to the criminal record check. This amendment would remove the anomalous differences between schools and colleges in respect of young people of exactly the same age group. It surely must not be the Government's intention that a 14 year-old should have the full protection of the vetting and barring system from Monday to Thursday when she is at school and not have such protection on Friday when she goes to college.
The idea for Amendment 66, which is in my name, came to me during a meeting with my noble friend the Minister and my honourable friend Lynne Featherstone, the Minister at the Home Office, for which I am grateful. I am also grateful to the Public Bill Office for assisting me with the wording of the amendment. Lynne Featherstone made it clear that she wants organisations that use volunteers to work with young people to take responsibility for their recruiting practices and not rely entirely on CRB checks. I quite agree, but that is exactly what the sports organisations that were at the meeting do all the time. Indeed, their presence at the meeting was a clear indication of their conscientious care for the safeguarding of the young people engaging in their sport. They conduct their own risk assessments every day on everyone who comes into contact with the children taking part.
However, these organisations, as we have heard, are very concerned about the wholesale removal of many potential volunteers from the scope of regulated activity. They and I are concerned about what is called secondary access. We recognise that much of the abuse does not take place during the activity itself but elsewhere or on another occasion when the abuser takes advantage of the relationship of trust that he has been able to build up with the child during the activity, even where it has been closely supervised. They and I are also very doubtful as to whether any official guidance, however carefully crafted, can adequately identify the level of day-to-day supervision necessary to ensure protection and roles in which the adult cannot build up this relationship of trust.
These organisations are also concerned that although a registered body can ask for an enhanced CRB check on someone in an unregulated role, they cannot get information on whether that person is barred or not. A person can be barred on the basis of important and significant information other than by involvement with the police. Unless the information is known to the police, the organisation taking them on as a volunteer cannot get hold of it and may unwittingly take on someone who is barred and absolutely unsuitable in an unregulated role.
I think I have the solution to this problem. The people best placed to specify which roles within their organisations would give an adult the opportunity to build up that relationship of trust are the management of the organisations themselves. That is what my amendment says. It perhaps picks up the concerns expressed by the noble Lord, Lord Bichard, about the difficulty of specifying the level of supervision required. These organisations understand the situation on the ground much better than any civil servant sitting in the department writing guidance.
This amendment does exactly what the Government have said they want organisations to do. This is what it says in document on frequently asked questions that was recently circulated by the Minister:
"The purpose of the change to the scope of regulated activity is two-fold. Firstly, it is to provide greater flexibility to employers and to organisations in using volunteers and staff who are supervised by not requiring them to carry out the checks that apply to regulated activity, but for such employers to have some flexibility in determining the level of vetting that they decide is appropriate in relation to any work. Secondly, it is to place the responsibility for safeguarding children sensibly with those who are directly responsible for the provision of services to children and to encourage them to have in place proper supervision and other safeguards".
With that in mind, and bearing in mind similar statements made by the Minister in another place, I am very optimistic that my noble friend the Minister will accept my amendment, since this responsibility, which the Government require in the hands of the registered bodies, should be placed in the Bill.
My Lords, I support the amendment, which was very comprehensively moved by the noble Baroness, Lady Heyhoe Flint, and supported by the noble Lord, Lord Addington. I declare an interest as a board member of UK Athletics and the London Marathon and a trustee for the Laureus Sport for Good Foundation. I believe that the definitions are incredibly important. I, too, would like to have some greater understanding of what the supervisory role comprises. In the course of my research I spoke to my own governing body, UK Athletics. It has no evidence whatever to suggest that criminal record checks put off any coaches from being involved in sport. While I accept that the CRB does not solve every problem that we might have in sport, in the early years of CRB checks UK Athletics received many complaints every week, but in the past 12 months it has not received a single complaint about the CRB process. My concern is with the grooming process. Coaches are in an incredibly powerful position. They instruct young people not just on the training programmes but on how they dress, behave and where they go. They are in charge of whether the young people are selected for the team. That might be a club team but it can get people on the path to competing at a higher level.
In recent years, two cases within my own sport have become known to the public. A 77 year-old coach was barred from working with athletes for 15 months. He had been exposed by a local newspaper but was back in a club working in a supervisory role. The danger of coaches coming back into sport after such incidents poses too great a risk to young people. Further, a 43 year-old coach abused a 14 year-old girl. Neither of these incidents took place at a club or training ground but in the coaches' own homes. The parents of the young people involved trusted the coaches. The latter case came to light when the girl at the age of 15 reportedly ended the affair. The coach in question was sentenced to 17 years in prison. That goes to show how powerful the relationship is between a coach and young person and how easy it is for some people to groom young athletes, whether that process takes place over weeks, months or years.
There have been three very high profile cases in the US. The most recent occurred last week at Pennsylvania State University, where an assistant coach who had been abusing young boys over a number of years was exposed. Although the matter had been reported to the head coach-he has since lost his job because of this matter-and at higher levels in the university, no action was taken. It is easy to say that different circumstances apply in that case as it occurred in a different country within a university system. However, it highlights the power wielded by assistant coaches, head coaches and all coaches over the individuals with whom they work.
I understand that we need to protect the 92 per cent of people who have no CRB record and we have to make the process easier if we are to encourage people to come into sport. I encourage portability and I would never want to stop somebody coaching who may have made a mistake in the past or those whose past actions would have no effect on the children with whom they are working. The noble Lord, Lord Bichard, is absolutely right: proportionality is very important. However, governing bodies understand the nuances of clubs, coaches and volunteer structures and how they work. We could be making a big mistake by going too much the other way and exposing children and vulnerable adults to some very unsavoury individuals.
My Lords, I rise to speak specifically to Amendment 63, which was introduced by my noble friend Lady Walmsley. I was a further education lecturer for more than 20 years and so I have some residual understanding of the relationship between further education lecturers and their students. We are not talking just about 16 to 18 year-olds. As my noble friend made clear, increasing numbers of 14 to 16 year-olds are spending at least part of their week in our further education colleges. That trend has grown considerably over the years, particularly in the past few years. We need to look at why the trend has grown. First, there has been a recognition by both the previous and current Governments that for many 14 year-olds school is no longer the most suitable environment. They do not respond well to school. Secondly, there is the Government's desire to raise the status and popularity of vocational qualifications. Unless we get the legal structure right in this regard, parental support will not be forthcoming for young people between 14 and 18 to go to college rather than to stay in school. Therefore, schools and colleges should fall in the same category. This has been recognised in other respects by the University and College Union, which has campaigned for example on the issue of the registration of further education lecturers. The union sees that parental support and confidence in colleges is dependent on their being seen as being on the same level playing field as schools.
It is true that every college is full of hundreds if not thousands of adults who cannot all be CRB-checked because some are also students. However, it is important to bear in mind that lecturers have a very important power and influence over their students. They develop a position of trust with them. I know that I have the support of the Association of Colleges when I say that schools and colleges need to be in the same category in this respect. This is what the amendment does. The teacher in front of the class and the lecturer in front of the class are essentially in exactly the same position of trust.
I will take this one step further by saying that this is not just about children. Our further education colleges continue to educate the most vulnerable adults. I give as an example South Thames College, which runs a course for mainly, but not exclusively, autistic young people. They are very vulnerable and impressionable. Many of them are too old to be legally considered as children, but they are nevertheless vulnerable adults. They are particularly inclined to put their lecturers on a pedestal and invest emotional trust in them. It is important that the Government take this into account.
Our most vulnerable adults who are sent to education are sometimes sent to residential colleges, where the risks and dangers-as well as the advantages and benefits-are at their greatest. I ask the Minister for clarification on the position of vulnerable adults who are learning in further education institutions, whether on a day-by-day basis or in residential institutions.
My Lords, perhaps I may make some more general points following the comments in particular of the noble Lord, Lord Bichard. I struggled with both the terms "day-to-day" and "close and constant" and rather came to the conclusion that there may not be a snappy phrase that will deal with the issue that noble Lords have identified so powerfully. We may know the situation when we see it, but we may not be able to find a couple of words to describe every such situation about which we are concerned. I was glad to read-noble Lords referred to this-that the Government will provide guidance on the question of supervision. However, the guidance cannot go beyond the legislation.
It troubles me that we may be trying to find a way of putting succinctly into legislation something that will not quite fit. This might be an occasion when we have to be a bit more verbose than we would normally want to be-I do not know; other people's language skills will be better than mine. However, I was left with the concern that we should not rely on guidance saying something in addition to what the legislation says, because it cannot.
I hope that the guidance which emerges at the end of this process is easier than the language in the Bill. I struggled an awful lot with the double negatives. It will not be a service to those who are working in the field if we cannot produce something that is much easier to follow.
I want to add one other thought which is very much implied, if not explicit, in what other noble Lords have said. Whom does a child trust more: the worker, for want of a better word, with whom he develops a close relationship; or a supervisor who has perhaps not been in a position to create the same trust, because the supervisor is the authority figure and may not be perceived as being on the child's side?
My Lords, I am grateful to my noble friend Lady Hamwee for, in effect, finishing off this debate. She took us back to the general, which is what I want to start off with. I think that it was the noble Baroness, Lady Royall, who was somewhat critical of what we are proposing in this area and quoted a great deal from, I think, User Voice. I was then grateful for the intervention from the noble Lord, Lord Bichard, the author of the Soham report, who reminded the Committee that, as he put it, what had followed his report-the recommendations, if I may summarise them-was not exactly quite as proportionate as he felt it should be. I stress that we are looking for the right degree of proportionality and the right balance in the Bill. That will obviously be difficult to achieve. I am therefore grateful for the chance to address just some of the issues in relation to this amendment.
Sticking with that generality and the quotations that the noble Baroness, Lady Royall, gave from User Voice, I should remind her that there was considerable support for the Bill and the proposals in this area when they came out. I can quote Anne Marie Carrie, the chief executive of Barnardo's, who said that the Government's proposals were a "victory for common sense". She said:
"There is already enough safeguarding in place for people who have unsupervised, substantial access to children";
"This approach will make it easier for grandparents, parents and neighbours, who should be able to play an important role in a child's life without unnecessary red tape".
There was also support from the Scout Association, Nacro and others-I could go on. The question that we want to address is how to get the right degree of proportionality.
The amendments are very much in three groups. I do not know the intention of the noble Lords who tabled the various amendments, but if it is thought that we might vote on them, I should say that I am fairly sure that the amendments tabled by the noble Baroness, Lady Royall, would not be consequential on Amendment 58. However, we will get to that in due course.
Amendments 58, 61 and 62 were tabled by my noble friends Lady Heyhoe Flint and Lord Addington. I am grateful to them, and to my noble friend Lady Walmsley, for reminding us that my honourable friend Lynne Featherstone and I had an opportunity to discuss this matter with a large number of representatives of the sports and leisure sectors as well as a number of my noble friends at a meeting in the Home Office. There have been subsequent meetings and we have listened very carefully to the arguments presented. I think that we have taken on board some of those concerns.
Obviously one of those concerns is that supervision is very difficult to provide in the context of sport. That is what we want to deal with at this stage. The Bill now requires that we provide statutory guidance in relation to supervision to assist sports governing bodies, and others, to decide on whether a particular employee or volunteer falls within or outside the scope of regulated activity. As we have made clear, we intend to consult on draft guidance in advance of Report. I can assure the Committee that we will include the sport and recreation sector in that consultation. I can also assure the Committee that the guidance will include elements specific to that sector.
The noble Baroness, Lady Royall, asked me whether I could get the response to that consultation out before Report. I appreciate that Report, given the speed at which we are moving, is some time off and getting a response to that consultation might be somewhat difficult. However, we certainly hope to get the consultation out and that will be useful for the House to have a look at in advance of Report.
We do not, in principle, see the need to move away from the notion that where individuals can be properly supervised, then in some circumstances there is no need for their work to fall within regulated activity or for barred-list checks to be made. Proper supervision should help to reduce the risk of improper conduct and of inappropriate relationships developing. Noble Lords have spoken about the dangers in this area. I appreciate that there have been some concerns about what supervision means and whether this will apply, for example, to an assistant sports coach. However, I should say that we are not seeking to define supervision by a title, such as "assistant" or "deputy" coach or trainer. If such roles are working independently of the head coach and not being supervised, they would remain in regulated activity.
This provision is intended to provide additional flexibility for employing organisations and to help ensure that individuals are not dissuaded from volunteering. One of the bodies that commented on this was the Scout Association, which said that it preferred to supervise individuals when they first join the organisation before barred-list checks become necessary. There is of course no compulsion in the Bill for an organisation to provide supervision. Where it is unable to do so, activities will remain regulated and barred-list checks must be made.
My noble friend Lord Addington looked for examples of what would be adequate supervision. This will obviously vary according to where you are and what you are doing. In a classroom or indoor venue, the supervisor should be in the same room for the majority of the time, excepting that they may on occasion need to leave for a short break. In a classroom, a teacher or other adult in a regulated activity should be in the room with the supervised assistant and be able to see their work for most of the time. Matters would obviously be different in an outdoor context, and my noble friend was right to draw on this. On playing fields, one coach or supervisor should be able to supervise an individual on the same or a neighbouring pitch-for example, an assistant football or rugby coach helping with the same match or on a next-door pitch, but not across a vast number of pitches or where activities take place at a considerable distance. My noble friend also gave the example of an assistant coach who might have some special expertise that his superior would not understand. Again, if that were the case, the appropriate checks would have to be made because, I should make clear, the whole matter would be a question of tact and degree according to the facts of the case at any point.
Perhaps I may also say a word or two about the drafting of Amendment 61, because the noble Baroness, Lady Royall, raised a concern regarding the meaning of "recreational". As drafted, that amendment would not in any event achieve the desired intention. It would not extend the list of establishments to include sports venues. It simply adds sport to the description of work in the existing list of circumstances. Its effect, therefore, is that supervised volunteers coaching sports in schools would be in regulated activity, but supervised coaches elsewhere-paid or unpaid-would not be. In addition-a point queried by the noble Baroness, Lady Royall-it provides no definition of a recreational activity, which could mean that the amendment would inadvertently catch a wider range of activities than intended.
I am grateful for that response from the Minister but I surmised from what the noble Lord, Lord Addington, said that the intention behind the amendment was indeed to capture a wider activity than just a sporting activity and to open it up a bit further to encompass youth clubs or whatever. However, I may be wrong about that.
Perhaps I may come in here to clarify the matter. I was using sport as an example of where you get activity. The noble Lord has started to answer my concern but, although he has gone some of the way in his initial response, I do not think that he has totally embraced the position of control that can be taken on by a coach, even if that coach has a subservient role to the main coaching structure. For instance, if you are a potential shot-putter, you need a strength coach. You need someone to control your diet, your exercise and the way you sleep. I am trying to get at whether that degree of control is within an organisation. The noble Lord is starting to get there but I am just saying that, unless that degree of control in this one sector is addressed, he is going to miss out a lot of things in other sectors.
My Lords, obviously at this stage I cannot define "recreational" as used by my noble friends in their amendments. It is not for me to define it; an explanation will have to come from noble Lords themselves as they move their amendments. The subsidiary point to that-the concerns expressed by my noble friend-may be best addressed by my noble friend Lady Hamwee's comments when she talked about the difficulty of getting it down to just one or two words. She talked about the need to get this consultation, and the guidance ensuing from it, which is exactly right. I hope that my noble friend now accepts that that is what we are trying to do. That is why I want to make sure that the consultation is out before the next stage of the Bill. I see the noble Baroness, Lady Farrington, twitching to get up, so I shall give way.
Can the Minister give the assurance which I understood his noble friend Lady Hamwee was seeking? He used the term "proper supervision". I understood the noble Baroness, Lady Hamwee, to say that there ought not to be anything stronger in the guidance than the wording in the Bill defining "supervision". It would be very helpful if the Minister could give an undertaking that that fear is totally unfounded and ensure that his sense of "proper supervision" is defined as much in the Bill as in the guidance.
Perhaps I should see whether I can make myself absolutely clear. My concern was that primary legislation must trump guidance and that guidance cannot go further than the legislation. That is what I was trying to express.
The noble Baroness, Lady Hamwee, is a lawyer and she has expressed exactly how it should be. Obviously guidance does not go beyond the legislation. That is one reason why I shall resist the amendments put forward by the noble Baroness, Lady Royall, which ask for close and constant supervision, because we think that that goes too far. However, I shall address that in due course. The important point is that we have to get this guidance right. To get the guidance right, we have to get the consultation right, and I hope to have the consultation available before we reach Report.
Perhaps I may now deal with the noble Baroness's Amendments 59, 60, 63A, 64 and 65. As always, we want to strike the right balance. Balance is the new word that I have learnt in the Home Office, and it is very important in this Bill that we get that right. I think it was the theme behind what the noble Lord, Lord Bichard, said. It is a question of proportionality. Our definition in this provision insists that it must be substantial. For example, an occasional, or even weekly, meeting between the supervisor and the supervised would not be sufficient.
The noble Baroness's amendments would change the wording to "close and constant", which would render the definition of supervision unworkable and go against the Government's intention of having more proportionate disclosure and barring arrangements. If you think about it, the words "close and constant" are pretty severe. I gave the example of the classroom environment, and "close and constant" does not even allow leaving the room occasionally. They would in effect mean that the work of a volunteer working in a sports club under the supervision of a qualified sports instructor would become regulated activity if that qualified instructor left the room at any stage, because the supervision would then not be constant. That goes too far and undermines our proposals to scale back disclosure and barring to common-sense levels by imposing an unrealistically high test for supervision.
We believe that the Bill as drafted, coupled with the statutory guidance that we will publish following the consultation, will produce the right result in setting the boundaries of regulated activity. For that reason, when we get that consultation out, I look forward to comments from all around the country and from all noble Lords, and I hope that the noble Lord, Lord Bichard, will feed his experience into it.
Finally, I turn to the amendments tabled by my noble friend Lady Walmsley. Amendment 63 seeks, in effect, to bring all those who work in FE colleges within the scope of regulated activity. I should first stress that all paid teaching and non-teaching staff in establishments, including further education colleges, that wholly or mainly provide full-time education to children will remain within regulated activity and therefore must undergo a barred list check as part of their pre-employment checks. In addition, the unsupervised teaching, training, instruction, care or supervision of children in further education institutions will remain a regulated activity, even where such an institution provides education mainly to adults.
Amendment 63 would go further by bringing into regulated activity all work by any staff in further education colleges providing education to even a small number of children where staff have the opportunity for contact with children. Under the current scheme, such work is "controlled activity". Controlled activity is to be abolished under Clause 68. We believe it is disproportionate and unnecessary to require such individuals to be subject to the same level of checks as those working in an institution wholly or mainly for the full-time education or care of children, for example in a primary school or a nursery.
The Government do not consider it proportionate for the state to require or allow barred list checks on activities that are currently defined as controlled activities. Such activities generally entail only incidental contact with children. I question whether all colleges would really welcome a duty to check hundreds of staff just because the college takes on, for example, half a dozen 17 year-old students.
Will the Minister move away from the wording of this amendment-I take the point he makes about it perhaps being too blanket in its coverage-and address the point about who is a child for the purposes of the protection that we are seeking to apply? I think that is what underlines the points made by my noble friends in addressing this. Technically, this may not be right, but they are concerned about the subject of the protection.
My Lords, I understand the concern, and I think it might be necessary for us to have further discussions on this outside the House. I think my noble friends understand the importance of proportionality-I use that word again. The example I was giving when my noble friend interrupted me was about a college that takes on half a dozen 17 year-olds being affected. It might be that if it was half a dozen 14 year-olds, things would be different. It is a question of balance which, again, we will have to look at. I was about to say that the amendment goes too far; my noble friends agree that it goes too far. They will not press it, but obviously there might be scope for further discussions in due course.
Amendment 66 could also be very wide-ranging in its effect. It sets out that a regulated activity provider may decide whether other activity that it carries out is analogous to regulated activity. It also creates a new duty on the Disclosure and Barring Service to provide information that would otherwise be provided only in respect of regulated activity for any such activity that the provider decides is similar to regulated activity. We have stated that we do not think it is right to provide barred list information for activity that is not regulated activity. We have set out in Clause 64 what activity should be defined as regulated activity in relation to children. This amendment would in effect give regulated activity providers the ability to define any activity as similar to regulated activity and request barred list information from the Disclosure and Barring Service; for example, they could designate someone who has merely the slightest contact with children in a sport or recreation setting, or an employee providing first aid as an ancillary part of their job.
We do not think that Amendment 66 does what it says on the label, as it were. Again, I might have misunderstood what my noble friend is getting at with that amendment. If she would like to have further discussions, I am prepared to do that, although the last time we had discussions it resulted in her bringing forward this amendment, so it does not necessarily always help.
Perhaps my noble friend the Minister will allow me to clarify my thoughts on this matter. The main point I am trying to make is that we are having very great difficulty defining what is meant by the level of supervision that the Government want to put outside regulated activity. The point I am trying to make is that the best people to decide the roles that should correctly be within regulated activity are the organisations themselves. They know whether those roles give the person the opportunity to develop that relationship of trust with the child, and no civil servant sitting in Whitehall can possibly do that. The very fact that we are having such difficulty defining the level of supervision that we mean is an indication that I am right about that.
It may or may not be an indication that my noble friend is right, but I think that further discussions, even if they do result in further amendments, might be appropriate.
My Lords, it is absolutely right that the noble Lord has offered to have further discussions with the noble Baroness about this amendment, and I welcome that. Clearly we are not going to have another opportunity to discuss my amendments to do with "close and constant". The noble Lord said that "close and constant" would be too prescriptive in the Bill and would destroy the balance he is seeking to ensure. However, after the noble Lord, Lord Bichard, expressed disquiet about the balance in the Bill, will the Minister agree to have further discussion with us about the words "close and constant"? The noble Lord says that the consultation will be launched but that he will not be able to provide the Government's response to the consultation before Report. I am slightly alarmed. The consultation is to be welcomed, but then we are going to be expected to decide what is going to be in the Bill before we know the Government's response to the consultation, and that seems a bit topsy-turvy to me.
We can have a meeting if the noble Baroness wishes; my door is always open. I just think that "close and constant" goes far too far and more or less negates the point of what we are trying to do in this area. Obviously, we would also listen to what the noble Lord, Lord Bichard, has to say on these matters, and I will give way in a minute; we welcome his experience. I remind the noble Baroness, however, that he was not totally uncritical of what followed his report and what was done; if I can paraphrase the noble Lord, he said it was not quite as proportionate as it might be.
My problem, which is not yet being addressed, is this: we have checks to ensure that inappropriate people do not get access-particularly to young children because they are vulnerable. That is why we have the checks. The Government's new proposals seem to be based on the belief that supervision-whether it is close, constant, day-to-day or whatever-can make an individual who is inappropriate appropriate to work with young people. That is an issue about which I have serious doubts, because I do not believe that supervision can ever deal with that issue conclusively, not least because you can supervise somebody on a day-to-day or constant basis in his work, but that does not stop him grooming the young person and meeting them at the weekend, outside of work or the activity. Therefore, I am worried that we seem to be accepting-on all sides of the House-that coming up with a definition for supervision deals with this problem. I am just not sure that it does. The Minister may want to comment on that; I certainly believe there is room for further discussion.
The noble Lord seems to be suggesting that we get rid of the idea or the concept of supervision in its entirety. I simply do not accept that. I think there is a role here for making it easier for people to get involved, with the appropriate degree of supervision where necessary. I take it that the noble Lord does not agree with me on that and it might be that the noble Baroness, Lady Royall, does not agree with me on that: in which case, we will have to differ. We on this side see a role-and so do many other bodies outside-for the appropriate supervision to allow people to take on such a role. For that reason, I am not sure that a meeting on this matter would necessarily be fruitful.
There is a world of difference between close and constant, and occasional. There is a further concern that could be raised about those who are deemed to be in supervision. Were things to go wrong-and in the best of all possible worlds, there will tragically be such occasions-we must consider those who will be deemed to have been in a supervisory capacity, where they must rely on their judgment about the individual. Some people have referred to the manipulative: they are deadly.
Furthermore, I refer to a quote in connection with a case involving a member of the Scouts. When I spoke to a young person who had come into contact with this predator, the young person said:
"We worked out that he was the one who looked for the child with no friends".
I am concerned that if in the future we are going to rely on somebody being in a supervisory capacity, they need protection from any allegation at a later stage that they failed to supervise.
My Lords, I think that we are moving away from what the amendments originally were about. There now seems to be a general attack on any idea of supervision at all. I am making it clear that we believe that supervision is appropriate but that it is just a question of getting that balance and proportionality right. For that reason, we think that we have got it right and that is why we will consult on the detail, which, as my noble friend Lady Hamwee made clear, was a matter more appropriate for the Bill. I do not think that I can add much more at this stage. I have dealt with the three subgroups of amendments within this group. I very much hope that my noble friend Lady Heyhoe Flint will withdraw her amendment and that the other amendments will not be moved.
I thank my noble friend for his response. Having lobbed the pebble in the water, it has drawn up several matters that I had not envisaged in my amendment. I am encouraged that the Minister has listened to my pleas, which perhaps is rather selfish, and has given assurances concerning governing bodies and further education. Working on the premise that it is better to be safe than sorry and having had the assurance that there will be further guidance and consultation, which I am sure will be balanced and proportionate, I beg leave to withdraw the amendment.
Amendment 58 withdrawn.
Amendments 59 to 66 not moved.
Clause 64 agreed.
Clause 65 agreed.
Clause 66 : Restriction of scope of regulated activities: vulnerable adults
Moved by Baroness Stowell of Beeston
67: Clause 66, page 54, line 3, leave out from "nails" to end of line 4
My Lords, these government amendments are to remedy an anomaly in the definition of regulated activity for adults. The Bill provides that regulated activity relating to adults can be broadly split into six categories, one of which is the provision of personal care. The personal care definition currently includes "physical assistance" with the care of,
"skin, hair or nails (other than nail care provided by a chiropodist or podiatrist)",
which is on page 64 of the Bill.
These amendments will remove the current exception,
"other than nail care provided by a chiropodist or podiatrist",
as the exception creates an anomalous situation where chiropodists and podiatrists are in regulated activity because they are regulated healthcare professionals except when providing nail care. The amendments will achieve the Government's policy aim that chiropodists and podiatrists are wholly within regulated activity and therefore within the scope of the revised vetting and barring scheme. I beg to move.
Amendment 67 agreed.
Clause 66, as amended, agreed.
Clause 67 : Alteration of test for barring decisions
Moved by Lord Rosser
68: Clause 67, leave out Clause 67 and insert the following new Clause-
"Alteration of test for barring decisions
(1) In sub-paragraph (3) of paragraph 2 of Schedule 3 to the Safeguarding Vulnerable Groups Act (inclusion subject to consideration of representations), after paragraph (b) insert-
"(c) give the person the opportunity to present evidence and call witnesses at an oral hearing in front of a panel of at least two persons.".
(2) After sub-paragraph (2) of paragraph 3 of that Schedule (behaviour) insert-
"(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.".
(3) After sub-paragraph (2) of paragraph 5 of that Schedule (risk of harm) insert-
"(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.".
(4) After sub-paragraph (3) of paragraph 8 of that Schedule (inclusion subject to consideration of representations) after paragraph (b) insert-
"(c) give the person the opportunity to present evidence and call witnesses at an oral hearing in front of a panel of at least two persons.".
(5) After sub-paragraph (2) of paragraph 9 of that Schedule (behaviour) insert-
"(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.".
(6) After sub-paragraph (2) of paragraph 11 of that Schedule (risk of harm) insert-
"(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.""
I shall speak to the two amendments in this group. Amendment 68 would reverse provisions to restrict automatic inclusion on the barred list and introduce a right of appeal for the individual to be taken off the list. It seeks to take account of the recommendation of the Joint Committee on Human Rights that there should be a right of appeal against all barring decisions.
Under Amendment 69, an enhanced Criminal Records Bureau check would reveal whether an individual had been barred from working with vulnerable adults or children. After the lengthy debate that we have just had on the first group of amendments, there is inevitably some degree of repetition on this group but I will endeavour to be reasonably brief.
We have heard that, as a result of the proposed restrictions to the definition of regulated activity, individuals working under supervision with children or vulnerable adults will no longer require CRB checks or have their barred status revealed. Therefore even if the employer chooses to apply extra caution and request an enhanced CRB check on an individual, it will not state whether that individual has been barred by the Independent Safeguarding Authority as this information is only included for applicants in regulated activity. No doubt the Minister will say that an enhanced CRB check will give all but the barred status, meaning that prospective employers will have access to the police records which would have led to the barring decision. However, it seems somewhat illogical that an employer should have access to all but the one crucial piece of information, which is whether experts believe that there is something sufficient to justify preventing an individual from working with vulnerable groups.
First, however, barring decisions are not just based on police records. They take into account information from past employers and they analyse allegations that may not have been pursued with the police. That is especially important information when it comes to work with children and adults because of the well known problems with evidence and the particular vulnerabilities of witnesses and victims. An example of this is that the ISA may consider a situation where an allegation has been made by a dementia sufferer but was not reported to the police because of the perceived reliability of the evidence. An enhanced CRB check on a volunteer in a care home would not alert the employer to this. Secondly, in not granting all registered employers access to ISA decisions, the Government's proposals could in fact lead to greater prejudicial and unfair rejection of candidates, as employers will be expected to use their own judgment to assess the relevance or seriousness of the information in front of them rather than utilising the expert opinion of the ISA.
So far as Amendment 69 is concerned, in addition to the restrictions on the scope of regulated activity under Clause 67, individuals who have committed a serious offence will no longer automatically be placed on the barred list. Instead, they will be barred only if they have worked or are deemed likely in the future to work in a regulated activity. An individual who has committed a serious barring offence will no longer be barred from gaining close contact with children and vulnerable adults as, for example, a football coach, provided that they are subject to some form of supervision. As has already been said, the crux of the problem is secondary access, and the upshot of Clause 67 is that individuals convicted of a barring offence will be able to gain access to and build up trust with children and their parents which could be exploited. If there are grounds to bar an individual from working with children or vulnerable adults unsupervised, that individual should not be undertaking work in regular close proximity with children and vulnerable adults regardless of whether it is supervised or unsupervised, paid or unpaid.
The NSPCC appears to take a similar view, because the Government's own review on the vetting and barring scheme states that:
"The NSPCC's view is that some offences against children should always be grounds for barring".
Amendment 68 would erase the new distinction among convicted offenders for placing on the barred list. It would also introduce the right to a full merits appeal against barring decisions, with the right to present evidence and call witnesses at an oral hearing, thus reflecting the principle of the High Court decision on the Royal College of Nursing v the Secretary of State for the Home Department and the JCHR recommendations that individuals should have the right to a full merits hearing before an independent and impartial tribunal. The Government's proposals as they stand fall short of providing a full merits appeal for individuals included on the barred list. We believe that providing this, alongside automatic barring, reflects the correct balance-we as well as the Government will use the word-between providing on the one hand adequate protection for vulnerable groups against interference with their right to life, their right not to be subjected to inhuman or degrading treatment, their right to physical integrity and their right to respect for their private life and dignity, and on the other hand the protection of individuals' rights to privacy and a fair hearing.
The key message that has been stressed again today-and it is it stressed also by children's charities-is the importance of transparency and information sharing to ensure that crucial warnings do not fall through the cracks or not get passed on. The combined result of the Government's restrictions on the scope of regulated activity and on the disclosure and application of barring decisions is that individuals who have been barred for committing serious offences will be able to apply and work with children and vulnerable adults without detection.
I appreciate that the Home Office review into vetting and barring, which was published at the beginning of this year, stated that:
"Key to any new system will be a recognition, that employers have a critical role to play in ensuring safe recruitment practices and it is arguable that the balance of responsibility for ensuring safe recruitment became too heavily skewed towards the state under the previous arrangements".
Frankly, the effect of government proposals is exactly the opposite. The Bill restricts the discretion of employers to seek a greater degree of information on applicants for positions, should they regard those positions to be of greater than normal risk. It is our view, hence these amendments, that by far the simplest, least bureaucratic and most watertight system-and surely that is what we want-would be to give employers the ability to view ISA barring decisions on all individuals for whom they seek an enhanced CRB check.
My Lords, I would be grateful if I could ask the Minister for clarification. As I understand it, the intention is that the vetting and barring scheme will continue, albeit in a more scaled-down way. I understand that the current legal requirement to refer for possible barring any employee or volunteer who is deemed to represent a risk to children will continue, but the scope has been narrowed so that people will be placed on the barred list only if the ISA has reason to believe they are, have been or might in the future be working in a regulated activity. Yet at the same time the definition of regulated activity is being narrowed.
I ask the Minister if this means, for example, that a person may be barred from teaching, a regulated activity, but not from working as a voluntary teaching assistant, which is a non-regulated activity, if there is supervision; and that, further, any CRB check for the voluntary teaching assistant would not disclose that the individual is barred from regulated activity. I hope I am wrong in that-surely that cannot be right. Obviously this limitation, if it is enacted, would have very serious risks for the safe recruitment of people, not least within church and, indeed, other circles.
My Lords, I thought that the noble Lord, Lord Rosser, had managed to silence the entire House, but the right reverend Prelate proved me wrong. I hope I will be able to respond to the remarks of the right reverend Prelate in due course.
I am grateful to the noble Lord for his explanation of Amendments 68 and 69, which make three substantive changes to the barring arrangements. First, they would reverse the change in Clause 67, which limits bars to those people who have been, are, or might in the future be engaged in regulated activity. The effect of this amendment would be that the barring regime would continue to extend to many people who do not work with, and do not intend to work with, children or other vulnerable groups. For example, a lorry driver or an office worker who has not worked with vulnerable groups and does not intend to would be barred from such work. We do not think that this fits with the purpose of the scheme and it does not accord with our aim of reducing the barring arrangements to common-sense levels.
Bars should continue to apply to those who have been engaged in regulated activity or who are likely to be so in the future. If an individual applies for an enhanced criminal record certificate or a barred list check, indicating that they may seek work in regulated activity, any automatic barring offences will be disclosed and referred to the barring authority at that point. In addition, enhanced criminal record certificates will continue to be available to employers of those working with children or vulnerable groups-including volunteers-and will provide information on previous criminal offences.
The second of the three changes that this amendment seeks to make concerns the category of offences that lead to an automatic bar, in relation to which representations can be made. Under the current arrangements, such representations can be made only after the person has been placed on a barred list. As a result of Clause 67, individuals would be able to make representations before the barring decision is made. Amendment 68 seeks to reverse that change, such that representations would still be made retrospectively. The provision in Clause 67 was made in response to a recent court ruling; but even if that were not the case, it seems to be a matter of basic fairness that representations about a decision should be considered when there is still a chance to influence that decision. Currently, someone may be barred, and even if that bar is revoked, they may already have been denied employment as a result.
The third change is that representations in both automatic and discretionary barring cases would be accompanied by the right to oral hearings. I do not consider that to be necessary. We have to remember that the Independent Safeguarding Authority is not a primary fact-gathering organisation but depends on information that comes from employers, regulators and others for its evidence. The person concerned may then submit representations about any or all of the evidence, which the ISA will evaluate fully. Once, having assessed all the evidence and the representations, it has determined whether the person ought to be barred, there is a final safeguard by way of recourse to the Upper Tribunal on a point of fact or law. Oral representations are not prevented under the current legislation, and the ISA will consider all requests on a case-by-case basis. We can debate the issue of oral hearings, but it seems inconsistent that the noble Lord wants to make this change while also seeking to revoke that more basic procedural change on allowing representations before the barring decision has been made.
Amendment 69 proposes that information about whether somebody is on the relevant ISA barred list should be made available on all enhanced criminal record certificates, regardless of whether the post falls within the barring regime. The Government's position is that although there is a case to make such information available for a few specific cases falling outside regulated activity-such as applicants to foster or adopt a child-barred list information should otherwise be made available only for positions falling within regulated activity. This represents a very simple but important principle: barring by the ISA is about regulated activity and barring decisions are made in order to prevent people, by law, from working in regulated activity. They are not intended as a broader advisory tool for employers. An employer providing regulated activity needs to know if someone is barred, because they are then required by law to refuse that person's job application. However, it is not relevant for an employer to know this when they are seeking to engage someone in non-regulated activity. Such information would only tell them that the person was barred from another area of work and making it available would be detrimental for potential employees-it is very likely that an employer in such a situation would refuse employment because they saw the word "barred", even though the person may not represent a risk to any vulnerable people in that job. I do not believe that is a new principle. Under the existing arrangements, barred list information is not generally disclosed for positions falling outside regulated activity, so I am a little surprised that the noble Lord now advocates such a change. The changes we are making are to the scope of regulated activity.
The right reverend Prelate asked whether a person barred from teaching, but not from being a teaching assistant, could still be allowed to work. If the supervised volunteer was not on the payroll of the school, it is possible that that supervised volunteer could be barred from regulated activity and could still undertake this not-regulated activity. CRB checks and references, plus the supervision, should provide the necessary safeguard. Bars have only ever been applied to the regulated activity. That was the case before and will be the case in future. The answer, if I have got it right, is very simply that the teaching assistant could work but that obviously there would be adequate supervision -a matter that we discussed under an earlier amendment.
I hope that with those explanations, the noble Lord will feel able to withdraw the amendment. If not, I leave that matter to him.
My Lords, I hope that the Minister will take away and think about the fact that the degree of supervision that the person in the supervisory capacity feels it necessary to give may vary according to the degree of knowledge that they have about the background of the person concerned. The right reverend Prelate raised a very important issue. I go back to my point about the duty and responsibility of those in the supervision capacity.
I have a sneaking feeling that the noble Baroness just does not like the idea of supervision coming in at all and would like to see yet further, more stringent measures being applied. It is a very good way in which to make sure that the appropriate checks and balances can be found. There is the appropriate degree of proportionality and there will be the appropriate supervision, which we will consult on in due course.
I think that I can agree with the first point made by the noble Baroness entirely. As for the second point, that is what we have to get right, and that is why we are going to consult and produce the appropriate guidance. But that is not something that we can get down in the Bill.
My Lords, I noticed the response that the Minister gave to the right reverend Prelate, and I think that the short answer is that the concerns expressed by the right reverend Prelate would be largely addressed through the acceptance of the amendments that we have tabled and that the Minister has declined to accept.
The Minister raised the issue of the appeal. Clearly, the Government's intentions about appeals do not appear to meet the recommendations of the JCHR. He raised the query that, under the Government's proposal, people could appeal when informed of the ruling or the decision and before the implementation. I should just make clear our stance, which we have taken throughout-that we want people automatically barred if they commit a serious offence and then to appeal if they feel that the decision to bar them has precluded them from taking up a particular position. We come at it from a different angle from that of the Minister.
There is clearly a considerable difference between us, and it came out in the first group of amendments that we discussed and again in this group. We will need to reflect on the response that the Minister has given before deciding whether to pursue the specific issue again on Report. In the mean time, I beg leave to withdraw the amendment.
Amendment 68 withdrawn.
Clause 67 agreed.
Clauses 68 to 70 agreed.
Amendment 69 not moved.
Clause 71 agreed.
Clause 72 : Information about barring decisions
Moved by Baroness Hamwee
69A: Clause 72, page 60, line 28, after "consent" insert "(provided it has not been withdrawn)"
My Lords, I hope that we can dispose of this quickly. Clause 72 deals with information about barring decisions and my question is about the consent given by the object, if I can put it that way, of an inquiry who may consent to the provision of information when that consent, we are told in proposed new Section 30A(4) of the 2006 Act,
"also has effect in relation to any subsequent ... application by",
the same inquirer. I would be grateful if the Government can confirm that, in this context, consent can be withdrawn. I would read it that way and think that it is implied. However, there is certainly one example within the Bill: Clause 27, concerning biometric information of children in school, which deals with the consent of the parent and which says in terms that consent,
"may be withdrawn at any time".
If it is necessary to spell that out in Clause 27, I would like to be quite certain that consent can be withdrawn effectively under the proposed new section contained in Clause 72. I beg to move.
My Lords, I am grateful to my noble friend Lady Hamwee for her explanation in moving her amendment. Clause 72 introduces proposed new Section 30A into the Safeguarding Vulnerable Groups Act 2006. That section will allow regulated activity providers and others with a specified connection to a person to ask the Secretary of State whether that person is on the relevant Independent Safeguarding Authority barred list, or lists. For this, the person must provide their consent to the release of information about them. Proposed new Section 30A specifies that consent given for one such check would serve as consent for subsequent checks about that person made by the same party, as my noble friend has already explained. The aim of that final provision is to reduce bureaucracy for employers and others. If a person has consented to the provision of information, it makes no sense for an employer to have to seek a new declaration from them every time that they need to do a new check. Clearly, however, the consent must be valid.
In moving her amendment, my noble friend seeks to specify that prior consent will not be valid for future checks if that consent has been withdrawn. Our view-this is where I hope to be able to give my noble friend the assurance that she seeks-is that the current drafting of the Bill achieves this policy intention. If consent has been withdrawn then, according to the terms of the clause, there is no consent and the employer would have no basis to proceed. Operationally, employers will need to confirm that they have valid consent, or they will not be entitled to carry out a check.
It is probably worth mentioning, while I have the opportunity, a wider point in the context of Clause 72. Consent could be freely given, given the potential detrimental consequences to an individual. This was something which the Information Commissioner raised in a letter that he sent quite widely to noble Lords between Second Reading and Committee. He was seeking some clarification on this. Importantly, there is only a certain degree to which the state can and should intervene in the relationship between employer and employee. Naturally, if an employer should do anything untoward, an employee has access to the appropriate legal remedies but we do not anticipate that most employers would seek to coerce their employees.
The alternatives in this case are a system where consent needs to be given or one where it need not be. We choose the former because while pressure by an employer can never entirely be ruled out, it is better than information about someone being given to a third party without their knowledge. As the Information Commissioner noted in the briefing that he provided, a barred list check under proposed new Section 30A is only one of various ways for an employer to discharge their duty to check barred status so, should consent ever be an issue, there are alternatives. However, it is worth pointing out that criminal records checks themselves require the person who is the subject of the check to make the application.
Overall, I hope that what I have been able to say provides reassurance to my noble friend that the policy intention of her amendment, with which we agree, is catered for in the current drafting and that she will therefore feel able to withdraw her amendment.
My Lords, the Minister read my mind. I had wondered whether to draw to the attention of the House the points made by the Information Commissioner, and I thank her for answering them without my asking. Her response on what is meant by "consent" is helpful, and I beg leave to withdraw the amendment.
Amendment 69A withdrawn.
Clause 72 agreed.
Clauses 73 to 78 agreed.
Moved by Baroness Royall of Blaisdon
70: After Clause 78, insert the following new Clause-
"Protection from stalking
(1) The Protection from Harassment Act 1997 is amended as follows.
(2) In section 2 (offence of harassment) for subsection (2) substitute-
"(2) A person guilty of an offence under this section is liable to imprisonment for a term not exceeding five years, or a fine not exceeding the statutory maximum."
(3) For section 4 (putting people in fear of violence) substitute-
"Offence of stalking
(1) A person ("A") commits an offence to be known as the offence of stalking, where A stalks another person ("B").
(2) For the purposes of subsection (1), A stalks B where-
(a) A engages in a course of conduct,
(b) subsection (3) or (4) applies, and
(c) A's course of conduct causes B to suffer fear or alarm.
(3) This subsection applies where A engages in the course of conduct with the intention of causing B to suffer fear or alarm.
(4) This subsection applies where A knows, or ought in all the circumstances to have known, that engaging in the course of conduct would be likely to cause B to suffer fear or alarm.
(5) It is a defence for a person charged with an offence under this section to show that the course of conduct-
(a) was authorised by virtue of any enactment or rule of law,
(b) was engaged in for the purpose of preventing or detecting crime, or
(c) was, in the particular circumstances, reasonable.
(6) In this section-
"conduct" means inter alia-
(a) following B or any other person,
(b) contacting, or attempting to contact, B or any other person by any means,
(c) publishing any statement or other material-
(i) relating or purporting to relate to B or to any other person,
(ii) purporting to originate from B or from any other person,
(d) monitoring the use by B or by any other person of the internet, email or any other form of electronic or other communication,
(e) entering any premises,
(f) loitering in any place (whether public or private),
(g) interfering with any property in the possession of B or of any other person,
(h) giving anything to B or to any other person or leaving anything where it may be found by, given to or brought to the attention of B or any other person,
(i) watching or spying on B or any other person,
(j) acting in any other way that a reasonable person would expect would cause B to suffer fear or alarm, and
"course of conduct" involves conduct on at least two occasions.
(7) The Secretary of State may by regulations made by statutory instruments add additional forms of conduct under subsection (6).
(8) A person convicted of the offence of stalking is liable-
(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both,
(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.
(9) Subsection (10) applies where, in the trial of a person ("the accused") charged with the offence of stalking, the jury or, in the summary proceedings, the court-
(a) is not satisfied that the accused committed the offence, but
(b) is satisfied that the accused committed an offence under section 2.
(10) The jury or, as the case may be, the court may acquit the accused of the charge and, instead, find the accused guilty of an offence under section 2.""
My Lords, Amendment 70 would introduce a new criminal offence of stalking in place of the existing offence of putting people in fear of violence under the Protection from Harassment Act 1997, and would clearly define stalking behaviour in legislation while leaving scope for the inclusion of additional types of behaviour should evidence suggest that it was needed. The amendment would also increase the statutory maximum penalty for harassment from six months to five years, and it would allow cases to be tried in the Crown Court as well as the magistrates' court.
Before going any further, I wish to place on record my thanks to Laura Richards of the charity Protection Against Stalking and Harry Fletcher of Napo for their fantastic research and the briefing that they have provided to all noble Lords who are interested in this issue. I am also grateful to them for the independent people's inquiry that they are undertaking.
We have debated on many occasions the freedoms of defendants and, in some cases, criminals, but now we have the opportunity to debate the protection of the freedoms of victims of stalking, many of whom are women, who are insufficiently protected at present by the legal arrangements. The British Crime Survey for 2006 estimates that up to one in five people will experience stalking in their lifetime, and that there are about 120,000 separate incidents of stalking and harassment each year. The current law is patently not working and the state is failing victims, 80 per cent of whom are women, according to data from the National Stalking Helpline.
The Protection from Harassment Act 1997 was brought in by the Labour Government to provide proper protection for victims from serious cases of harassment and stalking. However, those same victims who successfully campaigned for a change in the law back in 1997 now say that the law, when introduced, was too broad and did not go far enough to identify and prosecute the types of behaviour that distinguish stalking from other, milder cases of harassment.
Tracey Morgan is one of those leading campaigners, and I commend her for the extraordinary courage and determination that she has shown over the past 15 years in campaigning to increase awareness around stalking and to ensure that other women will not have to endure the terrible experiences that she did. For those noble Lords who are not familiar with her story, Tracey was stalked for 10 years by Anthony Burstow. Aged 22 and happily married, Tracey had sympathy for Burstow, who was a colleague and whose wife was serving abroad, inviting him out several times with her husband Andy. However, Tracey began to be disturbed and increasingly frightened by the number of times that she bumped into him outside the workplace, and then she noticed him parked outside her home. It was a pattern of behaviour that escalated into a terrifying ordeal that lasted for almost 10 years. Tracey was one of the key campaigners for the Act and is now leading the voices calling for a change in the law to create a specific offence of stalking. She states:
"Victims are never taken seriously-from police forces, to courts, to the whole criminal justice system. Claire Waxman is saying the same thing I was 15 years ago. What's changed? There needs to be a sea change in attitude. It's about murder prevention".
Leading campaigners such as Tracey and organisations such as the National Association of Probation Officers and Protection Against Stalking all argue that the law in its current form is not set up to deal adequately with cases of stalking. We therefore believe that the existing sentencing provisions must be changed to allow greater protection to victims and recognise the seriousness of the crime. The prosecution of stalking under the offences of harassment or putting a person in fear of violence rarely results in a prison sentence. Responses to Parliamentary Questions tabled in the spring of this year showed that of the 4,365 found guilty of the offence of harassment under Section 2, only 565 received a custodial sentence. The overwhelming majority of sentences were of less than 12 months and some were of a matter of days.
Just as alarming is the lack of data on the true extent of stalking. Answers to Parliamentary Questions tabled this year reveal that the Government have no idea how many homicides were preceded by stalking behaviour, or how many domestic homicides were stalking-related, since probation reports do not routinely contain social histories but focus rather on the offence in front of them. A report on the Victim's Voice survey of 143 victims, published by Protection Against Stalking, states that there is an overwhelming feeling among women victims in particular that, despite reporting numerous past incidents, which occurred time and again, these are not taken into account by the courts when assessing the seriousness of the indexable incident before them. Police, prosecutors and courts are in general incident-focused and so will look at the offence in front of them when sentencing, rather than draw conclusions from the pattern of behaviour that led up to it. However, we know from cases such as Tracey's that it is this pattern of behaviour, escalating in threat and intensity, that provides the crucial warning signs of stalking that are all too often missed.
The tragic case of Clare Bernal is a case in point. In September 2005 she was shot dead in a store in Knightsbridge by Michael Pech. He had stalked her after their three-week relationship ended, following her in the street and bombarding her with threatening calls and messages. However, after being arrested and charged with harassment, he was bailed and travelled back to Slovenia, where he purchased the gun that he used to shoot Clare while awaiting sentencing. We need greater clarity in the law to ensure that other women do not have to experience what happened to Clare. A report by Protection Against Stalking identified countless similar cases in which the law in its present form failed to protect victims-most of whom are women-and failed to intervene until it was too late.
The amendment before us today would represent the first step in ensuring that the criminal justice system properly recognises and responds appropriately to cases of stalking, not only by identifying a clear definition in law but by ensuring that victims are properly protected from perpetrators by increasing the statutory maximum penalty for harassment from six months to five years, and by allowing cases to be tried in the Crown Court as well as the magistrates' court. The changes would also mean that police had the power to enter properties and seize evidence such as computers, which are crucial to the prosecution of the growing problem of cybercrime.
As I said at Second Reading, the Government seem to be very keen on the Scottish way of doing things in other areas of criminal law. Therefore, I hope that the Minister will support the amendment today. It replicates the offence of stalking and the accompanying charges and sentencing that were introduced in Scotland by the Criminal Justice and Licensing (Scotland) Act 2010. If ever evidence were needed of a successful change in the law, the experience in Scotland provides it. In the 10 years prior to the Act, an estimated 70 cases of stalking were successfully prosecuted. Following the introduction of an offence of stalking, 140 prosecutions were made in the first four months in Strathclyde alone. Following on from Scotland, a criminal offence of stalking was introduced in Sweden in October of this year.
The people's inquiry into stalking, the National Association of Probation Officers, Protection Against Stalking, many courageous women such as Tracey Morgan and the parents of stalked women, such as John and Penny Clough and Tricia Bernal, are all calling for a change in the law to create a specific criminal offence of stalking and increase the sentencing arrangements. We welcome the announcement of a government consultation on the introduction of an offence of stalking following calls from my right honourable friend Yvette Cooper at the Labour Party conference. However, we urge the Government to use this as an opportunity for a comprehensive root-and-branch evaluation of how the criminal justice system deals with vulnerable women and male victims of stalking and other related offences.
An offence of stalking will not be sufficient in itself to provide the sea change in attitudes needed towards this hidden crime. Proper training is badly needed in order to ensure that stalking behaviours are identified early by the police and other front-line victim support services. Currently, officers in England and Wales receive no specific training in stalking and the CPS has only recently started issuing guidance to prosecutors on this issue. We also urge the Government to undertake work to develop and implement a proper risk assessment model for police forces. We know how risk assessment models work. The SPECSS model used by the Met to tackle domestic abuse and honour-based violence saw a 58 per cent reduction in homicide and serious incidents in the first four years.
We believe that speed and time are of the essence and that the law needs to be changed at the earliest opportunity. The considerable evidence presented by the Protection Against Stalking's Victims' Voice survey, the National Association of Probation Officers, as well as the evidence from Scotland and Sweden, is in our opinion more than sufficient justification for a change to be made in the law now. To wait until the results of the consultation would mean asking victims to wait for another year or more before any change in the law was brought in. We do not know how many more victims of stalking may be killed in that time. Therefore, I hope that the Government will seize this opportunity to respond to calls across the board to change the law as a first step towards better protection for victims of stalking. I beg to move.
My Lords, I fully support the amendment of the noble Baroness, Lady Royall of Blaisdon, which aims to incorporate the same law against stalking in English and Welsh law that already exists in Scotland. The campaign to establish a law against stalking in Scotland was launched in March 2009 by Ann Moulds, who was herself a victim of stalking, and other supporters. These efforts led to two clauses being inserted in the Criminal Justice and Licensing (Scotland) Act 2010.
It is particularly significant that the Scottish campaigners decided not to press for a version of the Protection from Harassment Act 1997-the current law in England and Wales. As we have already heard from the noble Baroness, Lady Royall, a similar position was taken in September 2011 by the Swedish Government. Their decision was taken on the grounds that the 1997 Act does not in practice contain sufficient powers to deal with the increasingly complex crime of stalking. In their view, harassment covers everything from rows between neighbours to domestic disputes but omits to recognise stalking behaviour per se. Stalking, they argued, is quantifiably different from harassment in law, not least in its increasing use of modern technology, particularly the internet, for what is now known as cyberstalking. It is all too easy for a stalker to reinvent himself as somebody else making inquiries about his victim. That has opened up a whole new area.
The campaign in Scotland was launched at a meeting in Ayrshire. It gathered momentum during that year and involved lobbying MSPs, officials, pressure groups, government departments and third-sector organisations over a 12-month period. During the 10 years to 2010, Ann Moulds estimated that no more than 70 cases of stalking were successfully prosecuted under British legislation. However, since the introduction of the new Act in Scotland, there has already been a number of prosecutions in Strathclyde alone in the first four months, as we have heard.
The campaign to establish a stalking law and offences of causing fear and alarm was achieved in a remarkably short period. The campaign ran for roughly a year and led to all-party agreement on legislation. The legislation has the support of the police, who have adopted operational guidelines to ensure that police are aware of stalking and harassment behaviour and take appropriate action. Again, as has been stressed, much more training will be needed.
Since the Scottish Act took effect, the number of prosecutions has visibly increased, with the vast majority of those prosecuted pleading guilty. The experience of Ann Moulds and other victims prior to the introduction of the legislation was the same as in England and Wales: namely, a feeling by victims-the vast majority of whom, as we have heard, are women-that the crimes were not taken seriously and that there was underreporting and underrecording, a lack of confidence in the justice system and a failure of the state to provide proper victim advocacy.
The seeds of the English and Welsh campaign are already being sown. We owe a tremendous amount to Harry Fletcher of Napo and Laura Richards of Protection Against Stalking. Among other things, they have encouraged the setting up of a cross-party group of parliamentarians who have taken evidence for the past few months. We hope that a report will be produced in the new year that will speed up decision-making on the legislation that we need in this country.
Stalking is a dangerous and often vicious crime that causes not just immense concern but a huge amount of damage to the individuals involved and all their family. Violence plays an inevitable part, particularly if early action is not taken. Other forms of psychological harm are used the whole time. I hope that if not today then on Report we can debate the issue in much greater depth and, I hope, reach the same conclusions as in Scotland that such a law is certainly needed urgently in England and Wales, too.
My Lords, it is frequently said that one of the strengths of this House is its expertise and experience. However, I am afraid that I have some unwelcome experience in this area that colours my views about the effectiveness, or otherwise, of the Protection from Harassment Act 1997 and the stalking Act in Scotland on which Amendment 70 is based. I had the misfortune to be the target of a sustained, three-year criminal campaign that included a number of stalking and harassment incidents, as well as criminal damage, which was waged by my Conservative political opponent Ian Oakley when I stood for Watford at the 2005 and 2010 general elections.
It started in the run-up to the general election of 2005 when posters with my name had very unpleasant swear words painted on them in large letters. To spare noble Lords' blushes, I will refer to the C-word, the WH-word and the B-word. They were so graphic that at the sentencing of the perpetrator they were not read out in court. Although it was unpleasant, the police and my team felt that it would stop when the 2005 election was over-at this point we did not know who was doing it.
Sadly, that was not the case. Over the next three years, the individual's campaign escalated to include repeatedly sending me and mainly six other individuals gay and lesbian literature, including very unpleasant and increasingly hard-core pornographic material, making repeated silent telephone calls, particularly late at night after I had gone to bed, and sending a large number of untrue and very unpleasant letters first to party supporters and then increasingly to neighbours and random members of the public. I often felt that we were being watched, and I certainly did not like being on my own.
The perpetrator continued the campaign of minor criminal damage, which also escalated from breaking car wing mirrors and fence-posts to repeatedly slashing tyres on people's driveways-not just one tyre but three or four on each car on a driveway, and done with, the police told us, a large nine-inch knife. The nature of the letters, notes and fake leaflets became more offensive and sexually explicit, which was very distressing.
Here I want to raise the issue of stalking of men. Well over 80 per cent of victims are women and the public are often unaware that men are targeted too. My close friend and colleague, a local councillor who became the second principal target in Watford, was at the receiving end of really vicious treatment in the same campaign. He was targeted simply because the perpetrator did not like the idea of a Liberal Democrat councillor in what had previously been an exclusively Conservative ward. His neighbours received anonymous letters saying that he had not paid his ex-wife's maintenance-he is still happily married to his lovely first wife. A few months later his neighbours and some random members of the public received letters saying that the councillor was a convicted sex offender. A letter a few weeks later "named" the little girl and the effect this was having on her family. The whole thing was pure fiction. But those who did not know him said to me, "There's no smoke without fire", even when told it was not true. It affected him, his wife and his adult children. This was typical of the power that stalkers try to gain over their victims through using other people near and dear to them and, sometimes, complete strangers.
As the main target, and because I was the parliamentary candidate, I co-ordinated the reporting of all these events, because in the early stages we could not get the police to take them seriously. Surveys of stalking victims show that often they suffer 100 incidents before they go to the police or can get the police to take it seriously. So it was in our case. Only when I collated all these so-called minor incidents and put them in a spreadsheet with dates, times and locations-and often one incident covered actually eight incidents of criminal damage-did the police recognise that this was more than, in their description, occasional interparty political games but was a determined and sustained campaign by an individual.
When the tyre slashing started, the police attitude changed completely. Their profiler said that the next step would be danger to people and we were warned and trained how to deal with any future events. This included saying a code word-"Operation Tuition"-when ringing about an incident so that anyone taking our call in the police control room would alert detectives immediately. This worked for a bit, but as personnel changed so the vigilance dropped, and on at least two occasions the perpetrator could have been caught if control had responded as originally intended.
My husband installed around a dozen CCTVs at the homes of the main targets, including ours, at his own personal cost and time, in an attempt to get the perpetrator's fingerprints. The targets and our families, including my teenage children, already alarmed at what was going on, were taught to use police-issue gloves to pick up anything posted through our doors.
Following an incident where my husband took a photo of the perpetrator when he was being very aggressive to me and two councillors one day, the police were able to use the photo and subsequent CCTV of a graffiti incident to link him to the vandalism, and at last, in July 2008, he was caught. Thankfully, given the weight of the evidence, he pleaded guilty to seven specimen charges: five of criminal damage and two of harassment. He asked for a further 68 to be taken into account. Another 80 or so incidents-including a large number stalking/harassment ones-were not even included.
Our case was typical of this kind. Having got some evidence, the police and the CPS wanted to close it down quickly, for which I have some sympathy. This meant that they used the incidents with forensic evidence for the charges, but stalking and harassment is harder to prove. In fact, in law, an "index" crime such as GBH or ABH will at present cancel out the need for the harassment even to be logged. This must be changed as it is making stalking and harassment invisible. We also need a higher sentencing tariff than is currently available under the harassment Act.
It may be peculiar to say this, but I was lucky-lucky because I was not on my own. With six other colleagues-five councillors and a candidate-who were also targeted by this man, and dozens of supporters having criminal damage to their properties or receiving extremely unpleasant literature about me or my colleagues, we were able to band together as a little team and support one another. Most victims of stalking are on their own. They do not have the benefit of knowing how to explain to the police or of having local newspapers, such as the Watford Observer, taking them seriously and refusing to publish the repeatedly really offensive letters about me. It is therefore essential that more support and advocacy is available to victims of stalking, especially those struggling on their own.
All these are reasons why we need legislation on stalking, and I am grateful to the noble Baroness, Lady Royall, for her amendment, which is fine as a probing amendment. However, its timing is just a little too early. The people's stalking inquiry, with the all-party support to which the noble Baroness, Lady Howe, referred, set up by the National Association of Probation Officers and Protection Against Stalking, of which I am a member, is due to submit its report to the Prime Minister early in the new year and, at the same time, the Government's own consultation will conclude.
To date, the stalking inquiry wants to recommend much of the legislation made in Scotland, on which the amendment is based, but we believe that some parts of it need to be strengthened, especially regarding training for all parts of the justice system. More specific recommendations are needed relating to the treatment of perpetrators and understanding the nature of the escalation of behaviour and violence-rather than focusing just on the length of the sentence. The treatment of perpetrators is critical. In return for his prison sentence being suspended, our perpetrator agreed to have treatment because clearly there were mental health issues. Both myself and my councillor colleague who was targeted as the fictitious sex offender were content with this. Prison on its own would have neither resolved the issue nor helped him come to terms with his behaviour. That is one of the reassurances we had.
During the whole experience, I refused to allow myself to be described as a victim, nor did I think myself as one. That is why I repeatedly used the word "target". Becoming a victim would have played into the perpetrator's hands. However, for many who do not have the support networks that I was lucky enough to call on, especially my husband and family, it must be impossible not to feel that they are a victim.
Talking about this has been a cathartic experience for me, and I did not understand how deeply it affected me until after the perpetrator's conviction, and it still does. But please do not focus on my journey; I use it merely as past illustration and, compared with the horrible-horrible-experiences of many other serious stalking cases, mine was minor. Let us start at last to get effective justice and support for the thousands of victims of stalkers who are relying us to get it right. We can do that at the Report stage of the Bill, if we move fast enough. Nietzsche famously said:
"That which doesn't kill us makes us stronger".
The problem for too many victims of stalking is that being killed or maimed is a real threat. There is no point in strength there. Let us not rush this. Let us get it completely right and then do it-and do it early next year. We owe it to those who have given their lives or live in fear of them.
My Lords, I shall be brief. I support the amendment as set out by the noble Baroness, Lady Royall of Blaisdon, who has made a very adequate case for this change. I have changed my mind on this issue over, I suppose, the past six months or so. I had for a long time thought that the current legislation, the Protection from Harassment Act, was sufficient, but I now realise that the terminology in it is too strict. The term "violence" needs to be ameliorated in some way and the wording in the amendment that refers to "fear or alarm" would take us closer to the course of conduct referred to in many parts of your Lordships' House.
This issue has grown in modern society over the past 10 or 20 years. I do not offer any suggestion as to why that has happened. Perhaps we have, paradoxically, an anonymous society on the one hand and a society with a plethora of information in it on the other. There is certainly a growth in technology and perhaps a celebrity culture. Whether celebrity is real or imagined hardly matters; the fact that it is now possible to become the focus of someone's attention is clearly at the root of what is proposed. I believe that we need to do something to alter this very tight definition of violence. The question of whether the wording of the amendment is too prescriptive I leave for a later debate. Personally, I think that much of the legislation coming through your Lordships' House is far too prescriptive, and that in itself presents a trap. I hope that the Minister can take away the comments of this House, including my own, to examine what has been said, and perhaps we can return to this matter for further consideration on Report. I support the amendment.
My Lords, perhaps I may raise two small points. They seem almost trivial in the context but they are important and, as the noble Baroness said earlier, the opportunities for this sort of discussion are limited to Committee. I appreciate that this is existing legislation in Scotland. My first point relates to proposed new subsection (4) in the amendment, which states,
"where A knows, or ought in all the circumstances to have known".
The existing Section 4(2) brings in the notion of a reasonable person. I read the existing law as objective and this proposal as being subjective, and I am not sure whether it is strong enough.
My second point relates to new subsection (2) of the proposal, where it would be necessary for the course of conduct to cause "fear or alarm". Again, I wonder whether that is strong enough. What if the victim is a particularly resilient person? Should the person engaging in the conduct be able to do so because of the toughness of the victim?
I thank the noble Baroness, Lady Royall, for tabling this amendment, whose objectives I strongly support. As noble Lords have already noted, the situation relating to stalking in England and Wales is entirely unsatisfactory. It is clear that the offence of harassment is not an effective way of dealing with the problem of stalking. It is not effective for the protection of possible victims; it is not effective for the successful prosecution of offenders; and it is not effective in the delivery of appropriate punishment for those who are found guilty.
A recent survey conducted by the members of the National Association of Probation Officers showed that the overwhelming majority of victims were in constant fear and many were physically injured. Most victims claim that there are a number of incidents before they feel they can go to the police. Often their complaints are not properly investigated, and the perpetrator's behaviour escalates over time if there is no criminal justice intervention or treatment.
It appears that stalking behaviour is simply not recognised by the majority of professionals who have to deal with the cases. Probation staff are concerned that when sentences are handed down they are often too short for rehabilitation or treatment to occur, or even to match the gravity of the offence and its effect on the lives of victims. We should not allow things to continue as they are. The suffering caused to victims is often harrowing and sometimes life-destroying.
The current methods for dealing with the problem are clearly inadequate. However, as noble Lords have pointed out, there is an obvious way forward, which is to learn from the experience in Scotland. As noble Lords have indicated, Scotland chose not to introduce a version of the Protection from Harassment Act 1997-currently the law in England and Wales-on the grounds that the Act did not transfer powers into practice. Instead, a new law, on which this amendment is based, was passed in December 2010 creating a specific offence of stalking and offences of threatening and abusive behaviour. This legislation has the support of the police, who have themselves adopted new operational guidelines to ensure proper awareness of stalking and harassment. There are clear signs of the success of this Act, even at this very early stage.
I acknowledge that the Government take this matter extremely seriously, and I know that the consultation on the issue runs until
My Lords, I note what my noble friend Lord Sharkey and all other noble Lords said. I think it was the noble Lord, Lord Dear, who said that we should take away all the comments. My noble friend said we should look at this and not delay legislation. As he reminded us, we have a consultation that runs to
As the noble Baroness will know, my right honourable friend the Home Secretary's ambition, and the Government's ambition, is nothing less than ending all forms of violence against women, including stalking. I am again grateful to my noble friend Lady Brinton for reminding us that stalking is not committed just against women and that some 20 per cent is against men. It is an offence that affects and can be devastating to many lives, and that is why we included stalking as a priority in our Call to End Violence against Women and Girls strategy published last November and why we followed it up with specific actions to tackle stalking in our action plan published this spring. It is why my right honourable friend the Prime Minister in response to a Question said:
"It is important that we take forward the work that the Home Office and the Ministry of Justice have done in looking at a proper, separate offence for stalking and recognising that there is a gap in the current law that we should fill, because there are people who are not getting the protection and help from the police that they need".-[Hansard, Commons, 23/11/11; col. 292.]
The noble Baroness is seeking to strengthen the law on stalking and, as I said, there may be a case for that, but we should remember that we have that consultation and we want to look at it in some detail. There might be a degree of unanimity about what we can do and that at a later stage of the Bill-I do not know-something might be possible. That is a matter for the future, but before I go into some of the detail about what we have at the moment and what the noble Baroness's amendment does, I think it is important to get that on the record.
I would like to make one comment that I think is relevant and to deal with the question of police training and training for others that was raised by the noble Baroness, Lady Howe, and my noble friend Lady Brinton. It is important that the right attitude exists within the police and those who have to deal with these things. We recognise that in the past that was not always the case. The Home Office has been working very hard with ACPO, the Crown Prosecution Service-which is important in this-the Ministry of Justice and, equally importantly, various stalking charities to ensure that best practice guidance has been disseminated. We are trying to do that through a series of regional events to make sure that how they must deal with these matters gets down to the police at the grass roots. ACPO now thinks that 65 per cent of forces currently have officers trained in risk assessment in this area, and it hopes to get that up to all forces by the end of the year, so awareness is improving and training will go on, but I recognise that there are concerns in this field.
I shall go back to some detail because I would like to get this on the record so that the noble Baroness can understand where we are with the existing Act-it was possibly the first Act that the previous Government passed, with the exception of that rather pernicious Act, which I was involved with, that abolished grant-maintained schools, but we will not deal with that at the moment. Probably one of the earliest Acts they passed was the Protection from Harassment Act. That was brought into force primarily to tackle stalking, but extends to any other persistent conduct that causes another person alarm or distress.
If noble Lords will bear with me, I will just run through some of the provisions in that Act as I think it is important. As noble Lords will remember, Section 1 of the Act provides that:
"A person must not pursue a course of conduct ... which amounts to harassment of another, and ... which he knows or ought to know amounts to harassment of the other".
A "course of conduct" in relation to a single person is defined as conduct that occurs,
"on at least two occasions",
in relation to that person. In the case of conduct in relation to two or more persons, the course of conduct is defined as,
"conduct on at least one occasion in relation to each of those persons".
Section 2, which is the section that the noble Baroness is seeking to extend in effect to bring us in line with Scotland, provides that:
"A person who pursues a course of conduct in breach of section 1 is guilty of an offence",
that is punishable by a maximum of six months' imprisonment, or a fine, or both. The first limb of the amendment seeks to increase that maximum penalty to a term of imprisonment "not exceeding five years" or an unlimited fine. As my noble friend Lady Brinton made clear, imprisonment is not always necessarily the way in which these matters need to be dealt with. Again, that is something that we need to consider because a knee-jerk feeling that we just up the ante in this way is not necessarily the right way to go about it.
The Section 2 offence in the 1997 Act is designed to deal with all forms of lower-level harassment, including stalking, that do not result in the victim fearing that violence will be used against them. Because it is for that lower level, we think that the current maximum penalty is probably appropriate. The Section 2 offence needs to be viewed alongside the more serious offences of harassment, including stalking-although the word "stalking" does not come into the 1997 Act-where the victim fears violence, dealt with under Section 4 of the Act. The Section 4 offence is committed when the offender pursues a course of conduct that,
"causes another to fear, on at least two occasions, that violence will be used against him",
"if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions".
This offence is triable either way and therefore carries a significantly higher maximum sentence of up to five years' imprisonment and/or an unlimited fine. Where there is that fear of violence, a much higher penalty is available to the courts.
The amendment also seeks to replace Section 4 of the 1997 Act with a new "offence of stalking" that mirrors that in Section 39 of the Criminal Justice and Licensing (Scotland) Act 2010. Although the legislation in Scotland is framed slightly differently from the Protection from Harassment Act 1997, the same stalking behaviours are criminalised. Therefore, this amendment creates an offence that is already covered by the Section 2 offence in England and Wales but which has a higher maximum sentence. As I have already said, we do not consider that to be proportionate where the conduct does not cause a person to fear that violence will be used against them on each occasion.
While the 1997 Act does not explicitly refer to stalking, it is potentially a very versatile piece of legislation and captures a wide variety of tactics employed by stalkers. It also, quite intentionally, captures other forms of harassment that have the potential to be every bit as destructive as stalking. Critically, the 1997 Act covers instances of behaviour that, taken separately, might not constitute an offence in themselves but when taken collectively form a course of conduct that can cause the victim alarm or distress. For example, a person who causes a victim to suffer harassment by loitering outside their house on one occasion but then follows them to work on another occasion could be prosecuted under the 1997 Act. They are two separate actions, neither of which is criminal, but they can be taken together. It is also possible under the existing legislation to prosecute an individual who sends e-mails or is involved in incidents on a social network site that amount to harassment of another on two or more occasions. In other words, it is possible under the 1997 Act to prosecute an individual for what is now commonly referred to as cyberstalking.
I appreciate that some campaigners believe that, simply because stalking is not specifically mentioned in the 1997 Act, practitioners do not always realise that the Act can be used to tackle stalking and fail to take the appropriate action to deal with it. This amendment would undoubtedly help to put a definition of stalking into statute. I can see that it has that advantage, and arguably that might assist in raising the profile of the legislation in relation to this very serious criminal behaviour. That is obviously a factor that we should take into account. However, I reassure the House that legislation does currently exist to cover this criminal behaviour and that, as I made clear earlier, the work that we are doing with the police and the CPS means that they have guidance on the 1997 Act, which sets out that stalking and cyberstalking are covered by the Act.
My noble friend makes a very good point and this is something we should look at. It is obviously early days for the Scottish legislation and we would obviously want to examine that. The point I am making is that it is covered by the 1997 Act; the question is whether there is sufficient awareness. Whether one should legislate just to increase awareness is another matter.
That said, as I hope I indicated in my opening remarks, the Government are committed to ensuring that we do all we can to protect victims of stalking and bring perpetrators to justice. I repeat that we introduced the consultation that has been referred to by myself and other noble Lords on
However, I hope that in light of that consultation and the work we are doing, in light of the commitment that I am making on my own behalf but also on the behalf of my right honourable friend the Home Secretary, and in light of the remarks that I repeated from the Prime Minister, the noble Baroness will agree that it might be premature to go down the route of immediately bringing in her amendments, and I respectfully ask her to consider not doing so in advance of the conclusion of the consultation, which ends in early February next year. I hope that I can assure the noble Baroness that this is something that my right honourable friend is keen to act on as quickly as is appropriate.
My Lords, I am grateful to all noble Lords for this excellent if rather short debate on stalking. It is a very important debate and I pay particular tribute to the courage and honesty of the noble Baroness, Lady Brinton. The evidence that she gave today is deeply shocking, both in the treatment that she and her colleagues received but also the lack of support and advocacy over this whole issue. Of course, I also pay tribute to Ann Moulds in Scotland, who was mentioned by the noble Baroness, Lady Howe.
We have received mixed messages from the Minister today. He sort of expressed sympathy-indeed, he quoted the Prime Minister himself, who said that there is a gap to be filled-and in some ways he recognised that the current law is inadequate. However, when he went on to talk about the law as currently constituted, I think he was somewhat sceptical of the need for a new law. He said that the Section 4 offence-putting a person in fear of violence-was adequate. However, this is very rarely used by the police, and it is very difficult to prove it and to charge people. Sentences currently tend to be very few and far between and for a very short amount of time. In 2008, 839 people were found guilty under Section 4, but only 170 were given custodial sentences. It is clear from everything we have heard this afternoon that there is a gap in the law that needs to be filled.
I hear from all the comments around the Chamber-from the noble Baroness, Lady Hamwee, and the noble Lord, Lord Dear-that there may be questions about the wording of my amendment. I also know that the Government's consultation is taking place at present. It might seem reasonable to say, "Yes, of course, I am prepared to wait until the end of the consultation". What bothers me is that, as the consultation is going to end in early February, the Government may well then say, "It is going to take us a couple of months to respond". By that time, some time in March, this vehicle that we have before us-a Bill going through Parliament-will have passed. The bus will have gone by, and we will then have to wait for perhaps another year for a law to be on the statute book, by which time more women and possibly more men may have been killed because they were victims of stalking. I do not think that I am prepared to wait for that long.
I ask the Minister to consider two options. The first is delaying the start of the Report stage, or this part of the Report stage, until we have had the responses to the consultation. The Government might then agree to do a swift turn-around of that consultation so that by the end of February, we could debate an amendment which took into consideration the results of that consultation. If the Minister is not prepared to give that assurance, I will work with noble Lords from all around the House to craft a suitable amendment to bring back on Report, which would at least take into account the evidence of the people's inquiry, which I understand will report at the beginning of January. I would then seek to bring forward an amendment on the basis of the evidence brought forward by that inquiry.
I cannot give the total assurance that the noble Baroness would like to have from me, but obviously we will work in the way we normally do-with great speed, as she knows full well-to do whatever we can. All I can say is that I cannot bring forward the end of the consultation beyond
The noble Baroness knows full well that Report is unlikely to be reached in January. We still have not completed the Committee stage; we are not going to complete it this side of Christmas. We still have two days of this Bill after Christmas. We then have to have a two-week gap between those two days in Committee before Report. The noble Baroness can do her maths and work out that the Report stage will not be with us for a few weeks.
I struggled with O-level maths, as is apparent. In that case, I hope that when we reach the Report stage in February, the Minister will have had an opportunity to respond to the consultation. If that is not the case, then on the basis of the other evidence which we will have had before us, I will bring forward an amendment and will certainly move it at that stage. I am grateful to all noble Lords who have contributed, and I beg leave to withdraw the amendment.
Amendment 70 withdrawn.
Schedule 7 : Safeguarding of vulnerable groups: Northern Ireland
Moved by Lord Henley
71: Schedule 7, page 145, line 8, leave out from "nails" to end of line 9
Amendment 71 agreed.
Schedule 7, as amended, agreed.
Moved by Lord Goodhart
71A: Before Clause 79, insert the following new Clause-
"Restriction on information provided about rehabilitated offenders
Section 9(3) of the Rehabilitation of Offenders Act 1974 is amended as follows-
(a) in paragraph (a) omit "or to another person at the express request of the rehabilitated person", and
(b) in paragraph (b) omit from "or to another person" to "the rehabilitated person""
My Lords, we have just heard one of the most remarkable statements that has been made in your Lordships' House that I can remember since being here. Now it is time to move to much more ordinary amendments.
The amendments in this group are concerned with rehabilitation of offenders. The Rehabilitation of Offenders Act was enacted back in 1974. I have had an interest in this subject because I am, and was in 1974, a member of JUSTICE, the law reform and human rights organisation. JUSTICE supported the Rehabilitation of Offenders Act, particularly through the work of Paul Sieghart, who was then its executive chairman. It managed, after a great deal of effort, to get the Act through the Houses of Parliament.
The Rehabilitation of Offenders Act gives a new chance to people who have been convicted of minor or moderate offences and have not repeated other offences during a reasonable period after their release. This gives them a better chance of getting a decent working job than if they were required to admit their offences to their prospective employers. The Rehabilitation of Offenders Act has been a very obvious success in the 37 years since it was enacted. It can benefit not only potential employers but also other people as well, because ex-prisoners who are unable to obtain a decent job are more likely to revert to crime than those who can get such a job.
Unfortunately, some employers have found a way of getting access to the past record of a rehabilitated person which is technically legal but plainly contrary to the purposes of the Act. The main way in which this happens is through Section 9(3) of the Act, which allows official documents containing full records of the offence to be provided to rehabilitated criminals and also to anyone else at the specific request of the rehabilitated offender. That means that any prospective employer can ask the prospective employee to authorise the official disclosure of his or her record. If the prospective employee authorises the disclosure of the criminal record, he or she is very unlikely to be appointed by the new employer. If the prospective employee refuses to disclose his or her record, then he or she is equally unlikely to be appointed.
This was plainly not what was intended when the Rehabilitation of Offenders Act was introduced, not was it intended at any time since. The correction of this defect is the purpose of my Amendment 71A. In the course of drafting this amendment, I have consulted the Information Commissioner's office; I have had a good deal of assistance from that office both in relation to Amendment 71A and to the other amendments in this group. I believe that an amendment to the Protection of Freedoms Bill with the aim of my Amendment 71A would help the Rehabilitation of Offenders Act to continue its work which has, as I said, been very successful.
Turning to the other amendments in my name, I can quickly get away from Amendment 76B, which turns out to be out of date. I believe its objective has already been dealt with and it would not, in any event, have furthered my objective. My aim in Amendment 84, as in Amendment 71A, is to protect rehabilitated offenders from other circumstances in which their criminal record might be disclosed in circumstances which do not require disclosure. The legislation involved in Amendment 84 involves not only this Bill and the Rehabilitation of Offenders Act but also significant amendments to the Police Act 1997 and the Data Protection Act 1998.
Clause 84, which accidentally has the same number as my Amendment 84, changes the numbering but not the operation of the Data Protection Act. It is fair to say that Chapter 2 of Part 5, which will improve Clause 84, improves the situation of rehabilitated persons. However, there is one matter in which further improvement should be made, which concerns Section 112 of the Police Act 1997. The Police Act contains provisions that might make possible delay in the commencement of Section 112 of that Act. This possibility continues under Clause 84 as it now stands. It would however be for the benefit of rehabilitation to bring Section 112 of the Police Act into action. This is made clear in a document published by the Information Commissioner's Office on the same subject as that of Clause 84, which was circulated since the Bill has come to the House of Lords.
I should like to read a brief paragraph from the circulated document. It states:
"The commencement of section 112 of the Police Act 1997 would be welcome. The Commissioner would also continue to stress the importance of introducing an offence of Enforced Subject Access under section 56 of the Data Protection Act as a matter of urgency. The opportunity to introduce these important and long over due measures should not be missed".
The form of Amendment 84 may need alteration. Certainly, it would require reconsideration because I had to deal with my amendments extremely quickly and they may not yet be correctly worded. But it is my belief that the desirability of the purpose of my amendments is plain. I hope that the Government will be able to consider including them in their amendments. I beg to move.
My Lords, I am grateful to my noble friend Lord Goodhart for providing the context and thinking behind his amendments. First, I will focus on Amendment 84, which would require that Section 56 of the Data Protection Act 1998 be commenced at most six months after this Bill becomes law, rather than, as now, no earlier than the commencement of various sections of the Police Act 1997.
As my noble friend has indicated, Section 56 of the Data Protection Act makes illegal what is referred to as "enforced subject access"; that is, when someone, in connection with employment or the provision of goods and services, requires a person or a third party to provide them with information about that person's convictions, which they will have obtained through a subject access request. This means that if the subject of the request has convictions, they are able to obtain all the information that is held by the police themselves, thus making them the subject of the request. This would be made most likely to the police under Section 7 of the Data Protection Act. This loophole allows employers to circumvent the safeguards in the Rehabilitation of Offenders Act and in the criminal records regime to find out details of somebody's spent convictions.
I agree with my noble friend that enforced subject access is wrong because it allows employers potentially to coerce employees and hinders the rehabilitation of offenders. Section 75 of the Data Protection Act provides that Section 56 of that Act is commenced only once certain sections of the Police Act, including Section 112, are in force. Section 112 of the Police Act makes provision for "basic" criminal record checks which provide details of any unspent convictions. If the section in the Data Protection Act, if it was commenced, would make it illegal for an employer to make an enforced subject access request, Section 112 of the Police Act makes provision for a basic criminal record check. An employer has another legal and legitimate route to find out information about unspent convictions only. He would be provided with information of unspent convictions and not full access to information which may not be relevant.
While Section 112 is in force in Scotland and Northern Ireland, it has not been commenced in England and Wales. The issue is when we introduce basic checks. Noble Lords may have seen the Written Ministerial Statement published this morning in relation to the Government's response to Mrs Sunita Mason's review of the criminal records regime. Mrs Mason recommended the introduction of basic checks by the Criminal Records Bureau in England and Wales. As our response to her makes clear, we accept the principle that basic checks should be introduced in England and Wales, but we do not plan to do so through the Criminal Records Bureau at the present time. We are, however, minded to introduce basic certificates in step with the establishment of the Disclosure and Barring Service, but further work is needed on the implications of doing so.
Meanwhile, some individuals already approach Disclosure Scotland for basic certificates and we are discussing the provision of a full service for all those working in England and Wales through Disclosure Scotland while the long-term position is considered. For these reasons it would not be feasible to introduce basic checks through the Criminal Records Bureau to the timetable set out in Amendment 84 in the name of my noble friend. That said, the question of enforced subject access and the commencement of Section 56 is one to which we will return in the context of our discussions with Disclosure Scotland flowing from Sunita Mason's review. I hope that what I have said provides some reassurance to my noble friend and encourages him not to press his Amendment 84.
As my noble friend has explained, Amendment 71A would amend Section 9 of the Rehabilitation of Offenders Act. Section 9 makes it an offence for a public official to disclose information on spent convictions other than in the course of their public duties. They may do so only to the rehabilitated person or someone whom they reasonably believe to be the rehabilitated person, or to a third party to whom that person expressly requests them to make that disclosure. The noble Lord's amendments would remove the capacity to disclose the information to a third party. From his explanation today, I understand that the intention behind the amendment is further to safeguard against enforced subject access. However, there are likely to be situations where a person may, quite legitimately and consensually, ask that details of their spent convictions be passed to a third party; for example, a minor requesting disclosure to their parent or guardian or an elderly person requesting disclosure to their carer. We therefore believe that the better approach is simply to commence Section 56 of the Data Protection Act at the appropriate time.
On the basis of that information, I hope that my noble friend has the assurance he is looking for and that he will feel able to withdraw the amendment.
My Lords, what the noble Baroness has said is certainly a move in the right direction and that pleases me considerably. I hope that developments of the kind she has suggested will be brought about and that that will be done without undue delay. This is a serious problem, as the statement made by the Information Commission has shown, so I hope that things will go forward. I will withdraw the amendment but I will bring it back again at the Report stage if there is any reason to believe that there is undue delay or a backward movement in what is proposed.
Amendment 71A withdrawn.
Clause 79 : Restriction on information provided to certain persons
Amendment 72 had been renumbered as Amendment 75A.
Moved by Lord Henley
73: Clause 79, page 70, line 38, at end insert-
"(3) After section 120AB of the Police Act 1997 (procedure for certain cancellations or suspensions of registration) insert-
"120AC Registered persons: information on progress of an application
(1) The Secretary of State must, in response to a request from a person who is acting as the registered person in relation to an application under section 113A or 113B, inform that person whether or not a certificate has been issued in response to the application.
(2) Subsections (3) and (4) apply if, at the time a request is made under subsection (1), a certificate has been issued.
(3) In the case of a certificate under section 113A, if it was a certificate stating that there is no relevant matter recorded in central records, the Secretary of State may inform the person who made the request that the certificate was such a certificate.
(4) In the case of a certificate under section 113B, if it was a certificate-
(a) stating that there is no relevant matter recorded in central records and no information provided in accordance with subsection (4) of that section, and
(b) if section 113BA(1) or 113BB(1) applies to the certificate, containing no suitability information indicating that the person to whom the certificate is issued-
(i) is barred from regulated activity relating to children or to vulnerable adults, or
(ii) is subject to a direction under section 128 of the Education and Skills Act 2008 or section 167A of the Education Act 2002,
the Secretary of State may inform the person who made the request that the certificate was such a certificate.
(5) If no certificate has been issued, the Secretary of State must inform the person who made the request of such other matters relating to the processing of the application as the Secretary of State considers appropriate.
(6) Subject to subsections (2) to (4), nothing in this section permits the Secretary of State to inform a person who is acting as the registered person in relation to an application under section 113A or 113B of the content of any certificate issued in response to the application.
(7) The Secretary of State may refuse a request under subsection (1) if it is made after the end of a prescribed period beginning with the day on which the certificate was issued.
(8) In this section-
"central records" and "relevant matter" have the same meaning as in section 113A,
"suitability information" means information required to be included in a certificate under section 113B by virtue of section 113BA or 113BB.
(9) Expressions in subsection (4)(b) and in the Safeguarding Vulnerable Groups Act 2006 have the same meaning in that paragraph as in that Act.""
My Lords, in moving Amendment 73 I shall speak also to Amendment 82. Within this group we shall also consider Amendment 75, tabled by my noble friend Lord Addington, and Amendment 75A, in the name of the noble Baroness, Lady Royall, and others. It might assist the Committee if I first set out what Clause 79 intends to do before speaking to the government amendments in this group, as this is the first amendment in Chapter 2 of Part 5 of the Bill.
At present, a criminal record certificate is simultaneously sent to the individual applicant and to the registered body that countersigned the application, for example an employer or sports governing body. This means that the employer or voluntary organisation gets to see any conviction or other information included on a certificate before the individual applicant has an opportunity to contest the accuracy of any conviction information or the accuracy or relevance of any non-conviction information. The Government's independent adviser for criminality information management, Mrs Sunita Mason, concluded that this approach was unfair to the applicant. We agree, as indeed does the Information Commissioner. Clause 79 therefore provides that henceforth a criminal record certificate should be sent only to the applicant. This allows the applicant to review and, where they deem it necessary, challenge any information on the certificate before it is passed to an employer, prospective employer or voluntary organisation. This change will also allow the individual to approach a prospective employer and provide background about why a particular record exists or provide further explanation or context that might not be apparent directly from the disclosure.
Some sports governing bodies and voluntary organisations, such as Girlguiding UK, have expressed concern about the impact of this change on their recruitment processes. I was able to hear about these concerns at first hand when I met a delegation of bodies referred to in the first amendment led my noble friend Lady Heyhoe Flint, and I know that yesterday she had further meetings of a constructive nature with officials in my department. I can assure your Lordships that in implementing this change, we want to minimise any disruptive effect it may have on current recruitment processes. Having listened to the representations from the England and Wales Cricket Board, the Football Association, Girlguiding UK and others, we recognise that Clause 79 as originally conceived did not get that all-important balance right, which I have referred to on a number of occasions.
We believe that the government amendments in this group address the concerns that have been raised. Amendment 73 provides a clear legislative basis to enable a registered body to track the progress of an application online and be informed about its status. This tracking facility would also enable the registered body to ascertain whenever a certificate is clear: that is, that it contains no convictions or other police information. This is a significant point, as currently some 92 per cent of criminal record certificates are clear, so such a facility will ensure that in the overwhelming majority of cases the recruitment process can proceed with confidence, even if there is some small delay in the certificate being sent by the applicant to the registered body. Government Amendment 82 ensures that the same arrangements will apply to the up-to-date arrangements.
For the one in 10 cases where a criminal record certificate is not clear, the registered body will know the date on which the certificate was issued and, as such, will be able to take appropriate follow-up action if the applicant does not provide a copy of the certificate within a few days of that date. I should stress that there is no reason why sports governing bodies and others should not continue to run their recruitment processes from a central team. It follows that there is similarly no reason why these changes should require the local football coach or scout leader to become involved in individual recruitment decisions.
I also want to allay concerns that this change will put children at greater risk. That is absolutely not the case. Where a position falls within the scope of regulated activity the employer or voluntary organisation will be obliged, as now, to undertake a barring check before a person takes up that position. In any other case-that is, where the position does not fall within the regulated activity-it will be for the employer or voluntary organisation, again as now, to undertake a proper risk assessment and consider whether it is safe for a new employee or volunteer to be given supervised access to children before all the appropriate vetting processes have been completed.
Having spoken to the two government amendments, the first of which I will move formally in a moment, I will wait to hear what my noble friend Lord Addington and the noble Baroness, Lady Royall, or perhaps the noble Lord, Lord Rosser, have to say about their amendments before I respond to them. I beg to move.
My Lords, the amendment tabled in my name and that of my noble friend Lady Heyhoe Flint addresses a concern that has been raised by the major sporting bodies. As the Minister said when speaking to his own amendment, there is a concern that the central recruitment process, which they are happy with and reasonably confident about, would in effect be reduced in power by the fact that there will now be an individual process.
By bringing forward Amendment 73, it is clear that the Government have been listening to an extent, but the major sporting bodies are still worried. They are concerned that the process being proposed by the Government, even with the tracking facility described by the noble Lord, will allow the way in for certain types of fraud and pose problems of individual disclosure that will affect the volunteering process. There is also a fear that the individual presentation of a certificate will get in the way of a centralised system that has become used to and confident about dealing with situations where, if there is a disclosure on a criminal record certificate that does not affect an individual's ability to conduct a voluntary activity, it will actually not be disclosed. Such a disclosure might involve long expired convictions of a criminal nature that have no effect on the individual's voluntary coaching activity. Offences such as those acquired after Saturday night boisterousness or other minor offences against property that go back a long way might become relevant. That is one of the problems the sporting bodies have with this. For instance, some 15 per cent of applicants into football have these types of convictions, or perhaps even more serious ones, but they are certainly not regarded as being that relevant to the safeguarding of individuals.
Also, although the Minister thinks that he has dealt with this, there are still concerns about there being a built-in process of delay-potential stalling. Stalling might come down to the volunteering. One example is the volunteer who has only just applied for this because they have increased their position in an organisation, they have been associated with the club for a long time, or they are an ex-player who has come back in a coaching role. That person makes a presentation to that club, goes to the central body and starts to stall. This is a person who is intent on doing something bad. How does one chase them up? When do you know that you should do something? When does a central authority know it should start chasing? We propose a maximum two-week delay between the application coming through and being informed that something has gone on.
That gives a timeframe, which addresses one of the major concerns about inaccuracy on those applications. It is said that only 0.06 per cent of all applications are wrong, so we have something here that involves a very small number. A two-week delay before having to make this announcement would give you a chance to look at this and say that there was a mistake. It would give you a finite period during which you can find out what is going on. It would remove from someone the responsibility to have to stall so that the person does not have access to the positions of authority that we discussed earlier. This is what the application process is for.
Sports governing bodies are very concerned to have a system that works and that they are confident about. That system is being undermined and interfered with, maybe not as much as the Government's amendment initially proposed, but they are still concerned. I look forward to hearing what the Minister has to say.
My Lords, I will speak to the Government's Amendment 73 and in support of what my noble friend Lord Addington has said.
I sincerely thank the Minister for meeting me and sports colleagues and Girlguiding UK and for such a constructive discussion. However, while I am sure that the new amended clause will produce a system that works quickly and efficiently for the vast majority of people-92 per cent was mentioned-there remains, particularly on the sporting side, a concern about governing bodies' ability to deal effectively with the remaining 8 per cent.
Amendment 75, moved by my noble friend Lord Addington, recognises that organisations that take on the responsibility for providing safe environments for children need information about those individuals who may pose a risk. The amendment does not challenge the Government's very sensible aim, which I share, of allowing individuals to dispute inaccurate information. I believe that that period, whether it is 10 days or two weeks, might be appropriate.
There are two very sensible reasons to continue sending copies of disclosures to the registered body. The first is that organisations can handle individual cases more effectively if they know whom they are dealing with. The Government's amended system highlights content but does not reveal the details. At present the governing bodies of sport are able to take appropriate action based on an assessment of the individual's unique criminal record. Where the criminal record poses no threat to children, the individual will be approved. Where further information is required to make that judgment, the governing body can make discreet inquiries until it is able to make an assessment. Where information clearly gives cause for concern, measures will be put in place to remove that individual from the sport, but only once the information is confirmed as accurate.
Currently governing bodies of sport receive the disclosure directly from the Government, which is an extremely important aspect of the system. I urge the Minister to consider the alternative, which is to ask a governing body to safeguard without full knowledge of the level of risk. If no disclosure is received from the individual after an agreed period, the governing body will have no choice but to presume that that person has something to hide and will act to suspend that person. It goes without saying that this will be hugely damaging to that individual, particularly if the reason for their non-compliance was innocent.
There is another good reason to continue sharing disclosures with the registered bodies, and that is that they will be better equipped to deal with the minority of devious individuals who pose a real danger to vulnerable people. One governing body of sport recently had a case in which an individual presented only the first page of their criminal record check, thereby concealing the serious sexual offences on pages two and three of that check. It was only because the governing body was able to compare it with its own copy of the disclosure that it could take the appropriate action without delay.
My fear is that by withholding disclosures from bodies that have a duty to protect against such dangerous individuals, we are asking them to engage in an unnecessary game of cat and mouse with people who may seek to use the organisation's blind spot to their advantage. I therefore welcome the Government's ongoing engagement with the voluntary sector on this issue. Amendment 73 goes some way to recognising the sector's requirements, but there are still grave concerns, as my noble friend Lord Addington said, and I would welcome the Minister's assurances that the Government will take into account the circumstances in which national bodies operate and take on board the compromise solution offered by this amendment, with due consideration of the timeframe delay.
My Lords, I, too, wish to register some anxieties about the proposals, and support some of the comments made by the noble Baroness, Lady Heyhoe Flint. As we know, under the Bill only one CRB certificate will be produced and provided to the individual concerned. That is a significant change to the current well established practice whereby a replica certificate is provided to the appointing body. The report that made the recommendation was based largely on the difficulties caused when inaccurate information has been disclosed. However, the Criminal Records Bureau, as the noble Lord, Lord Addington, said, reports that inaccurate information has been disclosed in just 0.07 per cent of cases. I do not believe that such a small number of admittedly distressing cases could justify such a significant change. The CRB also says that many more certificates are returned marked "undeliverable" when addressed to the applicant than when they are addressed to the registered body. If only one copy is to be sent to the applicant it risks, at the very least, further delay in any appointment process. Are we as registered bodies to be totally dependent on the individual-volunteer, in our case-concerned?
I am anxious that the Bill might miss the opportunity to set up a safe and workable system. I speak for safety in our churches, and my belief is that appointing authorities need to have access to enhanced CRB disclosures for all those who will have significant contact with children or vulnerable adults, not just those who are engaged in regulated activity as narrowly defined in the Bill. Repeated abuse tragedies highlight the importance of carefully scrutinising those who seek to work with children. We have a very particular responsibility in the church to ensure that robust and safe procedures are in place for recruitment and afterwards. Access to CRB disclosures is not the only element in the process, but it can be crucial in a small number of cases. I, too, hope that the Minister might think again about this particular part of the Bill.
My Lords, we also have an amendment in this group, Amendment 75A, the thrust of which is very much in line with the amendment in the names of the noble Lord, Lord Addington, and the noble Baroness, Lady Heyhoe Flint. The effect of our amendment, too, is to delete the Bill provisions to remove the requirement for the CRB and enhanced CRB certificates to be sent directly to the employer as well as the employee, and instead to provide for certificates to be sent to employers two weeks after being sent to the individual applicant, unless that applicant has lodged an appeal.
As has been said, currently organisations and companies providing work with children or vulnerable adults receive a copy of the regular or enhanced CRB check when it is sent to the individual applicant. The Government propose to scrap these existing provisions on the grounds that they do not leave individuals with a chance to appeal or query information on the record. Our view is that the Government's proposed changes would place unnecessary burdens on organisations, that they would damage the voluntary sector-as has been said, by potentially deterring volunteers with irrelevant criminal convictions from applying-and also put children and vulnerable adults at greater risk by creating loopholes in the system that would be open to exploitation, to which reference has already been made.
Currently of course, many larger organisations process their CRB checks centrally through qualified professionals. The CRB checks are sent directly to the central departments at the same time as being sent to the applicant, which enables swift processing of applications and minimises delays in employment. However, there are now concerns about the additional resources and time that will be spent chasing CRB checks with the individual under the provisions of this Bill. Perhaps more importantly, by requiring the individual applicant to submit their CRB certificate to the organisation, there is major concern within the voluntary sector that the Government's proposed changes could deter volunteers with minor and irrelevant criminal records from coming forward.
The Minister has stated that the Government envisage that the applicant would simply be informed of the central address to which they should send their certificate and would pass it directly to them. However, that will not be the case in all organisations and will only add to the delay in processing applications. On top of that, it still does not address the point that, if the CRB check is revealed to the individual before being submitted to a central bureau in the organisation, it may prompt the individual-wrongly-not to proceed with the application on the basis of wrong assumptions about the relevance of the information on that record.
Finally, we believe that changes to the CRB disclosure process will create a system that is more open to exploitation from the small minority of individuals who should not be seeking access to children and vulnerable adults. Organisations such as Fair Play for Children and sports associations all point to examples of the extent to which predatory individuals will go to manipulate and exploit procedures in place. I will not repeat any of those, since the one I have is the same as the one referred to by the noble Baroness, Lady Heyhoe Flint.
The Government's amendments today propose to address the problem by sending an electronic notification to the employer, once the certificate has been issued to the applicant, where the certificate is clear of any previous convictions or police information-as is the case, as has already been said, in 92 per cent of cases. However, we do not believe this goes far enough in addressing the problems that have been identified. Organisations will still have to chase certificates and delays will still occur in the 8 per cent of disclosures that are not clear. Applicants will still be required to submit certificates themselves, and therefore the potential to deter volunteers remains, for the reasons I have mentioned. In the minority of cases that are not clear of offences, the requirement for the individual to submit the check still leaves open the possibility of fraud and abuse by individuals.
Our proposed amendment would simplify the system while still allowing reasonable opportunity for the applicant to appeal any information. Our proposal is almost identical, as I understand it, to the one proposed by the noble Lord, Lord Addington, in that it would provide for a delay between the time that the certificate is sent to the applicant and the time it would be sent to the organisation and the employer. The only difference is that we have proposed a delay of two weeks, whereas the noble Lord, Lord Addington, has proposed a delay of, I think, 10 working days, so we are talking about the same period of time in reality. Our amendment also ensures that, should the applicant lodge an appeal within that period, the CRB would suspend disclosure to the organisation for the duration of that appeal.
The line of argument running through the Government's changes to existing safeguarding arrangements in this Bill is one of what they describe as proportionality and common sense-or, to use the Minister's favourite word, balance. However, the Government's approach to CRB check disclosures is wildly disproportionate. According to the Criminal Records Bureau-and this point has already been made on more than one occasion-just 0.06 per cent of disclosures have inaccuracies in them and some of these are simply a case of a misspelled name rather than a serious matter for appeal. The reality is that the Government are proposing changes that will increase bureaucracy for organisations, deter volunteers and create a potential loophole to be exploited by highly manipulative individuals; all apparently for the sake of 0.06 per cent of CRB checks. Our amendment addresses these issues.
My Lords, the first point I had better make clear-as I sensed a degree of doubt in my noble friend Lord Addington's amendment-is that the centralised system will still be there. I hope we made that clear to the various bodies that he and various other noble Lords brought to the Home Office to discuss these matters. I started off finding it rather difficult to understand precisely what his and my noble friend Lady Heyhoe Flint's concerns really were. He talked about the possibility of individuals stalling. I suppose he was trying to make a "the cheque's in the post" type of argument, which is probably one of the commonest lies we come across-the constant delay of one particular individual. I honestly do not think that concern is there, because of the various safeguards that I want to get built in.
I also want to make clear the problem with the two amendments-which are broadly similar but slightly different-and why they are not necessary and are possibly too absolutist in insisting that something should happen after precisely 10 days or after precisely 14 days. I am concerned that it undermines the core principle that underpins this clause. I agree that there should be an expectation on the recipient of a criminal record certificate to decide quickly whether to dispute any information on that certificate. However, that may not always be feasible, for perfectly valid reasons such as that the person concerned is on holiday or unwell. There could be other reasons behind it. These amendments make absolutely no allowance for such situations. As soon as the clock has elapsed, a copy of the certificate has to be issued to the registered body.
Amendment 75 also seems to assume that any disputes would be resolved quickly. I know noble Lords all say this involves only a very small number of people-nought point whatever the figure is-but it is a number of individuals and it concerns their individual liberties. That is something that we should be aware of. Although almost 98 per cent of disputes, I understand, are resolved within 21 days, some inevitably take longer and Amendment 75-and, I imagine, Amendment 74 -makes no allowance for this. I also add that the changes we are bringing in with the new system of portable criminal record certificates will substantially reduce the number of new certificates in the system, perhaps by as much as 50 per cent once the new system matures. The whole aim of these changes is to enable, for example, a teacher, classroom assistant or whoever has obtained a criminal record certificate for employment purposes to take that certificate along to the local football club, Scout group or wherever he wants to work. In such circumstances, all that the voluntary organisation would need to do is to check the existing certificate against the online system. There it will be told immediately whether that certificate is the most recent and whether there is any new information; if there is none, a decision could be taken there and then to decide whether to accept the person as a volunteer. I believe that that will significantly speed up the process for voluntary organisations in the great majority of cases. Given this new way of working, it would simply no longer be appropriate or necessary to issue a fresh certificate if someone takes up a secondary role working with children or vulnerable adults.
I hope that I have indicated that we are sympathetic to concerns raised and keen to find a workable solution. We believe that what we have put forward in our Amendments 73 and 82 offers just such a solution, which flows with the grain of what we are trying to achieve with that clause. Having said that, I and my officials will continue to discuss these matters with my noble friends, the Sport and Recreation Alliance and others. We remain ready to explore how we can further improve the remodelled criminal records system as we move towards implementation. I also undertake to write to the noble Lord and set out in rather more detail how the new system will operate, which I hope will provide further clarity on how the new arrangements will improve the efficiency of the process, including for those registered bodies-sporting bodies in the main-while maintaining and indeed strengthening the safeguarding of children and vulnerable adults.
The noble Lord has taken offence because I accidently used the words "noble friends" and did not include the entire House. I said that I would write to everyone-I will certainly include the noble Lord in these discussions if he feels he is being left out. I made the point purely because it was my noble friend who brought the sporting organisations to see me, having made a request. I am not aware that the noble Lord came along with any sporting organisations-or, if he did, I did not notice them. But anyway, I will include him in this offer. I would be more than happy to see him.
The Minister knows that I was not there with any sporting organisations, but I have an amendment down, which I take it that the Minister is not terribly enthusiastic about, which is very similar to the one tabled by the noble Lord, Lord Addington. The Minister has made it clear that he is prepared to discuss the amendment with the noble Lord, Lord Addington, so I am not quite sure why he originally intended to exclude ourselves.
The noble Lord would of course add to any gathering that we had, and I hope that he comes at least as my guest to any meeting.
I was not trying to exclude the noble Lord, Lord Rosser. I just thought that he was taking offence unnaturally, and in a manner that surprised me, because it was by a slip of the tongue that I referred to "my noble friends". I could have included everyone; I included the sporting bodies. I look forward to seeing the noble Lord.
On the basis of what I said, I hope that as I move my amendments other noble Lords with amendments down will not want to press theirs.
Amendment 73 agreed.
Moved by Baroness Doocey
74: Clause 79, page 70, line 38, at end insert-
"(3) In section 113B of the Police Act 1997, after subsection (4) insert-
"(4A) Prescribed purposes under subsection (2)(b) include licensing authorities determining the fitness of-
(a) taxi drivers to be licensed in London under section 8 of the Metropolitan Public Carriage Act 1869 and paragraph 25 of the London Cab Order 1934;
(b) private hire vehicle drivers to be licensed in London under section 13(2)(a) of the Private Hire Vehicles (London) Act 1998;
(c) taxi drivers to be licensed outside London under section 47 of the Town Police Clauses Act 1847 and section 59(1) of the Local Government (Miscellaneous Provisions) Act 1976; and
(d) private hire vehicle drivers to be licensed outside London under section 51(1) of the Local Government (Miscellaneous Provisions) Act 1976.""
My Lords, the purpose of this amendment is to ensure that licensing authorities have access to information disclosed in enhanced criminal records checks, for the purpose of licensing the drivers of taxis and private hire vehicles. I declare an interest as a Member of the London Assembly.
Local licensing authorities must determine whether an applicant is a fit and proper person to hold a licence or whether public safety would be compromised by issuing a licence to a particular individual. Licensed taxis and minicabs provide a vital service in many parts of the country. Both are crucial to the vibrancy and sustainability of the night-time economy. They are particularly important late at night, as other services wind down or become less frequent, but there can be risks. This is why Transport for London, which is responsible for licensing in London, has launched a "Safer Travel at Night" campaign, which stresses the importance of using a licensed taxi or minicab and warns that using an unlicensed car is the same as getting into a stranger's car.
Anyone who uses a taxi or minicab is effectively putting their faith in the checks that the licensing authority has made into the background of their drivers. Department for Transport figures suggest that women aged 16 to 20 undertake the greatest number of trips in taxis and private hire vehicles. These women would not fall into the legal definition of a vulnerable adult, but they are vulnerable when they get into a taxi or a licensed minicab late at night, particularly if they have been drinking. To ensure the public's confidence in licensing, authorities rely heavily on the information disclosed in an enhanced criminal records check. This provides the authority with valuable information relating to offences and so-called soft intelligence on the interaction between applicants and the police or the judicial system that is not available under a lower level of disclosure. It allows the authority to consider information on the balance of probabilities and to look for patterns of behaviour, which is very important. In some instances, there may never have been any convictions or cautions. However, the additional information provided through an enhanced disclosure can often show a pattern of behaviour that raises alarm bells with the police force and/or the licensing authority.
Earlier this year, licensing authorities were informed by the Criminal Records Bureau that enhanced criminal records checks should no longer be sought for taxi and private hire drivers unless they transported children or vulnerable adults under a contract. That move by the Criminal Records Bureau would end a system that has operated well for the past 10 years in which authorities have been able to base their decisions on information from an enhanced disclosure. In London, approximately 10 per cent of applications for a licence were turned down in that period on the basis of something picked up from the enhanced disclosure. In London alone, that amounted to at least 240 licences annually that were not issued on the grounds of public safety.
The bodies representing the taxi trade recognise the importance of the information provided by an enhanced disclosure to the reputation of their members. The Suzy Lamplugh Trust and London TravelWatch both agree with licensing authorities that the information in enhanced disclosures is crucial to ensuring public safety. This amendment would address their concerns by amending Clause 79 to add at the end a subsection inserting in the Police Act 1997, as amended, a clarification that the prescribed purposes for which an enhanced criminal record check can be sought include the licensing of taxi and private hire vehicles in London and by other licensing authorities in England and Wales. I beg to move.
My Lords, I support the noble Baroness in her amendment. It seems extraordinary that taxi companies are going to have to desist from requiring enhanced disclosures. I completely agree with her point that it is not just children and vulnerable adults at risk; many young women, especially when they have had a drink, are extremely vulnerable. I fully support the noble Baroness.
My Lords, I think that the noble Baroness, Lady Doocey, has put forward an extremely helpful amendment. The reason for thinking that is because, tragically, there have been too many instances when minicab drivers, and indeed licensed taxi drivers, have turned out to be a danger to those whom they ferry. Those instances are comparatively rare, and of course it is much safer to use a licensed vehicle than otherwise, but the danger remains.
My only regret is that the noble Baroness, in her normal ingenious way, has not found a way to encompass what I consider to be the increasingly dangerous fraternity of rickshaw drivers in London. I am sure that a few extra words would have enabled us to have a licensing regime for rickshaw drivers on top of all this, with the added protections of enhanced record checks. I appreciate that I have now caused a flurry on the Front Bench while the correct answer as to why that is incredibly difficult is explained to the Minister. However, as I think that the noble Baroness, Lady Hamwee, is about to speak, I am sure that he will have a chance to mug up on the subject.
My Lords, perhaps I will give the Minister thinking time, but I was going to say that rickshaw drivers present more dangers than those which are the subject of this Bill-the noble Lord has referred to the small number of very horrific examples.
I support my noble friend. There have been important steps in licensing over the past few years, certainly in London, but legislation cannot remove every risk. A perpetrator may not previously have been caught or may just be starting on a course of action. However, the more tools that are given to employers and to the organisers of different activities, the better-within the overall objective of a sensible regime that is not overbureaucratised.
Perhaps I might make one comment, which I wondered whether I should come in with in a previous discussion when I think the Minister was accused of being unimaginative about the amendments. I can tell the Committee that at the meeting which I attended with the various sporting groups, which has been referred to, both our Minister and Lynne Featherstone made it absolutely clear that an employer or an organiser cannot abdicate responsibility to an unthinking bureaucratic process. I, for one, was very impressed at that meeting by the common-sense attitude being displayed. We were being reminded that we cannot do everything through legislation. We will do as much as we can, but we cannot do everything.
My Lords, should the noble Baroness, Lady Doocey, need additional support, I worked with the noble Baroness, Lady Gardner of Parkes, on extending the checks and the licensing to the minicabs. For some time, some of the other cab drivers resisted licensing minicab drivers. I am quite sure that the Minister will agree that, should the noble Baroness, Lady Doocey, who has presented her case strongly and got all-round support, need additional support, then I can recommend the noble Baroness, Lady Gardner of Parkes.
My Lords, such is the benign nature of my speaking note-I am not even sure that "Resist" appears on it, as sometimes is the case-that I thought I might be able to get through the whole of this debate without an intervention from the noble Lord, Lord Harris. This was going to be a little test to see whether I could manage that. Unfortunately, he then mentioned rickshaw drivers and associated problems. I had a quick word with my noble friend Lord Attlee, who assures me that this matter was hotly debated during the Localism Bill. I am sorry that I was not there for that, but I will remember the occasion and make a point of looking up those debates. I have a picture in my mind of the noble Lord, Lord Harris, setting off home this evening to Haringey with the long-suffering rickshaw driver.
Anyway, my Lords, I express my gratitude to my noble friend for moving this amendment. She is seeking to amend the Police Act 1997 to make taxi and private hire vehicle drivers eligible for the enhanced criminal record checks. The legislation currently provides that, in the majority of cases, they are eligible for only standard criminal record checks. I assure my noble friend that we have had representations on this issue from the Mayor of London and Transport for London, and at this stage we are actively considering whether a change in the law is needed. In examining this issue, our priority obviously will be to ensure the safety of the travelling public. Further, we hope to come to a decision on this issue very soon indeed-certainly in advance of Report. I undertake to write to my noble friend and, on this occasion, to all other noble Lords who have taken part in this debate when an announcement is made.
I also offer an assurance on one small technical point. Were we to conclude that it was appropriate that all taxi drivers and private hire vehicle drivers should be eligible for that enhanced criminal record check, we could effect that approach through secondary legislation. On this occasion, primary legislation would not be needed as we could do that under the Police Act 1997. Briefly, I say to my noble friend that we are alive to this issue and intend to come to a very early decision that will certainly be before Report, which we have worked out is not likely to be before the beginning of February. I hope, therefore, that on this occasion my noble friend can withdraw her amendment and await that sympathetic letter, which she will get in due course.
My Lords, I thank the Minister for that sympathetic response and I look forward to receiving the letter. I hope that this can be sorted out because it is a very serious matter. Most parents, in my experience, say to their young children, "Whatever you do, make sure that you get into a licensed taxi or a licensed minicab so that you will be safe". I am sure we all want to make sure that it is kept that way. With that assurance from the Minister, I beg leave to withdraw my amendment.
Amendment 74 withdrawn.
Moved by Lord Addington
75: Clause 79, leave out Clause 79 and insert the following new Clause-
"Criminal conviction certificates
After subsection (2A) of section 112 of the Police Act 1997 (criminal conviction certificates) insert-
"(2B) In carrying out the duty specified in subsection (2A), the Secretary of State must wait ten working days after sending a copy of the certificate to the applicant before sending a copy of that certificate to the registered person.""
My Lords, I will make a speech consisting merely of two questions that I did not get a chance to ask. The grouping session occasionally catches us out, no matter how long we have been here.
Both my Amendment 75 and Amendment 75A, which were considered earlier, have limitations in them. Mine has 10 working days and the noble Lord's amendment has two weeks. If that was made more flexible, would some of the objections to these amendments be removed? There might be something there, as 10 working days probably is more flexible, but does this slightly different definition of the time-lag make these more workable? It is workability that we are dealing with.
Also, can we have a little more consideration of the idea of the disclosure process? As proposed in the noble Lord's amendment, if you have something which is irrelevant to the person, there may still be the concern of safety with your CRB check. Can the noble Lord give a bit more consideration about that process of disclosure? At the moment, one would be told that there was something on the check but not what it is. I wonder if the noble Lord could give a little consideration to that. I beg to move.
My Lords, on the first point I would certainly be more than happy to consider a greater degree of flexibility. I am not sure whether I would accept that what my noble friend was offering-10 working days, rather than 10 days-actually adds much in the way of flexibility, but if he comes forward with some ideas, we would look at them. I can say no more than that, but it is flexibility we are looking at, rather than the precise duration.
On the second question, disclosure would be, again, a matter that we could discuss at the useful meeting I am hoping to have with my noble friend, at which we are very much looking forward to seeing the noble Lord, Lord Rosser, as well.
I thank my noble friend for that response, and I beg leave to withdraw the amendment.
Amendment 75 withdrawn.
Amendment 75A not moved.
Clause 79, as amended, agreed.
Clause 80 agreed.
Moved by Baroness Stowell of Beeston
76: After Clause 80, insert the following new Clause-
"Additional grounds for refusing an application to be registered
After subsection (3) of section 120AA of the Police Act 1997 (refusal, etc. of registration on grounds not related to disclosure) insert-
"(4) Subsection (6) applies if an application is made under section 120 by an individual who-
(a) has previously been a registered person; and
(b) has been removed from the register (otherwise than at that individual's own request).
(5) Subsection (6) also applies if an application is made under section 120 by a body corporate or unincorporate which-
(a) has previously been a registered person; and
(b) has been removed from the register (otherwise than at its own request).
(6) The Secretary of State may refuse the application.""
My Lords, government Amendment 76 inserts a new clause into the Bill that will strengthen the current powers of the Criminal Records Bureau to refuse to register an individual or organisation as a registered body. A registered body is a body or organisation registered by the bureau as being responsible for the countersignature of applications for criminal record certificates. Such a body will typically be a large employer or voluntary organisation-for example, the England and Wales Cricket Board or the Scout Association.
None the less, beyond the minimum requirements for a body currently to be registered by the Criminal Records Bureau, as set out at Sections 120 and 120ZA of the Police Act 1997, the bureau has the power to refuse registration only if it has concerns about an organisation's ability to properly protect sensitive information that would be disclosed on a criminal record certificate.
Some 4,000 bodies are registered with the Criminal Records Bureau and all must adhere to their conditions of registration, which provide for a framework to ensure that registered bodies operate in a fit and proper manner. These conditions include requirements that application fees are paid within 15 days of invoice; that the organisation can demonstrate that it makes every effort to check that the position being applied for by an individual is eligible for a criminal record check; and that the registered body has verified the identity of the applicant before submitting the application.
The most common reason for the Criminal Records Bureau to be forced to cancel a registered body's CRB registration is the non-payment of fees. This is usually where the organisation has continually failed to make the necessary payments to the bureau for the submission of applications to it and has repeatedly failed to pay its arrears or made any substantive offer to do so.
Of course, the Criminal Records Bureau will always seek to work with registered bodies as far as possible to address any short-term difficulties where there is an apparent breach of the conditions of registration and before considering any suspension or cancellation action. However, there is a gap in the powers available to the bureau. In practice, this means that an organisation that has previously failed to meet the conditions of registration, such as the non-payment of fees, and has had its registration cancelled can simply re-register, provided that it meets the basic criteria required under Sections 120 and 120ZA of the Police Act. Quite simply, this amendment will close that gap by extending the current powers to allow the Criminal Records Bureau to refuse to register a body that has previously been registered and subsequently removed-for example, due to a breach of the conditions of registration.
For any noble Lords who may be concerned that such organisations will therefore no longer be able to carry out criminal record checks, I assure them that the new clause will not impact on an organisation's ability to apply for criminal record checks-that is, the original organisation that might use a registered body as an agent by which to apply for a check against it. In such circumstances, the organisation will be able to continue to access the Criminal Records Bureau service through another organisation that is registered satisfactorily with the bureau, typically referred to as an umbrella body. I beg to move.
Amendment 76 agreed.
Clause 81 : Enhanced criminal record certificates: additional safeguards
Amendment 76B, in substitution for Amendment 76A, not moved.
Moved by Baroness Stowell of Beeston
77: Clause 81, page 71, line 36, after "application" insert "in writing"
My Lords, government Amendments 77, 78, 79, 80 and 81 make two technical changes to the provisions in Clauses 81 and 82. First, Amendments 79 and 80 provide that a request by the subject of a criminal record certificate, or a person on their behalf, to the Secretary of State or the independent monitor to challenge the accuracy of the information on such a certificate should be made in writing. This is to bring these processes in line with other provisions in Part 5 of the Police Act 1997.
Secondly, Amendments 79 to 81 will ensure that the updating service, which is being introduced by Clause 82, will continue to operate in a given case where a new criminal record certificate is issued following a successful challenge to the accuracy of the information contained on the original certificate. The updating service can be triggered by an application for a criminal record certificate. These amendments will ensure that the service is not unintentionally terminated following the issue of a fresh certificate. I beg to move.
Amendment 77 agreed.
Moved by Baroness Stowell of Beeston
78: Clause 81, page 72, line 2, after "apply" insert "in writing"
Amendment 78 agreed.
Clause 81, as amended, agreed.
Clause 82 : Up-dating certificates
Amendments 79 to 81
Moved by Baroness Stowell of Beeston
79: Clause 82, page 73, line 8, leave out "or B" and insert ", B or C"
80: Clause 82, page 73, line 8, at end insert "and the arrangements have not ceased to have effect in accordance with a notice given under section 118(3B)."
81: Clause 82, page 73, line 30, at end insert-
"( ) Condition C is that-
(a) the certificate was issued under section 117(2) or 117A(5)(b), and
(b) the certificate which it superseded-
(i) was subject to up-date arrangements immediately before it was superseded, and
(ii) would still be subject to those arrangements had it not been superseded."
Amendments 79 to 81 agreed.
Moved by Lord Henley
82: Clause 82, page 74, line 13, at end insert-
"(7A) If up-date information is given under subsection (7)(a)(i), (7)(b)(i) or (7)(c)(i) and the certificate to which that information relates is one to which subsection (7B) applies, the up-date information must include that fact.
(7B) This subsection applies to a certificate which-
(a) in the case of a criminal conviction certificate, states that there are no convictions or conditional cautions of the applicant recorded in central records,
(b) in the case of a criminal record certificate, is as described in section 120AC(3), and
(c) in the case of an enhanced criminal record certificate, is as described in section 120AC(4)."
My Lords, I spoke to this amendment with Amendment 73. I beg to move.
Amendment 82 agreed.
Clause 82, as amended, agreed.
Clause 83 agreed.
Moved by Baroness Stowell of Beeston
83: Before Clause 84, insert the following new Clause-
"Inclusion of cautions etc. in national police records
After subsection (4) of section 27 of the Police and Criminal Evidence Act 1984 (recordable offences) insert-
"(4A) In subsection (4) "conviction" includes-
(a) a caution within the meaning of Part 5 of the Police Act 1997; and
(b) a reprimand or warning given under section 65 of the Crime and Disorder Act 1998.""
My Lords, Amendment 83 will provide parity with convictions for the recording of cautions, reprimands and warnings on the police national computer. The names database on the PNC contains the national police record of all convictions for recordable offences. It also contains details of cautions, warnings and reprimands. It is this database which is searched by the Criminal Records Bureau when it receives an application for a criminal record certificate. In the case of an application for an enhanced criminal record certificate, a separate search is also run against the police national database, which contains non-conviction information held by local forces.
Clearly, it is essential that the police national computer holds all relevant records. The current position is that cautions, reprimands and warnings are entered on to the PNC by the police using their common-law power to do so, whereas the recording of convictions is expressly provided for in Section 27 of the Police and Criminal Evidence Act 1984. The amendment will simply put the recording of cautions on the same statutory footing as that which applies to convictions. I hope that noble Lords will agree that this is a sensible tidying-up exercise, and I commend it to the Committee. I beg to move.
Amendment 83 agreed.
Clause 84 agreed.
Amendment 84 not moved.
Clauses 1 to 25, 54 to 56, 64 to 84 and Schedules 1, 4 and 7 of the Bill reported with amendments.