Clause 63
Protection of Freedoms Bill
5:00 pm

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

I beg to move amendment 121, in clause 63, page 43, line 18, at end insert—

(za) physical assistance which is given to a child who is in need of it by reason of illness or disability and is given in connection with eating or drinking (including the administration of parenteral nutrition),’.

Gary Streeter (South West Devon, Conservative)

With this it will be convenient to discuss Government amendments 122 to 142.

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

John Robertson (Glasgow North West, Labour)

Could the Minister clarify something? From what the Minister says, it seems that somebody who goes to a person who needs help and talks to them does not need to get any qualifications or certificates, but they could still explain to that person what they are expected to do when they receive some information. That could be a grey area.  They may not necessarily be the person who comes to help someone on to the toilet, but they could be the person who comes along to talk to the individual and explain the new bath.

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

As I said, the intention is to cover health care, social care, personal care services and day-to-day financial assistance, so the provisions do not cover someone who is just talking.

John Robertson rose—

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

As I said earlier, training, assistance or advice count as part of health care or social care—I thought I had clarified that.

Amendments 135 and 140 narrow down the category relating to the provision of financial assistance so that it covers only persons—“persons” does not include members of the family—who have direct access to the income of an adult who, by reason of their age, illness or disability need assistance with the day-to-day management of their financial affairs. It does not refer to formal arrangements such as those with an enduring or lasting power of attorney, which are covered elsewhere. The effect of the narrowing is to make sure that the provision is not interpreted to cover persons such as bank staff or independent financial advisers who provide occasional financial planning advice. The amendments ensure that the workers who have hands-on access to a person’s wallet, purse or bank account, where the person needs help with their money because of their age, illness or disability, are the ones who will be engaged in regulated activity.

The amendments to clause 65 make two additions to the definition of regulated activity. Elsewhere we are narrowing or lessening the roles. In this case, we are making two additions. Amendment 136 is about first aid volunteers—for example, St John Ambulance, which can give anything from a kind word and a sticking-plaster to life-saving procedures such as resuscitation. In that sense, they are analogous to paramedics who are already covered by the scheme, so the amendment includes volunteer organisations, such as St John Ambulance, but will not include workers who are designated as first aiders in offices and other workplaces.

Amendment 142 brings within regulated activity social security appointees. As with all regulated activity, the amendment does not apply if carried out by a family or personal relation. The amendment is consistent with the approach for including within the scope those who have direct access to an adult’s income and assist with day-to-day management of cash by reason of the adult’s age, illness or disability. That covers the amendments as they apply to vulnerable adults.

Turning to clause 63, many of the amendments—namely, amendments 121 to 128—broadly mirror the ones that I have just described in terms of the changes to regulated activity for vulnerable adults. There is, however, one amendment—amendment 131—that I should single out for special mention. This amendment keeps teaching, training, instruction, supervision of, and all forms of care for, 16 and 17-year-olds in regulated activity. While we are keen to scale back the scheme by removing areas  of work from regulated activity where possible, we have met representatives of a number of organisations that work with children, including the NSPCC, the Children’s Society, the children’s commissioner and the Scout Association. They have argued strongly for keeping these types of work with 16 and 17-year-olds in regulated activity. We have listened carefully to them and the amendment does indeed keep 16 to 17-year-olds within the scope of regulated activity. The NSPCC chief executive, Andrew Flanagan, said:

“The government’s amendment is absolutely right. We welcome this wholeheartedly as it will make a huge difference to the safety of young people.”

The amendment is also supported by Opposition Members.

We have to strike a balance between safeguarding young people and ensuring that the vetting and barring scheme is proportionate and does not create unnecessary burdens. The amendment would bring relatively low numbers of people back into the scope of regulated activity, who would not have been if 16 and 17-year-olds had not been included. We believe the figure is around 40,000. Beyond that, the group contains numerous minor technical and drafting amendments. Taken together, they make sensible changes to the scope of regulated activity. I commend them to the Committee.

Diana Johnson (Kingston upon Hull North, Labour)

Jenny Chapman (Darlington, Labour)

I, too, noticed the issue about St John Ambulance. My experience is that the greatest threat in safeguarding happens when an individual volunteer has the opportunity to develop a long-standing relationship of trust with a vulnerable adult or a child. I volunteered for St John Ambulance a long time ago, and we would not be doing our job properly if opportunities in that particular context with members of the public became a regular occurrence. Therefore I was slightly surprised that that was included in the clause.

Diana Johnson (Kingston upon Hull North, Labour)

My hon. Friend makes an interesting point. That group is probably most unlikely to be able to build up the kind of relationships in a position of trust that other volunteers—for example, a volunteer teaching assistant in a classroom, even if they are supervised—might be able to do. We will come on to that issue, but I think my hon. Friend has made an interesting point.

I am concerned that there may be a loophole regarding Government amendment 140. The amendment deals with general household matters, but I understand that it removes general financial assistance from regulated activity. Will the Minister comment on whether that is a loophole that might be exploited? The amendments cover a complicated area, so I understand if the Minister wants to take a few moments to go through my questions carefully.

Jim Shannon (Strangford, DUP)

I am conscious, as an elected representative, of past knowledge about the barring process. People are barred in Northern Ireland or in other parts of the United Kingdom, and sometimes there is not an exchange. I know that there will be an exchange under the provision, but will the Minister explain how that will work? If someone is barred in the court, through a trust, or through a board in Northern Ireland, for example, will that information be passed on directly to the regions of Wales, Scotland and England? It is clear that there will be an exchange, but how will it take place?

I have some knowledge from being an elected representative over a number of years—wearing a different hat from the one that I wear in this place, of course. On occasions in the past, people have been barred, but they have moved across the water. They have changed their name, by deed poll or something similar, and then, all of a sudden, someone who has been barred has almost vanished under the radar. Will the Minister give us some indication of the firm detail of how those exchanges will work in reality?

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

I shall do my best to answer the questions that have been raised by the hon. Member for Kingston upon Hull North. First, the hon. Lady believes that we should have started again, which we decided was unnecessary. It is a matter of being as clear as we can and moving towards clarity. As we discuss the various measures in the Bill, it will become clearer where the divisions are. I reiterate that we looked at the scheme as a whole, removed the parts that we did not consider necessary—for example abolishing monitoring and controlled activity, which were different levels of complication in the existing scheme. We are refining the provisions that caused uncertainty, such as regulated activity, which we are redefining so that it is much  clearer. We are amending some sections to make the scheme more proportionate, which links the bar to regulated activities. There is a clear link—if someone works in a regulated activity, barring will apply.

Diana Johnson (Kingston upon Hull North, Labour)

I understand the Government’s position—they wish to dismantle various parts of the system. It strikes me, however, that the system held together, and we could clearly identify what was happening in each part. One of the problems with the regulated activity being reduced, controlled activity being abandoned and monitoring going, is that the new system does not hang together as effectively as the old one. I understand the Government’s new take on the matter, but it seems that if we dismantle, we will lose the sense of the whole.

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

I beg to differ with the hon. Lady; obviously, I do not think that the old scheme hung together. Rather, it hung together in a way that caused a huge percentage of the population of this country to be under permanent suspicion. That is what happened in the effort to protect children and vulnerable adults, and it gave rise to all sorts of unhappiness.

Jenny Chapman (Darlington, Labour)

I cannot resist intervening. The Minister will have read the submission from Girlguiding UK. I think that there is not a voluntary sector body—or there should not be—that provides services to vulnerable adults or children that does not have a robust safeguarding policy. In such policies, all the issues are properly understood and implemented, and volunteers sign up for that. The system has not been a bar to volunteering or an impediment in the way that the Minister has suggested.

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

That is not the case. Girlguiding UK is an excellent example of an organisation that uses huge numbers of volunteers and is in that position, but not everyone who volunteers does so for an organisation that has its capability or understanding. In other circumstances, there have been all sorts of stories of people being unnecessarily required to register and be monitored. They are often reported as saying, “It made me feel like a criminal; I did not want to do it.” There was a flower arranger in a church—I do not know where—who was asked to have a check in case children came in. That was not the intention of the scheme but many people did not understand it. They thought that they could not take their neighbour’s children to school, and other things that were never intended by the old scheme. That was how it was interpreted, so it did not work perfectly.

Tom Brake (Carshalton and Wallington, Liberal Democrat)

Has the Minister or her officials looked at how many people were unable to secure employment because of the length of time it took for their CRB check to come through? The job went.

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

My hon. Friend raises an important point, which will be relevant when we move on to the provisions about how we are changing the system of CRB checks and consider their portability and speed.

Evidence from Nacro will show the hon. Member for Kingston upon Hull North how the system was misinterpreted. It has stated:

“From the calls received by Nacro’s helpline, as well as doctors, nurses, teachers, carers and social workers being checked”—

one might think that that was appropriate—

“employers also deem the following groups to be working with vulnerable people: dog wardens, IT, secretarial and administrative staff, refuse collectors, customer service staff, firemen, plasterers, rent collectors, ticket inspectors, train drivers, tenancy officers, carpenters, environmental health officers, electricians, car park attendants, plumbers and bus drivers, plus many others who by the very nature of their job have some form of contact with the public.”

On all sides of the Committee, we are doing our best to safeguard vulnerable children and adults. The difference between us is on the scale of the scheme—who is in and who is out—and we should strike a balance whereby those who do not need to be put in regulated activities are not.

Diana Johnson (Kingston upon Hull North, Labour)

With the greatest respect to the Minister, I think that she is straying into a wider debate. My point was about the amendments and the confusion that will still remain. I accept what the Minister has said about people not being clear about where vetting and barring applied in the past, but I not sure that how the Government are proceeding will make the matter any clearer; we can move on to debate the other issues.

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

As we all become more familiar with the schemes—indeed, as employers and organisations that will have to operate them, with guidance that will be issued in due course, do so—it will become clearer that applying the provision in relation to social or personal care is much simpler than having the different levels of controlled activity, or what is in and what is out. I take what the hon. Lady said in good spirit, but the system will be much clearer than it ever was in the past, and with the guidance it will become even clearer. However, there is no doubt that there is a job to be done in providing people with education and information.

I shall run through the other points raised by the hon. Lady. Amendments 122 to 124 relate to physical assistance given to children in connection with eating because of age, illness or disability, as close and personal assistance might lead to the formation of a relationship. Amendment 125 is a consequential drafting amendment. Amendments 129, 130 and 132 are technical amendments. Amendment 135 is linked to amendment 138, and amendment 134 is linked to amendment 140.

The hon. Lady particularly raised amendment 133, which is about community care. Community care services could cover a range of services, from older people attending a weekly luncheon club in order to enhance their well-being to their having a complex care package to meet all their personal care needs. Clearly “regulated activity” is about the latter, not the former. Rather than focus on the particular type of service, the definition that we are giving of “regulated activity” for vulnerable adults focuses on the nature of the activity carried out within a service. Where health care or relevant personal care is provided, no matter the name or place of the service, it will still be within the scope of the scheme itself.

Diana Johnson (Kingston upon Hull North, Labour)

So the Minister is saying that the way that the clause is amended will offer the widest possible protection to vulnerable adults. Is that correct?

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

It will offer very focused “regulated activity”, whether it is health care, social care or personal care. Those three things are the key. Regarding a vulnerable adult, for example, it is about the situation and part of it is to do with not simply labelling people as “vulnerable adults” just because they are adult. It is about the situation, the care and the service that they are receiving.

For example, I am an adult but I am not vulnerable. [Laughter.] No laughing. Perhaps the way to put it is that I do not regard myself as vulnerable. However, if I were to go into hospital, or if I were ill and needed care in my house, I would become vulnerable, because of that change in my own circumstances. That is the clarity that we are seeking to provide. It is the nature of an adult’s need at a particular time and the service that is given that is important, not anything else. And it is about not labelling people, because adults generally do not like to be labelled as vulnerable, particularly when it is relation to age.

Diana Johnson (Kingston upon Hull North, Labour)

Would the Minister give me an example of an activity that would be covered under “regulated activity” at the moment but that would not be covered in the future, as a result of this amendment, just so that I am clear what kind of activity we are talking about?

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

I will have to come back to the hon. Lady on that, if she wants an example. Meanwhile I will continue with the list of various activities.

Amendment 132 to clause 64 would amend section 60 of the Safeguarding Vulnerable Groups Act 2006, which is the section on interpretation. It is intended to ensure that there is no doubt about or misinterpretation of that section. It makes it clear that wherever the term “vulnerable adult” is used in legislation in connection with safeguarding vulnerable groups it refers to adults receiving the services that clause 65 sets out as “regulated activity”. That is why we have done that, so that we do not have to do it every time we refer to a vulnerable adult.

Regarding the issue of the Independent Safeguarding Authority maintaining a Northern Ireland barred list, all of this recognises all the lists, if you like. Therefore I do not understand why the hon. Member for Strangford raised the issue of things not happening that should happen. Nevertheless, it is the case that the ISA maintains the Northern Ireland barred list as it is, and that list is recognised in England and Wales. So there should not be any cross-duplication. Later in the Bill we will come to some measures around barring. There are some explicit measures around that issue.

Jim Shannon (Strangford, DUP)

Obviously I did not make my point very clearly. My accent is sometimes hard to follow too and perhaps that is part of it. But the point that I was trying to make is that there have been occasions that I am aware of where people have been put on a barred list and that information has not been exchanged. I will give the example of someone who goes from Northern Ireland to England, who gets their name changed by deed poll and who basically disappears into the ether.  The barring that they have had in the past has not followed them. I am not trying to be particular or smart—I am just asking a question. Does the Minister feel that there are enough safeguards in the system to ensure that that cannot happen again?

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

Certainly, the legislation’s intention is to ensure that the lists are interconnected, that everyone observes everyone’s lists and that the lists are not duplicated. I am sure that there must be a legal response to people changing their name by deed poll, so that it is not done, but people must be aware, and those lists should be cross-checked at all times. That is my understanding of the issue.

In terms of the general financial assistance that we have discussed, removing incidental financial assistance, such as advice by bank staff, does not create a loophole. We want to capture within regulated activity people with direct access to vulnerable adults. For instance, if someone is paying such an adult’s bills, doing their shopping or having actual hands-on opportunities to do wrong with their finances, either by taking things out of their purse or by doing something at the bank, obviously that needs to be a regulated activity. However, occasional ad hoc information or advice from someone involved in the financial industry is not the same thing and does not require the same level of cover.

Amendment 129 covers a particular situation in Wales and was requested by the Welsh Assembly. We accept that we need to provide guidance on the revised scheme just as we would have been required to do under the old scheme. It is important, and one of the successes of the scheme will be that it does not get off to a misinterpreted start where all sorts of things are happening that were not originally intended. There is obviously a scaling back, because we believe that 11 million people are too many to be incorporated into the scheme. We know that 95% of CRB checks, for example, are clear and always clear. It is about ensuring that, with the barring system, we recognise and deal with the greatest risks.

We should not forget, either, that the employer—the person who is on the spot, making decisions and who knows where people will be and what job they will be doing—is the best at judging whether there is an opportunity or risk that is above and beyond the barring system or regulated activity. They will have the ability, in anything that is moved from regulated to non-regulated, to seek a CRB check.

John Robertson (Glasgow North West, Labour)

Is the hon. Lady telling me that she is quite happy to accept that some people will get through the system by mistake, simply because they will not be part of the system? Under the circumstances that we have today, they would have been caught, they would have been part of that 5% and they would not be allowed to work with vulnerable people. Is she telling me that she is quite happy to accept those people going through the system, because we are not going to check as many people as we used to?

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

I thank the hon. Gentleman, but it is not about not checking people; it is about trying to separate out those who pose real harm or danger to vulnerable adults from those who do not. In the previous Government’s scheme, it was quite clear that too many  people had been drawn in. The list from Nacro that I just read out should be enough to set alarm bells ringing.

Diana Johnson (Kingston upon Hull North, Labour)

I am just a little concerned about the obsession with numbers, because we all want to ensure that those people who should not be anywhere near children or vulnerable adults are nowhere near them. With the new raft of amendments, will the Minister give us an indication of the current estimate of how many people will now come under regulated activity?

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

I agree with the hon. Lady that it is not a numbers game in that sense.

Vernon Coaker (Gedling, Labour)

How many do you want?

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

I will come back with a number, but I am trying to say that there is an overall size issue. That is not so much because of the numbers, but rather that there are so many people who did not need to be in that scheme to the level that they were. They did not need to register, be monitored and be regulated. We are clearly going to disagree on that as we go through the Bill. The Government do not think that everyone who was in the previous scheme needed to be in regulated activity, and that is the reason for reducing the scheme. It is not just about getting the numbers down. If 11.3 million, or whatever the number was, needed to be in regulated activity, then that would be a different thing, but actually that is not the outcome. The current estimate, under the revised scheme, is 5.5 million. The estimate under the existing scheme was 9.3 million, if it had been enacted. Prior to Sir Roger Singleton’s review, I believe that that was more than 11 million. [ Interruption. ] The hon. Gentleman talked about numbers; those are the numbers.

The essence of the scheme is to strike a balance between protecting children and vulnerable adults, and allowing people who do not mean harm to volunteer in those fields. In relation to criminal records, it is also to allow people to volunteer who employers might judge as unfit for a job when they are fit for a job. Barring is about those who are clearly unfit—those who have committed serious crimes and should never be let anywhere near. Those are the issues. [Interruption.] And in regulated activity. The difference that we are making is that regulated activity is supervised and that we share the responsibility between state and employer. There is a lot more to being a good employer than whether someone has passed a CRB check or a vetting check of any sort. We know, from the Vanessa George case and the nursery in Plymouth, that people can get through everything that is in place. We can never say never, and that is very sad. This is about a proportionate response. As the hon. Member for Kingston upon Hull North said, however, I have strayed slightly.

The hon. Lady asked for an example of someone covered under the old scheme. One I mentioned in passing would be a gardener in a care home, who will no longer be in regulated activity. The gardener is not giving care, personal assistance or relevant personal  care to a person in the care home; they are doing the gardening. That is a change to what was caught before, and such a person will be outwith the scheme now—just to reiterate, in case I did not make that clear.

Diana Johnson (Kingston upon Hull North, Labour)

Would the gardener not have been under controlled activity? Would he have been under regulated activity? Is that correct?

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

He would be under controlled activity.

Diana Johnson (Kingston upon Hull North, Labour)

Right. Well, on that basis, I just want to be very clear, because that is difficult to get one’s head around. Will the Minister give me an example of another employee in a care home who would not now be covered—someone who would have been covered previously under regulated employment, but would not from now on?

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

I will come back to the hon. Lady with an example. If I do not have one by the time I sit down, I will write to her. To clarify the situation relating to community care services again, we are removing the reference to community care service from the list of activities that constitute regulated activity—as I said when I spoke to amendments 133 and 139—because they are covered either under health care, relevant social work or relevant personal care. They are already caught and therefore do not need a separate reference.

John Robertson (Glasgow North West, Labour)

I want to go back to the gardener. I do not know whether the hon. Lady has visited care homes, but the gardens are some of the nicest places, and people who have learning difficulties like to go out into the garden. A lot of the time, the gardener is helping those people by showing them how to plant and tend flowers. Because under the rules that she is talking about, a gardener will not now go through the system in the way that they used to, will they no longer be allowed to show people how to plant, because, in effect, they are in charge of them and building relationships with people who are planting flowers?

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

There are two responses. One is that if the gardener is being supervised, it is unregulated activity. The other is that of course they will be able to help elderly people, or others in the care home, learn about gardening and tend the garden, but it will be the employer who will make the judgment about the gardener. If it is unregulated activity, and if the employer is concerned, for the reasons that the hon. Gentleman raised, that employer will seek to get a CRB disclosure to make the judgment about whether that person should have been employed in the first place.

Jenny Chapman (Darlington, Labour)

I am only intervening now because I think we are getting to the nub of something. I do not quite understand this, so perhaps the Minister can explain it to me. Is there not a threat that if the gardener had been barred, because they are applying for non-regulated activity, perhaps in a care home working with vulnerable adults who may have learning difficulties—albeit there would be some level of supervision—that bar would not become known to the employer?

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

For a person working in unregulated activity, the bar would not be revealed in an enhanced CRB check, but the local intelligence from the police would reveal it. We will come on to that later, so I suggest we leave that issue until then.

Diana Johnson (Kingston upon Hull North, Labour)

I appreciate that. What the Minister says is absolutely right, but the evidence that we have received shows that 50% of allegations in care homes never get to the police, so that information may not be anywhere near a CRB check.

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

This is a discussion that we will have later, and it is one of the issues that we are keen to engage on.

I am sorry for jumping around. Let me go back to changing a name by deed poll in Northern Ireland. The hon. Member—[Interruption.] The hon. Member for Strangford made a point on this. My apologies; I should know his constituency, because I have had a Westminster Hall debate with him. This issue comes down to proper identity checking by the employer in England, Wales or Northern Ireland, when, for example, applying for a CRB check. A code of practice exists for employers conducting identity checks for CRB applications, including a list of acceptable ID documents.

I now have an example for the hon. Member for Kingston upon Hull North. A cook in a kitchen would be another example of someone who was in regulated activity, who has now possibly moved to unregulated activity. I hope that answers the hon. Lady’s point.

Diana Johnson (Kingston upon Hull North, Labour)

I beg to move amendment 167, in clause 63, page 44, line 10, leave out subsection (5) and insert—

‘(5) After paragraph 1(2) insert—

(2A) Work falls within this sub-paragraph if it is any form of work, other than any such work which—

(a) is undertaken on a temporary or occasional basis, and

(b) is not an activity mentioned in paragraph 2(1) disregarding paragraph 2(3A) and (3B)(b).”.’.

Gary Streeter (South West Devon, Conservative)

With this it will be convenient to discuss the following: amendment 168, in clause 63, page 44, line 23, leave out ‘day to day’ and insert ‘close and constant’.

Amendment 171, in clause 63, page 44, line 23, leave out ‘day to day’ and insert ‘regular and direct’.

Amendment 174, in clause 63, page 44, line 23, leave out ‘day to day’ and insert ‘close’.

Amendment 177, in clause 63, page 44, line 23, leave out ‘day to day’.

Amendment 178, in clause 63, page 44, line 28, leave out ‘day to day’.

Amendment 169, in clause 63, page 45, line 28, leave out ‘day to day’ and insert ‘close and constant’.

Amendment 172, in clause 63, page 45, line 28, leave out ‘day to day’ and insert ‘regular and direct’.

Amendment 175, in clause 63, page 45, line 28, leave out ‘day to day’ and insert ‘close’.

Amendment 170, in clause 63, page 45, line 38, leave out ‘day to day’ and insert ‘close and constant’.

Amendment 173, in clause 63, page 45, line 38, leave out ‘day to day’ and insert ‘regular and direct’.

Amendment 176, in clause 63, page 45, line 38, leave out ‘day to day’ and insert ‘close’.

Amendment 179, in clause 63, page 44, line 38, leave out ‘day to day’.

Amendment 180, in clause 63, page 46, line 23, at end insert—

‘(12) After paragraph 10 insert—

(11) For the purposes of this Bill supervision will be defined as constant monitoring by an individual who is on the same site and able to maintain constant visual and audio contact with the person under supervision.”’.

Diana Johnson (Kingston upon Hull North, Labour)

Amendment 167 was tabled to try to deal with paid and unpaid people who work in regulated activity. Under the vetting and barring arrangements that have been set out, nearly all work in some prescribed settings, such as schools, counts as regulated activity. Clause 63(5) exempts some people in these settings. Subsection (5) distinguishes between paid and unpaid employees in those prescribed settings, and it provides that paid work in prescribed settings undertaken as part of a contract for occasional or temporary services will be exempt from regulated activity unless it is an activity described in paragraph 2(1) of schedule 4 to the Safeguarding Vulnerable Groups Act 2006. It also provides that similar temporary or occasional unpaid work in prescribed settings will be exempt from regulated activity  and that unpaid work will be exempt from regulated activity if it is supervised. That means, for example, that a paid teaching assistant working under supervision with children in schools will be included in regulated activity, but an unpaid assistant in a similar post will not.

Our amendment would remove that distinction so that both paid and unpaid work are treated the same. Unpaid staff in schools would not be exempt from regulated activity simply because they are supervised. The NSPCC has sent the Committee a helpful briefing on that subject, which it is particularly concerned about. Decisions on thresholds for vetting and barring should be made on the basis of risk. Volunteers, as the NSPCC and many other children’s organisations have said, are no less likely to cause a child harm than a paid employee.

The other amendments in the group address supervision, which is closely linked to that issue of unpaid and paid people in such positions. Amendments 168 to 180 address the definition of supervision.

Amendments 168 to 170 would replace the Bill’s definition of “day to day” supervision with “close and constant” supervision. Amendments 171 to 173 test the meaning of supervision by replacing “day to day” supervision with “regular and direct” supervision. This is an opportunity to think practically about what supervision means and how it affects what goes on with volunteers. I have already given an example from the classroom.

As I set out when I spoke to the lead amendment, regulated activity related to children no longer includes any supervised teaching, training or instruction of children or the provision of care or supervision of children by a person who is being supervised by another. The only exceptions are certain types of personal care or health care provided to children, or where activities are carried out by a paid person in a specified place such as a school, child care setting, children’s home or children’s centre.

As supervised activities are exempt from vetting and barring arrangements, individuals working in such positions do not have to have a CRB check. Crucially, barred individuals may end up working in such unpaid positions.

Our amendments attempt to tighten up the definition of supervision. Rather than the current wording of “day to day” supervision, we want to look at the NSPCC’s preferred amendment of “close and constant” supervision and our proposal of “regular and direct” supervision. This is an opportunity to address that whole question.

People who work closely on a frequent and regular basis should be covered by regulated activity, unless there is clear and close supervision that is sufficient to ensure that those individuals are not able to harm children. We do not think that regular day to day supervision at the moment is sufficient to keep children safe. This is a difficult issue. I understand the Government’s problem in defining in one sentence, in one clause of a Bill, exactly what the nature of supervision should be and what is acceptable for someone who is exempt from regulated activity; but it is clear from the evidence the Committee received that this is a genuine issue that is exercising the concerns of many in the field.

In its evidence to the Committee, the Christian Forum for Safeguarding said that it was concerned about the whole issue of definitions, and it believes that it is very difficult, particularly for a largely volunteer organisation, to implement legislation and guidance if there is a gap in the understanding and a lack of clarity in the wording it is asked to look at. On page 1 of its submission to the Committee, it specifically refers to the definition of supervision. It has a real issue with that. It went on to talk about the nature of regulated activity, and it believes that it is important that good and clear guidance be issued about exactly what regulated activity is, with full details of what supervision should be.

Perhaps the Minister will correct me, but I cannot see where the Bill sets out the Minister’s responsibilities to provide clear guidance to the voluntary sector and groups such as the Christian Forum for Safeguarding. Is such an undertaking in the Bill, or will it be provided later? Everybody would benefit from knowing that clear guidance will be produced.

I have a couple of examples that I would like the Minister to comment on. One is from the NSPCC, and obviously we look very carefully at what it says as it has a great deal of experience and knowledge in this area. It gives the example of an expert speaker who goes to a scout group to deliver sessions on a particular issue. The speaker works with the whole group, with the scout leader watching over the session. The speaker need not be in a regulated activity because the scout leader is able to watch what they are doing all the time, and they cannot develop close relationships with particular children.

The NSPCC goes on to talk about an assistant football coach who coaches a group of children for significant periods of time on a pitch that is away from where the main coach, who of course would be in a regulated activity, is working. It says that since no one is directly supervising the assistant football coach in his interactions with the children, he does have the opportunity to develop close relationships with those children, which could be exploited.

Can the Minister look at the definitions that we have set out: the “close and constant” and the “regular and direct”? Also, can she look at amendment 180, which deals with constant monitoring and is the final amendment in the group? It does not simply look at definitions around “close and constant” or define supervision in different ways. It actually introduces the possibility of a new subsection, which would give clear definition to supervision. In that case, the subsection would say that there should be

“constant monitoring by an individual who is on the same site and able to maintain constant visual and audio contact”.

We tabled that amendment to allow the debate to take place on this issue. We give the example of a school volunteer drama teacher or a sports coach. The individual could come into school and work with a small group on a regular basis. It would not be a regulated activity because there would be supervision, but parents would like to know that if an individual who is not vetted is to have access to their children, there is more than just the day to day supervision set out in the Bill. Amendment 180 makes it clear that if an individual is to be left alone with children, especially if they are in a different room from a supervisor, they should be subject to full vetting.

This group of amendments aims to test with the Government the problem identified by the NSPCC and many other children’s charities—the rather loose definition of day to day supervision. I hope the Minister can accept that these amendments are put being forward in the spirit she talked about at the beginning, that we all have the best interests of children and vulnerable adults at heart and that we want to get this measure right. At the moment there is a major problem, not only with the distinction between paid and unpaid workers but with this very loose definition of supervision. Unfortunately, that definition is open to people who might feel that, with this new system and new scheme, there is an opportunity for them to get into schools, churches and other groups where they would have access to children.

The Christian Forum for Safeguarding set out very clearly its genuine concerns about what this measure would mean for the Churches that have all signed the letter on this subject. I must say that when I went through the letter I was struck by the fact that it features everybody: the Salvation Army; the Catholic Safeguarding Advisory Service; the Lutheran Council of Great Britain, and the Church of England. It really is a who’s who of the religious world. There are genuine concerns and I hope the Minister will look very carefully at what is being proposed in this group of amendments.

Jenny Chapman (Darlington, Labour)

I rise to speak briefly in support of the amendments proposed by my hon. Friend and to agree with the NSPCC. Given the difficulty the Minister has had in providing examples, I would like to know if she has visited the Independent Safeguarding Authority and spoken to the decision makers there and looked at their case files, or if she has read any of the evidence that is used when decisions are made. If she has, she will at least be aware that much of the evidence used when making a barring decision does not actually come from the police at all, and that ISA makes many further inquiries to help it make its decisions. I have actually done all those things, and perhaps I could assist the Minister in making her decisions on this matter.

I will use an example, not of a football coach but of a badminton coach this time.

Jim Shannon (Strangford, DUP)

A minority sport.

Jenny Chapman (Darlington, Labour)

I am trying not to offend anybody. This is a real example of something that happened. The badminton coach was working in schools. Some parents became concerned about the coach’s inappropriate behaviour and, rightly or wrongly, they took it upon themselves to watch the training sessions covertly. They became convinced that the coach’s behaviour presented a risk, and they contacted the police and the school so that action could be taken.

The police investigated and they found stories made up about the children on the coach’s computer, which he himself had written. These stories involved descriptions of sexual contact with girls he was teaching and they described his fantasies towards children. He had also constructed highly inappropriate questionnaires, asking the children for their basic information—their name, address and so on—but also for their Facebook profile information, before going on to ask some extremely inappropriate, intimate questions. I will not explain what they were.

It seems to me and it seemed to ISA, which went on to bar this individual, that he had a sexual interest in children, and there is no doubt that he should not be anywhere near children—in a regulated, unregulated or any context whatsoever. However, he had actually committed no offence. No photographs were found on his computer, and one could say that no child had been harmed. Certainly no child was prepared to pursue a formal complaint. Nevertheless, ISA was able to bar that person from working with children. Under the current system, such people do not have the opportunity to work with children as easily as they will in future under a revised scheme, because we know that having a sexual interest in children alone is not an offence.

In conclusion, I find the Minister’s position slightly naive. As the Girlguiding UK submission observes, the Government are confusing the system further, and the measures might deter volunteers. Volunteer guiding and scout commissioners do not want to be in a position to make the barring decision, thank you very much. They want ISA to do so and to inform them of that decision. They are saying that they do not want that on their hands. Has the Minister visited ISA, and will she listen to the views of the NSPCC and Girlguiding UK?

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

I turn first to the who’s who of the religious fraternity. Yes, they have best interests at heart and so on. In considering the definition of supervision, as we are seeking to do, the Opposition propose constant monitoring, whereas we say that if something is unsupervised, it is regulated activity, but if it is supervised, it is not. It is the difference between regular, day to day monitoring, which we say is adequate, and constant monitoring, which the hon. Member for Kingston upon Hull North says should be the bar for deciding whether something is regulated or not. I am trying to describe the difference.

Diana Johnson (Kingston upon Hull North, Labour)

I understand, and I am grateful to the Minister, but will she explain what she expects day to day supervision actually to mean? I think that that is what people are struggling to understand. What do she and the Government expect day to day supervision to look like in a voluntary sector group, school or wherever?

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

I will come to that. I wanted to deal with the point about “constant”. At the moment, for example, if a teaching assistant were being supervised, they would therefore be unregulated. If supervision needed to be constant, if the person supervising them—who must be cleared for regulated activity—popped out of the room to the loo, that would mean that the coach or assistant would immediately become regulated. If the word “constant” is used, the slightest nipping out for anything would not be acceptable, because the legislation would make it illegal, and the person concerned would go from unregulated to regulated activity in that moment, because they would not be under constant supervision.

That is the area in which we are working. It is impossible to cover everyone all the time. The amendment would put us right back where we started; perhaps that is the Opposition’s intention. Supervision under the hon. Lady’s amendment would have to be constant and direct.

Diana Johnson (Kingston upon Hull North, Labour)

I understand what the Minister says about “close and constant” supervision, but what about “regular and direct”? Does she think that would work?

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

I interpret “direct” to mean pretty much the same as “constant”, because that directness is lost the minute that somebody is not there. We seek to scale back the measures to a common-sense level. Otherwise, we would find ourselves back in the position under the current scheme.

On “supervised”, even under the last Government’s scheme, the proposals would, in some instances, have left an unchecked individual unsupervised with children. That demonstrates how difficult it is to be sure in every event. One example is infrequent activity that, if it had become more frequent, would have become a regulated activity. I do not have the details to hand, but it was x times a week or month, so if someone did an activity less frequently than that, it was unregulated, and if they did it more frequently than that, it became regulated. Therefore, there were similar things. There was also a series of specific exceptions, such as for home-hosting for schools and for the supervision of children in employment.

Moving on to how the Bill defines “supervised”, the wording in the Bill, as the hon. Lady says, is

“any such work which is, on a regular basis, subject to the day-to-day supervision of another person who is engaging in regulated activity relating to children”.

That is a tight definition. Supervision, for example, cannot just be done initially when someone arrives. People cannot supervise someone in the first week of their unregulated activity and then say, “Well, I have supervised you now, and you are fine. I can leave you on your own.” That is the point. It cannot be done once, but must occur every week, day to day. Also, it cannot be done just by anyone, but must be done by someone who is in regulated activity, and who must or can be checked against the barred list.

Diana Johnson (Kingston upon Hull North, Labour)

Is the Minister saying that the supervision cannot be done for a week, but it can be done just at the beginning of the day? Therefore, the person who is in regulated activity may see the volunteer at the beginning of the day in a particular environment and say, “Today you are going to go off with a group of children into a room to do a drama lesson,” and that is okay. Is that the Minister’s view?

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

That is where the employer’s judgment comes into the area. 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. When the Scout organisation came to give evidence, it used the example of volunteers as scout-masters, with lots of scouts. They were being supervised, so that was unregulated and was not an issue. However, it posed the question: what happens if each of those volunteers then takes a group of children off into a room for a length of time on a regular basis, where they cannot be seen? The answer is that that is unsupervised, and will therefore become regulated activity. The level of activity will have to be judged by the organisation, but if the situation is as described in that evidence session, that will be regulated activity, as it is unsupervised and on a regular basis, and the same people are engaged with the children.

That is the dividing line. If something is unsupervised, it becomes a regulated activity. When the hon. Lady says, “At the beginning of the day,” that will be for the employer to decide. We will give guidance on the matter, but the definition is that if it is at the beginning of the day, it depends on how far, how long and how often. It is far better for employers or organisations to make such judgments because they have the responsibility on the spot, can look at the situation and know the physical location and lay-out. It is better than having a blanket approach, saying to everyone that if they are out of the room for two moments, supervision is not constant, and therefore the activity has to be regulated. It is about using the expert judgment by the person on the spot, who is in the best position to judge whether there is any risk or danger. Either it can become a regulated activity, and therefore subject to the barring regime, or organisations can ask for an enhanced CRB check, in which case they will get all the local police intelligence that might lead to a barring, even if a barring is not shown.

Jenny Chapman (Darlington, Labour)

I appreciate that the Minister may be getting exasperated, but the issue is important. Information on the CRB check is not all the information that is available to the barring organisation, the ISA. That is not correct.

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

Is the hon. Lady referring to employer information, which does not go to the police at any point but which can sometimes lead to a barring by the ISA?

Jenny Chapman (Darlington, Labour)

At the point that the bar is made, the police do not have all the information that the ISA has. To use the example of the badminton coach, a person who has been registered with a professional body may fail to return their pass. I am clutching at examples. Some people may deliberately try to evade the system. Someone is barred because they are unsuitable to work with children. They are dodgy, everyone knows they are dodgy, and they are damn well sneaky as well, nearly all the time.

Gary Streeter (South West Devon, Conservative)

Order. Interventions should be short.

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

If they are dodgy, they will not be able to work in regulated activity. In the case that the hon. Lady raised, the school reported it to the police.

Jenny Chapman (Darlington, Labour)

But what about the next time?

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

It would be on local intelligence thereafter. Indeed, the parents are a good example of common sense coming into play. They saw something suspicious and they reported it. Moreover, we have to send a message to employers loud and clear that if anything goes on in their establishment or their auspices, they must tell not only the ISA, but the police as well. If it is serious enough to lead to a barring decision by the ISA, it is serious enough for the police. We want to encourage people to report things to the police, rather than circumventing it as employers have done. Rather than dealing with things, they have alleviated their conscience by telling the ISA but not the police. It is important that employers and organisations tell the police in those circumstances.

John Robertson (Glasgow North West, Labour)

First, I should declare an interest, because my wife is the manager of the equivalent bureau in Glasgow that does the criminal records checks. I have some information on the matter.

As I understand the system, the individual will ask for and pay for the check. The only person who will get the information back will be the individual. The Minister seemed to be saying that the organisations would be asking for checks. I made the point some time ago that there are times when groups, such as airports, put in block checks. Who gets that information? How does the company get the information back? I am sorry to speak for so long on this, but it is an important point. If there are budgets involved, and they do not want to get checks, who will pay for them at the end of the day?

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

If the hon. Gentleman will forgive me for the moment, I will return to that in a moment because I have the answer in my pack. He raised this issue in the evidence sessions. I will try to progress through some of the points raised, before I deal with any new points.

On supervision and guidance, we will be issuing guidance. We will be working with all the agencies on that guidance, and consulting with them, so that there is a common understanding across all the organisations and employers of what supervision means, on a scale between constant—which means that the supervisor cannot leave the room—and unsupervised. I give that undertaking now. We have to find a clear explanation that people can happily subscribe to.

Diana Johnson (Kingston upon Hull North, Labour)

Would that be statutory guidance? Will it have that force? What concerns me is that many community and voluntary groups are saying that they want clear guidance and understanding of what they are, or are not, doing. I think it should be statutory guidance.

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

We are not intending it to be statutory guidance. We think it will be clear guidance, but not statutory guidance.

The hon. Lady raised the issue of the difference between paid and unpaid work. If a volunteer is unsupervised, that will be regulated. If a member of staff is unsupervised, that will be regulated. The difference that we have established is that paid supervised staff in schools will be more strictly treated than supervised workers in other settings. That is because we listened to parents, who view schools and similar establishments as having a particular status where the law should require particular safeguards. If someone is supervised, it could be unregulated, but that would not be the case in a school. That is the answer to the hon. Lady’s questions.

Overall, on intensively supervised volunteers in schools we propose that supervised workers—this continues the point—should not be in regulated activity, whether paid or unpaid. It is not that we are being less restrictive. We are actually being more restrictive on supervised staff in schools by proposing that all paid staff remain in regulated activity, even if they are supervised. That is because we listened to parents. We think that it would go too far, however, to put supervised volunteers in a school—such as parents who volunteer to help with reading for a couple of hours a week—into regulated activity. Being unable to just go in and volunteer is the sort of thing that has made people very unhappy.

Diana Johnson (Kingston upon Hull North, Labour)

Does the Minister accept that that could mean that a former teacher, who has been barred from being a teacher and volunteers their services in a school to do reading classes with the children while supervised by a class teacher, would be taking part in an unregulated activity? The school will not know that there is a bar—it will not have any information about that. Is that not a concern for most parents?

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

As I said, we can never say never, and not every situation that was not covered before is covered this time, otherwise there would be no point in our putting forward these changes. It does not have to be an ex-teacher, but it is possible for someone who was barred to be working in unregulated activity in a school. However, they will be supervised. They will not be unsupervised. If they are unsupervised, then it is regulated activity—that is the point. It is quite hard to imagine—we will work through this in the guidance—that a school would enable just anyone to work with children. I imagine that they would get the enhanced Criminal Records Bureau disclosures, which would show the local intelligence, if not the bar. It is only the bar that is not shown—anything else would be shown.

Diana Johnson (Kingston upon Hull North, Labour)

I am a little concerned by that. I understand what the Minister is saying, but the problem is that most parents, if we are applying a common-sense approach, would want to know whether any child of theirs at school had a volunteer in the classroom who was barred because of activities that made the ISA feel that it was appropriate to bar them from dealing with, or teaching, children. Any parent would want to know that, and what concerns me is the level of supervision. If one did not know that someone had been barred, would not the level of supervision be slightly different from what it would be if one knew they had been barred?

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

That is a point, but they will have had the same information, barring the bar, on the local intelligence, the convictions, the spent convictions and all of the information that comes through on the disclosure from the enhanced CRB check.

Tom Brake (Carshalton and Wallington, Liberal Democrat)

Does the Minister agree that a school always has to maintain a high level of supervision of volunteers, because it could be that a volunteer commits their first offence in that school?

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

My hon. Friend makes a really helpful point. The point that I keep trying to go back to is that the employing organisation has the responsibility, if anyone is there under their auspices, carrying out an unregulated voluntary activity, to make sure that their supervision is adequate to the cause.

The hon. Member for Glasgow North West raised the prospect of the individual making the application and the certificate going to someone and the firm not knowing. The individual makes the application, but it has to be signed by the registered employer, now and in the future, so the employer will know that the application has been made. There is no difference between the two schemes on that particular point—it is a matter for the employer who pays the fee. We would expect the employee to show the CRB certificate to the employer once any  disputes have been resolved. They have the opportunity to dispute information if they do not like it. Regulated activity employers will be under a duty to check whether a person is barred, and one of the ways to fulfil that obligation is by seeing the word “barred” on the enhanced CRB check.

John Robertson (Glasgow North West, Labour)

I accept exactly what the Minister says, and I have a real problem with it. That person can now disappear and get another job, and nobody from that employer will ever ask any questions about whether they should have obtained a copy of the information about whether that person was barred.

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

I am not sure that I understand the hon. Gentleman’s point. Is he saying that the person had some information that they did not want the employer to see and, therefore, did not go forward with the application? In the end, the person will not be employed unless he convinces the employer and shows them the CRB check.

John Robertson (Glasgow North West, Labour)

The Minister has got part of it. The person gets the answer back to them as an individual. They apply for the check, and they are told that they have failed, and either they probably knew that already or they perhaps thought that their record had disappeared, but they do not tell the employer that they have failed. One question that was asked during the evidence sessions was, “How long does that take? How long could that stretch out for?”, and the answer was basically, “How long is a piece of string?” That person could actually stay in the job for quite some time before moving on, without the employer ever knowing anything about it.

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

I am sorry. I thought the hon. Gentleman said that the person in question did not get the job because when they saw their CRB certificate, they realised that the employer was not going to employ them if they saw it, and therefore they did not get the job in the first place.

Gary Streeter (South West Devon, Conservative)

Order. It is important that the Minister speak to the entire Committee and that we do not have a fireside chat between two individuals.

John Robertson (Glasgow North West, Labour)

I apologise, Mr Streeter. I was saying that the person who receives the information will not impart it. The employer will know nothing about it because, as we heard in our evidence sessions, such people were employed before the results of the check emerged. The check was done as a result of continued employment and was not done to get the job.

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

I think the hon. Gentleman is making the point that there is a time lag.

John Robertson (Glasgow North West, Labour)

Yes.

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

I will have to come back to him on that. I have the details of the speed of CRB checks and disputes and such things, but there is indeed a time lag.

When the hon. Member for Kingston upon Hull North asked why we did not put certain things in the Bill, that, again, was about guidance. As I said, we are happy to give the undertaking that there will be guidance. New clause 14 deals with that, so I am sure the hon. Lady will return to that point at a further date. She asked why we do not say in the Bill that there will be guidance. We do not consider it necessary to refer in the Bill to the provision of guidance. However, I am stating in Committee that that will be the case, which it will.

The hon. Member for Darlington said that she has spoken with several charities. I have met a number of charities, too, and the result of one of those meetings was listening to them about the issue of 16 and 17-year-olds, which we discussed earlier. She used the example of a badminton coach working in a school and parents noticing some inappropriate behaviour. They contacted the police and the school. The coach was clearly in an inappropriate position. I trust that they lost their role as a sports coach, which she omitted to say. That whole event was triggered by common sense. I do not know at this point, from what the hon. Lady said, what checks were actually done on that person before they took up the role of coach. However, even if it is unregulated, it is still the school’s responsibility to ensure that, whatever the circumstances, anyone who works with children—regardless of how often or how long for—is appropriate. As I said, CRB checks will be available and will have local intelligence, unless none is yet available. I return to the Vanessa George case: with all the checks in place, she was able to work for a long time at a nursery doing the most dreadful things. One can never say never, but that is the balance that we are trying to strike.

Jenny Chapman (Darlington, Labour)

The Minister is right that one can never say never, and a lot of this comes down to the culture of the organisation and how safeguarding is managed in a given context. My point in giving the badminton player example, however, was that the barring decision came about as a result not just of police information but of other information that would not be available through a CRB check in an organisation. Also, if I understand correctly, under the proposals this person, who clearly has a sexual interest in children, would be able to volunteer at a scout association and no one would be any the wiser that they were barred.

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

The hon. Lady said that the case was reported to the police and that the individual in question was barred. That would be in the local intelligence, because information regarding sexual intentions towards children would constitute local intelligence. It cannot be said that this individual had not done anything; he had crossed a line and would therefore have come to the notice of the police, and information about him would have been available. The employer, being a good school, would and should have checked. On the obligation to check whether someone is barred, that must be done before the employer allows the individual to engage in regulated activity. Where the activity is regulated, it is the employer’s duty to establish the bar before employment commences, as clause 72 states.

On bulk applications—I do not know whether the hon. Lady was interested in those—the employer will be told when the certificate has been issued, but not about the information on the certificate.

John Robertson (Glasgow North West, Labour)

Why can that not be done in every case, so that every employer will know that a certificate has been issued? That way, we would not have some of the problems that have been raised.

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

May I come back to the hon. Gentleman on that? It is a new “what if” that I have not yet considered.

In an NSPCC press release of 2 May, the organisation says that it broadly supports the new scheme and is keen to ensure that it is properly communicated to employers, voluntary organisations and parents. Andrew Flanagan said that the NSPCC looks forward to working with the Government as the new scheme is implemented. The work we do with these organisations, which have a primary interest, is the key to getting this right. The hon. Member for Kingston upon Hull North raised the issue of clarifying the definition of what is supervised and what will be regulated and unregulated, so that the doubts can be removed. We will do that by working with the organisations and consulting on the guidance.

Diana Johnson (Kingston upon Hull North, Labour)

I am interested in what the Minister says about the NSPCC. Every Committee member would no doubt say that it does an excellent job in advocating for and protecting children, and clearly, it has identified that the wording “day to day supervision” presents a problem. Could the Minister, having paid tribute to the NSPCC, say a little more about why she is dismissing its concerns at this stage?

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

I am not dismissing its concerns. The hon. Lady’s amendment, which would change the wording to “constant supervision”, would make the situation absolutely impossible. If someone nipped out of the room, the activity would no longer be unregulated and supervised: the moment the supervisor was out of the room, the supervision would not be constant. If we make the definition too tight, hardly anyone would fall into that category, which would undermine the point of trying to scale this back to a common-sense level. Common sense must dictate that a supervisor’s nipping out to the toilet should not change someone from unregulated to regulated activity, which would cause them to be barred. That definition would be too tight.

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. We will consult on the draft guidance and we look forward to hearing the views of practitioners. I am sure that the NSPCC will be pleased to work with us, as Andrew Flanagan said.

To cap it off and to explain—without intervention, perhaps—where regular supervision takes place on a daily basis, we do not think that the arrangements are necessary. It is for the employer or voluntary organisation that is responsible for regulated activity to decide what is appropriate in the regular and daily supervision of  activity. That fits with the Government’s basic intention to create a more balanced vetting and barring scheme, under which responsibility for ensuring that appropriate safeguards are in place rests with those who are best placed to make such judgments—not with the state. We will, however, provide guidance.

I re-emphasise that the provisions do not mean that checks should not or cannot be carried out in relation to work that has been taken out of regulated activity. In such cases, employers should continue to carry out other available checks. As the hon. Member for Darlington has said, that is part of being a good and responsible employer. It also includes carrying out criminal record checks, which will be available to organisations that work in areas that have been taken out of regulated activity. Where such checks are made, an enhanced criminal record certificate will include all criminal convictions or cautions, including spent ones, and the relevant local police information.

The purpose of the provision is twofold. First, it provides employers and organisations with greater flexibility to use supervised volunteers and staff by not requiring them to carry out the checks that apply to regulated activity. Such employers will have some flexibility in determining the vetting level that is appropriate to their work. As I have said, the person in situ has the responsibility, and understands the location, the geography, the nature of the work, and all the targeted matters that apply to a particular role in a particular situation.

Secondly, the provision places the responsibility for safeguarding children with those who are directly responsible for providing services to children. It encourages them to have proper supervision or other safeguards in place. Our definition ensures that supervision will be substantial; an occasional, or even weekly, meeting between supervisor and supervised will not be sufficient.

The amendments would render the definition of supervision unworkable. Constant supervision would defeat the object of scaling anyone at all out of regulated activity, because it is impossible for anyone to say that they are never going to leave a room for a moment. Yet that is the nature of the word “constant”. The proposal goes totally against the Government’s intention of creating a more proportionate vetting and barring scheme. It would mean that if a volunteer were working in a sports club, under the supervision of a qualified sports instructor, their work would become regulated as an activity if the qualified instructor left the room at any stage, because supervision would not then be constant or direct.

The amendments would therefore effectively undermine our aim to scale back the vetting and barring scheme to common-sense levels. They would impose an unrealistically high test for supervision. We want to provide sensible and proportionate arrangements, not unworkable requirements that will simply add burdens to employers and organisations. That said, I have accepted the need for guidance in this area, as in others. With the assurance that we will provide such guidance, I hope that the hon. Member for Kingston upon Hull North will agree to withdraw the amendment.

Diana Johnson (Kingston upon Hull North, Labour)

I have to say that I am very disappointed with the approach that the Government are taking. The amendments were tabled in good faith, because they  relate to clear problems with how the Bill is drafted. The coalition is failing to recognise the reality of what is happening in organisations and charities. In particular, people who run small organisations, charities and sports clubs are asking for definitions of supervision to be clearly set out, so that they can be sure in their own mind about what they are expected to do. The approach will put a huge burden on many individuals in organisations that rely on volunteers doing regulated activities and that offer supervision to those volunteers. The Minister says that it is down to those individuals to make judgments and to decide for themselves.

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

The hon. Lady says that it is terrible to put a burden on those individuals; it was equally terrible to take the burden away from them, because they could feel that they had gone through a process in which they ticked a box and everything was somehow all right. That may mean that they took their eye off the ball, because it is crucial that the person in situ—in a supervisory and employment position or running an organisation—has the responsibility to ensure that children under their auspices are properly safeguarded. If it has gone through a Government tick-box—

Gary Streeter (South West Devon, Conservative)

Order. The Minister has had a fair intervention.

Diana Johnson (Kingston upon Hull North, Labour)

The Minister’s response typifies her failure to recognise that I am concerned about the mums or dads who volunteer to organise local football tournaments on a Saturday and Sunday, and who take on those responsibilities because they believe in the importance of volunteering. The Government say, “It is down to you to sort out if anyone should not be with children on a Saturday or Sunday; we completely abdicate from any responsibility for it, because it is an unregulated activity.”

That is what concerns me and, as much as we all support volunteering and want more people to do it, we have to give them the support and regulations that allow them to do their job properly. None of us wants to end up with people working with children who should not be doing so, perhaps because they have been barred from other employment roles. That is my concern about how the Government are turning their face away from providing the help for which people are asking.

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

The hon. Lady is using the instance of people volunteering to look after children on a pitch one afternoon, but those people would themselves be being supervised. The burden is not on them; it is on the supervising authority.

Diana Johnson (Kingston upon Hull North, Labour)

I shall not labour the point, but the majority of sports clubs are mums, dads and relatives, who get involved and want to run local football teams or tournaments for the good of their community. They are not big institutions, such as the Scout Association or Girlguiding UK, which have a whole organisation behind them. I am concerned that groups that want to provide community facilities for children and do the best by them will find themselves cut adrift by the drafting in the Bill. It will be down to them to sort out whether someone is dodgy, which is a big concern. The  amendments are an attempt to deal with supervision by making it clear to organisations, employers and the voluntary and community sector what would be expected of them in ensuring that children are properly protected.

I am disappointed that the Minister does not feel that it is appropriate to provide statutory guidance to organisations that are crying out for it. I have read some of the material from the Churches, who are saying that they want clearly spelled out to them exactly what the provision will mean. It is disappointing that they will not have the benefit of statutory guidance, which would have given them that.

The Minister must accept that the proposals in the Bill and her rejection of the amendments might mean that people who have been barred from teaching get back into the classroom and the school would not necessarily know, which is a big issue. The Minister has to take responsibility for the loopholes in the Bill and tell us how the Government will deal with them.

In the Bichard inquiry and other inquiries into the abuse of children, one of the big issues identified time and time again is about flows of information; for example, that everyone who needs to know whether someone is barred does not know, and that is one of the problems with the way that the Bill is currently drafted. The NSPCC, which is expert in this field, recognises that the “close and constant” definition of supervision would benefit all parties, and it is disappointing that that has just been rejected by the Government. The idea that it will all come down to common sense does not recognise and deal with the reality of what is happening out in the community. It is a great shame that the Government have not taken the opportunity to accept the amendments.

On that basis, may I test the Committee’s opinion on amendment 167? I also seek guidance from you, Mr Streeter, about how I press, if possible, a vote on the definitions. I know that the drafting is such that it means there are a number of amendments. Do I need to identify each amendment that I wish to press to a vote or can I just take one from each group? What is the appropriate way to deal with this?

Gary Streeter (South West Devon, Conservative)

We are certainly prepared to take amendments separately. We will take the main group first and then the hon. Lady might be able to identify what she wants to do after that.

Diana Johnson (Kingston upon Hull North, Labour)

We have had an extensive debate on the amendments, but I wish to raise several other issues arising from clause 63. I refer the Minister to the submission from the Association of Chief Police Officers, which makes an important point that I would like her to address. Clause 63, as drafted, contains no provision to deal with any exemption from regulated activity for the police service. People have to go through extensive checks to be employed as police officers and police civilian staff, so it seems rather silly that they would have to go through further CRB and enhanced CRB checks to take part in any regulated activity. Will the Minister comment on why the clause does not contain such an exemption? Is she minded to look at that?

I am particularly concerned about subsection (7)(a) and (b). Currently, under the old system, therapy provided to a child is always a regulated activity, but that would change under paragraphs (a) and (b). I am concerned that being in therapy is a vulnerable position for a child to be in. I seek reassurance from the Minister about whether it is the Government’s intention to remove vulnerable children in therapy from the list of regulated activities. Surely they deserve to have that protection, perhaps more so than many other groups.

I also want to address the evidence presented by Fair Play for Children, which has made a series of comments on clause 63. It is interesting to note what the Minister has said about taking a common-sense approach to regulated activity, because Fair Play for Children has given us its bottom line. Unfortunately, the Government often seem to be using the phrase “common sense” without being able to back up with firm evidence their reasons for taking certain steps.

Fair Play for Children states that it would have been helpful if the provisions on regulated activity could have been looked at in a pilot. We all know that the right hon. Member for Sheffield, Hallam (Mr Clegg) is coming round to the idea that certain measures ought to be piloted, and he is in step with Fair Play for Children. Fair Play for Children refers to the pilots that were used to look at Sarah’s law and to provide the evidence base for introducing a measure that was quite contentious and that people were concerned about. Such a pilot might be helpful because, as I have said a number of times, the provisions on regulated activity are difficult for many groups and organisations to understand. If they were piloted, some of the concerns could be dealt with and ironed out before the provisions are rolled out to the whole country.

Fair Play for Children also suggests that

“regulated activity status be aided by a statutory risk assessment guidance framework which employers would be able to access online for a step-by-step process which would inform them that  the position was regulated, or not, or borderline and requiring further consultation with CRB. We propose that this would enable case-by-case determination of regulated status before the recruitment stage rather than a blanket approach and thus be more proportionate.”

Will the Minister look at that proposal, because it seems to be a helpful suggestion for dealing with some of the concerns that groups have?

Fair Play for Children also makes the point that there is a danger in redefining regulated activity with a

“one-size-fits-all approach”.

It recommends

“a risk-assessment approach to defining regulated activity”.

It believes that, if a framework is established to which employers can have regard, it may put off those applicants who we perhaps would not want to obtain positions as volunteers, because they will understand that there will be a proper, considered process that all voluntary and community groups and employers will be looking at. Fair Play for Children believes:

“Deterrence is a major element in vetting and barring”.

It thinks that such a framework would be helpful in dealing with that.

I also want to mention the Public and Commercial Services Union, which represents 86% of staff at the Criminal Records Bureau, as well as staff at the Independent Safeguarding Authority. The PCS has made a submission on clause 63. It believes that the problem is with the clause restricting

“the definition of a ‘regulated activity’ relating to children, to only those roles which involve close and regular unsupervised interaction or paid roles in specified settings such as schools and children’s homes.”

It believes that the amendments

“ignore the ability of people who work in supervised or voluntary roles to build significant relationships with children. For example, somebody working as a volunteer children’s football coach would no longer need to be subject to vetting and barring under these arrangements.”

We have talked at length about that.

The Christian Forum for Safeguarding set out in its evidence its concerns about clause 63 and the need for full guidance and assistance in dealing with the definitions set out in the Bill. We already know that there will be problems in understanding the exact meaning of “day to day supervision.” The Minister has made it clear that she will be working closely with organisations to develop some guidance for them. It is clearly a matter that all these groups and individuals are concerned about at the moment.

I want to point the Minister to the final paragraph of the letter from the Christian Forum for Safeguarding. It states that the CSF urges

“the government to re-instate the work being done before the election last year, relating to Faith Sector guidance on these issues. In particular, this should recognise the specific potential risks in the churches, posed by those who are established in responsible positions, which involve authority, trust, influence, and the opportunity to build a rapport with children and/or vulnerable adults. In the vast majority of cases, this is a fair reflection on the high calibre of our people. In a small percentage, it can act as a passport to abuse.”

It would be helpful if that dialogue starts again with those groups, as they want to ensure that they do everything they need to do on this issue.

I am interested to hear the Minister tell the Committee the numbers that she thinks will be affected by regulated activity. The ISA was talking about the number of people on barred lists. Some 19,111 were on the barred list for vulnerable adults, while there were some 21,409 on the list for children. Will the Minister say something about the number of those who will be able to get involved in unregulated activity in the future? How does the Minister think those numbers will work? On those points we have set out our concerns about the new, limited, regulated activity list. There are still problems that need to be addressed, but that concludes my comments.

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

The hon. Lady asked about ACPO and wondered why there was no provision in clause 63 to deal with the exemption for the police. In fact, the exemption is already in paragraph 6 of schedule 4, so there is no need for anything further in the Bill.

The hon. Lady asked about the criteria and how we know that these are the right posts to remove. We have stated our criteria for the removal of the posts. The leading children’s organisations, some of whom, as she rightly said, gave evidence to the Committee, have stated that they are broadly content with our direction of travel. It is a risk-based approach. We will, as I have said, issue clear and succinct guidance to help managers and individual workers understand when an activity is, or is not, a regulated activity.

The hon. Lady has asked about therapy, and the description of treatment and therapy gave rise to speculation about what was meant by therapy and whether that included activities such as crystal or colour therapy. Such activities were never intended to be within the scope of the vetting and barring scheme, and the review has provided the opportunity to be much more precise about which medical and therapeutic services would bring workers and volunteers within the scope of the scheme.

I assure the hon. Lady that treatment and therapy that is provided by regular, regulated health care professionals, and by those who are directed or supervised by such professionals, will be under the scope of the scheme. I am pleased that the hon. Lady has given me the opportunity to put that on the record. That includes all registered doctors, nurses, dentists, opticians, pharmacists and all those that are regulated by the Health Professions Council, which includes art therapists, biomedical scientists, chiropodists, podiatrists, clinical scientists, dieticians, hearing aid dispensers, occupational therapists, operating department practitioners, orthoptists, paramedics, physiotherapists, practitioner psychologists, prosthetists, orthotists, radiographers and speech and language therapists. The list is quite extensive.

The hon. Lady mentioned the suggestion in the evidence from Fair Play for Children that there should be a pilot. We do not believe that a pilot is necessary; we think that working with organisations to define supervision is the right approach. She has also referred to the comments of my right hon. Friend the Deputy Prime Minister on Radio 4 this morning. I believe he said that Baroness Hamwee was entitled to suggest that there should be a pilot scheme for police and crime commissioners, because she is scrutinising in the House of Lords what we have been scrutinising here. The Deputy Prime Minister said that she had every right to do so and that he was not averse to pilots, but that was not specified.

The hon. Lady asked why the scheme could not be operated on a case-by-case basis. That would lead to a huge amount of work and result in a lack of clarity, when we are trying to create a world in which those who should not be working with children do not work with them unsupervised. The hon. Lady has said that the Christian Forum for Safeguarding has asked for full guidance, and we have said that we will work with organisations to produce guidance.

I cannot give the hon. Lady an answer on how many people working with vulnerable adults and children who are on the barred list might transfer to unregulated activities. As we discussed earlier, however, it is not a numbers game. The point is whether someone is fit and able to be on their own with children. If they are not, they will be supervised and will be working in unregulated activities.

A note has arrived in a timely manner about the number of barred persons who would be able to engage in unregulated activity, which says that in asking that, the hon. Lady has missed the point. I did not put it so cruelly myself. The barring scheme is designed to bar people from working in regulated activity, which is the point that I have just made. If they are in unregulated activity, they will be supervised—[Interruption.] They cannot do what they want, as the hon. Lady says from a sedentary position; they will be supervised.

On supervision, which we have debated fully in terms of what it means and does not mean, we will issue guidance. It is right that all hon. Members are concerned to get this level right, and we will continue to disagree about where that bar should be set. For clarity, it might be helpful to place on record what activities have been taken out of the regulated category and put into the unregulated category.

Teaching and providing certain types of care or guidance for children that are supervised by another person engaged in regulated activity and do not take place in a specified setting such as a school or a children’s home will no longer be regulated activity. For example, a coach who is paid to instruct children in a sports club and is supervised will not be doing regulated activity. In addition,  the activities of supervised volunteers in specified settings will no longer be regulated activity.

The provision of legal advice to a child, and the occasional or temporary work by contractors in certain places such as schools which does not require the worker to interact with children, will no longer be regulated activity. An example of the latter is work in schools by maintenance contractors and builders. However, teaching by supply teachers will still be a regulated activity.

A range of posts and offices that do not necessarily require the postholder to work closely with children on a regular basis, will no longer be regulated activity. Examples of work that were caught previously include school governorships; work for the Children and Family Court Advisory and Support Service and its Welsh equivalent; senior roles such as local authority directors of children’s services and the Children’s Commissioner for England; and the work of inspectorates in England, including the Care Quality Commission. Also, the day-to-day management and supervision on a regular basis of any of the types of the work that I referred to will be removed from regulated activity.

The last area to be removed is any work that is currently a regulated activity solely because it takes place in a children’s hospital and provides an opportunity for an individual to have contact with children, such as the work of receptionists.

I would like to make it clear that we are moving decisively against the wrong assumption that each and every incidental contact with children, their data or their environment should be regulated by the state. Our proposals will require those directly responsible for looking after our children to have in place effective risk-management processes when taking on individuals in any position that involves work with children, even if the work does not fall within regulated activity.