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My Lords, I beg to move that this Bill be now read a second time. Parliament has no more important duty than ensuring that children and vulnerable adults are safeguarded from avoidable harm. It is vital to ensure that individuals with a track record of criminal or otherwise abusive behaviour in respect of those in their care should not be given new positions of trust, whether in schools or in care settings. This Bill seeks to improve the vetting and barring regime to that end. I believe that it will be welcomed in all parts of the House.
Staying safe is one of the five outcomes in the cross-government Every Child Matters programme, which seeks to ensure that safeguarding becomes everyone's business across the range of children's services. The Bill is part of that programme. Equally, the Bill will significantly improve safeguarding for adults in the most vulnerable situations, particularly in care homes and care services.
The background to this Bill is only too painfully lodged in our memories. The tragic murders of Holly Wells and Jessica Chapman in Soham in 2002 brought to light serious weaknesses in the systems for protecting children from staff with a record of abuse and criminality. The Government commissioned Sir Michael Bichard to identify reforms to prevent any repetition of those serious failures. We accepted all the recommendations of the Bichard report in 2004, and a broad programme of work was immediately set in train to strengthen the safeguarding of vulnerable persons.
A key element of that is the IMPACT programme, which is improving the ability of the police service to manage and share operational information. The IMPACT index went live in December 2005 and enables police forces to see which other forces may hold information on particular individuals. Because that information is held on local rather than national systems, it would not previously have been visible outside the force holding the record. This is a first step towards a full information-sharing capability that will allow police to search and retrieve information across all forces. A statutory code of practice on the management of police information came into effect last November. It sets out principles to ensure a nationally consistent approach to the way in which police information is managed.
In respect of schools, the National College for School Leadership now has in place an online training programme for school governors and head teachers. Since last July, we have made available safer recruitment training materials to the head teachers and one nominated governor of every maintained school, together with two staff from every local authority in England. We will also be making the training package available to two members of staff from each independent school.
The Bill specifically takes forward Recommendation 19 of the Bichard report. Recommendation 19 called for there to be a single, consistent national registration scheme for those working with children or vulnerable adults, with a single protocol and a single set of arrangements for the inclusion of names on two lists—one for the children's workforce and one for the vulnerable adults workforce—that would be capable of continuous updating and be available to all employers and potential employers, including parents. Careful consideration has been given on how best to implement Recommendation 19. A formal consultation on proposals was started last April. Further consultation on the policy detail was carried out between December last year and this January, in each case on specific proposals, which Sir Michael Bichard himself welcomed.
In respect of the management of List 99, we have appointed a panel of experts, chaired by Sir Roger Singleton, the former head of Barnardo's, to advise the Secretary of State on her functions on the List 99 process. My right honourable friend has also asked Ofsted to conduct a survey of current vetting practices in schools and further education institutions to establish the robustness of current processes. That report will be published shortly. In addition, through the Children Act 2004, we have put in place a new safeguarding duty on a range of organisations. We are bringing better co-ordination to children's services through children's trusts and a joint inspection framework, and we are bringing together the key organisations at local level, including the local authority, health, criminal justice sectors, in local safeguarding children boards, which must be in place nationwide from next month.
The Bill puts in place long-term reforms to the vetting and barring process, and four key principles underpin it. First, the interests of the child and the vulnerable adult are paramount. Whenever there is a judgment call about the suitability of an individual to work with them, we make it with a view, first and foremost, to safeguarding the welfare of the child or vulnerable adult.
Secondly, our objective in this reform is to minimise the risk of harm to children and vulnerable adults from people employed to look after them, including volunteers. I stress the word "employed"; the Bill does not intrude into family relationships. There are of course other sources of harm to children and vulnerable adults, often within the family, but other systems are available to address them: for example, care proceedings to protect children from abusive parents and the tougher measures now in place to tackle domestic violence and abuse in relation to older people. Your Lordships have further strengthened protection for children in the amendments inserted by the House into the Children and Adoption Bill to provide for child safety risk assessments in child contact proceedings.
The third principle underpinning the Bill is that responsibilities for safeguarding in the employment context are shared. The state has an important regulatory role, but in terms of specific decisions made in specific employment situations, employers have a prime duty, and parents and families also have responsibilities of vigilance.
The fourth principle is that, subject to the paramount interests of the child and the vulnerable adult, decisions by the state to bar individuals from employment should be proportionate. The four principles that I have set out are reflected throughout the Bill and will be reflected in the guidance and regulations on its implementation that will follow.
I have referred to the two lists. The first, to cover the children's workforce, integrates List 99 and the Protection of Children Act list; the second, covering those working with vulnerable adults, replaces the protection of vulnerable adults list. In respect of the maintenance of the two lists, responsibility, as set out in Clauses 1 and 2, will lie with the new Independent Barring Board, which will make all discretionary decisions on barring under the new regime. Schedule 1 covers the membership, operating powers and accountability of the IBB. The Government have today published a consultation document seeking views on the types of expertise that the IBB will require among its members and staff. I have sent a copy of the document to all noble Lords participating in the debate, and I would welcome views before we go into Committee.
The IBB will work closely with the Criminal Records Bureau, which will perform the administrative functions to enable the scheme to operate. The IBB will be required to issue annual reports and to keep accounts that will be audited by the National Audit Office and laid before Parliament.
The new scheme will offer three levels of protection, as set out in Clauses 5 to 20 and Schedule 3. The first level is where the bar applies and there is a requirement on employers to check barred status. It covers work in key settings such as schools or care homes, work that involves frequent and specified close contact with vulnerable groups in all adult health or social care or any children's settings, and key positions of authority. This is defined as "regulated activity" in the Bill and covers, for example, teachers and all other employees working in a school who have frequent contact with children. In those settings, barred people will not be allowed to work, and employers will be required to check whether recruits are barred.
The second level of protection will involve a requirement to check barred status but with the discretion to employ, with appropriate safeguards put in place if necessary, should information of concern be secured by the employer such as, for example, from a full CRB disclosure or from a reference. The second level covers support work in general health, further education or social care settings. The Bill describes these more ancillary fields of employment as "controlled activity".
The third level of protection is where there is the ability to check barred status but no requirement to do so. It covers work that involves specified close contact with children and vulnerable adults but where the employer is an individual making private family arrangements such as for nannies and care workers in the home. It also covers individuals working closely with vulnerable adults in a range of settings, including leisure facilities and supported housing. For the first time, parents will be able to check directly whether domestic employees are barred.
Affirmative regulations made under paragraphs 1, 2, 6 and 7 of Schedule 2 will provide for convictions and cautions for the most serious offences committed by adults against children or vulnerable adults to result in an immediate automatic bar. Offences resulting in an immediate automatic bar without a right to make representations will be those where there can be no doubt that an offender would pose a manifest risk of harm to children if allowed to work with them. We are still considering precisely which offences would fall into that category. For the children's barred list, they will very likely include rape of a child under 13, sexual assault of a child under 13 and causing or inciting a child under 13 to engage in sexual activity. All of those are offences specified in the Sexual Offences Act 2003. For adults, they will likely include offences under the 2003 Act that are committed against an adult with a mental disorder.
There will also be offences leading to an automatic bar but with a right of representation. Examples are likely to include offences relating to prostitution, pornography or trafficking. In those cases, the individual will have the opportunity to make representations to the IBB, where the individual claims that they do not present a risk to children or to vulnerable adults. The IBB in such cases will have discretion over whether to apply the bar. That will ensure that, if individuals have convictions or cautions for specified offences against vulnerable groups, a bar will cease to be imposed only if the IBB is absolutely convinced that on the evidence they do not pose a risk of harm to children or other vulnerable groups. I need hardly add that, in respect of those offences, there must necessarily be a very high threshold to pass.
Where information other than a conviction or caution for a prescribed offence suggests that an individual's behaviour was inappropriate, that the individual endangered a vulnerable person or that they present a risk, the facts will be carefully considered by the Independent Barring Board. A decision will be made following any representations made by the individual. The Independent Barring Board will provide individuals with all the information that was considered as part of a barring decision, ensuring that the process is open and transparent. That will also guard against cases of mistaken identity.
In addition to police information, the IBB will receive information from employers, from professional and regulatory bodies and from local authorities—for example, where a member of staff is dismissed in circumstances that indicate a risk of harm to children or to vulnerable adults. The IBB will exchange information with authorities such as the General Medical Council and the General Teaching Council. Monitoring those sources will enable the IBB to alert the relevant employer if information is received that requires the bar to be applied. That is a significant strengthening of the present scheme.
In all cases of barring, there will be a right to apply for a review of the barring decision, following a prescribed period set out in Schedule 2(14). It will enable the bar to be lifted if there is no evidence of an ongoing risk after a defined period. The Bill provides for appeals on points of law to the Care Standards Tribunal, with a further right of appeal to the Court of Appeal.
Let me stress that Ministers will not be engaged in discretionary decisions by the Independent Barring Board in any respect whatever. That will be a fundamental change from the existing system and one wholly desirable and in the public interest.
We intend to publish comprehensive information about the barring process and guidance for employers on their responsibilities under the new scheme. We will also shortly be reissuing Working Together to Safeguard Children, which includes guidance about how to handle allegations across the children's workforce.
A further important issue is the regulation of employees who come to this country from overseas. The Bill only partially covers employees from overseas. When such individuals have an employment record in this country, their UK employment will be covered by the IBB and CRB arrangements that I have set out. In respect of their overseas employment and any information available to the public authorities in their country of origin, my department has issued guidance, Child Protection: Preventing Unsuitable People from Working with Children in the Education Service. The guidance details the range of background checks that employers need to carry out. The guidance advises on the need to carry out checks as for UK-based teachers—for example, with references, qualifications, identity, as well as any appropriate police checks via embassies or local police forces.
Although the CRB has access only to information held on specified UK data sources, the CRB and the Home Office are working with other countries on the sharing of criminal record information for employment vetting purposes in order to ensure the widest possible capture of relevant information for use by the vetting and barring scheme and by employers. My department is exploring with the CRB, the Recruitment and Employment Confederation and other stakeholders possible ways in which we could tighten further the arrangements for the vetting and recruitment of overseas staff. I will be able to update your Lordships at later stages of the Bill's progress.
Safeguarding children and vulnerable adults is a serious responsibility and is a shared responsibility. The Bill provides for new criminal offences in Clauses 7 to 13 to ensure compliance with the scheme. A barred person will be committing an offence if they work or seek to work frequently and closely with the relevant groups in any setting. An employer will be committing an offence if they knowingly employ someone in a role where the bar applies, if they fail to make checks where checks are required or they continue to employ an individual who is not subject to monitoring. Those criminal offences will be backed by new sanctions, including fines or up to five years in prison.
I hope that I have set out clearly the essential features of the new vetting and barring scheme. The scheme fully implements Recommendation 19 of the Bichard report. It takes forward the strengthening of safeguarding announced by the Secretary of State on
Moved, That the Bill be now read a second time.—(Lord Adonis.)
My Lords, I thank the Minister for introducing the Bill to your Lordships' House. In principle, we on the Conservative Benches welcome the Bill. The safeguarding of vulnerable groups is an issue which must receive a constructive, cross-party approach. The Bichard report exposed an inadequate system of protection. It is positive to see that the Government are now legislating to rectify that. That said, with our support of the general objectives of the Bill, we have a number of questions and concerns about its implementation.
We welcome the establishment of the Independent Barring Board. Members of these barring boards must have the requisite skills to form objective and sensible conclusions. Under Schedule 1 to the Bill, the chairman and members,
"must appear to the Secretary of State to have knowledge or experience of any aspect of child protection or the protection of vulnerable adults".
Surely members of these boards must demonstrate more than just appearing to have knowledge or experience. They will be expected to make some difficult decisions. There is a real case for manning these boards with professionals seconded from various authorities such as the police and social services together with committed, proven and competent laymen.
One significant area of concern that needs to be addressed is why there is a need for two separate lists, rather than one central point of reference. Should an individual who is barred from working with vulnerable adults reasonably be permitted to work with children and vice versa? I certainly would not feel comfortable knowing that an individual barred from working with my children was providing care to my parents.
Research by the Ann Craft Trust has shown that one in five people who sexually abused older people had also sexually abused children. Abuse is about power, not age, and those people who abuse vulnerable adults will potentially abuse children, and vice versa.
Ultimately, there is a duty of care that must be provided to all vulnerable groups. It is telling that the Commissioner for Older People in Wales has been established along the same or similar lines and principles as the Children's Commissioner.
We accept that there may be circumstances where individuals need only be placed on one of the lists. However, it would be irresponsible for the Independent Barring Board not to be duty bound to consider individuals who come before it for both lists. If there is a possibility that an individual poses a threat to the vulnerable, there is a real case that the IBB must be obliged to consider them for both lists.
Will the lists be accessible over the internet? Who can access the lists? They must be secure, in which case what information will be accessible to employers? Will specific details relating to individuals being barred be available to those using the internet facility?
If the Criminal Records Bureau is to provide an administrative function, does it have the necessary resources to cope? We are aware that the computer system, Information Management, Prioritisation, Analysis, Co-ordination and Tasking (IMPACT), is not to be fully operational until 2010. That is certainly a worrying factor. For example, we have concerns about the proper vetting of agency staff, the self-employed and volunteers. Domestic employers must have sound guidelines. For example, within what actual proximity to children and vulnerable groups will barred individuals be permitted to come? Administrative and clerical staff who work in organisations that may deal with vulnerable groups on the fringe are certainly a cause for concern. The Bill contains sanctions against employers, with fines and a potential custodial sentence if they hire a barred individual. Given the necessary increased obligations placed on employers, what will responsible employer analysis of individuals involve?
"Provision may be made for the criteria to apply differently in different circumstances".
Is that rather loose phraseology intentional? Surely, we should seek to be as unambiguous as humanly possible and to provide the IBB—which must have solid guidelines if these lists are to have complete integrity—with ultimate clarity.
It is welcome that those acquitted of an offence may still be on a list if the board deems them a threat. However, that must be subject to checks and balances. An individual must have a right of appeal to make his case to the IBB on a point of law. As for automatic inclusion on lists, we are aware that Liberty believes that the absolute nature of such a bar may breach the European Convention on Human Rights. Is that the case? The Explanatory Notes certainly allude to it. Furthermore, will those individuals subject to such automatic inclusion be permitted to appeal on a point of law? We will certainly want to monitor that area as the Bill progresses.
Notwithstanding the Government's possible intention to ensure "joined-up government", implementing this Bill will require more than co-operation in Whitehall. There must be co-operation and consultation on many levels. The IBB must look at evidence from a number of sources—including the courts, local authorities and the police—to build up a picture of an individual and whether they are a threat. Furthermore, in terms of a joined-up approach, it is welcome that competent bodies may make "findings of fact". Co-operation between the IBB and bodies such as the GMC, the General Teaching Council and General Social Care Council—among others that the Bill mentions—will be significant in monitoring questionable behaviour.
Will the Minister indicate how foreign nationals are to be monitored or barred? I listened with care to what the Minister said about arrangements for vetting and recruiting overseas staff. However, while cross-European co-operation is all very well, our information systems in the UK are not up to scratch. Liaison with foreign governments will certainly challenge that system. It is worth noting that the Home Office is unaware of the number of illegal immigrants currently living and working in the United Kingdom, so there will be no records available for such persons. Furthermore, in terms of devolved government, those individuals barred or monitored in Scotland or Northern Ireland must be made known to the relevant organisations in England and Wales. Differing information management systems must not prevent that process.
In conclusion, as citizens we have a duty of care to protect all vulnerable members of our society, whether in nursery school or in a care home for the elderly. Abuse of the vulnerable is an abuse of power and trust. It has taken some horrific cases to expose weaknesses in the system. We support the objectives of the Bill. As an improved system of protection and vetting develops, we want to ensure that it is implemented as successfully and speedily as possible—with the necessary checks and balances in place. Furthermore, we wish to see such a system having the integrity and efficiency required genuinely to ensure that future abuse cannot occur. As such, we shall be seeking to amend some parts of the Bill to offer greater clarity.
My Lords, I, too, very much welcome the Bill, and I believe that the framework that it proposes will make children and vulnerable adults safer than they were before. If I express any concerns or propose any changes, they will be ones that will improve the Bill without interfering with the powers of the Independent Barring Board to set up and maintain an effective system to protect children; indeed, they will strengthen it. That is my main objective, in common with the Minister and other noble Lords.
Safeguarding children requires much more than a barring list. It requires a whole child protection mindset, a culture of vigilance, a clear understanding of roles and expectations and appropriate training for all those who need it. I have tabled amendments to the Childcare Bill about that, but that Bill only covers very young children, whereas it is often older children on whom unscrupulous people prey.
There is no absolute right to work with children or vulnerable people. The levels of vetting that can be expected for those wishing to do so should be rigorous and far beyond those relevant to other areas of employment. However, my main problem with the Bill is its lack of clarity, and we will need to work on the detail in Committee.
There are also matters of principle. I, too, am particularly worried about the scope in Schedule 2(1) for automatic inclusion of people on the barred list without the right to representation. Details of the offences that will lead to that automatic inclusion will be in regulations that are not yet published. That makes proper parliamentary scrutiny impossible. I will therefore be proposing at a later stage a way of giving Parliament an opportunity to debate and amend the regulations. Even the affirmative resolution procedure is a blunt tool for legislative scrutiny. Parliamentarians may agree with some but not all of a list of prescribed offences, but they will be unable to amend it. Besides, this shows the Government's lack of trust in the IBB's ability to hear all the evidence and still avoid allowing unsuitable people to work with children. It is also in danger of contravening Article 6.1 of the European Convention on Human Rights. I would be interested to know what the Joint Committee on Human Rights thinks of this part of the Bill, since it is clear that case law has established that any procedures where civil rights are determined without ever hearing from the parties would be incompatible with the convention. I am not suggesting that people in this category are suitable to work with children, but we should have due process in all cases.
In Schedule 2(3) on "Behaviour", there is also lack of clarity in the phrase "relevant conduct", which is not defined. Schedule 2(4) states that,
"conduct of a sexual nature involving a child— would be defined as "relevant conduct" if—
"it appears to IBB that the conduct is inappropriate".
That leaves it unclear what and how conduct of a sexual nature involving a child or children would ever be acceptable. Indeed, I wonder whether we are back to the arguments that we had on the Sexual Offences Act 2003 about agony aunts and their sexual advice to young people. That Act throws a very wide net of criminality so that, for example, all sexual contact between under 16s is technically illegal. That is another reason why blanket bans often lead to unfair treatment.
I raised with the Minister during the Second Reading of the Childcare Bill last week the issue of whether a person under 18 could be included on the new barred lists. There are a number of services, including those run by Barnardo's and the NSPCC, that help those children who display sexually harmful behaviour. In the past, it has been assumed that such children were at high risk of reoffending, but if they have received expert, targeted intervention that is no longer true. That is why such children are more appropriately dealt with by the welfare system than by the criminal justice system. However, until such time as that happens, it would be quite wrong for their troubled childhood behaviour to automatically lead to their being put on a barred list, with the adverse effect that might have on their future career.
Today, I have had a reply from the Minister saying, in effect, that the list of offences is that in the Day Care and Childminding (Disqualification) (England) Regulations 2005—SI 2005/2296. He also says that the protection for very young offenders would be the fact that Ofsted will continue to be able to waiver disqualification in certain circumstances; I presume, for example, where the offender was very young at the time and does not present a current risk to children. However, I would like to explore the matter with the Minister, since I feel that it should be clear in the Bill, or people will not know where they are. I also think that there may be situations covered by the Bill in which Ofsted has no jurisdiction, so I do not see this as a full reassurance.
Paragraph 5 of Schedule 2 refers to the possibility of future risk of harm to a child. It is unclear how that will be assessed, but I assume it will be on the basis of past behaviour, in which case I wonder why the person in question does not fall into the category of paragraph 3, which relates to behaviour. It is therefore hard for me to see why we need paragraph 4 at all. To bar someone from working with children on the basis of what they might do takes us into a difficult area and will inevitably raise concerns about inappropriate barrings.
We need a better definition of all the thresholds at which barring decisions will be made and the factors that lead to them. It is crucial that they are clear. They must be set at the right level and we need to know what those levels are. There is a need for balance and proportionality. It is important to avoid mistakes, to protect the innocent from ill-founded allegations, to respect privacy and protect young people who make minor misdemeanours from being blighted in later life.
One of the most difficult areas the IBB will have to consider is the "soft" area of evidence: intelligence, behaviour and risk of harm. How will the IBB assess what is known as non-conviction data? Indeed, there are other factors it might consider, such as matters arising from private law proceedings where there is evidence that children have been harmed; matters arising from inappropriate behaviour with vulnerable adults; matters arising from medical or social care intervention; and offences under a professional code of practice. How will the IBB deal with these, or is it even empowered to do so?
In relation to "soft evidence" the police will need clear guidance as to what level of data they should retain and submit to the IBB and this should be consistent throughout the country. One of the problems emerged during the Bichard inquiry. It seems that the guidance issued by ACPO on retaining intelligence relating to non-conviction information made it difficult for police officers to determine whether to retain or delete information. Evidence submitted by the Police Federation to the inquiry stated that where there had been any doubt about whether soft information should be retained, officers erred on the side of caution and deleted it. However, following the Soham murders it is easy to see how the pendulum could swing too far the other way so that any allegation made about an individual could be retained. Information weeding is not a precise science, so I hope the Minister can reassure us, during his response, that the code of practice to which he referred in his opening speech is working fairly and effectively.
I welcome the duty in Clause 30 and Schedule 2(2) for local authorities to refer appropriate people to the IBB if they fall within certain categories, are working with children or vulnerable adults and the harm test is satisfied. But harm is not defined in the Bill. I suggest we need a definition here and I will table an amendment saying that the threshold of significant harm in Section 31(9) and (10) of the Children Act 1989 is the one that should apply. If we do not have a clear definition, social services could get tied up in a lot of inappropriate referrals and we do not want that since it could lead to costly litigation. There is also a need to be clear about how frequently the information will be updated and how often rechecking will take place.
One of the stated objectives of the Bill is tightening up and simplifying the system, but there are still to be two barring lists. While this is better than nine, we need to know about the relationship between the two. How do they interact? Given the evidence that abuse of children and vulnerable adults is a power crime and that the two have much in common, it is essential for consideration to be given to whether a person should be put on both lists if he qualifies to be put on one of them. I will be tabling an amendment to put a duty on the IBB to give consideration to this matter in every case.
Fortunately, most of the people who do wonderful and worthwhile work with children and young people need never fall foul of any barring list. But it is worth considering the availability of some sort of accreditation for people who fall outside the regulated or controlled work categories, to enable them to show positively that they are the sort of people who are suitable to work with children if required. I have in mind something like the kitemark in the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003.
Speaking of the regulated and controlled categories of work, I, too, would like to ask why we need two categories at all. Surely everyone who works with children at any time would have an opportunity to abuse and should therefore be checked as to whether they appear on any barred list—and the simpler the process, the better.
The IBB will have a very important job to do and its membership should include people with a wide spectrum of experience as well as knowledge of child protection. I refer to employment law, criminal law and the management of sex offenders, and I include those involved with probation, the police and multi-agency public protection arrangements, as well as legally qualified people. Can the Minister reassure us about that? He can be assured that we will respond to the document that we received from him today about it.
Can the Minister also tell us how the board will interact with the CRB and the Home Office? Will it be entirely independent or will it be linked in some way? To whom will it report? That is not clear in the Bill. I presume that the Secretary of State referred to is the Secretary of State for Education and Skills, but perhaps the Minister could confirm that.
This Bill is still more complex than I think it needs to be, so there is a need for a full communication process, since there will be huge consequences for people working in previously unregulated posts. This could particularly affect the voluntary and community sectors. People need to know what is meant by the two categories of "controlled" and "regulated" activity. They need to know where the dividing line is and what "frequently" and "occasionally" mean in the Bill. If people are not sure, they will protect their backs and carry out checks anyway, particularly in view of the criminal penalties for mistakes of omission. We do not want people checking inappropriately, because they can have their right to check taken away if they do so. Also, that would clog up the system.
Just sending out information packs will not do. We need face-to-face briefings, plus a website, a helpline and information about the timescales for, as well as the details of, implementation. It is particularly important to have easily accessible information available to individual parents who employ someone to look after or teach their child. They need to know that they have a new right to check and they need to know how to go about it. Perhaps the Minister could also tell us what individual checks will cost.
Finally, I will say a word about overseas workers. This is a very difficult area for employers, who have to rely on what they can get from abroad. It would be quite wrong to prevent someone working with children or vulnerable adults just because they came from a country that did not have the same rigorous system as we are currently trying to devise. In fact, care homes for elderly people rely on many workers from abroad. Therefore, I was glad to hear what the Minister said in his opening remarks about the Home Office's work with other countries.
I wonder whether the Government have considered a probationary period for overseas staff, with an extra level of supervision until the authorities in this country have been satisfied. That would not be perfect, but it would be better than what we have now. Alternatively, there could be a mandatory duty for an employer to prove that they have taken steps to obtain criminal records or other relevant information from abroad if their employee is from there, although I do not underestimate the difficulty for employers of having to do that.
I am excited about the possibility of a better system to protect the vulnerable in our society. I look forward to having the opportunity to work with the Minister and your Lordships to improve this basically sound Bill to ensure that its fine objectives are achieved without anyone being unfairly treated.
My Lords, I, too, welcome the Bill. As the Minister said, we are all aware of the tragic circumstances which led to the Bichard inquiry, and to the legislation to deal with the loopholes in the present system. Like every bishop, I have sought enhanced disclosures for hundreds of clergy and volunteers who work in our schools and churches. I am well aware of some of the loopholes in the system.
I know that I speak for all Church and religious leaders in saying that the safety of children and vulnerable adults in our care must be paramount. The education division of the Church of England and the National Society for Promoting Religious Education strongly support the Bill's proposals to minimise the risk of children and others suffering harm at the hands of those who work with them. Through its schools, which educate nearly 1 million children and young people, the Church of England has responsibility for well over 4,000—indeed, nearly 5,000—institutions in which "regulated activity", as the Bill defines it, takes place. Because of our existing commitment to ensure that children remain safe from harm, dioceses and diocesan boards of education have well-established child protection policies. We recognise, however, the need to strengthen the provisions and to make mandatory provision to vet all who work with children.
We have welcomed involvement in the preparation of this Bill through the consultative group on child protection, the education sub-group of the Criminal Records Bureau and the steering group, which has developed online training material for head teachers and governors for safer recruitment and selection of school staff. In addition, the Board of Education responded to the consultation on Making Safeguarding Everybody's Business: A Post-Bichard Vetting Scheme in July 2005.
In addition to their schools and other institutions, the Churches and faith communities engage with children and young people on a voluntary basis. In recruiting volunteers as well as employees, we have sought to implement best practice in establishing child protection policies, which cover all involved in working with children and other vulnerable people. But we are aware that the process of vetting volunteers is less easy to regulate, and it remains a matter of concern in respect of this Bill that the concentration on regulated activity in the list of establishments in Schedule 3 may not fully cover the many organisations in the voluntary sector where children need equal protection. I would appreciate clarification on the Minister's assertion in his opening remarks that volunteers are fully covered in the legislation.
There are always limitations on any scheme, however comprehensive it attempts to be. Bitter experience has shown that even enhanced disclosure will not identify every person at risk of harming children, but only those involved in incidents that have been notified to the police or other authorities. Our confidence in the proposed board and a better system must not replace the need for sound and rigorous techniques of recruitment and interview, alongside these proposals. Sadly, there remain some people without moral scruple, who can find ways of having access to children and young people, however thorough the systems are.
No system can be presented as foolproof or as removing the onus on every citizen to develop and uphold a sense of personal and moral responsibility for children and vulnerable adults. The existence of a barred list will not usurp that responsibility on all of us.
Conversely, if the public, and employers in particular, are to have confidence in the list, decisions about it must be made transparently and by suitably qualified people, as Schedule 1 proposes. It must be demonstrable that it is an improvement on the present system. I therefore welcome the consultation to which the Minister referred in introducing the Bill to the House.
The vast majority of our children and vulnerable adults is educated and cared for in institutions which treat them with dignity and care—a dignity and care which reflects their uniqueness as human beings whom the Churches regard as being made in God's image. I believe, therefore, that we should welcome the Bill and trust that effective procedures to maintain that record will lessen the culture of suspicion which too often undermines our confidence in each other and devalues the generous goodwill which leads our teachers and carers, both voluntary and employed, to give us their skills for the benefit and well-being of our children. Yes, we need a culture of vigilance but also a recognition that there is a difference between a culture of vigilance and the culture of suspicion which undermines the necessary trust upon which the care of children and vulnerable adults should be based.
I welcome the Bill and trust that through its proposals and improved vetting and barring procedures it will achieve the purpose of minimising the risk to our children and vulnerable adults. I look forward to working with others in the House in guiding it through its stages and improving it where necessary. Others have mentioned improvements which need attention and I shall not repeat them. I give the Bill an overall welcome. I congratulate the Minister on introducing it to us.
My Lords, I am delighted that the Safeguarding Vulnerable Groups Bill has been brought before your Lordships' House and introduced so helpfully by the Minister.
I have spoken about vetting, barring and lists at least two or three times in the past eight years during the passage of various Bills concerning children's safety. The Government are to be congratulated on the fact that the Bill is the product of a great deal of consultation. I welcome the fact that they have already embarked on consultation on the independent barring panel. The Bill before us has benefited from the amount of discussion that has taken place.
The children's organisations with which I have an association, NCH and others, have broadly welcomed the Bill. Indeed, many have been clamouring for some time for coherence and clarity in this area. I am confident that with the customary thoughtfulness of the Minister and the expertise that resides in your Lordships' House we shall clarify that which needs clarification and improve the Bill before we pass it to another place.
I broadly agree with the concerns raised by the NSPCC and Barnardo's in their helpful notes on the need for greater clarification about such matters as which offences would lead to automatic inclusion on the barred list; whether a person under the age of 18 can be included on the barred list; and how the two lists might work—an issue raised by several noble Lords. If someone is included on the vulnerable adults list, does that mean they are not included on the children's list? I am sure we shall have many discussions on this matter.
I also agree with the concern of the Local Government Association about the funding, establishment and maintenance of the list. I recall a discussion in this House some years ago about the bringing together of all the different lists and about costs being a major barrier as well as complexity. I do not believe that this is a no-cost exercise.
The major point I wish to raise relates to paragraphs 2(1)(e) and 2(4) of Schedule 3 to the Bill at page 42. The intention of the regulations seems to be to make it compulsory for people to be made the subject of criminal and other checks if they are engaged in moderating online activities which are aimed at children or are likely to be used by children.
I understand that at present such checks are optional. First, I am not sure why in this context the protection should be extended only to children and why it does not extend to all vulnerable groups encompassed by the Bill. Secondly, while I entirely understand the sentiments which lie behind the apparent attempt to stiffen the laws in this area, I should like to query, or obtain clarification on, its intended scope. I am not expressing opposition to the sentiment which has led to these proposals, but I want to explore why they have been framed in the way they have, and what they might do.
As noble Lords will be aware, online chat rooms, discussion forums, bulletin boards, blogging and social networking are hugely popular with children and young people. They give them an excellent opportunity to develop their writing skills, to express themselves and to form relationships with people all over the world. I take some comfort that my own daughter will use the lucidity that her blogging and other activities express, and hope that she will transfer those with positive effect to her A-levels.
However, we are all too familiar with some of the tragic consequences which can befall the child if, in these sorts of virtual worlds, they have the terrible misfortune to encounter a sexual predator—typically an adult. Adult sexual predators are attracted to these environments precisely because they know that children go there in large numbers. They are looking for photographs or information, or both, which would render a child vulnerable to their manipulative skills. Elsewhere, in shorthand, this is known as "grooming". Some noble Lords will recall the attention we gave to this issue during the passage of the Sexual Offences Bill.
In the main, sexual predators who have taken advantage of children in these types of virtual worlds have been other users rather than moderators, who have been charged with keeping the environment safe. However, there have certainly been some cases of that type. In the UK, most of the larger online discussion forums and chat areas employ professional moderation companies, where all the moderators have been made the subject of CRB checks. I confess that I am not sure whether the checks are standard ones or enhanced but, clearly, they ought to be enhanced. The BBC, Vodafone and many other household-name companies absolutely insist on moderation for their interactive areas. They do not doubt its value or importance. They ensure, for example, that a child does not publish to the world details of where they live, or their home or mobile phone numbers, and that they do not disclose intimate details about themselves or their family life. Neither would they allow compromising or illegal images of the child to be posted on the site.
However, while the BBC, Vodafone and others insist on professional moderation of their services—on which we should congratulate them—many such sites rely on volunteers to do some or all of the moderation. The site itself may be run as part of a straightforwardly commercial venture. They may be a small number of paid or professional moderators, but many—perhaps all—might be volunteers. What effect would this Bill have on them?
Some of these sites are, in effect, global. Some of the moderators, whether professional or volunteers, might be based in the UK, whereas others might be overseas. The company providing the service might be British or overseas. What happens in these mixed environments? I understand from reading Clause 6 that the Bill is not intended to catch private arrangements that individuals might make between themselves, but it would be hard to describe some of the global sites which claim membership of millions—or some of the UK sites with tens of thousands of members—as falling within that category. Yet those are precisely the sorts of numbers that some of these sites claim to have in membership. What level or type of consultation has there been around these provisions with the internet industry, companies that provide moderation services and their users?
In this country, we have, by and large, a successful self-regulatory environment, where child safety issues are discussed and handled by a combination of the internet industry, children's organisations, the police and the Government—led by my honourable friend, Paul Goggins—all working together. So, for example, when in the other place my honourable friend Ms Judy Mallaber raised the downloading of child pornography, the Minister said:
"The UK internet industry and the Internet Watch Foundation continue to lead the world in limiting access to illegal images. In April, this work will be further strengthened by the establishment of the new Child Exploitation and Online Protection Centre".
He went on to say:
"Eighteen months ago, no sites were blocked because the technology did not exist. BT has introduced the technology and now 80 per cent. of internet service providers use it. The question is how we achieve the 100 per cent. . . . I engage in regular discussions with the industry and I am determined that we will hit that 100 per cent. . . . through the voluntary route".—[Hansard, Commons, 13/2/06; col. 1130.]
I would imagine that, under these circumstances of co-operation, there has been some discussion with all the interested parties. I raise this point, because I am aware that concerns have been expressed by some members of the Home Secretary's internet task force about compulsory checks and the precise scope of rules of this kind, particularly with regard to blogging and social networking.
To conclude, the worry is that these measures might lead many sites to close down and young people would therefore lose the opportunity to participate in potentially creative and useful sites. The Bill proposes a directly interventionist stance. While I am certainly not opposed to that—indeed, I have spoken about these issues many times in your Lordships' House—I am surprised that the Government appear to feel that self-regulation has failed in this instance. I do not think we are quite at that point, and I would have thought that self-regulation ought to have been given the opportunity to work here, as it has done in other areas. Perhaps the Secretary of State might consider taking these powers as reserve powers, to be implemented only if a need were to arise. I hope that we can discuss this issue in the course of this excellent Bill's passage through your Lordships' House, and I look forward to working with colleagues on it.
My Lords, I must first declare an interest as president of the Royal Mencap Society and as a father and a grandfather. Those are three roles that have allowed me to spend a great deal of time with some of the people this Bill is intended to protect; namely children and adults with a learning disability. I welcome the Bill as an important step towards increasing the protection they, and other vulnerable people, need, but I have a number of concerns too. I hope that the Minister will be able to allay them as this debate continues, and as the legislation makes its way through the House.
We all know that people with a learning disability—children and adults—are among the most vulnerable in our society. We all know that people with a learning disability are at much greater risk of sexual abuse and assault than the general population. The incidence of abuse among people with disabilities is four times higher than it is among the non-disabled population and, of those, people with a learning disability are at the greatest risk.
Many cases of abuse occur in places that are beyond the scope of government regulation: in the home, or by people known to the victim who are not employed in a caring role. But that is no reason not to take steps, where we can, to make sure that known abusers cannot work in places where they have access to vulnerable people. Research suggests that at least 1,400 adults with a learning disability are likely to be reported as victims of sexual abuse each year, most of them, but not all of them, women. A recent report by Action on Elder Abuse found that of a total of 639 abuse cases in nine English local authority areas, 210—around one-third—were against people with a learning disability.
There are clear patterns to such abuse. Most of the people abused have moderate to severe learning disabilities, as well as additional physical disabilities. Abusers are predominantly male, and known to the victim. Many of them are in positions of trust, power or authority, and take advantage of that in order to carry out their abuse. They also, of course, take advantage of the fact that people with both learning and physical disabilities may find it difficult to resist, difficult to communicate and report the abuse, and difficult to be taken seriously.
While physical and sexual abuse are what most people think about when considering protection from abuse, we should not forget that abuse by neglect can also have very serious consequences. Harm is not always inflicted deliberately. But when staff in a care home for severely disabled people run a bath without checking the temperature, causing severe scalding when the disabled person is lowered in, that is abuse. When an epileptic man is left unattended in his bath, has a fit and drowns, that is abuse. When inadequately trained agency staff fail to follow proper manual handling procedures, and leave a girl with profound and multiple learning disabilities covered in bruises, that is abuse. When people who find it difficult to drink unaided suffer dehydration because care home staff do not feed them, or when people who cannot turn over in bed get pressure sores because hospital staff do not move them, they are suffering as a result of the actions of others and they are being abused just as much as a patient who is assaulted by a nurse.
Neglect of vulnerable people in care settings denies choices to families. Mencap's report into the support needs of families caring for children and adults with profound and multiple learning disabilities, No Ordinary Life, found family after family who knew that their children would one day have to be moved away from home, but whose experience of using respite care services had given them no confidence that they would be well provided for. One parent said of her daughter:
"I care for her by choice rather than abandoning her to the mercy of inadequate service systems".
Until abuse by neglect, as well as deliberate abuse, is stamped out, vulnerable people will not be properly protected.
I hope that the Minister will be able to reassure me that the barred lists will contain people who have caused harm to vulnerable people by neglect, or whose behaviour has led to a risk of harm as opposed to actual harm, and not just those who have inflicted pain on purpose. Perhaps such reassurance could be provided by placing a definition of "harm" in the Bill.
Another of my concerns with the Bill—and here I echo the noble Baroness, Lady Buscombe—is its proposal to set up two separate lists, one for children and one for vulnerable adults. I fail to see why someone who harms vulnerable adults should be thought safe to work with children, or vice versa. There is no obvious reason to think that a person who fails to use proper manual handling procedures on a severely disabled child would take more care if they were moving a severely disabled adult. And when it comes to deliberate abuse, the same applies. Many crimes of abuse, such as physical or sexual assault, are crimes of power. The age of the person over whom they have that power simply does not matter; their powerlessness does. Research by the Ann Craft Trust, as we have heard, has shown that one in five people who sexually abused older people had also sexually abused children.
Having echoed the noble Baroness, Lady Buscombe, I now follow in the formidable footsteps of the noble Baronesses, Lady Walmsley and Lady Thornton. If there are good reasons why we need two lists instead of one, then at the very least the default assumption should be that a barred person should be placed on both lists unless there is a very good reason why they should be on only one.
The different rules governing the two lists are also a cause for concern. Many disabled adults, including adults with profound and multiple learning disabilities, are more vulnerable than most non-disabled children. And yet there are more restrictions around working with children—all children—than there are around working with adults, even the most vulnerable adults. The bar will apply to all posts in schools and in other services for children, even for posts which do not require day-to-day contact with children. But the adult list, while it covers all posts in registered care homes for adults, otherwise applies only to people whose job brings them into close contact with vulnerable adults.
If it is not safe for a person on a barred list to work as a school receptionist, why is it safe for him to work as a receptionist for a day centre used by disabled people? There are many people who, while they do not regularly work directly with vulnerable adults, could on occasion have unsupervised contact with them—administrative staff, caretakers, or cleaners, for example. Is it really appropriate for identified abusers to hold these positions? If it is appropriate, can the Minister explain why he considers it inappropriate for them to work in equivalent positions in schools?
My final concern is about the danger of creating a two-tier workforce in social care, with different levels of registration. The introduction of direct payments for the purchase of care and other services is a welcome government initiative which promises to make a real positive impact on the independence of people with a learning disability and other disabled people. It enables vulnerable people to exercise real choice and control over their own lives rather than being prescribed particular services which may not meet their needs. But it is vital that the same safeguards are in place around services provided through direct payments as around other services.
At present under the Bill, the recipients of direct payments are not classified as regulated activity providers, which means that they do not have to check prospective employees against the list. Why should the employees of direct payment services be an unregulated workforce? Although it is important to ensure that it is as straightforward as possible for people to use the direct payment system, it is even more important to ensure that people on the adult barred list, who will not be able to find employment in most settings where they may have contact with vulnerable adults, do not gravitate to working for direct payment services instead, finding employment directly with vulnerable people who know absolutely nothing about their background. I am especially concerned about that because of the number of direct payment recipients who have a learning disability. It is vital that safeguards are in place to ensure that they are not exploited by abusers who, because of the regulations imposed across the rest of the care sector, cannot find work with vulnerable people elsewhere.
Many people who use direct payment services, including people with a learning disability, have limited capacity. In some cases, a person who lacks capacity can receive direct payments through a trustee account, with an agent or a family member making decisions about risk on their behalf. Agents have a duty to ensure that services are purchased that promote the service user's well-being. That duty ought to extend to ensuring that they do not employ people who are barred from working with vulnerable adults.
Other people with learning disability who use direct payments and who manage their own bank accounts may need to be given support to understand the vetting and barring process, so that any decision not to check prospective employees is properly informed. It may be safer to start with the assumption that people employed by the recipients of direct payments should be checked, and then to allow the recipients of direct payments to opt out of checking their employees.
Although I wholeheartedly support the Government's intention to protect vulnerable adults through the Bill, the inconsistencies and potential loopholes that exist within it leave me with real concern for those most at risk. I hope that the Minister will address those issues, to ensure that the Bill offers the maximum protection possible to every vulnerable member of our society.
My Lords, I, too, welcome and support the main thrust of this important Bill but, like others who have already spoken, I do so with some caution. We must remember that the three lists currently in operation, in addition to that of the Criminal Records Bureau, were self-evidently designed to address the different needs of different services covering a different and wider range of employees and for different purposes. It is of course right that, as far as possible, those lists should be combined to make the information more accessible, but I suggest that that will be no small task, not least because across the country decisions are being made almost daily which will have to be properly recorded in those lists and properly tested.
The lists could not have been combined during the years of paper-based systems, but now that we have the new technology available to us, it is possible. Nevertheless, I urge the Government to take the time to ensure that the new system is both reliable and efficient. Experience suggests that national computerised systems are often not without their problems. The system will have the potential to affect people's lives, for good or ill, in very important ways, so getting it right is essential. Speed should not be at the expense of efficiency and reliability. Detail is of such importance in these matters.
Like other noble Lords, I am concerned about the necessity to have two separate lists: one for children and the other for vulnerable adults. If there must be two lists, can the Minister assure the House that there will be efficient links between the two? Otherwise, as has already been referred to, someone could be barred from working with under-18 year-olds but could be appointed to work with over-18 year-olds, some with severe disabilities. Will the Minister also assure the House that these lists will in due course cover the whole of the United Kingdom, and will he also address the points that have already been made about those who come to work in this country from other EU countries?
I understand in some ways what the Minister meant when he twice referred to a shared responsibility in his opening address, but I take this opportunity to urge the Government to ensure that there is no doubt in future that the responsibility for the employment and the performance of staff rests squarely with the employing organisation. I say that because only the employer can assess the suitability of a candidate for any post. The employer must be accountable for the quality of service and the safety of its users. This, of course, applies to those who do not appear on any list, but there should be no ambiguity about where the responsibility lies for the safety and well-being of vulnerable people.
Unless a person is barred, the appointment will very often be made on the basis of an assessment of risk. Of course I understand that there will be those who believe that once a person has a criminal record, they are ruled out from being appointed to any job in which they may come into contact with vulnerable people. This, in my view, is both unrealistic and unacceptable—unrealistic because there is no huge untapped reservoir of potential recruits for often low-paid and very demanding posts, and unacceptable because potential employees have rights. These decisions must be seen to be reasonable at all times. I will not detain your Lordships long at this time of the evening, but let me just mention a few examples from my experience.
The form of application that we used had a section for convictions which made it clear to everyone that any and every conviction had to be recorded, and that failure to record a conviction might jeopardise the applicant's position. Yet, time after time, we received information from police checks which the applicant had not recorded. I recall an applicant leaving the section blank. When his criminal record was checked, it was found that he had a conviction for possessing cannabis. When challenged about this, he replied, "Oh, that. It happened while I was at university, but I have long put that behind me". Another criminal check on an applicant revealed that the person had a conviction for taking a vehicle and driving it away with no licence or insurance. When challenged, he said, "Oh, but that's a motoring offence. It's not relevant to this task". Another applicant had recorded an offence of assault, but the check revealed a conviction for grievous bodily harm—an altogether more serious matter. On further inquiry, however, it emerged that two youths had got into a fight, blood was shed by one, and the more serious offence was therefore the conviction. Another applicant recorded a conviction of unlawful sexual intercourse, but further inquiry revealed that, when he was 18, he got his younger girlfriend pregnant.
Would barring apply to all these circumstances? I think not, bearing in mind the range of different tasks that are being considered and the different degrees of risk that will have to be taken into account in each circumstance. That is why I think it is essential that we in no way weaken our commitment to ensuring that the employer is responsible for ensuring that the staff who are employed are suitable to the task, and that the employer takes into account the nature of the post that is being advertised, the degree of contact with vulnerable people, the level of supervision, and the record of the applicant since the conviction. It is for the employer to take the decision and to justify that decision as it applies both to vulnerable people and to the rights of the applicant. It is important to protect vulnerable people, but it is also important that we do not undermine the enthusiasm of those who genuinely wish to help others. That, of course, includes volunteers.
I also urge the Minister to emphasise the importance of ensuring that those organisations that supply agency staff must also be held accountable for the quality of staff whom they employ. Agency staff may move from post to post, almost on a daily basis, to provide cover for those who are absent for any reason. The supplying organisation, which of course charges a fee for its services, must be accountable for the staff on its books.
In that context, I invite the Minister to outline the appeal mechanism, not least because we must recognise that in this work staff are often exposed to the danger of malicious allegations which can have a devastating impact on them and their families. I am sure that I need not dwell on that, but it adds emphasis to ensuring that the legislation must have proper safeguards which are built in for everyone, openness and transparency. In supporting the Bill, I hope that the Minister will reassure the House that there will be transparency, fairness and reasonableness for all concerned.
My Lords, I should like to add my thanks for the helpful and detailed introduction that we have had to this Bill from my noble friend. It is also a particular pleasure to follow the noble Lord, Lord Laming. If I remember correctly, we first encountered each other 24 years ago when I was a newly elected chairman of a social services committee. The noble Lord, I think, was president of the Association of Directors of Social Services. Since then our paths have crossed on a number of occasions.
I also declare an interest as an adviser to the computer company, Anite, which has had responsibility for preparing the software underpinning the violent and sexual offenders register. I know that it has some issues in respect of how these new arrangements might operate. However, my remarks are nothing to do with any concerns that it may or may not have about the proposals.
I start from the basis that in considering this legislation we should have regard to the UN Convention on the Rights of the Child. The preamble of that has made it clear that by reason of the physical and mental immaturity of a child, children need special safeguards and care, including appropriate legal protection, which is underpinned in Articles 3 and 19. I mention that because it is important to understand why we need to have in this legislation provisions which may undermine the human rights of some individuals who may wish to work with children and, for that matter, other vulnerable adults. But there is no right for individuals to work with vulnerable adults or children. It is something that people can seek to do, but because of the responsibility that governments, local authorities and organisations that provide care to those groups have, there must be an acceptance that the levels of vetting of such individuals must be higher than would be the case in other forms of employment.
I am pleased therefore that the Bill seeks to simplify the various systems of checks and lists—the Criminal Records Bureau, List 99, the Protection of Children Act list and so on. The Bill specifies four categories of activity that will lead to inclusion on the barred list in some or all cases.
The first category is those who have done something in the past which will qualify them for automatic inclusion. There is a second category where inclusion is subject to consideration of any representations that they may make, but the presumption is very much that they will be included on the lists. The third category, where the IBB will have discretion, relates to behaviour which has not led to some form of conviction or caution. The final category—again, there is discretion here for the IBB—is where there is perceived to be a risk of harm.
The first two categories are fairly straightforward. I am sure there will be some debate on which categories of offence should be in the automatic group and which should be in those where there is some element of discretion in the light of representations. The House will be able to look at those matters in detail in Committee and I suspect consensus can be reached.
The third category is also relatively straightforward. There is no presumption of barring, but the IBB has discretion and the person has to be given the opportunity to make representations if they are being considered for barring. The issue will revolve around a pattern, or examples, of previous behaviour which, though not having led to a conviction or caution, provides some substance enabling the IBB to look at the individual concerned. Again, I assume that there will be some debate in Committee about what requirements will be necessary for that and what criteria the IBB should operate.
I want to say more about the fourth category, where there is believed to be a risk of harm. My noble friend Lord Adonis talked about a significant strengthening of the previous provisions in this Bill. I have a lot of sympathy with what the Government are seeking to do here and I have some understanding of the dilemmas which are faced. If I can go back those 24 years, to when I was a new chair of a social services committee, I remember several instances when successive directors of social services would come to inform me of a particular concern about individuals employed by the local authority. This was not because of some known behaviour and it certainly was not because of some previous conviction which had not come to light and which would have led to dismissal or some action being taken. Typically, a professional of longstanding experience who was supervising the individual concerned would say, "My professional experience tells me that the way in which that individual is relating to the child or the vulnerable adult in their care causes me concern. I cannot be more precise, but that is the sum total of my professional experience."
Such cases happen. They are perhaps more frequent than your Lordships would necessarily assume and they are of course immensely difficult. I believe that where we take into account the UN convention and everything else, we have a responsibility to try to resolve such matters. I know that the way in which my then director of social services resolved the matter was often rather crude and perhaps would not have stood up to too close a scrutiny in an employment tribunal. But it involved finding a way in which that individual was not put in a position of working closely with a child or vulnerable adult. Perhaps if that individual then left and applied for a job in a neighbouring authority and there was a request for a reference, some explanation or illustration might be given over the telephone. That would perhaps be more difficult today, given the requirements on the way in which one deals with employees and what can or cannot be said in references.
Clause 27 tries to address precisely this issue. A regulated activity provider must provide the IBB with information in certain circumstances where the regulated activity provider,
"thinks . . . that the harm test is satisfied".
The harm test is that the individual concerned may, among other things,
"attempt to harm a child or vulnerable adult".
The key words are "may attempt", or think they "may attempt". Just to ensure that there are no problems:
"No claim for damages shall lie in respect of any loss or damage suffered by any person in consequence of the provision of", such information. Perhaps it should do so, given that this is about something which it is thought might happen. For local authorities there is even the explicit statement in Clause 30(5) that,
"it is immaterial whether there is a finding of fact in any proceedings".
I start from the basis of believing that we need some way of capturing that professional feeling that people who have worked for a long time in a particular environment call upon when they say, "I am worried about this individual". However, I am conscious of the dangerous ground on which we tread in terms of the rights of the individual about which such statements are made. In the example I have talked about, the individual remained in employment, although perhaps not doing the job to which they were originally appointed. Further, my example did not rely on just one professional judgment. Not only was there the professional assessment of the staff supervising the individual concerned, but also the professional judgment of the director or assistant director of social services saying, "In this instance, I have confidence in the supervisor who is making this judgment and my other knowledge of the circumstances suggests that we should take this seriously". Under this legislation, in the circumstances of my example the local authority would be required to refer. I think that would be justified.
But what is the IBB going to do with such information? The information essentially reflects someone's subjective view of what someone else might do in the future. The board will notify the individual concerned, who in turn will make representations. No doubt those representations will say, "I am shocked and horrified that this suggestion has been made. I have always worked with children and vulnerable adults and I would not dream of harming them under any circumstances". How are the members of the IBB to resolve the situation? I pity them in having to face such dilemmas. I am sure they will be expert professionals with lots of experience, but when faced with written statements and even talking to the individual concerned, it will be very difficult to make a judgment.
I have given an example from the point of view of a local authority social services department. Other providers, such as small businesses, may have only a handful of employees. There may not be a second professional who can validate what is being said. Moreover, there is the danger of the malicious referral. If a former employee has made your life a misery, once they have departed, what could be easier than blighting their life for ever by making such a referral? I am sure that we will return to these issues during the forthcoming stages of the Bill. Can my noble friend on the Front Bench tell us about the process to be used by the IBB in considering such matters? How will it consider them? What will be taken into account? Can additional inquiries be made, and if so, what sort of inquiries would they be?
It is also clear that this is not a read-across from previous legislation. The Protection of Children Act 1999 talks about "information", as does the Care Standards Act 2000, while the Education Act 2002 refers back to both earlier Acts. Those were about information, not what someone thought. I believe that professional judgment may well be something which should be captured in the interests of protecting children, but how that is done, how it can be set out in legislation and provided for in guidance, is going to be extraordinarily difficult. I hope that my noble friend can give us some indication on how the guidance is to be prepared.
My Lords, I shall be fairly brief. To speak last in a debate on such a complex Bill is not easy, particularly if one was planning to propose a rather heterodox approach, out of line with those which have been advanced by other noble Lords, with all of whom I agree. I wish simply to make an additional point, but I believe it to be important.
Of course the Children Act 1989 says that the child's welfare shall be the court's paramount consideration. Of course it should be the paramount consideration of all legislation to protect children. I fully support the principle enshrined in this Bill. We must protect children from abuse and from significant harm by those who work with them. I congratulate the Government on bringing the Bill forward, but we must also recognise that it is crucial to avoid frightening away adults from the caring professions looking after our children. We must also be fair to those adults. My concern is that if we are to protect the nation's children, we need enough good staff to provide that care.
I am not comfortable with this Bill. I find it confusingly drafted and uncertain in meaning. I shall be helped by the letter received—only a few hours ago, unfortunately—from the noble Lord about the appointment of the board. It has also been helpful to hear what other noble Lords have said about the Bill. I understand it better now than I did, but before I came into the debate I wrote that the Bill seems to give the Secretary of State, through regulations and through the powers he has to appoint the barring board and the tribunal, the power effectively to terminate the career of any adult working with children. That is on the basis not of a court decision, but of suspicion or allegations, which cannot necessarily be verified.
I recognise the delicacy of the situation. The noble Lord, Lord Harris, made an extremely important intervention that touches upon the point that I am making. The decision that the board makes cannot be challenged in the courts except on a point of law. I made a note that that might be an abuse of human rights, but it is not human rights that I am concerned about. I am concerned that the threat of this bar could have an unintended consequence for the recruitment and retention of well motivated staff.
There is already an acute shortage of good quality and well trained professionals in social services, the health-visiting profession and residential care, to mention but three. The Government have important plans to extend caring services, including thousands of new children centres and thousands of new extended schools. Brilliant. Those are excellent plans, but they will all need additional staffing. Human resources are going to be needed. If a career in those services becomes too risky, staff shortages could result. If they did, the last case might well be worse than the first. More danger and harm might be created for children.
I do not want to delay the House, so I am only going to touch on some of the aspects of the Bill that seem to me to need attention. Some have already been touched on by others.
I am not happy about the no claim for damages clause. Does it not even apply in cases of negligence, malice or malpractice? Also, Clause 41 seems to conflict with Clause 2(6). In Clause 4 is the issue of appeals, but why appeals only on a point of law? Surely the most important issue in most such cases is false accusations. Those are a matter of fact, not of law. It is on false accusations that there is a need for the possibility of an appeal to the courts.
Nearly every noble Lord who has spoken has mentioned Schedule 2 and the problem of "harm", which is not defined. I agree that it probably should be the same definition as the interpretation of "significant harm" in the Children Act 1989. If it is, let us say so. Any certainty that we can get in the definition of what we are talking about will increase the confidence that professionals can have about what they are allowed and not allowed to do. It will increase the uniformity of judgment across the country and make the list a great deal fairer and more effective.
What do the Government mean by,
"likely to endanger a child" or "risk of harm" or "relevant conduct" in paragraph 4 to Schedule 2? These are dangerously vague concepts. That vagueness represents a threat to professionals. What is the threshold of risk? As some noble Lords have said, Barnardo's and the NSPCC have drawn attention to the need for a much clearer definition of thresholds for barring. The NSPCC states:
"The criteria and threshold against which people are barred must be at the appropriate level—neither too high nor too low. We are concerned that this has not been specifically set out on the face of the legislation. We would like to see disqualifying factors clearly laid out".
I thoroughly endorse that comment.
Finally, Clause 42 raises the important issue of families. We shall have to have another look at that. Perhaps I have read the measure wrongly, but it seems to me that a man who has, for example, sexually abused a child in the family could not be put on the list although it might be most appropriate that he should be.
Without compromising the protection of children, what are the Government going to do to protect professional adults who work with them?
My Lords, I too thank the Minister for introducing the Bill and presenting it with a clarity that explained some issues about which I had been uncertain. However, the debate has also shown the number of difficulties that we shall face as we examine the Bill in detail.
There is, indeed, much to be welcomed. The Soham murders showed up the inconsistencies of the present system, with different authorities using different checks, and perhaps above all the chronic failure of the systems in place to transfer information across county or police boundaries. It is good that the Bill will bring together for the first time all the information, so that the CRB and List 99 will be amalgamated into one database, provided that we can establish that database satisfactorily. I refer also to the establishment of the online facility for checking combined with continuous monitoring, which means that up-to-date information will be easily and quickly available as compared with the current six-week wait for CRB checks.
It is also good that, where discretion is required for decisions, it is now being transferred from the Secretary of State to an independent board. I think that all of us welcome that shift of responsibility. Such decisions are not appropriate for politicians. I dispute the point that, I think, the noble Lord, Lord Northbourne, made about the fact that the Secretary of State would appoint the board. The board will be genuinely independent. We welcome that.
We also welcome the expanded coverage from schools and care homes to domestic employers of nannies, childminders and so forth. However, in welcoming that provision, we should be very aware of the need to raise awareness so that those who need access to the system know about it and can get it.
It is also good to have vulnerable adults included alongside children. The abuse of vulnerable adults is something that we know much less about than the abuse of children. The noble Lord, Lord Rix, spoke for some time on that matter. It is good that the profile of vulnerable adults has been raised.
In this Bill, the devil is surely in the detail, and a number of general issues seem to have come forward time and time again in our discussions. A central one is the question of the clarity of definitions, which the noble Lords, Lord Laming, Lord Harris and Lord Northbourne, all raised. If we are to have the four categories of barring that the noble Lord, Lord Harris, mentioned, it is essential to know where the lines are drawn. There is no definition of harm in the Bill. All the definitions and the whole question of the risk of harm—what sort of behaviour will endanger children—are to be left to guidance. It is to be prescribed in guidance from the Secretary of State, and decisions will then be taken by the Independent Barring Board. What that decision-making process will be is very unclear, yet the decisions taken will be absolutely crucial.
Allied with that is the issue of the rights of appeal. The noble Lord, Lord Northbourne, said that decisions could not be challenged in court except on points of law. Yet someone's whole career can be put in jeopardy in such circumstances, as the noble Lord, Lord Harris, pointed out. Surely, under the European Convention on Human Rights, there should be the right of appeal against the automatic barring list and, for that matter, decisions made by the IBB other than just on points of law. Surely, there must be the right on occasion to challenge the facts. So, we need clarity on precisely who is and is not included in the barred lists.
A second area where we need clarity of definition is in distinguishing between regulated and controlled activity. The Bill states that anyone on the barred list is not allowed to work in regulated activity yet can work in a controlled activity, subject to safeguards and, again, following guidance from the Secretary of State. The distinction between them is whether the activity is to be carried out regularly and frequently; if so, it is a regulated activity whereas, if it is only occasional, Clause 8(7) makes it clear that it is not an offence to engage in regulated activity without being subject to monitoring—for example, parents helping in classrooms. Yet still no definitions or criteria are included in the Bill. How often is "frequently", and how seldom is "occasionally"? What distinction is to be drawn, and how can parents or employers—or the general public, for that matter—know whether an adult with whom their children are in contact has been vetted or should, indeed, be subject to vetting procedures? Why, for example, do we insist that school governors are subject to such vetting, while a parent who comes to help in the classroom is not? The distinctions are vital, yet there is no clarity in them.
A linked point is the crossover between children and vulnerable adults. The bar applies to all posts in schools and to the provision of services to children or in care homes but only where the person concerned comes into close contact with children or vulnerable adults, such as in day centres or hospitals. Surely, the criteria ought to be whether the individual concerned has unsupervised contact with children or vulnerable adults. There is the issue of canteen and cleaning staff in schools and hospitals. Often, such staff are likely to come into contact with vulnerable adults and children for substantial, unsupervised periods. Surely they need to be vetted in the same way. There are real difficulties in those circumstances.
Likewise, where a post is not a regulated one that carries the automatic exclusion of anyone who is on the barred list but is a controlled post that allows those on the list to fill the post subject to monitoring and supervision and is subject to disclosure, the vetting and barring scheme policy briefing pack suggests that employers need to "think carefully" about the level of access to children or vulnerable adults that the post gives and whether additional safeguards are necessary. What does "think carefully" mean? Does it mean producing a written risk assessment, which arguably is what one wants in the circumstances?
Then there is the issue raised by the noble Lord, Lord Rix, of vulnerable adults who pay directly for their services via the independent living allowance; that is, recipients of services that are not classed as a regulated activity. Such people are often alone for long periods with those whom they engage and are very dependent on them. Would it not be sensible for such people to be able to access secure online information about those whom they engage, just as people who employ nannies or music teachers should do? Where they are not in a position to do so, those who act as their trustees or agents should be able to do so.
All those issues arise from the lack of clarity in definitions, the vagueness of the language concerned and the need to look always to the guidance. The issue raised by the noble Baroness, Lady Thornton, was interesting and different, and the noble Lord, Lord Northbourne, also mentioned the potential disincentive to volunteers of the procedures in the Bill. As the noble Lord, Lord Northbourne, asked, are we in danger of frightening away those who are prepared to go into the caring professions, when we are desperately short of such people? The noble Baroness, Lady Thornton, spoke about those who moderated internet chat rooms and the responsibility that they had for the material that went into them. How far will the burdens placed on moderators frighten them away? In many senses, it is the thin edge of a much thicker wedge. It is extremely difficult to find people who are prepared to run Brownie and Scout groups because of the burdens of the bureaucracy that we are placing on them.
The Local Government Association has been much concerned with costs. How much will the system cost to set up? The noble Lord, Lord Laming, suggested that we might be a little sceptical about how easy it was to set up such a substantial database and how well it would work. The example of the Child Support Agency does not make one optimistic about how such a database might work; one hopes that it will work very much better. Who pays? The explanatory memorandum suggests that, once the integrated database is established, charges via the Criminal Records Bureau might rise considerably, although there will be online consultation. It says that the online consultation will be free. Will an employer be satisfied with just online consultation, or is more required? Do you require the information to be in writing? I would have expected so. If there is to be no charge, who will meet the costs of running the database? If it is online, how will access be regulated? It will contain a lot of confidential information about individuals, including, it has to be said, a lot of information that my noble friend Lady Walmsley described as "soft information". How can we prevent an individual posing as a potential employer and obtaining confidential information about individuals on the database?
The LGA is also worried about litigation. As the noble Lord, Lord Harris, said, given all that information about individuals, if the individual is to sue those who have provided the information—if they know about it and if there is litigation in relation to the list—who will pay? Who is to test the veracity of the data? Is it to be the Independent Barring Board? What about allegations of sexual harassment against teachers? How can we prevent such vexatious complaints? Do the school governing body or the police investigate them before passing them on? How does the individual clear his name if it is wrongly placed on the list? All those issues are unclear. I can see that the GLA was and is undoubtedly worried about who will meet the costs of litigation.
I conclude with a general welcome for the Bill's broad aims, but there are problems that we will have to tease out in Committee.
My Lords, I too would like to thank the Minister for introducing the Bill so clearly to your Lordships' House. The provisions it makes are long awaited and very much welcomed by us on these Benches. I have listened with great interest to all noble Lords' contributions to today's Second Reading debate. The contribution of the noble Lord, Lord Laming, was as ever a comprehensive and sensitive appraisal of this challenging issue; and who could disagree with the noble Lord, Lord Northbourne, about the danger of scaring away good people and well-motivated staff from working with children and vulnerable adults?
Our children's safety is precious to us. Events have unfolded in the past few years which have caused great alarm to parents of young children and to the children of not-so-young parents. The Bill brings in measures that have been promised since the publication of the Bichard report in 2004. Those provisions cannot be implemented soon enough. This is rightly an ambitious Bill and contributions from all noble Lords have pointed to the fact that we all want the provisions of the Bill to succeed. But we need to get those provisions right. The noble Baroness, Lady Thornton, and the noble Lord, Lord Harris of Haringey, both spoke of the criteria under which an individual may be included on the barred list. I too was surprised—as many noble Lords have mentioned—and concerned to see that those criteria are not in the Bill. What is more, under Schedule 2, those criteria can be set by the Secretary of State, and it is the Secretary of State who makes the final decision as to whether someone is to be included on the list.
There are some provisions for appeal, but my concerns echo those of my noble friend Lady Buscombe. Once an individual is included on the most stringent list, he or she will have no process of appeal. The rhetoric surrounding the Bill suggests that responsibility is being shared out among experienced professionals. But is the reality that the Secretary of State remains firmly in the driving seat? I am reminded of the comments of the noble Baroness, Lady Walmsley, in the Second Reading debate on the Childcare Bill, which she mentioned again today. She asked what would happen if a 17 year-old boy had intercourse with an underage girl, which was consensual, but which led to him being placed on the register of sex offenders, even though they went on to form a solid relationship. Would he be included on the barred list for ever? As the law presently stands a judge would have a discretionary power to disqualify him from working with children.
I read with interest the Minister's letter to the noble Baroness, Lady Walmsley. I, too, was surprised to see that Ofsted has the power to waive a disqualification; I think that others would also be surprised. Will the Minister say whether Ofsted will retain its powers under the Bill?
Of course, the most pressing concern is the vulnerable groups that we are seeking to protect—the people who stand to lose the most and who can defend themselves the least if the system fails them. Under Clause 14, it is possible for barred individuals to work in prisons and probation centres, yet we are all only too aware of the mental problems and vulnerability of many of our prisoners—not least the many who suffer learning disabilities, whose plight the noble Lord, Lord Rix, so graphically outlined.
Even though our pressing concern is for vulnerable groups, we must be vigilant and concerned for the rights of those who may find themselves wrongly included on the list. As the right reverend Prelate the Bishop of Peterborough so rightly said, we must also be watchful that we do not foster a culture of suspicion or stifle the spontaneity of ordinary everyday life.
I am reminded of an episode involving my honourable friend in another place, Tim Loughton. He is president of a local animal charity, which was proposing to hold a Santa's grotto, with the committee dressing up as elves to help Father Christmas. Of course, my honourable friend jumped at the chance to become a Christmas elf for the day—I am sure that noble Lords would have jumped at the chance to see that sight. But when it came to it, that good-natured participation was stifled by the need for a CRB check.
I accept that in some situations you can only regret the fact that life is not what it used to be, but that anecdote raises a serious point. We must not stifle everyday life in the pursuit of total control. As we have heard, volunteers are a rare and valued commodity, especially for charities, and we must be wary of discouraging their generosity. The noble Baroness, Lady Sharp of Guildford, mentioned just one of those difficulties—finding people to run Scout and Brownie packs.
We face a challenge to get the balance right. This brings me on to the technical side of things. The computer schemes will hold very sensitive material. Noble Lords will remember as well as I do the string of fiascos surrounding government computer systems. The CSA system will not work fully for two years. The council tax revaluation system has cost upwards of £10 million to install and is now being cast aside. Also, we heard yesterday the sorry tale of farmers being denied much-needed income because, we understand, the systems in the Rural Payments Agency cannot cope with the complexity of the single payment scheme. I could go on.
Across the board, this Government's record with computer systems leaves much to be desired. The system that we are discussing in this Bill is already well behind schedule and has already cost £54 million. In light of that, I wonder what reassurances the Minster can give to show that this system will be robust. Without an efficient computer system, the provisions of the Bill will be severely compromised.
There is a fine line to be drawn not only in designing and creating these lists, but in preserving and updating them. This is a two-tiered issue. First, the lists need to be solid, robust and efficient. Secondly, we need to be mindful of the way in which the list is used. We must make it a priority that the list is not a substitute for communication between professionals, parents and schools. These lists will only be as effective as the organisations that use them. They are a starting block from which a strengthened attitude to child protection can spring.
One of our major concerns is that the list will be terribly efficient and well used but only in some areas of the country. I repeat the concerns of my noble friend Lady Buscombe in asking how comprehensive this list will be. Will it link up to Scotland, Wales and Northern Ireland? There was a recent case of a Sussex paedophile who was arrested for grooming a young girl in Northern Ireland. Will it link up to other countries with other such lists? The Minister outlined a number of checks that will take place. Those appear cumbersome, and I agree with my noble friend Lady Buscombe that this will challenge the system.
I come to another issue that the noble Baroness, Lady Buscombe, highlighted, and on which the noble Lord, Lord Rix, spoke so strongly, which is the need to have two lists at all. In the face of the potential loopholes that I have mentioned, I wonder how well the lists will "talk" to each other.
There is evidence that some who abuse children will go on to abuse adults. The statistics from the Ann Craft Trust quoted by my noble friend support that. They show that there is a cycle of abuse not just from abuser to abuser, but a cycle which leads those who abuse to seek new types of victim.
Noble Lords will agree that looked-after children are among the most vulnerable in our society. The statistics from the National Children's Bureau family summit in 2003 showed that looked-after children suffer from a high rate of mental health problems: 45 per cent of five to 17 year-olds were assessed as having at least one psychiatric disorder.
Foster carers play a huge and essential role in the well-being of some of our most disadvantaged children. In 1998 the House of Commons Health Committee said that their dedication and commitment should be saluted. The noble Lord, Lord Laming, the noble Baroness, Lady Walmsley, and I have often referred to them in your Lordships' House as heroes. It goes without saying that the vast majority do a truly wonderful job. But there is a severe shortage of foster carers. When they offer their services they are welcomed with open arms. But I wonder how the organisations that organise fostering will manage to cope with the pressure of vetting every single applicant for foster parenting without extra help.
Will the Minister indicate what kind of support will be offered to those hard-pushed organisations, and other organisations that rely on good will to implement the essential requirements of this legislation? I wonder, too, about the required checks on those who wish to visit vulnerable people, say, for example, in care homes. Let us say for argument's sake that they are a distant cousin and wish to take their relative out for a walk or out for a day. Will they need to be CRB checked? At what point does a relation become so distant or a friend so old that they are no longer considered safe? These are difficult but necessary questions.
While keeping at the front of our minds that it is those who are on the receiving end of abuse that we are protecting, we need also to consider that once upon a time many of those who now commit abuse were abused themselves. I bring that to the attention of your Lordships because we must be aware of every part of the challenge that we face. The Minister mentioned wider safeguarding measures, which we debated in your Lordships' House a few months ago.
The Bill is brought to our House in a spirit of care and fairness. It is our job to present reasonable, effective legislation that can be implemented efficiently. We will work hard to ensure that it sets up a workable framework of protection and reassurance.
My Lords, I am immensely grateful to all noble Lords who have spoken in such a constructive spirit to help us address the important and complex issues that are raised in the Bill. I do not know about the Christmas elves mentioned by the noble Baroness, but as we start knocking on towards midnight, I assure the House that this Prince Charming is slightly worried about whether he is engaging in a regulated activity, which might need the new IBB's clearance if it carries on for a significant length of time.
I shall not seek to address many of the very detailed definitional points that we shall, rightly, get into in Committee, except to say that I have taken careful note of all the points raised and will seek to address them all as we approach Committee. On some of the broad definitional issues regarding "frequent", "infrequent", "harm", and so on, it may be useful if I circulate noble Lords with the Government's interpretation before we go into Committee. I have substantial notes here, and if I were to do that before the Committee stage, it will give us a more agreed basis on which to discuss these important issues in Committee.
As regards the broad principles underlying the Bill, I accept the points made by the right reverend Prelate the Bishop of Peterborough, the noble Baroness, Lady Walmsley, and my noble friend Lord Harris, that no individuals should have the right to work with children: it is a privilege. Individuals should be able to give full assurances of their good conduct and safety in so doing. I take that to apply in full measure to the vulnerable adults whom the noble Lord, Lord Rix, rightly highlighted in his discussions. I also agree with the right reverend Prelate about the need for rigorous interview and monitoring arrangements. None of the provisions in the Bill is a substitute for the proper role of employers and the vigilance which they have to observe, not just in the process of recruitment, but on an ongoing basis in exercising their duties as employers. I stress to the noble Lord, Lord Laming, that nothing I said about the considerable duties of the state, which we are enhancing in the Bill, and the continuing obligations of users of services to be vigilant, reduces in any way the responsibilities of employers which are paramount. They are set out at great length in the Bill and will be in subsequent guidance.
I shall address such issues as the operation of the new IBB, appeal rights and so on in Committee. We have thought through the implications of the regime we are putting in place. I stress that the regime involves far greater transparency and enhanced due process than is available at present. For historical reasons, decisions of an extraordinary discretionary kind, with few rights of appeal in the case of many of the lists and barring arrangements, are in place. We believe that these provisions will enhance them considerably. We have to get the balance right between providing for due process and for our obligations under treaties and the Human Rights Act and, at the same time, not discouraging people from coming forward with legitimate concerns, and for action to be taken swiftly.
For example, with regard to offences which would involve an automatic bar with no right for representation—an issue raised by several noble Lords—I stress that it will be a significantly shorter list than currently applies in the case of List 99 where there are 43 prescribed offences for which automatic entry on the list takes place and there is no right of appeal. In deference to our duties under the Human Rights Act, and with a proper sense of proportionality, we intend to have a shorter list than currently applies under the List 99 arrangements and to ensure that representations can be made. Taking up the point raised by the noble Lord, Lord Northbourne, that is a kind of appeal. In what to any reasonable person would seem a perfectly fair case for an automatic bar, the new regime will give individuals the right of representation. We also intend to ensure that there are rights for barring decisions to be reviewed. On the point raised by the noble Baroness, Lady Walmsley, and other noble Lords, we are considering the periods for which barring applies. It could apply differentially for older adults as opposed to those under the age of 25. Where young people acquire offences for conduct in their teenage years, but which on a reasonable assessment of their progress since it would be right to reassess, that reassessment can take place in a shorter period than would apply to those who are older.
We have given a good deal of thought to all the issues raised. I hope that in Committee I shall be able to assure noble Lords that the concerns are met. I accept that we may need to be tighter with regard to some of the definitions. I am ready to give further indications of the guidance which the Secretary of State will be minded to bring forward in these areas.
Money, as ever, forms a large part of our proceedings. The DfES and the Department of Health will provide upfront investment of nearly £17 million in 2007-08 for the setting up of the new centralised vetting and barring processes. The annual operating costs of the new scheme are expected to be in the range of £16 million a year over the first five years of the scheme starting in 2008-09. That is additional to the cost of the existing CRB disclosure and related processes which are about £83 million a year. CRB standard and enhanced disclosures currently cost £29 and £34 respectively. From
Several noble Lords referred to the composition of the IBB, which will be absolutely critical to the effective performance of its functions; hence the consultation paper which my right honourable friend released today, on which I will seek the views of noble Lords in Committee. It is clear that we expect the right balance of expertise in the protection of children and vulnerable adults to be represented in its membership. We have in mind a membership of around 10. All of these are likely to be full-time appointments. The case made by the noble Baroness, Lady Buscombe, for members who have appropriate legal qualifications is well made. She asks whether it may be appropriate for secondment to take place to secure expertise. We are prepared to see secondments take place as appropriate.
We have experience of establishing such a body, because we have already established the interim expert panel—following my right honourable friend's Statement of
A great deal depends on the quality and processes established by the independent barring board when it is operational. I accept the points made by my noble friend Lord Harris—there are going to be some important and difficult procedural issues that we will need to grapple with as it sets about its work. Of course, we are not foreign to this territory. We have set up large numbers of review decision bodies on immigration, special educational needs and a whole range of activity involving difficult and often extremely vexing decisions about individuals, having to take information from a wide variety of sources. We do not see the IBB as different in that respect. With high-quality membership and good staff, it will be able to establish appropriate procedures.
The issue was repeatedly raised of whether there should be one list for both children and vulnerable adults in place of the proposed two. It would be disproportionate for a person who has been barred from working with vulnerable adults—due to, for example, financial fraud—to be barred from working in all positions with children; one can go down the list of potential cases and see that there are distinct issues between the two groups. Although it is therefore appropriate to have two lists, where there is evidence of a risk to both vulnerable groups, the individual will be considered, as a matter of course, for inclusion in both lists. The independent barring board will consider this on a case-by-case basis. The two lists will also be aligned. The same processes will apply for both lists; they will both involve consideration of criminal records and information flows from professional and regulatory bodies, employers and local authorities. The broad criteria of risk and appeals processes will apply to both lists. There will be a high degree of co-ordination between them.
That also applies to the issue of alignment between Scotland, Wales and Northern Ireland, which was raised. The Bill will apply to England and Wales, but we will ensure that the Scottish system, which the Scottish Executive is intending to introduce to its own legislation, is closely aligned. There will be mutual recognition of barring across the United Kingdom, to ensure that proper and robust systems are in place. The Bill provides for the Secretary of State to specify that a list maintained in Scotland and Northern Ireland corresponds to the barred lists in England and Wales. A person banned in Scotland and Northern Ireland will automatically be banned in England and Wales so that we do not find individuals slipping through the cracks between the two, as it were.
The noble Baroness, Lady Morris, rightly said that there are going to be significant issues to address on some of the arrangements and thresholds for barring in the schedules. We accept that, although I do not believe that we will find this unduly problematic when we come to definitions. I stress that the Secretary of State will not be engaged in the making of decisions on any individual whatever. The Secretary of State's sole role would be in guidance underpinning legislation. Ministers will play no part whatever in individual cases. That will be the responsibility of the IBB itself.
The noble Lord, Lord Rix, raised the difficult area of how to draw the line on levels of protection in respect of elderly people and the services that they consume. I expect we will debate this fully in Committee. He also raised the question of indirect payments, which is a difficult case. The purpose of moving to direct payments was to give individuals more choice and control over their own lives. We have to be careful not to so regulate that choice, and their capacity to manage risk, that they do not exercise those choices in the first place. I think that the noble Lord will fully understand the difficult balance that we have to strike in this area. We will seek to ensure that the risks are effectively managed. There will be appropriate guidance to individuals—which, of course, they may find hard to access—and to local authorities and others who advise them as they set up their direct payment schemes and, in due course, the individual budget proposals that we are putting in place. I hope that we can strike an appropriate balance without so over-regulating the system that we deny the choice that we are seeking to promote.
The noble Baroness, Lady Walmsley, asked about decision-making processes inside the Independent Barring Board. It will be for the IBB to determine its own decision-making processes, but, as with any body of this kind, we would expect it to be fair, efficient and robust. It will be subject to challenge in the courts if it fails to satisfy the appropriate criteria of procedural fairness. If that were to happen, the IBB would rapidly fall into disrepute and find its cases being challenged. We expect it to establish high standards. Of course it will need to consider legal advice and the cost implications of options for its decision-making processes.
Many noble Lords mentioned the efficiency of the CRB. Perhaps the CRB's improvement has been so rapid that it has overtaken some of your Lordships in the improvements that it has made. The figures I have show that, after what was undoubtedly a very difficult start, it has made substantial improvements in recent years, so much so that in its annualised performance for the year to February 2006, it is now providing 84.4 per cent of enhanced disclosures within four weeks, not six weeks as was mentioned in the debate. It is now meeting its requirement for 93 per cent of standard disclosures to be issued within two weeks, and the most recent data for the provision of enhanced disclosures within four weeks are improved on the performance in the previous year. The CRB has been demonstrating great efficiency in its work and is building great confidence in the sectors with which it deals. I hope that that will carry forward into the new arrangements.
On the issue of autobars without representation, List 99 at the moment automatically includes all individuals convicted of any one of 43 offences against children under the age of 16. The Bill retains a similar provision to bar automatically some offenders, but it will be a smaller number than is currently the case. At the moment, we are carefully considering where to draw the line between offences that are subject to automatic bars without representation and those where there will be a right of representation. I intend to give the House more details when we are in Committee.
My noble friend Lord Harris raised a point about the risk of harm. He asked whether the IBB can conduct its own inquiries after referrals and how it will assess harm. We are clear that the legislation sets out the circumstances that should be met before employers, local authorities and professional regulatory bodies refer information to the scheme. We will also be encouraging domestic and small employers to refer information to statutory bodies such as the police or local authorities that can investigate allegations before they are referred to the scheme so that they come with a judgment made on the status of the allegations. However, on the point raised by the noble Lord about whether the IBB will be able to conduct its own inquiries after a reference, the answer is that it will be able to do so as it feels appropriate.
The issue of checks on overseas workers was raised repeatedly in the debate. I dealt with it in my opening remarks, but I should stress that we are seeking to enhance those provisions. The CRB currently has an overseas information inquiry service that provides information on the systems of disclosure in operation in 21 countries and how an individual can obtain his or her criminal record or certificate of good conduct from the country in question.
The current service is provided by a faxback service, although all the details will be available on the CRB website from
Work is also in hand to create arrangements with Canada, which, for example, provides a large number of nursing staff to the NHS. We are also seeking to build on existing links to achieve effective bilateral relations with the Republic of Ireland and other EU partners in some cases. This will lead to a service effectively operated by the CRB in respect of those applying for information on employees coming from overseas.
My noble friend Lady Thornton raised what I accept is the difficult issue of chat room moderators in an industry which is truly international; and therefore how you get the balance right between self-regulation, which in many cases has been successful, and further statutory regulation in the Bill. As the noble Baroness rightly says, Schedule 3, paragraph 2(1)(e), places a requirement on employers to check moderators of public interactive communication devices, which are likely to be used wholly or mainly by children. As she rightly says, many reputable UK service providers currently institute checks in respect of their moderators. Of course we want to build on those arrangements. We recognise that the industry is already an international one, but we believe that it is right to regulate fully those who work within England and Wales to ensure maximum protection.
My noble friend asked about consultation. I assure her that we will be meeting stakeholders; indeed, the Home Office has a meeting with stakeholders later this week to address specifically the points she has raised. I will write to her after that consultation to let her know how matters stand.
My noble friend Lord Harris referred to the difficult issue of malicious allegations. I should simply stress that referral information, such as allegations, will never lead to automatic inclusion in the list. The information will always be considered by the independent barring board, which will have the necessary expertise to make judgments about the risk individuals present.
I do not wish to dissuade volunteers—their important role was rightly highlighted by the right reverend Prelate. Ensuring adequate checks where they have frequent contact with the mentioned groups is covered in the Bill. We need to get the balance right; we accept that. It is precisely to do so that we have the distinctions between frequent and infrequent and between regulated and controlled activities. If we did not have those distinctions—and some noble Lords thought it might be simpler if we rolled them into one—the scope of heavy-duty requirements in respect of CRB checks and checks on the new system would be extended to large groups. They play a more incidental role as regards children and vulnerable adults, but the role is none the less essential when taken in aggregate. It is very much with volunteers in mind that we have sought to make some of these distinctions.
The noble Lord, Lord Rix, specifically asked why only a care home is a key setting in respect of adults; why not day centres? Day centres are not easily definable organisations. Our lawyers have looked at this with some care. We would be happy to engage with the noble Lord further on this issue. Many are held in church halls or community centres where a number of activities take place. There is a fungible set of definitions relating to day centres, whereas care settings are much more easily definable and recognisable. I am told that research by Action on Elder Abuse shows that although most abuse in respect of older people occurs in an individual's own home, 23 per cent was reported in care homes, which is a large proportion of the abuse recorded. So we thought that identifying that as a specific setting to be regulated in this way was appropriate.
I will pursue further points in Committee. I am very grateful indeed to all noble Lords who have spoken. This is an issue of the utmost importance that we should get right. I simply end with the words of the 1996 Institute of Public Finance study, which looked at the cost of abuse to the state. It made two distinct points. It sought to monetarise the cost of abuse of child abuse to statutory and voluntary agencies at £1 billion a year. There are very high costs in the system for not monitoring abuse earlier and having to deal with it later. It then made the point, which all noble Lords will immediately recognise and support, that:
"The total cost of abuse far exceeds this estimate. Individuals and families bear most of the consequences, sometimes for the rest of their lives at an incalculable cost".
It is to avoid those incalculable costs being borne by children, those who work with them and those who work with vulnerable adults in future that we have introduced the Bill. I commend it to the House.
On Question, Bill read a second time, and committed to a Grand Committee.