Clause 7

Safeguarding Vulnerable Groups Bill [Lords] – in a Public Bill Committee at 9:15 am on 13 July 2006.

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Barred person not to engage in regulated activity

Photo of Maria Miller Maria Miller Shadow Minister (Education)

I beg to move amendment No. 136, in clause 7, page 4, line 14, leave out subsection (3).

The amendment was originally intended to be read alongside another amendment, which unfortunately was not selected. We have made the Minister’s office aware of that, so that he understands the tenor of this debate. The amendment seeks to remove from the Bill the defence of an individual not knowing that they were barred. We shall seek to add a further amendment  to ensure that the clause makes it clear that it is an offence for an individual intentionally to mislead an employer about their barred status.

As we know, the clause creates an offence, punishable by up to five years’ imprisonment, of seeking to engage in regulated activity if barred. It also allows for an individual to put forward a defence of not knowing that they were barred from regulated activity, or that they could not reasonably have been expected to know that they were barred. It is clear from those particular provisions that it is not the Government’s intention to criminalise people who may have been barred but for whatever reason are not aware of that situation.

This debate was had in the other place but we feel that it is important to continue it. The reason why we tabled the amendment is that a broad scope of regulated activities is included in schedule 3, meaning that many thousands of people who are not involved directly in teaching or caring will fall under the schedule’s provisions. It is easy to imagine a situation where an individual who has been barred may not be fully aware of the wide range and extent of the activities that are covered in the barring process.

The vetting procedure would, for the most part, ensure that any of those barred people would not be able to work face-to-face with any vulnerable groups covered in the Bill. As the Minister will be aware, the criminal act includes seeking or offering to engage in activity from which an individual is barred; it is not only working with vulnerable groups or children, but offering or seeking to engage in that employment. It is important that we focus on that point.

As I said, this is an important issue that was debated at length in the other place. Indeed, Lord Adonis provided clarification on Report on the issue. In underlining the need to address it, he set out quite a lot of detail on how the procedure will work, particularly on how barred people will be informed of their status. The system sounds robust, but its complexity—the number of activities that will be subject to monitoring and barring—means that more discussion is needed.

The Minister has assured us on a number of occasions in the debate that there will be a great deal of communication about the Bill with those who are barred and with the employers of those who will be monitored or subject to barring. Our concern is that the Bill’s complexity means that people could put themselves forward for employment without any intention whatever of undertaking a criminal act, and that they will be criminalised and subject to quite severe penalty. The amendment, hand in hand with subsequent amendments that would include a requirement of intention to mislead, is a way of closing what we feel is a loophole in the Bill. I look forward to hearing from the Minister whether any further thought has been given to the issue since the debate in the other place.

Photo of Sarah Teather Sarah Teather Shadow Secretary of State for Education

I heard the context of the hon. Lady’s proposed amendments and I am sympathetic to her sentiments. In his reply, will the Minister explain why the Government decided to draw the clause so broadly that individuals will have to prove that they did not know, rather than prove that they  were acting misleadingly? The narrower definition would be much more likely to criminalise the people that the Government are seeking to criminalise, and would avoid catching many others who would not otherwise be caught under the umbrella.

The Government obviously intend to protect vulnerable children and adults rather than criminalise such other people, but there is already plenty of other legislation with that purpose, and it is inappropriate to criminalise those who, as the hon. Lady said, may not understand the full scope of regulated activity. They may understand that they have been barred from one activity but, as we discussed on Tuesday, there is difficulty in defining exactly what is meant by regulated activity and it is perfectly conceivable that a barred person may not appreciate that other forms of activity may bring them into the category that would cause them to be criminalised. Will the Minister therefore say why the Government decided to draw the provision so broadly and whether they might consider an amendment on Report that would narrow the definition?

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills

First, it is important to say that I entirely understand what the hon. Member for Basingstoke (Mrs. Miller) said about intentionally misleading. We are at one on that—it is the Government’s intention that it be covered in the Bill. The amendment relates to the clause that will make it a criminal offence for a barred person to engage, seek to engage or offer to engage in a regulated activity. However, it is a defence to prove that the person did not know, and could not reasonably have been expected to know, that he was barred. The amendment would remove the defence.

Paragraph 12 of schedule 2 imposes an obligation on the IBB to take all reasonable steps to notify a person that he is barred. Clearly, it would be unfair to penalise individuals who did not know that they were barred because, despite best efforts, the IBB had been unable to contact them. We hope that such situations are kept to a minimum, but removing that defence would criminalise people unreasonably. We do not seek to do that; hence, we oppose the amendment. However, underlying the amendment is a concern to ensure that barred individuals who apply for work without realising that such work is a regulated activity are not criminalised. That also covers what the hon. Member for Brent, East was trying to say.

I understand hon. Members’ concern, and we do not wish to criminalise individuals unfairly. However, we will ensure that the scheme is well publicised and we will issue guidance to provide further detail about what type of activity will be a regulated activity. Furthermore, when an individual is informed that they are barred, the intention is that the types of activity for which they are barred will be explained to them.

Photo of Sarah Teather Sarah Teather Shadow Secretary of State for Education 9:30, 13 July 2006

Given the difficulty that we had on Tuesday defining exactly what regulated activity was, does not the Minister concede that it would be perfectly logical for somebody else to be unable to appreciate the full extent of the activities from which they may be barred?

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills

I take on board that point but, at the same time, the hon. Lady must understand the situation when, for example, a predatory paedophile applies to work in a school. Many people in regulated activities are part of the school work force. That is a simple example of why we need the provision. People may try, perhaps deliberately, to get into those workplaces, and the Bill exists, so that we can err on the side of caution and protect children. That is a relevant part of the issue.

Photo of Sarah Teather Sarah Teather Shadow Secretary of State for Education

The point that the hon. Member for Basingstoke and I made was that, if we redrafted the clause so that it specifically ruled out behaviour that intended to mislead, such as applying in a false name or the Minister’s example, it would capture those individuals but not others who did not intend to act criminally.

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills

As I have already said, we do not wish to criminalise those who genuinely do not know or have not been informed, but that is a matter for the police, who will have to consider the evidence. The judgment is best made by them, rather than us, because we would have to come up with a prescriptive list of circumstances, to which the hon. Lady seems to allude. We cannot do that, and it is more effective to rely on the police to do their job. The right thing to do is to err on the side of caution, and on the side of those vulnerable adults and children who need protecting.

We intend that there should be a widespread communications campaign to ensure that all groups affected by the Bill know their new responsibilities and consult with stakeholders on the most appropriate methods for information dissemination. We will use a range of media, including the trade press, websites, newsletters and practitioner workshops and seminars, to get the message across.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

Given that the Minister has written into the Bill an ability for the Government to change what falls into the regulated activity category, does he anticipate ongoing communication with those people who are barred in order to update them on the changes that are made? I understand what he says about the power of advertising and placing advertisements in the trade press, but surely we cannot rely on individuals to read magazines to keep themselves up to date with the process. Does he expect a continuing dialogue with those who are barred, so that they are fully up to date with any changes that the Government make?

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills

It is important to do so. It is also important to remember that, when barred individuals apply for a post in a regulated activity area, people will be able to check that they are subject to monitoring and then block their application. I take on board the point that the hon. Member for Basingstoke makes about discouraging people from applying in the first place to work in areas of regulated activity in which they are not entitled to work.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

I am sorry but clearly I did not make myself as clear as I meant to earlier. The issue is about not employers knowing, but the individuals applying  for employment knowing. In the circumstances that we are discussing, it is a criminal offence to seek or offer to engage in employment, so it is fundamental that the Government should undertake such communication.

I shall press the Minister a little further. Will the IBB have an obligation to conduct a communications campaign directly with those who are barred? If so, does the Minister have costings for that? Given the 40,000 discretionary judgments that the IBB will undertake, will it have the capacity to undertake what will be a complex process? Would it not be easier to follow the line of argument that we have advanced and remove the provision to make the process much simpler?

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills

We should not be looking to create a simpler process if that would put vulnerable adults and children at risk. I already answered the hon. Lady’s question earlier—we intend to inform those who are barred about the activities in which they are and are not entitled to take part. We shall update that as well.

Photo of Madeleine Moon Madeleine Moon Labour, Bridgend

Will the Minister confirm that it will be standard practice for an employer to include in the job description and person specification the fact that the job would be barred to anyone on the barred lists? That would mean that anyone barred who was taking the initial step of applying for a job and seeking the application form would immediately have that information before them and not apply for the job.

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills

I cannot say to my hon. Friend that job adverts will say that the job is available only to people who are not barred from working with the relevant groups, any more than happens at the moment in advertisements for head teachers’ and teachers’ jobs. That would be a broad commitment to make, and I cannot make it per se. However, as I said, it is important that we communicate as broadly as we can with everybody on barred lists and all employers and regulated activity providers to ensure that they know what is required of them. We undertake to do that.

Photo of Madeleine Moon Madeleine Moon Labour, Bridgend

May I clarify the point? I was thinking not about the advertising for the job, but the person specification and job description. The advert might well be general, but the information should be provided when the individual rings to say that they are interested and receives details from the employer. Most employers would be vigilant in ensuring that such information was given to anyone who sought to enter their employment.

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills

I shall take my hon. Friend’s interesting point on board and consider it. It is important that the barred applicant should know in the first instance that they should not be applying for the job. If we do that in the first place, such situations should not arise.

I hope that I have clarified that the important thing for the Government is to err on the side of caution and protect vulnerable groups. I hope that the hon. Member for Basingstoke sees fit to withdraw her amendment.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

I thank the Minister for his detailed response, although I remain most concerned. We have discussed the role of the IBB in communicating information and the issue of including communication as part of a statutory obligation. That has been dismissed as inappropriate by the Government, although we have received strong assurances that communication will be effective. I was surprised to hear that the Minister feels that the police should decide how this part of the law should be interpreted. Obviously, the police interpret the law, but it is made clear by the Bill, which leaves several other things unclear, that it is a criminal offence to seek to engage, or offer to engage, in the relevant activity.

As we have discussed, there is nothing in the Bill to provide that those who act in that way commit a criminal offence only if they are seeking to mislead an employer. It is purely the act of seeking, or offering, to engage in the activity that constitutes a criminal act. I therefore find it difficult to see how the police could come to any conclusion other than that individuals on the barred list who put themselves forward for employment were doing something they should not, and that action should be taken accordingly. Unless the Minister has other information to share with the Committee, surely that is the intention in the Bill.

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills

I should be intrigued to hear from the hon. Lady who she thinks should decide whether an offence has or has not been committed, if it is not the police.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

The reason for the Bill is to define what the House considers to be an offence. It is clear in the Bill that the Government consider it should be an offence for someone who is barred to seek to engage in regulated activity, or offer to do so. If the Minister does not think so, perhaps we should proceed with the amendment, which is widely supported in the Committee. If he does not think that the police should pursue the issues, we can, obviously, amend the clause accordingly. I remain concerned, and we shall perhaps seek to revisit the matter later. In the meantime, perhaps the Minister could think further about the debate that we have had today, and about the degree of concern expressed by hon. Members of different parties. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 ordered to stand part of the Bill.