Definition of “occasional basis”
‘(1) For the purposes of subsections 8(9), 10(4) and 11(5), an employer must produce a statement defining “occasional basis” for which monitoring is not necessary in relation to that particular establishment.
(2) Any statement produced under this section shall take account of guidance issued by the Secretary of State.’.—[Mrs. Miller.]
I beg to move, That the clause be read a Second time.
I am pleased that we have reached new clause 4; we have had many discussions during the past few days, and it has looked doubtful whether we would get this far.
We grappled with the important issue that the new clause addresses on the first day of our proceedings; I hope that it gives us an opportunity to flesh out further the arguments and discussions about it. The definitions of “frequently” and “occasionally” have been a vexed question throughout discussions of this Bill in both Houses. Originally, the new clause was to have been reviewed and discussed alongside our original amendment to remove the idea of “frequently” from the Bill and allow professional people within the settings covered to establish a definition of “occasional” relevant to their setting.
One of Lord Adonis’s notes attempted to clarify the meaning of “frequently”, and in doing so define what was meant by “occasionally”. At that point, it was said that if an activity was undertaken for longer than five days continuously, or more than six times a year, it would be deemed to take place frequently and be subject to monitoring.
That strikes us as a rather arbitrary figure in respect of what constitutes “frequently” as opposed to “occasionally”. Can the Minister say anything that would suggest that there is more robustness behind the thinking? If so, he should share it with us, as we have been unable to find that in correspondence on this subject.
At another juncture, Lord Adonis stated that it would perhaps be up to the barred individual to determine whether contact was occasional or frequent. We Conservatives feel that that argument is unacceptable. I should be interested in hearing the Minister’s view. Can the Government be reasonably expecting those who are subject to the rules in the Bill to determine whether they are undertaking activities on an occasional or frequent basis?
I remember that during discussion of this matter in the House, one of the issues raised was the annual Eisteddfod in Llangollen, which takes place for five days every year. Perhaps predictable regularity could be incorporated. If it is known that something will come up regularly but not fall within the time scale, that could also be regarded as falling within the remit of the Bill.
I thank my hon. Friend for her intervention. Perhaps our new clause would cover what she is talking about. It would oblige an employer to define “occasional basis”, so an Eisteddfod could be dealt with as the people on the ground saw fit, rather than there being a one-size-fits-all approach.
I should like to touch on a couple of comments made by Ministers today that suggest that they might be more in favour of the new clause than I initially thought. Perhaps the Health Minister will support it. He said earlier that we should allow the judgment of front-line professionals to come into play, and front-line professionals are exactly what the new clause is about. If he cannot recall, I should say that it was when we were talking about exemptions. My new clause is intended to let the people who know best about what is happening on the ground have discretion to define what is meant by “occasional”, rather than leaving it to the Minister in his office in Westminster, which I am sure is wonderful, to do it.
The proposal would, along with removing “frequently”, which received cross-party support on the Opposition Benches, allow employers to use their discretion to determine how to define “occasional”. If the Minister feels that that way forward is inappropriate—although I am ever optimistic on these issues and he may see the merit in the argument that we are advancing—perhaps I could urge him to think a little further. I have asked the people who have to implement such rules and regulations about how they regard Lord Adonis’s description of what counts as occasional and frequent, and the Government may be a little bit more out of step with the people who will apply those procedures than they think they are.
Hampshire county council, which, as the Minister knows, is designated by the Government as an excellent education authority and an excellent council—
Indeed. It has taken this issue seriously in its safer recruitment toolkit, which is available online for all employers and employees in Hampshire. That toolkit talks specifically about what constitutes occasional work:
“Occasionally, volunteers may be engaged to assist with a single event only, where they will be working under the supervision of a qualified member of staff, or may be undertaking a role that will allow them no unsupervised access to children. In such instances, headteachers should use their professional judgement— echoing the Minister’s words—
“to determine if disclosure is necessary.
Hampshire education authority felt that Lord Adonis’s proposal on the definition of “occasional” was not in line with what it would like to see in respect of schools in the county. This is a most important aspect of the Bill that deserves to be focused on a little more by the Government. I hope that the Minister will be able to tell me how he will deal with the differing views of what constitutes “occasional” or “frequently” and whether he will allow employers such as Hampshire education authority, which has a great deal of experience in this area, the flexibility that they will need to deal with the circumstances on the ground.
For the first time in many hours of debate we are moving towards a new Tory party policy being fleshed out. I am looking forward to having a good look at Hansard. I am rubbing my hands with glee, because I cannot wait to get my hands on the document from Hampshire to see exactly what it means. Having got our teeth into that, we shall assume that that is how the Tory Front Bench want to define “occasional” and “frequently”. We will see about that in time.
The new clause takes us into consideration of a key term in the Bill: “on an occasional basis”. We did more than touch on that issue on Tuesday. The exemptions from the obligation on the employee to be subject to monitoring and on the employer to check whether a person is subject to it apply when a person is engaged in specified activities, such as caring for children or vulnerable adults in a key setting such as a school or care home,
“only on an occasional basis.”
Let me be clear that the term, “on an occasional basis”, is intended to take its normal meaning. We do not think that it is desirable to restrict the circumstances in which an employer, for example, would not be under a duty to check an individual’s status. In reality, an interpretation of the term “occasional” will, to some extent, depend on the circumstances of the employment. Our guidance will support employers and employees in taking those decisions. However, having said that, I am looking forward to reading Hansard closely to see what the hon. Member for Basingstoke said and returning to that on Third Reading.
Although I might be enjoying the political sparring as a spectator, I think that it is important to sort out the meaning of the words “frequently” and “occasional”. I hope that, come what may, the Minister will look at this issue closely. The new clause might not be quite the right solution for all circumstances, but there might be some merit in it in respect of large employers. I emphasise that this aspect of the Bill is so important. At present there are serious loopholes in the Bill. It is incumbent on all Committee members to sort out the issues involving “occasional” and “frequently”.
The hon. Lady makes her point well. I do not disagree that these are important issues. However, I remind the Committee that, as we discussed on Tuesday, it is important to consider the consequences of the definitions we decide on and that we come up with the right balance. Our intention is that, subject to the circumstances of a particular job, anything happening less than once a month and any contract shorter than a week can be regarded as occurring occasionally. Some hon. Members do not like that, which is fine. I am pleased to hear some alternative policies being fleshed out, so we can start to consider them.
We intend that parents who help children with reading in primary schools should not have to be subject to monitoring and schools should not have to check their status if they help only once, or help once a term during a school year. That is not unreasonable. However, as I said on Tuesday, we are currently keeping the definition of “frequently” under consideration and we will return to it on Report.
I welcome the hon. Lady’s intervention. However, when she speaks, I should like her to consider something. She asked about whether we should ensure that those involved with an annual event should be monitored and part of the scheme. Does she think that it is possible that the people who organise such a yearly event—possibly volunteers—may cancel it, because they will be under a form of regulation and will have to be part of the vetting and barring scheme?
I should like further clarification. Does the Minister think that there is a greater difference between someone popping in for a few hours once a week and somebody who has sole control of a child for 24 hours a day for a festival lasting four or fivedays? Such a situation would provide significant opportunities for abuse to take place, whereas one hour a week in a classroom may not. That is not a fair comparison.
I was hoping for the second part of that intervention, but it never came. The hon. Lady makes a fair point about people who have close contact with children. However, the Bill has to be proportionate. Is she saying that any person who has 24-hour contact with a child once a year should be part of the scheme?
She is not saying that. These matters need to be fleshed out. We have the early parts of a policy developing from Basingstoke and Hampshire and I should be delighted to hear the view fromSt. Albans.
I did not say 24-hour-a-day contact happening once. I was talking about a significant period of four or five days, which might be a whole camping, eisteddfod or festival period, which could give rise to opportunities. I want to be sure that the Minister has given such instances real consideration—that he has not just dismissed them lightly but thoroughly examined the issue and concluded that there is no real loophole.
I am not ignoring it, and I will consider it—and all other cases. If the hon. Lady is making representations to me about those who are involved in festivals and the relevant groupings around the country—and if she is also telling them—that that is what we should do, I welcome her saying so. However, I think that she will find that there are consequences. Through guidance, therefore, we shall give employers and employees a measure of clarity about the circumstances in which the exemptions will apply. Our extensive work with stakeholders has led us to expect that employers and individuals will take account of the guidance, so that putting a duty on employers to act accordingly would add little. Given the existence of criminal offences in this context it is highly likely that the type of consideration set out in the new clause would happen in any event, without the need for a potentially burdensome duty on employers. With all that in mind, I ask the hon. Member for Basingstoke to withdraw the motion.
The Minister will know, from reading all the briefing documents on the Bill, that this issue is its Achilles heel. Perhaps some of his reactions to the new clause are due to his realising that he needs to think more about the topic. The stakeholders to whom he has referred have clearly identified issues such as frequency, what is meant by “occasional”, and the lack of definition. My hon. Friends and Liberal Democrat Members have time and again pointed out those issues, which the Government choose to brush aside. That is a shame.
The Minister has contradicted himself several times. The Health Minister has talked about allowing front-line professionals their judgment; if the Minister cares to refer to Hansard he will see that in Tuesday’s debate he talked about the problems of the issue of frequency and the fact that there is a need to look further at the issue. I am heartened by his saying that he will return to the matter on Report. I will hold him to that promise, because the Government are being more than a little vague. In the interest of time, however, I beg to ask leave to withdraw the motion.
On a point of order, Mr. Martlew. The least I can do is to congratulate you on the excellent job that you have done in chairing your first Committee. I also congratulate Opposition Members for the probing job that they have done, even if they have been slightly irritable at times during the week. I also thank Mr. Conway for his contributions, as well as the police and those involved from the House authorities. I am grateful to my hon. Friends the Under-Secretaries of State for the Home Department and for Health, for their steadfast support, and to Back Benchers on both sides of the Committee, who have contributed to a week of healthy debate. It would be rude of me, Mr. Martlew, not to mention also the excellent work of the two Whips who ensured that we finished our consideration and used our time to the full.
Further to that point of order, Mr. Martlew, I add my thanks and those of my hon. Friends. You did an excellent job in your first chairmanship of a complex Bill. I also thank Mr. Conway for his chairmanship. I should clarify for the Minister that he should get used to the fact that Conservatives feel deeply about these issues; that is not irritability but a probing spirit and a desire to ensure that we get such Bills right.
Further to that point of order, Mr. Martlew. May I quickly add my thanks to you and Mr. Conway for chairing the proceedings? It makes a nice change for us to complete consideration of a Bill, and that is pleasing. I thank the Minister for the answers that we have had, and look forward to future exchanges. I thank my hon. Friend the Member for Brent, East (Sarah Teather) who has made some interesting interventions, and all other members of the Committee.