Clause 14

Safeguarding Vulnerable Groups Bill [Lords] – in a Public Bill Committee at 1:00 pm on 13th July 2006.

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Exception to requirement to make monitoring check

Photo of Ivan Lewis Ivan Lewis Parliamentary Under-Secretary (Department of Health) (Care Services)

I beg to move amendmentNo. 58, in page 9, line 15, leave out paragraph (a).

Photo of Eric Martlew Eric Martlew Labour, Carlisle

With this it will be convenient to discuss the following amendments: No. 59, in page 9, line 16, leave out paragraph (b).

No. 60, in page 9, line 19, leave out paragraph (c).

No. 138, in page 9, line 25, leave out ‘the control or management of’.

Government amendments Nos. 155, 156 and 175.

I call Mr. Dhanda.

Photo of Ivan Lewis Ivan Lewis Parliamentary Under-Secretary (Department of Health) (Care Services)

If only it were Mr. Dhanda—but I am here instead. [Interruption.] The hon. Member for East Worthing and Shoreham (Tim Loughton) says that that is not the right attitude; I hope that, by the time I have finished, he will still hold that view. I am delighted to welcome you to the Chair, Mr. Martlew. I shall speak first to the Government amendments. The Opposition can then speak to their amendments, and I shall respond.

Clause 14 lists the regulated activity providers exempted from the obligation of making a vetting and barring check under clause 11 and from ensuring that those engaged in regulated activity are subject to monitoring. Committee members will appreciate it if I outline the clause’s importance. It is crucial that the new scheme should offer flexibility, especially in sectors for which the concept of central vetting will be new, as is the case with many of the sectors exempted under clause 14. Our original intention was to give those sectors the opportunity to phase in checks, as appropriate to their individual services, and give them the freedom to decide internally which members of staff should be vetted. That is why we made provisions under clause 14 to remove exemptions, via delegated legislation, in relation to those groups listed in clause 14(4). That would allow time for the scheme to bed down and enable us to extend mandatory vetting in response to service requirements. However, following debate in another place, we are seeking to make our intentions in that regard clearer in the Bill. I expect that will be welcomed by Committee members.

Amendment No. 155 introduces a sunset clause in respect of paragraphs (d) to (g) of clause 14(1). The paragraphs cover organisations providing recreational, social, sporting or education activities, educational courses, the management of housing and housing-related support services. The effect of the clause will be that those paragraphs will no longer have effect once a period of three years, from the date on which the provisions are brought into force, has elapsed. Once that happens, clauses 10 and 11 will apply to the regulated activity providers with the result that they will commit an offence if they do not carry out a scheme status check and ensure that those whom they employ to carry out regulated activity are subject to  monitoring. Individuals who carry out this work will be committing an offence if they are not subject to monitoring as set out in clause 8.

As a safeguard, an order-making power has been included in amendment No. 175. It is there in case there was a problem that resulted in the requirement to check having serious operational consequences for service delivery, and if the exemption needed to be extended for an extra period.

We are all aware that the Bill is a big step forward for the protection of vulnerable adults, bringing about a significantly larger and more diverse work force than ever before. However, as the order-making power is subject to affirmative resolution, the Government and Parliament would need to consider the impact on those receiving such services and make a carefully balanced decision that reflected the risks associated with not imposing a mandatory requirement, and the risks of loneliness and isolation that may be experienced by those whose services were withdrawn. Again, I hope that that will reassure Committee members. I stress, however, that such a power would not be exercised lightly, given the important context in which we are working.

Amendment No. 58 further refines clause 14 by removing the exemption for complementary and alternative therapists, whom we recognise have the opportunity for intimate and personal contact with vulnerable adults. That should be welcomed by hon. Members of both Opposition parties, because they have tabled the same amendment. [Hon. Members: “First!”] They say they did it first, and I am happy to give them that credit. However, I think they knewour intention, given that we had reflected on representations from the other place and organisations outside the House. With that, I urge the Committee to accept the Government’s amendments as being common sense and which offer a sensible way forward and reflect appropriately the debate that was held in another place.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children) 1:15 pm, 13th July 2006

Welcome back to the Chair, Mr. Martlew. We certainly welcome the amendment, not least because the Minister admitted that it was ours. As is always frustrating, the way parliamentary procedure works is that the Government hijack good ideas from the Opposition—in this case blatantly—by inserting their name, which automatically goes ahead of the Opposition Members who have done all the work in the first place. However, we are happy that the Government have done so.

The subject came up in another place, where there was widespread agreement that the complementary or alternative therapy get-out could cause a problem for a lot of vulnerable people. The Minister has mentioned massages, but there is also aromatherapy, for example, which is increasingly available for mental health patients. Many types of vulnerable people will have increasing access to complementary or alternative therapy providers. It therefore seemed appropriate that they should be covered by the checks and balances in  the legislation and not made exempt, as subsection (1)(a) would have done, so we certainly support the amendment.

Amendments Nos. 59, 60 and 138 are probing amendments. The issue that they address was extensively debated in another place, where the Opposition queried the need for the clause at all. Subsection (1) contains a lengthy list of exemptions, of which only one will now be knocked out. Many noble Lords took the view that we should include as many people as possible, subject to the vetting and barring procedures, and if there was then a problem with trying to include too many people in one go, the system could be phased in, so that we could see at a later stage who should be exempted, rather than the other way round. Why should so many different classes of people, many of whom will be dealing with vulnerable people, be exempted?

We are concerned about the judicial processes, and about the prison and probation services in particular. We do not understand why subsections (1)(b) and (1)(c) should deal with them in a special way. Paragraph (b) seeks to exempt those involved in the control or management of persons detained in lawful custody and paragraph (c) seeks to exempt people in the probation service. However, as my noble Friend Baroness Buscombe said when similar amendments were debated in another place:

“Why, for example, are young offenders’ institutions so different from other residential institutions such as boarding schools or care homes? Of course the rules will be different, but the proximity between those in authority and their residents is quite similar, in which case I find it difficult to accept that we are talking about unique services.”

In response to those amendments in another place and the point about including the Prison Service and the probation service, Baroness Royall spoke in rather general terms:

“A blanket approach to vetting arrangements would not sit comfortably within either service’s operating arrangements.”

Why not? It would be interesting if the Minister could elaborate on that, because his noble colleague failed to in another place.

Baroness Royall went on to say:

“The vast majority of staff working in close contact with vulnerable adults in both the prison and probation services will be checked”— but again, not everybody. How vast is the vast majority? She went on to say that

“staff providing support to prisoners in a group setting may not be checked.”

When is a group big enough that they should be exempt from being checked because, presumably, enough people are watching out? What about when those groups become smaller groups, which become pairs under the control of that person? Again, the provision is fraught with potential problems. Despite all the reassuring words of the Minister in the other place, we have not really had the assurances on paper.

In the conclusion to the debate on the amendments, Baroness Royall said that she acknowledged:

“This is a matter of discussion among government departments”—[Official Report, House of Lords, 24 May 2006; Vol. 682, c. 879-884.]

and that she very much hoped that the Government would be able to find an acceptable solution on Report. From what I can see, that did not happen. We still have an elaborate list of exemptions in clause 14.

We need some more convincing from the Minister on, first, why all the exemptions in the clause are absolutely essential and, secondly, why paragraphs (b) and (c), which deal with vulnerable people in the prison and probation service, should be specifically included. That is why we have tabled amendments Nos. 59 and 60 to strike out those two paragraphs. Given that they have shown willing with paragraph (a) on complementary therapy, perhaps the Government could apply the same logic to the prison and probation services.

One also must bear in mind the high incidence of mental illness among prisoners. It has been estimated in various studies that some three quarters of prisoners in our prisons suffer from some form of mental illness. Those are more vulnerable people than the rest of the population, in the unusual surroundings of prison, which in many cases is unfamiliar. We need the checks and safeguards to apply to them, too. The Minister must justify why the exemptions should be included.

Amendment No. 138 deals with paragraph (f). At the moment, somebody who is

“responsible for the control or management of the provision of housing (including sheltered housing)” will be exempted. There is a distinction to be made within that qualification. Clearly, it would not be appropriate to include people on the board of a social housing trust, or councillors on a housing committee responsible for council housing stock, who make decisions about the provision of housing and what sort of people can go into that housing, but who do not come into contact with those people at all, or certainly not regularly. One would not want to include such people, quite rightly. That is why we would retain the reference to those who are responsible for the general provision of housing.

I cannot see why there should be an exemption for those who would be covered by the phrase “the control or management” of housing. We could be talking about a warden of a sheltered housing project—the paragraph specifically uses the phrase “including sheltered housing”. Again, we are considering vulnerable, in this case predominantly elderly, people in sheltered housing accommodation, for whom a resident warden is in a responsible position. That warden has a great deal of control and influence over the vulnerable people living in that sheltered accommodation, will have access to their flats, and a master key to get into those flats. In many cases, the warden will be the person responsible for responding to any alarm buzzers that are installed.

Unless my reading of the paragraph is wrong—I would be delighted to be corrected; it is a probing amendment—we are talking about exempting people in positions of responsibility who have day-to-day contact with vulnerable, elderly, frail people, who are able to gain access to their private accommodation and who are privy to much private information about them.

I do not see why a housing manager of a sheltered accommodation block—a warden or whatever other description one might apply to someone in that  position—should be exempted, because they, more than people in many of the other categories that we have discussed, are able to gain access to vulnerable people. We are all aware of cases in which elderly people have been abused in some way or taken advantage of by people in a position of trust, who have access to their property and to their accommodation.

We still need to be convinced that the clause is necessary, and specifically why the three categories of people in paragraphs (b), (c) and (f) should be included. It strikes me that those people will have more access than many others to the sort of vulnerable people, both children and the elderly, whom the Bill seeks to protect.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education), Shadow Spokesperson (Home Affairs)

We strongly support Government amendment No. 58. We, too, took account of much of the debate in the other place. I understand that extra meetings were arranged to discuss the issue, and that it truly wasa cross-party discussion. I am pleased at the Government’s responsiveness, as a number of organisations were most concerned, particularly given the range of therapies that can be involved. I share the concerns raised by the Conservative party. Indeed, I question the requirement for the clause, or at least subsection (1). I should be grateful if the Minister said again why it is so important.

I have questions about some of the categories. Paragraph (b) refers to people who are “detained in lawful custody”. I imagine that, one way or another, checks would be made on the full-time staff. Some time ago, I visited Feltham prison, and I was impressed with the number of volunteers who, for example, were helping inmates with their reading skills. Close contact was obviously important.

I recall that one inmate could write only in capital letters, and the support that he was given by one volunteer was certainly frequent—it was at least once a week. Although I was impressed with what I saw, I am worried about those who could get that sort of position. Should there not be some monitoring or checking up on volunteers who go to such institutions so frequently? I shall not repeat what the hon. Member for East Worthing and Shoreham said about that.

On paragraph (c), I was thinking about the management of community sentences. Again, it may not be full-time probation staff who are involved in the projects. What is the Minister’s response to that example? The more one looks at it, the more one can pick examples that cause concern.

I would be grateful if the Minister explained exactly what is meant by paragraph (e). What is a “prescribed description”? It sounds as if it should be a monitored activity, where it applies wholly or mainly to vulnerable adults, but there may be an explanation. I concur with the concerns about sheltered housing. The provision may need narrowing, particularly in respect of sheltered housing. I share the concerns about that. Again, the Bill is quite stringent, with all those criminal penalties at one end of the scale. However, if there are loopholes, we have to wonder what we are doing here. Therefore, I hope that the Minister can reassure us on those points.

Photo of Ivan Lewis Ivan Lewis Parliamentary Under-Secretary (Department of Health) (Care Services)

The debate has demonstrated that, to some extent, these issues will always be a matter for judgment and timing. They need to be looked at sector by sector, organisation by organisation, groups of paid and unpaid staff by groups of staff. It is not a one-size-fits-all approach.

It would be nice to believe that we could make this neat and tidy. Having considered this Bill, along with other colleagues, I think that it is incredibly hard to make it neat and tidy. An element of judgment has to be made that is linked to proportionality, particular sectors and activities.

We also need to take account of existing checks that are made in certain sectors in which there are well established processes and procedures. In other sectors, we are starting from a very low base, if any base at all. It is right to say that it is not a one-size-fits-all Bill. Judgments are having to be made all the time about the nature of the protection that is being offered and the responsibilities that are placed both on employers and individuals.

I turn to the Opposition’s amendments. Amendment No.138 would remove the reference to

“the control or management of” housing. That appears to remove the exemption in relation to those organisations that manage housing services but that are not the provider of such services. In many cases, the provider or the owner of housing stock subcontracts out the management of that housing stock to another organisation. Many registered social landlords let and manage property of which they are not the legal owner.

Therefore, we believe—this may be an unintended consequence of the wording and not necessarily related to the principle that the Conservative party is trying to support—that the amendment would make checks mandatory for those individuals working with organisations with day-to-day responsibility for the management of housing services, where those services are contracted out. However, as drafted, the amendment would also have the effect of retaining optional checks for individuals working in local authority housing services, for example, which manage their own housing stock. That would create an inconsistency that we want to avoid.

At this stage, we wish the exemption to apply across the sector. It is crucial that the scheme offers flexibility and allows those services in which the concept of central vetting will be new the time to phase in checks as appropriate to their individual services. That is the case for all providers of housing services. I must say to the hon. Gentleman that this Bill has established that it is legitimate to reflect on the need for a phasing-in period in some sectors—hence the sunset clause. Having considered the matter carefully, we believe that housing is one example of that.

We agree with the hon. Gentleman that a warden in sheltered accommodation is one example of the type of worker who might have access to vulnerable people on an ongoing basis. However, having looked at the sector as a whole, the judgment that we have made is that it is more desirable and realistic to phase this in over time. That is the difference between us. There is no difference  of principle. It is that the hon. Gentleman seeks through the amendment—even though there is the unintended consequence that I have referred to—to make this happen from day one. We believe that a phasing-in period is needed.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children) 1:30 pm, 13th July 2006

I am not so concerned about a phasing-in period and the timing. Despite what the Minister read out, I still do not know which part of the Bill covers a housing warden of a sheltered accommodation block. This part of clause 14 appears to exempt them, now or at some stage in the future.

Photo of Ivan Lewis Ivan Lewis Parliamentary Under-Secretary (Department of Health) (Care Services)

Clause 14(1)(d) to (g) covers organisations providing the management of housing and housing-related support services, where the sunset clause would apply. Unless I have missed something, the phasing in would apply to someone working as a warden in social housing. The only difference between us is at what stage in the process such a worker should be covered by the rules.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

The Minister is rather uncertain and I am even more uncertain now. I want to know where in the Bill it states that the warden of sheltered housing accommodation is subject to vetting and barring procedures, because I cannot find it. Will it be in regulations, and if so, when?

Photo of Ivan Lewis Ivan Lewis Parliamentary Under-Secretary (Department of Health) (Care Services)

I refer the hon. Gentleman to clause 14(1)(d) to (g). Included in that list are recreational, social, sporting or educational activities or courses, and the management of housing and housing-related support services. Unless I am missing something, the warden of a sheltered scheme would, in due course, fall under the jurisdiction of the Bill in that context.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

Is it not the case that the list can be changed at any time, so the exemptions on the list may, or may not, actually come into effect, in however many years’ time? Strictly speaking, that is the case, is it not?

Photo of Ivan Lewis Ivan Lewis Parliamentary Under-Secretary (Department of Health) (Care Services)

I assure the hon. Gentleman that there is absolutely no intention to change the list. The difference between us is that the hon. Gentleman is implying, despite the unintended consequence to which I referred, that he would like the measure to be applied from day one. We are saying that, in the context of the housing sector generally, it needs to be phased in over time, which is why the sunset clause applies. He should accept that, as that is what the measure to which I referred states. He suggested that I or any other Minister may have an agenda to remove that item from that list but that is untrue. Elsewhere we have the power to revisit these issues under an affirmative resolution and Parliament could have another look at them, but sheltered housing and the role of wardens are specifically covered. Clause 14(1)(f) states, in brackets, “including sheltered housing”.

I genuinely do not understand the hon. Gentleman’s concerns on this occasion. He normally makes salient points, although they are sometimes at variance with the Government’s position. I do not understand the point he is making, so I will move on. If he wishes to come back, or to press the amendment to a Division, he will have the opportunity to do so.

Amendments Nos. 59 and 60 would remove from clause 14 paragraphs (b) and (c) which relate to the Prison Service and the national probation service, which remain exempted from the Bill. Those services provide a wide range of services to adult offenders and require the flexibility to specify and undertake the vetting requirements that are relevant and proportionate to their unique businesses. I reassure hon. Members, especially the hon. Members for Basingstoke and for East Worthing and Shoreham, who tabled amendments Nos. 59 and 60 calling for the removal of the services in question from the clause, that from the outset all prison and probation officers, and workers who currently receive a Criminal Records Bureau check and will be working with young offenders in any capacity, will be covered by a CRB check. That covers the point that the hon. Member for Mid-Dorset and North Poole (Annette Brooke) reasonably made. Anybody in those categories will be checked.

The exception, on which we need to focus, will provide discretion for employers to check other categories of workers, such as volunteers and certain psychological staff, based on a risk assessment. I shall give a specific example. Volunteers involved in counselling such as bereavement counselling may be checked, but others such as those who give regular legal advice to a group of prisoners with prison officers always present might not require checks. That is a good, tangible example and I hope that it reassures the hon. Lady on why we feel there needs to be discretion based on a risk assessment.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education), Shadow Spokesperson (Home Affairs)

I thank the Minister, because he is addressing my concerns. I appreciate that and understand the matter better. Will there be published regulations? How will the details and precision that he is giving us be conveyed to the relevant bodies?

Photo of Ivan Lewis Ivan Lewis Parliamentary Under-Secretary (Department of Health) (Care Services)

We have received reassurances from the Prison Service and the probation service on what will happen as a consequence of the passing of the Bill. I am sure that we can provide the hon. Lady with written assurances that will make her feel that she has something beyond my verbal assurances in Committee. I am willing to provide that.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

I am not entirely sure whether what the Minister has outlined will make the situation in the settings in question any different from that in other settings. Presumably a legal adviser coming into a prison under the supervision of a prison professional would fall into the Government’s “occasional” category. I am not sure whether he is giving us a strong argument for making an exception in the case of incredibly vulnerable groups.

Photo of Ivan Lewis Ivan Lewis Parliamentary Under-Secretary (Department of Health) (Care Services)

The hon. Lady may not be entirely sure, but following serious discussions with the probation service and the Prison Service, and having weighed up their description of the range of probation support activities that take place in prison, we have made a judgment. We have been given tangible examples of situations in which we should enable those in the system to make a risk assessment and judgment.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

Why not apply it in other circumstances?

Photo of Ivan Lewis Ivan Lewis Parliamentary Under-Secretary (Department of Health) (Care Services)

That is a matter of judgment. That is what Government and Opposition spokespersons do all the time—they make judgments on difficult matters. One of the arguments that we always hear from the Opposition parties is that we need to allow people working on the front line of public services, at the sharp end, to make more judgments and use more discretion, with fewer centrally imposed diktats and instructions. Now we have had serious discussions with the Prison Service and the probation service, and they have provided us with examples of why we should adopt an approach that allows risk assessments. They have persuaded us, and we ought to accept that their assessment of the situation is correct.

I hope that I have reassured hon. Members as to why we have reached our judgments on the different circumstances in question. On the question of housing, it is a matter of phasing in over a period of time. There is no difference of substance between us.

On the question of probation service and Prison Service workers, some of the concerns expressed by the hon. Member for Mid-Dorset and North Poole have been allayed as a consequence of my contribution.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education), Shadow Spokesperson (Home Affairs)

I thank the Minister for his response, because it has been helpful. I asked one further question, which was about the meaning of paragraph (e). Before we leave the issue, I should like to hear about any further discussions that might have taken place behind the scenes.

Photo of Ivan Lewis Ivan Lewis Parliamentary Under-Secretary (Department of Health) (Care Services)

I shall do my best to describe paragraph (e) for the hon. Lady. “Prescribed description” means that the Secretary of State will prescribe the types of course in regulation. The regulations might prescribe particular skills courses, for example. That is what it means, if that is any clearer for her. I am more than happy to write to her with an even clearer and more vivid explanation than the one that I have just given—if that is at all possible. However, on that basis, I ask the Opposition to consider not pressing their amendments.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children) 1:45 pm, 13th July 2006

It has been an interesting debate, made no easier by the Minister’s uncertainty about the territory on which he was treading at one stage. It confused various hon. Members, not least myself.

The Government’s sunset clauses are welcome, and unusual. The Opposition usually propose sunset regulation, so those clauses are welcome, but we have doubts about the Government’s ability to stick to the suggested timetable, given the arbitrary, hotchpotch nature of the areas covered, which we believe should not have been included, nor should they have been subject to exceptions or to deferment of the incoming criteria.

I take the Minister’s point about sheltered housing wardens, because they play an important role. He has made it clear in our discussions that they will be included in the criteria, albeit at a later date. We hope that the timetable will be adhered to and that the terminology will not change during that time.

I am less convinced by the Minister’s refusal to consider amendments Nos. 59 and 60 concerning the Prison Service and the probation service. Opposition Members have not been swayed by the reasons why those services should be treated differently, given the nature of the vulnerable people with whom they deal. To try to reassure us, the Minister cited various discussions and agreements with the work force in those services, but we do not know the nature of those discussions, the undertakings given or whether those professionals feel able to deliver. We are taking a lot on trust.

It would not be beneficial to ask the Committee to vote on our amendment, but the Government’s provision must be fleshed out on Report. The hallmarks of this Bill have been the lack of definition and the confusion among Ministers about who is included, how and when, to the extent that they have promised us a record number of letters. I do not mean to take anything away from them, as the Bill is highly technical and legalistic, and it covers largely uncharted territory, but that makes it all the more important that in Committee we receive real-life, specific examples of how it is—or is not—likely to work in practice.

Those who seek to abuse, particularly paedophiles and suchlike, are exceedingly devious and will find ways of getting round the law and of ingratiating themselves with trusting and vulnerable people. We have heard many examples, and it is essential that the legislation is crystal clear to those who are responsible for enforcing it and for monitoring people who are in positions of trust with vulnerable groups of adults and children.

Clearly, we are in the hands of the Government on their amendments, but we shall not press our amendments at this stage.

Amendment agreed to.

Amendments made: No. 155, in clause 14, page 9, line 42, at end insert—

‘(3A) Paragraphs (d), (e), (f) and (g) of subsection (1) cease to have effect on the relevant day.

(3B) The relevant day is—

(a) the last day of the period of three years starting on the day any provision of this section is brought into force, or

(b) such later day as the Secretary of State specifies by order.

(3C) A date specified under subsection (3B)(b) must be not more than three years after—

(a) the relevant day as mentioned in subsection (3B)(a), or

(b) the last day specified in respect of the paragraph concerned under subsection (3B)(b).’.

No. 156, in clause14,page9,line43,leave out from ‘amend’ to end of line 45 and insert

‘or omit any paragraph of subsection (1)’.—[Mr. Dhanda.]

Clause 14, as amended, ordered to stand part of the Bill.