Controlled activity: guidance

I beg to move Amendment No. 115, in Clause 20, page 13, line 2, leave out ‘may issue guidance’ and insert

‘shall by regulation, subject to the affirmative resolution procedure, make provision’.

With this it will be convenient to discuss the following amendments: No. 131, in Clause 20, page 13, line 4, at end insert—

‘(1A) Guidance issued under subsection (1) shall include a description of how an employer deciding to employ a barred person to undertake controlled activity will be required to demonstrate that they have considered the following—

(a) the level of access to children or vulnerable adults afforded by the post;

(b) what other information they had about an individual, including any summary of the reasons for a barring decision;

(c) what safeguards they have put in place in order to minimise the risk of harm; and

(d) how they will review the risk posed by the employment.’.

No. 108, in clause 20, page 13, line 5, leave out ‘have regard to’ and insert

‘act in accordance with any’.

A great deal of the Bill is complex and technical. Indeed, that was one of the first things the Minister said when we began our discussions. Nowhere is that more true than in the introduction of the concept of controlled activity. Employers are required to check the barred status of an employee, but with the discretion to employ barred individuals if appropriate safeguards are in place. The provision covers many health, further education and social care settings.

The Clause is pivotal in as much as it provides for statutory guidance on the steps that employers should take when employing individuals in controlled activities. The amendments in my name and the names of my hon. Friends are intended to do three things: tighten the language to ensure that guidance is issued, which is not how the Bill is currently worded, ensure that there is a full and open debate on what should be included in the guidance, and ensure that that guidance is acted on. Those are three simple objectives, and they are vital because guidance on the matter cannot be viewed as an optional extra. It must be issued, and that is not how the Bill is currently worded.

The guidance needs to be debated in full using the affirmative procedure. It is an important element and I would have preferred to see it in the Bill. The Government have chosen to do it in another way, but we need to ensure that we do not lose the opportunity to debate the issues in full. We also need to know how the guidance is being acted on. It is important that employers do not just need to have regard to it.

The Government do not always have a good record in this area. The Minister will no doubt remember the recent Ofsted report on employment practices in schools. It showed a considerable amount of confusion and inconsistency among employers as to their duties and obligations under the various Laws and regulations that have been issued. I am sure that the Minister and other members of the Committee will remember that we were unable to discuss the report in detail on Second Reading because, for some reason that still remains rather vague, it was not fully available to all hon. Members. I wish therefore to take this opportunity to go through one or two of its findings, which are pertinent to the debate.

In terms of confusion, hon. Members who have read the report will have read:

“Schools and LAs are confused about what action they need to take about existing staff members. The messages from the CRB, via the DfES, are not making the situation clear.”

It is clear that regulations and rules can often be misleading and are not helping employers in such  situations. That underlines the point made in the amendments, which is that the regulations need better and fuller debate than they have received in recent years.

The Ofsted report also found many instances of inconsistency, including poor record keeping by schools and local authorities on employment checks, and a widespread belief in schools that somebody else was checking staff, with the result that nobody carried out those essential checks. On page two of the report, Ofsted says:

“Such practice lacks rigour and thoroughness”.

The report also says that the letter from the then Secretary of State on 19 January 2006, which was intended to clarify the rules following the problems over list 99 and paedophiles in schools, added to the confusion. Many schools thought that the rules had suddenly changed, with the result that a further letter had to be sent out on 25 January to clarify the position. Again, that adds weight to the argument that these issues have not been dealt with well under current practices. That is why the amendments are important.

As with so much in the Bill, a lot of the important detail has been left to regulations. Without adequate scrutiny, the risk is that processes will not be subject to thorough debate and discussion. We could continue to make the mistakes that the Government have been making if we do not change the way we do things. Amendments Nos. 115, 118 and Amendment No. 131, tabled by the hon. Member for Bridgend (Mrs. Moon), work towards guarding against such a situation and would ensure that regulations on employers’ duties receive full debate and approval in Parliament. They would also ensure that employers acted in accordance with such regulations and did not just have to take regard to them, thereby preventing some of the confusion and inconsistency that Ofsted so graphically outlined in its report.

It is essential that we set out the framework clearly and unequivocally. Otherwise, how can we expect schools and other employers to follow through? If we fail to do so, we are just creating a future problem for ourselves. The loose language, which has been a theme within the debate, does not help us communicate and does little to ensure consistency in future.

The amendments would also address a significant hole in the Bill, whereby employers may employ a barred individual in situations where they might not normally directly come into unsupervised contact with children and vulnerable adults—for example, a receptionist in a dentist’s surgery. Although that would add an extra layer of complication, the amendments generally attempt to prevent the current confusion. The amendments will, hopefully, guard against the inconsistency that Ofsted says is currently occurring and improve the Bill.

I am disappointed with some of the comments from Opposition Front-Bench spokesmen, who must either have got out of bed on the wrong side or have a short memory about safeguarding when they were in power. The hon. Lady has a short memory, too, in respect of the debate on Second Reading, when she was prevented from reading from a report because it had been leaked to her. She was selective then and she  is selective now about what that report said. It actually said that a lot of good work was taking place in schools and that they are far safer places than they used to be. However, a lot of work needs to be done on checking records. If the hon. Lady wants to play political games on an issue that I felt had some level of all-party support, that is a matter for her.

Will the Minister give way?

No, I will not. Labour Members have shown great restraint in listening to Opposition Members going on and on about a system that they claim to support, yet never mentioning their own record. However, I shall speak to the amendments and try to take some of the heat out of the debate.

The intention behind amendments Nos. 115 and 108 is, in different ways, to strengthen the provision in the Bill for ensuring that controlled activity providers take the necessary steps when employing individuals in controlled activities. As my right hon. Friend the Minister for Children and Families said on Second Reading, we are doing further work on the sanctions that might apply in relation to controlled activity. That work is considering whether the current provision is sufficient, albeit not only in the ways suggested by the wording of the amendments. Before that work is completed, I would not want to rule out any option, including the wording of the amendments. For that reason, it would be premature to accept either of them at this stage. However, I intend to return with a final position on Report. With that reassurance, I hope that the hon. Lady will see fit to withdraw the Amendment.

Amendment No. 131 stands in the name of my hon. Friend the Member for Bridgend. First, we would certainly expect employers undertaking controlled activity to conduct a full risk assessment before employing an individual who was on a barred list. That would be critical to determining the appropriate safeguards that needed to be put in place. Secondly, we intend to consult stakeholders on the specific safeguards that need to be put in place when engaging a barred individual. Providing that detail in the Bill at this stage would pre-empt critical consultation with key stakeholders on what is an important issue, as I am sure my hon. Friend will understand. Lastly, it is essential to retain flexibility. It would be very difficult, for example, to change the steps that employers need to take as new best practice emerges if the risk assessment is set out in the Bill.

Given those points and the fact that I will take on board the wording of amendment No. 131 when we consider the issue before Report, I hope that the hon. Member for Basingstoke will withdraw the amendment. Before she does so, however, if she has such concerns about a receptionist working in a dental service, perhaps she could explain whether it is her view that such a person who has been on a barred list should not be employed in controlled activity with safeguards in place, because we would be delighted to hear the Opposition’s policy on that.

I am not sure that anyone is implying that we should not have safeguards in place. The  Minister should perhaps remember that we are here to listen to what the Government’s policy is, not to debate the Opposition. However, if he would like to swap places, we would be more than happy to try to improve the Bill and make it much better not only for those of us on the Committee, but those who have to try to put it into practice. We have heard constructive ways of trying to improve the Bill from my hon. Friends and Liberal Democrat Members, so it is somewhat disappointing that at the first sign of identifying the problem, the Minister’s reaction is defensive.

My comments about the Ofsted report related to the Government’s communication failures. They gave the report to the press in advance of Second Reading, but not to Opposition spokespeople, which put us in a difficult position. However, that is in the past and I do not want to dwell on it. We are talking about the safety of children and vulnerable adults, not the sensibilities of the Government and the way in which they choose to leak their information.

It is clearly disappointing to my hon. Friends and I that the Government are not willing to learn from their mistakes. Amendments Nos. 115 and 108 are constructive, and try to solve the problems that the Government have experienced in communicating to the many people who will be affected by the Bill. However, they are not willing to learn from the communication problems of the past. We should ensure that it is clear to employers that the guidance is not merely something to take heed of and simply “have regard to”, but that it should be put in place and acted in accordance with. That is a different form of words. The Amendment would fundamentally change the way in which employers would consider the guidance, and it is disappointing that the Minister does not seem to understand or appreciate that difference.

We all share the objective of improving the Bill, and we are scrutinisers in that matter. We have an obligation to put forward what we feel would constitute an improvement. Clearly, the Minister has heard the issues and perhaps he will have time to reflect in a more measured manner outside the Committee. I hope that he will have time to reflect on the amendments before Report, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 ordered to stand part of the Bill.