Clause 75

Protection of Freedoms Bill – in a Public Bill Committee at 4:30 pm on 10 May 2011.

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Amendment made: 147, in clause 75, page 62, line 34, before ‘of’ insert ‘or’.—(Lynne Featherstone.)

Question proposed, That the clause, as amended, stand part of the Bill.

Photo of Diana R. Johnson Diana R. Johnson Shadow Minister (Home Affairs)

I just want to ask the Minister a few questions about the clause, which makes amendments to the provision of information to supervisory authorities. The example quoted in the explanatory notes is Her Majesty’s Chief Inspector of Schools in England, which will be one of the organisations to which information could be provided. Subsection (1) replaces the duty on a supervisory authority to provide information that may be relevant to a barring decision with the discretion to do so. Why has the hon. Lady made such a provision a discretion, not a duty? Subsection (3) ensures that any obligation to provide children’s barred list information to a supervisory authority does not apply if the Secretary of State is satisfied that the supervisory authority already has that information. Why has she decided to introduce that provision? It might, in effect, weaken the flow of  information, given that it makes the action to send off the information to the supervisory authority an additional requirement.

Subsection (5) alters the obligation on the ISA to provide the supervisory authority with information to a “power” to do so, and it limits the supervisory authority’s ability to request information under section 50 of the Safeguarding Vulnerable Groups Act 2006 to a situation in which the information is required in connection with one of its functions. What was the thinking behind that change? Do the subsections not weaken the ability to make sure that everyone is kept informed and that the important flow of information actually happens? Why not take a belt-and-braces approach to ensure that the supervisory authority as well as the ISA knows what it needs to know?

Photo of Lynne Featherstone Lynne Featherstone The Parliamentary Under-Secretary of State for the Home Department

We are back to the same push-and-pull in respect of what is proportionate and balanced. Clause 75 does indeed change what was a duty to provide prescribed information when the referral criteria are met, and amends it to a power to provide any relevant information when the referral criteria are met. That is a sensible and more proportionate approach to information sharing between the supervisory bodies and the Independent Safeguarding Authority, as it allows the supervisory body the discretion to make a referral when it has reached a decision about whether or not it is appropriate to make a referral and to decide what information is appropriate to provide.

For example, the Care Quality Commission might determine that an individual is no longer suitable to be a registered manager because, while engaged in regulated activity, that person harmed a patient or placed them at risk of harm. Following investigation into the care practices of a care home or clinic, the Care Quality Commission might decide to refer the worker to the ISA. In other words, the Commission will be able to do what it considers best to protect children or vulnerable adults. That is the right approach, because the Commission is first in line, given its responsibilities and remit. If it is involved, it can judge whether a case needs to be referred or whether there is another way to deal with it.

Clause 75 makes consequential amendments to section 47 of the Safeguarding Vulnerable Groups Act 2006 to provide a power for a supervisory authority to ask the Independent Safeguarding Authority if someone is barred from regulated activity with children or vulnerable adults. The ISA has a duty to provide that information. A supervisory authority can seek that information only if it is required in connection with the exercise of its functions. As ever, it is about a proportionate response and not giving information that is not relevant, necessary or appropriate under those circumstances.

In answer to the hon. Member for Kingston upon Hull North, the clause provides for a supervisory authority to apply to the Secretary of State to be notified if someone is barred or subject to a relevant disqualification order in relation to children or vulnerable adults.

Photo of Tom Watson Tom Watson Labour, West Bromwich East

I am sorry to interrupt the Minister’s tour de force. The matter is immensely complex, so I seek clarification. I hope she does not find my question too simple. Can she define what “proportionate” means according to the clause, and who decides what is proportionate?

Photo of Lynne Featherstone Lynne Featherstone The Parliamentary Under-Secretary of State for the Home Department

I think that is the point that I was addressing. If the Care Quality Commission goes in and makes a judgment that a case needs to be referred to the ISA for barring, it has made a judgment to take it one stage further in relation to someone being barred from regulated activity. If, on the other hand, the Care Quality Commission finds another means—it has a number of remedies for mitigating circumstances—it can apply a different and a more proportionate circumstance, but a judgment has to be made in the first place. Not everything is referred all the time.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

Will there be guidance on this, and will the guidance be statutory, given the importance of the proposal?

Photo of Lynne Featherstone Lynne Featherstone The Parliamentary Under-Secretary of State for the Home Department

No, the guidance will not be statutory. We raised that matter last week. We do not believe that it needs to be statutory. We expect and hope that the bodies involved in providing regulated activity will follow the guidance because it is something that they would wish to follow. I cannot imagine that anyone will not do so.

Photo of Vernon Coaker Vernon Coaker Shadow Minister (Home Affairs)

Does the Minister have a draft of this guidance so that the Committee can see the sort of things that are going to be included, or will the guidance be produced at a later stage for consideration by the Lords?

Photo of Lynne Featherstone Lynne Featherstone The Parliamentary Under-Secretary of State for the Home Department

The guidance will be produced in due course, and we will work with all those who have an interest in this field to make sure that it is clear and gives them all the information that is needed. We will work with partners and providers across the board to make sure that it is accurate, helpful, as brief as possible and clear.

As I was saying, the information flows provided for will enable a supervisory authority to be advised of barring decisions relevant to their functions. Although a supervisory authority may apply to the Independent Safeguarding Authority in relation to whether a person is barred in connection with their functions, there is no proactive information flow for barring decisions in all relevant cases. That matter was raised by the hon. Member for Kingston upon Hull North. The Secretary of State will be able to confirm identity in relevant cases and ensure that supervisory authorities are advised of all barring decisions involving their professional functions.

Finally, clause 75 amends section 50 of the 2006 Act to provide the Independent Safeguarding Authority with a power, which is exercisable either on its own initiative or in response to a request from a supervisory authority, to provide such information as the authority considers relevant to the supervisory authority in relation to the protection of children or vulnerable adults. That will provide flexibility in relation to information flows between the Independent Safeguarding Authority and supervisory authorities, and help to prevent any safeguarding information gaps.

Photo of Tom Watson Tom Watson Labour, West Bromwich East

I hope not to detain the Committee for too long on the clause. I think that I understand the direction of travel, but I am looking for more clarity—I tried to intervene on the Minister so as not to make a  speech—on the nature of the guidance. She said that the Government would consult partners. Can she give me some idea who those partners are? What role will the Government play in drawing up the guidance? When will it be updated? Will Parliament be able to scrutinise it?

Photo of Lynne Featherstone Lynne Featherstone The Parliamentary Under-Secretary of State for the Home Department

It is not statutory guidance. It is guidance that is best worked through with providers, supervisory bodies and the other authorities to which we will come: all those who have key interests and experience and can make the guidance absolutely clear for the avoidance of doubt.

Question put, That the clause, as amended, stand part of the Bill.

The Committee divided: Ayes 9, Noes 6.

Division number 23 Decision Time — Clause 75

Aye: 9 MPs

No: 6 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly agreed to.

Clause 75, as amended, ordered to stand part of the Bill.