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Delegated Legislation Committee Debates

Draft Police Act 1997 (Enhanced Criminal Record Certificates) (Protection of Vulnerable Adults) Regulations 2002

Second Standing Committee on Delegated Legislation

Monday 25 February 2002

[Mr. James Cran in the Chair]

Draft Police Act 1997 (Enhanced Criminal Record Certificates) (Protection of Vulnerable Adults) Regulations 2002

4.30 pm

The Minister for Police, Courts and Drugs (Mr. John Denham): I beg to move,

    That the Committee has considered the draft Police Act 1997 (Enhanced Criminal Record Certificates) (Protection of Vulnerable Adults) Regulations 2002.

I am pleased to initiate this debate. I shall be brief, but I hope to be able to deal in due course with any questions that hon. Members may put. The regulations are a crucial element in the package of measures that we have been putting in place under part V of the Police Act 1997. The measures will be operated by the new Criminal Records Bureau, which will allow wider access than hitherto to information about convictions that may have a material bearing on a person's suitability for employment in certain jobs. Special emphasis has been placed on the protection of children and vulnerable adults.

The 1997 Act left several detailed matters to be prescribed later in secondary legislation. The issue before the Committee today is the definition of positions involving work with vulnerable adults that should be eligible for the highest level of certificate—or disclosure, as it is to be known—issued by the CRB. The provisions reflect the results of widespread consultation and set a high test. That is appropriate because enhanced disclosures should be treated not as the norm, but as a high level of check to be reserved for those who are at greatest risk.

The regulations reflect the clear view of those who represent the disabled that people should not be categorised as vulnerable solely because they have a disability. The regulations therefore strike a balance that will ensure that those who are at particular risk will be afforded the greater protection that an enhanced disclosure will provide. The regulations relate to people who are receiving specified services and who, because of their disability or condition, are heavily dependent on others, or to those whose ability to communicate is seriously impaired or who would have difficulty protecting themselves. Such people obviously require and deserve added protection.

4.32 pm

Mr. James Paice (South-East Cambridgeshire): I thank the Minister for his lucid explanation of the regulations and welcome you to the Chair, Mr. Cran.

Since taking up my current responsibilities on the Opposition Front Bench, I have handled two statutory instruments relating to police issues, both of which had to be withdrawn by the Government following their

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first airing and before they were debated in Committee. These regulations are the first such instrument to be dealt with by the Minister for Police, Courts and Drugs. His colleague, the Minister for Criminal Justice, Sentencing and Law Reform, dealt with another.

Will the Minister explain the alteration that the Government have made to the original draft of the regulations that was to be debated in Committee? The difference between that version and the one before us today is that the word ''substantial'' has been removed. The conditions relating to learning and physical disability and to physical and mental capacity were to be qualified by the word ''substantial'', so I hope that the Minister can explain the Government's reasoning, or say what advice they received that caused them to change the regulations at a very late stage, after the debate had been scheduled. I hope that he will also explain the implications of removing the word ''substantial''. It seems as though the regulations will apply to almost any learning or physical disability, or reduction in physical or mental capacity. I should be grateful if the Minister explained the background to the alteration.

My second question is straightforward and relates to implementation. As the Minister said, the regulations form part of a group of measures that will implement part V of the 1997 Act. When does he expect that to come into force?

My third question relates to the enhanced criminal record certificate and the fact that it will be open to the police to give to the registered person, who is not the applicant, but the individual with the record, any further information that they believe may be relevant to the purpose for which the certificate is required—information that ought not to be included in the certificate for reasons of the prevention or detection of crime, but can, without harming those interests, be disclosed to the registered person.

What is the justification for such action? In the spirit of openness and transparency—which overlays both the Government's actions and the regulations—it is only fair that the individual should know what is being said about him or her; however, it is apparent that such individuals may not know what is being said about them because the police will provide the information directly to the registered person. The regulations remove from the individual the opportunity to refute the information, seek evidence about it, or appeal against it. That is unfair. If the Minister can answer my three fairly straightforward questions, I shall be more than happy to give the regulations a fair wind.

4.36 pm

Norman Baker (Lewes): I was interested in the comment of the hon. Member for South-East Cambridgeshire (Mr. Paice) who said that this statutory instrument had previously been withdrawn, as had another. I wish to say in passing that, if statutory instruments were amendable, that problem would not occur.

The measure is sensible and we do not oppose it. I, too, seek clarification on two or three matters. The

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first relates to the time scale. The Home Office press release of April 2001 stated:

    ''it is expected that the CRB will be issuing the highest forms of disclosure''—

which include those now under discussion—

    ''in the autumn of 2001.''

That has now been put back to spring 2002. Various reports from the media referred to the need for more robust testing of the system. Indeed, in an answer to my hon. Friend the Member for Colchester (Bob Russell), the Minister said that he wanted to ensure that the Criminal Records Bureau would be ''both robust and effective''. I am not complaining if the reason for the delay is to ensure that the system is robust and effective. That is acceptable. However, is the Minister now convinced that it will be robust and effective? Is he confident that erroneous information or misinformation supplied in response to requests can be avoided and that the system will be watertight?

A related question about the regulations and the information given in response to requests centres on the reliability of the police national computer. The Minister will know that concern has been expressed about its accuracy. In an answer to my hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes), the right hon. Gentleman said:

    ''We fully recognise, and share, the concerns that have been expressed about errors and omissions in some of the data, and delays in inputting data onto the PNC.''—[Official Report, 20 July 2001; Vol. 371, c. 670W.]

He was good enough to recognise the problem and I seek confirmation that he is confident that such problems have been dealt with. Is he satisfied that any request for information will receive an accurate reply? It would be unfortunate if that were not the case.

The hon. Member for South-East Cambridgeshire referred to the sort of information that is supplied. Enhanced disclosure will include not only information about uncontroversial spent and unspent convictions and cautions on a national level, but information from local police records, including relevant non-conviction information. That matter must be explored because potentially damaging information about an individual could be communicated in response to a request, and that information may not be true. For example, information may be given that a person has a habit of loitering outside public toilets, but that person might happen to meet a member of his family there, or he might have a bladder condition. An innocent act might be misinterpreted in the information provided.

I am not suggesting that it is not right to give information that the police hold, but if information is communicated that has not been subject to proper process in a court of law, it is important that the person about whom the information is relayed has an opportunity to see and correct that information. What opportunity are people to have to correct information passed on about them that may be inaccurate, and may damage them if not corrected?

The Conservative spokesman referred to the alterations made to the definitions. The definition on

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the CRB website, which differs from that in the statutory instrument, referred to

    ''serious reduction in physical or mental capacity''.

The word ''serious'' has disappeared from the website, and the reference is now simply to a ''reduction''. The Minister said that a balance was involved. All Committee members would like to hear an explanation of why the wording has been downgraded.

Subject to the answers to those questions, my hon. Friend the Member for Brecon and Radnorshire (Mr. Williams) and I will be happy to approve the statutory instrument.

4.41 pm

Mr. Denham: I hope to be able to reply satisfactorily to the questions asked by the hon. Members for South-East Cambridgeshire and for Lewes (Norman Baker). In respect of the change in the text of the statutory instrument, I regret to say that a wrong version of the statutory instrument was laid and had to be withdrawn. I apologise to the Committee.

It is a matter of judgment, but our judgment was that the word ''substantial'' set too high a test. The test in the regulations is sequential and relates to certain types of services and disability and the extent of vulnerability. Each of the three conditions must be in place. The introduction of the word ''substantial'' was felt, following consultation, to set too high a test. There was arguably a danger that some people might fall outside the scope of the enhanced disclosure and so be put at risk.

The hon. Gentlemen also asked about the time scale for the introduction of the CRB and discussed the quality of data. We expect the CRB to be able to start processing applications for disclosures from 11 March. As has been recognised, in the latter part of last year we decided to delay the initial launch date while further testing took place of the software and surrounding systems; our aim was a March launch date. Over the past few weeks, the CRB has been trying to identify a small number of outstanding items and taking remedial action. The current advice is that, subject to a final checkpoint review on 27 February, work will start on 1 March to migrate the records of organisations already registered with the CRB to the operational database, and to build the new environment for live operations. I am grateful to the hon. Member for Lewes for recognising that we have prioritised—rightly, I hope—over the past two months and done what we reasonably can to ensure that the system operates as intended, rather than tried to work to an imposed start date.

The hon. Gentleman asked about the quality of the data on the police national computer. It has been recognised for some time that some forces have done better than others in entering data to the PNC on time. The greatest concern is about data that have not been entered because of the backlogs. Since the decision to establish the CRB, the Association of Chief Police Officers and Her Majesty's inspectorate of constabulary have worked to try to ensure that data were entered on time. On 27 April 2000, the ACPO council produced the compliance strategy, which was

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circulated to all forces that year. HMIC endorsed the strategy.

HMIC and ACPO agreed a 12-month programme of work that would run from April 2001. The aim was to ensure that forces worked towards achieving ACPO performance indicators for the prompt inputting of newly available data on arrests, summons reports and court results. It was also intended to clear a backlog of data on older impending prosecutions where the arrest and summons report were more than 12 months old, but there was no court result.

HMIC was commissioned to conduct an inspection and review to monitor and manage the progress that forces made. On 17 January, it published its report on the substantial progress that had been achieved approximately halfway through the 12-month programme of work, although much work remained to be done. Most of the forces were on target to clear their backlogs by April, and most have already done so.

Supporters of the project have consistently maintained that the CRB was not intended to be an entirely stand-alone, failsafe system that would receive all the necessary information about a potential employee. The normal checks on references are still important, and previous employers must still be contacted as part of good employment practice.

The hon. Member for Lewes asked whether he could be sure than any request for a reply would always be accurate. No one can ever rely entirely on an information technology system that depends on human beings to input data. That is why so much work has been done on the CRB to make the data as good as possible and to ensure that there is a tight time scale for correcting any mistakes in the information provided. It is impossible to say that erroneous information will never be input into the system, but one of the CRB's biggest tasks is to minimise the chances of that happening and to ensure that mistakes can be corrected.

Both Opposition spokesmen asked about information from local police forces and the enhanced disclosure regime that may include information from local police records that the chief officer considers to be relevant, although in practice the matter is usually delegated to an assistant chief constable. The aim of the enhanced disclosure was debated at length during consideration of the 1997 Act. It was intended that such information might include a conviction that was not recorded on the PNC: some offences do not incur imprisonment and are outside the 50 categories that are usually on the PNC. It might also include information about an outstanding charge, or about an acquittal that is nevertheless considered relevant—for example, we must allow for the possibility of acquittal on a technicality.

The information might be intelligence information. ACPO's advice is that any intelligence information must be of high quality and from a source that is sufficiently trusted to ensure its suitability for

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disclosure and potentially to prevent a subject obtaining employment. The age of the information may cause its validity to be questioned, and further investigation may be demanded to assist the decision-making process. We are currently working on further Home Office guidance to supplement the ACPO guidance, and it will be openly available.

There was a question about withholding information and the fact that the disclosure is limited. That should happen only in exceptional circumstances in which there is a strong operational reason for not disclosing to the individual. For example, if an individual were under continuing police surveillance for a serious offence, that would create such a rare case—one in which the balance would probably be held to be in favour of protection for the vulnerable child or adult, and against disclosing the information to that individual at that time. I am sure that that was the case when the 1997 Act was first debated.

 
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Prepared 25 February 2002