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Session 2005 - 06 Publications on the internet Standing Committee Debates Safeguarding Vulnerable Groups Bill [Lords] |
Safeguarding Vulnerable Groups Bill [Lords] |
The Committee consisted of the following Members:Geoffrey Farrar, Committee
Clerk † attended
the Committee Standing Committee BThursday 13 July 2006(Afternoon)[Mr. Eric Martlew in the Chair]Safeguarding Vulnerable Groups Bill [Lords]Clause 11Regulated
activity provider: failure to
check 1
pm Amendment
made: No. 148, in page 7, line 9, at
end insert— ‘( ) A person
does not commit an offence under subsection (1) if B has not attained
the age of 16.’.—[Mr.
Dhanda.] Amendment
proposed: No. 149, in page 7, leave out lines
15 to 18 and insert— ‘(5A)
Subsection (6) applies
if— (a) B engages in an
activity which is a regulated activity,
and (b) he does so with the
permission of two (or more) regulated activity
providers. (6) A regulated
activity provider does not commit an offence under subsection (1) if,
before the permission takes effect, he obtains written confirmation
from the other regulated activity provider (or one of them)
(C)—’.—[Mr.
Dhanda.]
The
Chairman: With this it will be convenient to discuss
Government amendments Nos. 150 to 153 and
171. Mrs.
Maria Miller (Basingstoke) (Con): I want to take this
opportunity to raise a couple of points with the Minister. Although
these are technical amendments, they raise some issues that are worthy
of a little more substantive debate. Regulated activity providers are
sanctioned if they do not check that an individual is monitored when
taking him into employment. Obviously, the penalty is onerous. The
clause also permits employers to employ individuals without checks on
an occasional basis; we have had that debate and we may have it again
so I will not delay the Committee by raising the issue now.
However, there is another
provision whereby an employer can take an individual on, and that is if
he obtains written confirmation from another regulatory provider who
employs the individual in a regulated activity. Basically, the first
employer provides an underwriting of the fact that that individual is
monitored and is eligible for employment. I am not at all clear why
amendment No. 149 has been tabled. It seems to produce an additional
complication in terms of the employment structure of an individual who
may be taken into a monitored environment where a particular employer
has not made a check against his barred status. Could the Minister take
the opportunity to look at that?
My second point relates to
another complex issue in the clause. Obviously we are looking to create
a workable system, but the clause is very complex. As I said, an
existing employer can endorse an employee’s suitability for
another employer. Could any further detail be added in this part of the
Bill about when the initial employer’s liability ends in terms
of the reference that he has given that employee to go into another
working situation where he has not been checked for monitoring or
barred status? It is
not entirely clear from the Bill what happens when, for instance, an
individual is barred after an initial reference has been given. Would
the original employer have a duty to inform the second employer of the
change in barred status? I can entirely understand why it would be
necessary to give employers the ability to give these types of
reference, but given that people’s barred status can change, can
the Minister clarify whether there will be an obligation on employers
who have given such undertakings to ensure that other individuals are
kept up to date with any changes that
occur?
The
Parliamentary Under-Secretary of State for Education and Skills (Mr.
Parmjit Dhanda): May I take that last point first? It will
not be incumbent on the employer to do so. The Independent Barring
Board and the Criminal Records Bureau will inform future employers. As
we discussed on Tuesday, it is the role of the employer to refer
information to the IBB if that person has been sacked for inappropriate
behaviour, for example involving a child.
The hon. Lady requested a
little more information on amendments Nos. 149 and 150, which ensure
that the intended policy on the requirement to check is correctly
drafted in the Bill when a person can be regarded as engaging in a
regulated activity for two different regulated activity providers: for
example, a builder on a school site who may be there with the
permission of both the school and the construction company. The hon.
Lady was alluding to the overlap between the two.
One of the regulated activity
providers must be able to rely on a written confirmation from the other
that a check has been made on the person instead of having to make his
or her own check. Amendment No. 149 is a drafting change to remove a
perceived ambiguity from the previous provision. Amendment No. 150
makes it an offence for the other regulated activity provider to give a
false written confirmation, thus closing a loophole in the Bill, which
is common sense. Amendment No. 151 removes an unnecessary reference to
a clause, which happens to be clause 11(6)(a), in clause
11(9). On amendments
Nos. 152, 153 and 171, it may help if I explain some of the
Bill’s provisions. Clause 11 requires an employer to obtain
relevant information within the meaning of schedule 4 either through an
enhanced disclosure or by making a check under schedule 4. Clause 39
currently allows the Secretary of State to prescribe sectors where the
ability to make a schedule 4 check is removed and the regulated
activity provider is required to have obtained an enhanced disclosure
before employment can
begin. The amendments
will allow the Government to prescribe sectors where an enhanced
disclosure must be
applied for but where a preliminary check showing that the individual
was monitored and therefore not barred would allow employment to start
in the first instance while the regulated activity provider was waiting
for the enhanced disclosure, which I am sure the Committee will see as
common sense. The mechanism for making the preliminary check will be
prescribed in regulations and we will consult on the circumstances in
which the checks will be used.
Mrs.
Miller: I know that this issue is terribly complex and I
do not want to detain the Committee, but why is amendment No. 149
necessary? I do not understand why it has been
proposed.
Mr.
Dhanda: I thought I had explained. It is to ensure that
the intended policy on the requirement to check is correctly set out in
the Bill, because it was not in the first instance. That is obviously
not clear enough for the hon. Lady, but I am happy to go back and have
another look at amendment No. 149 if she feels that it need not be
there at all. I believe that it should, but I will happily take another
look at it before Report.
The amendments will allow the
vetting and barring scheme to continue existing provisions such as the
“POVA First” check, which are used to minimise
recruitment difficulties in sectors where enhanced disclosures are
currently mandatory. I therefore ask hon. Members to accept the
Government amendments.
Amendment agreed
to. Amendments
made: No. 150, in page 7, line 29, at
end insert— ‘(8A) C commits
an offence if— (a) he
provides the written confirmation mentioned in subsection (6),
and (b) the condition in
subsection (8B) or (8C) is satisfied in relation to
him. (8B) The condition is that
C has not made an appropriate
check. (8C) The condition is
that— (a) C has made an
appropriate check, and (b)
before he gives the written confirmation he has reason to believe that
B has become barred or is no longer subject to
monitoring.’. No.
151, in page 7, line 30, leave out
‘and (6)(a)’.
No. 152, in
page 7, line 37, leave out
‘(a)’.—[Mr.
Dhanda.] Clause
11, as amended, ordered to stand part of the Bill.
Clause 12 ordered to stand
part of the Bill.
Clause 13personnel
supliers and regulated
activity Amendment
made: No. 153,
in page 8, line 39, leave out
‘(a)’.—[Mr.
Dhanda.] Clause
13, as amended, ordered to stand part of the
Bill.
Clause 14Exception
to requirement to make monitoring
check
The
Parliamentary Under-Secretary of State for Health (Mr. Ivan
Lewis): I beg to move amendmentNo. 58, in
page 9, line 15, leave out paragraph
(a).
The
Chairman: 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.
Mr.
Lewis: 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. 1.15
pm Tim
Loughton (East Worthing and Shoreham) (Con): 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. Annette
Brooke (Mid-Dorset and North Poole) (LD): 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.
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