Select Committee on Delegated Powers and Deregulation Sixteenth Report



PROTECTION OF CHILDREN BILL

Memorandum from the Department of Health

Introduction

27.  The Protection of Children Bill was first read in the House of Lords on 5 May 1999. This memorandum summarises the main provisions of the Bill and gives an overview of the delegated powers. It then identifies each of the powers; describes its purpose; and explains why the matter has been left to delegated legislation and explains the degree of parliamentary control provided.

28.  The origins of this Bill lie in recent growing concern over the need to ensure more effective protection of children. There have been for some years an advisory service operated by the Department of Health about people considered, unsuitable to work with children in the child care fields. The Department of Education and Employment also maintain a similar list (List 99) of people who are barred from working in the education sector. The list operated by the Department of Health has been extra-statutory, and neither list has provided for a formal appeal mechanism against inclusion on the lists each Department has maintained. Furthermore, these arrangements have not previously been co-ordinated with the criminal records system.

The Bill

29.  The Bill has five main provisions. These are:

  • To place the Department of Health's current administrative "Consultancy Service Index" - which lists individuals considered unsuitable to work with children - on to a statutory footing; and to require regulated child care organisations to refer such names for inclusion on the new list. There is a discretion for other organisations to refer;
  • To amend the statutory provisions with regard to the existing list 99 maintained by the Department for Education and Employment to enable names to be included in that list who are considered to be not fit and proper persons to be employed as teachers etc or who are included in the new list maintained by the Department of Health;
  • To provide rights of appeal against inclusion on both the Department of Health list and the similar "List 99" of the Department for Education and Employment (which has always been a statutory list);
  • To require regulated child care organisations to check the names of anyone they propose to employ in posts involving regular contact with children against both of the Departmental lists and not to offer employment if included - in the List 99 case only if listed on certain grounds; and
  • To amend Part V of the Police Act 1997 to allow the Criminal Records Bureau to act as a central access point for those applying to work with children to criminal records information, List 99 and the new Health Department list.

Overview of the delegated powers and type of parliamentary scrutiny

30.  Briefly, the Bill has a number of provisions in which there are powers to make delegated legislation. With the exception of Clause 10, the powers are mostly concerned with the detail of the proposed appeal system or other, definitional issues. In line with established practice that the affirmative procedure is restricted to exceptional circumstances, the negative procedure has been adopted for these provisions. Clause 10 is different in kind because it enables the Secretary of State to extend the protections afforded by the Bill to mentally impaired persons as defined in Clause 12(1). In that case, the Bill provides for the extension to be made under the affirmative procedure.

The rationale for delegated powers in the Bill

31.  In considering what matters should be specified on the face of the Bill and what should be left to delegated powers, the Department has weighed the importance of the matter against the need to:-

  1. avoid too much technical and administrative detail, and keep the Bill as short as possible;
  2. ensure sufficient flexibility to react to changing circumstances and a measure of flexibility to make changes quickly in the light of experience without the need for primary legislation;
  3. to allow the detailed administrative arrangements to be set up and kept up to date within the basic structures and principles set out in the primary legislation, subject to Parliament's right to challenge inappropriate use of powers; and
  4. allow flexible timing to get the legislation right, to consult , and change it when circumstances demand.

32.  A summary of the powers contained in the Bill is contained in the annexed table.

COMMENTARY ON DELEGATED POWERS

CLAUSE 6

33.  Subsection (1) extends the power to make regulations under subsection (6) of section 218 (provision for prohibiting or restricting employment of teachers etc) of the Education Reform Act 1988 to include providing for appeals to the Tribunal against a decision to prohibit or restrict (or a refusal to revoke or vary such a decision) a person's employment or further employment on the grounds mentioned in section 218(6ZA)(a) to (d) inserted by Clause 5(2).

34.  Although all the Bill's substantive provisions in relation to the Department of Health list are on the face of the Bill, in the case of the list maintained by DfEE, the pre-existing architecture of the 1988 Act provides for the detail of that scheme to be set out in regulations. In line with this approach, it was therefore considered appropriate for the addition of a statutory right of appeal to be provided for by the same means.

35.  Subsection(2) extends the regulation making power provided for under subsection (1) to include provision as to the circumstances in which the Tribunal is to allow an appeal and as to the powers available to it on allowing an appeal. This power will make similar provision in the case of the Education list to the provisions set out at clause 4(3) in the case of the list to be maintained by the Department of Health

36.  Subsection (3) allows the regulation making power to provide that no finding of fact on which a conviction for an offence involving misconduct must be taken to be based may be challenged on an appeal under the regulations. Again, this is a mirror power - in this case to Clause 4(4) which relates to the Health list.

CLAUSE 8

37.  Subsection (1) inserts new subsection (3A) and (3B) in section 113 of the Police Act 1997. The new subsection (3A) includes a power to prescribe what details from the lists kept under Clause I or for the purpose of regulations made under section 218(6) of the Education Reform Act 1988 may be included in a criminal record certificate issued under section 113 of the 1997 Act.

38.  This power is necessary to specify and, as necessary over time, vary what details held in the Department of Health and Department for Education and Employment lists should be disclosed by the Criminal Records Bureau when issuing a criminal record certificate under section 113 of the 1997 Act. (e.g. in the case of the DfEE List, the reason for inclusion in the List.)

39.  Subsection 3A applies where a person is considering the applicant's suitability for a position within subsection (3B). Subsection (3B)(d) contains a power to prescribe what positions other than those described at subsection (3B)(a) to (c) are to be regarded as falling within the scope of subsection (3B).

40.  Disclosure of the fact that a person is on one of the lists may not be limited to employment in positions covered by the lists but may be made available in relation to applications in respect of a wider range of child care and other positions to be specified in the regulations Whilst subsection (3B)(a)-(c) specify certain positions, there may be other positions in relation to children where it is considered necessary for information on the lists to be disclosed. The power enables the Secretary of State to respond by specifying additional types of positions for which access to details about the applicants on the lists will be made available.

41.  Subsection (2) inserts a new subsection (6A) in section 115(6) of the Police Act 1997. Subsection (6A) includes a power to prescribe what details from the lists kept under Clause 1 or for the purpose of regulations made under section 218(6) of the Education Reform Act 1988 may be included in an enhanced criminal record certificate issued under section 115 of the 1997 Act.

42.  This makes identical provision for the new subsection (6A)(b) in the case of enhanced criminal record certificates, and for the same reasons, described at paragraph 11 and 12 above. Again, subsection (6A) applies where a person is considering the applicant's suitability for a position falling within subsection (3B) of section 113 of the Police Act. See paragraph 14 above.

CLAUSE 9

43.  Subsection (1) and the Schedule provide for the Tribunal. The jurisdiction of the Tribunal is determined by clause 4 and regulations to be made under clause 6 of the Bill. Subsection (2) provides a regulation making power concerning the proceedings of the Tribunal; and subsection (3) sets out what the regulations may include - the list is not exhaustive. Clause 9(4). s provides that Part 1 of the Arbitration Act 1996 shall not apply. However, regulations may be made under subsection 9(2) to provide corresponding provisions as appear in that Act.

44.  As subsection (2) illustrates, the powers sought are wholly procedural and standard for a tribunal of this character. Under Clause 9(6), appeals from the Tribunal lie to the High Court on a point of law only. It will also be noted that Paragraph 8 of the Schedule to the Bill places the Tribunal under the supervision of the Council on Tribunals.

CLAUSE 10

45.  This clause enables the Secretary of State to extend, by order, the effect of the Bill to adults suffering from mental impairment (as defined at Clause 12(2)). Subsection 10(1) confers the enabling power, and subsection 10(2) provides that it may be exercised to make such consequential, supplemental, incidental or transitional provisions as the Secretary of State thinks fit.

46.  Although the Bill is primarily directed at the further protection of children, the long title specifically envisages that the protection it affords to children may be extended to persons suffering from mental impairment. This is because adults who fall into this category comprise the group of adults most closely comparable to the vulnerability of children. It will be noted that, if the Secretary of State wishes to activate the power, under subsection 10(3) he may do so only by the affirmative procedure.

CLAUSE 12

47.  Subsection (1) confers powers to complete definitions in two cases:

  • A "child care organisation" is (a) all organisations, (b) whose activities are regulated by or by virtue of any prescribed enactment and (c) which fulfils such other conditions as may be prescribed. The intention is to use the power at (b) to specify, other than on the face of the Bill, the lengthy list of enactments which regulate the activities of these bodies. This puts beyond doubt the organisations which will be caught by the statutory provisions of the Bill. Taken together, these powers will ensure that the Department is able to respond, other than by primary legislation, to changing characteristics of, or provisions for, services set out at (a).
  • "employment" (b) provides a power to specify any office established by or by virtue of an enactment in addition to the categories covered in (a) of the definition. This power permits the regulatory scheme to extend both to current and future categories of office holder.

CLAUSE 14

48.  Subsection (2) provides for the Secretary of State to commence provisions of the Bill by order. It would not be practical for all the provisions to be introduced on Royal Assent. Time is required to prepare for implementation of the various provisions of the Bill, in particular setting up the Tribunal and associated delegated legislation. To allow flexibility in the time available for preparation, commencement orders rather than fixed dates are proposed. As is usual, such orders will not be subject to parliamentary scrutiny.

49.  This is a standard implementation power reflecting the diverse character of the Bill's provisions.

SCHEDULE

PARAGRAPH 2

50.  Subparagraph (4) confers a power to prescribe the requirements to be satisfied in the case of appointees to the lay panel provided for in Paragraph 1. It is intended to use this power to specify that lay panel members should have appropriate experience in relevant education and social services fields.

TABLE OF DELEGATED POWERS IN THE PROTECTION OF CHILDREN BILL

CLAUSESUBSECTION
PROVISION
6(1)Extends the power to make regulations under section 218(6) of the Education Reform Act 1988 to include providing for appeals to the Tribunal against a decision by the Secretary of State to prohibit or restrict (or his refusal to revoke or vary such a decision) a person's employment or further employment on the grounds mentioned in section 218(6ZA)(a) to (d) inserted by Clause 5 viz. medical grounds; grounds of misconduct; grounds that the persons are not fit and proper persons to be employed as teachers or in such work as is mentioned in section 218(5)(c); grounds that they are included other than provisionally on the list kept under Clause 1 (i.e. the Department of Health list); and, as respects employment or further employment as teachers, educational grounds.
6(2)Permits the extended regulation making power to make provision as to the circumstances in which the Tribunal shall allow an appeal and as to the powers available to it on allowing an appeal.
6(3)Permits the regulation making power to provide that no finding of the fact on which a conviction for an offence involving misconduct must be taken to be based may be challenged on an appeal under the regulations.
8(1)Includes at (b) of new subsection (3A) inserted after section 113(3) of the Police Act 1997 a power to prescribe what details from the lists kept under Clause 1 or section 218(6) of the 1988 of the Education Reform Act may be included in a criminal record certificate issued under section 113 of the 1997 Act.
8(1)Includes at (d) of the new subsection (3B) inserted after new subsection (3A) itself inserted after section 113(3) of the Police Act 1997 a power to prescribe what positions other than those described at (3B)(a) to (c) are to be regarded as falling within the scope of subsection (3B).
8(2)Includes at (b) of the new subsection (6A) inserted after subsection (6) of section 115 of the Police Act 1997 a power to prescribe what details from the lists kept under Clause 1 or section 218(6) of the Education Reform Act 1988 may be included in an enhanced criminal record certificate issued under section 115 of the 1997 Act.
9(2)Empowers the Secretary of State to make regulations about the proceedings of the Tribunal established under Clause 9(1).
9(3)Specifies what provisions may be included in regulations made under Clause 9(2).
9(4)Disapplies Part I of the Arbitration Act 1996 to proceedings before the Tribunal but lays down that regulations may make provision corresponding to any provision of the 1996 Act.
10(1)Confers an order making power on the Secretary of State to extend the protections afforded to children by the Bill to adults suffering from mental impairment, as defined in Clause 12(1).
10(2)Provides that the order making power under Clause 10(1) shall include power to make such consequential, supplemental, incidental or transitional provision as the Secretary of State thinks fit.
12(1)In the definition of "child care organisation" confers at (c) a power to prescribe conditions additional to those specified in (a) and (b) of the definition which must be satisfied.
12(1)In the definition of "employment" provides at (b) a power to specify offices established by or by virtue of an enactment which may be included within the definition in addition to the categories covered in (a).
14(2)Confers an order making power on the Secretary of State to bring the Bill into force, including on different days and for different purposes.

18 May 1999


 
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