Safeguarding Vulnerable Groups Bill [HL]

My Lords, I am immensely grateful to all noble Lords who have spoken in such a constructive spirit to help us address the important and complex issues that are raised in the Bill. I do not know about the Christmas elves mentioned by the noble Baroness, but as we start knocking on towards midnight, I assure the House that this Prince Charming is slightly worried about whether he is engaging in a regulated activity, which might need the new IBB’s clearance if it carries on for a significant length of time. I shall not seek to address many of the very detailed definitional points that we shall, rightly, get into in Committee, except to say that I have taken careful note of all the points raised and will seek to address them all as we approach Committee. On some of the broad definitional issues regarding ““frequent””, ““infrequent””, ““harm””, and so on, it may be useful if I circulate noble Lords with the Government’s interpretation before we go into Committee. I have substantial notes here, and if I were to do that before the Committee stage, it will give us a more agreed basis on which to discuss these important issues in Committee. As regards the broad principles underlying the Bill, I accept the points made by the right reverend Prelate the Bishop of Peterborough, the noble Baroness, Lady Walmsley, and my noble friend Lord Harris, that no individuals should have the right to work with children: it is a privilege. Individuals should be able to give full assurances of their good conduct and safety in so doing. I take that to apply in full measure to the vulnerable adults whom the noble Lord, Lord Rix, rightly highlighted in his discussions. I also agree with the right reverend Prelate about the need for rigorous interview and monitoring arrangements. None of the provisions in the Bill is a substitute for the proper role of employers and the vigilance which they have to observe, not just in the process of recruitment, but on an ongoing basis in exercising their duties as employers. I stress to the noble Lord, Lord Laming, that nothing I said about the considerable duties of the state, which we are enhancing in the Bill, and the continuing obligations of users of services to be vigilant, reduces in any way the responsibilities of employers which are paramount. They are set out at great length in the Bill and will be in subsequent guidance. I shall address such issues as the operation of the new IBB, appeal rights and so on in Committee. We have thought through the implications of the regime we are putting in place. I stress that the regime involves far greater transparency and enhanced due process than is available at present. For historical reasons, decisions of an extraordinary discretionary kind, with few rights of appeal in the case of many of the lists and barring arrangements, are in place. We believe that these provisions will enhance them considerably. We have to get the balance right between providing for due process and for our obligations under treaties and the Human Rights Act and, at the same time, not discouraging people from coming forward with legitimate concerns, and for action to be taken swiftly. For example, with regard to offences which would involve an automatic bar with no right for representation—an issue raised by several noble Lords—I stress that it will be a significantly shorter list than currently applies in the case of List 99 where there are 43 prescribed offences for which automatic entry on the list takes place and there is no right of appeal. In deference to our duties under the Human Rights Act, and with a proper sense of proportionality, we intend to have a shorter list than currently applies under the List 99 arrangements and to ensure that representations can be made. Taking up the point raised by the noble Lord, Lord Northbourne, that is a kind of appeal. In what to any reasonable person would seem a perfectly fair case for an automatic bar, the new regime will give individuals the right of representation. We also intend to ensure that there are rights for barring decisions to be reviewed. On the point raised by the noble Baroness, Lady Walmsley, and other noble Lords, we are considering the periods for which barring applies. It could apply differentially for older adults as opposed to those under the age of 25. Where young people acquire offences for conduct in their teenage years, but which on a reasonable assessment of their progress since it would be right to reassess, that reassessment can take place in a shorter period than would apply to those who are older. We have given a good deal of thought to all the issues raised. I hope that in Committee I shall be able to assure noble Lords that the concerns are met. I accept that we may need to be tighter with regard to some of the definitions. I am ready to give further indications of the guidance which the Secretary of State will be minded to bring forward in these areas. Money, as ever, forms a large part of our proceedings. The DfES and the Department of Health will provide upfront investment of nearly £17 million in 2007-8 for the setting up of the new centralised vetting and barring processes. The annual operating costs of the new scheme are expected to be in the range of £16 million a year over the first five years of the scheme starting in 2008-9. That is additional to the cost of the existing CRB disclosure and related processes which are about £83 million a year. CRB standard and enhanced disclosures currently cost £29 and £34 respectively. From 1 April, they will rise to £31 and £36. The costs will be containable. Several noble Lords referred to the composition of the IBB, which will be absolutely critical to the effective performance of its functions; hence the consultation paper which my right honourable friend released today, on which I will seek the views of noble Lords in Committee. It is clear that we expect the right balance of expertise in the protection of children and vulnerable adults to be represented in its membership. We have in mind a membership of around 10. All of these are likely to be full-time appointments. The case made by the noble Baroness, Lady Buscombe, for members who have appropriate legal qualifications is well made. She asks whether it may be appropriate for secondment to take place to secure expertise. We are prepared to see secondments take place as appropriate. We have experience of establishing such a body, because we have already established the interim expert panel—following my right honourable friend’s Statement of 19 January—which now advises her on List 99 cases until this set of arrangements is in operation. My right honourable friend announced a panel at the beginning of this month, with high-quality representation from the sectors of child protection, the police, education—including further education—prison and probation, parents, child and adult psychiatry and children’s social care. A great deal depends on the quality and processes established by the independent barring board when it is operational. I accept the points made by my noble friend Lord Harris—there are going to be some important and difficult procedural issues that we will need to grapple with as it sets about its work. Of course, we are not foreign to this territory. We have set up large numbers of review decision bodies on immigration, special educational needs and a whole range of activity involving difficult and often extremely vexing decisions about individuals, having to take information from a wide variety of sources. We do not see the IBB as different in that respect. With high-quality membership and good staff, it will be able to establish appropriate procedures. The issue was repeatedly raised of whether there should be one list for both children and vulnerable adults in place of the proposed two. It would be disproportionate for a person who has been barred from working with vulnerable adults—due to, for example, financial fraud—to be barred from working in all positions with children; one can go down the list of potential cases and see that there are distinct issues between the two groups. Although it is therefore appropriate to have two lists, where there is evidence of a risk to both vulnerable groups, the individual will be considered, as a matter of course, for inclusion in both lists. The independent barring board will consider this on a case-by-case basis. The two lists will also be aligned. The same processes will apply for both lists; they will both involve consideration of criminal records and information flows from professional and regulatory bodies, employers and local authorities. The broad criteria of risk and appeals processes will apply to both lists. There will be a high degree of co-ordination between them. That also applies to the issue of alignment between Scotland, Wales and Northern Ireland, which was raised. The Bill will apply to England and Wales, but we will ensure that the Scottish system, which the Scottish Executive is intending to introduce to its own legislation, is closely aligned. There will be mutual recognition of barring across the United Kingdom, to ensure that proper and robust systems are in place. The Bill provides for the Secretary of State to specify that a list maintained in Scotland and Northern Ireland corresponds to the barred lists in England and Wales. A person banned in Scotland and Northern Ireland will automatically be banned in England and Wales so that we do not find individuals slipping through the cracks between the two, as it were. The noble Baroness, Lady Morris, rightly said that there are going to be significant issues to address on some of the arrangements and thresholds for barring in the schedules. We accept that, although I do not believe that we will find this unduly problematic when we come to definitions. I stress that the Secretary of State will not be engaged in the making of decisions on any individual whatever. The Secretary of State’s sole role would be in guidance underpinning legislation. Ministers will play no part whatever in individual cases. That will be the responsibility of the IBB itself. The noble Lord, Lord Rix, raised the difficult area of how to draw the line on levels of protection in respect of elderly people and the services that they consume. I expect we will debate this fully in Committee. He also raised the question of indirect payments, which is a difficult case. The purpose of moving to direct payments was to give individuals more choice and control over their own lives. We have to be careful not to so regulate that choice, and their capacity to manage risk, that they do not exercise those choices in the first place. I think that the noble Lord will fully understand the difficult balance that we have to strike in this area. We will seek to ensure that the risks are effectively managed. There will be appropriate guidance to individuals—which, of course, they may find hard to access—and to local authorities and others who advise them as they set up their direct payment schemes and, in due course, the individual budget proposals that we are putting in place. I hope that we can strike an appropriate balance without so over-regulating the system that we deny the choice that we are seeking to promote. The noble Baroness, Lady Walmsley, asked about decision-making processes inside the independent barring board. It will be for the IBB to determine its own decision-making processes, but, as with any body of this kind, we would expect it to be fair, efficient and robust. It will be subject to challenge in the courts if it fails to satisfy the appropriate criteria of procedural fairness. If that were to happen, the IBB would rapidly fall into disrepute and find its cases being challenged. We expect it to establish high standards. Of course it will need to consider legal advice and the cost implications of options for its decision-making processes. Many noble Lords mentioned the efficiency of the CRB. Perhaps the CRB’s improvement has been so rapid that it has overtaken some of your Lordships in the improvements that it has made. The figures I have show that, after what was undoubtedly a very difficult start, it has made substantial improvements in recent years, so much so that in its annualised performance for the year to February 2006, it is now providing 84.4 per cent of enhanced disclosures within four weeks, not six weeks as was mentioned in the debate. It is now meeting its requirement for 93 per cent of standard disclosures to be issued within two weeks, and the most recent data for the provision of enhanced disclosures within four weeks are improved on the performance in the previous year. The CRB has been demonstrating great efficiency in its work and is building great confidence in the sectors with which it deals. I hope that that will carry forward into the new arrangements. On the issue of autobars without representation, List 99 at the moment automatically includes all individuals convicted of any one of 43 offences against children under the age of 16. The Bill retains a similar provision to bar automatically some offenders, but it will be a smaller number than is currently the case. At the moment, we are carefully considering where to draw the line between offences that are subject to automatic bars without representation and those where there will be a right of representation. I intend to give the House more details when we are in Committee. My noble friend Lord Harris raised a point about the risk of harm. He asked whether the IBB can conduct its own inquiries after referrals and how it will assess harm. We are clear that the legislation sets out the circumstances that should be met before employers, local authorities and professional regulatory bodies refer information to the scheme. We will also be encouraging domestic and small employers to refer information to statutory bodies such as the police or local authorities that can investigate allegations before they are referred to the scheme so that they come with a judgment made on the status of the allegations. However, on the point raised by the noble Lord about whether the IBB will be able to conduct its own inquiries after a reference, the answer is that it will be able to do so as it feels appropriate. The issue of checks on overseas workers was raised repeatedly in the debate. I dealt with it in my opening remarks, but I should stress that we are seeking to enhance those provisions. The CRB currently has an overseas information inquiry service that provides information on the systems of disclosure in operation in 21 countries and how an individual can obtain his or her criminal record or certificate of good conduct from the country in question. The current service is provided by a faxback service, although all the details will be available on the CRB website from 10 April, which will make it much more accessible to employers. We are also looking at how we can make further progress in ensuring reciprocity in exchange of information. For example, good progress is currently being made in establishing reciprocal arrangements with Australia, which is one of the main sources of recruitment for teachers into England. These should be finalised by this summer. Work is also in hand to create arrangements with Canada, which, for example, provides a large number of nursing staff to the NHS. We are also seeking to build on existing links to achieve effective bilateral relations with the Republic of Ireland and other EU partners in some cases. This will lead to a service effectively operated by the CRB in respect of those applying for information on employees coming from overseas. My noble friend Lady Thornton raised what I accept is the difficult issue of chat room moderators in an industry which is truly international; and therefore how you get the balance right between self-regulation, which in many cases has been successful, and further statutory regulation in the Bill. As the noble Baroness rightly says, Schedule 3, paragraph 2(1)(e), places a requirement on employers to check moderators of public interactive communication devices, which are likely to be used wholly or mainly by children. As she rightly says, many reputable UK service providers currently institute checks in respect of their moderators. Of course we want to build on those arrangements. We recognise that the industry is already an international one, but we believe that it is right to regulate fully those who work within England and Wales to ensure maximum protection. My noble friend asked about consultation. I assure her that we will be meeting stakeholders; indeed, the Home Office has a meeting with stakeholders later this week to address specifically the points she has raised. I will write to her after that consultation to let her know how matters stand. My noble friend Lord Harris referred to the difficult issue of malicious allegations. I should simply stress that referral information, such as allegations, will never lead to automatic inclusion in the list. The information will always be considered by the independent barring board, which will have the necessary expertise to make judgments about the risk individuals present. On volunteers, I do not wish to dissuade them—their important role was rightly highlighted by the right reverend Prelate. Ensuring adequate checks where they have frequent contact with the mentioned groups is covered in the Bill. We need to get the balance right; we accept that. It is precisely in order to do so that we have the distinction between frequent and infrequent and between regulated and controlled activities. If we did not have those distinctions—and some noble Lords thought it might be simpler if we rolled them into one—the scope of heavy-duty requirements in respect of CRB checks and checks on the new system would be extended to large groups. They play a more incidental role as regards children and vulnerable adults, but the role is none the less essential when taken in aggregate. It is very much with volunteers in mind that we have sought to make some of these distinctions. The noble Lord, Lord Rix, specifically asked why only a care home is a key setting in respect of adults; why not day centres? Day centres are not easily definable organisations. Our lawyers have looked at this with some care. We would be happy to engage with the noble Lord further on this issue. Many are held in church halls or community centres where a number of activities take place. There is a fungible set of definitions relating to day centres, whereas care settings are much more easily definable and recognisable. I am told that research by Action on Elder Abuse shows that although most abuse in respect of older people occurs in an individual’s own home, 23 per cent was reported in care homes, which is a large proportion of the abuse recorded. So we thought that identifying that as a specific setting to be regulated in this way was appropriate. I will pursue further points in Committee. I am very grateful indeed to all noble Lords who have spoken. This is an issue of the utmost importance that we should get right. I would simply end with the words of the 1996 Institute of Public Finance study, which looked at the cost of abuse to the state. It made two distinct points. It sought to monetarise the cost of abuse of child abuse to statutory and voluntary agencies at £1 billion a year. There are very high costs in the system for not monitoring abuse earlier and having to deal with it later. It then made the point, which all noble Lords will immediately recognise and support, that:"““The total cost of abuse far exceeds this estimate. Individuals and families bear most of the consequences, sometimes for the rest of their lives at an incalculable cost””." It is to avoid those incalculable costs being borne by children, those who work with them and those who work with vulnerable adults in future that we have introduced the Bill. I commend it to the House. On Question, Bill read a second time, and committed to a Grand Committee.