Protection of Freedoms Bill

I shall speak to the two amendments in this group. Amendment 68 would reverse provisions to restrict automatic inclusion on the barred list and introduce a right of appeal for the individual to be taken off the list. It seeks to take account of the recommendation of the Joint Committee on Human Rights that there should be a right of appeal against all barring decisions. Under Amendment 69, an enhanced Criminal Records Bureau check would reveal whether an individual had been barred from working with vulnerable adults or children. After the lengthy debate that we have just had on the first group of amendments, there is inevitably some degree of repetition on this group but I will endeavour to be reasonably brief. We have heard that, as a result of the proposed restrictions to the definition of regulated activity, individuals working under supervision with children or vulnerable adults will no longer require CRB checks or have their barred status revealed. Therefore even if the employer chooses to apply extra caution and request an enhanced CRB check on an individual, it will not state whether that individual has been barred by the Independent Safeguarding Authority as this information is only included for applicants in regulated activity. No doubt the Minister will say that an enhanced CRB check will give all but the barred status, meaning that prospective employers will have access to the police records which would have led to the barring decision. However, it seems somewhat illogical that an employer should have access to all but the one crucial piece of information, which is whether experts believe that there is something sufficient to justify preventing an individual from working with vulnerable groups. First, however, barring decisions are not just based on police records. They take into account information from past employers and they analyse allegations that may not have been pursued with the police. That is especially important information when it comes to work with children and adults because of the well known problems with evidence and the particular vulnerabilities of witnesses and victims. An example of this is that the ISA may consider a situation where an allegation has been made by a dementia sufferer but was not reported to the police because of the perceived reliability of the evidence. An enhanced CRB check on a volunteer in a care home would not alert the employer to this. Secondly, in not granting all registered employers access to ISA decisions, the Government’s proposals could in fact lead to greater prejudicial and unfair rejection of candidates, as employers will be expected to use their own judgment to assess the relevance or seriousness of the information in front of them rather than utilising the expert opinion of the ISA. So far as Amendment 69 is concerned, in addition to the restrictions on the scope of regulated activity under Clause 67, individuals who have committed a serious offence will no longer automatically be placed on the barred list. Instead, they will be barred only if they have worked or are deemed likely in the future to work in a regulated activity. An individual who has committed a serious barring offence will no longer be barred from gaining close contact with children and vulnerable adults as, for example, a football coach, provided that they are subject to some form of supervision. As has already been said, the crux of the problem is secondary access, and the upshot of Clause 67 is that individuals convicted of a barring offence will be able to gain access to and build up trust with children and their parents which could be exploited. If there are grounds to bar an individual from working with children or vulnerable adults unsupervised, that individual should not be undertaking work in regular close proximity with children and vulnerable adults regardless of whether it is supervised or unsupervised, paid or unpaid. The NSPCC appears to take a similar view, because the Government’s own review on the vetting and barring scheme states that: "““The NSPCC’s view is that some offences against children should always be grounds for barring””." Amendment 68 would erase the new distinction among convicted offenders for placing on the barred list. It would also introduce the right to a full merits appeal against barring decisions, with the right to present evidence and call witnesses at an oral hearing, thus reflecting the principle of the High Court decision on the Royal College of Nursing v the Secretary of State for the Home Department and the JCHR recommendations that individuals should have the right to a full merits hearing before an independent and impartial tribunal. The Government’s proposals as they stand fall short of providing a full merits appeal for individuals included on the barred list. We believe that providing this, alongside automatic barring, reflects the correct balance—we as well as the Government will use the word—between providing on the one hand adequate protection for vulnerable groups against interference with their right to life, their right not to be subjected to inhuman or degrading treatment, their right to physical integrity and their right to respect for their private life and dignity, and on the other hand the protection of individuals’ rights to privacy and a fair hearing. The key message that has been stressed again today—and it is it stressed also by children’s charities—is the importance of transparency and information sharing to ensure that crucial warnings do not fall through the cracks or not get passed on. The combined result of the Government’s restrictions on the scope of regulated activity and on the disclosure and application of barring decisions is that individuals who have been barred for committing serious offences will be able to apply and work with children and vulnerable adults without detection. I appreciate that the Home Office review into vetting and barring, which was published at the beginning of this year, stated that: "““Key to any new system will be a recognition, that employers have a critical role to play in ensuring safe recruitment practices and it is arguable that the balance of responsibility for ensuring safe recruitment became too heavily skewed towards the state under the previous arrangements””." Frankly, the effect of government proposals is exactly the opposite. The Bill restricts the discretion of employers to seek a greater degree of information on applicants for positions, should they regard those positions to be of greater than normal risk. It is our view, hence these amendments, that by far the simplest, least bureaucratic and most watertight system—and surely that is what we want—would be to give employers the ability to view ISA barring decisions on all individuals for whom they seek an enhanced CRB check.