Protection of Freedoms Bill

My Lords, I shall speak also to government Amendments 54A, 54M and 54N; Amendment 50B, in the names of my noble friend Lady Hamwee and the noble and learned Baroness, Lady Butler-Sloss; Amendment 51, in the name of my noble friend Lord Addington; and Amendment 52, in the names of my noble friends Lady Walmsley and Lady Randerson. Without wishing to reopen the debate that we had last week, I reiterate that we remain of the position that, where individuals can be properly supervised, they should in certain circumstances fall outside the regulated activity and the necessity for barred list checks. We believe that proper supervision should help to reduce both the risk of improper conduct and of inappropriate relationships developing. As we have previously debated, the Government have said that enhanced criminal record certificates will continue to be available for activities that will be removed from regulated activity and which involve close contact with children when the scope of regulated activity is scaled back by Clause 64. In a school, that will include, for example, supervised volunteers who instruct children. Enhanced criminal record certificates include information on previous criminal convictions and cautions, both spent and unspent, and any relevant police information held locally. Therefore, organisations can, if they judge it necessary, see the information about behaviour that they need to see in order to reach a judgment on whether to use the person in a particular activity. Even under the original barring scheme, the law did not require checks for various categories of people who were in contact with children. Organisations and communities must share responsibility for keeping children safe. The scheme was never intended to regulate contact with children outside a specified place, such as contact in a faith or leisure setting. Our intention is to provide additional flexibility for employing organisations and to help ensure that individuals are not dissuaded from volunteering. Such organisations as the Scouts and Girl Guiding UK have made the point that they prefer to supervise individuals when they first join, before barred list checks become necessary. However, as I said, there is no compulsion in the Bill for an organisation to provide supervision. Where it is unable to do so, activities will remain regulated and barred list checks must be made. In Committee, a number of noble Lords expressed unease that the term ““day to day supervision”” lacked clarity and that, as a result, employers and voluntary organisations would have difficulty in deciding whether an employee or volunteer fell within the scope of regulated activity. We listened very carefully to these arguments and now aim, through the government amendments, to provide greater clarity on the level of supervision required for someone to fall outside the scope of regulated activity. Under the amendments, the level of day-to-day supervision must be such as to be, "““reasonable in all the circumstances for the purpose of protecting any children concerned””." By adding this qualitative description of the level of supervision required, the amendments, coupled with the statutory guidance we are already committed to providing, address the points raised in Committee. At that stage, and again today, we heard about the particular circumstances of various types of sport, where adults often coach children in extensive playing fields or other wide-open spaces. The requirement that supervision must be, "““reasonable in all the circumstances””," will give sports organisations precisely the discretion they need in order to decide whether, in the circumstances of their sport, a volunteer—or indeed paid—coach or other helper should be supervised. If organisations want to encourage volunteers without requiring them to undergo a barred list check, they may do so, as long as they work out what would be a reasonable level of supervision in their case, and provide supervision accordingly. If on the other hand the organisation decides that the oversight it provides does not amount to supervision that is reasonable for child protection, it may conclude that the coach is not supervised and so is in regulated activity. I have already mentioned that we will supplement the provisions of the Bill with statutory guidance, which will further contextualise what we mean by day-to-day supervision. Clause 77 already places a duty on the Secretary of State to provide such guidance, and we are committed to consulting on the form of the guidance. I had hoped to circulate a first draft of the guidance before today, but alas that proved impossible. I hope that the House will understand that it is important to get the guidance right rather than to rush it. We will certainly seek to get a draft out for consultation as quickly as possible. The Criminal Records Bureau is also committed to producing clear and specific guidance on the new updating service for registered bodies, employers and applicants. While I cannot specify the precise timescale, we have started engaging with stakeholders to understand their requirements, and will continue to work with them to ensure that the guidance produced meets their needs and is communicated effectively. This will be complemented by guidance being developed by the Criminal Records Bureau, which will include advice on just how the current service may be used and an online tool which will enable employers and applicants to understand when a criminal records check is appropriate. In addition, the Government will also be issuing guidance on the broader safeguarding issues. Given what is already in Clause 77 and the commitments I have made, I shall say a brief word or two about the amendments tabled by other noble Lords that we will also be discussing. I hope that my noble friend Lord Addington will not mind if I anticipate his remarks about Amendment 51 and put it to him that, in relation to that amendment, the ground is already sufficiently well covered. The provision in Clause 77 goes further than Amendment 51 as that clause also places a duty on regulated activity providers and personnel suppliers to have regard to the guidance. In relation to the other guidance to which I have referred, issued by the Criminal Records Bureau, there is not the same duty to have regard to the guidance, but we would encourage all organisations working with children to do so, and we believe it would be in their interests, and those of the children in their care, to do so. I move on to Amendment 50B, tabled by my noble friend Lady Hamwee. She is seeking to probe what we mean by ““in all the circumstances””. The intention of this wording is that local managers judge the appropriate level of supervision based on the risk of harm to children in a particular setting. Where they judge that risk is lower, they may supervise less. Where it is higher, they would supervise more. That is what is meant by ““in all the circumstances””. Managers on the ground should always decide in the first instance what to do in any particular case. This phrasing supports them by offering a yardstick for making that decision. It also prevents them using scarcity of resource as a reason for supervising less than would be deemed reasonable in their case, so it is, "““reasonable in all the circumstances””," which is quite a change from ““reasonable”” on its own. I would also like to say a word or two about Amendment 52, tabled by my noble friend Lady Walmsley. It seeks to bring within the scope of regulated activity all those who work in a further education college where any children are studying. It is important to bear in mind that all teaching and non-teaching staff in establishments, including FE colleges, that wholly or mainly provide full-time education to children remain within regulated activity and therefore will undergo a barred list check at entry. In addition, unsupervised teaching, training, instruction, care and supervision of children in FE colleges remain regulated activity, even where the college is mainly for adults. This amendment would go further and bring into regulated activity all work by any staff in FE colleges which provide education to even a very small number of children. As I said in Committee, we believe it is disproportionate and unnecessary to require such individuals to be subject to the same level of checks as those working in an institution wholly or mainly for the full-time education of children, such as a primary school or a nursery. The Government do not consider it proportionate for the state to require or allow barred list checks generally on activities that entail only incidental contact with children. My noble friend will, no doubt, have more to say about this in due course, but I appreciate the legitimate concerns of the FE sector that it needs suitable safeguarding arrangements. The precise boundaries of eligibility for enhanced criminal record certificates in FE colleges have yet to be finalised, and we will certainly consider ensuring that staff with access to children in FE colleges will be eligible for enhanced certificates. This can be achieved through regulations in due course. It should ensure that employers in FE colleges can continue to receive relevant information on which to make an employment decision, as enhanced certificates detail all criminal convictions and cautions and any relevant local police information. My noble friend’s amendment possibly goes a little too far. I hope that my noble friend will agree that the steps we have taken and are considering are a more appropriate means for our common goal, which is to have proper safeguards for children who study at FE colleges. Obviously it will be for my noble friends to consider their amendments when they come to move them. At this stage, I would like to move the government amendment and listen to the comments from my noble friends and others about both the government amendments and their own amendments. I beg to move. Amendment 50B (to Amendment 50A) Moved by