Protection of Freedoms Bill

My Lords, I regret to say that my noble friend Lady Walmsley is unable to be here today and has asked me to speak on her behalf on Amendment 52. The Minister has already mentioned this amendment. I take it from when he talked about the fact that the situation in further education colleges has yet to be finalised, and that the precise application can be ensured in regulations, that there is still some room for manoeuvre. I should like to take up the two letters that the Minister wrote to my noble friend on 11 February and the other to my noble friend Lady Randerson on 1 February. I believe that it has been circulated to noble Lords. We are anxious that further education colleges should be treated in the same way as schools and that every full-time, and to some extent part-time, member of staff should be subject to the same vetting and barring rules. We were arguing that the staff should have a statutory CRB check. My noble friend has made the point many times as to the illogicality of the two types of institution being treated differently, but I will not dwell on that. In his letter to my noble friend Lady Randerson, the Minister says: "““We do not consider it is right that, apart from special circumstances such as those applying to fostering and adoption, barred list information should be available in respect of posts ""which are not themselves subject to barring. This would effectively provide barring information to employers which is not relevant to the post and could lead to disproportionate and detrimental decisions””." My noble friend Lady Walmsley and I do not agree that this information is not relevant to the post. We believe that it is relevant to the post if the employer thinks it is: in other words, if the employer thinks that the post, albeit not a regulated one under this Bill, would give the employee an opportunity to develop a relationship of trust with a young person. Perhaps I may set out a fairly recent example of this, which has been sent to us by the Association of Colleges, involving a caretaker, "““Dismissed for unacceptable conduct towards students aged under 16 years. The issue was reported to the College by the parent of a student who had been told by her child about a man who was known as ‘the pervy caretaker’ among students at the College. The conduct included inappropriate communications with students on social networking websites; inappropriate text messages to students; meeting-up with students to ‘hang out’ with them, including in pubs where the students were drinking under age. After an investigation the caretaker was dismissed and the matter referred to the Independent Safeguarding Authority””" This illustrates a point that came up in our discussion last Monday on the amendment tabled by the noble Lord, Lord Bichard. Someone who does not necessarily have teaching contact with children may nevertheless have daily or near daily contact with them. The children see the person around the place and develop trust in them. That person can then pursue them in other circumstances. Towards the end of the same letter to my noble friend Lady Randerson, the Minister tries to reassure us by telling us that in those circumstances, when appointing someone to a role that used to be in a ““controlled”” category but is not now, the employer will be able to get hold of the enhanced CRB check. The Minister emphasises that this check will contain not only criminal records information but local police information. That is all very well, but only if previous employers with sufficient cause for concern to refer the matter to the Independent Safeguarding Authority had at the same time informed the police. However, the Minister will know that that does not always happen. More seriously, I point out to my noble friend that, in providing this information to the employer and leaving the decision to him, the responsibility for a decision that is currently made by expert members of the Independent Safeguarding Authority is transferred. People are trained and appointed to the authority especially for their ability to analyse the risk inherent in the behaviour that is reported to them. There is a considerable risk in leaving it to the employer. Not all employers understand these things as well as the expert members of the Independent Safeguarding Authority. Indeed, what was then the Independent Barring Board was set up in the first place to take these decisions away from Ministers who, until about 10 years ago, had to take the decisions themselves but who did not have the expert knowledge to do so. The decision-making was given to people who do have that knowledge. Now the Government want to hand these decisions over to people who are amateurs, and not satisfied with the transference of responsibility they also plan to transfer to the employer the decision as to whether the supervision of such an employee, to quote the Minister’s own amendment, "““is reasonable in all the circumstances for the purpose of protecting any children concerned””." If that is so, it could be suggested that most college employers will decide that it is simply not possible to provide that level of supervision since the majority of abuse does not take place on the premises but elsewhere—what is called ““secondary access””. The employer cannot be vigilant in the youth club, the sports shop or the leisure centre because he is not there. If an FE college employer decides that in the light of the opportunity for secondary access he is not able to provide supervision that, "““is reasonable in all the circumstances for the purpose of protecting any children concerned””," can he designate the role as a regulated one and therefore ask for and be given the barring information as well as the enhanced CRB check? If that is the case, the Association of Colleges, which is so concerned that it has asked us to pursue Amendment 53 through to Report, may be satisfied, even though it is being asked to be as expert as the IBB. Will the Minister clarify his initial statement about there still being some flexibility in regulations, and answer the specific question as to whether there is some ability on the part of the employer to ask for the enhanced CRB check and the IBB information?