Protection of Freedoms Bill

In many respects, I am speaking on behalf of the Minister for Equalities, who is also responsible for criminal information; she would wish to be here if it were not for a family emergency. This group of amendments relates to parts 5 and 7 of the Bill. Part 5 will implement our reforms to the disclosure and barring arrangements, which will scale them back to common-sense levels. The Lords amendments to part 5 address a number of concerns raised by hon. Members in our earlier deliberations on its important provisions. We have had useful debates on the issues in this House and the other place, and I am pleased that the hon. Member for Kingston upon Hull North (Diana Johnson) welcomes Lords amendments 33 to 36, which amend clause 67 and relate to the criteria for automatic barring by the Independent Safeguarding Authority. Our review of the disclosure and barring scheme concluded that it did not make sense to bar somebody if they had never worked, and are unlikely ever to work, in regulated activity. We recognise that this change to the barring arrangements was a matter of concern to hon. Members in this House and in another place, and to partner organisations. We therefore brought forward the amendments, so that people convicted of the most serious offences, such as the rape of a child—in such cases, representations are not allowed—are barred automatically, whether or not they have any link to regulated activity. In all other cases, a person will be barred only if they have been, are, or might in the future be involved in regulated activity. Should they ever apply to work in regulated activity, their details will be passed to the Independent Safeguarding Authority or the disclosure and barring service, which will consider them for barring at that point. I welcome what the hon. Lady said in that regard. On amendments 30 and 31, obviously there continues to be a genuine difference between the two sides of the House. I listened carefully and intently to what the hon. Lady said. Amendments 30 and 31 amend clause 64, which amends the definition of ““regulated activity”” and introduces the concept of regular and day-to-day supervision of individuals whose work would be regulated activity if unsupervised. We previously debated at length the appropriate level of supervision; the Opposition suggested that it should be ““close”” and ““constant””; notwithstanding what the hon. Lady has said, we still believe that that formula is unworkable in practice. When the Bill left this House, it already made provision for the Secretary of State to issue guidance on the meaning of ““day to day supervision””. Amendments 30 and 31 require the level of supervision to be reasonable in all the circumstances for protecting children. That qualitative threshold, coupled with the statutory guidance, will assist employers and voluntary organisations in making appropriate judgments as to which of their supervised staff or volunteers fall within or outside the scope of regulated activity. The hon. Lady's amendments to Lords amendments 30 and 31 would remove the definition of ““day to day supervision”” in clause 64 and replace it with:"““constant monitoring by an individual engaged in a regulated activity who is on the same site and able to maintain close visual and audio contact with the individual who is under supervision.””" Such constant monitoring is, in our judgment, likely to be impossible in practice. A trip away from a classroom, perhaps for a comfort break or something like that, would be enough to cause someone to fall foul of the amendments. The effect of the amendments would be to reinstate all supervised people within regulated activity. I appreciate that this is a point of difference between us, and I know that the hon. Lady has considered the issue carefully, but as we have said, we believe that although it is right that all paid staff and unsupervised volunteers in specified places such as schools, and unsupervised staff in other places who carry out activities such as teaching and training, should be within regulated activity, it is not proportionate to include other staff in those areas within regulated activity. Lords amendments 30 and 31 make it clear that the test of supervision is whether it is reasonable in all the circumstances for child protection, so if supervision is not reasonable, the person falls within regulated activity, but if it is reasonable, there is no need for them to do so. Our judgment is that that is right, in order to empower employers to make decisions, to reduce unnecessary burdens on employers, and to remove barriers to volunteering. If a grandparent whom a head teacher has known for years wants to help out with reading at their local school, why should the head teacher have to check their barred status, if he or she knows that they present no risk? However, I repeat the assurances given by my ministerial colleague, Lord Henley in another place: supervised people who work regularly and closely with children will remain eligible for enhanced criminal record certificates, and our guidance on supervision will make it clear that it is best practice to request such a certificate when employees or volunteers are unknown to the organisation, or if checks are needed for new posts or staff moves. It might make sense for me to talk about the Opposition's amendment (a) to Lords amendment 48, because there is a strong link between that amendment and their amendments to Lords amendments 30 and 31. The effect of the amendment to Lords amendment 48 would be that the definition of ““conviction”” in the Police and Criminal Evidence Act 1984 included a person's inclusion on an ISA barred list. I presume that the intention is that the information should then be included on criminal record certificates. We have debated the issue of barred list information before. The Government do not think it right to include barred list information on enhanced criminal record certificates, except for posts falling within regulated activity, and a few compelling exceptions, such as when people are applying to foster or adopt a child. Employers in regulated activity must know about a bar because of its legal effect; otherwise, there is no need to know because it relates to a different area of work and in practice would lead to individuals being excluded from areas of work to which their bar does not apply. In most cases, the information which led to the bar will be available on an enhanced criminal record certificate. When it is not, as Lord Henley also confirmed last week in another place, we will use secondary legislation to allow the ISA to give the police the information which led to a bar so that they can disclose it on an enhanced certificate, if it is relevant to the post applied for. Bars may apply, for example, because there is a criminal conviction, but equally a bar may apply because someone has been dismissed by their employer in respect of a particular case. In those circumstances the ISA would be able to give the police the relevant information. The police would then be able to determine, through an enhanced check, whether its disclosure was appropriate. We think that that provides an important safeguard.