Policing and Crime Bill

In moving this amendment, I shall speak also to Amendments 152BJ, 152BK, 163 and 164, all of which are grouped with it. We have come to the former Independent Barring Board, which is to be renamed the Independent Safeguarding Authority. My amendments fall into two sub-groups, so I shall deal with them in that way. Clauses 85 and 88, the second of which relates to Northern Ireland, were introduced in the later stages of the Public Bill Committee in another place, with little explanation given for their introduction and no debate on them at all. The effect of these clauses is to require the new Independent Safeguarding Authority to notify employers and others if it is considering whether to include a person on the barred list. We believe that this is unjust and contravenes natural justice, as well as Parliament’s original intention when the Safeguarding Vulnerable Groups Bill passed through Parliament. I worked on that Bill and I remember it clearly. From July 2010, all people who work or volunteer with children and vulnerable adults will need to be registered with the new ISA. Currently, such people need to obtain an enhanced criminal record certificate. This certificate gives the same information as standard criminal record certificates—details of spent and unspent convictions and cautions and information about whether the individual is on the sex offenders register—but it also includes any other information that, in the opinion of the chief officer of police, might be relevant and ought to be included on the certificate. The type of information that can be included is very broad and does not have to relate to a conviction or even an arrest or prosecution. Under these new clauses, allegations that are not pursued or are dismissed as spurious, and prosecutions that result in an acquittal, can be disclosed to an employer, as can information about behaviour that is not criminal at all. All this is disclosed without the job applicant ever being given an opportunity to offer any explanation. For example, an applicant might be able to demonstrate that allegations of sexual impropriety against a student had been found to be false and had been withdrawn. Sir Michael Bichard, in his report, was clearly concerned about this. He said that, ""at present, Enhanced Disclosure results are normally provided at the same time to the individual applicant and to the employer or voluntary body … Any objections by the job applicant to the provision of certain information could not, therefore, undo any damage done to his/her prospects with that particular employer … This raises important issues about the fair treatment of individuals. There is a risk that careers may be blighted and job prospects lost"." The Bichard report was quite clear about this. An effective vetting system should ensure that those not suitable to working with children or the vulnerable are barred while also ensuring that potential employers remain unaware of unfair, malicious or spurious allegations. Only when a final decision has been made by the ISA should the employer be informed of the fact. It is undeniable that details of allegations as well as convictions might be relevant in determining suitability to work with children and the vulnerable, but it is up to the expertise of the ISA to determine that. It is also an unfortunate truth that many careers have been blighted by unfounded accusations of impropriety. Let me give a case study that nicely illustrates the point. Susan successfully applied for a student nurse place through an NHS trust. She had started her first week at university when her enhanced criminal record certificate came back and showed that she was currently on police bail for suspected fraud. This happened after a bank account had been opened in her name through which thousands of pounds had been processed. No charges were brought against Susan and she agreed to appear as a witness for the prosecution of another suspect, who later pleaded guilty and was sentenced. This could happen to any of us whose identities are stolen. It very nearly happened to me recently. Susan was given no opportunity to make representations to the police or any other body regarding what information was recorded and included in the enhanced criminal record certificate. When the certificate was received by her employer, naturally she was suspended and lost her student nurse place at university. The CRB subsequently apologised. Susan’s bail should not have been included on the certificate and, after a disciplinary hearing, her job was reinstated. But it was too late; by this time she had already lost her place at university and suffered the embarrassment of being suspended from work. Although the information was deleted from her enhanced criminal record certificate, the information regarding details of her disciplinary hearing remains on her personal employment file. This can be viewed by her managers at any time in the future and used when providing references. As a result of the information on this file, she feels that she has been discriminated against—and I do not blame her. The Safeguarding Vulnerable Groups Act set up three different situations in which a person could be included on the barred list. In the first, an applicant is automatically barred from registration in certain serious prescribed circumstances. In the second, a person is barred and may make representations to be taken off the barred list. The third situation is the one that concerns us here; it is where the ISA is considering barring a person because the person has in the past engaged in certain behaviour or if it appears to the ISA that he or she is a risk to children or vulnerable adults. In this third category, the affected person is entitled to make representations to the ISA as to why they should not be included on the barred list. This would allow those who have had allegations made against them to make those representations without an employer being made aware of them. We believe that the main purpose of a system such as this is to ensure that only those matters that the ISA deems to properly affect a person’s suitability to work with children or vulnerable adults are disclosed to the employer. Clauses 85 and 88 are therefore disappointing to say the least. If passed unamended, they would require the ISA to notify the employer or voluntary agency that it is proposing to include a person on the barred list but has not yet taken a final decision because it is awaiting representations. This means that, although the ISA has not made any decision and although it may ultimately decide that the person should not be on the barred list, the employer will be made aware of this fact. This seems to defeat the purpose of the creation of an independent body and, indeed, the very process of allowing the person to make representations. When the Safeguarding Vulnerable Groups Bill was progressing through Parliament, the Government explained that it was necessary for the ISA to receive all the information and for it, not the police, to make the decision on what would be sent to the employer. Mr Parmjit Dhanda said in Standing Committee B on 11 July 2006: ""If information referred to the IBB is obviously false, spurious or insufficient to result in inclusion on a barred list, the intention is that it should not consider the information further than is necessary to establish that fact. There will be no detrimental effects on the person who is the subject of the referral".—[Official Report, Commons, Standing Committee B, 11/7/06; col. 31.]" I wish that were so. On the contrary, though, now the Government propose to allow the employer to have knowledge of the fact that the ISA is considering barring the person, even if the person is ultimately not barred. It is not difficult to imagine how an employer, most of whom rightly err on the side of caution, may decide not to make a job offer to someone who is not automatically cleared to work. This is bound to besmirch the reputation of the person concerned. Clauses 85 and 88 would defeat the main purpose of an independent vetting system and they should be removed from the Bill. Amendments 163 and 164 would repeal all provisions in the Safeguarding Vulnerable Groups Act 2006 that allow for an enhanced criminal record certificate to be issued regarding a person who is also subject to monitoring by the ISA. Amendment 152BK would introduce a new clause to amend the Police Act 1997 to ensure that an employer who is required to check whether a person is subject to monitoring under the SVG Act cannot also be issued with an enhanced criminal record certificate. As we have already explained, the ISA was developed to provide an effective new vetting system following the Soham murders tragedy. The Bichard inquiry report proposed vetting through the ISA model. It said: ""The central body would take a decision on the basis of the information above and notify the applicant. At that stage, no other employer, individual or institution would be informed. Under this system, employers would still decide whether or not a job required the postholder to be registered with the central body … Employers would also retain the ultimate decision about whether or not to employ someone, using references and interviews"." It is understandable that an employer would still need to interview and take up references. It is a reasonable presumption, though, from what I have just read out, that Sir Michael Bichard did not envisage the need for enhanced disclosure to continue once the ISA came into operation, yet that is what is provided for in the Safeguarding Vulnerable Groups Act 2006, and it is clear that the Government intend to operate a dual vetting system through the Bill once the ISA is up and running. One possible justification for the presumed need to continue with enhanced disclosure is that the ISA will not provide all the relevant details. Liberty, which briefed us on this matter, asked the Home Office why it felt the need for continuing enhanced disclosure from the CRB. It gave the example of a school bus driver, saying that it would be necessary to show not only that he had ISA clearance but also that he did not have a conviction for dangerous driving. We agree that extra disclosure might be necessary to determine suitability in that type of situation. However, that information would be available through an application by the employer for standard disclosure, which shows current and spent convictions, cautions, reprimands and warnings held on the police national computer. What it will not show is any record of allegations. We cannot think of a situation where information not available through standard disclosure might be relevant to the employment of someone who has been cleared by ISA vetting. The Minister might suggest that the weeding of intelligence information could be done by the police to ensure that enhanced criminal record certificates do not contain inappropriate information. However, the ability of the police to operate an effective weeding policy was demolished by the case of Susan that I have just quoted and was a significant issue identified in the Bichard report, which concluded: ""The current regime also leaves the police to make some very difficult judgements, for which they may not be best placed … There was a clear consensus in the evidence, including that from ACPO, in favour of taking the decision about what information should, and should not, be disclosed out of police hands. That consensus is, in my view, supported by a range of compelling arguments"." Allowing employers to continue to access enhanced criminal record certificates, in addition to checking whether a person has been ISA cleared, potentially breaches Article 8 under the Human Rights Act 1998—the right to respect for private and family life. Article 8 is not an absolute right. Article 8.2 allows for limitations if they are prescribed by law, serve a legitimate purpose and are proportionate. We would argue from these Benches that the continuation of access to enhanced criminal record certificates is not proportionate. We cannot see justification for the continuation of a belt-and-braces approach for professions where the ISA will now operate. We have laid this group of amendments to ensure that the enhanced disclosure scheme cannot continue side by side with ISA registration. We are merely seeking adherence to a system that is fair and deals with the problems identified by Sir Michael Bichard. The Government must justify themselves if they want to go further. I beg to move.