Policing and Crime Bill

I thank noble Lords for their contribution to this debate. We can all agree that, where we are seeking to protect children and the vulnerable and not to impose unnecessary and unreasonable burdens on those who seek to serve with them, we need a sense of balance. In that regard, we have to err on the side of the basic requirement of the legislation, which is protection of those who are vulnerable. Amendments 152BH and 152BJ would remove the provision for the ISA to notify any registered or known regulated or controlled activity providers about a person whom it proposes to bar. When the ISA reaches this stage, it will give the person eight weeks to make representations, after which it will make its final barring decision. The ISA will reach the stage of proposing to bar someone when it has made a finding of fact as to the person’s behaviour or the risk that they pose, and a judgment as to whether it is appropriate to bar them, subject to representations that they will have the opportunity to make. In making a finding of fact, the ISA will rely on information from employers or others who refer information, and from the police. How are the duties of the employer and the ISA to be balanced in such a way as to avoid the kind of examples to which the noble Baroness referred? Employers will have a duty to refer to the ISA those allegations which the employer substantiated and which led to an employee’s dismissal, and any allegations that led to the employee’s resignation while under investigation. The ISA is also interested in unresolved allegations, and employers may refer those, but they are not under a duty to do so. The ISA is not interested in allegations that have been shown to be unfounded or malicious. That would go some way to finding reassurance in the case of Susan, who had a problem emanating from the amount of information that was collected, when her court of appeal was initially to the chief constable. The CRB does not own the records that it has; it does not compile them; it has collected that information from the police services, and it is the head of the police service in question—in the relevant county—who has the responsibility of answering the question on whether the information that has been released is reasonable. The ISA will not make a finding of fact lightly, and will not do so on the basis of a single unresolved allegation. It will look for harmful behaviour that may have been validated through an employer’s disciplinary procedures or criminal convictions or cautions, and it will look at the pattern of different, unlinked allegations which might enable it to draw a conclusion. If the ISA reaches a finding of fact and judges that it would be appropriate to bar the individual, that person has the right of representation, but what is it to do if it knows that that person currently works with children or vulnerable adults? The employer or voluntary activity organiser might be unaware of the allegations, if the individual had moved on after the original referral to the ISA. Is it acceptable for the ISA to be aware of a risk of harm and the employer not to be aware, during the period when the individual makes representations, for some two months? Who would be to blame if the individual caused harm in the workplace? The legislation and the ISA itself would, rightly, come under the spotlight if the ISA did not notify employers of a potential risk, together with the reasons for it. Yet these amendments would remove the powers to notify employers who are responsible for those working with vulnerable groups. The issue of notification of the employer was included in the policy consultation of the Department for Children, Schools and Families on the vetting and barring scheme in late 2007 and early 2008. The principle of notifying employers was widely supported; what was not as widely supported but received mixed responses was when the notification should be made. The DCSF concluded, in its May 2008 report on the consultation, that employers should be notified at the point when the ISA places an individual under consideration for barring—which points to one of the concerns of the noble Baroness. On reflection, we revised that view, and Clauses 85 and 88 reflect the policy that the employer should be notified when the ISA proposes to bar someone rather than at the earlier stage when it places them under consideration. I can understand the objection to notification at the earlier stage, before the ISA has reached a view about the referral. The ISA might have been notifying employers prematurely, before reaching a view about the risk of harm. We have met that objection by legislating for notification at the later stage when the ISA has reached a view. I turn to Amendment 152BK, which we are unable to accept for a number of reasons. This amendment is aimed at preventing employers from obtaining enhanced criminal records disclosures in cases where they are also required to verify the "subject to monitoring" status under the 2006 Act. First, we believe that this is flawed as a matter of policy. While a status check will tell the employers whether the applicant is registered with the ISA under the new vetting and barring scheme, it will not tell them details of the individual’s criminal record. In the case of enhanced disclosures, the details may include any information considered relevant by the police, in addition to convictions and cautions. There will be cases where that is still relevant to a prospective employer with the decision on whether to employ. For example, when an individual first applies to register with the ISA, the employer should be able to consider and act on any police information as soon as that becomes available—in parallel with the ISA considering it—and not have to wait until the ISA decides whether it is minded to bar. Secondly, the amendment would not, in our view, achieve its aim: an employer could apply for a disclosure through an authorised registered body—an umbrella body—or as an individual large employer, or could simply use another counter-signatory to an application. In addition, it would not be possible under the current scheme to verify whether an employer is also the registered body. On balance, therefore, the evidence is that we have got it about right. We think that the safeguards are there. If an individual is already registered and new information comes to light, that may not be enough to require a barring, but it may be enough to cause concern—and it would be right to take those concerns on board. For example, allegations of fraud—not a particular fraud, but one in several different circumstances—might set alarm bells ringing. We believe that the balance we have is about right. We also want to resist Amendments 163 and 164, because they would remove much more than just relevant police information from the vetting and barring scheme legislation. The amendments would entirely remove a range of powers or duties to make an enhanced disclosure—not just police information, but all the conviction and caution information as well—without proposing any other kind of disclosure as a replacement. That would remove two CRB duties that are completely unrelated to police information: a duty to inform regulatory authorities, on request, when the CRB is working on a disclosure on a person, and a duty to include on a disclosure whether a person is barred, with related information. Information on whether a person is barred is not just part of "relevant police information". It is the cornerstone of the new scheme to improve the safeguarding of vulnerable groups. While their proposers may wish to pursue elsewhere their general concern on police information, these amendments are specific to the vetting and barring scheme and, paradoxically, go much further than police information. For all these reasons, I believe that your Lordships should reject these amendments.