My Lords, let me start by echoing what my noble friend Lord Hodgson of Astley Abbotts said. We all agree that we must do all we can to ensure that the vulnerable—be they young or old or, as the noble Baroness, Lady Barker, said, those with dementia—are protected within charities. The question we are grappling with is how best to do so.
The Charity Commission takes safeguarding issues very seriously. Its statement of regulatory approach makes it clear that the abuse of vulnerable beneficiaries is a matter to which the commission will pay particular attention, alongside terrorist abuse of charities and fraud. The Charity Commission’s Director of Investigations, Monitoring and Enforcement has said:
“The public relies on trustees to have robust procedures in place so that people working in a charity with access to beneficiaries are suitable to hold those roles”.
Trustees must,
“ensure their charity has appropriate and robust policies and procedures in place to safeguard the charity’s beneficiaries, including a process for recording incidents, concerns and referrals”.
The Charity Commission publishes detailed guidance for charities on their safeguarding responsibilities. It explains the legal requirements for charities working with children and vulnerable groups and how they must safeguard them from harm. It covers what safeguarding involves, what child protection policies and processes should include, and explains the Charity Commission’s role in ensuring that charities follow the law.
The Protection of Freedoms Act 2012 established, as your Lordships know, the Disclosure and Barring Service or DBS, which processes criminal records checks and manages the barred children’s and barred adults’ lists of unsuitable people who should not work in regulated activities with these groups. The DBS decides who is unsuitable to work or volunteer with vulnerable groups. There are two points to stress: it is an offence first, for a barred person to apply for such work, paid or voluntary; and secondly, for a charity to employ a barred person in such work. Furthermore, Sections 35 and 36 of the Safeguarding Vulnerable Groups Act 2006 imposed a duty on regulated activity providers and personnel suppliers to provide the DPS with information where there is a risk of harm to a child or vulnerable adult. There is an established policy of reporting abuse directly to the DBS.
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Turning to charities, when appointing new trustees or recruiting employees who will engage in regulated activities with children or vulnerable adults, charities should ensure that appropriate checks are undertaken. As I said, it is an offence for a person to permit a barred individual to engage in a regulated activity if he knows or has reason to believe they are barred. The Protection of Freedoms Act 2012 includes a duty on regulated providers to check whether a person is barred but this is not yet commenced.
The Charity Commission requires charities working with children or vulnerable adults to have in place policies and processes for safeguarding them. Where concerns are raised with the commission about safeguarding issues in a charity, the commission may request information from the charity about its safeguarding policy and evidence to demonstrate that that has been properly implemented. This could include requesting details of DBS checks that have been carried out on trustees, staff and volunteers. Where DBS checks have not been carried out and should have been, the charity may have committed an offence if it permitted a barred person to engage in regulated activity, knowing or with the reasonable belief that the person is barred from that activity.
That is the background. Turning to the noble Baroness’s first amendment, the Charity Commission does not need a specific power to enable it to call for or either randomly or systematically check that charities have undertaken proper DBS checks on trustees—or for that matter staff or volunteers. It can do so under its existing powers. Of course, there is a policy question of whether the commission should undertake random
checks of charities’ procedures in relation to DBS checks rather than wait for concerns to be raised with it, and whether that would be an effective use of the commission’s limited resources.
Here I point to the report of my noble friend Lord Hodgson, which he mentioned, Unshackling Good Neighbours. In that, my noble friend questioned regulatory duplication. The task force report said:
“A second aspect of this red tape ‘band-wagon’ is the tendency for regulators to, as it was put to us, ‘take in each other’s washing’ (i.e. to ask questions about regulations which are not directly their concern). For example, appropriate CRB checks are a legal requirement. Should the Charity Commission (responsible for enforcing Charity Law) be asking about CRB checks or OFSTED (responsible for educational standards) be asking questions about PAT checks? Should the responsibility not lie with the organisations to decide what is required to comply with the law? The present situation, in which small”,
civil society organisations,
“are asked over and over about regulatory compliance, tends to undermine their confidence in their own judgment and to feel that ‘they must do something’”.
We need to bear in mind that almost all trustees are volunteers, as my noble friend Lord Hodgson pointed out. We do not want to impose onerous or duplicative requirements that could have—to coin a phrase—a chilling effect on the willingness of people to step up to serve as trustees. This is an important element of the proportionality argument that I made at the start. It is important that charities, like private and public sector employers, have in place the proper safeguarding policies and processes, and, where required by law, obtain the necessary DBS checks.
I have some sympathy with the noble Baroness’s second amendment in this group. Like all noble Lords involved in the debate, I want to ensure that unsuitable individuals are not able to serve in positions of responsibility where they could present a risk to children or vulnerable adults. However, to add to what the noble and learned Lord, Lord Hope, said, I would like noble Lords to consider a number of potential issues of concern were we to consider such an amendment. The first is the question of proportionality. As the noble and learned Lord said, the sex offender register is very wide-ranging, and more than 43,000 people are on it. Any sexual offence with a sentence of more than 30 months results in an indefinite notification requirement to be on the sex offender register. As the noble and learned Lord pointed out, there is an issue about the efficacy of the order, and I will look into that point. There is also a question about relevance. Should a person on the sex offender register be banned from being a trustee of a charity that has nothing to do with children or vulnerable adults—for example, a historic building preservation trust?
In framing the criminal offences that give rise to automatic disqualification from charity trusteeship, we have been careful to consider offences that are relevant to the role of a charity trustee: those involving deception or dishonesty, support for terrorism or money laundering, for example. In these cases, an unspent conviction, with the proviso of a waiver to aid rehabilitation, is relevant to the role of a charity trustee. It is not so clear that sex offences would always be relevant to a person’s ability to serve as a charity trustee. Where it is, there is already a system in
place to protect children and vulnerable adults from the risk presented by unsuitable people. There is the mechanism of the DBS, which decides who is unsuitable to work or volunteer in regulated activity with vulnerable groups, and it is illegal for a barred person to apply for such work or for a charity to employ such a person. This system is in place not just for charities but for other social enterprises.
There is another important failsafe to think about. It is the disqualification power in Clause 10. The Charity Commission has said that it would consider using this power where someone is serving as a charity trustee who is clearly unsuitable, given former convictions for sex offences, but who is not barred from serving as a charity trustee because the role involves no regulated activity. The Clause 10 disqualification power would give protection in such circumstances, enabling the Charity Commission to disqualify a person who is unfit from serving as a charity trustee and senior manager. A disqualification order could be limited to a particular class of charity, in this case those working with children or vulnerable adults.
I hope that the noble Baroness will recognise that a specific power to request from charities details of their DBS checks is not necessary and that she is reassured that the Charity Commission takes these matters very seriously and will consider how it can secure greater assurance that charities that require them obtain the proper DBS checks. In relation to extending automatic disqualification to individuals on the sex offender register or who are guilty of a sexual offence, I hope the noble Baroness will accept my explanation that the DBS system is the right system to protect children and vulnerable adults from unsuitable individuals regardless of whether the organisation is in the public, private or third sector.
While I am very sympathetic with the aims of the noble Baroness further to protect children and vulnerable adults, I hope she will understand that I am not able to accept her amendments today. I will, however, commit to considering and discussing with the Charity Commission whether there is more that can be done in this area, and I am happy to meet the noble Baroness before Report to feed back on those discussions.