Lords Hansard text for 19 Mar 200819 Mar 2008 (pt 0003)

4.45 pm

Lord Hunt of Kings Heath: I thank both the noble Lord, Lord Henley, and the noble Baroness, Lady Falkner, for their generally welcoming remarks and the work done in the preparation of the Explanatory Memorandum. I appreciate that, although the noble Lord, Lord Henley, is a veteran of this debate, the noble Baroness and I are very new to the matter. Of course, in our debates on the Criminal Justice and Immigration Bill, the critical importance of an effective probation service as part of offender management programmes has come through clearly. I note that the noble Baroness, Lady Falkner, tantalisingly almost invited me to have a Second Reading-type debate with her on the changes, but then drew back. I will not rise to that temptation.

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We think the changes will help us to deliver a better service. We are clearly all united in paying tribute to the tremendous work of the probation service in recent years, and their critical importance in years to come.

On the timing, we are commencing the new provisions for the first six areas on 1 April 2008. Those six areas will be Dyfed Powys, Humberside, Leicestershire and Rutland, Merseyside, south Wales, and west Mercia. On contractual arrangements, I understand the point of the noble Baroness. She will know that, as always with contractual arrangements, there are commercial confidentiality issues which mean that I could not let her have the information she requests. However, the principles that should apply for service contracts and contracts with the public, private and not-for-profit sectors should be the same. The not-for-profit sector has nothing to fear from these arrangements. I said in my opening remarks that they apply to the not-for-profit sector, but am happy to ensure that there is appropriate consultation with that sector on these matters, as the noble Baroness requested.

The noble Baroness also asked me about England, Scotland and Wales. Of course, the order lends itself to that question. I confirm that Part 1 of the Act is limited to England and Wales. There are references to Scottish legislation in the order because the order amends a number of Acts that relate wholly or partially to Scotland or Northern Ireland. Essentially, they relate to the transfer of offenders from Scotland or Northern Ireland to England or Wales and vice versa. So the amendments ensure that the relevant duties and obligations in those transfers apply equally to providers of probation services as they do to local probation boards. I hope that that provides a suitable explanation.

I certainly agree with the noble Lord, Lord Henley, about the importance of affirmative orders when it comes to amending primary legislation, which is why we are here today. He raised the important question of gender, race and disability legislation. I assure him that the amendments to gender, race and disability legislation, ensuring that both probation trusts and other providers of probation services are required to meet statutory obligations of both the local probation boards and other suppliers of public sector services, are covered in these orders. The noble Lord then teased me about legislation and further potential changes to be made, as he often does. Obviously, we will have to see on future equality legislation. We do not envisage any further amendments in relation to this issue, although, as I have said, there is an order that will enable us to repeal references to local probation boards when the whole system is established. We already have that provision in place.

If there are no other questions, I shall simply thank both noble Lords for their thoughtful and constructive remarks, and welcome my noble friend to his place.

On Question, Motion agreed to.

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Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria) (Transitional Provisions) Regulations 2008

4.50 pm

The Parliamentary Under-Secretary of State, Department for Children, Schools and Families (Lord Adonis) rose to move, That the Grand Committee do report to the House that it has considered the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria) (Transitional Provisions) Regulations 2008.

The noble Lord said: I am grateful to both the Joint Committee on Statutory Instruments and to the Merits Committee for their careful consideration of these regulations. Noble Lords will be aware that neither committee commented or thought that the House’s attention should be drawn to these regulations.

The regulations arise out of two elements of the legislation. First, the Act created a new independent safeguarding authority—ISA—which was referred to in the legislation which the few of us here today debated at exhaustive length as the independent barring board. It is now called the Independent Safeguarding Authority. Secondly, the Act will establish a scheme to prevent those who pose a risk of harm to children or vulnerable adults getting access to them through their work.

The Independent Safeguarding Authority was formally established in January 2008, with Sir Roger Singleton as chair and Adrian McAllister as chief executive. It is now conducting the transitional and preparatory work necessary for the new scheme, and the regulations are part of that process. As part of the new scheme, we want the ISA to ensure that when its new barred list comes into effect, those persons currently barred from working with children and vulnerable adults will continue to be barred if the ISA deems them to pose sufficient risk. I have placed in the House Library an information note for noble Lords to support this debate, which explains this process and the future proposals that relate to the regulations. I will not reproduce that detail in my opening remarks, but I wish to explain the scope of the regulations that we are debating today.

First, the regulations relate solely to putting those individuals who are already barred under existing arrangements on the barred lists of the new scheme. In relation to how automatic barring will work with new cases once the new scheme is fully operational, we shall be making the full set of prescribed criteria regulations under the affirmative procedure for separate consideration. Secondly, the regulations will determine only those cases where the individual will not have the right to make representations about their inclusion on the ISA’s new barred lists. These individuals have perpetrated one or more offences that are so serious that it is certain that they cannot provide any additional information that would suggest that they did not pose a risk of harm to children or vulnerable adults. As a result, there is no point in providing the right for them to make representations against their inclusion on the new lists.

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In relation to children, the regulations build on those that lead to automatic barring without the right to make representation currently in force for List 99. My right honourable friend the Secretary of State made a Written Statement in the other place on 17 March that provided an update on List 99. I made the Statement available in your Lordships’ House on the same day. During the passage of the Bill in 2006, there was much consideration about which offences should lead to automatic barring. That is why the regulations are subject to the affirmative procedure and are being debated today. Since the passage of the Bill, there has been extensive consultation, and I do not intend to reproduce that here, but it has been available to noble Lords.

I should point out, however, why it is not necessary to include those cases where there is a right to make representations in the regulations we are debating today. That would be redundant because the transitional provisions order gives individuals already barred for committing such offences the right to make representations about their inclusion on the ISA’s new barred lists in any event. If these regulations are approved, we will start putting the most serious offenders on current lists on to the ISA’s new lists in April. That will continue our progress in establishing the new scheme.

There can be nothing more important than protecting children and vulnerable adults from those who pose a serious threat to them. It is the responsibility of all, including the Government, to do everything we can to protect them. It is in that spirit that I commend these regulations to the Committee. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria) (Transitional Provisions) Regulations 2008. 13th report from the Joint Committee on Statutory Instruments.—(Lord Adonis.)

Baroness Morris of Bolton: I thank the Minister for his explanation of these regulations, which we very much welcome the opportunity to debate. They represent what is so often the case with secondary legislation: a battery of good intentions in need of perfecting.

We on this side of the House expressed at length when this Bill was being debated that we feel strongly that protecting vulnerable children and adults is of paramount importance. Crucially, these vulnerable children and adults are in desperate need of support from all sorts of services, and it is essential that the Government provide that help with well trained and well intentioned professionals and volunteers. I hope the Minister will not mind if I make some general points while we are discussing these issues. He may not be in a position to answer my questions but I hope that he will. I understand that we are talking about transferring from one list to another, but I would like to raise some general points.

If our aim is to protect these vulnerable people, part of the task is to ensure that the wrong people are

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not working in close proximity with them. The other important part is to ensure that the right people are not being put off; that is, we must be very careful not to contribute to the sense that the Government are suspicious of those with a genuine interest in caring for the vulnerable segment of society. Since the Bill was passed, we have heard anecdotal stories of how difficult it is to get volunteers and how many people are being put off by the hoops they have to jump through. Although this question is not directly involved with the issue, has there been a decline in the number of volunteers since the Act came into effect?

As I say, those are general points but they provide an important framework in which this debate rests. We understand that the migration of those from the older list of those already barred or restricted to the list under the new scheme is an important step to ensuring that the new scheme is implemented efficiently. The need to determine what offences result in an automatic barring is a key step in the construction of the foundation of the new scheme. It is right that it should be clearly defined and presented to Parliament in that manner.

While we appreciate the significance of outlining the criteria, we still feel it is necessary to have further clarity from the Minister on a few key points that are the cause of some concern on this side of the House. The first issue concerns not the list of offences in themselves but the other important part of the criteria for referral; namely, whether or not the person in question was convicted of the offence. The regulations still state that for specific offences a caution as well as a conviction necessitates a referral. These are often serious sexual offences. I fully appreciate that, in legal terms, accepting a caution can be construed as an admission of guilt, but making such a sharp demarcation risks ignoring the circumstances. People often accept cautions without realising their full implications. What conversation has the Minister had with the police with the aim of improving the public’s understanding of the significance of being cautioned? Does he feel that those accepting cautions are aware of the full implications? Does he think there might be circumstances where someone might accept a caution simply to avoid shame or scandal, and thus unwittingly bar themselves from working with vulnerable people?

I understand that this might concern only a very small number of cases, but the point remains that without a proper appreciation of the individual circumstances of those who are cautioned, an outright bar might not be appropriate. What assurances can the Minister give that those referred to be barred because of a caution will be only those who might pose a threat? What mechanism might be in place for that?

5 pm

The second point that I want to bring to your Lordships’ attention is something that appears to be a new condition. The regulations specify that only offences committed in the past 10 years will result in referral to be barred. Does this include all manner of offences? I think of the more appalling offences such as murder or rape. Under the Rehabilitation of

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Offenders Act 1974, the only convictions that become spent or ignored after 10 years are those for crimes that carry sentences of up to two-and-a-half years. Under this regulation, it seems that any crime will be ignored for referral purposes, as long as it happened 10 years ago. Is that really the Government’s intention? Could the Minister explain why the regulations diverge from the Rehabilitation of Offenders Act’s specific cap of ignoring only those crimes that carry short sentences? The regulations refer explicitly to when the crime was committed. Does that mean that it allows those who committed a crime more than 10 years ago, but may have only recently been convicted, the chance to work with vulnerable adults?

The few successes of the Home Office’s Operation Advance have resulted in the conviction of serious sex offenders many years after the commission of the crime. Developments in DNA technology will make these sorts of belated convictions even more possible. Would those people still be allowed to work with vulnerable people under the language of the regulations? Of course, conviction of the listed crime might bar an individual, but how does this coincide with the specific mention of the time when the crime was committed and not when the person was convicted?

I have been speaking about a few of the technical points in the regulations that I feel need clarification, but I now turn to an issue that is worrying in its omission from this regulation. It may well be because we are talking only about people being referred from one list to the other, but I am still going to make the points because they are important and they are worrying issues. There is no structure in the Act for how offences committed overseas are to be incorporated into the referral mechanism. Could the Minister explain how they will be incorporated? Surely they are not to be ignored. What resources do we have to depend on? We are not yet linked in to the most important European criminal database, the Schengen information system II. How can we be sure that dangerous offenders will be barred from working with vulnerable groups if we cannot identify those who come from outside this country? The EU Committee report on the Schengen information system II suggests that it is possible for dangerous criminals to enter the country undetected; and that is just those from Europe.

Although we do not exactly have the greatest faith in the Government when it comes to large databases, what is being done to ensure that offenders from countries with which we have not even tried to share a database are not working with vulnerable children? What conversations has the Minister had with the Home Office to address this issue? Does the Minister have plans to include crimes committed abroad on his list of criteria for referral?

Essentially, we welcome the fact that steps are being taken to ensure that vulnerable groups are protected. That is of the utmost importance. But we must be alert to all potential threats from a lack of information about foreign crimes, from unclear language and from the fact that many people who do

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want to help might be scared away from even trying. Much needs to be done to ensure that vulnerable people are getting the care that they need, with the confidence that they are in the safest possible hands. I look forward to the Minister’s response.

Baroness Walmsley: Before speaking to the order, I should say that I have consulted my noble friend Lord Shutt, the Chief Whip of my party, and he has assured me that it is quite in order for me to sit here. I hope that no Members of the Committee will be offended if I observe custom and practice and sit here rather than at the other end.

Baroness Morris of Bolton: I am delighted to have the noble Baroness sitting there.

Baroness Walmsley: Thank you. The advantage of speaking second is that one’s concerns have often already been extremely well expressed. That applies in this case, in that I share the concern of the noble Baroness, Lady Morris, about conviction and caution. Members of the Committee will remember that when we went through the Safeguarding Vulnerable Groups Act 2006, it became clear that I do not like barring without a right to representation at all in principle. Even if—to quote the background paper—the offence creates,

it would be a human right for the person being so barred at least to be able to make a statement in his or her own defence. Opening any chinks in our defences for children and vulnerable groups is the last thing I would want to do, but it is a human right that somebody should at least be able to make a statement about the fact that they do not feel that they should be barred.

However, I welcome the fact that we have the affirmative resolution procedure for these regulations, because that gives us a chance to look at the further consultations before they come back to this House so that we can take account of them in further discussion, as we are today. In fact, looking at the consultation, I was interested to see that respondents wanted more offences, rather than fewer, on the list of those which do not attract a right to representation. Far be it from me to encourage the Government to lengthen the list of people who do not have the right to representation, but I am curious as to why they decided not to follow the suggestions in the consultation and leave the list as it is.

My main concern is cautions. I share the concern of the noble Baroness, Lady Morris, that people often do not understand the significance of what is happening to them when they are offered the opportunity of taking a caution rather than going to court. Those people give me most concern when I remember that they have no right of representation. However serious the offence for which they are being cautioned, it has not had the test of the normal level of proof in the criminal courts in this country. They have not gone through those tests, and people who have accepted a caution should therefore have the

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right of representation and leave it to the independent expert board, in which we all have the greatest confidence, to look at the circumstances of the offence itself, the level of proof and the state of mind of the person concerned when they were persuaded to accept a caution, before they put that person on a barred list.

I also share the concerns of the noble Baroness, Lady Morris, about overseas convictions. I ask the Minister whether that includes overseas cautions as well. Not every country has the same standards for the behaviour of the police as in this country. I would not like to think that people were in any way unreasonably pressured by a foreign police force to accept a caution, thereby removing their right to representation and barring them.

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