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Safeguarding Vulnerable Groups Bill [HL]

These amendments relate to the important issue of automatic and discretionary bars within the new scheme. Amendments Nos. 18 and 29, in the name of the noble Baroness, Lady Walmsley, would remove automatic barring with no right to make representations. I should stress our intention that automatic listing without the right to make representations will be limited to the most serious sexual offences where nothing the individual could say would affect their inclusion in the list. Therefore a process of receiving representations and consideration by the IBB not only would be unnecessary, but also could give rise to entirely false hopes on the part of those guilty of such offences. Given that, it is conceivable that circumstances might arise in which they could work with children or vulnerable adults. We intend to consult on the prescribed offences and we have already engaged with key organisations such as the police, the Crown Prosecution Service and experts in child protection on possible offences. I refer noble Lords to the information note on automatic barring which I have circulated. It provides more detail on how we envisage automatic barring will work in practice. The annex to the note on the operation of automatic barring, on page 8, includes an illustrative list of automatic barring offences without the right to make representations. In the case of the children’s list these include rape, sexual intercourse with a girl under 13, and assault of a child under 13 by penetration. On the adults list they include causing or inciting a person with a mental disorder to engage in sexual activity against their will, inducement, and threat or deception to procure sexual activity with a person with a mental disorder. By simply reciting these offences I hope that the Committee is satisfied that we are not talking in any light way about the kind of offences that would lead to an automatic bar. They would be very grave offences indeed. I should stress that, along with a large number of other offences, they already lead to automatic bars in the current system. The list of offences we are considering is shorter than the equivalent list for the current schemes to reflect the additional provision under the new scheme of a right to make representations and to appeal for a further group of automatic barring offences. We believe that the shorter list of automatic barring offences with no right to make representations is in every case, and without doubt, justified. In response to the comment of the noble Baroness, Lady Walmsley, that this smacks of ministerial interference, we intend these offences to be agreed by Parliament under amendments I shall move later in Committee. We will use the affirmative resolution procedure for agreeing the order necessary to specify the offences in question. The will of Ministers in a unilateral way will not hold sway in this matter, rather it will be the will of Parliament arrived at in a considered way after consultation. Amendments Nos. 21 and 31, spoken to by the noble Baroness, Lady Buscombe, relate specifically to scrutiny by the IBB before automatic barring. Our view is that the role of the IBB in the cases I have just described and those that will be set out in the order is not to apply its discretion in deciding whether to bar a person who has been referred by the Secretary of State, having satisfied the prescribed criteria, but once that referral has been made, simply to include the person directly on the relevant barred list, for the reasons I have given. We believe that no useful purpose can be served by asking the IBB to consider whether someone who has been convicted of an offence such as the rape of a child under 13 should be barred. We are clear that the bar should follow on the conviction automatically because we are talking about a conviction by a court or a caution that has been freely accepted by an individual as an admission of guilt in relation to an offence of great gravity. In those cases we believe that the bar should follow automatically and that these provisions are Human Rights Act compliant. Amendments Nos. 22 and 33, tabled by the noble Baroness, Lady Walmsley, would prevent automatic inclusion of individuals on either barred list if they were under the age of 18. As the Bill stands, if any of the prescribed criteria are satisfied, there is provision for automatic inclusion on the children’s barred list and the adults’ barred list. Automatic inclusion will be only for conviction or caution for the most serious of offences, where we are certain that the risk of allowing these individuals to work with either children or vulnerable adults is so great that they must be barred without a right to make representations. There may be mitigating circumstances which mean that it will not be appropriate in every case to include young people who commit offences on a barred list without the right to make representations. In our debates, the noble Baroness, Lady Walmsley, has repeatedly made reference to the example of a young person aged 17 who engages in a mutual, but illegal, sexual relationship with a person of, say, 15. He or she may not present a risk of harm to children in general and therefore may not be an appropriate person to automatically be included on the children’s barred list. Consequently, we do not intend that those under the age of 18 when the relevant offence is committed should be included on either list automatically. Instead, they would be dealt with under a discretionary route, with a right to make representations. I assure the noble Baroness that we will consider this when making regulations to cover the prescribed criteria for automatic inclusion. My Amendment No. 53 deals with the provision to allow the Secretary of State to make criteria to be prescribed in regulations. These are drafting, technical amendments to ensure that there is no duplication in the application of those powers. Amendments Nos. 27, 28 and 39 relate to the discretionary barring process. The behaviour described in Amendment No. 27—that of inciting a child to harm another child—would be covered in paragraph 4(2)(e) of Schedule 2, which includes,"““inciting another to harm a child””," as conduct which endangers a child and can therefore be considered for barring under a discretionary route. In this paragraph, ““inciting another”” can be taken to mean inciting another person, whether an adult or child. Amendments Nos. 28 and 39, tabled by the noble Baroness, Lady Walmsley, question the provision for discretionary barring on the basis of risk of harm, as distinct from behaviour. I would point the Committee to the long note that I circulated, dated 24 April, which, I believe, the noble Baroness, Lady Walmsley, has seen, on discretionary barring on the basis of risk of harm. I promised the Committee that I would circulate further details on how we envisage this provision might work. The note sets out in some detail how this might work. In particular, it gives examples of those people who are currently included in List 99 by virtue of risk of harm rather than behaviour, in terms recognised under the Bill. Page 2 of the note gives two specific examples where risk of harm has led to List 99 inclusion, where behaviour alone would not have been sufficient to justify it. In the first case, the police had an anonymous tip-off that a teacher had a collection of pornography. The person was concerned that the teacher gave private tuition and may be showing the pornography to children. The police discovered that although there was no evidence that the teacher had used the adult pornography in any inappropriate way, the teacher had a number of photos of children in school uniform or fully clothed among his collection of adult pornography. When questioned about this, he admitted that he was sexually attracted to children. He had not committed any offence. There was no evidence that any child had been harmed, nor that he had ever attempted to involve a child in any sexual behaviour. But he was judged to pose an unacceptable risk of harm for inclusion in the children’s workforce. The second example was of a teacher receiving psychiatric and psychological help for depression and, during that treatment, revealing to the psychologist that he had a sexual interest in children. The psychologist was sufficiently concerned about this to report it to List 99, although the teacher was not working in a school at the time. The List 99 process followed from that referral. Therefore, there are concrete examples in the existing List 99 process where people with responsibility for making these decisions have judged the risk of harm as so serious that it justifies inclusion in the list, although there has not been specific behaviour that would so justify it. That being the case, we believe that this provision should continue into the new regime being established under the Bill. In summary, it would be undesirable that the IBB should have to wait until someone had harmed, or attempted to harm, a child or vulnerable adult before he or she could be included on the barred lists when there was sufficient compelling evidence that there was a risk of harm. For those reasons, the provisions in respect of risk of harm are justified. I hope that I have satisfied the noble Baroness on automatic inclusion in the list.