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Safeguarding Vulnerable Groups Bill [HL]

The amendments relate to barring provisions in the scheme and to rights of review and appeal. Amendments Nos. 23 and 34 in the name of the noble Baroness, Lady Buscombe, propose a code of practice agreed by Parliament under the affirmative procedure for the IBB in taking its barring decisions. As I described in response to earlier amendments, use of the automatic barring provision will be limited to a small number of prescribed criteria already specifically agreed by Parliament. To ensure that that is explicit in the Bill, I have tabled amendments to paragraph 19 of Schedule 2, which will set out the exhaustive list of criteria which can lead to an automatic bar. It will include the two criteria currently in sub-paragraph (1); namely,"““that a person has been convicted of, or cautioned in relation to, an offence of a specified description””," and,"““that an order of a specified description requiring the person to do or not to do anything has been made against him””," to which we will add inclusion in an overseas barred list and being subject to a specified overseas order or direction. Furthermore, in respect of the specified offences, under paragraph 19(1)(a), which can lead to an autobar, government Amendment No. 174 in respect of Clause 45 will require that those offences and orders be set out in an order subject to the affirmative procedure. Among others, we will also consult the bodies listed in the noble Baroness’s amendment in drawing up the list of equivalent changes in List 99. We will consult the same bodies when we draw up the further list required in the order passed under the Bill. Therefore, there will be no need for a fully fledged code of practice because in automatic barring decisions with no right of representation there will be no discretion on the part of the IBB. The prescribed offences, which we will have an opportunity to scrutinise in the form of draft regulations, will be considered sufficient evidence of a risk to vulnerable groups. More broadly, these amendments seem to indicate that the decision-making processes of the IBB should be set out in a code. We do not believe that that is appropriate for the reasons that I have described already. There should be some flexibility on the part of the IBB to determine its own procedures, provided that they are fair and transparent. Paragraph 11 of Schedule 2 allows for regulations to specify the operational details of how the IBB will carry out its functions and therefore gives the Government a power to prescribe detail in that area, should the need arise. We envisage that these regulations could include specifying the way in which the IBB will gather evidence, including representations by the individual and the processes for verifying and considering the evidence and representations, including delegation to committees within the IBB. These regulations, under paragraph 11(2), which specify the operational details of how the IBB will carry out its functions, will be subject to the negative resolution procedure because they deal with matters of operational detail and may require small changes as circumstances change while the scheme is phased in and becomes established. But they will still be subject to a proper process of parliamentary consultation. Amendment No. 41, in the name of the noble Baroness, Lady Walmsley, deals with the ability of individuals to make representations on their case. I stress that the IBB will adopt robust processes to ensure that all the decisions it makes are sound and to take into account all the information available to it, including facilitating representations as appropriate. That applies to all those coming under consideration by the IBB, including, but not limited to, those groups specified in the amendment. Schedule 2(12) says explicitly:"““A person who is, by virtue of any provision of this Schedule, given an opportunity to make representations must have the opportunity to make representations in relation to all of the information on which IBB intends to rely in taking a decision under this Schedule””." We believe that under this provision, the IBB would fail to comply if it did not both enable and facilitate, as appropriate, all individuals to make those representations. Furthermore, the Secretary of State can, under Schedule 2(11)(1), make provision as to the procedure to be followed for the purposes of any decision that the IBB is required or authorised to take under that schedule. Were it to become apparent at a later date that any group was in fact being disadvantaged by not having its ability to make representations facilitated—although, as I say, we do not anticipate this to be the case, given the professional nature of the IBB—there already exist in the Bill powers enabling the Government to provide for appropriate procedures to be detailed in regulations. Amendments Nos. 24 and 35 in the name of the noble Baroness, Lady Buscombe, relate to the appeals and review processes within the scheme. The amendments provide for appeals on points of fact in addition to points of law in relation to both the adults list and the children’s list. They also specify a minimum barring period of five years for those who are automatically barred, after which time the individual could apply for a review of their inclusion. We are giving intensive consideration to the issue of appeals on points of fact, and I will report back to the Committee or, more likely, to the House. On the minimum period within which an individual may not apply for a review, we intend to use regulations to make provision for a review period of five years in the case of under-25s, to reflect developing maturity, and 10 years for those over 25. Once this period has expired, leave for a review may be applied for to the Independent Barring Board. This review period is based on advice from experts; in addition, there is a precedent for a 10-year minimum barring period in all the current schemes—List 99, POCA and POVA, as well as the period which applies to disqualification orders made by the senior courts. I believe that the statement I have just made meets concerns raised on Second Reading by the noble Baroness, Lady Buscombe, and by the noble Baroness, Lady Walmsley, about ensuring that there are what they would regard as acceptable periods after which further representations can be made to the IBB. Both noble Baronesses were particularly concerned that those periods should be shorter in respect of the under-25s precisely to reflect developing maturity. Amendment No. 43, in the name of the noble Baroness, Lady Buscombe, would remove the discretion of the IBB to refuse to grant leave for reviews of the inclusion of any individual on the barred lists. The consequence of this amendment would be unfortunate, because it could give rise to speculative and repetitive applications for review, all of which would have to be granted, regardless of the time since the IBB decisions or any previous reviews. We are concerned that that could detract from the efficiency and effectiveness of the scheme. The Bill’s provisions are intended to make the system workable and fair, with the emphasis on safeguarding vulnerable adults and children. Given the further statement I have made about the periods after which it will be possible to apply for leave to make further representations, I hope the noble Baroness will think that we have gone far enough in meeting her concerns.