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Safeguarding Vulnerable Groups Bill [HL]

I am grateful to noble Lords for moving these amendments, which have given us an opportunity to debate the concept of regulated activity and how it is properly reviewed. Amendment No. 60, in the name of the noble Baroness, Lady Walsmley, would place a requirement on the Secretary of State annually to review the list of regulated activities set out in Schedule 3, and consider all appropriate additions. We understand the noble Baroness’s concern that the list of regulated activities should be kept up to date to reflect the changing nature of services provided for children and vulnerable adults. However, this amendment is unnecessary. Clause 5 already allows the Secretary of State to amend the definition of"““regulated activity relating to children””" and ““vulnerable adults””. Clause 5(3) allows the Secretary of State to amend by order Parts 1 and 2 of Schedule 3 in order to vary the definition of"““regulated activity relating to children””" or ““vulnerable adults””. This power will allow the Secretary of State to take a flexible approach to service delivery and reflect changing patterns of work. ““Regulated activity”” is broadly defined in the Bill in terms of a set of specific activities, establishments and positions of authority. We envisage that the Secretary of State will use this power to change the definition of ““regulated activity”” where organisational developments necessitate altering the titles of the inspectors or commissioners, where particular events highlight the level of risk and potential for abuse of children or vulnerable adults, where new establishments are created, giving employees the same potential level of access to children or vulnerable adults as they have through schools or care homes, or where changes in service delivery for children or vulnerable adults necessitate a change in the definition of ““activity””. We have consulted widely with representatives from the children’s and vulnerable adults’ workforce—not least the Local Government Association. The list we have and the review of arrangements, are appropriate. We will continue to hold discussions with relevant stakeholders, which will help to inform the Secretary of State in exercising these powers to make variations. Furthermore, the Independent Barring Board will develop its understanding of risk over time and be able to suggest revisions to the definition of ““regulated activity”” to the Secretary of State, either through their annual report or otherwise. The intention of Amendment No. 63 to paragraph 1(c) of Schedule 2, in the name of the noble Baroness, Lady Walmsley, is to ensure that advice and guidance provided over the internet, by telephone, in writing or through any other means is included in this provision. We agree that advice and guidance provided by means that do not involve face-to-face contact, including provision over the internet, by telephone and in writing, should be covered by the provision. We recognise that there is potential for grooming children through the provision of advice over the internet and other written means, as children often feel less inhibited when corresponding in this manner. It is important that the scheme is designed to reflect recent developments in the way services are delivered to children. However, this amendment is unnecessary as the provisions are defined in such a way to cover all these forms of advice. The words"““any form of advice or guidance””" ensure that this provision is not restricted to face-to-face contact, but includes advice or guidance provided over the internet, telephone, or other means. Amendment No. 64, in the name of the noble Baroness, Lady Walmsley, adds to the list of activities in paragraph 2(1) of Schedule 3 any activity which gives a person access to substantial amounts of children’s data, in so far as that data relates to paragraphs 2(1)(a) to (d)—that is, it relates to the teaching of, caring for, giving advice to and treatment of children and the moderation of a public interactive communication service likely to be used wholly or mainly by children. The effect of the amendment would be that a person who engages in an activity which gives him access to substantial amounts of such data would be engaged in regulated activity if he does so frequently, or if he does so to any extent in any of the establishments listed in paragraph 3—such as a school or children’s hospital—if he has the opportunity to have contact with children. We understand that the noble Baroness is concerned that people with access to data relating to children should be properly checked. We sympathise with her concern that, where potential abusers gain access to children’s private data, they may be in a better position to coerce, manipulate or groom those children. That is why we will table an amendment to the Bill extending the categories of controlled activity to those working for statutory or regulated employers who have the frequent opportunity for access to social services and educational records about children. Those with frequent opportunity for access to medical records are already covered under the definition of ““controlled activity””. Furthermore, those having frequent access to health or education records can give their consent to an application for vetting information under Schedule 4, so that employers can check their barred status, anyway. The guidance we will issue will explain that employers should check the barred status of individuals before they use them to undertake controlled activities, and that barred people should be employed in controlled activity only if certain conditions are met—for example, if there is extra supervision, the individual is kept away from areas targeted at children, and a longer probation period is imposed. We recognise that barred people may present some risk to children if they have access to records without extra safeguards being put in place. Ensuring that employers do a check of barred status will mean that they are aware of the risk and the guidance will support them to manage it appropriately. However, activity involving access to personal and sensitive data about children should not be a ““regulated activity”” preventing all individuals placed on the children’s barred list from engaging in these activities. It may be possible for some to be employed safely in these posts, as they are not closely involved with children. For example, an individual may be on the list because she lost her temper and hit a child while teaching in a school; but there is no evidence that she would present a risk of harm to children if she was an individual working within an LEA office with access to educational records about a child. It would be disproportionate to bar an individual from a wide range of activities, including those providing the opportunity for access to data about children, where it cannot be demonstrated that they present a risk in all of the activities from which they are barred. The effect of Amendment No. 64A, spoken to by my noble friend Lady Thorton—who has a keen interest in it, as she made clear on Second Reading—would be to place a requirement on those who employ persons to moderate a public interactive communications service, as defined for the purposes of Section 2(1)(e), where they employ persons to perform these tasks outside the jurisdiction of the United Kingdom courts, to have a statement to this effect prominently displayed in close proximity to the place where the service is provided. The amendment would have no effect if the organisation operates only outside the jurisdiction of the United Kingdom courts. The inclusion of moderating interactive communications within the scope of regulated activity was raised on Second Reading. Since that debate, my officials have held initial discussions with the Home Office’s internet task force sub-group on moderation to discuss these provisions. We all share the same goal of protecting the vulnerable from potential abuse resulting from their use of interactive services such as internet chat rooms, and wish to find the best way of achieving that. That is why we will continue urgently to discuss to discuss these provisions with the internet task force. These discussions are ongoing, and I give my noble friend, and the noble Baroness, Lady Walmsley, an undertaking to report back to the House to update it on the outcome of these discussions after Committee stage. Should further amendments prove necessary on Report, I will table them. Regarding Amendments Nos. 68 to 72, Amendments Nos. 68 and 69 seek to ensure that exercising the function of an officer working for a relevant government body—like a member in the Bill—is classified as ““regulated activity””. The rationale behind the list of positions in Schedule 3(4) is simple: they capture those in key positions of authority whose duties may include taking high-level decisions that could have a significant impact on the lives of children. In much the same way as I am sure the Committee could not countenance the possibility of an individual with a history of sex offences serving on a local safeguarding children board, so too would it be completely unacceptable for that person to work as, for example, an elected member of a relevant local government body. Elected members have the opportunity to set the tone of children’s policy-making locally. They are figures who are rightly looked up to in the local community and are trusted by child and adult alike. Their decisions provide the context for the work of officers and as such—this takes up the point made by my noble friend Lord Harris—we believe it is enough for them to be covered in this list of key positions of authority, rather than officers themselves. However, it is also the case that any local government officer who is involved in an activity listed in Schedule 3(2) will be required to be monitored and, if necessary, subject to the bar. Furthermore, under Clause 18 and an amendment that I intend to table on Report, those with the opportunity for frequent access to education, health and social services records will be covered by controlled activity. Those working in local government employing individuals for this purpose will be required, through guidance, to check their barred status. This is a proportionate response to the risk of harm posed from this particular role and will cover many of those who I am sure the noble Baroness had in mind in moving her amendments. Amendments Nos. 70, 71 and 72 deal further with the definition of a member of a relevant local government body in Schedule 3(4). At the heart of Amendments Nos. 70 and 71 is the question of what positions the bar is intended to cover and who should be required to be subject to monitoring. Let me say firmly—this reflects the remarks of my noble friend Lord Harris—that we believe that any member of the cabinet within a local authority should not be allowed to serve on that body if they would otherwise be barred. A particular individual may not have direct responsibility for social services or education functions, but he helps to set the overall strategic direction of the council and will have the opportunity to influence, at least indirectly, the lives of children in the local area. Similarly, given the ability of area committees, or similar committees, to discharge functions relevant to children, it is highly likely that serving on such a body would give an individual the opportunity to influence the lives of local children. I am sure that the Committee would agree that it would be completely unacceptable to give that opportunity to someone who would be barred under the new vetting and barring scheme. For these reasons, I hope the noble Baroness will feel able to withdraw her amendments in the knowledge that we believe her concerns are met.