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Safeguarding Vulnerable Groups Bill [Lords]

This group contains a good many Government amendments, as well as six new clauses and a new schedule. The Minister said that many of the amendments were technical, but there are also some important matters of principle. Moreover, as my hon. Friends and I have already pointed out, we have had to take on a huge amount of new material in a very short time. That will add enormous complication to the Bill, as if it were not complicated enough already. I do not think that this is the best way of pursuing legislation. However helpful the Minister has sought to be—and there have been a few odd meetings—there is still an awful lot of material for us to consider. I welcome the strengthening of, for instance, measures relating to the treatment of acts by children and to personnel suppliers. At the beginning of the year there was a furore about paedophiles and other undesirables gaining access to schools, and in Sussex, my part of the world, personnel providers were seen as a weak link. It was a grey area: there was confusion over whose responsibility it was to check the background of certain people, including those supplied to teach or act as classroom assistants. Did responsibility lie with the education authority, or with the commercial business that provided the staff? I am slightly confused about the grammatical relationship between amendment No. 209 and clause 6. The amendment would add a third paragraph to subsection (2)(a) and (b). As the word ““if”” already appears in the first line of the subsection, adding the new paragraph would cause it to appear twice. If that is not the case, why is the new paragraph preceded by a pair of brackets? There may well be a technical point here, if I may be terribly pedantic. However, there is also a point to be made about the content of the amendment. It states that someone is a regulated activity provider"““if the regulated activity is carried out for the purposes of an organisation, his exercise of that responsibility is not subject to supervision or direction by any other person for those purposes””." Surely that can apply only to single-handed organisations. Surely any person working in an organisation—be it a charity, a voluntary provider, an independent provider, a commercial company or a not-for-profit company—will have a boss, a line manager, someone who is ultimately responsible, unless the organisation is a one-man or one-woman business. In that case, as I understand the amendment, that one person would be the person whose activity would be subject to some form of restriction. I am genuinely slightly mystified, without disagreeing with the point that the amendment is trying to make. Amendment No. 26 also seems fairly vague. It, too, refers to clause 6 and the definition of regulated activity providers. It would give the Secretary of State a fairly wide-ranging power by inserting the words"““The Secretary of State may by order provide that in specified circumstances a person who makes, or authorises the making of, arrangements (of any description) for another to engage in regulated activity either is or is not a regulated activity provider.””" What on earth does that mean? Can the Minister give us any examples of circumstances in which someone whom we would normally expect to be defined as a regulated activity provider engaged in a regulated activity would suddenly be exempt and given a get-out-of-jail card as a result of a determination by the Secretary of State—presumably by means of secondary legislation, not subject to any further ratification by the House? The Minister tried to give examples earlier to make the legislation clearer, but only succeeded in further confusing Opposition Members, at least. Perhaps he will have a better go at it this time. Amendment 217 relates to clause 10, entitled ““Use of person not subject to monitoring for regulated activity””. According to my reading of the amendment, the creation of offences in this context is not retrospective. This is another confusing point, which needs to be made absolutely clear to the many tens of thousands of people who will be subject to the legislation. Those people, who may now be employed quite legitimately, would be subject to restrictions or barred altogether if they applied for their jobs once the legislation was in force. Let us say that a person occupies an existing post without having had to fulfil the proposed requirements. The nature of the job may technically change so that it becomes subject to vetting and barring procedures, although the person concerned has not moved to another job. Perhaps he or she works for a local authority. There have been big upheavals in social services and children’s services departments. The employee may have previously worked in a department where he or she did not come into contact with any vulnerable groups, because there were no such groups within that department’s remit. The department may then have merged with or become subsidiary to another department where other employees come into contact with vulnerable groups, young or adult. The employee’s job will not necessarily have changed. His or her contract of employment and pay and conditions need not have changed. The job title may or may not have changed; but the organisation or department may have changed. What obligations will that person have at that stage, when continuing to do a job in exactly the same way as it was done the day before the reorganisation? What penalties could befall that person if he or she took no action? Would the defence of not knowing come into play, meaning that the person was not subject to prosecution? I welcome Government amendment No 54, largely because we proposed it in Committee. It is a shame that the cameo appearance of the Under-Secretary of State for Health, the hon. Member for Bury, South (Mr. Lewis), has apparently ended, because it was he who, in Committee, took up the point that I made in proposing what was then Conservative-led amendment No. 139. What was said can be found in column 131 of the Hansard Standing Committee report. It was pointed out that given the various changes in the national health service, people were far more likely to come into contact with health providers who were not employed by the NHS, any NHS trust or any division of the NHS. They were providing an activity that was contracted in, as is increasingly happening in the fragmentation of the health service. Would it not be better if it referred to a person providing a form of health care rather than to the various divisions, organisations and structures in which it is provided? That, I believe, is what happens under amendment No. 54, which I certainly welcome. Given that the health authority’s contents and purposes no longer exist, the Government have taken out the reference to health authority from the list of what constitutes various health providers. Having commented on the main Government amendments, I shall now deal with amendment No. 201—the only one in the large group tabled by myself and my hon. Friends. We are minded to divide the House on the amendment, which we believe deals with an important principle, and hope to have the opportunity to do so at some stage. The amendment is designed to help the Minister in his inadvertent failure, seen rather glaringly earlier, to decide what is inadvertency and what is not. It is an important point because many people—some have calculated that it could be as many as a third of the adult working population—are inadvertently going to be covered and may become subject to continuous criminal record vetting. Given that 10 million Criminal Records Bureau checks have taken place since 2002, a very large number of the population could now be subject to prosecution if they do not take notice of—and, potentially, take action on—the new legislation. The Minister will no doubt agree with our contention—he acknowledged in Committee that the principle was right—that it is unfair to penalise individuals who did not know that they were barred from engaging in an activity. As it stands, there are three main circumstances in which someone commits an offence. Under clause 7, an individual commits an offence if he"““seeks to engage in regulated activity from which he is barred””," or"““offers to engage in regulated activity from which he is barred””" or"““engages in regulated activity from which he is barred””," which is pretty all encompassing. Furthermore, the guilt test is fairly low and the onus of proof lies on the individual to show that they did not know that they were committing an offence, rather than the other way round, whereby it would have to be proved that they were acting misleadingly in trying to disguise committing or intending to commit an offence. As the Minister acknowledged in Committee, it is not the Bill’s intention to criminalise people who may have been barred but who are not aware, for whatever reason, of the position. Schedule 3, which provides the guts of the legislation, has a very broad scope of regulated activities and will potentially catch thousands of people who are not directly involved in teaching or caring occupations, which form the focus of many of the activities at which the Bill is targeted.