Safeguarding Vulnerable Groups Bill [Lords]

Public Bill Committee, 13 July 2006.

Standing Committee B

Schedule 3

Judy Mallaber (Labour, Amber Valley)

I want briefly to explore paragraph 2(1)(e), on regulated activities, with the Minister. It is aimed primarily at regulating those who moderate chat rooms or online discussions forums and is very welcome. However, it refers to

“moderating a public electronic interactive communication service which is likely to be used...by children.”

Before amendments have to be tabled on Report, will the Minister consider whether that provision could apply to electronic interactive communication services that are used to locate children and thus interact with them?

I raised this issue on Second Reading, because an increasing and frightening range of electronic services are being used to track children. Allegedly, such services are meant to promote safety, but there are huge dangers of potential abuse, despite the current voluntary code on who should have access to services and other items. The code is inadequate, and there are too many examples of it not having been followed. I have called for a licensing system for the industry in a Bill that happens to have been sponsored by three members of the Committee—my hon. Friend the Member for Colne Valley (Kali Mountford), the hon. Member for Mid-Dorset and North Poole (Annette Brooke) and my hon. Friend the Member for Wakefield (Mary Creagh). I have also had support from within the industry.

Under the code, someone who is being tracked is meant to give their consent. In that sense, the system is interactive, as set out in paragraph 2(1)(e). Often, however, the electronic interaction is with the child and it might occur with or without their knowledge. That might be in a situation in which they can be put in danger, but it is extremely odd to think of a four-year-old, for example, giving informed consent. That raises the issue of how we can be sure who is doing the tracking and how it is done. We therefore need a regulatory system.

Under paragraph 2(1)(e), chat room moderators will rightly be regulated because of their access to sensitive information and communication channels with children, as well as the need to regulate who operates such services and how. However, we need to control location services that provide electronic access to children. Some services include information about children’s phone numbers and homes, and the tasks performed by providers of such services are very similar to those performed by chat room moderators.

Will the Minister consider whether the issue can be covered by paragraph 2(1)(e)? If not, can we table an amendment to secure at least one element of the regulatory system and the protection that we need from a mushrooming, scary industry that is using the latest electronic communications technology and which falls right within the scope of our efforts in the Bill to protect vulnerable children? I am happy to talk further to the Minister about this issue before Report, but I ask him now to see whether it could be covered. If not, perhaps we could discuss whether an amendment might be appropriate.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I support the comments of the hon. Member for Amber Valley (Judy Mallaber), but I wonder whether I could take a few points a bit further by writing to the Minister over the recess. I am a member of the Home Secretary’s task force on child protection on the internet, and various concerns were raised at our meeting about 10 days ago. However, it was far too difficult to table amendments on the issue, so I should just like to ask the Minister whether he will be receptive and provide me with some reassurance that the protection that we need is in the Bill.

Parmjit Dhanda (Labour, Gloucester)

It is good to have you back in the Chair, Mr. Conway. I appreciate the comments of my hon. Friend the Member for Amber Valley, who raised this issue on Second Reading, and I thank her for giving me advance notice of this debate and a copy of her ten-minute Bill, which made for interesting reading.

I should be happy to read the letter from the hon. Member for Mid-Dorset and North Poole. I should also be happy to meet my hon. Friend, who rightly suggests that this area has seen a great deal of change over a short time. Before making any changes to the Bill, I would like to satisfy myself on the level of interaction. The Bill tackles situations in which there is activity, correspondence and a strong level of interaction between a child and another child or someone who could be posing as one. I would want to take a closer look at the issue, but I should be happy to meet her and have that discussion between now and the Report stage, and even to read correspondence over the recess.

We have had a thorough debate on schedule 3, so I hope that it can be accepted.

Clause 6

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I beg to move amendment No. 105, in clause 6, page 3, line 23, after ‘services’, insert

‘or through provision of direct payment or individual budgets.’.

Derek Conway (Conservative, Old Bexley and Sidcup)

With this it will be convenient to discuss the following amendments: No. 106, in clause 11, page 7, line 3, after ‘check’, insert ‘, or

(b) he makes arrangements through direct payments or individual budgets for another person (P) to permit an individual (B) to engage in a regulated activity and does not—

(i) notify the individual (P) of the existence of the barred lists, and

(ii) offer to undertake an appropriate check on behalf of (P).’.

No. 107, in clause 16, page 10, line 34, after ‘body’, insert—

‘(4) If an offence under sections 9, 10 or 11 is committed by an individual acting on behalf of a body administering the provision of direct payments or individual budgets and is proved to have been committed with the consent or connivance of, or to be attributable to, neglect on the part of a designated responsible officer of the body, he (as well as the body) commits an offence.’.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I appreciate that the Minister might find some technical fault with the amendments, so I shall concentrate on the sentiment behind them, which is all-important. The core amendment is amendment No. 106, which has the support of the Parkinson’s Disease Society. It would require a regulated activity provider to inform direct payment recipients about the vetting and barring system, to increase awareness and to offer to undertake an appropriate check on the individual’s behalf.

I shall backtrack and explain how the issue was dealt with in debates in the other place, where I understand it was one of the most controversial issues. My noble Friends argued that people who arranged services for vulnerable recipients of direct payments should be classed as regulated activity providers and wanted everybody involved to be vetted and barred. Probably quite rightly, the Government did not accept that argument taken to its extreme, because it would have placed a huge burden on some 2 million carers in the UK, many of whom are family or friends, perhaps in informal arrangements.

The introduction of the direct payments scheme has brought additional bureaucracy, which has destabilised some long-term caring arrangements with extra requirements. The last thing that amendment No. 106 is attempting to do is destabilise arrangements or make already difficult situations even more difficult; rather, it says that the local authority, which is likely to be the instigator of the direct payments, should tell the recipient that the vetting and barring scheme exists.

We have all acknowledged how complicated the system is, and the recipients of direct payments will not have much time or inclination to work their way through the complexities of the legislation. Amendment No. 106 is intended to say that the local authority should say to the recipient of the direct payments, “This system exists—would like assistance to do any checking on the carers you’re going to use? If you’re quite satisfied, because you’ve known them for 20-odd years, we needn’t take it any further.” In other words, amendment No. 106 is permissive. However, taken together, the amendments would place a duty on the local authority or whomever to alert the recipient to the fact that the new system exists and to give assistance.

If the Minister cannot accept the wording, I hope that he will accept the idea as a compromise that would meet the many concerns that have been raised. The direct payments scheme is becoming a bigger and bigger way to provide care. It is a good way to give people choice, but we want a bit of a safety net when that choice is exercised.

Tim Loughton (Conservative, East Worthing and Shoreham)

Welcome back to the Chair, Mr. Conway. I shall say a few words in support of the amendments. They are sensible. As she has said, it is an area of care for vulnerable people that will grow. The Government rightly support direct payments, and many authorities throughout the country have pushed them.

The amendments also fit in with the Government policy, which we share, of encouraging as many people as possible to stay at home for as long as possible, but only where due and appropriate support is available. It should not be done by continually raising the threshold qualifying them for residential care without providing sufficient support to ensure that they, particularly elderly people, can stay at home without harm or injury.

An increasing number of people will use the direct payments scheme to engage the services of complete strangers to help clean their homes, do their shopping and provide other health-related and personal services. Such people will be put into a strong position of trust and will be able to take advantage of vulnerable people should they be so minded. I am sure that a few people will get into the system in order to take advantage of vulnerable people. Although the vast majority of people offering services through direct payments will not, the Bill is about weeding out bad apples.

It would be an excessive obligation to require every person offering such services to be vetted. It could cause enormous delay for people trying to exercise direct payments, and could lead to a diminution of choice for those trying to engage the services of somebody about whom they might know very little. It is eminently sensible and not too onerous a new obligation on local authorities simply to inform a vulnerable person or their carer—if there is a part-time carer, somebody with a power of attorney or an appropriate person—about the availability of the vetting system, and that they might like to avail themselves of it before taking a firm decision about whom their direct payments will go to.

The amendments would enhance the Bill by providing an extra safeguard for the growing part of the population that belongs to one of the vulnerable groups that we are discussing. The amendments would achieve that without being unduly onerous on local authorities, which after all will be responsible for organising direct payments. A reminder of the service’s availability would therefore not be too great an additional requirement.

Ivan Lewis (Labour, Bury South)

I welcome you to the Chair, Mr. Conway. This is the first time that I have spoken in Committee with you in the Chair, and it is good to see you.

This debate is sensible and important. The concepts of direct payments and individual budgets are at the heart of public service reform, empowering individuals with far more control over the services provided for them. It is right to make the point, as did the hon. Member for East Worthing and Shoreham (Tim Loughton), that that will be a significant part of how services are provided in future.

We must strike the right balance. We must ensure that people receive appropriate protection and safeguards without undermining the principle of empowering them by giving them more control and choice. We must not place onerous and undue requirements on them but must give them every assistance and support to ensure that they can employ anybody they choose, either on their own behalf or on behalf of a family friend or relative.

Individual budgets and direct payments will be a greater part of the mainstream care system than they have been. We are running 13 pilots at the moment for individual budgets, and we want to learn from those before we decide whether to roll out individual budgets as a national option or an entitlement for people.

We should be trying to incorporate into those 13 pilots, which are at an early stage, a means to ensure that people understand their right to seek information and make the necessary checks so that they have the maximum protection. During those pilots, I shall certainly look at lessons that can be learned.

On amendment No. 105, we do not believe that it would be appropriate to bring a family member or friend within the definition of a regulated activity provider. We should enable and assist relatives and friends to have the right to make the necessary checks, but it would be inappropriate to oblige them to do so by statute.

On amendment No. 106, we agree that all individuals in receipt of a direct payment should be aware of the vetting and barring scheme, and of their right to engage with it. I shall try to assure hon. Members. In another place, we gave a commitment to introduce a Government amendment placing a duty on local councils to inform direct payment recipients of their right to engage with the new scheme. As hon. Members are aware, we have tabled that amendment, and either I or the Under-Secretary of State for Education and Skills, my hon. Friend the Member for Gloucester (Mr. Dhanda), will speak to it later. That should meet the intention of the amendment tabled by the hon. Members for Mid-Dorset and North Poole and for Brent, East (Sarah Teather).

In addition—I hope that this gives further assurance to the Committee—we are exploring how people who require help in making checks can be assisted by local authorities. We envisage direct payment support services playing a key role in that area. The new scheme will allow all private, domestic employers, including direct payment recipients or their nominees, to check an individual’s status in the scheme online, or via other means. At this stage, we do not think that it is necessary to put a requirement on local councils to do that on an individual’s behalf.

On amendment No. 107 relating to criminal offences—I do not think that the hon. Member for Mid-Dorset and North Poole referred directly to it—the Bill provides already for a number of offences, where appropriate. We are not convinced by the argument for specific or additional offences in respect of direct payments and individual budgets. Therefore, although it is right that we send a strong message about the consequences of breaching the law, to introduce specific offences relating to those issues is neither necessary nor desirable.

I like to think that we have given way significantly since the debate began in the other place. We are all learning as the concept of individual budgets and direct payments develops and we will need to reflect on the lessons learned. However, I think that the Bill just about strikes the right balance between enabling and supporting people to have access to the relevant vetting process and procedures and not placing an inappropriate duty on them. It will give them more freedom and control over the choice of care provided. On that basis, I ask hon. Members not to press their amendments.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I thank the Minister for his comforting words. At this stage I shall be happy not to press the amendments. However, although I did not refer specifically to amendment No. 107, I do think that, if we consider the matter important, it needs to have some legal force. For example, in children’s legislation, we had to clearly make a person responsible within a local authority. In this area, we have seen so much buck-passing over the years that, if we consider it to be of importance, we must be clear that there is a designated person who has responsibility.

Amendment No. 107 follows if we accept the logic of amendment No. 106 that we cannot leave direct payments out of the whole scheme. We must bring them in, as the Minister says, in such a way that they are not a burden and do not upset long-standing arrangements, but give the necessary protection. I may revisit the matter, but given the Minister’s comments, I beg to ask leave to withdraw the amendment.

Clause 7

Maria Miller (Conservative, Basingstoke)

I beg to move amendment No. 136, in clause 7, page 4, line 14, leave out subsection (3).

The amendment was originally intended to be read alongside another amendment, which unfortunately was not selected. We have made the Minister’s office aware of that, so that he understands the tenor of this debate. The amendment seeks to remove from the Bill the defence of an individual not knowing that they were barred. We shall seek to add a further amendment to ensure that the clause makes it clear that it is an offence for an individual intentionally to mislead an employer about their barred status.

As we know, the clause creates an offence, punishable by up to five years’ imprisonment, of seeking to engage in regulated activity if barred. It also allows for an individual to put forward a defence of not knowing that they were barred from regulated activity, or that they could not reasonably have been expected to know that they were barred. It is clear from those particular provisions that it is not the Government’s intention to criminalise people who may have been barred but for whatever reason are not aware of that situation.

This debate was had in the other place but we feel that it is important to continue it. The reason why we tabled the amendment is that a broad scope of regulated activities is included in schedule 3, meaning that many thousands of people who are not involved directly in teaching or caring will fall under the schedule’s provisions. It is easy to imagine a situation where an individual who has been barred may not be fully aware of the wide range and extent of the activities that are covered in the barring process.

The vetting procedure would, for the most part, ensure that any of those barred people would not be able to work face-to-face with any vulnerable groups covered in the Bill. As the Minister will be aware, the criminal act includes seeking or offering to engage in activity from which an individual is barred; it is not only working with vulnerable groups or children, but offering or seeking to engage in that employment. It is important that we focus on that point.

As I said, this is an important issue that was debated at length in the other place. Indeed, Lord Adonis provided clarification on Report on the issue. In underlining the need to address it, he set out quite a lot of detail on how the procedure will work, particularly on how barred people will be informed of their status. The system sounds robust, but its complexity—the number of activities that will be subject to monitoring and barring—means that more discussion is needed.

The Minister has assured us on a number of occasions in the debate that there will be a great deal of communication about the Bill with those who are barred and with the employers of those who will be monitored or subject to barring. Our concern is that the Bill’s complexity means that people could put themselves forward for employment without any intention whatever of undertaking a criminal act, and that they will be criminalised and subject to quite severe penalty. The amendment, hand in hand with subsequent amendments that would include a requirement of intention to mislead, is a way of closing what we feel is a loophole in the Bill. I look forward to hearing from the Minister whether any further thought has been given to the issue since the debate in the other place.

Sarah Teather (Liberal Democrat, Brent East)

I heard the context of the hon. Lady’s proposed amendments and I am sympathetic to her sentiments. In his reply, will the Minister explain why the Government decided to draw the clause so broadly that individuals will have to prove that they did not know, rather than prove that they were acting misleadingly? The narrower definition would be much more likely to criminalise the people that the Government are seeking to criminalise, and would avoid catching many others who would not otherwise be caught under the umbrella.

The Government obviously intend to protect vulnerable children and adults rather than criminalise such other people, but there is already plenty of other legislation with that purpose, and it is inappropriate to criminalise those who, as the hon. Lady said, may not understand the full scope of regulated activity. They may understand that they have been barred from one activity but, as we discussed on Tuesday, there is difficulty in defining exactly what is meant by regulated activity and it is perfectly conceivable that a barred person may not appreciate that other forms of activity may bring them into the category that would cause them to be criminalised. Will the Minister therefore say why the Government decided to draw the provision so broadly and whether they might consider an amendment on Report that would narrow the definition?

Parmjit Dhanda (Labour, Gloucester)

First, it is important to say that I entirely understand what the hon. Member for Basingstoke (Mrs. Miller) said about intentionally misleading. We are at one on that—it is the Government’s intention that it be covered in the Bill. The amendment relates to the clause that will make it a criminal offence for a barred person to engage, seek to engage or offer to engage in a regulated activity. However, it is a defence to prove that the person did not know, and could not reasonably have been expected to know, that he was barred. The amendment would remove the defence.

Paragraph 12 of schedule 2 imposes an obligation on the IBB to take all reasonable steps to notify a person that he is barred. Clearly, it would be unfair to penalise individuals who did not know that they were barred because, despite best efforts, the IBB had been unable to contact them. We hope that such situations are kept to a minimum, but removing that defence would criminalise people unreasonably. We do not seek to do that; hence, we oppose the amendment. However, underlying the amendment is a concern to ensure that barred individuals who apply for work without realising that such work is a regulated activity are not criminalised. That also covers what the hon. Member for Brent, East was trying to say.

I understand hon. Members’ concern, and we do not wish to criminalise individuals unfairly. However, we will ensure that the scheme is well publicised and we will issue guidance to provide further detail about what type of activity will be a regulated activity. Furthermore, when an individual is informed that they are barred, the intention is that the types of activity for which they are barred will be explained to them.

Sarah Teather (Liberal Democrat, Brent East)

Given the difficulty that we had on Tuesday defining exactly what regulated activity was, does not the Minister concede that it would be perfectly logical for somebody else to be unable to appreciate the full extent of the activities from which they may be barred?

Parmjit Dhanda (Labour, Gloucester)

I take on board that point but, at the same time, the hon. Lady must understand the situation when, for example, a predatory paedophile applies to work in a school. Many people in regulated activities are part of the school work force. That is a simple example of why we need the provision. People may try, perhaps deliberately, to get into those workplaces, and the Bill exists, so that we can err on the side of caution and protect children. That is a relevant part of the issue.

Sarah Teather (Liberal Democrat, Brent East)

The point that the hon. Member for Basingstoke and I made was that, if we redrafted the clause so that it specifically ruled out behaviour that intended to mislead, such as applying in a false name or the Minister’s example, it would capture those individuals but not others who did not intend to act criminally.

Parmjit Dhanda (Labour, Gloucester)

As I have already said, we do not wish to criminalise those who genuinely do not know or have not been informed, but that is a matter for the police, who will have to consider the evidence. The judgment is best made by them, rather than us, because we would have to come up with a prescriptive list of circumstances, to which the hon. Lady seems to allude. We cannot do that, and it is more effective to rely on the police to do their job. The right thing to do is to err on the side of caution, and on the side of those vulnerable adults and children who need protecting.

We intend that there should be a widespread communications campaign to ensure that all groups affected by the Bill know their new responsibilities and consult with stakeholders on the most appropriate methods for information dissemination. We will use a range of media, including the trade press, websites, newsletters and practitioner workshops and seminars, to get the message across.

Maria Miller (Conservative, Basingstoke)

Given that the Minister has written into the Bill an ability for the Government to change what falls into the regulated activity category, does he anticipate ongoing communication with those people who are barred in order to update them on the changes that are made? I understand what he says about the power of advertising and placing advertisements in the trade press, but surely we cannot rely on individuals to read magazines to keep themselves up to date with the process. Does he expect a continuing dialogue with those who are barred, so that they are fully up to date with any changes that the Government make?

Parmjit Dhanda (Labour, Gloucester)

It is important to do so. It is also important to remember that, when barred individuals apply for a post in a regulated activity area, people will be able to check that they are subject to monitoring and then block their application. I take on board the point that the hon. Member for Basingstoke makes about discouraging people from applying in the first place to work in areas of regulated activity in which they are not entitled to work.

Maria Miller (Conservative, Basingstoke)

I am sorry but clearly I did not make myself as clear as I meant to earlier. The issue is about not employers knowing, but the individuals applying for employment knowing. In the circumstances that we are discussing, it is a criminal offence to seek or offer to engage in employment, so it is fundamental that the Government should undertake such communication.

I shall press the Minister a little further. Will the IBB have an obligation to conduct a communications campaign directly with those who are barred? If so, does the Minister have costings for that? Given the 40,000 discretionary judgments that the IBB will undertake, will it have the capacity to undertake what will be a complex process? Would it not be easier to follow the line of argument that we have advanced and remove the provision to make the process much simpler?

Parmjit Dhanda (Labour, Gloucester)

We should not be looking to create a simpler process if that would put vulnerable adults and children at risk. I already answered the hon. Lady’s question earlier—we intend to inform those who are barred about the activities in which they are and are not entitled to take part. We shall update that as well.

Madeleine Moon (Labour, Bridgend)

Will the Minister confirm that it will be standard practice for an employer to include in the job description and person specification the fact that the job would be barred to anyone on the barred lists? That would mean that anyone barred who was taking the initial step of applying for a job and seeking the application form would immediately have that information before them and not apply for the job.

Parmjit Dhanda (Labour, Gloucester)

I cannot say to my hon. Friend that job adverts will say that the job is available only to people who are not barred from working with the relevant groups, any more than happens at the moment in advertisements for head teachers’ and teachers’ jobs. That would be a broad commitment to make, and I cannot make it per se. However, as I said, it is important that we communicate as broadly as we can with everybody on barred lists and all employers and regulated activity providers to ensure that they know what is required of them. We undertake to do that.

Madeleine Moon (Labour, Bridgend)

May I clarify the point? I was thinking not about the advertising for the job, but the person specification and job description. The advert might well be general, but the information should be provided when the individual rings to say that they are interested and receives details from the employer. Most employers would be vigilant in ensuring that such information was given to anyone who sought to enter their employment.

Parmjit Dhanda (Labour, Gloucester)

I shall take my hon. Friend’s interesting point on board and consider it. It is important that the barred applicant should know in the first instance that they should not be applying for the job. If we do that in the first place, such situations should not arise.

I hope that I have clarified that the important thing for the Government is to err on the side of caution and protect vulnerable groups. I hope that the hon. Member for Basingstoke sees fit to withdraw her amendment.

Maria Miller (Conservative, Basingstoke)

I thank the Minister for his detailed response, although I remain most concerned. We have discussed the role of the IBB in communicating information and the issue of including communication as part of a statutory obligation. That has been dismissed as inappropriate by the Government, although we have received strong assurances that communication will be effective. I was surprised to hear that the Minister feels that the police should decide how this part of the law should be interpreted. Obviously, the police interpret the law, but it is made clear by the Bill, which leaves several other things unclear, that it is a criminal offence to seek to engage, or offer to engage, in the relevant activity.

As we have discussed, there is nothing in the Bill to provide that those who act in that way commit a criminal offence only if they are seeking to mislead an employer. It is purely the act of seeking, or offering, to engage in the activity that constitutes a criminal act. I therefore find it difficult to see how the police could come to any conclusion other than that individuals on the barred list who put themselves forward for employment were doing something they should not, and that action should be taken accordingly. Unless the Minister has other information to share with the Committee, surely that is the intention in the Bill.

Parmjit Dhanda (Labour, Gloucester)

I should be intrigued to hear from the hon. Lady who she thinks should decide whether an offence has or has not been committed, if it is not the police.

Maria Miller (Conservative, Basingstoke)

The reason for the Bill is to define what the House considers to be an offence. It is clear in the Bill that the Government consider it should be an offence for someone who is barred to seek to engage in regulated activity, or offer to do so. If the Minister does not think so, perhaps we should proceed with the amendment, which is widely supported in the Committee. If he does not think that the police should pursue the issues, we can, obviously, amend the clause accordingly. I remain concerned, and we shall perhaps seek to revisit the matter later. In the meantime, perhaps the Minister could think further about the debate that we have had today, and about the degree of concern expressed by hon. Members of different parties. I beg to ask leave to withdraw the amendment.

Clause 8

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I beg to move amendment No. 1, in clause 8, page 4, line 38, at end insert—

‘(c) a Further Education Institution (within the meaning of section 140(3) of the Education Act 2002 (c. 32)).’.

Derek Conway (Conservative, Old Bexley and Sidcup)

With this it will be convenient to discuss the following amendments: No. 137, in clause 8, page 4, line 38, at end insert—

‘(c) a residential health institution which is exclusively or partly for the provision of health care or rehabilitation to children.’.

No. 114, in clause 8, page 4, line 38, at end insert—

‘(c) a military training or educational establishment with recruits and trainees under 18.’.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

There are three amendments in the group, one of which was tabled by Conservative Front-Bench Members, and one of which has joint support. The principle behind them is the same. They deal with the question whether the categories of establishments in which the relevant regulated activity is carried out are broadly enough defined. Of course the issue arises of whether to confine the provisions to cover those most at risk or whether to cast the net further. I think it is important to ensure that we assess the risks in more educational and health institutions than are set out in the Bill.

Amendment No. 1 ties in with amendment No. 2; it could almost be a computer cut-and-paste, as the two amendments together would transfer further education institutions from the provisions on controlled activity to the provisions on regulated activity. I raised the issue on Second Reading in an intervention. I could not see that there should be a distinction between further education establishments and schools, in the matter of ancillary workers, given the 14-to-19 agenda. That encourages the idea, which I support, that children will move between institutions, fully engaging in their new curriculum and studying in different contexts. What on earth will be the difference, as the agenda extends?

My local further education establishment has an enormous array of special educational needs courses. It is the usual route from a special school to the local college and is promoted the most for younger people with special needs. We could argue that it is promoted for vulnerable children more than for others. I do not understand why further education should be included in that section. The response that I received from the Minister for Children and Families on Second Reading was that we should scrutinise such issues in Committee.

Judy Mallaber (Labour, Amber Valley)

It is obviously difficult to know what should and should not be in the Bill. It would be helpful to learn whether the hon. Lady is asking for more areas to be included in regulated activity, given that she has said previously that we might be including too many areas. I realise that it is difficult to strike a balance, but is she asking for more regulation or saying that we already have too many regulated activities?

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

Further education colleges are included in the Bill. At present, they are in the controlled activity area, presumably on the basis that a large number of further education students are over 18 years old. However, we are on the cusp of a change with the 14 to 19 agenda, and children will move interchangeably between colleges and schools, so there should be a regulated activity aspect. For example, the school caretaker or the college site manager should be subject to the same degree of checking and barring as those in regulated activity. A lot of the Bill stems from the Ian Huntley case when a school caretaker was not subject to the same checks as a school teacher. With a controlled activity, the catering people, site managers and others in a further education college will be treated differently from those at a school. I should like the Minister to respond to such matters. I am talking about the difference of treatment of ancillary workers.

Sarah Teather (Liberal Democrat, Brent East)

My hon. Friend may recall that, when I raised the matter in response to the statement that the Secretary of State made on the Audit Commission report, he undertook to look at it. I have not heard from him, so it would be helpful if the Minister could explain why FE has been treated slightly differently.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I thank my hon. Friend. I recall clearly the important statement made by the Secretary of State about the Ofsted inspection and how staff were being checked. There was a positive response to her suggestion that, as we move to the 14 to 19 agenda, further education colleges should be treated exactly the same as schools.

The amendment picks up a point that has been made on the Conservative Benches about checks on members of governing bodies. As the Bill is drafted, governors of further education colleges are not checked in the same way as governors of schools. That is why the amendment is necessary. I remind members of the Committee that I am concerned not only about the 14 to 19 agenda but about particularly vulnerable young people with special needs at colleges, and as long as they can still receive funding, there will also be adults with learning disabilities continuing with their courses at further education colleges.

The area that we are discussing is important. I hope that the Minister will make a positive response. Furthermore, I hope that I have made it crystal clear why I suggest this simple movement of category. We must take on board the nature of a further education college in the 21st century. It may have been reasonable in the past to treat further education colleges as the Bill does, but I do not think that it is now.

I support amendment No. 137, but I will leave comments on it to others. We tabled amendmentNo. 114 in response to the excellent speech by thehon. Member for Blackpool, North and Fleetwood (Mrs. Humble) on Second Reading. I asked her whether she would mind if I tabled an amendment, and I spoke to her this morning on the way here to explain what I intended to say. I want to make it clear that I am not trying to steal anyone’s thunder. I was extremely moved by her speech on Second Reading, and it was noticeable that the Minister, in summing up the debate, did not provide any answers in this area, so I very much want it to be considered in detail in Committee.

This is an important area: many families have experienced heartbreaking situations. It is easy to say, “Oh, that involves the Ministry of Defence; it has nothing to do with this,” but the Bill is designed to safeguard vulnerable groups of people and that should include raw recruits, if I can put it that way, who are under 18. I am talking about young people who probably have not left home and may not have experienced the wider world until they entered a military education or training establishment.

The hon. Member for Blackpool, North and Fleetwood spoke as chair of the newly established all-party group on Army deaths. She said:

“I am acutely aware of the pain and anger that arises from the suspicion that those with responsibility for the care of children fail to protect young recruits from sexual abuse.”—[Official Report, 19 June 2006; Vol. 447, c. 1106.]

She gave a particularly telling quotation from the inquiry and review carried out by Nicholas Blake QC on the tragic deaths at Deepcut barracks. As she said, at the close of the review recommendation 12 states:

“Instructors should be vetted for their suitability to work with young people, applying standards that are no less rigorous than those applied to civilian establishments educating or training people under 18.”

As the hon. Lady said, the Bill is intended to provide proper arrangements for vetting people working with children and barring those who are unsuitable, so we are asking why on earth military establishments should be excluded from it. As she also said, child abuse cases in schools and the outcry about staff not being subject to enhanced Criminal Records Bureau checks concern all parents, but the Deepcut and Beyond families point out that problems also exist in military training establishments. I understand that non-commissioned officers and civilian staff are not subject to Criminal Records Bureau disclosures of any kind. That is absolutely shocking. No parent who is passing over their child to be cared for, in a sense—someone else is to take on the parental responsibility—can have any idea that that is the situation, and the issue is not only that checks are not made, but that there are outcomes from that. The hon. Lady went on to give a number of examples from parents who were totally bewildered to discover that the checks were not made. That is absolutely incredible, which is why her speech was so moving.

I dipped a little further into the Deepcut review by Nicholas Blake QC and I picked up another paragraph, with which I shall conclude my remarks on the amendment:

“The Review recommends that the Army applies, as a matter of best practice, no less rigorous checks on the background of its instructors who will supervise recruits and trainees under 18 than would apply in civilian life, particularly in a residential boarding school. Such information could no doubt be accessed through RMP files and personnel records. If the present state of the law proves an obstacle, the Review would recommend that military service is identified as an exception to the position of employers generally.”

Hon. Members can dig that strong recommendation out from the Deepcut review. We have a duty to consider this important exclusion from the Bill and the lack of checks that has resulted in some dreadful outcomes.

Derek Conway (Conservative, Old Bexley and Sidcup)

I must draw attention to an error in the amendment paper: the names of the hon. Members for St. Albans (Anne Main) and for Reading, East (Mr. Wilson) have been mistakenly added to amendments Nos. 137 and 114. I apologise for that; their names will be withdrawn. They do not sign blank cheques either.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am sorry that the hon. Member for Mid-Dorset and North Poole feels deflated because she does not have the support of my hon. Friends the Members for St. Albans and for Reading, East, whose names were added to her amendments in error. I shall mention her amendment before talking to amendment No. 137, correctly tabled in my name and that of my hon. Friends.

I have some sympathy with amendment No. 1, which goes to the heart of the problem of when children stop being children—particularly those with learning disabilities for whom special provisions need to be made when they reach 18 but will continue in various educational or support establishments. It is an anomaly why governors of such establishments, which deal with vulnerable people, are not covered by the Bill, whereas governors of other educational institutions are. I am confused about why the explanatory notes do not say what subsections (3), (4) or (5) are intended to achieve and why certain things have been left out of them. I have some sympathy with including additional educational institutions that the hon. Lady mentioned. I am interested in hearing what the Minister has to say in defence of keeping them out.

I have less sympathy with the hon. Lady’s amendment No. 114, although I endorse all her comments about the telling speech made by the hon. Member for Blackpool, North and Fleetwood. Problems with recruits in certain Army barracks are rightly the subject of ongoing investigations. The people responsible for those institutions need to get their act together and provide assurances to the House, those serving and those who may be considering serving in the forces. However, although I am not trying to pre-empt the Minister, the way in which the hon. Lady’s amendment is phrased could cause great confusion. She refers to

“a military training or educational establishment with recruits and trainees under 18”,

but because the Army can recruit from the age of 17, that would presumably mean that an entire training or educational establishment that takes on recruits, including senior Army people who happen to be part of it, would be subject to all the vetting and barring. Under no definition could those recruits be construed as vulnerable adults. Indeed, if they could be, what place would they have performing such a potentially dangerous task as serving in the military?

Kali Mountford (Labour, Colne Valley)

I take the hon. Gentleman’s point, but is it not also the case that the Armed Forces Bill, which is currently proceeding through the House, includes measures for the protection of new recruits to all the armed forces? Those who are under 18 would receive special protection under the provisions of that Bill, so the amendment is not necessary.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am not as familiar with that piece of legislation as the hon. Lady is, but it is greatly reassuring that it includes those checks and balances. They will remove the requirement for the amendment in its current form, which has enormous implications for a raft of military institutions that it is not intended to cover but that happen to take on a small number of recruits at the age of 17. As specific provisions of a dedicated Bill can be applied to them, the hon. Member for Mid-Dorset and North Poole might wish to reconsider the amendment.

Our amendment No. 137 is a probing amendment, which was largely instigated because the explanatory notes are unclear on what is covered under the definitions of “establishments”, in clause 8(5), and the governing bodies of such establishments. I want to give just one example of where an establishment might fall between two stools.

I recently visited a fantastic charity-run establishment in Surrey, a residential establishment looking after young people with severe learning and physical disabilities. Most of them were in wheelchairs and most had profound learning disabilities. The charity, which has been running for many years and is connected with Great Ormond Street, provides a fantastic, unparalleled service to those young people. Alas, there are not enough institutions like that.

That charity is not strictly

“an educational institution which is exclusively or mainly for the provision of full-time education to children”,

as specified by subsection (5)(a), however. By their very nature, those young people could not have full-time education. It is difficult to define a lot of their classroom time as education in the sense that we might understand. A lot of their daytime is spent on more therapeutic, health and other caring services, which is not strictly education. Some fantastic educational work is certainly done, giving skills to those young people in their disadvantaged circumstances, but such an institution would not necessarily fall within the definition in the clause.

I should make it clear that I have nothing but praise for that institution. I have absolutely no reason to think that anything bad goes on there, but there could be similar places, to which certain individuals might be able to find their way and have access to physically and mentally vulnerable children, whom they could then take advantage of. The purpose of amendment No. 137 is to add residential health institutions to the list of establishments in subsection (5), because places such as the one that I have described fall between a healthand therapeutic establishment and an educational establishment.

Amendment No. 137 is not phrased in the best way, and I am sure that the Minister has all sorts of criticisms based on the unintended consequences that it could cause. The point of it, however, is to ask him to reconsider the phrasing of the definition in the clause, because there is no clarification about that in the explanatory notes. Strictly speaking, some institutions would not be covered by that, so some people with bad intentions could gain access to a governing body and not be subject to some of the barring and vetting procedures to which they would be subject under other provisions in the Bill. Will the Minister look again at the definitions or give some reassurance that such establishments are covered by other definitions in the Bill that are not made clear in the clause?

Parmjit Dhanda (Labour, Gloucester)

The amendments extend the definition of regulated activity in relation to children to governors of further education institutions, military training or educational establishments and residential health institutions.

The Bill provides already that governors of institutions, primarily for the full-time education of children and of maintained nursery schools, must be subject to monitoring and requirements to check. So the bar will apply because the role of governor places the individual in a position of trust and gives them the opportunity of contact with children, and a role in appointing staff with significant contact with children.

Governors of FE institutions delivering full-time education, mainly or exclusively to children, will be subject to those requirements. Furthermore, if a governor of an FE institution teaches or supervises children frequently, or carries out another activity mentioned in paragraph 2(1) of schedule 3, he will be engaging in regulated activity and the same requirements will apply.

Hon. Members must ask themselves whether they want a catch-all system in which, for example, the instructor of an adult pottery class will be barred from running that class because they are on the children’s list. That would be the consequence of the amendment saying that all FE institutions should be treated the same.

I am sympathetic to the argument about the changing role of FE institutions, which is why they are included as controlled activity providers. Principals in FE institutions can put those safeguards in place using common sense and with an awareness of their staff and those in regular contact with children.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am still slightly confused by what the Minister is saying. He has given examples of part-time or voluntary pottery teachers, but subsection (3) refers only to members of a governing body of specific establishments, so I am not sure why his comments are relevant.

Parmjit Dhanda (Labour, Gloucester)

I am digressing and responding to the hon. Member for Mid-Dorset and North Poole who asked specifically about further education and regulated activity. However, I hope that I explained also the point about governors during my contribution. I hope that I made that clear, but I am happy to reiterate the point if I did not.

Amendment No. 1 would capture governors of all FE institutions, including those working at a working men’s college, for example, who deliver exclusively adult education, and place a duty on some institutions and governors when clearly inappropriate. The Bill should be proportionate. I accept that, as the hon. Lady said, the role of those institutions can change. If the roles change, activities considered regulated and controlled can change also. However, we want to get it right for the situation as it is at the moment.

Anne Main (Conservative, St Albans)

May I seek clarification? I understood that governors were covered because possibly they have some control over the appointment of staff. Would that view extend to trustees of charities that work with vulnerable children, which will have some control also over the appointment of staff and so have a similar role to such governors? As the Minister mentioned, very few governors teach children, but they do have control over the staffing and running of the school. Very few indulge in teaching, particularly as many are appointed by councils, which they represent. In that case, should we considering a wider pool of the people who have anything to do with appointments for vulnerable children or adults?

Parmjit Dhanda (Labour, Gloucester)

I am trying to stay as close as I can to the amendments. Some governors do have a role in selecting staff, which is why it is particularly important that they should be involved. The wider roles that the hon. Lady mentioned are covered in other parts of the Bill. I am happy to drop her a note about trustees if she wishes to follow it up.

I move to amendment No. 114, because it is important. The amendment refers to military training establishments, which do not have governing bodies, as they are under the control of a commanding officer. Unlike schools, they deliver training and education to adults, which includes 16 and 17-year-olds serving in the armed forces. Unlike other organisations in which individuals work with 16 and 17-year-olds in the course of the child’s employment, the armed forces will be specifically allowed by the Bill to check the scheme status of those who supervise or train under-18s. I hope that that satisfies some of the legitimate concerns of the hon. Member for Mid-Dorset and North Poole.

Amendment No. 137 would make it mandatory for governors of residential health institutions that provide children’s health care to be subject to monitoring. Not all health institutions have governors, and the governors of those that do might have no contact with children or any role in appointing staff. The Bill already requires governors of residential health institutions who frequently care for, supervise or carry out another activity mentioned in schedule 3(2)(1) to be subject to monitoring. We have carefully considered such settings. I hope that, taking all that into consideration, hon. Members will not press their amendments.

Tim Loughton (Conservative, East Worthing and Shoreham)

Perhaps I might respond on amendment No. 137. I am not entirely convinced by what the Minister said. He did not respond to the specific example that I gave. The amendment is designed not to cover various health institutions that happen to have governors but to expand the definition of an educational establishment that does not offer full-time education, as the clause puts it, “exclusively or mainly”.

The example that I gave might be rare, but there will be such examples. I do not think that the institution involved could be classified—one could certainly make a strong case that it should not be—as being

“exclusively or mainly for the provision of full-time education”.

There appears to be a kind of halfway house, which falls between two stools, that provides education but predominantly provides care, therapy and therapeutic services to severely mentally and physically disabled young people. I do not think that the Bill covers the governors of such institutions, which could be run as small private charities not subject to the normal attention from the local education authority, for example. We need to ensure that people cannot effectively hide in just that sort of institution, obtain a position of responsibility and then abuse.

Parmjit Dhanda (Labour, Gloucester)

I assure the hon. Gentleman that where the staff have the regular contact with children that he describes, they will be covered under regulated activity.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am grateful and not surprised by that assurance. The Minister is discussing staff, but the clause deals with governors. However, I just wanted to place that thought in his mind. The definitions are broad, and certain institutions that deal with the most vulnerable children will not necessarily be covered.

Both Ministers seem to want to contribute at this point.

Ivan Lewis (Labour, Bury South)

This is an important issue in terms of places where vulnerable adults are being cared for on a full-time basis. There might be ambiguity about whether they are in education, care or a combination of the two. The term “governor” is quite important. An educational institution is likely to be run by a board of governors. If it were more of a care-type institution, it is more likely that the equivalent would be charitable trustees or a board of people of that nature. Therefore the term “governors” is generally understood in the context of an organisation predominantly providing education, whereas if it were predominately about care, it would either be a board of management or a group of trustees.

Tim Loughton (Conservative, East Worthing and Shoreham)

I take the Minister’s point but he said “more likely” and “generally”, not exclusively. That leaves a raft of institutions that may not be covered. We need to ensure that all of them are covered. He refers purely to governors. As my hon. Friend the Member for St. Albans said, there are organisations run by other classes of people who are not governors. The reference is only to members of the governing body. Does that include charitable trustees or directors of, for example, a charitable company?

I am a director of a charitable company that is considering taking over the management of an arts education facility, which has been provided as a section 106 gain to the local authority. I wonder—now I think about it—whether I would be covered. I am part of the governing body but I am not a governor. We are not offering mainly, or exclusively, full-time education to children. However, I will be in a position, if we take over management of that facility, to engage members of staff—who may or may not be subject to vetting procedures—who will be opening up the premises and involved with children. That is part of our charitable trust remit. On the basis of what is in this Bill, I am not sure whether I and fellow directors of this charitable company, who are the governing body effectively, will be covered. Therefore, many anomalies are still creeping in—which the Minister is now going to allay.

Parmjit Dhanda (Labour, Gloucester)

When I write to the hon. Member for St. Albans—I will copy in the hon. Member for East Worthing and Shoreham—I will clarify where it is in the Bill. What I can confirm is that if he is a trustee of a charity and that charity is involved in regulated activity, he too will be covered.

Tim Loughton (Conservative, East Worthing and Shoreham)

Strictly speaking, I am a director of a charitable company limited by guarantee. I am not strictly speaking a trustee. Am I covered on that basis? I am directly covered as a director of a charitable company. The Minister is indicating that he believes so. It has gone from yes to believe so.

The point is that there are many question marks being thrown up. That is not helped by the fact that there is no mention of any of this in the explanatory notes, which are particularly brief in this area. I will not press my amendment to a Division: in any case, it is not the lead amendment. I will defer to the Liberal Democrats on that.

However, we need some extra clarification. It might come in one of the many letters that the Minister has been promising to myself and other Committee members all week—he is going to have a very full list and we are going to have full postbags. Some more thought needs to be given to that and some clarification, if not some amendments, needs to be introduced on Report. Does he wish to intervene before I sit down? Otherwise I will say my piece and hand over to the Liberal Democrats.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

On further education, I can envisage a situation in which one might, for example, reach40 per cent. as the total proportion of students at an FE college who are under 18, or under 16, or who have special needs or who are adults with learning disabilities. It would easy to reach that 40 per cent. mark. We might say that there should be a majority, but a significant minority would be just as important. Nevertheless, I shall not press the amendment at this stage, although I am not happy about the trigger—the threshold—when one slips from one definition to another.

Amendment No. 114 was always intended to be a probing amendment. It was difficult to find a suitable opportunity to address the point, but I felt that it should be pressed, as we had not received any answers on Second Reading. I make no apology for pressing it, because there was no response to what I thought was an excellent speech on an issue of national significance that should be considered at all possible levels. There will be more and more trust situations—the responsibilities of the trustees of new trust schools may need to be clarified, for instance. So I concur with the hon. Member for East Worthing and Shoreham that notes are required, and I look forward to receiving a copy of the Minister’s letter on the issues. With that, I beg to ask leave to withdraw the amendment.

Clause 10

Sarah Teather (Liberal Democrat, Brent East)

I continue to have some concerns about the breadth of clause 10. The sentiments underlying the clause are similar to those underlying clause 9, except that clause 9 relates to people who are barred rather than those subject to monitoring. As drafted, the clause would criminalise mistakes, which I do not believe is the Government’s intention. I suspect that, particularly as the legislation beds down, mistakes will be likely, because there are a number of points of potential confusion. For example, there is the question of whether therapy is a regulated activity. Therapy provided to a child is a regulated activity. However, under clause 14(1)(a), complementary and alternative therapy are listed as areas of exemption from the need to make monitoring checks for vulnerable adults. Meanwhile, therapy is listed as a controlled activity in relation to both children and adults, requiring guidance from the Secretary of State before engagement in it. Clauses 18 to 20 deal with that.

The situation is confused. As I said on a similar matter earlier, the definitions are not clear and I suspect when the legislation first comes into force there will be a high potential for mistakes. Serious misconduct can lead to disciplinary action or dismissal, but there is a question mark over whether it is appropriate to deal with it in legislation. I wonder whether the Government might consider an amendment on Report to narrow the definition so that there would have to be knowledge of monitoring. That would catch fewer people.

Parmjit Dhanda (Labour, Gloucester)

With your permission, Mr. Conway, I shall leave the discussion on clause 14 until we reach clause 14. As to use of people who are not subject to monitoring, many of the arguments were made in discussing an earlier clause. The Government wish to err on the side of caution and our arguments remain the same.

Standing Committee B

Clause 11

Eric Martlew (Labour, Carlisle)

With this it will be convenient to discuss Government amendments Nos. 150 to 153 and 171.

Maria Miller (Conservative, Basingstoke)

I want to take this opportunity to raise a couple of points with the Minister. Although these are technical amendments, they raise some issues that are worthy of a little more substantive debate. Regulated activity providers are sanctioned if they do not check that an individual is monitored when taking him into employment. Obviously, the penalty is onerous. The clause also permits employers to employ individuals without checks on an occasional basis; we have had that debate and we may have it again so I will not delay the Committee by raising the issue now.

However, there is another provision whereby an employer can take an individual on, and that is if he obtains written confirmation from another regulatory provider who employs the individual in a regulated activity. Basically, the first employer provides an underwriting of the fact that that individual is monitored and is eligible for employment. I am not at all clear why amendment No. 149 has been tabled. It seems to produce an additional complication in terms of the employment structure of an individual who may be taken into a monitored environment where a particular employer has not made a check against his barred status. Could the Minister take the opportunity to look at that?

My second point relates to another complex issue in the clause. Obviously we are looking to create a workable system, but the clause is very complex. As I said, an existing employer can endorse an employee’s suitability for another employer. Could any further detail be added in this part of the Bill about when the initial employer’s liability ends in terms of the reference that he has given that employee to go into another working situation where he has not been checked for monitoring or barred status?

It is not entirely clear from the Bill what happens when, for instance, an individual is barred after an initial reference has been given. Would the original employer have a duty to inform the second employer of the change in barred status? I can entirely understand why it would be necessary to give employers the ability to give these types of reference, but given that people’s barred status can change, can the Minister clarify whether there will be an obligation on employers who have given such undertakings to ensure that other individuals are kept up to date with any changes that occur?

Parmjit Dhanda (Labour, Gloucester)

May I take that last point first? It will not be incumbent on the employer to do so. The Independent Barring Board and the Criminal Records Bureau will inform future employers. As we discussed on Tuesday, it is the role of the employer to refer information to the IBB if that person has been sacked for inappropriate behaviour, for example involving a child.

The hon. Lady requested a little more information on amendments Nos. 149 and 150, which ensure that the intended policy on the requirement to check is correctly drafted in the Bill when a person can be regarded as engaging in a regulated activity for two different regulated activity providers: for example, a builder on a school site who may be there with the permission of both the school and the construction company. The hon. Lady was alluding to the overlap between the two.

One of the regulated activity providers must be able to rely on a written confirmation from the other that a check has been made on the person instead of having to make his or her own check. Amendment No. 149 is a drafting change to remove a perceived ambiguity from the previous provision. Amendment No. 150 makes it an offence for the other regulated activity provider to give a false written confirmation, thus closing a loophole in the Bill, which is common sense. Amendment No. 151 removes an unnecessary reference to a clause, which happens to be clause 11(6)(a), in clause 11(9).

On amendments Nos. 152, 153 and 171, it may help if I explain some of the Bill’s provisions. Clause 11 requires an employer to obtain relevant information within the meaning of schedule 4 either through an enhanced disclosure or by making a check under schedule 4. Clause 39 currently allows the Secretary of State to prescribe sectors where the ability to make a schedule 4 check is removed and the regulated activity provider is required to have obtained an enhanced disclosure before employment can begin.

The amendments will allow the Government to prescribe sectors where an enhanced disclosure must be applied for but where a preliminary check showing that the individual was monitored and therefore not barred would allow employment to start in the first instance while the regulated activity provider was waiting for the enhanced disclosure, which I am sure the Committee will see as common sense. The mechanism for making the preliminary check will be prescribed in regulations and we will consult on the circumstances in which the checks will be used.

Maria Miller (Conservative, Basingstoke)

I know that this issue is terribly complex and I do not want to detain the Committee, but why is amendment No. 149 necessary? I do not understand why it has been proposed.

Parmjit Dhanda (Labour, Gloucester)

I thought I had explained. It is to ensure that the intended policy on the requirement to check is correctly set out in the Bill, because it was not in the first instance. That is obviously not clear enough for the hon. Lady, but I am happy to go back and have another look at amendment No. 149 if she feels that it need not be there at all. I believe that it should, but I will happily take another look at it before Report.

The amendments will allow the vetting and barring scheme to continue existing provisions such as the “POVA First” check, which are used to minimise recruitment difficulties in sectors where enhanced disclosures are currently mandatory. I therefore ask hon. Members to accept the Government amendments.

Clause 13

Clause 14

Ivan Lewis (Labour, Bury South)

I beg to move amendmentNo. 58, in page 9, line 15, leave out paragraph (a).

Eric Martlew (Labour, Carlisle)

With this it will be convenient to discuss the following amendments: No. 59, in page 9, line 16, leave out paragraph (b).

No. 60, in page 9, line 19, leave out paragraph (c).

No. 138, in page 9, line 25, leave out ‘the control or management of’.

Government amendments Nos. 155, 156 and 175.

I call Mr. Dhanda.

Ivan Lewis (Labour, Bury South)

If only it were Mr. Dhanda—but I am here instead. [Interruption.] The hon. Member for East Worthing and Shoreham (Tim Loughton) says that that is not the right attitude; I hope that, by the time I have finished, he will still hold that view. I am delighted to welcome you to the Chair, Mr. Martlew. I shall speak first to the Government amendments. The Opposition can then speak to their amendments, and I shall respond.

Clause 14 lists the regulated activity providers exempted from the obligation of making a vetting and barring check under clause 11 and from ensuring that those engaged in regulated activity are subject to monitoring. Committee members will appreciate it if I outline the clause’s importance. It is crucial that the new scheme should offer flexibility, especially in sectors for which the concept of central vetting will be new, as is the case with many of the sectors exempted under clause 14. Our original intention was to give those sectors the opportunity to phase in checks, as appropriate to their individual services, and give them the freedom to decide internally which members of staff should be vetted. That is why we made provisions under clause 14 to remove exemptions, via delegated legislation, in relation to those groups listed in clause 14(4). That would allow time for the scheme to bed down and enable us to extend mandatory vetting in response to service requirements. However, following debate in another place, we are seeking to make our intentions in that regard clearer in the Bill. I expect that will be welcomed by Committee members.

Amendment No. 155 introduces a sunset clause in respect of paragraphs (d) to (g) of clause 14(1). The paragraphs cover organisations providing recreational, social, sporting or education activities, educational courses, the management of housing and housing-related support services. The effect of the clause will be that those paragraphs will no longer have effect once a period of three years, from the date on which the provisions are brought into force, has elapsed. Once that happens, clauses 10 and 11 will apply to the regulated activity providers with the result that they will commit an offence if they do not carry out a scheme status check and ensure that those whom they employ to carry out regulated activity are subject to monitoring. Individuals who carry out this work will be committing an offence if they are not subject to monitoring as set out in clause 8.

As a safeguard, an order-making power has been included in amendment No. 175. It is there in case there was a problem that resulted in the requirement to check having serious operational consequences for service delivery, and if the exemption needed to be extended for an extra period.

We are all aware that the Bill is a big step forward for the protection of vulnerable adults, bringing about a significantly larger and more diverse work force than ever before. However, as the order-making power is subject to affirmative resolution, the Government and Parliament would need to consider the impact on those receiving such services and make a carefully balanced decision that reflected the risks associated with not imposing a mandatory requirement, and the risks of loneliness and isolation that may be experienced by those whose services were withdrawn. Again, I hope that that will reassure Committee members. I stress, however, that such a power would not be exercised lightly, given the important context in which we are working.

Amendment No. 58 further refines clause 14 by removing the exemption for complementary and alternative therapists, whom we recognise have the opportunity for intimate and personal contact with vulnerable adults. That should be welcomed by hon. Members of both Opposition parties, because they have tabled the same amendment. [Hon. Members: “First!”] They say they did it first, and I am happy to give them that credit. However, I think they knewour intention, given that we had reflected on representations from the other place and organisations outside the House. With that, I urge the Committee to accept the Government’s amendments as being common sense and which offer a sensible way forward and reflect appropriately the debate that was held in another place.

Tim Loughton (Conservative, East Worthing and Shoreham)

Welcome back to the Chair, Mr. Martlew. We certainly welcome the amendment, not least because the Minister admitted that it was ours. As is always frustrating, the way parliamentary procedure works is that the Government hijack good ideas from the Opposition—in this case blatantly—by inserting their name, which automatically goes ahead of the Opposition Members who have done all the work in the first place. However, we are happy that the Government have done so.

The subject came up in another place, where there was widespread agreement that the complementary or alternative therapy get-out could cause a problem for a lot of vulnerable people. The Minister has mentioned massages, but there is also aromatherapy, for example, which is increasingly available for mental health patients. Many types of vulnerable people will have increasing access to complementary or alternative therapy providers. It therefore seemed appropriate that they should be covered by the checks and balances in the legislation and not made exempt, as subsection (1)(a) would have done, so we certainly support the amendment.

Amendments Nos. 59, 60 and 138 are probing amendments. The issue that they address was extensively debated in another place, where the Opposition queried the need for the clause at all. Subsection (1) contains a lengthy list of exemptions, of which only one will now be knocked out. Many noble Lords took the view that we should include as many people as possible, subject to the vetting and barring procedures, and if there was then a problem with trying to include too many people in one go, the system could be phased in, so that we could see at a later stage who should be exempted, rather than the other way round. Why should so many different classes of people, many of whom will be dealing with vulnerable people, be exempted?

We are concerned about the judicial processes, and about the prison and probation services in particular. We do not understand why subsections (1)(b) and (1)(c) should deal with them in a special way. Paragraph (b) seeks to exempt those involved in the control or management of persons detained in lawful custody and paragraph (c) seeks to exempt people in the probation service. However, as my noble Friend Baroness Buscombe said when similar amendments were debated in another place:

“Why, for example, are young offenders’ institutions so different from other residential institutions such as boarding schools or care homes? Of course the rules will be different, but the proximity between those in authority and their residents is quite similar, in which case I find it difficult to accept that we are talking about unique services.”

In response to those amendments in another place and the point about including the Prison Service and the probation service, Baroness Royall spoke in rather general terms:

“A blanket approach to vetting arrangements would not sit comfortably within either service’s operating arrangements.”

Why not? It would be interesting if the Minister could elaborate on that, because his noble colleague failed to in another place.

Baroness Royall went on to say:

“The vast majority of staff working in close contact with vulnerable adults in both the prison and probation services will be checked”—

but again, not everybody. How vast is the vast majority? She went on to say that

“staff providing support to prisoners in a group setting may not be checked.”

When is a group big enough that they should be exempt from being checked because, presumably, enough people are watching out? What about when those groups become smaller groups, which become pairs under the control of that person? Again, the provision is fraught with potential problems. Despite all the reassuring words of the Minister in the other place, we have not really had the assurances on paper.

In the conclusion to the debate on the amendments, Baroness Royall said that she acknowledged:

“This is a matter of discussion among government departments”—[Official Report, House of Lords, 24 May 2006; Vol. 682, c. 879-884.]

and that she very much hoped that the Government would be able to find an acceptable solution on Report. From what I can see, that did not happen. We still have an elaborate list of exemptions in clause 14.

We need some more convincing from the Minister on, first, why all the exemptions in the clause are absolutely essential and, secondly, why paragraphs (b) and (c), which deal with vulnerable people in the prison and probation service, should be specifically included. That is why we have tabled amendments Nos. 59 and 60 to strike out those two paragraphs. Given that they have shown willing with paragraph (a) on complementary therapy, perhaps the Government could apply the same logic to the prison and probation services.

One also must bear in mind the high incidence of mental illness among prisoners. It has been estimated in various studies that some three quarters of prisoners in our prisons suffer from some form of mental illness. Those are more vulnerable people than the rest of the population, in the unusual surroundings of prison, which in many cases is unfamiliar. We need the checks and safeguards to apply to them, too. The Minister must justify why the exemptions should be included.

Amendment No. 138 deals with paragraph (f). At the moment, somebody who is

“responsible for the control or management of the provision of housing (including sheltered housing)”

will be exempted. There is a distinction to be made within that qualification. Clearly, it would not be appropriate to include people on the board of a social housing trust, or councillors on a housing committee responsible for council housing stock, who make decisions about the provision of housing and what sort of people can go into that housing, but who do not come into contact with those people at all, or certainly not regularly. One would not want to include such people, quite rightly. That is why we would retain the reference to those who are responsible for the general provision of housing.

I cannot see why there should be an exemption for those who would be covered by the phrase “the control or management” of housing. We could be talking about a warden of a sheltered housing project—the paragraph specifically uses the phrase “including sheltered housing”. Again, we are considering vulnerable, in this case predominantly elderly, people in sheltered housing accommodation, for whom a resident warden is in a responsible position. That warden has a great deal of control and influence over the vulnerable people living in that sheltered accommodation, will have access to their flats, and a master key to get into those flats. In many cases, the warden will be the person responsible for responding to any alarm buzzers that are installed.

Unless my reading of the paragraph is wrong—I would be delighted to be corrected; it is a probing amendment—we are talking about exempting people in positions of responsibility who have day-to-day contact with vulnerable, elderly, frail people, who are able to gain access to their private accommodation and who are privy to much private information about them.

I do not see why a housing manager of a sheltered accommodation block—a warden or whatever other description one might apply to someone in that position—should be exempted, because they, more than people in many of the other categories that we have discussed, are able to gain access to vulnerable people. We are all aware of cases in which elderly people have been abused in some way or taken advantage of by people in a position of trust, who have access to their property and to their accommodation.

We still need to be convinced that the clause is necessary, and specifically why the three categories of people in paragraphs (b), (c) and (f) should be included. It strikes me that those people will have more access than many others to the sort of vulnerable people, both children and the elderly, whom the Bill seeks to protect.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

We strongly support Government amendment No. 58. We, too, took account of much of the debate in the other place. I understand that extra meetings were arranged to discuss the issue, and that it truly wasa cross-party discussion. I am pleased at the Government’s responsiveness, as a number of organisations were most concerned, particularly given the range of therapies that can be involved. I share the concerns raised by the Conservative party. Indeed, I question the requirement for the clause, or at least subsection (1). I should be grateful if the Minister said again why it is so important.

I have questions about some of the categories. Paragraph (b) refers to people who are “detained in lawful custody”. I imagine that, one way or another, checks would be made on the full-time staff. Some time ago, I visited Feltham prison, and I was impressed with the number of volunteers who, for example, were helping inmates with their reading skills. Close contact was obviously important.

I recall that one inmate could write only in capital letters, and the support that he was given by one volunteer was certainly frequent—it was at least once a week. Although I was impressed with what I saw, I am worried about those who could get that sort of position. Should there not be some monitoring or checking up on volunteers who go to such institutions so frequently? I shall not repeat what the hon. Member for East Worthing and Shoreham said about that.

On paragraph (c), I was thinking about the management of community sentences. Again, it may not be full-time probation staff who are involved in the projects. What is the Minister’s response to that example? The more one looks at it, the more one can pick examples that cause concern.

I would be grateful if the Minister explained exactly what is meant by paragraph (e). What is a “prescribed description”? It sounds as if it should be a monitored activity, where it applies wholly or mainly to vulnerable adults, but there may be an explanation. I concur with the concerns about sheltered housing. The provision may need narrowing, particularly in respect of sheltered housing. I share the concerns about that. Again, the Bill is quite stringent, with all those criminal penalties at one end of the scale. However, if there are loopholes, we have to wonder what we are doing here. Therefore, I hope that the Minister can reassure us on those points.

Ivan Lewis (Labour, Bury South)

The debate has demonstrated that, to some extent, these issues will always be a matter for judgment and timing. They need to be looked at sector by sector, organisation by organisation, groups of paid and unpaid staff by groups of staff. It is not a one-size-fits-all approach.

It would be nice to believe that we could make this neat and tidy. Having considered this Bill, along with other colleagues, I think that it is incredibly hard to make it neat and tidy. An element of judgment has to be made that is linked to proportionality, particular sectors and activities.

We also need to take account of existing checks that are made in certain sectors in which there are well established processes and procedures. In other sectors, we are starting from a very low base, if any base at all. It is right to say that it is not a one-size-fits-all Bill. Judgments are having to be made all the time about the nature of the protection that is being offered and the responsibilities that are placed both on employers and individuals.

I turn to the Opposition’s amendments. Amendment No.138 would remove the reference to

“the control or management of”

housing. That appears to remove the exemption in relation to those organisations that manage housing services but that are not the provider of such services. In many cases, the provider or the owner of housing stock subcontracts out the management of that housing stock to another organisation. Many registered social landlords let and manage property of which they are not the legal owner.

Therefore, we believe—this may be an unintended consequence of the wording and not necessarily related to the principle that the Conservative party is trying to support—that the amendment would make checks mandatory for those individuals working with organisations with day-to-day responsibility for the management of housing services, where those services are contracted out. However, as drafted, the amendment would also have the effect of retaining optional checks for individuals working in local authority housing services, for example, which manage their own housing stock. That would create an inconsistency that we want to avoid.

At this stage, we wish the exemption to apply across the sector. It is crucial that the scheme offers flexibility and allows those services in which the concept of central vetting will be new the time to phase in checks as appropriate to their individual services. That is the case for all providers of housing services. I must say to the hon. Gentleman that this Bill has established that it is legitimate to reflect on the need for a phasing-in period in some sectors—hence the sunset clause. Having considered the matter carefully, we believe that housing is one example of that.

We agree with the hon. Gentleman that a warden in sheltered accommodation is one example of the type of worker who might have access to vulnerable people on an ongoing basis. However, having looked at the sector as a whole, the judgment that we have made is that it is more desirable and realistic to phase this in over time. That is the difference between us. There is no difference of principle. It is that the hon. Gentleman seeks through the amendment—even though there is the unintended consequence that I have referred to—to make this happen from day one. We believe that a phasing-in period is needed.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am not so concerned about a phasing-in period and the timing. Despite what the Minister read out, I still do not know which part of the Bill covers a housing warden of a sheltered accommodation block. This part of clause 14 appears to exempt them, now or at some stage in the future.

Ivan Lewis (Labour, Bury South)

Clause 14(1)(d) to (g) covers organisations providing the management of housing and housing-related support services, where the sunset clause would apply. Unless I have missed something, the phasing in would apply to someone working as a warden in social housing. The only difference between us is at what stage in the process such a worker should be covered by the rules.

Tim Loughton (Conservative, East Worthing and Shoreham)

The Minister is rather uncertain and I am even more uncertain now. I want to know where in the Bill it states that the warden of sheltered housing accommodation is subject to vetting and barring procedures, because I cannot find it. Will it be in regulations, and if so, when?

Ivan Lewis (Labour, Bury South)

I refer the hon. Gentleman to clause 14(1)(d) to (g). Included in that list are recreational, social, sporting or educational activities or courses, and the management of housing and housing-related support services. Unless I am missing something, the warden of a sheltered scheme would, in due course, fall under the jurisdiction of the Bill in that context.

Tim Loughton (Conservative, East Worthing and Shoreham)

Is it not the case that the list can be changed at any time, so the exemptions on the list may, or may not, actually come into effect, in however many years’ time? Strictly speaking, that is the case, is it not?

Ivan Lewis (Labour, Bury South)

I assure the hon. Gentleman that there is absolutely no intention to change the list. The difference between us is that the hon. Gentleman is implying, despite the unintended consequence to which I referred, that he would like the measure to be applied from day one. We are saying that, in the context of the housing sector generally, it needs to be phased in over time, which is why the sunset clause applies. He should accept that, as that is what the measure to which I referred states. He suggested that I or any other Minister may have an agenda to remove that item from that list but that is untrue. Elsewhere we have the power to revisit these issues under an affirmative resolution and Parliament could have another look at them, but sheltered housing and the role of wardens are specifically covered. Clause 14(1)(f) states, in brackets, “including sheltered housing”.

I genuinely do not understand the hon. Gentleman’s concerns on this occasion. He normally makes salient points, although they are sometimes at variance with the Government’s position. I do not understand the point he is making, so I will move on. If he wishes to come back, or to press the amendment to a Division, he will have the opportunity to do so.

Amendments Nos. 59 and 60 would remove from clause 14 paragraphs (b) and (c) which relate to the Prison Service and the national probation service, which remain exempted from the Bill. Those services provide a wide range of services to adult offenders and require the flexibility to specify and undertake the vetting requirements that are relevant and proportionate to their unique businesses. I reassure hon. Members, especially the hon. Members for Basingstoke and for East Worthing and Shoreham, who tabled amendments Nos. 59 and 60 calling for the removal of the services in question from the clause, that from the outset all prison and probation officers, and workers who currently receive a Criminal Records Bureau check and will be working with young offenders in any capacity, will be covered by a CRB check. That covers the point that the hon. Member for Mid-Dorset and North Poole (Annette Brooke) reasonably made. Anybody in those categories will be checked.

The exception, on which we need to focus, will provide discretion for employers to check other categories of workers, such as volunteers and certain psychological staff, based on a risk assessment. I shall give a specific example. Volunteers involved in counselling such as bereavement counselling may be checked, but others such as those who give regular legal advice to a group of prisoners with prison officers always present might not require checks. That is a good, tangible example and I hope that it reassures the hon. Lady on why we feel there needs to be discretion based on a risk assessment.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I thank the Minister, because he is addressing my concerns. I appreciate that and understand the matter better. Will there be published regulations? How will the details and precision that he is giving us be conveyed to the relevant bodies?

Ivan Lewis (Labour, Bury South)

We have received reassurances from the Prison Service and the probation service on what will happen as a consequence of the passing of the Bill. I am sure that we can provide the hon. Lady with written assurances that will make her feel that she has something beyond my verbal assurances in Committee. I am willing to provide that.

Maria Miller (Conservative, Basingstoke)

I am not entirely sure whether what the Minister has outlined will make the situation in the settings in question any different from that in other settings. Presumably a legal adviser coming into a prison under the supervision of a prison professional would fall into the Government’s “occasional” category. I am not sure whether he is giving us a strong argument for making an exception in the case of incredibly vulnerable groups.

Ivan Lewis (Labour, Bury South)

The hon. Lady may not be entirely sure, but following serious discussions with the probation service and the Prison Service, and having weighed up their description of the range of probation support activities that take place in prison, we have made a judgment. We have been given tangible examples of situations in which we should enable those in the system to make a risk assessment and judgment.

Maria Miller (Conservative, Basingstoke)

Why not apply it in other circumstances?

Ivan Lewis (Labour, Bury South)

That is a matter of judgment. That is what Government and Opposition spokespersons do all the time—they make judgments on difficult matters. One of the arguments that we always hear from the Opposition parties is that we need to allow people working on the front line of public services, at the sharp end, to make more judgments and use more discretion, with fewer centrally imposed diktats and instructions. Now we have had serious discussions with the Prison Service and the probation service, and they have provided us with examples of why we should adopt an approach that allows risk assessments. They have persuaded us, and we ought to accept that their assessment of the situation is correct.

I hope that I have reassured hon. Members as to why we have reached our judgments on the different circumstances in question. On the question of housing, it is a matter of phasing in over a period of time. There is no difference of substance between us.

On the question of probation service and Prison Service workers, some of the concerns expressed by the hon. Member for Mid-Dorset and North Poole have been allayed as a consequence of my contribution.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I thank the Minister for his response, because it has been helpful. I asked one further question, which was about the meaning of paragraph (e). Before we leave the issue, I should like to hear about any further discussions that might have taken place behind the scenes.

Ivan Lewis (Labour, Bury South)

I shall do my best to describe paragraph (e) for the hon. Lady. “Prescribed description” means that the Secretary of State will prescribe the types of course in regulation. The regulations might prescribe particular skills courses, for example. That is what it means, if that is any clearer for her. I am more than happy to write to her with an even clearer and more vivid explanation than the one that I have just given—if that is at all possible. However, on that basis, I ask the Opposition to consider not pressing their amendments.

Tim Loughton (Conservative, East Worthing and Shoreham)

It has been an interesting debate, made no easier by the Minister’s uncertainty about the territory on which he was treading at one stage. It confused various hon. Members, not least myself.

The Government’s sunset clauses are welcome, and unusual. The Opposition usually propose sunset regulation, so those clauses are welcome, but we have doubts about the Government’s ability to stick to the suggested timetable, given the arbitrary, hotchpotch nature of the areas covered, which we believe should not have been included, nor should they have been subject to exceptions or to deferment of the incoming criteria.

I take the Minister’s point about sheltered housing wardens, because they play an important role. He has made it clear in our discussions that they will be included in the criteria, albeit at a later date. We hope that the timetable will be adhered to and that the terminology will not change during that time.

I am less convinced by the Minister’s refusal to consider amendments Nos. 59 and 60 concerning the Prison Service and the probation service. Opposition Members have not been swayed by the reasons why those services should be treated differently, given the nature of the vulnerable people with whom they deal. To try to reassure us, the Minister cited various discussions and agreements with the work force in those services, but we do not know the nature of those discussions, the undertakings given or whether those professionals feel able to deliver. We are taking a lot on trust.

It would not be beneficial to ask the Committee to vote on our amendment, but the Government’s provision must be fleshed out on Report. The hallmarks of this Bill have been the lack of definition and the confusion among Ministers about who is included, how and when, to the extent that they have promised us a record number of letters. I do not mean to take anything away from them, as the Bill is highly technical and legalistic, and it covers largely uncharted territory, but that makes it all the more important that in Committee we receive real-life, specific examples of how it is—or is not—likely to work in practice.

Those who seek to abuse, particularly paedophiles and suchlike, are exceedingly devious and will find ways of getting round the law and of ingratiating themselves with trusting and vulnerable people. We have heard many examples, and it is essential that the legislation is crystal clear to those who are responsible for enforcing it and for monitoring people who are in positions of trust with vulnerable groups of adults and children.

Clearly, we are in the hands of the Government on their amendments, but we shall not press our amendments at this stage.

Clause 15

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 139, in clause15,page10,line10,after ‘body’ insert

‘, a provider of services contracted by an NHS body, or single-handed provider,’.

Eric Martlew (Labour, Carlisle)

With this it will be convenient to discuss the following amendments: No. 140, in clause15,page10,line10,after second ‘employment’, insert ‘, paid or unpaid,’.

No. 141, in clause15,page10,line19,at end add—

‘(h) Mental Health or Social Care Trust.’.

Tim Loughton (Conservative, East Worthing and Shoreham)

Again, these are probing amendments to try to get to the definitions of exactly who is covered within various health-related activities. We have dealt mostly with educational establishments until now, and these three amendments are designed to ensure that just about every health provider who should be included is included, and that that is clear in the Bill. Again, this is a bit of a grey area. I am sure that the Minister will be able to give those assurances, but we need them on the record.

Amendment No. 139 would add a further qualification of “NHS body”. The national health service is an increasingly complicated and fragmented body these days. We know that it relies on a good number of private, independent and not-for-profit providers from outside for operations and other services. There are shortcomings in the explanatory notes, because the note to clause 15 does not mention that. The only body it refers to is NHS Professionals.

My reading of subsection (2) as drafted is that the only people covered are those who are directly on the payroll of a hospital, primary care trust and so on. If that is so, what is the status of a private firm providing cataract operations and other providers of therapies, such as physiotherapy, in a hospital, domestic or surgery environment who are not directly on the payroll of a hospital or primary care trust but have been contracted by that hospital or primary care trust for a certain number of services? The amendment would also cover single-handed employers, so I am not seeking to cover only firms that provide those services and would be responsible for their own staff. There are occasions when operations and treatments are contracted out to a single-handed provider.

We know what certain single-handed GPs in the form of Dr. Harold Shipman can get up to. He did not just abuse his patients, he killed them. Obviously, that is one of the most extreme examples, but some single-handed providers contracted by certain health trusts are not GPs and would not be covered by the safeguards that GPs and others in the NHS have.

In the mental health field, freelance consultants tend to offer various cognitive behavioural therapies and other forms of talking therapy and counselling. They are not employed by an NHS trust, but are contracted by it—if they are lucky enough to be able to get hold of one—to provide those services. The clause does not appear to cover such individuals, and I think that it should. What is the difference when that private counsellor is contracted to a mental health trust by an employee of the trust and is providing identical services? Will the Minister justify why they should be treated differently?

Amendment No. 140 is a probing one; I am not calling for an enormous extension to the number of people covered by the provisions, but a question mark hangs over unpaid workers. The NHS relies on a great many volunteers—leagues of friends and people who regularly offer their assistance to vulnerable people. That assistance can include counselling services and driving minibuses to take vulnerable people to and from their homes. We need to be assured that, without making it so onerous and prescriptive that people would not want to volunteer—we must be very cautious about that—there will be checks and balances.

I have qualified employment therefore as “paid or unpaid” because those people are retained effectively by a hospital or PCT, but strictly speaking are not employed. What facilities are available for the monitoring of volunteers and other unpaid people who offer their services, and who have frequent and continuing contact with vulnerable groups of people?

On amendment No. 141, I am sure that there is a perfectly clear explanation, but it is not in the Bill or the explanatory notes. Seven NHS bodies are defined but there is no reference to a mental health or social care trust. Perhaps by a definition somewhere in the Bill of which I am unaware, such bodies come under a special health authority—I do not know. Either way, they need to be included, because patients of those particular trusts are probably the most vulnerable people of all in the NHS. So the amendment is a probing one to see how a mental health trust, or a social care trust—many are increasingly becoming known as the latter, given the joint operation between social services and mental health trusts—will be covered in the Bill. One would expect them to be in the list in subsection (3), but they are not.

Sarah Teather (Liberal Democrat, Brent East)

Does the hon. Gentleman agree that it is particularly important to ensure that social bodies are covered, given the media coverage last week of patients being abused on wards?

Tim Loughton (Conservative, East Worthing and Shoreham)

The hon. Lady makes a pertinent point. The report focused on the abuses in Cornwall and the most unacceptable practices towards people with learning disabilities. In response to the revelations in that report, we asked how the Bill would safeguard the interests of people who had been abused, and about the Government’s investigation on whether such abuse is more widespread than we know.

Sarah Teather (Liberal Democrat, Brent East)

I was actually referring to the Mind report about women being sexually assaulted on mental health wards.

Tim Loughton (Conservative, East Worthing and Shoreham)

There has been a plethora of worrying reports in the past week. One of them dealt with learning disabled people in Cornwall. Another was the Mind report, which has been sat on by the Department of Health for no good reason for the past eight months, since November 2005. It contains a catalogue of at least 100 cases—those are just the ones we know about—of rape and abuse of patients in mixed-sex mental health wards. The Government said some 10 years ago that they were firmly against such wards and that they were looking to phase them out, but mixed-sex wards remain prevalent in the national health service—particularly in mental health trusts, and they have become increasingly prevalent in those trusts in the past 12 months because of the financial pressures in the NHS that are having a disproportionate impact on them.

I have visited a number of mental health establishments in the past few months and there are a number of examples of such establishments that now have mixed-sex wards whereas previously they at least had some division between men and women. In those establishments that still claim to have division of wards, the divisions amount to a flimsy curtain or screen. Such a ward cannot seriously be taken as a single-sex ward on any reasonable definition.

Two reports have come out in the past week; or rather, the existence of one of them has come out, though it has yet to be published—I hope that the Minister will publish it soon. Given what we know from them about the abuse that is happening, it is important that the legislation protects people in mental health establishments, who are the most vulnerable of all, and those with learning disabilities, both of which groups are currently being threatened. Will the Minister therefore confirm that such people will be covered by the Bill, and that the reason why mental health and social care trusts are not mentioned expressly is that they are covered either in the seven definitions of NHS bodies or elsewhere in the Bill?

Ivan Lewis (Labour, Bury South)

When the hon. Gentleman said that Ministers were a little shaky on the earlier clause, it was he who failed to spot the specific reference to sheltered housing. I shall not hold that against him, however, because I acknowledge that he makes a legitimate point in amendment No. 139. The amendment concerns contracted-out staff who work for an organisation that provides services to the NHS. I shall go away and examine the point and present the Government’s view on Report. We should consider not just those who are directly employed by the NHS but those who provide services to the NHS through other organisations. I do not know whether we can apply the same rules, but the point is a legitimate one.

Amendment No. 140 is designed to clarify that the arrangements apply to both paid and unpaid staff. We have not sought to make the distinction in the clause or anywhere else in the Bill. We believe that “regulated activity” applies regardless of whether it is done formally or informally, so we do not believe that the amendment is necessary.

The first point that I shall make on amendment No. 141 is that we are united—across the House—in our outrage at what happened in Cornwall. At the beginning of the 21st century such occurrences are completely unacceptable, and the abuse and exploitation of people with learning disabilities in such settings is unforgivable. It was significantly systemic, as well as involving individual behaviour. We have a joint responsibility to put in place whatever systems and levers we can to minimise the risk of such abuse ever happening again. I do not use the word “eliminate” because no Minister can ever promise that, but it is our responsibility to minimise the risk of such actions and behaviour ever being allowed to happen again.

One of the priorities in my new responsibilities will be to examine these issues in the context of how people with learning disabilities are treated more generally. My right hon. Friend the Minister of State at the Health Department will be looking at some of the issues that hon. Members raised about mental health services as well.

I turn to something that is specifically linked to that point. A care trust is used to described a partnership arrangement put in place by an NHS trust or primary care trust and a local authority social services authority. The status of the NHS trust or PCT concerned does not change in these circumstances, and both the trust and the local authority retain their original status, while changing the governance functions. There is no other legal significance, and staff operating under partnership arrangements will remain employed by the NHS trust, PCT or local authority concerned. I can reassure the hon. Member for East Worthing and Shoreham that these partnership arrangements are therefore adequately covered by paragraphs (a) and (g) as they stand. I give him a categoric assurance that the concerns he expressed about a partnership arrangement or a mental health trust will be covered fully by the Bill.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am grateful to the Minister. On amendment No. 141, I purely wanted to know where the definition of those trusts would appear. The Minister seems adamant that they are covered in parts of subsection (3). It is useful to have that stated, given the debate we have just had.

The second point, that unpaid workers are fully covered, if I understand the Minister rightly, will have many implications for voluntary workers. I am not sure how extensive that coverage will be. Many of us have been at pains to try to keep occasional volunteers out of such a rigorous vetting system because they will be completely deterred otherwise. If he says that my amendment is unnecessary in that respect, we will take him at his word.

I am pleased, but alarmed, about the Minister’s acknowledgement that amendment No.139 might have some merit because it is not covered in the Bill. He knows, in his position as a Health Minister, just how much NHS work is now contracted out across the piece, not just short operations and episodes, but ongoing treatment, rehabilitation and mental health services, and everything else. Such things are provided by the independent sector, and in some cases by not-for-profit organisations.

That is not new. It has been going on for a while and it is certainly taken into account when dealing with other pieces of legislation. In respect of all the children’s legislation we have had in recent years, we raised the question whether the private sector, to which work has been contracted out, is covered. The Minister has always been able to give us assurances that it is, which is what we want.

Ivan Lewis (Labour, Bury South)

As I understand it, the specific issue that we are discussing is that when people move around in jobs while directly employed by the health service there will be no need to recheck them constantly. The point that we are making in this narrow context is that the same principle ought to apply to those who are working in independent organisations that provide services to the NHS, be they in the third sector or the private sector. When I say that I will come back on this on Report, it is not about needing to come back on the question of those employed in independent sector organisations, because they would be covered anyway. The issue is that when they move around in terms of their employment status the same common-sense approach would be applied to those workers as to those employed directly by the NHS.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am not entirely sure that I follow that. The Minister appeared to say earlier that he was not sure what measures in the Bill covered not people who move around opting in and out of working for the NHS but full-time independent providers, whether single-handed or part of private firms, who do NHS work but are not employed by an NHS body. Subsection (2) covers only people employed by an NHS body.

Thousands of people working for the NHS without being employed by it are providing operations and treatment to many vulnerable people and should surely be treated on exactly the same basis as directly employed NHS consultants, doctors, nurses, therapists, physiotherapists, mental health counsellors or whatever who deal with the same cohorts of vulnerable people. Surely there should be no differentiation between those on the payroll of the local hospital trust or PCT and those contracted through a firm or single-handedly to provide identical services to patients. What matters at the end of the day is not structures or who produces the employment dockets; it is patients and the treatment that they are getting, whether from a private and independent, a not-for-profit or a state-run, directly employed NHS source.

I am disappointed. I had hoped that I would be reassured by the Minister saying, “Yes, it’s a very good point. In this part of the Bill, of course all those independent providers will be covered.” He might be able to say that now, from the looks of it. If they are not, it should have been thought about earlier, and he needs urgently to convince us now or on Report that they are covered. If he wants to intervene to assure me now, that will be welcome.

Ivan Lewis (Labour, Bury South)

The hon. Gentleman has an awful habit of making me believe that something I had thought was absolutely certain is not quite so certain, when in fact it is. Such people will be covered by the definition of “vulnerable adult” in clause 44(1)(d) and the definition of “regulated activity” in schedule 3 part 2. All the way through the Bill, I have said to him that I believe that health services provided by the independent sector to meet the needs of the national health service are covered in the mainstream part of the Bill.

I said in my contribution—I gave the hon. Gentleman the credit for raising an important issue; he is not very magnanimous on these occasions—that we are discussing whether people who move around in their employment within the independent sector should have to undergo repeated checks and monitoring or whether the same common-sense approach used with directly employed national health service staff will not require them to be checked on a multiplicity of occasions.

That is the point that I made in my direct response to his amendment, which referred to the inconsistency between the rules applying to directly employed NHS staff and those applying to people commissioned from the independent sector to provide a service to the NHS. There is no question about it. I give him a final clarification that those working in the independent sector who are contracted to provide services to the national health service will be covered by the mainstream part of the Bill, and I can give him specific references.

Tim Loughton (Conservative, East Worthing and Shoreham)

I think that that intervention is over. I am grateful to the Minister. It is not a question of being magnanimous or taking the credit; all that I am concerned about is ensuring that vulnerable people will be covered.

Ivan Lewis (Labour, Bury South)

I said that.

Tim Loughton (Conservative, East Worthing and Shoreham)

Well, the Minister did not say that. He started by saying that he would have a look at it and come back. After some in-flight refuelling, he has been able to say that actually, there are some definitions later in the Bill that will cover those people. That is what I wanted to know. It is the answer that I should have had in the first place, and the answer that he should have been able to give off pat if he really knew who the Bill covers.

It is pretty basic stuff. Vulnerable people should be covered whether they are treated by an NHS employee or by somebody who is not an NHS employee but a private, independent provider of the same treatment. That is the simple question that I asked at the outset. It was perfectly clear to all of us in the Conservative party, and the amendment is simple and straightforward. At last, and only because we have extended the debate slightly, we appear to have the answer that the amendment was designed to elicit and that I asked for some time ago. I am glad we have it now, and on that basis, unless the Minister changes his mind again, I beg to ask leave to withdraw the amendment.

Clause 18

Clause 19

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 142, in clause 19, page 12, line 10, after ‘health’ insert ‘or personal’.

Eric Martlew (Labour, Carlisle)

With this it will be convenient to discuss the following amendments: No. 143, in clause 19, page 12, line 32, at end insert—

‘(g) an independent health provider;’.

Government amendments Nos. 159 to 161.

Tim Loughton (Conservative, East Worthing and Shoreham)

These are, again, probing amendments, but I hope that we will not have to probe for quite so long this time before we establish whether they are required. Amendment No. 142 concerns people who have the “opportunity to have access” to the health records of a vulnerable adult. The measure should not be limited to health records because, after all, what constitutes a health record? Does it cover only information that is provided by a GP or specialist? What about forms of counselling that do not, strictly speaking, constitute medical or health treatment? What about other records containing detailed information about a vulnerable person’s family background, or traumatic events that have happened to them, such as domestic sexual abuse?

A paedophile could use records of a vulnerable person’s past traumatic experiences or difficult domestic time as a child to exploit a chink in their armour and ingratiate himself or herself with that vulnerable person. Those are not health records, but if people can gain access to those sorts of records, which I have termed as “personal”, surely they too should be included. I believe that “health records” is too narrow a definition, and I would be grateful for the Minister’s response as to whether more extensive personal records could be just as useful, or even more useful, to a potential abuser who could use that information to abuse a vulnerable adult.

The second amendment also concerns the definition of health. I know that the Minister will come straight back and tell me that it is not necessary because it is covered in whatever paragraph such definitions are covered. Hospital services are defined through six different categories: a national health service trust,an NHS foundation trust, a primary care trust, an independent hospital, an independent clinic and an independent medical agency. At least this part of the Bill has explicit references to the independent sectors, which is part of the point that I was getting at earlier. However, it refers only to establishments—in effect, a hospital, clinic or medical agency

“within the meaning of that section”,

which again is rather vague. Surely what should be covered is an independent health provider. It is the person who is going to do the damage if they are so minded, rather than the establishment in which they are contracted to work.

The amendment is designed to probe whether—perhaps this will be in schedule 3—all independent personnel are covered. We want to know that independent personnel are not covered just by virtue of the fact that they are working in an independent hospital, an independent clinic or through an independent medical agency, because many such people will be working in the homes of vulnerable people. That is what we are getting at.

Ivan Lewis (Labour, Bury South)

I will try to help the hon. Gentleman. He accepts, to some extent, that these are probing amendments. Controlled activity will include access to the health records of a vulnerable adult. Amendment No. 142 would add the words “or personal” after the word “health”. “Health records” is a clearly understood term and is intended to cover all records that relate to a person’s physical and mental condition. The amendment would extend that to other personal records.

I understand that the intention is to ensure that access to records of a similar level of sensitivity is included in controlled activity. The problem is that the additional words are wide and nebulous and might cover things, such as bank records, that we do not intend to catch.

That said, I will offer the hon. Gentleman some assurances on the regulation-making power in subsection (5)(c). That gives the Secretary of State the power to prescribe

“other information...relating to a vulnerable adult.”

We intend to use that power to prescribe clearly and accurately social care records relating to a vulnerable adult. Such records are clearly of a personal nature, but will be described in regulations so as to make them clearly identifiable. I hope that the hon. Gentleman will accept that reassurance. We will use the power to be clear about what “other information” means.

Tim Loughton (Conservative, East Worthing and Shoreham)

Would that include records of counselling? I gave the example of someone who has had a traumatic child abuse experience and has received counselling. Such a record is not a health record, but it is a record of some form of counselling. Is that specifically intended to be included in the prescription to which the Minister referred?

Ivan Lewis (Labour, Bury South)

I can assure the hon. Gentleman that that example would be covered in those circumstances. He makes a perfectly legitimate point. The situation that he describes would be incredibly sensitive.

Amendment No. 143 deals with independent health providers and those who are employed in those sectors. The amendment is genuinely unnecessary, as independent health providers are included in paragraphs (d), (e) and (f) of the list. Those providers are required to register with the Healthcare Commission pursuant to part 2 of the Care Standards Act 2000. That will include providers who contract with the NHS. Where the NHS contracts with providers outside the regulated sector—an example might be an acupuncturist—it will be possible to ensure that the appropriate checks are made through the contracts issued. The contract will provide an opportunity for the commissioner to make it clear what checks are expected in the case of a provider outside the regulated sector.

Amendments Nos. 159 to 161 are minor and technical, making consequential amendments to adjust references in the Bill to national health service legislation to ensure that the references are consistent with those in the National Health Service (Consequential Provisions) Bill. On that basis, I hope that hon. Members will not press their amendments and that they will support the Government amendments.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am grateful for that clarification. It is as easy as that—I asked a specific question with the probing amendments and the Minister has been able to agree that the provision will cover counselling such as that in the example that I gave and that such scenarios will be included in the regulations to be issued by the Secretary of State. That is reassuring, and we therefore do not need to press amendment No. 142 to a vote. He has also explicitly referred me to definitions in another part of the Bill that make amendment No. 143 redundant. On that basis, and with delight, I beg to ask leave to withdraw the amendment.

Clause 20

Maria Miller (Conservative, Basingstoke)

I beg to move amendment No. 115, in clause 20, page 13, line 2, leave out ‘may issue guidance’ and insert

‘shall by regulation, subject to the affirmative resolution procedure, make provision’.

Eric Martlew (Labour, Carlisle)

With this it will be convenient to discuss the following amendments: No. 131, in clause 20, page 13, line 4, at end insert—

‘(1A) Guidance issued under subsection (1) shall include a description of how an employer deciding to employ a barred person to undertake controlled activity will be required to demonstrate that they have considered the following—

(a) the level of access to children or vulnerable adults afforded by the post;

(b) what other information they had about an individual, including any summary of the reasons for a barring decision;

(c) what safeguards they have put in place in order to minimise the risk of harm; and

(d) how they will review the risk posed by the employment.’.

No. 108, in clause 20, page 13, line 5, leave out ‘have regard to’ and insert

‘act in accordance with any’.

Maria Miller (Conservative, Basingstoke)

A great deal of the Bill is complex and technical. Indeed, that was one of the first things the Minister said when we began our discussions. Nowhere is that more true than in the introduction of the concept of controlled activity. Employers are required to check the barred status of an employee, but with the discretion to employ barred individuals if appropriate safeguards are in place. The provision covers many health, further education and social care settings.

The clause is pivotal in as much as it provides for statutory guidance on the steps that employers should take when employing individuals in controlled activities. The amendments in my name and the names of my hon. Friends are intended to do three things: tighten the language to ensure that guidance is issued, which is not how the Bill is currently worded, ensure that there is a full and open debate on what should be included in the guidance, and ensure that that guidance is acted on. Those are three simple objectives, and they are vital because guidance on the matter cannot be viewed as an optional extra. It must be issued, and that is not how the Bill is currently worded.

The guidance needs to be debated in full using the affirmative procedure. It is an important element and I would have preferred to see it in the Bill. The Government have chosen to do it in another way, but we need to ensure that we do not lose the opportunity to debate the issues in full. We also need to know how the guidance is being acted on. It is important that employers do not just need to have regard to it.

The Government do not always have a good record in this area. The Minister will no doubt remember the recent Ofsted report on employment practices in schools. It showed a considerable amount of confusion and inconsistency among employers as to their duties and obligations under the various laws and regulations that have been issued. I am sure that the Minister and other members of the Committee will remember that we were unable to discuss the report in detail on Second Reading because, for some reason that still remains rather vague, it was not fully available to all hon. Members. I wish therefore to take this opportunity to go through one or two of its findings, which are pertinent to the debate.

In terms of confusion, hon. Members who have read the report will have read:

“Schools and LAs are confused about what action they need to take about existing staff members. The messages from the CRB, via the DfES, are not making the situation clear.”

It is clear that regulations and rules can often be misleading and are not helping employers in such situations. That underlines the point made in the amendments, which is that the regulations need better and fuller debate than they have received in recent years.

The Ofsted report also found many instances of inconsistency, including poor record keeping by schools and local authorities on employment checks, and a widespread belief in schools that somebody else was checking staff, with the result that nobody carried out those essential checks. On page two of the report, Ofsted says:

“Such practice lacks rigour and thoroughness”.

The report also says that the letter from the then Secretary of State on 19 January 2006, which was intended to clarify the rules following the problems over list 99 and paedophiles in schools, added to the confusion. Many schools thought that the rules had suddenly changed, with the result that a further letter had to be sent out on 25 January to clarify the position. Again, that adds weight to the argument that these issues have not been dealt with well under current practices. That is why the amendments are important.

As with so much in the Bill, a lot of the important detail has been left to regulations. Without adequate scrutiny, the risk is that processes will not be subject to thorough debate and discussion. We could continue to make the mistakes that the Government have been making if we do not change the way we do things. Amendments Nos. 115, 118 and amendment No. 131, tabled by the hon. Member for Bridgend (Mrs. Moon), work towards guarding against such a situation and would ensure that regulations on employers’ duties receive full debate and approval in Parliament. They would also ensure that employers acted in accordance with such regulations and did not just have to take regard to them, thereby preventing some of the confusion and inconsistency that Ofsted so graphically outlined in its report.

It is essential that we set out the framework clearly and unequivocally. Otherwise, how can we expect schools and other employers to follow through? If we fail to do so, we are just creating a future problem for ourselves. The loose language, which has been a theme within the debate, does not help us communicate and does little to ensure consistency in future.

The amendments would also address a significant hole in the Bill, whereby employers may employ a barred individual in situations where they might not normally directly come into unsupervised contact with children and vulnerable adults—for example, a receptionist in a dentist’s surgery. Although that would add an extra layer of complication, the amendments generally attempt to prevent the current confusion. The amendments will, hopefully, guard against the inconsistency that Ofsted says is currently occurring and improve the Bill.

Parmjit Dhanda (Labour, Gloucester)

I am disappointed with some of the comments from Opposition Front-Bench spokesmen, who must either have got out of bed on the wrong side or have a short memory about safeguarding when they were in power. The hon. Lady has a short memory, too, in respect of the debate on Second Reading, when she was prevented from reading from a report because it had been leaked to her. She was selective then and she is selective now about what that report said. It actually said that a lot of good work was taking place in schools and that they are far safer places than they used to be. However, a lot of work needs to be done on checking records. If the hon. Lady wants to play political games on an issue that I felt had some level of all-party support, that is a matter for her.

Maria Miller (Conservative, Basingstoke)

Will the Minister give way?

Parmjit Dhanda (Labour, Gloucester)

No, I will not. Labour Members have shown great restraint in listening to Opposition Members going on and on about a system that they claim to support, yet never mentioning their own record. However, I shall speak to the amendments and try to take some of the heat out of the debate.

The intention behind amendments Nos. 115 and 108 is, in different ways, to strengthen the provision in the Bill for ensuring that controlled activity providers take the necessary steps when employing individuals in controlled activities. As my right hon. Friend the Minister for Children and Families said on Second Reading, we are doing further work on the sanctions that might apply in relation to controlled activity. That work is considering whether the current provision is sufficient, albeit not only in the ways suggested by the wording of the amendments. Before that work is completed, I would not want to rule out any option, including the wording of the amendments. For that reason, it would be premature to accept either of them at this stage. However, I intend to return with a final position on Report. With that reassurance, I hope that the hon. Lady will see fit to withdraw the amendment.

Amendment No. 131 stands in the name of my hon. Friend the Member for Bridgend. First, we would certainly expect employers undertaking controlled activity to conduct a full risk assessment before employing an individual who was on a barred list. That would be critical to determining the appropriate safeguards that needed to be put in place. Secondly, we intend to consult stakeholders on the specific safeguards that need to be put in place when engaging a barred individual. Providing that detail in the Bill at this stage would pre-empt critical consultation with key stakeholders on what is an important issue, as I am sure my hon. Friend will understand. Lastly, it is essential to retain flexibility. It would be very difficult, for example, to change the steps that employers need to take as new best practice emerges if the risk assessment is set out in the Bill.

Given those points and the fact that I will take on board the wording of amendment No. 131 when we consider the issue before Report, I hope that the hon. Member for Basingstoke will withdraw the amendment. Before she does so, however, if she has such concerns about a receptionist working in a dental service, perhaps she could explain whether it is her view that such a person who has been on a barred list should not be employed in controlled activity with safeguards in place, because we would be delighted to hear the Opposition’s policy on that.

Maria Miller (Conservative, Basingstoke)

I am not sure that anyone is implying that we should not have safeguards in place. The Minister should perhaps remember that we are here to listen to what the Government’s policy is, not to debate the Opposition. However, if he would like to swap places, we would be more than happy to try to improve the Bill and make it much better not only for those of us on the Committee, but those who have to try to put it into practice. We have heard constructive ways of trying to improve the Bill from my hon. Friends and Liberal Democrat Members, so it is somewhat disappointing that at the first sign of identifying the problem, the Minister’s reaction is defensive.

My comments about the Ofsted report related to the Government’s communication failures. They gave the report to the press in advance of Second Reading, but not to Opposition spokespeople, which put us in a difficult position. However, that is in the past and I do not want to dwell on it. We are talking about the safety of children and vulnerable adults, not the sensibilities of the Government and the way in which they choose to leak their information.

It is clearly disappointing to my hon. Friends and I that the Government are not willing to learn from their mistakes. Amendments Nos. 115 and 108 are constructive, and try to solve the problems that the Government have experienced in communicating to the many people who will be affected by the Bill. However, they are not willing to learn from the communication problems of the past. We should ensure that it is clear to employers that the guidance is not merely something to take heed of and simply “have regard to”, but that it should be put in place and acted in accordance with. That is a different form of words. The amendment would fundamentally change the way in which employers would consider the guidance, and it is disappointing that the Minister does not seem to understand or appreciate that difference.

We all share the objective of improving the Bill, and we are scrutinisers in that matter. We have an obligation to put forward what we feel would constitute an improvement. Clearly, the Minister has heard the issues and perhaps he will have time to reflect in a more measured manner outside the Committee. I hope that he will have time to reflect on the amendments before Report, and I beg to ask leave to withdraw the amendment.

Clause 21

Joan Ryan (Labour, Enfield North)

I beg to move amendment No. 162, in clause 21, page 13, line 36, leave out ‘identification’.

Eric Martlew (Labour, Carlisle)

With this it will be convenient to discuss Government amendments Nos. 163 and 164.

Joan Ryan (Labour, Enfield North)

The amendments modify clause 21 to allow the Secretary of State to prescribe additional requirements that must be fulfilled before a person is regarded as being subject to monitoring within the meaning of clause 21. The current criteria are that the individual is not barred and has satisfied the prescribed identification and application requirements. Only a person who is subject to monitoring may engage in regulated activity for a regulated activity provider. Amendment No. 162 widens clause 21(1)(c) so that the prescribed requirements do not relate merely to identification. Amendments Nos. 163 and 164 make consequential changes to the other parts of the clause that relate to identification.

The amendments would allow requirements to be added to the identification requirements that must be satisfied before a person is subject to monitoring and may therefore engage in regulated activity. That will ensure that the scheme can continue to build on wider developments, such as the development of new police systems. I therefore ask that hon. Members accept the amendments.

Schedule 4

Parmjit Dhanda (Labour, Gloucester)

I beg to move amendment No. 187, in schedule 4, page 49, line 32, after ‘information’ insert

‘relating to children and relevant information’.

Eric Martlew (Labour, Carlisle)

With this it will be convenient to take Government amendments Nos. 188 to 193 and 165 to 170.

Parmjit Dhanda (Labour, Gloucester)

Before talking about the amendments, I should first like to comment on online checks. A key feature of the new scheme is the facility for online checks, which will allow an individual’s up-to-date status to be checked quickly by prospective employers. The checks will be available to a wider range of employers than is the case at present, and will include private employers such as parents for the first time.

We have been consistent in underlining, as Sir Michael Bichard did, that the ultimate responsibility for deciding whether to employ an individual, must be the employer’s. It is our responsibility to ensure that there is reliable, clear information to help to support that decision, but the information provided by the vetting and barring scheme will be only one element in the overall judgment. That does not remove or replace the responsibility of the employer.

As the Minister for Children and Families said on Second Reading, in our work on the design of the vetting and barring scheme, we explored some of the details involving the security and implementation of the online check facility, which led us to amend its design. First and foremost, we must ensure that employers and parents can access the information they need to inform recruitment decisions quickly, easily and reliably.

Showing explicitly via the online check that a person is barred would require elaborate security procedures. Given the sensitivity of the information, that would seriously obstruct the speed and ease of access of the facility.

Maria Miller (Conservative, Basingstoke)

Is one reason why there has been a delay that individuals can hack into the system, not just to look at information on other people but actually to change it so that it shows, for example, that a person is barred, rather than unbarred? Has the Minister encountered that problem, which has occurred in the United States?

Parmjit Dhanda (Labour, Gloucester)

No. I have worked with officials on the scheme but that has not been a principal issue. It is a matter of getting the right structure and process in place to give the right information. I will come to that in a moment, when the hon. Lady may wish to respond to what I say with further comments and questions.

We will table amendments on Report that will change the online check to show whether an individual is subject to monitoring, which is confirmation that he is being vetted by the scheme and is not barred. That fundamental reassurance will enable the employer to proceed to the other checks that are necessary on recruitment, such as taking up references and verifying qualifications. We will table similar amendments to clause 26 so that employers are notified that monitoring has ceased, rather than that the individual has been barred.

When an individual is shown as not subject to monitoring, it may mean that he has not yet applied to the scheme, that he has withdrawn from it or that he is barred. For regulated activity providers recruiting to a regulated activity, the effect is the same: they can employ only people who are subject to monitoring, as the Bill lays down. We shall ensure that the online check facility provides clear messages for employers and parents about the implications of an employee being subject, or not subject, to monitoring and the further steps they need to take in recruiting. We shall develop and test those messages as we prepare for implementation.

The revised approach to the information conveyed by the online check will ensure that it directly supports employers’ needs and helps them to find appropriate staff, and that notification will be quick. We are committed to delivering the improvements that online checks offer and to implementing them in the most effective way. No one will forgive us if we do not develop the best possible system to protect children and vulnerable adults.

Over time, we would like as many people as possible to be monitored in the vetting and barring scheme. We intend that the scheme will encourage employees in the relevant work forces to be monitored and employers to use good employment practice and recruit only those who have been vetted and who are monitored. The monitoring will ensure that information about employees is continuously updated and that employers are notified of changes in status. That approach to the online check will help to secure the benefits of monitoring while ensuring that employers have fast and easy access to information about employees’ status.

Maria Miller (Conservative, Basingstoke)

I did not get an answer from the Minister’s comments to a very simple question. Who will be responsible for the accuracy of the online scheme and who will be responsible for any errors that are made?

Parmjit Dhanda (Labour, Gloucester)

The CRB will be responsible for the administration of the system, but the IBB will be responsible for the two barred lists.

In speaking to amendment No. 187, I said what I wished to say about online checks, although I appreciate that hon. Members may wish to return to the subject. Amendments Nos. 188 to 193 and Nos. 165 to 170 are all minor and technical amendments to the Bill. I circulated a note to hon. Members before the Committee stage in which I explained the Government’s intention behind all the amendments that we tabled, including those ones. I welcome any questions or otherwise on the online lists, and ask hon. Members to accept the amendments.

Clause 27

Clause 28

Clause 31

Clause 33

Clause 35

Maria Miller (Conservative, Basingstoke)

I beg to move amendment No. 194, in clause 35, page 23, line 35, leave out subsection (7) and insert—

‘(7) A person is subject to a relevant disqualification if—

(a) he is included in a list maintained under the law of Scotland, Northern Ireland, or any other country or territory which the Secretary of State specifies by order, approved by resolution of both Houses of Parliament, as corresponding to a barred list; or

(b) he has been charged or convicted of a criminal offence in a country other than the United Kingdom which, if committed in the United Kingdom, would have led to him being barred or considered for barring.’.

Eric Martlew (Labour, Carlisle)

With this it will be convenient to discuss amendment No. 195, in clause 35, page 23, line 37, at end insert—

‘(7A) A person is subject to a relevant disqualification if he is included in a list maintained under the law of a country or territory outside the United Kingdom which the Secretary of State specifies by order, approved by a resolution of both Houses of Parliament, as corresponding to a barred list.’.

Maria Miller (Conservative, Basingstoke)

The two amendments deal with the same problem. I suppose that we are trying to give ourselves an option, with two different ways to solve it. It is not only we who have identified the problem; those who debated the issue in the other place and a great many of those involved in the Government’s extensive consultations have highlighted their concerns about overseas workers. Again, it is somewhat disappointing that, despite all the consultation, nothing in the Bill helps employers further.

The amendments are probing. They address the problem of overseas workers. It was identified as important not only in the post-Bichard consultation but by a great many other groups that were consulted by the Government. I said in February, on Second Reading, that my hon. Friend the Member for Havant (Mr. Willetts) had written to the then Secretary of State for Education and Skills asking for assurances in respect of overseas workers in schools. The Minister said on Second Reading that he would follow the matter up, because we had not received a reply to that letter. Unfortunately, we still await a reply. Perhaps the Minister is still undecided. If so, I hope that he accepts the amendments as constructive solutions to a problem that has yet to be resolved. I shall therefore consider them in more detail.

I remind the Minister of the statistics. There is a growing number of overseas workers in all the sectors under the Bill that deal with vulnerable adults and children. Almost one in five nurses and one in three medical practitioners come from overseas. About18 per cent. of social workers and 15 per cent. of carer assistants come from overseas. They work with some of the most vulnerable people in quasi-domestic settings.

As we all know, overseas workers make a vital contribution in schools, hospitals, care homes and many of the other settings covered by the Bill. It is important that we find a way to deal with them as a set of workers within our communities. The Bill must offer a robust system to ensure that those workers who come from overseas can, whenever possible, enjoy the same affirmation for their role in the workplace as those from the UK. We need to work a little harder on that problem.

I have read the many notes that Lord Adonis sent with the Bill to clarify those areas that are a little opaque. One note contained details of the Government’s work in setting up agreements with certain countries. It is interesting to note that the countries that the Government are making a priority are Australia and Canada. We welcome that important move, but I am concerned that it does not adequately address the problem. The official statistics show that the majority of overseas workers who deal with children and vulnerable adults come from Africa, Asia and the Indian subcontinent. Perhaps the Minister will take the opportunity afforded by this debate to outline what the Government are doing in relation to those other parts of the world, which cover the majority of people from overseas working here.

Amendments Nos. 194 and 195 would broaden the scope of clause 35(7). Instead of allowing the Secretary of State merely to draw up regulations on arrangements with Northern Ireland and Scotland, he would be able to draw up regulations that included all countries and territories, which would obviously cover all overseas workers.

Amendment No. 194 would have the added advantage of allowing us, should the country in question not maintain a relevant list in the way in which we do, to look at the relevant criminal charge or conviction and assess whether it would lead to barring in this country. We could then take appropriate action.

I have outlined the statistics. This is not a peripheral matter that can be put to one side. It has been suggested that we could deal with this group of people as though they had never put themselves forward for monitoring before and were fresh on our database. The number of overseas workers in this country is growing. They are important, and we need to ensure that the Bill shows them the level of respect that they deserve regarding their roles within our community. The amendments give the Minister the opportunity to respond to several questions on the issue.

This is not a unique problem. In many other areas, individuals from overseas are dealt with adequately. In the realms of the legal profession, there are recognised ways of acknowledging overseas lawyers. Perhaps, in reaching his decision the Minister could consider such examples outside of our proceedings. I hope that we can find a better way of dealing with this important group of people.

Parmjit Dhanda (Labour, Gloucester)

I agree entirely that overseas workers are important, not least when their children become MPs and Ministers.

The amendments relate to foreign barred lists, foreign offences, and the duty on the Secretary of State to notify the keepers of certain registers—registersof medical practitioners and social workers, for example—such as the General Medical Council, when a person is subject to certain disqualifications. Amendment No. 194, which is a probing amendment, would require the Secretary of State to notify the keepers of such registers when he becomes aware that an individual has been charged or convicted in another country of a criminal offence that would have led to consideration about whether that person should be barred if it had been committed in the UK.

Both amendments would ensure that the keepers of such registers were notified if the Secretary of State became aware that an individual was included on any foreign barred list specified by the Secretary of State. That sounds reasonable, in essence, but this Bill is not the appropriate vehicle by which to introduce new measures about the treatment of foreign offences. The Government have already introduced a number of measures to tackle the issue of foreign offences. They include notification orders, which ensure that people who are convicted of sex offences overseas are made to sign the sex offenders register in the UK, and sexual offences prevention orders, which can also applyto offenders who are convicted of sexual or violent offences overseas.

I take on board the hon. Lady’s point about not wanting to start from scratch and to consider just offences in the UK. That is exactly what we are doing. However, there is a way in which the Bill allows us to take account of overseas offences. Paragraph 20 of schedule 2 allows the Secretary of State to specify that, in addition to UK convictions and cautions, the following criteria qualify a person for automatic barring: orders such as sexual offences prevention orders and notification orders, which I just mentioned; inclusion in a foreign barred list equivalent to the children and vulnerable adults barred list; and overseas orders or directions. The regulations prescribing those criteria are subject to the affirmative resolution procedure. In addition, under the discretionary route, the IBB will, of course, be able to take account of any information regarding offences or behaviour abroad when it receives that information. The Bill therefore ensures that the barring scheme can take account of offences committed abroad.

The Secretary of State already has a duty under the Bill to notify the keepers of relevant registers when an individual is barred, and that will achieve the intended effect of the amendment, without the need for a separate set of information to flow to the keepers of registers about foreign offences and lists, with which they are not necessarily familiar and to which they may not know how to respond. I hope that with that on the record, the hon. Lady will not press her probing amendments.

Maria Miller (Conservative, Basingstoke)

I am grateful to the Minister for taking the time to outline what is already in the Bill, but I remain a little confused as to why so much emphasis and effort have been put into negotiating agreements with Canada and Australia, but not other countries from which we receive many overseas workers. He said that the amendments sound reasonable, but that the relevant issues are already dealt with in the Bill. Surely, if he agrees that the amendments are reasonable, and given that they merely clarify what is already in the Bill, would not it be entirely sensible to make it clearer to the employers who will have to try to interpret this legislation that specific actions need to be taken with regard to overseas employees?

I expected the Minister to say something slightly different—that, as we are talking about employment practices, the Bill might not be the right place in which to articulate the need for more vigilance with employment, given that the criminal records of individuals might not be fully available to us. I would have been open to an argument that we need to consider other ways in which to communicate that to employers—perhaps through codes of practice. The Minister’s intention might be to cover overseas employees, but I am concerned that the Bill is a little hazy on that.

Parmjit Dhanda (Labour, Gloucester)

When I said what I said about the amendments being reasonable, I was not in any way accepting that they would be reasonable amendments to the Bill. It is fair to say that more work needs to be done on the matter, and the Government are committed to doing that. It is also worth considering that there is an issue about the reliability of criminal records in areas such as Africa and Asia. With the European Community initiative, we are doing a great deal to share information across national boundaries. We will continue to do that work and build on it through regulations made under the Bill.

Maria Miller (Conservative, Basingstoke)

I thank the Minister for that intervention. I am glad to hear him say that more work needs to be done on that, and that he acknowledges that further debate is important. As he agrees that that area has not been resolved, I look forward to the Government introducing further amendments on the issue on Report.

The Minister talked about the reliability of criminal records in other countries. I did not go into that issue only because I do not have any concrete evidence on it to hand. If, as he asserted, there is an issue with reliability, I invite him to explain what support and help the Government will give to employers to ensure that they are aware, when they employ people from overseas, that there might be a slight hole in the information that is available about the previous employment and behaviour of those employees. Perhaps he would care to consider that further on Report. Given that we have had a good discussion on the issue, I am happy to withdraw my amendment, and hope that the Government will revisit the issue at a later stage. I beg to ask leave to withdraw the amendment.

Clause 36

Clause 39

Clause 42

Maria Miller (Conservative, Basingstoke)

I beg to move amendment No. 4, in clause 42, page 26, line 19, at end insert—

‘(1A) Subsection (1) shall not apply if it can be proven that there is an error on the barred list.’.

This is a quick one, but it is important, and I look forward to the Minister’s response on it. The rules and regulations that we are discussing will have an impact on many thousands of people—I believe that the Government estimate that up to 9 million people will be covered by this monitoring, vetting and barring procedure—and, as the Minister acknowledged in Committee and on Second Reading, mistakes will be made. We highlighted the fact that the CRB has made 3,000 mistakes since it was set up. The Minister thought it appropriate to say that that was a small proportion of the total number of people who have been looked at, and that many thousands of people have been prevented from working with children and vulnerable adults as a result of the procedures put in place under the CRB.

Mistakes will undoubtedly be made; that has been acknowledged. I am sure that nobody in the Committee or who looks at this Bill will be complacent about that. The objective behind the amendment is to ensure that adequate compensation is in place if mistakes are made. There is a provision in the Bill that states that people will be able to claim their rights under other legislation, but I am not sure whether that goes far enough. There must be some accountability to ensure that data held by the IBB about barring, and the decisions that it makes based on that information are correct. We are talking about people’s livelihoods and reputations, and the amendment would create an incentive for the IBB to get it right and ensure that people have a more apparent and readily accessible form of redress if things go wrong. I look forward to the Minister’s response on the matter, which will be of great interest to many people.

Parmjit Dhanda (Labour, Gloucester)

I am in quite a helpful mood today, Mr. Martlew. It is extremely important that appropriate measures are in place to correct any mistakes that are made under the new scheme. If an individual is included in a barred list as a result of an error such as mistaken identity, the IBB will be able to remove them from the list, much as I described tothe hon. Member for Mid-Dorset and North Poole the other day. In cases in which the error is the responsibility of the CRB, it will, as now, consider providing ex gratia consolatory financial redress, based on the Treasury’s guidelines that the individual must be put back into the position in which they could reasonably have expected to be but for the error or maladministration.

With IBB decisions, a distinction must be made between the different types of cases that might arise. In cases in which the IBB’s decision to include the individual in a barred list is later overturned in an appeal, the appeal process will rectify the situation, and the case will be reconsidered as appropriate.

The IBB will also be able to initiate a review of its own accord—for example, where a conviction which led to a person’s inclusion on the barred list is quashed. Proceedings before the IBB are of a quasi-judicial nature, so it would be inappropriate to allow claims for damages. However, there may be cases in which individuals were included on the barred list as a result of maladministration by the IBB in which some form of compensatory payment might be warranted. Any new scheme of financial redress would need to comply with Government accounting requirements that underpin such arrangements under this and previous Administrations.

Maria Miller (Conservative, Basingstoke)

That is an interesting point. The Minister says that the IBB is a quasi-judicial body, but I was not aware that a non-departmental public body could be quasi-judicial. Either it has the role of a tribunal in a court situation, or it has not. If it has the role of a judicial body, then, obviously, damages are dealt with in a very different way, but if it is a non-departmental public body, it does not have quasi-judicial powers and should therefore be open to damages in the same way as any other body of a similar description. Will the Minister clarify that?

Parmjit Dhanda (Labour, Gloucester)

I am always happy to widen the hon. Lady’s knowledge of these matters. I think I did so the other day, too. She has spent a lot of time in rooms with lawyers—

Maria Miller (Conservative, Basingstoke)

I am married to one.

Parmjit Dhanda (Labour, Gloucester)

So am I; it does not seem to help, does it?

I think that I have made it fairly clear—the IBB is quasi-judicial—in the same way that we clarified matters about the burden of proof on which the IBB is working. I do not see any issues or complexities with that, and I urge the hon. Lady to withdraw the amendment.

Maria Miller (Conservative, Basingstoke)

I shall go away and consult our lawyer. It was entirely my impression that non-departmental public bodies do not have quasi-judicial powers. Perhaps the Minister can consult his lawyers and I can consult mine and we can come to a better conclusion.

On a serious note, the type of errors that we are discussing will be of exceptional importance to the people about whom they are made. We therefore need to ensure that there is an incentive for the IBB to ensure that such errors are kept to a minimum, and that those involved get the compensation that they should.

I thank the Minister for clarifying the situation with the CRB and ex gratia payments, but I would like to leave open the issue of the IBB and its role and status. Perhaps he will write to me about that; I certainly would like more clarification on that point, but I will withdraw the amendment at this stage. Perhaps we will revisit this matter when we have received more expert opinion. I beg to ask leave to withdraw the amendment.

Clause 43

Parmjit Dhanda (Labour, Gloucester)

I beg to move amendment No. 172, in clause 43, page 26, line 40, at end insert—

‘( ) This section does not apply to—

(a) the appointment of a person as a deputy under section 16(2)(b) of the Mental Capacity Act 2005;

(b) the appointment of a person to any position mentioned in paragraph (a), (b) or (f) of section 44(10) or to exercise any function mentioned in that paragraph;

(c) anything done by a person appointed as mentioned in paragraph (a) or (b) above.’.

The amendment makes clear our intentions about family members who act as deputies on behalf of children or adults, and family members or friends who act on behalf of adults under lasting or enduring powers of attorney or who are DWP appointees charged with managing someone’s benefits or pension. Those who require such assistance are potentially at an increased risk of abuse, and it is therefore right that the individuals who provide those types of support should carry on regulated activity. People on the barred list should therefore be barred from such activities. That seems to be common sense.

Clause 44

Ivan Lewis (Labour, Bury South)

I beg to move amendment No. 173, in clause 44, page 28, line 16, at end insert

‘in receipt of residential accommodation pursuant to arrangements made under section 21(1)(aa) of the National Assistance Act 1948 or care pursuant to paragraph 1 of Schedule 8 to the National Health Service Act 1977’.

Eric Martlew (Labour, Carlisle)

With this it will be convenient to discuss the following amendments: No. 57, in clause 44, page 28, line 16, leave out paragraph (d).

Government amendment No. 174

Ivan Lewis (Labour, Bury South)

Amendment No. 173 is designed to narrow the circumstances in which a pregnant woman or a nursing mother may be considered vulnerable. I think that the Opposition share our concern that, as drafted, the clause is far too wide. For example, the teacher of an antenatal yoga class would at present be regarded as undertaking a regulated activity.

The amendment would tighten that definition and limit it to those groups that receive community care services. As a result, only those staff who work closely with pregnant women or nursing mothers in the provision of community care services will be subject to monitoring, and barred people will not be able to undertake such work. For example, the tighter definition would include some health visitors that deliver community care services to new mums. We want to ensure that women in those circumstances have the same reassurances about the staff working with them as others using community care services. I hope that the Opposition accept that including a tighter a definition of the receipt of community care services for pregnant women is sensible.

Amendment No. 174 is a minor, technical and consequential amendment to adjust references to national health service legislation, to ensure that those references are consistent with those in the NHS Consolidation Bill. I hope that the hon. Members for Basingstoke and for East Worthing and Shoreham accept what I have said about the definition and that they will not feel it necessary to press amendment No. 57.

Maria Miller (Conservative, Basingstoke)

I am pleased with the Minister’s reply. I was rather surprised when I first read the clause to find that all expectant and nursing mothers were classified as vulnerable adults. It struck me as a retrograde, sexist and insulting way of categorising women who are pregnant or nursing.

Having been pregnant three times—perhaps other female Members have been pregnant—I was surprised that the Minister should allow the Bill to include such a provision. Times have moved on since the days when it was thought that women were fragile and in need of special attention purely because they were pregnant. I hope that I can draw on the support of other women in the room on that matter.

I was unaware that the Government had noticed that rather large mistake, so I raised the issue with the National Childbirth Trust, which does much excellent work in that area. It was rather shocked; it clearly had not been consulted. I understand that, at that point, it contacted the Department, which may have led to the Government amendments. I acknowledge the fact that it was clearly a drafting error, but given that the Bill has been so long in the drafting, it is concerning that such a sizeable mistake could have been make. I am glad that the Government have seen the error of their ways. I am glad not to have to move the Opposition amendment.

Clause 46

Clause 51

Parmjit Dhanda (Labour, Gloucester)

I beg to move amendment No. 177, in clause 51, page 30, line 29, leave out subsection (2).

Subsection (2), which deals with charges, was inserted in the Bill in the other place. It preserves the constitutional convention that the other place does not pass legislation that authorises the imposition of charges or the levying of taxation. We now need to go through the technicality of removing it.

New Clause 1

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I beg to move, That the clause be read a Second time.

I am pleased that we have reached the new clauses. In many ways they make probing points. New clause 1 would require the Secretary of State to develop guidance on creating a national information sharing protocol between police forces and local authorities. Although the Bichard inquiry has the higher profile, two other influential reports were produced following the Soham tragedy. One was by Sir Ronnie Flanagan; the other was the serious case review by Sir Chris Kelly. It is the latter to which I shall refer.

In his report, Sir Chris Kelly recommended formal information-sharing protocols between the police and child protection agencies. That recommendation is important relative to the flow of information under the Bill. There will clearly be situations in which information does not meet the criteria for referral under clause 31, so it will still be important to share information with the police to feed possible future disclosures to the IBB under part 1 of the Police Act 1997.

Sharing information and building up a picture may be relevant in connection with individuals who later seek work with children. We want a proper protocol from the word go. Some of it will be soft information, and it is difficult to know how that is to be handled. We know from the Soham tragedy that there were many bits of information about Huntley but that they were never pulled together.

I hope that the Minister will give a full response, as what the new clause seeks is comparable with the approach taken in “Every Child Matters”.

Parmjit Dhanda (Labour, Gloucester)

I shall try to give the full response that the hon. Lady seeks. New clause 1 would impose a duty on the Secretary of State to issue guidance to police forces and local authorities on sharing information for the purposes of safeguarding children and vulnerable adults. It is an important area of practice, but it is covered in existing guidance.

“Working Together to Safeguard Children” explains the circumstances in which information needs to be shared in the course of action being taken to safeguard children. “Information sharing: practitioner’s guide” provides practitioners across all children’s services with clear guidance on when and how they can share information legally and professionally. The two guidance documents were published in April 2006, and together they provide an effective framework for sharing information between local authorities, police forces, health organisations and others.

Significant progress has also been made on implementing the recommendations aimed at improving police management of information contained in the Bichard report. Regular progress reports have been provided to Parliament. Guidance to the police on information management and sharing was issued in March under the code of practice on police information management. Police and local authorities will also have regard to the guidance in “Working Together to Safeguard Children”.

Under the circumstances, we do not believe that further guidance is required at present. I therefore ask the hon. Lady to withdraw the motion.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I can quite see the point of existing guidance. My one concern is what will trigger further changes. Perhaps lacking at the moment is the trigger for work to be done on such protocols. The advantage of having something in the Bill is that it would focus the mind on the need for continual monitoring and revising in this important area. I am happy to withdraw motion.

New Clause 2

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I beg to move, That the clause be read a Second time.

Eric Martlew (Labour, Carlisle)

With this it will be convenient to discuss new clause 3—Other organisations: duty to provide information on request—

‘(1) This section applies if IBB is considering—

(a) whether to include any person in a barred list; or

(b) whether to remove any person from a barred list.

(2) If IBB thinks that an organisation holds any prescribed information relating to the person specified in subsection (1), it may require the authority to provide it with the information.

(3) The organisation must comply with a requirement under subsection (2).’.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

Again, the new clauses are probing. I wish to touch on other areas that we feel are not fully covered by the Bill. One gives power to organisations to refer cases to the IBB, and the other suggests that other organisations should have the duty to provide information on request. They both tackle the same area, and I seek a little more detail on the responsibilities and duties of those other organisations.

During debates in the other place, the Government clarified that under the Bill it would be possible for other bodies that do not have a duty to refer cases to the IBB to do so. Examples that have been mentioned in discussions include doctors, psychologists, some NGOs, Barnardo’s and the National Society for the Prevention of Cruelty to Children; they will obviously encounter cases in which they believe that an individual’s conduct is of concern, in that they pose a risk to children or vulnerable adults, and they may want to refer such cases to the IBB.

It would be helpful if the Minister were further to clarify the Department’s thinking on referrals. For example, will the criteria for such referrals be based on the criteria set out in clause 31 on referrals from local authorities, as the new clauses suggests? What might happen in terms of the IBB seeking more information from the referrer? Unlike local authorities, under clause 32, those other organisations have no requirement to provide prescribed information; the starting point might be for those bodies to provide information, but what happens if the IBB wants more information? That is how the new clauses are linked.

Finally, would organisations that refer conduct cases to the IBB outside the statutory scheme be able to avail themselves of the protections against damages set out in clause 42? Do the Government agree that bona fide referrals should be protected, as are those from local authorities? I should like clarification on that, because it could make referral either less likely or more likely. I await the Minister’s response.

I have gone through my questions rather quickly, and shall be happy to intervene on the Minister if he asks me to. I hope that he sees that the new clauses are two sides of the same coin, dealing first with an offer and then with a need on the part of the IBB to seek more information. We can imagine how that would happen; as MPs in our surgeries, we sometimes get a little information but need to know more about a situation before we can proceed.

I hope that I have put that into context and that the Minister will address the questions. I hasten to say that these are probing new clauses. The issue of organisations offering up information will be really important; it represents new territory beyond the confidentiality that we have had so much of in the past.

Parmjit Dhanda (Labour, Gloucester)

We are discussing two probing new clauses; that is unusual, as we usually talk of probing amendments. However, I welcome them.

The Bill does not prevent an organisation or individual from referring information to the IBB when it or he is not under a duty to do so. The Bill also provides that the IBB must consider any information that it receives from whatever source and of whatever nature. New clause 2 would create a power for any organisation to refer information to the IBB.

We agree that the IBB should not be limited to considering information only from organisations under a duty to provide it, and I reassure the hon. Lady that the Bill imposes no such limitation. For organisations not covered by the duties in the Bill, we plan to issue guidance setting out when we would expect an organisation to make a referral to the IBB. The guidance will advise individuals who wish to make such referrals to refer the information to the police or another appropriate authority, such as a local authority or social services, so that it can be properly investigated and any action needed to protect children or vulnerable adults can be set in train quickly.

New clause 3 would enable the IBB to require information from any organisation when it is considering whether to include or keep a person on a barred list. We have already ensured that the key organisations likely to have such information are under a duty to provide information to the IBB. That duty is imposed on employers that are regulated activity providers, including former employers, local authorities, the police, keepers of registers such as the General Medical Council and supervisory authorities such as Ofsted.

The IBB will also be able to ask any other organisation for information relevant to a barring decision. It seems unlikely that an organisation would not comply with such a request, given that the protection of children and vulnerable adults would be at stake. If such an organisation were reluctant to provide information and if the details that the IBB already had suggested that the child or vulnerable adult might be at risk, the IBB would be able to refer the case to the police and/or other local services for further investigation. That is pretty important.

Our approach strikes the correct balance between ensuring that the IBB has access to information, so that it can make decisions, and avoiding duplicating the investigative and intervention roles of other organisations, including the police and social services. Given those assurances, I hope that the hon. Lady will not insist on her probing new clauses.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I shall not, although I have one question outstanding. As the Minister is in such writing mode, needing plenty of work over the summer recess, I hope that he will answer in due course my other question about the protections against damages, as set out in clause 42. I beg to ask leave to withdraw the motion.

New Clause 4

Maria Miller (Conservative, Basingstoke)

I beg to move, That the clause be read a Second time.

I am pleased that we have reached new clause 4; we have had many discussions during the past few days, and it has looked doubtful whether we would get this far.

We grappled with the important issue that the new clause addresses on the first day of our proceedings; I hope that it gives us an opportunity to flesh out further the arguments and discussions about it. The definitions of “frequently” and “occasionally” have been a vexed question throughout discussions of this Bill in both Houses. Originally, the new clause was to have been reviewed and discussed alongside our original amendment to remove the idea of “frequently” from the Bill and allow professional people within the settings covered to establish a definition of “occasional” relevant to their setting.

One of Lord Adonis’s notes attempted to clarify the meaning of “frequently”, and in doing so define what was meant by “occasionally”. At that point, it was said that if an activity was undertaken for longer than five days continuously, or more than six times a year, it would be deemed to take place frequently and be subject to monitoring.

That strikes us as a rather arbitrary figure in respect of what constitutes “frequently” as opposed to “occasionally”. Can the Minister say anything that would suggest that there is more robustness behind the thinking? If so, he should share it with us, as we have been unable to find that in correspondence on this subject.

At another juncture, Lord Adonis stated that it would perhaps be up to the barred individual to determine whether contact was occasional or frequent. We Conservatives feel that that argument is unacceptable. I should be interested in hearing the Minister’s view. Can the Government be reasonably expecting those who are subject to the rules in the Bill to determine whether they are undertaking activities on an occasional or frequent basis?

Anne Main (Conservative, St Albans)

I remember that during discussion of this matter in the House, one of the issues raised was the annual Eisteddfod in Llangollen, which takes place for five days every year. Perhaps predictable regularity could be incorporated. If it is known that something will come up regularly but not fall within the time scale, that could also be regarded as falling within the remit of the Bill.

Maria Miller (Conservative, Basingstoke)

I thank my hon. Friend for her intervention. Perhaps our new clause would cover what she is talking about. It would oblige an employer to define “occasional basis”, so an Eisteddfod could be dealt with as the people on the ground saw fit, rather than there being a one-size-fits-all approach.

I should like to touch on a couple of comments made by Ministers today that suggest that they might be more in favour of the new clause than I initially thought. Perhaps the Health Minister will support it. He said earlier that we should allow the judgment of front-line professionals to come into play, and front-line professionals are exactly what the new clause is about. If he cannot recall, I should say that it was when we were talking about exemptions. My new clause is intended to let the people who know best about what is happening on the ground have discretion to define what is meant by “occasional”, rather than leaving it to the Minister in his office in Westminster, which I am sure is wonderful, to do it.

The proposal would, along with removing “frequently”, which received cross-party support on the Opposition Benches, allow employers to use their discretion to determine how to define “occasional”. If the Minister feels that that way forward is inappropriate—although I am ever optimistic on these issues and he may see the merit in the argument that we are advancing—perhaps I could urge him to think a little further. I have asked the people who have to implement such rules and regulations about how they regard Lord Adonis’s description of what counts as occasional and frequent, and the Government may be a little bit more out of step with the people who will apply those procedures than they think they are.

Hampshire county council, which, as the Minister knows, is designated by the Government as an excellent education authority and an excellent council—

Tim Loughton (Conservative, East Worthing and Shoreham)

Conservative-run.

Maria Miller (Conservative, Basingstoke)

Indeed. It has taken this issue seriously in its safer recruitment toolkit, which is available online for all employers and employees in Hampshire. That toolkit talks specifically about what constitutes occasional work:

“Occasionally, volunteers may be engaged to assist with a single event only, where they will be working under the supervision of a qualified member of staff, or may be undertaking a role that will allow them no unsupervised access to children. In such instances, headteachers should use their professional judgement—

echoing the Minister’s words—

“to determine if disclosure is necessary.

Hampshire education authority felt that Lord Adonis’s proposal on the definition of “occasional” was not in line with what it would like to see in respect of schools in the county. This is a most important aspect of the Bill that deserves to be focused on a little more by the Government. I hope that the Minister will be able to tell me how he will deal with the differing views of what constitutes “occasional” or “frequently” and whether he will allow employers such as Hampshire education authority, which has a great deal of experience in this area, the flexibility that they will need to deal with the circumstances on the ground.

Parmjit Dhanda (Labour, Gloucester)

For the first time in many hours of debate we are moving towards a new Tory party policy being fleshed out. I am looking forward to having a good look at Hansard. I am rubbing my hands with glee, because I cannot wait to get my hands on the document from Hampshire to see exactly what it means. Having got our teeth into that, we shall assume that that is how the Tory Front Bench want to define “occasional” and “frequently”. We will see about that in time.

The new clause takes us into consideration of a key term in the Bill: “on an occasional basis”. We did more than touch on that issue on Tuesday. The exemptions from the obligation on the employee to be subject to monitoring and on the employer to check whether a person is subject to it apply when a person is engaged in specified activities, such as caring for children or vulnerable adults in a key setting such as a school or care home,

“only on an occasional basis.”

Let me be clear that the term, “on an occasional basis”, is intended to take its normal meaning. We do not think that it is desirable to restrict the circumstances in which an employer, for example, would not be under a duty to check an individual’s status. In reality, an interpretation of the term “occasional” will, to some extent, depend on the circumstances of the employment. Our guidance will support employers and employees in taking those decisions. However, having said that, I am looking forward to reading Hansard closely to see what the hon. Member for Basingstoke said and returning to that on Third Reading.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

Although I might be enjoying the political sparring as a spectator, I think that it is important to sort out the meaning of the words “frequently” and “occasional”. I hope that, come what may, the Minister will look at this issue closely. The new clause might not be quite the right solution for all circumstances, but there might be some merit in it in respect of large employers. I emphasise that this aspect of the Bill is so important. At present there are serious loopholes in the Bill. It is incumbent on all Committee members to sort out the issues involving “occasional” and “frequently”.

Parmjit Dhanda (Labour, Gloucester)

The hon. Lady makes her point well. I do not disagree that these are important issues. However, I remind the Committee that, as we discussed on Tuesday, it is important to consider the consequences of the definitions we decide on and that we come up with the right balance. Our intention is that, subject to the circumstances of a particular job, anything happening less than once a month and any contract shorter than a week can be regarded as occurring occasionally. Some hon. Members do not like that, which is fine. I am pleased to hear some alternative policies being fleshed out, so we can start to consider them.

We intend that parents who help children with reading in primary schools should not have to be subject to monitoring and schools should not have to check their status if they help only once, or help once a term during a school year. That is not unreasonable. However, as I said on Tuesday, we are currently keeping the definition of “frequently” under consideration and we will return to it on Report.

Anne Main (Conservative, St Albans)

Will the Minister give way?

Parmjit Dhanda (Labour, Gloucester)

I welcome the hon. Lady’s intervention. However, when she speaks, I should like her to consider something. She asked about whether we should ensure that those involved with an annual event should be monitored and part of the scheme. Does she think that it is possible that the people who organise such a yearly event—possibly volunteers—may cancel it, because they will be under a form of regulation and will have to be part of the vetting and barring scheme?

Anne Main (Conservative, St Albans)

I should like further clarification. Does the Minister think that there is a greater difference between someone popping in for a few hours once a week and somebody who has sole control of a child for 24 hours a day for a festival lasting four or fivedays? Such a situation would provide significant opportunities for abuse to take place, whereas one hour a week in a classroom may not. That is not a fair comparison.

Parmjit Dhanda (Labour, Gloucester)

I was hoping for the second part of that intervention, but it never came. The hon. Lady makes a fair point about people who have close contact with children. However, the Bill has to be proportionate. Is she saying that any person who has 24-hour contact with a child once a year should be part of the scheme?

Anne Main (Conservative, St Albans)

No.

Parmjit Dhanda (Labour, Gloucester)

She is not saying that. These matters need to be fleshed out. We have the early parts of a policy developing from Basingstoke and Hampshire and I should be delighted to hear the view fromSt. Albans.

Anne Main (Conservative, St Albans)

I did not say 24-hour-a-day contact happening once. I was talking about a significant period of four or five days, which might be a whole camping, eisteddfod or festival period, which could give rise to opportunities. I want to be sure that the Minister has given such instances real consideration—that he has not just dismissed them lightly but thoroughly examined the issue and concluded that there is no real loophole.

Parmjit Dhanda (Labour, Gloucester)

I am not ignoring it, and I will consider it—and all other cases. If the hon. Lady is making representations to me about those who are involved in festivals and the relevant groupings around the country—and if she is also telling them—that that is what we should do, I welcome her saying so. However, I think that she will find that there are consequences. Through guidance, therefore, we shall give employers and employees a measure of clarity about the circumstances in which the exemptions will apply. Our extensive work with stakeholders has led us to expect that employers and individuals will take account of the guidance, so that putting a duty on employers to act accordingly would add little. Given the existence of criminal offences in this context it is highly likely that the type of consideration set out in the new clause would happen in any event, without the need for a potentially burdensome duty on employers. With all that in mind, I ask the hon. Member for Basingstoke to withdraw the motion.

Maria Miller (Conservative, Basingstoke)

The Minister will know, from reading all the briefing documents on the Bill, that this issue is its Achilles heel. Perhaps some of his reactions to the new clause are due to his realising that he needs to think more about the topic. The stakeholders to whom he has referred have clearly identified issues such as frequency, what is meant by “occasional”, and the lack of definition. My hon. Friends and Liberal Democrat Members have time and again pointed out those issues, which the Government choose to brush aside. That is a shame.

The Minister has contradicted himself several times. The Health Minister has talked about allowing front-line professionals their judgment; if the Minister cares to refer to Hansard he will see that in Tuesday’s debate he talked about the problems of the issue of frequency and the fact that there is a need to look further at the issue. I am heartened by his saying that he will return to the matter on Report. I will hold him to that promise, because the Government are being more than a little vague. In the interest of time, however, I beg to ask leave to withdraw the motion.

Parmjit Dhanda (Labour, Gloucester)

On a point of order, Mr. Martlew. The least I can do is to congratulate you on the excellent job that you have done in chairing your first Committee. I also congratulate Opposition Members for the probing job that they have done, even if they have been slightly irritable at times during the week. I also thank Mr. Conway for his contributions, as well as the police and those involved from the House authorities. I am grateful to my hon. Friends the Under-Secretaries of State for the Home Department and for Health, for their steadfast support, and to Back Benchers on both sides of the Committee, who have contributed to a week of healthy debate. It would be rude of me, Mr. Martlew, not to mention also the excellent work of the two Whips who ensured that we finished our consideration and used our time to the full.

Maria Miller (Conservative, Basingstoke)

Further to that point of order, Mr. Martlew, I add my thanks and those of my hon. Friends. You did an excellent job in your first chairmanship of a complex Bill. I also thank Mr. Conway for his chairmanship. I should clarify for the Minister that he should get used to the fact that Conservatives feel deeply about these issues; that is not irritability but a probing spirit and a desire to ensure that we get such Bills right.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

Further to that point of order, Mr. Martlew. May I quickly add my thanks to you and Mr. Conway for chairing the proceedings? It makes a nice change for us to complete consideration of a Bill, and that is pleasing. I thank the Minister for the answers that we have had, and look forward to future exchanges. I thank my hon. Friend the Member for Brent, East (Sarah Teather) who has made some interesting interventions, and all other members of the Committee.

Eric Martlew (Labour, Carlisle)

I thank the Committee for the comments on my chairmanship.