Law and Rights
Vetting and Barring (VBS)
Background - In August 2002, two girls - Holly Wells and Jessica Chapman - went missing in the small town of Soham. Two weeks later their bodies were discovered. Ian Huntley (School Caretaker) and Maxine Carr (Teaching Assistant) were arrested. In December 2003 Huntley was convicted of the murder of the two girls and Carr was convicted of perverting the course of justice. Huntley received two life sentences and Carr was sentenced to three and a half years imprisonment. She is now released and lives under a new identity. See Soham Murders. The Home Secretary of the day (David Blunkett) set up an inquiry to be chaired by Sir Michael (now Lord) Bichard. The inquiry reported in June 2004 and the report was very critical of the Police. It transpired that Huntley had been investigated for a considerable number of alleged sexual offences involving young girls but he had not been charged with any. Humberside Police thought it to be unlawful (under Data Protection legislation) to hold data regarding allegations which did not lead to convictions even though other forces were doing so. Bichard recommended the establishment of a registration scheme for those wishing to work with children or vulnerable adults. The outcome was the Safeguarding Vulnerable Groups Act 2006 (SVGA) which set up what is referred to as the "Vetting and Barring Scheme" (VBS) which is now administered via the Independent Safeguarding Authority (ISA).
Reviews of the Safeguarding Vulnerable Groups Act - It is interesting to note
that the SVGA has been the subject of two reviews. In December 2009, Sir Roger Singleton reported - "Drawing the Line." There was a further "remodelling review" which reported on 11th February 2011. The remodelling review - (full reading of the report is necessary) - essentially recommends retention of the benefits of the VBS whilst addressing some of the criticisms and making it more proportionate. For instance, the VBS is considered by some to be too complex, risk-averse and failing to encourage responsible behaviour by employers when recruiting staff. There are also two bodies involved with certain pre-employment checks: the Criminal Records Bureau (CRB) and the ISA. The proposal is that those bodies be merged. Of course, any relaxation of the scheme runs the risk that some persons currently barred from what is known as "regulated activity" may come out of the net as the definition of regulated activity is altered.
The effect of the Protection of Freedoms Bill - The Bill (Part 5 Chapter 1) seeks to amend the vetting and barring system (Clauses 63 to 76). An immense amount of "cutting and pasting" is needed to trace from the various clauses to the SVGA in order to see exactly what the final product will be like. Clause 63 restricts the scope of "regulated activities" in relation to children. Clause 64 restricts the definition of vulnerable adults. Clause 65 restricts the scope of "regulated activities" in relation to vulnerable adults (as redefined). Clause 66 alters the test for barring decisions. Clause 67 abolishes the somewhat confusing category of "controlled activity" - (SVGA sections 21 to 23 will be removed). Clause 68 abolishes the requirement for monitoring - (SVGA sections 24-27 will be removed). Clause 69 deals with information for the purpose of making barring decisions. Clause 70 deals with review of barring decisions. Clause 71 - information about barring decisions (replacing SVGA sections 30-32). Clause 72 deals with the duty to check whether a person is barred. Clause 73 - need not concern us here. Clause 74 - makes amendments to the duties of professional bodies (amends SVGA s.41). Clause 75 makes amendments relating to supervisory authorities. Finally Clause 76 makes minor amendments.
It remains to be seen whether this rebranding of the scheme will prove to be satisfactory though some of the amendments will no doubt be welcomed. The NSPCC broadly welcomed the proposals but has raised some concerns - (e.g. relating to the alteration to the definition of regulated activity) - which may be read in their Parliamentary Briefing paper. Useful articles on the SVGA are "The SVGA 2006 - a step too far?" and "The latest on the SVGA 2006" which looks at the implications of the Protection of Freedoms Bill.
The Bill (Part 5 Chapters 2 and 3) amend the law relating to Criminal Records.
Certain older sexual offences - Chapter 3 is concerned with disregarding certain older convictions relating to consensual sex between men over the age of consent. Such convictions will be treated as spent and will not show on criminal record checks.
Criminal Records Bureau Checks - The Police Act 1997 Part 5 enables the Secretary of State to issue certificates to applicants containing their criminal records and other relevant information. In practice, this role is carried out by the Criminal Records Bureau (CRB). Certificates may be "basic" (just convictions not spent); "standard" (all convictions and cautions) and "enhanced" (convictions, cautions, information from Police records such as interviews and, in appropriate cases, barred list information from the ISA) Currently, "basic" certificates are not available from the CRB. This regime has been reviewed twice by Mrs Sunita Mason (Independent Adviser for Criminality Information Management). Her first report was issued in March 2010 - "A Balanced approach: Safeguarding the public through the fair and proportionate use of accurate criminal record information." Her second review was requested by the coalition government and is being carried out in two phases. The first phase report was issued on 11th February 2011. Again, a full reading is necessary but a summary of the recommendations is available together with a link to the full report. The Protection of Freedoms Bill seeks to implement some of the ten recommendations in Mason's report.
The recommendations to be implemented include ensuring that those under 16 are not eligible for criminal record checks. That checks become "portable" between positions within the same employment sector. A system is introduced "online" to allow employers to check if updated information is held on an applicant. Criminal records certificates will be issued directly to the applicant who will be responsible for its disclosure to potential employers or voluntary bodies. A number of changes will be made relating to disclosure decisions by the Police including a statutory Code of Practice and an open and transparent representations process for individuals to challenge inaccurate or inappropriate disclosures and disclosure of police information will be overseen by an independent expert.
Unlocking Employment has a summary of the Bill in relation to the VBS and CRB checks.
House of Commons Research Paper 11/20 (23rd February 2011) Chapter 8.
Protection of Freedoms Bill
Explanatory Notes to the Bill
- Enhanced Criminal Records Certificates
The Administrative Court has decided R (Application of J) v Chief Constable of Devon and Cornwall [2012] EWHC 2996 (Admin) Foskett J. The application concerned an Enhanced Criminal Records Certificate which the Police were proposing to issue in...
- "counter-terrorism Powers" - The Protection Of Freedoms Bill - No.6
The United Kingdom has very extensive "anti-terrorism" legislation. The modern history of this perhaps begins with the enactment - over just two days in November 1974 - of the Prevention of Terrorism (Temporary Provisions) Act 1974. This was...
- A Look At The Protection Of Freedoms Bill - No.1
The government has put before Parliament the much heralded Protection of Freedoms Bill - see The Bill and Explanatory Notes. The Bill has emerged as a result of the Coalition Agreement . The "short title" of the Bill perhaps owes much to political...
- A Breathtaking Bill Of Which Even Henry Viii Would Have Been Proud ...!
On 28th October, the government's Public Bodies Bill received its first reading in Parliament - actually it has been first introduced via the House of Lords. We all knew that, mainly for economic reasons, a "Bonfire of the Quangos" was being...
- Rehabilitation Of Offenders - (1) Overview
Probably most people would agree that offenders ought to be given the opportunity to rehabilitate themselves into society. Nevertheless, a balance has to be achieved between the rehabilitation of the offender and public protection from those who...
Law and Rights
Vetting and Barring and Criminal Records: The Protection of Freedoms Bill No.7
Background - In August 2002, two girls - Holly Wells and Jessica Chapman - went missing in the small town of Soham. Two weeks later their bodies were discovered. Ian Huntley (School Caretaker) and Maxine Carr (Teaching Assistant) were arrested. In December 2003 Huntley was convicted of the murder of the two girls and Carr was convicted of perverting the course of justice. Huntley received two life sentences and Carr was sentenced to three and a half years imprisonment. She is now released and lives under a new identity. See Soham Murders. The Home Secretary of the day (David Blunkett) set up an inquiry to be chaired by Sir Michael (now Lord) Bichard. The inquiry reported in June 2004 and the report was very critical of the Police. It transpired that Huntley had been investigated for a considerable number of alleged sexual offences involving young girls but he had not been charged with any. Humberside Police thought it to be unlawful (under Data Protection legislation) to hold data regarding allegations which did not lead to convictions even though other forces were doing so. Bichard recommended the establishment of a registration scheme for those wishing to work with children or vulnerable adults. The outcome was the Safeguarding Vulnerable Groups Act 2006 (SVGA) which set up what is referred to as the "Vetting and Barring Scheme" (VBS) which is now administered via the Independent Safeguarding Authority (ISA).
that the SVGA has been the subject of two reviews. In December 2009, Sir Roger Singleton reported - "Drawing the Line." There was a further "remodelling review" which reported on 11th February 2011. The remodelling review - (full reading of the report is necessary) - essentially recommends retention of the benefits of the VBS whilst addressing some of the criticisms and making it more proportionate. For instance, the VBS is considered by some to be too complex, risk-averse and failing to encourage responsible behaviour by employers when recruiting staff. There are also two bodies involved with certain pre-employment checks: the Criminal Records Bureau (CRB) and the ISA. The proposal is that those bodies be merged. Of course, any relaxation of the scheme runs the risk that some persons currently barred from what is known as "regulated activity" may come out of the net as the definition of regulated activity is altered.
The effect of the Protection of Freedoms Bill - The Bill (Part 5 Chapter 1) seeks to amend the vetting and barring system (Clauses 63 to 76). An immense amount of "cutting and pasting" is needed to trace from the various clauses to the SVGA in order to see exactly what the final product will be like. Clause 63 restricts the scope of "regulated activities" in relation to children. Clause 64 restricts the definition of vulnerable adults. Clause 65 restricts the scope of "regulated activities" in relation to vulnerable adults (as redefined). Clause 66 alters the test for barring decisions. Clause 67 abolishes the somewhat confusing category of "controlled activity" - (SVGA sections 21 to 23 will be removed). Clause 68 abolishes the requirement for monitoring - (SVGA sections 24-27 will be removed). Clause 69 deals with information for the purpose of making barring decisions. Clause 70 deals with review of barring decisions. Clause 71 - information about barring decisions (replacing SVGA sections 30-32). Clause 72 deals with the duty to check whether a person is barred. Clause 73 - need not concern us here. Clause 74 - makes amendments to the duties of professional bodies (amends SVGA s.41). Clause 75 makes amendments relating to supervisory authorities. Finally Clause 76 makes minor amendments.
It remains to be seen whether this rebranding of the scheme will prove to be satisfactory though some of the amendments will no doubt be welcomed. The NSPCC broadly welcomed the proposals but has raised some concerns - (e.g. relating to the alteration to the definition of regulated activity) - which may be read in their Parliamentary Briefing paper. Useful articles on the SVGA are "The SVGA 2006 - a step too far?" and "The latest on the SVGA 2006" which looks at the implications of the Protection of Freedoms Bill.
Criminal Records: CRB Checks
The Bill (Part 5 Chapters 2 and 3) amend the law relating to Criminal Records.
Certain older sexual offences - Chapter 3 is concerned with disregarding certain older convictions relating to consensual sex between men over the age of consent. Such convictions will be treated as spent and will not show on criminal record checks.
Criminal Records Bureau Checks - The Police Act 1997 Part 5 enables the Secretary of State to issue certificates to applicants containing their criminal records and other relevant information. In practice, this role is carried out by the Criminal Records Bureau (CRB). Certificates may be "basic" (just convictions not spent); "standard" (all convictions and cautions) and "enhanced" (convictions, cautions, information from Police records such as interviews and, in appropriate cases, barred list information from the ISA) Currently, "basic" certificates are not available from the CRB. This regime has been reviewed twice by Mrs Sunita Mason (Independent Adviser for Criminality Information Management). Her first report was issued in March 2010 - "A Balanced approach: Safeguarding the public through the fair and proportionate use of accurate criminal record information." Her second review was requested by the coalition government and is being carried out in two phases. The first phase report was issued on 11th February 2011. Again, a full reading is necessary but a summary of the recommendations is available together with a link to the full report. The Protection of Freedoms Bill seeks to implement some of the ten recommendations in Mason's report.
The recommendations to be implemented include ensuring that those under 16 are not eligible for criminal record checks. That checks become "portable" between positions within the same employment sector. A system is introduced "online" to allow employers to check if updated information is held on an applicant. Criminal records certificates will be issued directly to the applicant who will be responsible for its disclosure to potential employers or voluntary bodies. A number of changes will be made relating to disclosure decisions by the Police including a statutory Code of Practice and an open and transparent representations process for individuals to challenge inaccurate or inappropriate disclosures and disclosure of police information will be overseen by an independent expert.
Additional Links:
Unlocking Employment has a summary of the Bill in relation to the VBS and CRB checks.
House of Commons Research Paper 11/20 (23rd February 2011) Chapter 8.
Protection of Freedoms Bill
Explanatory Notes to the Bill
- Enhanced Criminal Records Certificates
The Administrative Court has decided R (Application of J) v Chief Constable of Devon and Cornwall [2012] EWHC 2996 (Admin) Foskett J. The application concerned an Enhanced Criminal Records Certificate which the Police were proposing to issue in...
- "counter-terrorism Powers" - The Protection Of Freedoms Bill - No.6
The United Kingdom has very extensive "anti-terrorism" legislation. The modern history of this perhaps begins with the enactment - over just two days in November 1974 - of the Prevention of Terrorism (Temporary Provisions) Act 1974. This was...
- A Look At The Protection Of Freedoms Bill - No.1
The government has put before Parliament the much heralded Protection of Freedoms Bill - see The Bill and Explanatory Notes. The Bill has emerged as a result of the Coalition Agreement . The "short title" of the Bill perhaps owes much to political...
- A Breathtaking Bill Of Which Even Henry Viii Would Have Been Proud ...!
On 28th October, the government's Public Bodies Bill received its first reading in Parliament - actually it has been first introduced via the House of Lords. We all knew that, mainly for economic reasons, a "Bonfire of the Quangos" was being...
- Rehabilitation Of Offenders - (1) Overview
Probably most people would agree that offenders ought to be given the opportunity to rehabilitate themselves into society. Nevertheless, a balance has to be achieved between the rehabilitation of the offender and public protection from those who...