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Committee for Health,
Wednesday 11 September 2002
MINUTES OF EVIDENCE
Protection of Children and Vulnerable Adults
Dr Hendron (Chairperson)
Mr I Elliott ) National Society for the
The Chairperson: Thank you for coming. You are very welcome.
Mr Elliott: The NSPCC is very grateful to the Committee for this opportunity to give evidence on the Protection of Children and Vulnerable Adults Bill. We have been closely involved in campaigning for this legislation and for improvements in our system of suitability checking for those who work with children. We feel that the provisions of the Bill are the sound product of constructive consultation. We commend the Department for attempting to address our concerns.
In some respects, the proposals in the Bill take us beyond current practice in other jurisdictions. In particular, the concept of accreditation in clause 16 deals imaginatively with the absence of an obligation under the Protection of Children Act 1999 for non-childcare organisations to refer those dismissed for harming children or, indeed, to carry out checks against the 1999 Act list. Accreditation, if developed imaginatively, has the potential to improve child protection standards in non-regulated organisations.
This Bill establishes a floor, not a ceiling. The challenge will lie in its implementation and outworking. We still have questions about the policy intent of the Bill, and a few technical queries about the legislation. The Committee may find it helpful to tease these out with departmental officials during the Committee Stage of the Bill.
Accreditation of voluntary organisations should be supported and promoted by all Departments. Ideally, we would like to see this concept acquire the status of a Kitemark. Parents will want to know that organisations meet expected standards in child protection.
What is the Department’s position regarding the imposition of fees, both for accreditation and for accessing the registers, for smaller organisations that depend on the use of volunteers? We hope to see those fees waived, as has already been announced by the Home Office and the Scottish Executive in equivalent legislation. It is an important issue. Small organisations could be overburdened by the costs involved in carrying out checks, which could be a considerable disincentive.
We seek adequate all-island systems of suitability checking, placing emphasis on how this issue is being progressed by the Department of Health and Children in the Republic of Ireland. Although the Minister has announced that access to the Department’s list will be available to organisations in the South for checking on staff who have been domiciled or have worked in Northern Ireland, the lack of an equivalent consultancy index or, indeed, criminal records system, is worrying. It effectively creates a major loophole in our own system for staff coming from South of the border.
We recommend the establishment of an advisory panel with expertise drawn from inside and outside the Department to consider cases for potential listing under clause 2. We suggest the establishment of a small reference group to assist the Department in examining individuals for potential listing against the criteria to be used.
We welcome the development of the pre-employment consultancy service (PECS) awareness group to promote and raise awareness of vetting and to provide information for parents. This group has an important role to play in the outworking of the Bill.
It is important to recognise that a range of situations are not covered by the scope of the Bill, such as, for example, self-employed entertainers, unregistered childminders employed in parents’ own homes, and au pairs not employed through an employment agency. There is an urgent, ongoing need to educate the public about the limits of vetting people’s suitability to work with children. The Department’s list is but one component of good employment practice. That is an important message to convey to the public.
The NSPCC recommends that the PECS awareness group be established as a permanent forum within the Department to develop the public education component of suitability checking, and that the group develop strategic outputs that link into, and are overseen by, the proposed child protection review group that is being established by the Department.
I wish to draw to the attention of the Committee some potential amendments that we would like you to consider. The first relates to clause 13. There is a complex interface between List 99 and the Department’s list. That is particularly so in regard to Regulations that have yet to be developed by the Department of Education under the Education (Northern Ireland) Order 1996. Ms Caul of the Children’s Law Centre will deal with that in more detail.
We suggest that the Committee consider the necessity of the phrase "(other than provisionally)" in clauses 13(2) and 13(3). We have been advised by the Department of Education that, if someone is listed provisionally on the Department’s list, then procedurally and under Regulations to be developed by the Department they could still be working with children. We are unclear as to why this distinction is in the Bill. Is it necessary?
The second proposed amendment relates to clause 17. The NSPCC has had lengthy discussions with the Department regarding this clause and the adequacy of the proposed whistle-blowing arrangements. This is another unique feature of the Bill. There is a complex balance of considerations in this clause, set within the context of human rights issues.
We understand that, in many ways, clause 17 will interface with accreditation and other regulatory requirements and, over time, be reflected in the development of whistle-blowing policies in organisations. However, we propose a slight amendment, which, we understand, may be supported by the Department. The Committee may wish to consider a provision to allow organisations to blow the whistle on other bodies where they are aware that the requirements of clause 2 are not being fulfilled — for example, when a person is dismissed for harming children, is listed by the Department, and moves to another childcare organisation, and requirements are not followed. It should be remembered that the Martin Huston case involved an individual who moved from one voluntary organisation to another to further his abuse of children. We suggest changes in the wording of clause 17 to strengthen it and address that issue.
Finally, we invite the Committee to address Part V of the Police Act 1997, which extends to Northern Ireland but has not yet been enacted. The 1997 Act is part of UK-wide measures that run in tandem with the provisions of the Protection of Children Act 1999 and this Bill. Part V of the 1997 Act effectively allows for the provision of soft police intelligence — allegations, unsuccessful prosecutions, et cetera — in the form of an enhanced criminal record check that is required for work with children. The failure to apply Part V of the 1997 Act to Northern Ireland is potentially very serious in terms of the interface with this Bill. The position in Northern Ireland will be left different from that in England and Wales.
It may be useful to give an example of how the failure to apply Part V of the 1997 Act to Northern Ireland might impact here. Consider an adult who has had six serious allegations of sexual abuse made against him over a period and one unsuccessful prosecution due to the fact that the child was too young to give evidence. The individual is regarded as a serious risk to children by the police and by social services. However, he has no convictions and has not been dismissed from any post where he has harmed children.
He applies to work in a youth club. He falsifies references, but a check is carried out by the organisation, which is accredited, as required by the Bill. He appears to have a clean suitability check. The Police Service of Northern Ireland has no legal basis on which to advise the Health Department of its soft intelligence, and there is no provision for the production of an enhanced criminal record certificate. He gets the job and has access to children. If he lived in England or Wales, information in regard to his past would become apparent under an application to the Criminal Records Bureau for an enhanced certificate, and he would not be employed.
We do not consider that to be a satisfactory state of affairs. It is damaging to the operation of the Bill. We suggest that the Committee ascertain from Minister of State Jane Kennedy, as a matter of urgency, when Part V of the 1997 Act will be applied to Northern Ireland. The Committee might wish to invite officials from the Northern Ireland Office to explain their intentions in relation to that.
The Chairperson: We have asked the NIO to come to us on that issue.
You referred to clause 17. How would your proposal to extend whistle-blowing to organisations work in practice? What are your views on extending the whistle-blowing provision to vulnerable adults, as well as children?
Mr Reid: Our proposed amendment is a simple one. It provides organisations with legal protection when they blow the whistle on other organisations; for example, if an employer dismisses someone for harming children, but later sees that person taking up, or trying to get, employment elsewhere. The amendment would facilitate an organisation to contact the Department to advise them of the unsuitability of the person and the fact that they are trying to take up employment elsewhere.
I am probably not the best person to answer questions about adults. However, the Bill interfaces with vulnerable adults and children, and we feel that there should be no distinction between the categories.
Mr Berry: Clause 13 of the Bill is about independent schools. Has the Children’s Law Centre established why staff of independent schools and non-teaching staff in institutions of further education are not covered by the education Regulations or the Bill, and what are your views on the extension of the legislation to cover these groups?
Mr Reid: Ms Caul, who is giving evidence next, will deal with some of those matters. This is not how to design a scheme if starting afresh; in a sense, existing systems are being built upon. We have concerns about the lack of clarity as regards List 99, the Department of Education’s requirements for teaching, non-ancillary or ancillary staff. The issue is not clear, which is one reason why you should get departmental officials to clarify the intention. Much is left to faith in the Department of Education to develop Regulations that will bring their scheme into line with the Department of Health, Social Services and Public Safety’s register. There are some peculiarities between the two.
Ms McWilliams: This is a comprehensive background paper. Last week I asked departmental officials about the point you made in your submission that the Department was minded to adopt the amendment to clause 17 relating to whistle-blowing. I quoted the case of Martin Huston to the Department. The Department took a different view; it said that it might not intend to adopt that clause. I am concerned as to how that misunderstanding might have arisen. Clearly you have had contact with the Department — you would have discussed the amendment with them and, therefore, must have put the relevant point into your submission as a consequence.
Mr Reid: I understood that to be the position. There has been substantial contact between the Department and the NSPCC about this clause. Indeed, in many ways we might have proposed other amendments to this clause. I have concerns about what happens when a whistle-blower does not want his or her name used. We had a long and fairly detailed discussion with the Department about clause 17. I also gave the Department a copy of the letter that I sent Mr Hughes on this issue.
Mr Elliott: We discovered the Department’s position on the matter only today, and it fair to say that we are genuinely surprised. However, we would not want that to divert attention from the importance of the amendment. We continue to propose it, and to advocate it.
Ms McWilliams: Such a case could be repeated if this clause is not amended.
Mr Elliott: That is our view, which is why we brought the matter to the Committee’s attention. We are sincerely committed to ensuring that everything possible is done to prevent another tragedy such as the Martin Huston case.
Mr Reid: You need to ensure that loopholes, through which people would fall, do not appear in this complicated legislation. We are seeking to ensure that the legislation is as robust as possible. There are many good aspects to the legislation, and we welcome the fact that it goes further than the Protection of Children Act 1999, which came about as the result of a private Member’s Bill introduced by Debra Shipley MP. She has warmly welcomed the provisions in this Bill and feels that if she could incorporate some of its provisions into her legislation, it would strengthen the Act.
Ms McWilliams: Even with the introduction of this legislation, we will not be able to tackle cases involving self-employed entertainers. In one case, it came to my attention, and the NSPCC’s, that a known paedophile was working as a self-employed entertainer at children’s parties. Obviously this legislation will not cover such cases. The public needs to be made aware of the limitations of the legislation otherwise they could be lured into a false hope that it will cover every aspect of the problem. One thing we know about child abuse is that when the legislation restricts paedophiles, they move into other things. This is a clear incidence that has been left unregulated.
Mr Elliott: It is critical that we raise public awareness of the limitations of vetting — you cited some examples of those limits. That is why the NSPCC has made reference to, and emphasised the importance of, the role of the PECS awareness group.
Mr Reid: Vetting is very important, but the most significant element is Part V of the Police Act 1997. That is why we find it bizarre that the NIO has not been clear about what is actually happening in that regard. PECS and List 99 will capture only those who have been convicted or dismissed. Many people never end up being convicted of offences, which is why Part V of the Police Act 1997 is so significant. If it is implemented it will, through soft police intelligence, capture people who are unsuitable to work with children.
Ms McWilliams: I have accompanied people through the very difficult process of trying to get sex abuse convictions. Sometimes it takes up to three years, which is how long my most recent case took. In that case the police ended up with only a very minor prosecution for indecent assault despite the fact that the victim had suffered a much more serious assault. The problem is that if the person admits their guilt, et cetera, the nature of the conviction will be affected. Does soft intelligence take into account bind overs, cautions, et cetera?
Mr Reid: It involves non-conviction information; for example, if somebody has been investigated several times by police and social services for alleged sex abuse. One would have a fair idea of people who pose a risk in the community, and that information would be part of an enhanced criminal record certificate, if such a person subsequently applied to be a children’s coach. That information would come out as part of the vetting process. Soft intelligence is information about people who have not been convicted or dismissed for harming children, and which the police could make available in an enhanced criminal record certificate, as happens in England.
Ms McWilliams: Is one of the reasons for the delay in recruiting teachers in England the fact that the enhanced certificate is in place?
Mr Reid: The Criminal Records Bureau was launched in March and has had many teething problems. We have had difficulties with the body because, bizarrely, it will not check the Department of Health’s list in Belfast. As a result, people deemed unsuitable to work with children on our current list could go to England and gain employment without that information coming up during a check. We have had lengthy discussions on that, and various MPs have asked why the Criminal Records Bureau has not implemented the legislation on a three-nation agenda. As a result of intervention from Debra Shipley the bureau has set up a three-bureau implementation group to try to deal with some of these cross-jurisdictional issues.
Ms McWilliams: I propose that the Committee ask for the matter to be taken up at the British-Irish Council. OFMDFM is constantly saying that it does not have many agenda items for British-Irish Council meetings. This would be a clear point for discussion. If Scotland, Wales and England were all operating together, that would at least constitute some attempt to tighten the net. However, if the net is left as wide as it is, then "move to Northern Ireland" will be the prescription that we are writing.
Mr Reid: The NSPCC and the Department carried out an audit and looked at where the gaps are. In many ways we are probably better off than anywhere else at present. The major loophole is the Irish Republic, which is a major flaw in the system. The Republic does not have a consultancy index; therefore, someone could move from the Irish Republic up to Northern Ireland without our being able to vet him or her.
The Chairperson: Ms McWilliams’s proposal is good because it takes in both legislatures.
Ms Ramsey: Ms McWilliams raised an important point, but the North/South dimension is also an issue. Could we have a brief update on the situation?
Mr Reid: At present, Northern Ireland is going one way — our standards are improving — and the Irish Government are going the other way — their standards are decreasing. The situation is very serious. In the Irish Republic, statutory agencies, such as health boards, can have a police check carried out on their staff. There is no equivalent of a consultancy index in the Irish Republic. The voluntary sector has been getting employers to use the Data Protection Act 1998 to check people — you go to the garda station, present your data protection form and get your police reference, which is a back-door means of checking. The Irish Government have announced that they are going to outlaw that system. This may sound perverse, but, to be frank, if I were an employer in an organisation in the South I would recruit Northern-based staff, because at least they can be vetted.
The Chairperson: We should ask the Minister to write to Micheál Martin, her counterpart in the South, on the issue.
Mrs I Robinson: You gave a fairly good example of the adverse implications on the Bill if Part V of the Police Act 1997 were not enacted. Are there counter-arguments against enacting the Bill?
Mr Reid: The Committee needs to take that matter up with the NIO. The Police Act 1997 applies to the UK, so I do not understand why it is not being applied in one part of the UK. This Bill has been allowed to develop without clear directional guidance from the NIO. References are made in various documents to the fact that the NIO is debating what is going to happen, but the Bill is seriously weakened by the absence of clear direction as regards Part V of the Police Act 1997.
Mrs I Robinson: Are they playing on the human rights issue to halt the process?
Mr Reid: Given that it is established practice in England and Wales, I would find that hard to believe.
Mrs I Robinson: I cannot understand it either.
The Chairperson: The NIO will be giving evidence to the Committee soon.
Mrs I Robinson: I will raise this issue with them then.
Mr J Kelly: You stated in your comprehensive submission that the Bill seems to establish a floor and not a ceiling. What changes would you suggest that would bring the Bill closer to the ceiling?
Mr Reid: It depends how the Department will implement the accreditation aspect. Accreditation could be viewed as a very minimal scheme, with the result that to gain accreditation an organisation has to have a child protection policy and carry out vetting — that is one level. On the other hand, the Bill could say that to be accredited an organisation has to have a comprehensive child protection policy, a child policy on child friendliness, a whistle-blowing policy, and must allow auditing and inspection. The proof is in the pudding. Accreditation could be comprehensive and significant.
The NSPCC has a child protection sport unit, which advises sporting organisations. Few sporting organisations are registered with the Department for vetting. Of the 82 sporting organisations, few are registered. If a broad system of accreditation were established, parents will ask organisations why they are not accredited, which would be very significant.
The Chairperson: We will stop the discussion there. I thank Mr Reid and Mr Elliott for their helpful presentation and documentation.
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