Members present:

Dr Hendron (Chairperson)
Mr Gallagher (Deputy Chairperson)
Ms Armitage
Mr Berry
Rev Robert Coulter
Mrs Courtney
Mr Hamilton
Mr J Kelly
Ms McWilliams
Ms Ramsey
Mrs I Robinson

Witnesses:

Mr John Clarke ) The Department of Health,
Ms Eilís McDaniel ) Social Services and Public Safety

The Chairperson: I thank John Clarke and Eilís McDaniel from the Department of Health, Social Services and Public Safety for coming to brief the Committee on the background to the Bill.

Mr Clarke: The general purpose of the Bill is to strengthen the arrangements for vetting people seeking to work with children or vulnerable adults by placing the existing arrangements on a statutory basis. New statutory registers will include the names of individuals considered unsuitable to work with children or vulnerable adults. Under the new arrangements, certain organisations will be required to check the new statutory registers before employing an individual in a relevant position. They will also be required to refer the names of those whom they consider to be unsuitable to work with children or vulnerable adults for inclusion on the register.

The Bill seeks to strengthen the existing arrangements through the introduction of offences that an organisation would commit if it knowingly employed an individual who was on the statutory register. It would also be an offence for an individual to work, or seek to work, with children or vulnerable adults while registered on either of the new lists. To protect the rights of people listed on the registers, the Bill introduces a right of appeal to an independent tribunal.

The Bill is quite large, and I am conscious of the time. There are 11 main subject areas in the Bill, which I will touch on briefly. The first main subject area concerns the maintenance of the lists. The Bill makes provision for two lists: one to deal with those deemed unsuitable to work with young children; and the other to deal with those deemed unsuitable to work with vulnerable adults. The Department will maintain the two lists, and it will be possible to place an individual on both if he or she is deemed to pose a risk to both categories of people.

The other main subject area concerns access to the lists. Where a childcare organisation proposes to offer an individual employment in a childcare position, the organisation will be required to check whether the individual is on the list. The organisation will also be required to check the lists of those deemed unsuitable to work with children on the grounds that they pose a risk which are held by the Department of Education. The legislation interfaces with the suitability of those who wish to work in schools. I am sure that there will be discussion about the fact that the Bill would require only childcare organisations to carry out checks, while other organisations may carry out checks. The Department will facilitate checks against the list. The provisions in relation to vulnerable adults are broadly similar.

Childcare organisations will be required to make referrals to the list of those deemed unsuitable to work with children. The criteria for an organisation to make a referral broadly concern whether an individual has harmed a child.

Ms Ramsey: May we comment point by point?

Mr Clarke: I am happy to deal with it in that way as the Bill is quite big and I could talk about it for a long time.

The Chairperson: It is better to do that as the Bill is extensive.

Ms Ramsey: The Committee received a large response to the draft Bill from individuals and organisations involved in this field. I was struck that although the majority, if not all, of those who responded welcomed the Bill, they were all concerned about the definition of childcare organisations. The Bill states that childcare organisations must carry out those checks, and that other organisations may carry them out. I would hate to go half-a-mile down the road with the Bill, with everyone welcoming it, only to go back half-a-mile because of the definition of childcare organisations.

The Bill is for the protection of children and vulnerable adults, but organisations working with vulnerable adults are not classed as childcare organisations, which means that although the adults are vulnerable, people working with them do not have to undergo the same check as those working with children.

Mr Clarke: That would not be right. A duty is placed on those who provide services to vulnerable adults. There is a whole raft of issues concerning what the term "vulnerable adult" means, and we will come to that later. Providers of services to vulnerable adults have a duty, comparable to that of providers of services to children, to make referrals to the relevant list of those unsuitable for work with vulnerable adults.

Ms Ramsey: What is the Department’s definition of a childcare organisation?

Mr Clarke: The definition of a childcare organisation is contained in the legislation. The whole point of having such a definition is to enable the identification of organisations so that statutory duties can be placed upon them. Clause 18 (1) states that

The Chairperson: We will move on.

Mr Clarke: As regards appeals, a person will not be placed on either list without being able to make representations to the Department. The Bill sets out the referral process. When the person has been informed of the referral, they are invited to make comments. The organisation that made the referral may also be required to do so. Only after the Department has considered all the representations made by the individual and the organisation will a decision be taken to place an individual on a list. The person will still have the right to appeal to an independent tribunal.

The Bill creates powers to allow the Department of Education to make regulations that will prevent an individual being employed as a teacher or in other education-related employment involving children. Those regulation powers will be added to the Department of Education’s existing power to make regulations relating to the suitability of people working in the education sector.

The Bill makes it an offence to work in a regulated position, and the definition of "regulated position", as set out in the Bill, is extremely wide. It covers all areas where people work with children. The Bill also makes provision for disqualification orders to be made. The court will have the power to make a disqualification order on people who have been convicted of certain offences set out in the schedule to the Bill. The effect of the disqualification order will be similar to being placed on the list held by the Department in that it will be an offence to work, or seek work, with children whilst subject to a disqualification order.

There are inter-jurisdictional arrangements. The Bill makes provisions for any disqualification or prohibition from working with children made in another jurisdiction to apply in Northern Ireland. That power is stated widely in the Bill, and the Department will have the power to enforce all disqualifications regardless of where they are imposed — in another European jurisdiction or elsewhere.

The Criminal Records Bureau is associated with the Bill, and it is topical as its mechanism in England and Wales is now receiving adverse publicity. The Department has been informed that the Secretary of State in the Northern Ireland Office, who has responsibility for this area, does not intend to commence the legislation in Part V of the Police Act 1997, which would create a body equivalent to the Criminal Records Bureau in Northern Ireland. That means that the Department will carry out the checks, including criminal record checks. The Department does that in liaison with the police and will continue to do so.

However, I am concerned about that. Although the Department can access criminal record certificates, there is a problem because Part V of the Police Act 1997 also makes provision for enhanced criminal record certificates, which would include certain "soft information". The enhanced criminal record certificates contain actions that fall short of a criminal conviction. At present the Department does not have a difficulty with accessing criminal records that include convictions and cautions — those are part of criminal records. However, the Department is unclear about whether it can access anything equivalent to an enhanced criminal record certificate in the absence of commencement of Part V of the Police Act 1997. Departmental officials are continuing to discuss those matters with the Northern Ireland Office because they range outside the Bill into other areas.

The definition of "vulnerable adult" may cause problems. Children are presumed to be vulnerable by virtue of their age, but the same does not apply to adults. The Bill provides a lengthy definition of "vulnerable adult", but it is an area of concern. The comparable legislation in England and Wales, the Care Standards Act 2000, has not yet been implemented. My understanding is that it is unlikely to commence until next year. Much of the delay has been caused by substantial difficulties in defining the relevant posts for the purposes of identifying people who are working with vulnerable adults. There are problems in identifying vulnerable adults and deciding which posts require checks to be carried out, particularly those in the health sector which are more problematic than those on the social care side.

Our legislation covers an accreditation scheme that will be open to any non-childcare organisations that apply. We would like the organisations to adopt proper child protection standards, including carrying out checks. I must emphasise that carrying out checks is only part of the child protection measures in the Bill. We would expect accredited organisations to undertake wider implementation of protection standards.

Those are my general comments on the Bill. There may be points that Committee members wish to pick up on.

Ms McWilliams: One or two of the submissions suggested amendments to the Bill. Can you comment on those at this stage? One submission from the National Society for the Prevention of Cruelty to Children (NSPCC) suggests that the Department might accept its amendment concerning accreditation. You are in a better position to comment because you must be familiar with the consultation process and amendments that have been suggested. Can you tell the Committee what stage the Department is at?

Mr Clarke: I am not sure what you want me to say. I am aware of the consultation and what people would like to be changed. We touched on the definition of childcare organisations, for example. Many issues have been raised: do you have a specific one in mind?

Ms McWilliams: I will be specific. The NSPCC’s submission says that it proposed an amendment to clause 17. My understanding is that it is saying that the Department has taken that amendment on board. For example, the Committee may be familiar with the famous Martin Huston case. If I remember correctly, he worked for the Northern Ireland Association for the Care and Resettlement of Offenders (NIACRO) or one of those organisations, but he moved from one organisation to another and was abusive in each post. An organisation should be able to blow the whistle and alert other organisations about an employee who has moved on. At present, an organisation can only blow the whistle on its own employees.

Mr Clarke: That suggests widening the whistle- blowing ability. Despite what the NSPCC has implied, the Department is not in a position to officially accept such an amendment, although it has regular discussions with the NSPCC. That is a policy consideration, and I cannot say that anything has been agreed.

My reaction is that such an amendment would create a new dimension of responsibilities for organisations. The NSPCC might be suggesting that, if an organisation knows that an individual is a potential threat to children, it should inform other organisations. Legislation concerning organisations is generally based on the fact that an organisation has taken some action by dismissing or removing the person from the post. Why should we stop at saying that an organisation should be able to blow the whistle rather than an individual? In other words, anyone should be able to blow the whistle. I am not entirely clear about the logic of allowing one organisation to do it rather than the general public. That opens up some wide-ranging issues.

The Chairperson: When we come to the clause-by- clause discussion of those matters, and possible amendments to them, it will be relevant to us.

Mr Clarke: We must be careful with the Bill not to open up a situation in which anyone can make a referral about a person. I am not saying that that might not be right as regards child protection, but I would caution against that possibility, or going down that road, because it creates a different dimension in respect of the rights of individuals to make accusations against others.

Ms McWilliams: I am certain that the NSPCC is not suggesting that for a moment. I am suggesting that the NSPCC has extensive experience of the problems surrounding the sexual abuse of children and is anxious that the legislation, as currently drafted, does not take on board one of its major concerns. All of us have issues around civil liberties, but the NSPCC has asked that a specific amendment be made. It is obviously the NSPCC’s understanding, but not yours, that the Department is going to take that matter on board. That is all that I wanted to be clarified, because the NSPCC stated that in its submission to us. Clearly, you are not of the same view.

Mr Clarke: I am not in a position to make a decision on a policy such as that. It represents a major policy shift in the Bill, and we would have to take cognisance of it if the Committee is supporting it. My initial view is that it makes the position regarding referrals much wider. While I can understand why the NSPCC would put it forward, I am not sure why it would be limited to an organisation and why individuals would not be permitted to make a referral.

Ms McWilliams: The NSPCC has proposed its own amendment, which limits the right of referral to childcare organisations. It has given us a wording that we can look at.

The Chairperson: We can go back to that in the clause-by-clause discussion.

Mr Clarke: Why would it be limited to a childcare organisation? We are dealing with significant and serious areas of law that involve criminal offences. If referrals were to be permitted, we would have to scrutinise that situation carefully. I would not like to give an off-the-cuff opinion.

Ms Ramsey: To be fair, the NSPCC specifically mentioned the Martin Huston case, and the Police Act 1997, as Mr Clarke said. It is not as if individuals were mentioned. It was about individuals working within organisations and the whole issue of whistle-blowing. Martin Huston was able to move from one organisation to another.

Mr Clarke: I do not want to create the impression that we are dismissing what the NSPCC said. I have been put on the spot on a serious issue and have flagged that as an issue to be returned to.

The Chairperson: We may or may not support that amendment, but it is an important point.

Mr Hamilton: Is the Department satisfied that there are sufficient safeguards to protect workers from malicious accusations? The nature of what we are dealing with means that in certain professions a malicious accusation could be enough to wreck an entire career. We must be certain that the safeguards against that happening are strong enough to ensure that the Bill does not create a different kind of victim.

Mr Clarke: That is linked to what we have been talking about. Referrals are currently based on the assumption that employing organisations have taken some action, such as dismissal or transfer. There are employment issues there. Before the system in the Bill kicks in, a hurdle must be jumped in that the employer will have decided to remove a person.

Outside this Bill there are implications concerning employment law. My focus is on child protection, and we shall go as far as possible to get it right. However, there is a concern about malicious referrals, as well as referrals that are made negligently without much thought, and the whole set of consequences for the person involved. Although it does not happen day and daily, information has been passed to us, as the branch responsible for the existing Pre-Employment Consultancy System (PECS), which puts us in an invidious position. In the current system the criteria are set out, and they are broadly similar to those in the Bill. If I am told that someone is a threat to children — and that could well be the case — I cannot simply make assumptions. That could have implications for an individual. There is a danger of malicious referrals, although I do not know how great that danger is, because it concerns employment situations.

There are sufficient safeguards in the Bill as it stands, because the employer has had to jump a hurdle and make a decision in relation to an individual. That has come from the employing organisation and not from someone who has made a referral with no risk to himself. In dismissing or taking action to move a person in his or her employment, the employer has at the very least rendered himself open, under unemployment law, to further action by an individual. In our concern to protect children we must be very careful that our whole legislative framework is not subject to any challenge that could seriously damage it. There are sufficient safeguards, but it is an area of concern.

In my general comments I did not cover fees, resources and implementation. It is not envisaged that the legislation will have major resource implications; however, those could be famous last words. That is partly because PECS is in operation which makes approximately 30,000 checks a year. Unlike other occasions, if the numbers were to rise, we could calculate the difference fairly accurately because a system is already in operation here. For example, if vulnerable adults were to weigh in with an equal number of people, it would not be difficult to calculate the necessary additional staffing resources, which would amount to only three or four people.

Ms McDaniel is giving some thought to streamlining the way in which we do business. Our current system is largely manual and savings could be made if IT were introduced. However, major resource implications are not anticipated. Provision is made for fees to be charged, and those would offset resource implications. Voluntary organisations could be charged fees, and that is an issue. Many issues come to light, and I do not wish to address all of them now.

With regard to implementation, we are much further advanced in relation to children than to vulnerable adults. We could probably commence this for children in approximately one year, which would allow for the revamping of guidance and other matters, as it would not be such a revolution in the work of organisations. The text of existing guidance would be more closely modelled on the legislation. There is a lot of work to be done, but it is achievable in a relatively short time.

The arrangements for vulnerable adults have caused substantial problems in England and Wales and will not commence there for another three years. We are less confident about the timescale. The only vulnerable adults that we currently deal with are adults with learning disabilities, so we do not have the full system, or anything like it, for vulnerable adults at present.

Ms McWilliams: My question relates more to the NIO than your Department, but clearly you have been in consultation with the NIO. It relates to soft intelligence, as opposed to hard intelligence, and the enhanced certificate that exists in England and Wales, but not here.

Mr Clarke: Strictly speaking, that relates to the commencement of Part V of the Police Act 1997. The Criminal Records Bureau is the mechanism for doing that in England and Wales, and it has many problems. Although we can see an administrative way round being able to get criminal records certificates, as at present, our problem is that the public should be sensitive about situations where people have not been convicted, but where there is sufficient evidence for the police to certify something about those people. It is obvious that we need that, and that legislation already extends to Northern Ireland. There will be communication at ministerial and other levels with the Secretary of State about when it will commence, but there are no plans for that at present. We can go ahead with our legislation because that is outside our legislation. However, I mention it because it is relevant to the child protection issue.

Ms McWilliams: That is one of the major areas where problems arise. We all know the difficulty of getting convictions, especially where there is a clear record of intelligence, but no conviction.

Mr Clarke: The release of intelligence requires the legislative backup, which is why that was legislated in the first instance. It is a potentially dangerous area because of people’s rights. That is why we have Part V of the Police Act 1997, which already extends to Northern Ireland. We can work the system as this does not affect the Bill — it is working at present. However, for the protection of children that is an element that is missing. It is an element that we need in this area, and it is also needed outside the Bill for other vetting. It is wide-ranging and includes the suitability of people to adopt children. There is a whole raft of issues in the Police Act 1997 that touch on enhanced certificates, and this can only be answered by its commencement or some decision taken in connection with what will be done here about enhanced criminal record certificates.

Ms McWilliams: In light of that, perhaps we should ask the NIO to give us evidence.

Mrs I Robinson: It is very important.

The Chairperson: That would seem reasonable. Thank you Mr Clarke and Ms McDaniel, this has been very helpful.