Scottish Vetting and Barring Scheme

Read the SPTC response to this consultation on the proposed scheme which followed the Bichard recommendations.

Following the inquiry into the Soham murders, Scottish Ministers made it clear that Scotland would seek to streamline current systems and ensure there are no cross border loopholes across the UK. SPTC is constantly campaigning for a common-sense attitude to child protection and with this in mind we have sent the following response to the Scottish Executive.

If you would like more information on this consultation and on the Bichard Inquiry, go to:
www.scotland.gov.uk/consultations
www.bichardinquiry.org.uk

Protecting Vulnerable Groups: Scottish Vetting and Barring Scheme

SPTC RESPONSE

Part I. General
This part asks more general questions. Part II asks about the specific proposals contained in the consultation paper.

1. Current system. Please identify what you consider to be the three greatest issues with the current system for checking those who work with children and vulnerable adults.
a) It is not focused on areas of real/actual risk; the current scheme operates across a broad spectrum of activities from those who run occasional activities for children to those who work in children’s homes without distinguishing the different risk levels. It is not clear that the current system has been at all effective in reducing the levels of child abuse. b) Schedule 2 is far too vague and wide ranging; the definition of “childcare” is very imprecise (what is meant by “normal”) whilst considering young adults up to the age of 18 conflicts with the established legal position/adult status of young people aged 16 and above. c) The current system for getting disclosures is too bureaucratic and costly. There is no simple way for small independent bodies that are caught up in the legislation to register and secure a police check without filling in endless complex forms; the overall cost of the system is running into millions of pounds – money that would be better spent on frontline services.

2. Bichard recommendations. Do you have any comments you would like to make on the recommendations, especially recommendation 19 in respect of vetting and barring?
We would suggest that, to some extent the Bichard report is based on a false premise. Whilst it is clear that Ian Huntley would not have been employed as a school janitor if a more effective checking system had been operating (or even if the existing one had been operated properly), it is not clear whether this would have avoided him committing crimes similar to those he did commit in Soham at some other time and in some other place. Whilst the reasons why the two girls went to and entered his house are not clear, it would seem that they went to visit Maxine Carr, not Ian Huntley. It is possible that his occupation as a school janitor was not totally relevant to what followed. It is important to recognise what a registration scheme can do and what its limitations are and then distinguish between the two. It offers no protection against random and tragic encounters as in the Rory Blackhall case, nor against people who have managed to stay undetected. It also does not operate in areas of highest risk to children – the domestic world of family and friends. Its focused use in high risk situations – for example with people who work in children’s homes or have ongoing one-to-one dealings with a child or vulnerable adult – does offer an important safeguard. Its wider use in areas of minimal risk only has the effect of creating a false sense of security (I’ve been checked and so am OK), and also of increasing the generalised but unnecessary worry about all adults. In an attempt to create a risk free world for children to operate in, there is a danger that we will de-skill children, leave them unable to look out for their own safety and incapable of judging between risky and safe adults. This could make children more vulnerable.

3. Interests of vulnerable groups. Do you have any concerns about the way the proposed system might adversely affect the opportunities for children and vulnerable adults to participate in education, employment, sport and leisure activities? What could be done to mitigate this?
We already have evidence that volunteers, particularly parent volunteers, who offer occasional and limited support to low risk activities for children (e.g. school discos, walking buses) are deciding not to bother. This reduces the activities available for children. We accept that people who volunteer to work for the major Children’s Charities are probably not deterred by the process.

4. Interests of employers. Do you have any concerns on the impact of the proposals on the recruitment and selection of individuals to work with children and vulnerable adults? What could be done to mitigate this?
Again there is a failure to distinguish between large employers who might have a dedicated HR department or formal procedure for making appointments from the small group that “appoints” (a term that is similarly not well defined) someone who helps out at a low risk activity. Does asking someone to “help out” count as making an appointment? We again have evidence that such small groups, when confronted with the complexity of the process for getting a disclosure check plus the added burden of then complying with data protection regulations, are deciding not to bother.

5 Interests of applicants. Do you have any concerns on the impact of the proposals on those who might apply for disclosure to work with children and vulnerable adults? What could be done to mitigate this?
We are aware that some people are concerned that youthful indiscretions, which are not significant in terms of any childcare role but which may have resulted in a conviction, will be revealed by this process; they are therefore reluctant to put themselves forward for any position that may require a disclosure check. Moreover, it would seem that such concerns are justified. We have learnt that whilst this process is intended to reveal whether or not someone is on the list of those deemed not suitable to work with children, employers are getting full access to a persons criminal record and are using information that is not pertinent to child protection in forming their decision about whether or not to appoint someone.

6 Other matters. Please make any other comments which are relevant to the Scottish Bichard Vetting and Barring Scheme.
We are very concerned about depending on the absolute accuracy of data stored on a large data system. We are aware of just how often such data can be wrong. Misinformation could have a very damaging effect on someone who is falsely accused of past crimes against children, particularly when that information is obtained by an informal group such as a PTA or local football club.

Part II. Consultation Paper Proposals

This part asks about the specific proposals contained in the consultation paper. Part I asks more general questions.

Proposals 1-3 Scope of new Vetting and Barring Disclosure. Do you have any comments on the type of position for which the new scheme will apply?
The full scope/impact of the proposed vetting and barring scheme must be established and reviewed before any changes are made. The total cost implications to all concerned (Government agencies, voluntary bodies, employers, etc.) must be established. This includes the costs of the proposed registered body for use by parents/individual employers. There should also be a proper evaluation of risk, with the vetting and barring system applied to high risk areas only.
We are very concerned at the proposal to extend the vetting and barring system to those who have indirect contact with children, for example database operators. Again this must be scoped for impact and cost. Many organisations bring in temps to enter data. Would all such people require to be disclosed? Would those in our office have to be disclosed because we have parents’ names and addresses on our database and so, by definition, we have the addresses where children live?
An individual, changing posts at the request of their employer within the same organisation, should not have to undergo a further disclosure check.
We do not think that individuals should have access to a person’s police record. We are very concerned that such access could be abused.

Proposal 4 Costs of Vetting and Barring Disclosure. How much more would you be willing to pay upfront for the new Vetting and Barring Disclosure? Please be as specific as you can, e.g. £10.
The cost of getting a disclosure check has just gone up to £20 and there is a general expectation that if the fee is to cover the cost, it will rise to £50. Costs are significant not just for the money that is paid, but also for the opportunity costs in spending money this way rather than in some other way e.g. will the money paid for this scheme by all the organisations concerned take money away from more critically important frontline services. This point is made in section 3.2.9 but is not being treated seriously in the rest of the consultation. We think it is critically important. When the money runs out, where will the priorities lie – in appointing social workers to work with vulnerable people or getting parents who run discos police checked?

Proposals 4-5 Funding the Vetting and Barring Scheme. Do you agree with the broad proposals for: a more expensive initial disclosure, low-cost or free subsequent checks and free disclosure for volunteers?
We do agree that any follow-up disclosure should cost less than the initial disclosure. We are also glad that volunteers will not be required to pay for their disclosures. However, it is misleading to suggest that these are “free”. There are costs, it is just that the system picks up the costs rather than the individual. Secondly, in many cases we are aware that volunteers are not able to get free disclosure checks and that when these are carried out on their behalf by statutory bodies (e.g. Local Authorities) the statutory bodies have to pay. In general, volunteers should only be required to get a disclosure if they will pose a real risk to children. Low risk supervised activities should be exempt.

Proposal 6 Retrospective Vetting and Barring Disclosure. Do you agree with the proposals for phasing the vetting and barring of the existing workforce?
This process should be properly scoped and fully costed for all concerned. Also, we hope that level of risk will be considered and that low risk activities are excluded. We include within low risk, occasional activities that are not on a one-to-one basis and activities where the youngsters involved are over the age of 16 years. We note that a 16 year old in a work situation is treated as an adult and that those working with him/her are not required to have disclosure checks, even when this is on a one-to-one basis. We think a similar approach should be taken to youngsters in other “adult” situations e.g. further and higher education.

Proposals 7-8 Disqualified from Working with Vulnerable Adults List. We are not looking for comments on the DWVAL, since this has been covered by previous consultation. However, we would like to know if this new context raises any new issues.
We note that a vulnerable adult is defined as someone aged 16 or over who is in receipt of care services or support. There must be an agreed age for children and an agreed aged for adults. We would suggest that the definition of a child should be up to the age of 16, with an adult defined as a person aged 16 or over. Proposal 9 Changes to the Disqualified from Working with Children List. Are there any changes, other than those outlined, which you would like to see made to the DWCL?
We are very concerned that the definition of childcare positions in Schedule 2 of the Protection of Children (Scotland) Act 2003 is to be extended. We feel that there needs to be far more clarity about the range of activities that fall within its scope. The definition should be more tightly drawn, not extended. At present it is so wide-ranging that it seems limitless.

Proposal 10 Decisions on barred lists by new Central Barring Unit. Do you think decisions on barring should be made by a special panel, a case conference or administrators?
The most important consideration is that the decisions are made to a common standard. Who makes the decisions is less important. However, we favour a specialist panel.

Proposals 11-13 Central Barring Unit. Do you have any comments on the status and governance arrangements for the Central Barring Unit? What degree of separation is needed from the Scottish Ministers?
The Central Barring Unit should be independent of Ministers. We agree that the decision on whether it should be an Executive Agency or NDPB should be decided on grounds of efficiency, effectiveness, accountability and cost. It would seem sensible that operations of Disclosure Scotland and the Central Barring Unit are brought together in a single agency.
We are very concerned at what information will be used to update an individual’s record. For example a person might be wrongly arrested and charged with an action that makes them unsuitable to work with children. However, their subsequent exoneration from all charges might not be lodged quickly. We are aware of cases where this has happened. The outcome was very damaging for the individual concerned.

Proposal 14 Provisional listing. What should the criteria be for provisional listing? Do you agree that the individual should be able to continue to work during the determination process?
We cannot see any place for provisional listing. If an organisation is told that someone is provisionally listed, they would have to treat that person as though they were listed. Clearly, the employing organisation could not allow that person to continue working.

Proposal 15 Appeals against listing. Do you agree that the right of appeal should be to the sheriff court with a three-month time-limit?
Is the three-month time-limit adequate?

Proposal 16 Access to barred status. Who has a legitimate interest in the barred status of an individual and how should "fishing trips" be prevented?
We have become aware that the disclosure system is now being used for generalised checks on applicants’ police records, not just to determine whether the person is suitable to work with children. We would expect that individual employers would similarly use checks in this way. We are also concerned that in small communities, this could lead to a lot of gossip about individuals. With personal employers – parents – there is no way of verifying that someone is a genuine employer unless it is still the person who is due to be appointed who is required to make the disclosure application.
A better system would be for those who wish to work for individual employers e.g. music teachers, subject tutors etc. to be able to acquire a dated disclosure certificate through the central barring agency that essentially licenses them to undertake such work for a set length of time. If it is issued by the central barring unit, the individual employer could be confident that the applicant’s police record had been properly scrutinised for their suitability for working with children or vulnerable adults.

Proposal 17 Information released to applicant. How much information passed on to the Central Barring Unit should be released to the applicant and employer? What criteria should there be for not releasing information?
The main question is how accurate will the information be given that we have just learnt that the prison service is unaware of the true identity of some current prisoners. When the processes of prosecution and conviction can leave such holes in information, “soft” information must be treated with great caution. There is also a problem in joining information together timeously. We know of a case where a man was charged with possessing a knife. However, the case was thrown out and he was completely exonerated. The fact that he had been charged was on his record and showed up on his disclosure check. The outcome of the Court case was not on his record and did not feature on his disclosure check. He was not allowed to help out at his daughter’s school.

Proposals 18-20 Information sharing between the Central Barring Unit, public authorities, employers, police and regulatory bodies etc. Do you have any comments on who should be required to pass what information on to whom?
Again, our main concern is the accuracy of the information that is being passed around. Currently many people find themselves with poor credit ratings unjustly and have great difficulty in getting the wrong information corrected.

Proposal 21 Role of regulatory bodies. Which regulatory bodies should receive information through disclosure? What information should they receive?
Regulatory bodies need to have information on relevant convictions.

Proposal 22 Disclosure of civil orders. Which civil orders should be disclosed?
Only those that are relevant.

Proposal 23 Cross-referencing with offender registers and other lists. How do you think the DWCL and DWVAL should relate to other registers and lists, e.g. the Sex Offenders Register or Protection of Children Act List in England and Wales?
Listening to the way that employers are using the information provided through Disclosure in making appointments, we cannot imagine that, in the real world, anyone would appoint someone who was on the Sex Offenders Register to a childcare position.

Proposals 24-25 Referrals. Do you agree with the proposals for who can make a referral? Should parents and personal employers be able to make a referral?
We would be very concerned at the possibility of an employer – whether large or individual – making a retrospective referral about an “incident” where there is no concrete, independent evidence to confirm the “incident” and where the individual concerned is not allowed to put his/her case.

Proposal 26 Lifetime of certificates and checks. Do you agree that the vetting and barring disclosure certificate should have a finite lifetime, after which a new application for full disclosure needs to be made?
There is no point in suggesting an updating system unless it is effective. If it is effective there is no need to time-limit disclosure certificates; if it is not effective, it should not be done at all. Scottish Parent Teacher Council April 2006