Regulated activity provider: failure to check

Amendment made: No. 148, in page 7, line 9, at end insert—

‘( ) A person does not commit an offence under subsection (1) if B has not attained the age of 16.’.—[Mr. Dhanda.]

Amendment proposed: No. 149, in page 7, leave out lines 15 to 18 and insert—

‘(5A) Subsection (6) applies if—

(a) B engages in an activity which is a regulated activity, and

(b) he does so with the permission of two (or more) regulated activity providers.

(6) A regulated activity provider does not commit an offence under subsection (1) if, before the permission takes effect, he obtains written confirmation from the other regulated activity provider (or one of them) (C)—’.—[Mr. Dhanda.]

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

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?

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.

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.

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.

Amendment agreed to.

Amendments made: No. 150, in page 7, line 29, at end insert—

‘(8A) C commits an offence if—

(a) he provides the written confirmation mentioned in subsection (6), and

(b) the condition in subsection (8B) or (8C) is satisfied in relation to him.

(8B) The condition is that C has not made an appropriate check.

(8C) The condition is that—

(a) C has made an appropriate check, and

(b) before he gives the written confirmation he has reason to believe that B has become barred or is no longer subject to monitoring.’.

No. 151, in page 7, line 30, leave out ‘and (6)(a)’.

No. 152, in page 7, line 37, leave out ‘(a)’.—[Mr. Dhanda.]

Clause 11, as amended, ordered to stand part of the Bill.

Clause 12 ordered to stand part of the Bill.