1) The Ann Craft Trust, VOICE and Respond welcome this opportunity to comment on the scope and direction of the secondary legislation to be made under the Protection of Vulnerable Groups ( ) Bill.  We wholeheartedly support the principles and aims of the Bill and hope our comments will assist the Scottish Executive in considering how best to implement this worthwhile measure.

 

2) The Need for Retrospective Checking

 

 

2.1) We believe that it is vital that retrospective checking of the existing workforce begin as soon as the new vetting and barring scheme is operational.  To rely on natural workforce turnover inevitably runs the risk that people who would be barred, if a check were carried out, are left in a position in which to abuse those in their care.  It is in the best interests of children and vulnerable adults that this risk not be taken. 

 

2.2.1) The minority who abuse children and vulnerable adults will take advantage of whatever opportunities exist to continue abusive behaviour.  Those who know that a check will bring to light information about their past abuse, and fear that they will be barred as a result, will seek to delay for as long as possible their participation in the new vetting and baring scheme.  The Executive is right to identify this as the “ultimate risk” in not undertaking retrospective checking and we fear that an abuser not seeking new employment so as to avoid detection (Discussion Paper paragraph 28) is a real risk. 

 

2.2.2) We are not convinced by the argument that someone who has remained in post for many years prior to the enactment of the scheme is less likely to be an abuser.  People can be clever and devious in hiding the abuse they perpetrate.  Our experience also sadly tells us that employers’ responses to suspected abuse can be inadequate and can allow abusers to remain in positions where they can continue to abuse.  However, while these reasons may have allowed an abuser to remain in their current post for sometime, it is quite conceivable that over the course of their working life their abuse has been detected or suspected and information on their activities is held somewhere.  Retrospective checking could identify such individuals. 

 

2.3) The vetting and barring scheme has a declaratory value – it is a clear public statement that high standards are expected of those working with vulnerable groups and that those who engage in abuse will not be allowed to work in such positions of trust.  A sound, effective vetting and barring scheme can also increase public confidence in those that care for them or their loved ones.  In addition, it deters potential abusers from seeking work with vulnerable groups.  There is a danger that leaving checking to natural turnover undermines these benefits by effectively creating a two tier workforce of those who have been checked and those who may not be checked for many years.  As a general point, we believe that all staff who are eligible for the scheme should be treated equally and that retrospection allows for a parity of treatment between those who move employment and those who continue in the same post. 

 

2.4.1) We also urge the Executive to not leave the detailed consideration of how retrospective checking will be done until the scheme has been operational for some years.  Instead, we ask the Executive to implement a programme of retrospective checking as soon as the scheme becomes operational. 

 

2.4.2) During the years when retrospective checking is not being conducted, all of the problems, risks and drawbacks we describe above would be in play.  Any benefits that might come from waiting are far from certain.  Although there may be a greater understanding of the rate of natural staff turnover, the issues regarding retrospection that have caused the greatest concern in the voluntary sector (cost and affect on volunteering) are likely to remain. 

 

 3) The Nature of Retrospective Checking

 

3.1.1) We are in favour of a carefully managed programme of retrospective checking, organised according to recency of disclosure check.  This is both the safest and most administratively convenient of the options.  In organising this, we hope that those who had never been vetted would be checked first, followed by the remainder of the work force according to how much time had elapsed since they had last been vetted. 

 

3.1.2) However, we believe that this managed approach should not prevent organisations and individuals from joining the new scheme at an earlier point if they choose.  This would allow organisations to time retrospective checking to allow for their own recruitment practices, training, child and adult protection policies and for the nature of the work undertaken by their staff. 

 

3.2) We believe that an open programme is not the best means of conducting retrospective checking.  In addition to the drawbacks described in the Discussion Paper (paragraph 43), the organisations that are most likely to be slow in bringing their staff onto the scheme are those that are poorly managed and organised in relation to child and/or adult protection policies, procedures and safeguards.  These organisations have the poorest means to detect and deal with abuse and so present the greatest opportunities for abusers.  As such, these are the very organisations which would benefit most from joining the scheme at the earliest opportunity.  Unfortunately, ensuring the participation of the less organised organisations may require them to be mandated to have workforces their workforces join the scheme by a particular date.

 

4) The Duration of the Phasing-In Period

  

4.1) We are keen to ensure that vulnerable groups are given the robust protection of full coverage of the new vetting and barring scheme at the earliest opportunity.  We are also conscious of the need to ensure that the administrative and financial costs of retrospective checking are managed so as to cause the least inconvenience to organisations, particularly those in the voluntary sector.  However, we believe that it is important to remember that some costs are inevitable in order for organisations and vulnerable groups to gain the benefits of the new scheme.  The longer the phasing-in period for retrospective checking, the greater the likelihood that someone will be able to continue to abuse those in their care.

 

4.2) In our view, retrospective checking should take no longer than five years from the date of enactment of the law.  We consider five years to be a long time to leave some children and vulnerable adults without the full protection of the new scheme, but have had to balance this concern against our acceptance that some organisations need time to complete the joining process.  Anything longer than five years runs the risk of undermining the whole purpose of the legislation. 

 

4.3) We ask that the Executive makes every possible effort to ensure that voluntary sector organisations have the means to retrospectively check their staff and volunteers and that the valuable services they provide are not adversely affected by so doing.

 

 

5) Barring Thresholds

 

5.1) We believe that a broadly higher threshold for barring is essential to ensure adequate protection for children and vulnerable adults and for public confidence in the effectiveness of the new scheme. 

 5.2.1) We welcome the ability of the Central Barring Unit to place individuals on both of the barred lists.  Abuse is fundamentally about power.  It is also about taking advantage of vulnerability, whatever it might be.  A person who abuses a child can be just as likely to abuse a vulnerable adult and vice versa.  Effective cross-listing is therefore a vital element of the scheme’s success.  We hope that the Executive will open the scope of automatic cross-listing to include all assaults, sexual assaults and instances of neglect.  Limited cross-listing (the Discussion Paper gives the example of limiting cross-listing to cases of murder or serious assault) may facilitate situations that place vulnerable people at risk and lead to loss of confidence in the scheme.  For instance, the public might question why a person who sexually assaults a woman with learning disabilities would not automatically be barred from working in a school. 

 

5.2.2) In using its discretion to bar individuals, we would ask that the Central Barring Unit work on the presumption of cross-listing unless there are compelling reasons why this should not occur.  To work on a presumption of inclusion on only one list unless there are specific reasons for cross-listing, would be to ignore the nature of abusers.  Someone who has taken advantage of one vulnerable individual has demonstrated the capacity to take advantage of any vulnerable individual, regardless of which administrative list or category applies to them. 

 

5.2.3) There is also the possibility that an abuser placed on only one list will seek work with vulnerable people covered by the other list in order to continue their abuse.

 

 

6) Processes used for Determining Listing Decisions

 

6.1) While particularly simple cases (e.g. a person with a conviction for rape) could be processed automatically, the vetting and barring process would be more robust and accurate if a panel of people with expertise on safeguarding of vulnerable groups were involved in more complicated barring decisions.  We believe that any slowing of the initial assessment that this leads to will be compensated for by time saved on appeals and in the creation of a reputation for robustness and precision.

 

7) Fees

 

7.1) It is not in our scope to comment on the various options for fees.