Freedom Bill: good news and bad news

The section on the vetting database in the UK government’s new Freedom Bill may not look very dramatic. It is a tangle of insertions and deletions, and it contains the semantic-sounding line: ‘Substitute “must” for “may”.’ Yet behind it all is a fundamental shift in legal principles, which is this: you will no longer have to register with a state body and submit to monitoring in order to work or volunteer with children.

The Safeguarding Vulnerable Groups Act 2006, introduced by the previous New Labour government, had required adults who worked or volunteered with children to register with the Independent Safeguarding Authority (ISA). In this, it turned contact with children into a state-licensed activity.

Government agencies have long held ‘barred lists’, people barred from working in education or healthcare. By contract, the 2006 Vetting Act proposed what was in effect a ‘cleared list’, a ‘safe list’. If you were not on the safe list – if you had not made the necessary efforts to get yourself approved and cleared – you were as risky, and as criminal, as a known child abuser. The vetting system defined all unregulated relationships as inherently prone to abuse, and official monitoring as the only mark of ‘safety’.

The Vetting Review carried out for the Freedom Bill overturns this, with some key changes:

• There will be no obligation to register with a state body in order to work with children; nor is there any obligation to submit to ongoing monitoring;
• There will be a much weaker criminal offence of a barred individual seeking to work or volunteer with children. It will also be an offence for an organisation to knowingly employ a barred individual (this ‘knowingly’ is important: ignorance was no defence under the 2006 Act, since the very failure to check was a crime).

Restoring the balance of proof

The Vetting Review also includes important shifts in the balance of proof, by which barring decisions are made. The ISA system was loaded against individuals and led to many unfair barring decisions. As the Manifesto Club revealed in a recent briefing document, 10,000 individuals have been barred by the ISA, many of these for trivial incidents, such as a parent leaving a child at home when they went to the shops.

The 2006 Act also required organisations to pass on any ‘relevant’ information about people, which has encouraged much spying and rumour-mongering. When one priest refused to undergo a CRB check on principle, this raised suspicions and his diocese collected a file on him to submit to the ISA. This file included reports of private conversations, private emails, and even photocopies of the church newsletter (which was held to include ‘irresponsible’ comments ‘not conducive to safeguarding’).

Some proper legal balance will be restored by the following changes contained in the Freedom Bill:

• There is no obligation on organisations to pass on information about people (though this remains an option);
• There will be a reduction in the use of soft information in barring decisions (the information used should be ‘serious in nature’);
• There will also be a review of ‘automatic barring’ (by which individuals convicted of certain offences are automatically barred, then asked to prove their innocence – this was behind many of the unjust barring cases over the past four years).

That is the good news about the Freedom Bill – now, here is the bad.

Four million will still be vetted

It will still be a legal obligation for around four million people working closely with children to be vetted. That is clearly far fewer than the 11.3 million or nine million first envisaged as being affected, but by any kind of historic comparison it is still a substantial number.
 
Who are these four million? As yet it is unclear, and a long call I made to the Home Office did not resolve the matter. One part of the Report from the Vetting and Barring Review says that vetting will still be compulsory for those who have ‘regular or close contact with vulnerable groups’; another talks about regulating contact of the ‘closest and most intensive kinds’. News reports have said that only ‘intensive’ contact will be regulated, while the Home Office told me that it is those working ‘closely or unsupervised’ with kids.
 
This will come as a relief for the hundreds of thousands of people – from flower arrangers to cathedral guides – currently CRB-checked on the off chance that they might somehow bump into a child. But it should worry us that there is some state definition of an ‘intensive’ relationship between an adult and a child – and that a relationship of a certain intensity (or frequently, or closeness, or whatever you want to call it) comes with certain legal obligations to be vetted.

Regulating ‘intensive’ relationships

Regulating ‘intensive relationships’ is quite different from the past policy of vetting certain groups of child professionals. Before the CRB, vetting was employed by certain professions, such as teachers or social workers, as part of their recruitment procedure.
 
The 2006 Vetting Act was new, in that it represented not the regulation of a kind of professional relationship but of a certain intensity of adult-child relationship. This was based on the assumption that repeated contact between adults and children was in itself a risk situation: that a meeting was a grooming opportunity; and a ‘relationship of trust’ was, potentially at least, licence to abuse that trust.
 
For all the fine and sensible words in the Vetting Review, this key and core notion remains, as is clear in the following paragraph:
 
‘We have decided to redefine regulated activities as those which provide the highest levels of risk arising from the nature of the post and access to vulnerable people. This is informed by the knowledge that those who might cause harm often do so by developing relationships of trust with their victims.’
 
It is telling that the review does not offer a definition of ‘intensity’; clearly this is a matter for another review. 

CRBs – and monitoring – will continue

In spite of the trumpet-call press releases from the Home Office, the changes to the vetting system will do very little to stop the practice of organisations CRB-checking anybody who walks through the door. The review says that there will be a ‘criminal records “disclosure service” available’ for anyone who wants to use it, and it ‘will be up to the employers to weigh up the risks involved’.
 
The new system also allows for continual surveillance of individuals – only now not as a coercive obligation but as an optional ‘premium service’.
 
Home Office press releases promised the return of ‘portability’ – transference of CRB checks between jobs – but this is not quite true. Up to 2006, ‘portability’ meant that if you had a CRB within a reasonable period you could get it issued again for minimal cost. The review suggests that CRB checks can be portable only through ‘continuous updating’ – that is, continual surveillance. It says that employers can ‘customise their own safe recruitment policies’ by paying an ‘annual subscription fee’ and getting continual updates on their staff. So the ISA surveillance system remains, but as a premium part of the HR toolkit.

CRB costs will rise

The final piece of bad news is that the cost of a CRB check will rise. This is not surprising given the phenomenal amount of expensive bureaucratic fiddling that has gone on over the past few years. Organisations have been named and renamed, branded and rebranded; computer systems sized and resized; systems reviewed and re-reviewed. The ISA was set up in 2006, and now in 2011 this review is talking about 2013 for the new system to be up and running.
 
Having spent so much setting up the ISA (the logo alone cost nearly £20,000), Tory ministers who themselves voted for the 2006 Vetting Act will now go through the costs of dismantling it and then rebuilding it. The costs of this perversity will be passed on to the public.
 

After the Freedom Bill

 
The changes in the Freedom Bill are a fundamental shift of principle and substance. They have been presented as a generous gift of deputy PM Nick Clegg to his people, but the thing about freedom is that it is won not given. The key changes in the Freedom Bill – also including the limitation on local authority surveillance powers, the abolition of ID cards, a limit on stop and search – are actually the result of hard work from libertarian activists and the bravery and right-mindedness of volunteers and others who have stood up to these rules.
 
The Freedom Bill is therefore not the last word, but rather an encouraging sign that the state is susceptible to public pressure after all. So civil liberties activists and freedom-loving individuals should allow ourselves a moment of celebration – and then get back to work.

Josie Appleton is convenor of the Manifesto Club, a civil liberties campaign group. Email her {encode=”josie.appleton@manifestoclub.com” title=”here”}.