Proposed changes to Disclosures
As a result of the Vetting & Barring Scheme Remodelling Review and The CRB Review report released on 11th February 2011 the Government will be introducing a number of clauses in the Protection of Freedoms Bill that will result in changes to the Disclosure service in 2013.
Assuming the bill becomes law (planned for early 2012) in its current form, the main changes will be:
- That the Independent Safeguarding Authority (ISA) and the Criminal Records Bureau (CRB) will be merged into a new organisation to be called the Disclosure & Barring Service (DBS).
- The definition of “Regulated Activity” relating to both children and vulnerable adults, as set out in the 2006 Act, will be redefined to reduce the scope of roles that will be required (by law) to have an Enhanced Disclosure
- The regulations identifying what non-conviction “intelligence” the police can release will be tightened and the Secretary of State will have the power to direct these.
- All information on a Disclosure must be revealed to the applicant (this refers to the current provision which allows for the disclosure of certain information to a potential employer which must not be revealed to the applicant i.e. the individual is under surveillance)
- Applicant only Disclosures, in order that the applicant can check that any information revealed is accurate before presenting it to the employer.
- Portability of Disclosures where individual applicants will be able to consent to continual updating of Disclosure information. Employers will then be able to check (online) whether any new information has been added to an applicant’s record since the last Disclosure was issued.
- An age limit will be introduced for Disclosure applications to persons over 16 years of age.
- There will be an independent review body to handle disputes over the disclosability of information on a Disclosure.
Definition of Regulated Activity
These are the range of activities or posts to which barring applies. The Secretaries of State for Health and Education have agreed to reduce significantly the range of activities and job roles that are included in this category; this in turn reduces the scope of the overall barring regime.
For example, “regulated activities” will no longer include all posts in schools; work with children will be redefined as mainly unsupervised activities; and the definition of “health care” activities will be redrawn to rule out a large number of posts caught under the previous proposals. Bars will continue to apply to both paid employment and voluntary work.
Safeguarding risks may arise here; for example, if posts are no longer to be included in the definition of “regulated activities”, there is a risk that a barred person can undertake this work. The key will be to ensure that the definition covers those areas of work and access to children and/or vulnerable adults, which are considered to provide the highest element of risk to those groups.
The overall effect is to reduce the scope of work from which barred individuals will be prohibited so that only those whose work (paid or unpaid) involves regular or close contact with children or who provide health or personal care for vulnerable adults who are covered by the scheme. There are a range of posts and activities, which previously fell within the definition of regulated activity. For these the Government proposes that the eligibility to apply for an enhanced level CRB Disclosure will be retained. This is important so that Government can ensure employers and other hiring organisations are able to gain the right type of access to criminality information.
Change the relevancy test the police apply to intelligence and other information, which they hold from “might be relevant” to “reasonably believes to be relevant”.
The current position requires chief police officers to provide any information which they think might be relevant to whether the applicant is suitable for the job role concerned. Such broad disclosure is not proportionate and fair to the applicant, particularly if the inclusion of a single piece of irrelevant information could be the factor, which prevents them getting a job when they are in competition with someone with a ‘clean’ disclosure.
Therefore it has been proposed to strengthen the ‘might be relevant’ test to a test of what the chief police officer reasonably believes to be relevant.
Introduce the scope for the Secretary of State to issue guidance which the police must regard in making decisions about the relevancy of information.
There is evidence that inconsistency exists, across the country, in terms of the decisions chief police officers make about whether a particular piece of information may be relevant for disclosure. Therefore a proposal to introduce a power for the Secretary of State to issue guidance which the police would be obliged to have regarded in making relevancy decisions in order to achieve a much more consistent approach.
Removal of the provision which allows for the disclosure of information to a potential employer even where the police judge that same information should not be disclosed to the individual applying for that role.
Current legislation enables sensitive information to be provided to the registered body/potential employers without it being copied to the applicant (brown envelope). It has been deemed that this arrangement is not sufficiently fair and open, given that the individual has no means to challenge such information. The number of such cases is small (between 200-300 per annum) and the procedure is not used by all police forces in England and Wales. Scotland does not use such a procedure and the Independent Safeguarding Authority (ISA) will not, under current arrangements, use any information that cannot be disclosed to the applicant. Civil liberties organisations cite this procedure as an example of over-zealous disclosure.
The new proposals intend to remove the statutory obligation to disclose information to registered bodies who countersign disclosure applications i.e employers, umbrella registered bodies and other organisations that request an individual to undergo a CRB check. The onus would then fall onto the police to pass such information to a potential employer where they considered that to do so was justified and proportionate. That would help to emphasize the exceptional nature of the circumstances and the need for the police to justify the approach in each individual case on the basis of their operational discretion supported by common law powers.
The disclosure test under the Act would be higher than at current and this is considered appropriate for such an unusual type of disclosure. Basically, where there is clear justification to disclose information about an individual to their employer, the police should be doing that in a timely manner, regardless of whether there is a disclosure application live or not.
Applicant only Disclosure Certificates
Section 113A (4) of Part V the Police Act 1997 states that:
“The Secretary of State must send a copy of a criminal record certificate to the registered person who countersigned the application”
The simultaneous issue of the certificate to an applicant and a registered person (employer) assumes that upon receipt of the certificate an employment decision can be made immediately. However, in most cases the recruitment decision is made by a separate unit/department to that which submitted the application and in many instances a third part (an “Umbrella Body” dealing with applications on behalf of a number of organisations) is involved, thus adding additional delay.
One of the biggest criticisms of the process is that where information exists, particularly information released by a police force, the applicant does not have the chance to review and challenge this information before it is released to an employer. Even where an applicant raises a successful dispute post issue, anecdotal evidence suggests that a culture of suspicion has already been created against an applicant i.e. “no smoke without fire”.
Thus the proposed issue of the certificate to the applicant only, who can then present the certificate to a prospective employer. This would allow the applicant the opportunity to approach a prospective employer and provide background about why a particular record exists and, if appropriate, provide further explanation or context which isn’t apparent directly from the certificate. It would allow the applicant to submit any representations against information released whilst still being in control of the process.
Introduction of Criminal Records Status Checks (CRSC).
The Home Office, in conjunction with the CRB, is developing a scheme which is designed to reduce the number of repeat applications* that an individual needs to make. CRB CRSC certificates will be made more portable by enabling employers to identify where new relevant information has been identified and make it available for employees who have had a previous disclosure certificate. The CRSC will confirm whether or not there has been a relevant update to the details on a previously issued disclosure certificate and, if there has, will advise that a new disclosure certificate is required.
*A repeat application occurs where an employer seeks to recheck an existing employee, say after 3 years, or where an individual who holds an existing disclosure certificate moves job and is required by the new employer to complete a new disclosure application.
The CRSC means that applications for a new disclosure certificate will only be necessary when there will be new information on that certificate.
Approximately 95% of disclosure certificates never change – in these circumstances an employer would know immediately that the disclosure was up to date and neither they nor the individual would need to fill out a new form and wait for the fresh disclosure. They would also avoid the frustration of completing this process when they know the disclosure will be blank. Currently 35% of all disclosure applications are made by customers who have previously submitted a disclosure application in the same year i.e. a repeat application.
For this new service it has been proposed that a subscription fee is to be charged.
Section 113A(1) and 113B(1) of the Act state that the Secretary of State “must issue a criminal record certificate to any individual who makes an application in the prescribed manner and form and pays in the prescribed manner and form”’
The Act currently provides no limitations in terms of the age of the applicant and places a duty on the Secretary of State to issue a certificate where a valid application and fee and been submitted.
In the year 2009-2010 just over 5000 applications were issued to individuals aged 15 and under, albeit the majority to those aged 15.
There are obvious civil liberties considerations in carrying out checks on minors. It is difficult to envisage any circumstances where a minor would require a certificate and carrying them out suggests a level of checking that is very hard to justify. Therefore the proposal to amend the Act to limit applicants to those aged 16 and above.
Improving systems for resolving disputes and representations
Section 117 of the Act states that:
“Where an applicant for a certificate under sections 112 to 116 believes that information contained in the certificate is inaccurate s/he may make an application in writing to the Secretary of State for a new certificate”.
Whilst a dispute relating to information from the Police National Computer (PNC) matching decision can be handled by the CRB a dispute about the release of information by a police force is handled by the chief police officer who made the decision to release it. In most cases where a dispute of this nature is made the police will dismiss the dispute or where the dispute is not dismissed there are often only subtle changes to the text made rather than the information being removed.
The Act does not provide for any further opportunity to challenge a force’s decision to dismiss a dispute and in practical terms the next stage of dispute would be by way of judicial review which is both costly and time consuming.
Therefore it has been proposed to introduce an independent review of the dispute – this would be by another chief police officer who would review the information, seek any further representations which had not already been made and take the final decision on whether information should be disclosed
The CRB are currently in the process of devising a facility/service for applicants to contact/correspond directly with the CRB if they have been asked by a prospective employer to have a CRB check for a position applied for that they feel is not appropriate.