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scaled back vetting, barring scheme and CRB reforms announced

18 February 2011

Eight months after the government announced its plans to review the remit of the Independent Safeguarding Authority (ISA), the Protection of Freedoms Bill was finally published last Friday. Whilst the Bill covers everything from the use of CCTV to the destruction of DNA samples, Part 5 sets out significant changes for the ISA and the CRB process.

Fundamental changes to the ISA

Alongside the sensible decision to merge the ISA and the Criminal Records Bureau and scrap controlled activity, the government intends to scale back the extent of the schemes to ensure that only those who have regular contact with children and vulnerable adults are covered. In doing so, it has scrapped the much maligned registration requirement and put the onus for ensuring staff and volunteers are suitable firmly back in the court of the employer.

Importantly, changes to the definition of regulated activity have also been tabled. The rather complex current definition set out in the Safeguarding Vulnerable Groups Act runs to 16 pages. It is clear that the proposed new definition will affect far fewer people, but the confusion around the edges of the definition looks set to remain. The new approach is equally unclear and early estimates suggest around 4.5m people will still be affected.

Reduced bureaucracy for the CRB process

Sweeping changes to the CRB system are welcomed and seek to offer fairness to the individual and remove the current requirement to renew the certificate at regular intervals.

It is likely that the 2009 House of Commons Children, Schools and Families Committee report, coupled with the court decision in Desmond v Chief Constable of Nottinghamshire Police [2011] influenced the drafting of the Bill by proposing important changes to the rights of the individual. If the Bill is passed in its current form, a CRB disclosure will be sent to the individual, before the employer, who has the right to request that information included by the police be reviewed by a different police force.

In addition, a system of regular updating is proposed where a prospective employer can check whether any new information is available for an individual with an existing CRB disclosure via an online system. If there is, a new certificate is required, but if no new information is available, the existing CRB can be accepted. It is hoped that this system will reduce the bureaucracy that hampers the current CRB process.

Assuming the proposed changes make it through Parliament unscathed, we are unlikely to see a new law until late 2011, with a likely implementation date sometime in early 2012.

The legal duty to refer stays

As a final point, it should be noted that the legal duty to refer conduct to the ISA remains and no changes are proposed. This wide ranging duty applies to employers, local authorities and other bodies including the CQC, the GMC and Ofsted, and ensuring compliance with it will continue to be important, in particular for employers, who could face criminal penalties for failing to refer.

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The Court of Appeal has recently handed down judgment in Ocean Outdoor v London Borough of Hammersmith & Fulham. Join us on our lunchtime learning session about this case.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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