The early history was given in the earlier article.
The original Rehabilitation of Offenders Act 1974 offered some protection for individuals against intrusive questioning by insurance companies and others. Insurance contracts are “uberimae fidei” meaning “of the utmost good faith”. In other words the individual has a duty to disclose anything that might be relevant to the insurer’s risk. If you have given a false answer to an insurer’s question, then the insurance cover could be declared void when you try to make a claim. That meant that insurance companies would ask wide-ranging questions about convictions and the applicant had no choice but to answer them truthfully or risk being effectively uninsured. The 1974 Act got around this by deeming that such wide-ranging questions were asked subject to the limitation periods in the Act. So simply replying that you had no convictions when actually you had “spent” convictions was deemed to be truthful.
The Criminal Records Bureau procedures introduced in 2002 had a quite different effect, they meant that large numbers of organisations started demanding that you submit to CRB checks before they would employ you.
But it was worse than that, because in addition to the “standard checks” under s113 Police Act 1997, there was also provision for “enhanced checks” under s115 which gave disclosure not just of all convictions, including spent convictions, but also of “any information provided in accordance with subsection (7)”. That subsection provided that every chief constable was to be asked to provide any information which he thought “might be relevant for the purpose described in the statement under subsection (2)”. That meant, in effect, for the purpose of considering the applicant’s “suitability for a position (whether paid or unpaid) … [which involved regularly caring for, training, supervising or being in sole charge of persons aged under 18]”. The principle having been established, the scope was later broadened to a range of other positions. What gets disclosed by a particular force is up to its chief constable, but is likely to include information (and alleged information) uncovered in the course of investigations which did not lead to a trial or which led to an acquittal.
This, of course, was the grossest breach of the ancient principle that one was entitled to be considered innocent until convicted. People could now be deemed guilty enough to be denied a wide range of jobs simply on the basis of unfounded, or at any rate unproven, suspicions or even quite wild allegations by people who simply did not like them.
In the area of education it may have been pre-dated by List 99. The history of this is murky and hard to ascertain. It appears to have been in existence for most of the twentieth century. The government department responsible for education in schools maintained a secret list (known as List 99) of people barred from working in schools. Certain convictions resulted in automatic inclusion on the list, but people could apparently be listed on other grounds, such as drinking too much, being mentally ill, or lying on job applications.
The list was put on a statutory basis in s142 Education Act 2002, but the criteria for barring still remained vague:
(b) on the grounds that the person is unsuitable to work with children, [or]
(c) on grounds relating to the person’s misconduct
Matters got even worse after the Bichard inquiry. On 4 August 2002, a school caretaker, Ian Huntley, invited two ten-year-old girls into his house and murdered them. He was convicted in December 2003 by a majority verdict. It emerged that he had been arrested on several previous occasions but not convicted. The then Home Secretary, David Blunkett, set up an inquiry chaired by Michael Bichard, to consider the implications.
Bichard was a career public servant who had spent most of his career in local government, but then became CEO of the Benefits Agency in 1990 and Permanent Secretary of the Department of Employment in 1995, retiring in 2001. The June 2004 report (pdf) no doubt meant well. It proposed a vetting procedure whereby a new body would assess the evidence, including convictions, arrests, and police intelligence, and form a judgment on the individual’s suitability for working with children or vulnerable adults. It would maintain a register of those who passed its vetting procedures that would “confirm that there is no known reason why an individual should not work with these client groups”. Moreover, All posts, including those in schools, that involve working with children, and vulnerable adults, should be subject to the Enhanced Disclosure regime.
New Labour broadly accepted the report and as a result, the Safeguarding Vulnerable Groups Act 2006 became law in November 2006 and established the Independent Barring Board – later renamed the Independent Safeguarding Authority (ISA) – to run a “Vetting and Barring Scheme”. But the scheme took a little while to set up.
The Act required ISA before barring an individual to be satisfied that “relevant conduct” had occurred, defined as “conduct likely to endanger a child”, or the possession of “sexual material relating to children”, or the possession of “sexually explicit images depicting violence” (whether or not involving children), or “conduct of a sexual nature involving a child” (whether or not the conduct was likely to endanger the child). Guidance made clear that being satisfied meant the civil litigation hurdle of on the balance of probabilities rather than the criminal hurdle of beyond reasonable doubt.
By 2008 a reaction had begun to set in on the vetting function. The concern to stop child abuse at all costs would now apparently require a quarter of the adult population to be vetted by Big Brother. In June 2008 the think tank Civitas published a report “Licensed to Hug” by Frank Furedi which gave a series of bizarre examples of the consequences of the government sponsored paranoia. He commented:
When parents feel in need of official reassurance that other parents have passed the paedophile test before they even start on the pleasantries, something has gone badly wrong in our communities.
By the following year the press was starting to describe the ISA proposals as creating the most intrusive database ever created in a democracy. Children’s authors soon joined the protests since it appeared that they would require vetting in order to give talks to schools. Philip Pullman was a particularly vocal critic:
It seems to be fuelled by the same combination of prurience, sexual fear and cold political calculation. When you go into a school as an author or an illustrator you talk to a class at a time or else to the whole school. How on earth – how on earth – how in the world is anybody going to rape or assault a child in those circumstances? It’s preposterous.
Roger Singleton, the chairman of ISA, was asked to report and produced “Drawing the Line” which made a few detailed suggestions to alleviate some of the concerns of authors and others. The DCSF (New Labour’s version of the Dept of Education) published guidance claiming that all the criticism was overblown a few months before the May 2010 election, but several unions claimed it was not.
After the election the Tory government put the registration scheme, due to begin in July 2010, on hold and asked Eileen Munro of the LSE to conduct a further review. This was completed in early 2011 and recommended scrapping the vetting function.
Meanwhile the barring function was in force and is already generating some case law:
which unsurprisingly shows that the wrong people sometimes get barred.
So it appears that we have retreated somewhat from the peak of silliness, but the area remains contentious.