Original URL: http://www.theregister.co.uk/2008/07/14/crb_checks_total_analysis/

Criminal record checks could hit over 14 million people

New CRB regs produce a nation of suspects

By Jane Fae Ozimek

Posted in Law, 14th July 2008 07:02 GMT

Analysis If we had suggested, ten years ago, that one day soon, the government would draw up a list of prescribed occupations: that they would build a database of millions of people who would need to register for those occupations; and that a committee of Public Safety would be set up with power of absolute veto over every individual on the database; it is just possible that you would have decided that even El Reg had taken leave of its oh-so-cynical senses.

But lo! All of the above is soon to come to pass - and there is a good chance that it will affect a far larger proportion of the population than you might imagine, far more people than the 11.3 million the Government claim it will affect. (14.3 million and rising is our prediction).

The history of this strange development has its roots in a brutal murder. In 2002, school caretaker Ian Huntley abducted and killed two Soham schoolgirls. After the event, it was discovered that some government agencies had access to some information that might have led to his not being employed. Hindsight is a marvellous thing. An inquiry was set up under the chairmanship of Sir Michael Bichard, and this duly reported in 2004.

It found that the existing regulatory framework for monitoring individuals who might pose a risk to children - or vulnerable adults - was messy. At present, employers should obtain a Criminal Records Bureau (CRB) check for new job applicants wishing to work with children or vulnerable adults. According to the intensity of the relationship, this can be at either Standard or Enhanced level. The latter includes 'soft' information about individuals, including allegations about past behaviour.

Decisions on suitability for employment are taken locally, often on an ad hoc basis, and not all workers are required to have an enhanced check. The current system is backed by a number of separate barring lists, operating under different legislation: List 99 (Section 142 of the Education Act 2002), Protection of Children Act List and the Protection of Vulnerable Adults List. They are reactive, with individuals barred only after harm has occurred.

For a government obsessed with legislation and micro-management of public behaviour, the situation was intolerable and ripe for overhaul.

Summary total of those liable for CRB checks
Best guess Formal Volunteers in need of Vetting (England only):   7,500,000  
Estimate of Formal Volunteers in need of Vetting (Wales only):   438,994  
       
Total Vetting need in Employment   6,584,537 (Adjusted for England/Wales)
Total Vetting need in Self-Employment   926,082 (Adjusted for England/Wales)
       
  Less overlap -1,396,410 18.6%
       
Misc: Childminder Partners 100,000 (estimate)
  Foster Parents 100,000 (estimate)
  Adoptive Parents 50,000 (estimate)
       
  Total Vetting requirement 14,303,203  

The result was the Safeguarding Vulnerable Groups Act 2006 (SVGA), introduced in the Lords in February 2006 and passed into law in November of that year. Although it is now 'the law', many of its provisions are only slowly being put in place.

Despite the lengthy consultation that preceded this new legislation, and the eight month gap between its introduction and penultimate reading in the Commons, the government still managed to produce some 250 separate amendments to it shortly before that debate in October 2006. Some clauses received less than a minute's consideration - others received none at all. As Tory Shadow Minister for the Family, Maria Miller observed, it was "difficult to understand why so many Government amendments were tabled at the eleventh hour". Translation: 'I am hopping mad. I suspect you have pulled a fast one. But I can't do a thing about it.'

This law attempts the almost unimaginable: to regulate those instances and those circumstances in which trust might arise between a 'vulnerable person' and another individual. In recent criticism of the Act, Professor Frank Furedi describes this development as tragic, as though this was accidental. In fact, as the government has made clear, in a recent consultation paper (s 3.2) the intention is to regulate all instances where trust might arise.

I've got a little list

The thinking behind the SVGA is clear. There will be regulated activities. There will be a list of people barred from participating in regulated activity. There will be a board, the Independent Safeguarding Authority (ISA), charged with maintaining that list and, ultimately, deciding whether an individual should go on that list. All decisions will in future make use of "soft" information, of the sort now made available via an enhanced CRB check.

Delays in implementation mean that this will not be in place before 2009, with full roll-out expected over a five-year period.

An important feature of this scheme is its arms-length relationship with government. The Secretary of State may tinker with 'guidance', amending what counts as regulated activity or activity worthy of barring: but they will not be directly responsible. This reflects even more recent history, when Education Secretary, Ruth Kelly, came in for a great deal of stick over her Department's decision not to bar Sex Offenders in all circumstances from educational work.

The $64,000 question is just how many will be barred - and whether this will affect you. Ultimately, says the government, 11.3 million people will need to be on the list. (see link for the rationale behind this figure). This was a mere 2-2.5 million higher than the previous answer, provided in early 2006.

Any process of estimation that can inflate by nearly 30 per cent in less than two years must be subject to a degree of suspicion - and this is clearly one of them. The problem can be tracked back to three separate trends. Project creep, back protection and the voluntary sector.

Scope for project creep lies at the very heart of the SVGA. The definition of regulated activity with children, for instance, starts out sensibly enough by specifying activities such as teaching, training and childminding. Unfortunately, it then adds the obligatory catch-all, which says that a person engages in regulated activity if they have the opportunity "in consequence of anything [they are] permitted or required to do in connection with the activity, to have contact with children".

That is broad. There are some counter-trends. The government acknowledges that it would be silly if someone was required to be checked on account of a single exposure to children. So the SVGA includes a 'period condition': regulated activity only occurs if someone does it intensively or "at any time on more than two days in any period of 30 days".

Creeping it in the family

But here comes that project creep that IT professionals know and loathe: an activity is also regulated if it is carried out frequently, so the government is minded to issue guidance that this means "once a month or more often".

Childminders will be required to register - but new guidelines suggest that this requirement will also now extend to other adults in their household.

Another large tranche of individuals likely to be drawn into registration is anyone who might be viewed as being in a position of authority. Evidence is already out there that some public bodies are beginning to equate "having authority" to working for an Authority, which raises the numbers considerably.

It is very clear that government is worried about being seen to over-regulate. The most recent consultation twists itself into agonies over whether regulation should occur when contact with vulnerable groups is "incidental" to another activity or as part of "mixed age" groups. The Cabinet Office has issued guidance to the voluntary sector reminding groups that they should only have individuals checked where necessary. But because so much of the language of those concerned with the SVGA is couched in terms of 'may' and 'might', this guidance is probably futile.

This leads inevitably to 'back protection', which is made that much worse by government insistence that it is not for central government to dictate when and where checking will take place. Serious penalties await employers who employ anyone in a regulated position when they are barred: so playing safe is likely to become the norm.

Individuals who work on web sites either as moderators or controllers of the content of that site will need need to be ISA-registered where they have contact with users of the service. A recent job ad from Haringey Council required a web designer for their Young Person's internet Information site to be CRB checked.

Caught in the web

Look at the job ads, and you will find, increasingly, a requirement for any web designers to be CRB checked. Unless the ISA actively resists, then this particular form of creep-cum-back-protection is likely to get worse.

Employment agencies are insisting on CRB checking, because that covers them with their clients. Local government seems hell bent on extending checking, because then they, too, cover their backs. The question of whether Parking Enforcement Officers should be CRB checked is an interesting one.

A quick google reveals that authorities as diverse as Canterbury, Bexley, Blackpool and Merton are all now setting CRB checks as a condition of employment in the Parking enforcement area - although oddly for four totally different and in some cases contradictory reasons.

Plumbers and handymen of all species now regularly boast of their CRB check status. First, because once one plumber gets CRB-checked, everyone else feels they need to do so. Second, and more seriously, many small tradesmen will be employed as contractors by larger firms seeking local government contracts which might involve working in schools or care homes. These organisations do not want to lose a tender because they cannot satisfy Council requirements for CRB-checking, so, again, in order to work with such an organisation, you will need to be CRB-checked.

Government consultation makes much of the distinction between drivers who are employed specifically to ferry vulnerable persons around and those who are not. Discussions on the ground appear very clearly to reflect the same concerns that companies cannot tender for contracts without pre-registration. They will therefore err on the side of caution, and the Home Office will not intervene.

Guidance to date seems to assume that only individuals specifically employed in circumstances that bring them into contact with children will be registered. The evidence on CRB-checking is that this is not what is happening, which means that government estimates of future registration are based on wishful thinking.

The only area where the Home Office seems likely to resist unrestrained checking is in the voluntary sector - and this because government picks up the cost.

Our own view (see Geek note on analysis) is that a figure as high as 7.5 million volunteers needing to be registered is not unrealistic. This is based both on published data - and again, on our review of what is happening in clubs and societies when it comes to CRB-checking. Even where individuals are not obliged to do so by law, they are often opting to do so.

That does not even begin to address informal volunteering, which includes a further five million individuals who carry out childcare or babysitting. Some of this will be so informal as to be off the radar for the SVGA. But babysitting for money still goes on: and unless the government has completely discarded all notion of free market principles, it is inevitable that if the SVGA has any effect whatsoever, those minded to abuse will simply move the focus of their activities to the non-regulated areas.

Expect scandal, hindsight and a further widening of regulated activity over the next five years. Remember, too, that all of the above is long before the working out of pilot schemes, now in place in four areas, which will enable single mums to check out the past sexual history of new partners.

The unintended consequence to cap all unintended consequences could, in the end, be that abusers will simply refocus their efforts into areas of maximum informality and maximum trust. A measure designed to regulate and restore trust in society could, in the end, destroy it utterly.

Geek Alert! El Reg explains how we modeled the future

Our estimate of how many individuals are likely to need to register with the new ISA Board was based on two criteria. How many people are likely to be carrying out volunteer work with vulnerable groups often enough to require vetting: and how many are carrying out work that is likely to attract a demand from an employer for an ISA check.

For the volunteer requirement, we based our estimates on the 2005 Citizenship Survey, which provides a highly detailed breakdown of volunteering within England: whether it is formal or informal, how often it happens, and the type of activity undertaken. For the three activities most likely to meet the vetting criteria, we came up with an unde-duplicated figure of 11.75 million.

A small additional number was added to take account of regulated activity buried in other categories. The overall total was factored down to allow for duplication between activities, whilst a (pro rata) correction was applied to take account of volunteering in Wales.

Our estimates of the workforce requirement were based on the most recent Quarterly Labour Force Survey, available from the Office of National Statistics. Some categories of work - such as teaching or General Practice - could safely be added in their entirety. For others, a weighting was applied.

A further correction was made to remove presumed duplication between volunteering and workforce data: some additions were made for adults sharing a house with childminders, adopting couples and foster parents.

The grand total - and this is likely to be subject to further revision - came to 14.3 million individuals likely to need to register with the ISA within the initial five year period. No attempt was made to model either the effect of new entrants to the workforce, which we believe could add a further million to the above figure, or the effect of individuals switching in and out of jobs that require registration.

That could all too easily result in a figure of c.16 million, which even we find hard to believe!

In talking to the Home Office, we were pleased to find that they had almost exactly anticipated our method for modelling the registration requirement. Consultancy KPMG used the same data sources to come up with an initial figure of 9.28 million people who would need to register over the five-year period. They then added a further 500,000 individuals per year for each of four years to take into account new entrants to the workforce. This gives 11.28 million - the figure now officially quoted by government spokespeople in respect of the proposed ISA Registration scheme.

Why has The Register come up with that much higher a figure? Without sight of the full Home Office model - which we have requested - it is hard to be sure. We think that the main differences will be found in our estimate of the number of volunteers who need to be registered: and the fact that in a free market free-for-all, with employers not constrained by central government guidelines and simultaneously reminded of the severity of penalties for failing to carry out checks, far more categories of work will end up being vetted than was originally intended.

We also suspect that in the interval between the KPMG exercise and our own there has already been some tightening of the guidelines.

Nonetheless, we are pleased to confirm that the Home Office modelling effort appears to be soundly based - and we are more than happy to share our own assumptions with them in any future development of their model.

Readers who would like to see a copy of the model should drop a line directly to John Ozimek