At the last full council meeting, councillors debated and voted in favour for basic checks for all councillors and enhanced checks for those on the Cabinet and the fostering and adoption panels. Also approved was for the council to lobby the Government to change the Protection of Freedoms Act 2012 to allow all Cornwall councillors to have an enhanced check.
I have said in a previous blog post that the law is an ass when it comes to who and can be DBS’d. I fail to see why all those who are in the role of a Cornwall councillor cannot have an enhanced check.
For those who may not know it, a basic check will only show unspent convictions. Whereas a standard or enhanced check will show far more detail. The majority of councillors want members to have enhanced checks and the Council took legal Counsel to see if there was anyway to do enhanced checks as pre the 2012 Act, all Cornwall councillors could – and did – have enhanced checks.
However, the advice from Counsel was:
- Basic Certificates are available for all Members and co-optees on payment of the prescribed fee, without further eligibility criteria. Certificates list only unspent convictions. The Council is at liberty to request basic certificates in respect of any elected Member or co-optee;
- The Council will be entitled to obtain a Standard Certificate in respect of a Member who carries out a regulated activity, in relation to either children or vulnerable adults. In essence, this means any Member who discharges an education or social services function, or sits on any body, committee or sub-committee that does so, by virtue of the saved definition of regulated activity;
- The Council will also be entitled to obtain an Enhanced Certificate in respect of a Member whenever it can obtain a Standard Certificate. This means that the Council can obtain an Enhanced Certificate for a Member who discharges an education or social services function, or sits on any body, committee or sub-committee that does so;
- The Council is also entitled to apply for a Standard Certificate or an Enhanced Certificate for any person who has been co-opted onto a Council committee with education or social services functions, even if that person is not a Council Member;
- Members are unlikely to be undertaking regulated activity under the revised definition and in the absence of such activities being undertaken they are not eligible for enhanced checks with a check of either of the barred lists, being the lists of those barred from working with children, young people or vulnerable adults;
- Substitutes are in the same position as substantive members of committees; and
- The Council is entitle, but not required, to seek an enhanced check under the applicable legislative provisions where so indicated above. However, when doing so, it is important that the Council considers whether it is necessary and proportionate to do so, given the particular functions of the committee or other body in question.
The counsels last point:
Requiring an Enhanced check is self-evidently a substantial interference with a person’s right to respect for private life under Article 8 of the European Convention on Human Rights.
This concerns me the most, as whilst I do understand the need to respect the right of private life, I believe child protection and protecting vulnerable adults trumps this, and therefore should take priority.
The report on who and why someone can be DBS’d can be found HERE.
As for what ‘regulated ‘ activity is, I hope this will explain:
There are two definitions of ‘regulated activity’ to which regard must be had:
- the definition following the changes introduced by the Protection of Freedoms Act 2012 which effectively restricts regulated activity to undertaking prescribed activities with children, young people or vulnerable adults during which time the child, young person or vulnerable adult might be considered to be more vulnerable to abuse. Different activities are prescribed to children, including young people, and adults. The activities are summarised in appendix 1 to the briefing note (Appendix 1 to this report) but examples include the provision of personal care such as washing or dressing and, in relation to adults, assistance in the conduct of a person’s own affairs. Counsel considers it unlikely that any elected Members or co-optees will undertake activity that will fall within this revised definition of regulated activity in their official capacity;
- the ‘saved’ definition which preserves the definition of regulated activity as it was prior to the changes introduced by the 2012 Act in relation to membership of the Council, its Cabinet and committees, where education or social services functions are carried out. This means that a Member or co-optee will be in regulated activity, without more, if they:
- discharge, as a result of their membership, any education or social services functions of the Council;
- They are a Cabinet Member (the Cabinet discharges education and social services functions);
- are a member of a committee of the Cabinet (there are currently no such committees and this does not include the Policy Advisory Committees as they are committees of the Council); or
- they are a member of an area committee or any other committee of the Council which discharges education or social services functions. With the references to the Cabinet and ‘any other committee’ this effectively means that whatever committee a Member or co-optee is a member of they will be in regulated activity, provided the committee undertakes education or social services functions. It is accepted that membership of a committee is very different to undertaking the activities within the revised definition.
Also discussed, voted on, and approved by all but two members was the “Members’ Safeguarding and Criminal Records Checks Policy” which can be found HERE. I welcome this policy and has incorporated a few policies into one.
I saw yesterday’s vote and approve of basic checks as a stepping stone to all elected members, no matter what committee or function they carry out having an enhanced DBS. As I said before, child protect should trump everything else.