Schools Bulletin Spring 2011

Transcription

1 Page 1 Schools Bulletin Spring 2011 Serena Hedley-Dent and Hannah Armit April 2011 Education Bill Vetting and Barring Scheme ( VBS ) Remodelling Review Review of the criminal records regime in England and Wales Vaile-v-Havering Using biometric data The Bribery Act 2010: what does it mean for Independent Schools? Education Bill Essentially, the Bill contains the plans set out in the Government s White Paper, The Importance of Teaching. Little of the Bill is immediately relevant to independent schools. Proposals carried forward from the White Paper include: extended powers to search pupils. A head teacher or an authorised staff member currently has power to search a pupil or his possessions without consent if there are reasonable grounds for suspecting that the pupil is in possession of a weapon, alcohol, illegal drugs, stolen property or other items specified in regulations. The Bill adds to that list any article which the member of staff reasonably suspects has been, or will be used to commit an offence or cause personal injury to any person (including the pupil himself). The Bill also gives staff members power to search pupils of the opposite sex, including (in urgent cases) without having another member of staff present. This power has been criticised both by educational experts and by MPs in the Parliamentary committee that is scrutinising the Bill; a new power to give same-day detention, removing the need to give 24 hours notice. This provision is also controversial and been subject to criticism; affording anonymity to teachers accused of abuse. As the Bill currently stands, these provisions do not apply to support staff. Unfortunately, the Bill s streamlined inspection regime will not apply to the independent sector. The Bill amends the legislation governing the inspection of maintained schools, leaving the inspection regime for independent schools untouched. Vetting and Barring Scheme ( VBS ) Remodelling Review In February, the Home Office, the Department of Health and the Home Office issued a report and recommendations on the VBS. The system is to be scaled back, with the aim of placing primary responsibility for ensuring that employers/volunteers are suitable back on employers and voluntary organisations. The summary of recommendations is as follows: 1. A State body should continue to provide a barring function to help employers protect those at risk from people who seek to do them harm via work or volunteering roles; 2. The CRB and ISA should be merged and a single agency created to provide a barring and criminal records disclosure service; 3. The new barring regime should cover only those who have regular or close contact with vulnerable groups;

2 Page 2 4. Barring should continue to apply to both paid and unpaid roles; 5. Automatic barring should apply for serious offences which provide a clear and direct indication of risk; 6. Registration should be scrapped there should be no requirement for people to register with the scheme and there will be no ongoing monitoring; 7. The information used by the State barring body (currently the ISA) to make a barring decision should be serious in nature; 8. Criminal records disclosures should continue to be available to employers and voluntary bodies but should be revised to become portable through the introduction of a system which allows for continuous updating; 9. The new regime should retain current arrangements for referrals to the State barring body by employers and certain regulatory bodies, in circumstances where individuals have demonstrated a risk of harm to children or vulnerable adults; 10. The current appeals arrangements should be retained; 11. The State barring body should be given a power to vary review periods in appropriate circumstances; 12. Services relating to criminal records disclosure and barring provisions should be self-financing. The Government should consult on raising the cost of the criminal records disclosure fee to cover the services; 13. The new system will retain two offences: it will continue to be an offence for a barred person to work with vulnerable groups in regulated activity roles; it will also be an offence for an employer or voluntary organisation knowingly to employ a barred person in a regulated activity role; 14. The Government should raise awareness of safeguarding issues and should widely promote the part everyone has to play in ensuring proper safeguarding amongst employers, volunteer organisations, families and the wider community. The details of the new scheme are contained in the Protection of Freedoms Bill. You can read the report here. Review of the criminal records regime in England and Wales This review is being carried out alongside the review of the Vetting and Barring Scheme, discussed above. The leader of the review has now published phase one of her report, in which she deals with the following questions: Could the balance between civil liberties and public protection be improved by scaling back the CRB s employment vetting scheme? Where vetting systems are necessary, could they be made less burdensome? Should police intelligence (i.e. information about an individual which, while not on his or her criminal record, is nevertheless held by the police) form part of CRB disclosures? She offers ten recommendations. 1. Eligibility for criminal records checks should be scaled back Children under 16 should not be eligible for checks; individual eligibility should be scaled back to focus on those working unsupervised or in regular close contact with children or vulnerable adults. 2. CRB checks should be portable Individuals should be able to carry checks between positions within the same employment sector. So, for example, an individual who obtained a CRB check while working with children should be able to use that check when applying to work in a school. If, on the other hand, their CRB check was obtained while working with vulnerable adults, they should obtain a fresh check when applying for school work. 3. The CRB should introduce an online system to allow employers to check if updated information is held on an applicant An employer should, with the applicant s consent, be able to go online to check whether the information on an applicant s criminal records certificate is up to date.

3 Page 3 4. A new CRB procedure should be developed so that the criminal records certificate is only issued to the individual applicant The current system does not give applicants an opportunity to challenge inaccuracies on the certificate before it is received by a prospective employer. The procedure should be amended so that the certificate is held by the applicant and treated in the same way as other documents and qualifications for which a prospective employer might want evidence. 5. The Government should introduce a filter to remove old and minor information from criminal records checks Certain types of conviction should always be disclosed, but old and minor conviction information (such as cautions) should be removed from criminal records checks, unless the old information suggests a pattern of re-offending. This issue will be examined more closely in phase two of the review. 6. A package of measures should be introduced to improve the disclosure of police information to employers Police intelligence is any information held by the police that does not relate to convictions. At present, the disclosure process is hampered by (a) information having to be retrieved from Chief Officers working in different geographical regions, and (b) a legal test which is too inclusive: Chief Officers may disclose information which they consider might be relevant to the post applied for. The test should be amended so that information is only disclosed if a Chief Officer reasonably believes that it is relevant. This test should be supported by a Statutory Code of Practice to promote uniform application. The procedure itself should be streamlined by imposing a timeframe for police response, and by making use of the Police National Database, so that a single Chief Officer can access and assess information from a number of regions. 7. The CRB should develop an open and transparent representations process, with the disclosure of police information being overseen by an independent expert This process would allow applicants to challenge not only the accuracy of information but also its relevance. 8. Sanctions against employers knowingly making unlawful applications for CRB checks should be rigorously enforced This is self-explanatory. 9. Basic criminal record checks should be introduced in England and Wales Basic checks only reveal unspent convictions. At the moment, they are available in Northern Ireland and Scotland, but not in England and Wales. They should be introduced and used in employment sectors that do not involve working with children or vulnerable adults. 10. Comprehensive and easily understood guidance should be developed to explain the criminal records and employment checking regime Taken together, these recommendations should streamline the whole process, benefiting everyone involved. Recommendations 2 and 3 are likely to make the most difference to schools, allowing them to employ staff immediately instead of having to wait for CRB certificates to come through. Under recommendation 4, the certificate will be sent to the job applicant, rather than the school but, as the report points out, a school may refuse to employ someone who withholds their certificate. It is to be hoped that the guidance proposed under recommendation 10 will allow schools to know exactly when they are entitled to ask for CRB checks. The current system s uncertainties encourage employers to err on the side of caution and apply for checks, even when the application is ineligible. If sanctions are to be enforced even if only against those who knowingly make ineligible applications it will be important for the rules to be clear. Phase two of the review will look more broadly at how criminal records should be defined, used, managed and stored. Many of the recommendations in this report have been incorporated into the Protection of Freedoms Bill. The phase 1 report is available on the Home Office website, here.

4 Page 4 Vaile-v-Havering This case, reported in our Summer 2010 bulletin, has now been heard by the Court of Appeal. The facts of the case are, briefly, that Mrs Vaile was a teacher in a special school. One of her pupils (X) developed an attachment to her and attacked her twice. The second assault resulted in physical injuries and serious psychological damage to Mrs Vaile. She claimed the assault occurred because the defendant local authority (responsible for the school) failed to provide her with a safe working environment. In particular, she claimed that: the school had failed to update X s statement to mention his diagnosis of Autistic Spectrum Disorder ( ASD ) and had not informed her of this diagnosis; she had not received proper training in teaching children with ASD; the school had not properly implemented the recommended special teaching regime for X; the school had failed to take appropriate action following X s first attack on her. In particular, the school should have conducted a proper risk assessment of X. The judge in the lower Court found that although the school had behaved poorly (and in the ways alleged by Mrs Vaile), he could not find a causal link between its shortcomings and X s assault. As a result, he determined that the local authority had not failed to provide her with a safe system of work and was not negligent. On appeal, Mrs Vaile claimed that it was illogical of the judge to accept that the school had failed in so many respects but conclude that the school had not allowed her to work in unsafe conditions. Longmore LJ, who gave the leading judgment in the Court of Appeal, agreed with Mrs Vaile. The local authority had failed to provide a safe working environment. On the question of causation, he said that X s attack was of a type that might have been foreseen (and the risk of which might have been mitigated had a proper risk assessment been conducted). He rejected Havering s contention that Mrs Vaile could not show how they could have prevented the attack, citing the earlier case of Drake-v-Harbour: where a claimant proves both that a defendant was negligent and that loss ensued which was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a court to infer that it was probably so caused, even if the claimant is unable to prove positively the precise mechanism. The local authority was found liable for the assault. The decision of the lower Court may have reassured schools that it would be difficult for a teacher to pin liability on them for the acts of a special needs pupil. This decision indicates that, if a school has failed to supply teachers with proper support and information and a teacher is harmed, the teacher will not have to meet the strict causation test of showing that the harm would not have occurred had the school provided proper assistance. The teacher will only need to demonstrate that the harm was of a type that was likely to result from the school s failings. This decision will be of most interest to schools catering for pupils with special needs that affect behaviour. If you are concerned about potential liability, please get in touch with your usual contact at Farrer & Co. Using biometric data The Protection of Freedoms Bill adds new conditions to the use of biometric data in schools. Schools will need to obtain the consent of both parents if they want to use a pupil s biometric data. Even with the parents consent, a school must not use biometric data if the child objects, and must make alternative arrangements for pupils whose biometric data they are not permitted to use. There are exceptions. Schools will not need to obtain the consent of both parents if, for example, a parent cannot be found or lacks the mental capacity to consent, or where the child s welfare requires a parent not to be contacted.

5 Page 5 Parental consent must be in writing and can be withdrawn also in writing at any time. The Protection of Freedoms Bill is currently being scrutinised by a House of Commons committee. We will update you if there are any changes in the provisions affecting schools. The Bribery Act 2010: what does it mean for Independent Schools? What is the current status of the Act? The Act was passed in April 2010 in the last days of the Labour Government. It had been due to come into force on 1 April 2011, but following much vocal criticism from the business lobby the Government agreed to review its guidance. Revised guidance was published by the Ministry of Justice at the end of March and the Act will come into force on 1 July The good news is that Kenneth Clarke is advocating a common sense approach to bribery prevention. Even so, all organisations (including independent schools) should be using the time between now and 1 July to ensure their anti corruption policies are in good order. So what does the Act say? The Act s scope is extensive, containing very broadly defined criminal offences which have cross-jurisdictional reach. In particular the Act extends the offence of bribery to cover all private sector transactions and imposes criminal penalties for individuals and organisations (alike). What are the offences under the Act? Promising, offering or giving ( active offence ) or requesting, agreeing to receive or accepting ( passive offence ) an advantage (financial or otherwise), in circumstances involving the improper performance of a relevant function or activity. relevant function or activity means a public, business activity or employment activity which a reasonable person in the UK would expect to be performed in good faith or impartially or in a particular way by virtue of the fact that the person performing it is in a position of trust. improper performance means breach of that expectation. Promising, offering or giving an advantage (financial or otherwise) to a foreign public official intending to influence him to obtain/retain business or a business advantage. Failure of a relevant commercial organisation to prevent active bribery by a person associated with it where the act of bribery is intended to obtain or retain business or an advantage in the conduct of business for the commercial organisation (the Corporate Offence). Are there risks of liability for schools under the Act? Yes. There is an expectation on the part of parents that schools conduct their business impartially and in good faith. As charity trustees or company directors a school s governors are in a position of trust. We also consider it likely that members of staff performing the school s business (ie teaching) will be treated in the same way. This means that individual governors and members of staff are capable of committing an offence under the Act in addition to the school itself. Although members of staff could commit offences we do not think that bribery is a particularly high risk area for the schools sector. That said, there are clearly some areas of a school s operation which may attract bribery risk, for example: accepting a payment or donations in return for securing a place for a particular child or the appointment of a particular child to a position within the school, without following the school s usual admissions/appointments procedures; a member of school staff accepting an invitation from the school s suppliers (or parents) to attend events as their guest where the supplier or parent intends to secure an improper advantage (in this case the offence would be committed by the supplier or parent, but there is a reputational risk to the school and, if the invitation was a reward to the member of staff or succeeded in influencing him or her to act improperly as a result, the member of staff would also have committed an offence);

6 Page 6 acceptance by a teacher of a lavish gift which induces him or her to favour one pupil over others; offering free or subsidised places to senior members of staff at feeder schools with the intention of influencing the advice or information that they give to parents about their applications to senior schools; accepting a charitable donation from a business tendering for a contract with the school or its trading company or favouring donors when choosing suppliers. The introduction of the Corporate Offence is of relevance to schools. This offence applies to a relevant commercial organisation that fails to prevent bribery by a person associated with the organisation even if the organisation was unaware of the bribe. This is a strict liability offence so there is no need to prove negligence or the active involvement of the organisation concerned. This may make the offence easier to prove and lead to more corporate prosecutions and convictions. Associated person A person will be associated with an organisation if they perform services on its behalf which may include employees, board or non-executive members, trading subsidiaries, joint venture partners and a potentially broad range of intermediaries and agents. It is therefore irrelevant in what capacity the person performs the services and the courts must have regard to all the relevant circumstances and not just the nature of the relationship between the parties. Interestingly, the associated individual or entity that carries out the bribery on behalf of the organisation need not have any connection to the UK, meaning that there is potential for the activities of overseas companies operating franchise arrangements on behalf of a UK school to lead to an offence being committed by the school. It is important to remember that the Corporate Offence is only committed where an organisation fails to prevent its associates from bribing other people. It is not committed where it fails to prevent its associates from being bribed (although if the school itself accepted the bribe it is likely to have committed the passive offence and the potential reputational damage could be serious). It also requires that the bribe is paid with the intention of retaining some kind of business advantage for the school. Therefore schools will not be liable if their associates pay bribes that benefit nobody but the person paying the bribe. Does the Corporate Offence apply to all schools? No. The Corporate Offence can be committed by relevant commercial organisations. Section 7(5) of the Act is widely drafted and provides that these include a body which is incorporated under the law of any part of the United Kingdom and which carries on a business (including a trade). Independent Schools which are incorporated as companies (whether or not charitable ones) will satisfy this test because they are corporate bodies and, by charging fees, they are engaging in trading. The Guidance makes it clear that an organisation will be caught if it engages in commercial activities irrespective of whether it pursues primarily charitable or educational aims and this is consistent with the treatment of schools as businesses in other areas (eg VAT and competition law). Schools which are Royal Charter bodies or incorporated by Act of Parliament should remember that they also come within the ambit of the offence, as do bodies of governors who have been incorporated under section 50 of the Charities Act Schools which are not incorporated will not be covered by the definition of relevant commercial organisation but any trading company subsidiary will be. However, unincorporated schools must be aware that their activities will still fall within the scope of the active and passive offences set out in the Act and individual governors and staff members can still commit a bribery offence. The only distinction is that the school could not commit the corporate offence. Penalties An individual guilty of an offence under the Act may be jailed for up to 10 years and/or receive an unlimited fine. Organisations may receive unlimited fines.

7 Page 7 A convicted director/charity trustee is also: (a) likely to be disqualified under the Company Director Disqualification Act 1986 which could prevent an individual from holding a director position for up to 15 years; (b) likely to face personal liability for breach of trust. While no guidance has yet been published as to the levels of fines, the courts have indicated they view bribery as an extremely serious offence and that corporate fines are likely to be very high. However, schools might take some comfort from the fact that the prosecuting authorities have issued their own guidance indicating that it is unlikely to be considered to be in the public interest for prosecutions to be pursued for minor, isolated offences. What practical steps can you take to avoid liability for the corporate offence under the Act? Adequate procedures There is a defence to the Corporate Offence if the organisation can show it had adequate procedures in place designed to prevent the bribery. The Government s guidance addresses these and makes clear that a proportionate response for a particular organisation will depend upon its sector, size, resources and the degree of risk. It is also evident that organisations will need to be able to provide evidence of the processes used to scrutinise those associated with it. The Guidance sets out six principles to assist organisations in putting adequate anti-bribery measures in place. These are: 1. Proportionate Procedures; 2. Top Level Commitment; 3. Risk Assessment; 4. Due Diligence; 5. Communication (Training); 6. Monitoring and Review. The Government has stressed that putting in place anti-bribery measures is not a regulatory requirement and there is no obligation on schools to do anything in response to the Act. However, schools that do nothing risk not having a defence to a prosecution for the Corporate Offence. In practice this means that schools should now: carry out a risk assessment covering bribery risks across their operations and appoint a senior individual to be responsible for the oversight of the anti-corruption programme; develop and implement a clear and strictly enforced anti-corruption policy including provisions on gifts and hospitality and acceptance of donations which set out the parameters of what is acceptable and the procedures to be followed in relation to them; maintain a register of the hospitality provided and received and consider an aggregate amount of hospitality which may be provided to one person/organisation; maintain a register of gifts and donations received by the school/members of staff over a particular threshold and think carefully before contracting with or providing lavish benefits to donors; gifts to public officials should be prohibited; carry out robust due diligence on potential business partners, agents and other associated third parties before entering into any business relationship or project with them. This could include parents where the school considers there is a bribery risk; involve the governors/senior management in establishing a culture of zero tolerance of bribery/corruption; implement regular, tailored training for staff on the school s anti-corruption policies. Include a right of termination in employment contracts for breach of the Act; and amend your whistle-blowing policy to include references for reporting bribery/corruption, along with procedures for investigating any allegations of bribery/corruption.

8 Page 8 The Government intends the Act to establish the UK as an international leader on anti-bribery enforcement. The consequences of non-compliance will be serious and acting now to ensure robust policies and procedures are in place will stand schools in good stead to defend themselves. If you require further information on the Bribery Act, please contact Serena Hedley-Dent, Hannah Armit or your usual contact on This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.