Introduction
The growth area in child protection policy in the past decade has been in preventing those deemed to pose a danger from having access to children (Parton, Reference Parton2012). This has involved policies on, inter alia, indeterminate preventive sentencing, multi-agency public protection arrangements (MAPPA) for supervision of individuals convicted of offences, and the expansion of vetting and barring systems intended to exclude unsuitable people from paid or voluntary work with children (McAlinden, Reference McAlinden2006; Kemshall, Reference Kemshall2008; Stafford et al., Reference Stafford, Parton, Vincent and Smith2011). All of these have been located as aspects of the ‘new penology’ of risk management and preventive governance, and are particularly in evidence in policy on sex offenders (Matravers and University of Cambridge Institute of Criminology, Reference Matravers2003; McAlinden, Reference McAlinden2006).
The focus of this article is vetting and barring, which are linked tools intended to exclude ‘unsuitable’ individuals from paid and voluntary work with children. Vetting is the use of information from a third party, in this instance criminal history information, for the assessment of an applicant's suitability for a post. Commonly referred to as CRB, or Disclosures for posts with children, they contain information on all criminal convictions and cautions, non-conviction police intelligence and whether an individual is barred from working with young people. Barring arrangements, intended to prohibit unsuitable people from working with children, have long existed but have become statutory and mandatory for many public sector and related organisations. There are two main routes whereby an individual can be included on the barred List: on conviction of certain serious criminal offences, such as violence against a vulnerable person, or as a result of a referral by an employer for unsuitable behaviour (Independent Safeguarding Authority, 2009; Scottish Government, 2010b). It is a serious criminal offence for anyone named on a barred List to work with children, in a paid or unpaid capacity, or to attempt to do so (Vetting and Barring Scheme Communications Team, 2009; Scottish Government, 2010a). Furthermore, it is a criminal offence for an organisation to engage knowingly a barred individual in activities with children (Scottish Executive Education Department, 2004; Department for Education and Skills, 2005; Smith, Reference Smith2010; Department of Health Social Services and Public Safety, March 2009). Since the turn of the century, compliance with these vetting and barring requirements has become compulsory for a greater number of organisations. The consequential growth in use of criminal records checks is such that in a decade vetting has become standard practice for employed and voluntary posts with children (Stafford et al., Reference Stafford, Parton, Vincent and Smith2011).
Recently, these policies have become subject to increasing controversy and public debate. It has been suggested that their broad application is disproportionate to the prevalence of the problem (Scottish Parliament Education Committee, 2006; Department for Education and Schools et al., February 2011). In addition, the efficacy of these arrangements has been questioned on the basis that they rely on data on known offenders, when most child abuse is unreported (Thomas, Reference Thomas2005; Scottish Parliament Education Committee, 2006; McAlinden, Reference McAlinden2010; Department for Education and Schools et al., February 2011). Questions have been raised about the entire raison d'être of prioritising a policy response that focuses on scrutinising individuals, rather than, say, developing safer organisational cultures or better supporting children in reporting abuse (McAlinden, Reference McAlinden2006; McAlinden, Reference McAlinden2010). Nonetheless, the reach of vetting and barring policies expanded during this period.
This happened contemporaneously with devolution in the UK. The delegation of aspects of legislative and expenditure powers from the UK to Scotland, Wales and Northern Ireland provided new opportunities for the construction of differing policy by these nations. A growing body of research provides analysis of the impact of devolution on policies, particularly where there is divergence in policies between the nations of the UK (Birrell, Reference Birrell2009, Reference Birrell, Lodge, Schumueker and Jeffrey2010; Scott and Mooney, Reference Scott and Mooney2009; Keating, Reference Keating2010). This critical examination of policy can be used as a ‘prism to review key questions of devolution’ (Tisdall and Hill, Reference Tisdall and Hill2011: 29). The purpose of this article is to explore some of the possibilities of, and limits to, devolution by refracting it through the lens of vetting and barring policy in England and Scotland from 1997 to 2010.
To do this, consideration is given here to vetting and barring policy moves in England and Scotland from 1997 to 2010. Wales and Northern Ireland are not included because the political reality restricted the opportunities for differences in policy. In the early years post-devolution, powers devolved to Wales were minimal, and did not extend to vetting and barring. More recently, with the devolution of further powers and growing political confidence, Wales has developed local variations in aspects of vetting and barring, but for most of the period under consideration the policies and operations were the same as in England. In Northern Ireland, by contrast, powers were transferred to the Executive and Assembly and separate vetting and barring arrangements were established. However, the suspension of the Northern Ireland Assembly for many of the early years of the century limited policy development, leading to fewer opportunities for meaningful comparative analysis. Subsequently, in 2009, Northern Ireland opted to become part of the England/Wales scheme. For these reasons, this article focuses on comparison of vetting and barring policy between Scotland and England.
Rationale for consideration of vetting and barring
There were many aspects of vetting and barring policy where there were opportunities for Scotland and England to develop different policy responses, and as such it was an apposite tool to gain insight into post-devolution policy. Prior to formal devolution, Scotland already had administrative decentralisation for certain matters including children's policy (Keating, Reference Keating2010). Consequently, Scotland had experience in pursuing different policies in aspects of education, child welfare and youth justice from the rest of the UK (McAra, Reference McAra, Muncie and Goldson2006; Tisdall and Hill, Reference Tisdall and Hill2011). Similarly, the main operational elements in vetting and barring, administration of criminal records and regulation of posts with children were already controlled to a large degree in Scotland. This history and administrative basis offered the opportunity for Scotland to devise different priorities in, and beyond, vetting and barring from those in England. It was not unsurprising that there appeared to be significant policy differences emerging in vetting and barring between Scotland and England (Scottish Parliament Education Committee, 2006; Scottish Parliament, 2007). On closer examination, a more complex picture emerged of developments in vetting and barring policy and this offered insights into the possibilities and limitations of devolution.
Devolution and forces for policy divergence and convergence
The devolution of power in the UK was the response to internal and external pressures and was intended to serve a number of purposes (Jeffrey et al., Reference Jeffrey, Lodge, Schmuecker, Lodge, Schumueker and Jeffrey2010). It has been located in the context of the construction of ‘meso’ level government as one response of the nation state to globalisation (Stafford et al., Reference Stafford, Vincent and Parton2010). More narrowly, an internal driver for devolving powers was the apparent declining legitimacy of the Westminster Government and the failure to meet the needs of those in Scotland and Wales (Jeffrey et al., Reference Jeffrey, Lodge, Schmuecker, Lodge, Schumueker and Jeffrey2010; Keating, Reference Keating2010). The response, by the Government elected in 1997, was to establish executives and legislatures with legislative, policy and budgetary powers for Scotland, Northern Ireland and Wales that would permit policy solutions that could be tailored to their particular economic, social and cultural circumstances (McGarvey and Cairney, Reference McGarvey and Cairney2008).
It was anticipated that the devolved nations, primarily Scotland, would pursue different polies resulting in divergence from England (Greer, Reference Greer2009). And indeed, enabled by formal powers, the devolved administrations have introduced specific innovative policies: for example, free personal care for older people in Scotland, a Commissioner for Older People in Wales and integrated health and social care structures in Northern Ireland (Birrell, Reference Birrell, Lodge, Schumueker and Jeffrey2010; Keating, Reference Keating2010). Aspects of universal provision, most notably the removal of charges for prescriptions, have been introduced in the devolved nations but not England (Keating, Reference Keating2010). In health more broadly, Greer (Reference Greer, Lodge, Schumueker and Jeffrey2010: 141) concludes ‘the policy changes since 1 May 1997 have put the four systems [England, Scotland, Wales and Northern Ireland] on different trajectories’. With regard to children's policy, Scotland's history of aspects of administrative decentralisation continues, and there have been distinct developments to those in England (Tisdall and Hill, Reference Tisdall and Hill2011).
It also became apparent that the divergent policy trajectories were not solely a result of the acquisition of formal powers. Devolution had brought a shift in policy influences from the established interests in Westminster to new stakeholders in the devolved jurisdictions (Keating, Reference Keating2005a). In Scotland, there was a shift to a comparatively more inclusive, deliberative and collaborative style of policy development that enabled a broader range of external groups to influence policy direction and intent (Keating, Reference Keating2005a; Croall, Reference Croall2006).
A noted, if less anticipated, cause of divergence has been the pursuit of new policy by England whilst devolved nations retained the status quo (Keating, Reference Keating2010). This was exemplified through the New Labour Government's agenda to recast public service delivery, that is New Public Management, competition, contracting out, public–private provision and consumerism (Keating, Reference Keating2010; Keating et al., Reference Keating, Cairney and Hepburn2012). Under devolution, this could not be imposed on Scotland and Wales where existing public services provision was retained. The result is policy divergence by England (Keating, Reference Keating2010; Keating et al., Reference Keating, Cairney and Hepburn2012). So, as a consequence of devolving powers, different polices, narrow and broad, can be and have been developed and introduced.
Overall, however, there has been less policy divergence by the devolved nations than might have been expected, and many similar policies continue to be pursued. Scholars have sought explanations for this to provide deeper insight into devolution and policy making (McGarvey and Cairney, Reference McGarvey and Cairney2008; Keating et al., Reference Keating, Cairney and Hepburn2012). They have identified factors that act as a brake on divergence and that support convergence. The dominance of one political party (Labour) until recently was a strong factor in retaining policy similarity (Keating, Reference Keating2005b). Another factor was the shortage of policy capacity in the devolved jurisdictions, which reduced their ability to construct policy in the full range of devolved fields and made divergence less likely. England is significantly larger than the three devolved territories measured either by population (England comprises 84 per cent of the UK population) or GDP (85 per cent), and this has had a uni-directional drag on policy creation. London retained most policy resource and led its development (Trench, Reference Trench2007; Lodge et al., Reference Lodge, Schmuecker and Jeffrey2010). The response was on occasions to duplicate English legislation in Scotland, Wales and Northern Ireland: the so-called ‘photocopy model’ of policy making (Keating et al., Reference Keating, Stevenson, Cairney and Taylor2003, Reference Keating, Cairney and Hepburn2012; Gray and Birrell, Reference Gray and Birrell2011). There are further convergence features arising from the structure of the UK, such as policy ‘overspill’, whereby public expectation that the same policies from another nation, generally England, will be implemented is a driver to it becoming reality (Keating, Reference Keating2005b). An example of this policy ‘overspill’ is the maintenance of the same proportion of the budget for health by Scotland as committed to by the government of England. The size of England and the geography of the media tend to mean overspill is more likely to be from England to devolved areas, particularly Wales, but also Scotland and Northern Ireland (Adams and Schmuecker, Reference Adams and Schmuecker2005; Keating et al., Reference Keating, Cairney and Hepburn2012). Beyond this, the continued relevance of the shared history, similar economic and social problems across much of the UK and delivering on existing commitments continue to bind policy (Jeffrey et al., Reference Jeffrey, Lodge, Schmuecker, Lodge, Schumueker and Jeffrey2010).
At the macro level, globalisation has increased the speed and transplanting of ideas and policies between nation states (Keating, Reference Keating2010; Stafford et al., Reference Stafford, Parton, Vincent and Smith2011). This process is notable in the field of criminal justice, where the US has been influential in the increasingly punitive ‘war on crime’, a precautionary, preventive policy that spread to the UK and Europe and of which vetting and barring are tools (Muncie and Goldson, Reference Muncie and Goldson2006; Wacquant, Reference Wacquant2009). How these forces, which promote difference or similarity in policy, have operated in the cases of vetting and barring are considered after an overview of the developments in these policies.
Key stages in the development of vetting and barring
Vetting and barring are linked tools whose purpose is to exclude unsuitable people from paid and voluntary work with children. They have a significant history, but changes since 1997 have put them on a statutory basis and more closely prescribed the requirements for them. Initially barring requirements applied only to public sector organisations, but compliance with them has become compulsory for a much greater number of organisations, particularly in the private and voluntary sector. Vetting is the way organisations can establish if an individual is barred from work with children and this had driven the wider use of vetting in practice with an expectation that individuals should be subject to criminal records checks.
There have been five main stages of development in vetting and barring in the UK between 1997 and 2010:
Phase 1 The expansion of employer access to criminal history information for the vetting of staff applying to work with children. The same legislation (the Police Act 1997), passed pre-devolution applied to the whole of the UK although implementation was separate in Scotland (and Northern Ireland) to that of England and Wales.
Phase 2 The barring regime was put on a statutory basis and extended. This was done under separate legislation, firstly for England and Wales, then Scotland and finally Northern Ireland.
Phase 3 Substantial reform of the barring arrangements that brought a far greater number and diverse range of individuals in paid and voluntary work with children under the provisions of the proposed Safeguarding Vulnerable Groups scheme in England, Wales and Northern Ireland.
Phase 4 The proposed introduction of membership schemes for all those working with children and young people: one scheme for England, Wales and Northern Ireland and a separate one for Scotland. These ‘Scheme Membership’ arrangements were introduced in Scotland from February 2011 (Scottish Government, 2011).
Phase 5 In 2010, the incoming Coalition Government cancelled the membership scheme for England, Wales and Northern Ireland (Department for Education and Schools et al., February 2011). For these jurisdictions, criminal records checks continue to be available, but are not mandatory, and a central barring regime continues, covering far fewer posts than under the previous arrangements.
That children were vulnerable in organisational settings was exposed through a wide range of revelations in the late 1980s and 1990s, which had brought to prominence the incidence and nature of maltreatment of children, particularly sexual abuse, in these contexts. Many such revelations resulted in inquiries and overarching reviews (Warner, Reference Warner1992; Marshall et al., Reference Marshall, Jamieson and Finlayson1999; Waterhouse, Reference Waterhouse2000; Bichard, Reference Bichard and Sir2004). The flaws in organisations’ safeguarding practice were revealed and pressure to address these applied (Utting et al., Reference Utting, Baines, Stuart, Rowlands and Vialva1997; Marshall et al., Reference Marshall, Jamieson and Finlayson1999; Corby, Reference Corby2000; Waterhouse, Reference Waterhouse2000; Corby et al., Reference Corby, Doig and Roberts2001). But it was two tragic incidents that received much media coverage and were subject to public enquiries that were important catalysts for change. The killing of sixteen children and their teacher in Dunblane Primary School in 1996, and the subsequent, similarly high profile murder of two girls in Soham, by a school caretaker, were important in provoking development and radical reform to the vetting and barring requirements (McAlinden, Reference McAlinden2007; Stafford et al., Reference Stafford, Parton, Vincent and Smith2011). The public enquiries (Cullen, Reference Cullen1996; Bichard, Reference Bichard and Sir2004) had recommended practice that was more rigorous in the recruitment of staff, and the use of criminal history information and ‘soft intelligence’ for vetting adults for posts with children (Corby et al., Reference Corby, Doig and Roberts2001). For over a decade, there has been emphasis on addressing these weaknesses to protect children. Less attention has been paid to addressing failures within the institutions responsible for the welfare of children (Parton, Reference Parton2006; McAlinden, Reference McAlinden2010).
Across the UK, the numerous developments in the vetting and barring regimes have been about expansion. The drivers for these developments were situations arising in England, but it was understood that the problems and weaknesses identified were not confined to a single area. The differences and similarities in vetting and barring policies are dealt with next.
Divergence and convergence in vetting and barring policy
Divergence can happen at any of the various levels at which policy operates; from pursuit of distinct agendas, the same priorities framed differently or similar priorities subject to separate policy responses, or the same policy implemented in a distinctive way (Keating, Reference Keating2005b). Divergence and convergence at differing levels of policy was a feature of vetting and barring. Although there was a single direction of travel in these policies at the macro-level for Scotland and England, there were substantive differences in important aspects in the detail of policy and implementation.
The first expansion of access to criminal record checks was primarily to voluntary sector providers, and was introduced under the Police Act 1997, pre-devolution and UK-wide. So there was one policy and Scotland shared the parameters and legal basis with England. Since Scotland already held administrative responsibility for such matters, a separate arrangement of Disclosure (criminal history information) checks was devised. But, essentially, a single policy was rolled out with some operational variation.
By the time of phase 2, the legislative and policy powers for administrative justice, child protection and criminal history information were devolved to Scotland. Even with this devolution of formal powers, the next phase of policy development (the proposal in Scotland for barring unsuitable people from work with children) was essentially a photocopy of that in England. Under the Protection of Children Act 1999, people in England and Wales could be barred from working with children in health and social services with the existing arrangements for education amended. The system originally proposed for Scotland was also to apply to posts in ‘childcare, healthcare and education’ (Scottish Executive Education Department, 2000: 2), a position in line with the system in England.
However, the bill to introduce a statutory barring system for Scotland was subject to significant amendments during its Parliamentary passage. Much of this was a consequence of external influence from policy lobbyists in Scotland, which helped convince the Scottish Parliament Education, Culture and Sport Committee of the need for significant changes. Their Stage 1 report on the Bill called for a reconsideration of the organisations that were to be compelled to comply (Scottish Parliament Education Culture and Sport Committee, 2002). By the time the final Protection of Children (Scotland) Act 2003 was passed, it had been amended so that its requirements applied to all organisations where there were ‘child care positions’ as defined by the Act (Scottish Parliament Education Culture and Sport Committee, 2002), a far broader approach than in England. This was understood in Scotland and England to be significant divergence in policy.
After this, the next phase of reform, under the Safeguarding Vulnerable Groups Act 2006, was the expansion of the requirements to include all organisations in England where people worked with children. This was a fairly rapid re-convergence with Scotland in this particular aspect of the policy after initial divergence.
Policy divergence by England was also a feature of vetting and barring. This arose primarily from debate in Scotland on the ‘proportionality’ of the policy. The (Phase 3) English Safeguarding Vulnerable Groups barring system introduced a new ‘Harm Test’. This covered instances where it was believed that an individual, due to their behaviour, attitudes or thinking, may harm a child (Independent Safeguarding Authority, 2009). Scotland did not follow this broadening of the trigger for referral and its system continues to be based on actual action by an individual who has harmed or could have harmed a child. The result was policy divergence by England as Scotland retained the more narrowly prescribed referral requirements and tighter conceptualisation of risk.
Whilst there was divergence within vetting and barring policy, it turned out to be less the case than envisaged and forces for convergence can be identified in the process. The specific failures revealed in the Soham case applied to England and Wales, but the case and the public inquiry attracted large amounts of media and public attention across the whole of the UK, and Scotland's vetting and barring regime was also radically restructured in light of it. Whilst in part due to policy overspill to Scotland, weaknesses and tensions in the vetting and barring arrangements had been apparent and reform for Scotland had been mooted already (Harvie-Clark and Berry, Reference Harvie-Clark and Berry2006). Membership schemes were proposed for both countries. Here, as with this field of safeguarding policy generally, the overarching agenda, purpose and principles were essentially the same in Scotland as in England.
In the last stage of development covered here, the halting of the implementation of the membership scheme by the Westminster Government was a divergence in policy initiated in England. This appears to represent a significant shift in the actual policy adopted between Scotland and the remainder of the UK. However, it is not the complete divergence in policy it superficially appears. A barring system, similar to Scotland, remains in place and criminal records checks are core to both systems.
Discussion
Developments in vetting and barring policy illustrate both divergence and convergence in the substance of policy between England and Scotland. However, at the macro policy level there continues to be coherence and a single direction of travel. Divergence was certainly enabled by devolved powers and accessibility to the Scottish Parliament, but it was constrained by the position of England as the significantly larger partner. The processes in devolved policy making offered the opportunity for divergence, and forces for convergence are useful in comprehending shifts within vetting and barring policy locally. However, this does not sufficiently explain the aetiology of the prioritising of the known offender aspect of child protection and the low priority given to alternative policy responses and other social and structural weakness identified in the public inquiries (Corby et al., Reference Corby, Doig and Roberts2001). Devolution has not produced a significantly different policy agenda, for example, one aiming to address organisational cultures and polices or to improve children's reporting of abuse (McAlinden, Reference McAlinden2010).
Although developments in vetting and barring were a response to actual events in the UK and to genuine concerns, the basis of the actual policy response is not confined to the borders of the UK. It can be located in wider moves in criminal justice and penal policy over the past two decades that have been imported from the US (Wacquant, Reference Wacquant2009). From the late twentieth century, there has been lessening regard for rehabilitation and the social context of crime, and a greater focus on the management of risk (Matravers and University of Cambridge Institute of Criminology, Reference Matravers2003; Croall, Reference Croall2006; O'Malley, Reference O'Malley2010) in the context of more populist punitive responses to crime and ‘preventive sentencing and selective incapacitation on the grounds of risk’ (Parton, Reference Parton2006:123). The revelations of deliberate harm to children, primarily sexual abuse, have been central in the growing preoccupation with risk posed by sex offenders, particularly in non-family situations (Matravers and University of Cambridge Institute of Criminology, Reference Matravers2003; Thomas, Reference Thomas2005; Parton, Reference Parton2006; McAlinden, Reference McAlinden2007). Monitoring and surveillance, such as sex offender registration, has been expanded, with the aim of restricting certain individuals’ movements (McAlinden, Reference McAlinden2007). The degree of surveillance is in part decided by the assessment of known risk (McAlinden, Reference McAlinden2010). Vetting and barring are based on the same premises of risk assessment, management and regulation of those who have committed an offence (McAlinden, Reference McAlinden2010).
The basis and viability of this policy agenda have been increasingly challenged. There have been criticisms of the focus on convicted offenders, particularly in the case of the sexual abuse of children, where the majority of instances do not get to court (Thomas, Reference Thomas2005; Wacquant, Reference Wacquant2009; McAlinden, Reference McAlinden2010; Radford et al., Reference Radford, Corral, Bradley, Fisher, Bassett, Howat and Collinshaw2011). It has been argued that the vast expansion of policy in this area is disproportionate, and that the size of the system and the associated resources could contribute to obscuring individuals on whom no risk data are held but who may present a danger (McAlinden, Reference McAlinden2006). These concerns were beginning to be raised in debates about the legislation in Scotland and England, but softening of the chosen policy was the result, rather than a different way to approach the problem. The parameters of the debate are unaltered by devolved powers although aspects within it may be different.
Conclusion
The risk-based, monitoring and surveillance basis of the vetting and barring arrangements have been implemented in a generally consistent manner in England and Scotland. It is argued here that these have had a clear ideological root, and are part of a broader criminal justice agenda, imported from the US. But this is a UK of devolved powers and there have been differences in elements of policy. In the field of vetting and barring, the ability under devolution to amend policies to make them more locally relevant and acceptable is clear. Aspects of policy can be subject to divergence, convergence and difference. Broader forces behind policy dynamics can overwhelm the devolved powers’ ability to conceive an alternative policy agenda in this area. The international political economy of crime appears to limit the policy agenda operating at the state and sub-state levels and to constrain Scotland's incentive for pursuing alternative or innovative policy. Below this overarching policy framework, devolved powers and contexts have been catalysts and enablers of divergence in ‘degree and scope rather than radically different conceptions’ (Keating, Reference Keating2005b: 453). Scotland has used its powers to take policy on barring devised in London and to amend it where ‘experimentation and learning is possible in modes of delivery, detailed policies and combinations of instruments’ (Keating et al., Reference Keating, Cairney and Hepburn2012). Variation in policy and operations arose in part in response to local interests and make it more tailored to local circumstances. There has, across the UK, been criticism and resistance to aspects in vetting and barring policies, but devolution has not fired debate on an alternative to the dominant risk agenda.
