Agenda item

To note the outcome of an investigation into the feasibility of introducing DBS checks as mandatory for all elected Members (having had regard to the statutory criteria).

The Committee gave consideration to a detailed report of the Monitoring Officer (A.1) which reported the outcome of an investigation into the feasibility of introducing Disclosure and Barring Services (DBS) checks as mandatory for all elected Members (having had regard to the statutory criteria).

The Committee recalled that, at its meeting held on 2 October 2019, it had received a further report of the Monitoring Officer concerning the recommendations within "the Local Government Ethical Standards Report dated January 2019 following a review by the Committee on Standards in Public Life".  The Report had set out those recommendations which required legislative changes and those which the Council could adopt through best practice.  Following consideration of the report the Committee had resolved that the Monitoring Officer investigate the feasibility of introducing DBS checks as mandatory for all elected Members (having had regard to the statutory criteria) and to report the outcome of such investigation to a future meeting of the Committee.

Members were made aware that, at its meeting held on 23 October 2019, the Human Resources and Council Tax Committee had also requested that the Council gives due consideration as to whether it should conduct DBS Checks on Elected Members.

The Human Resources and Council Tax Committee had determined that it was appropriate for them to consider this matter in the light of its legal duties in respect of safeguarding children and adults with needs for ‘care and support’, as defined in legislation including the Children Act 2004 and the Care Act 2014. The Human Resources and Council Tax Committee had resolved the following:

“That the Deputy Chief Executive be requested to investigate the appropriateness and practicalities of introducing DBS checks for all Elected Members of Tendring District Council (such as the budgetary and legal ramifications) and that the outcome of such investigations be reported to a future meeting of the Council (having first been submitted to the Standards Committee for its recommendations) for its consideration and determination.”

That investigation process had involved:

• a review of the approach taken by other local authorities regarding the introduction of DBS check’s for Elected Members;
• engagement with Legal, Financial and Democratic Services regarding the practical implications of introducing such a policy.

It was reported that, prior to 2012, Local Authorities had routinely carried out Criminal Record Bureau (CRB) checks on Elected Members. However, the Protection of Freedoms Act 2012 had created the Disclosure and Barring Service and a new system of checks. This had included a more restrictive set of criteria to determine when checks could be carried out and on whom. Since 2012, the issue of DBS checking for Councillors had become a policy matter for individual Councils.

The Committee was advised that Standard and Enhanced DBS checks could only be undertaken if the specific role, or the specific activities carried out within the role, were included in the Rehabilitation of Offenders Act (ROA) 1974 (Exceptions) Order 1975 (access to standard DBS certificates), and were also covered by the Police Act 1997 or Police Act 1997 (Criminal Records) Regulations (access to enhanced DBS certificates). Those laws only provided eligibility for DBS checks, they did not make them a requirement.

Members were informed that decisions on when and whether to undertake a DBS check were for the relevant employer or regulator to make. If the Council were to consider asking a person to apply for either a standard or enhanced DBS check, as the employer, the Council would be legally responsible for making sure the job role was eligible. There was currently no legal basis on which the Council could currently require or seek either Enhanced or Standard DBS Checks for Elected Members as the role did not constitute a ‘named position’ eligible for checks, and Ward Councillors did not carry out ‘regulated activity’ as defined by the Freedom of Information Act 2012.

The Committee was of course aware that some Elected Members may have had DBS checks, albeit in another capacity, for example if they were a School Governor.

It was reported that Elected Members who did not carry out any of the specific educational and/or social service functions but who did attend community events, take surgeries or visit local residents in their own home where they had access to the general public, including children, did not meet the legislative criteria, as outlined above. However, a Basic Check could be requested.

It was further reported that, although the legislative framework allowed discretion on the issue of Basic checks those Basic checks would only show “Unspent Convictions & Cautions” from the Police National Computer (PNC), (i.e. those that were considered to be unspent under the terms of the Rehabilitation of Offenders Act (ROA) 1974). Those checks would not show spent convictions, cautions, warnings, reprimands, other relevant police information, or the children or adults barred list and were therefore often considered to be of limited value. In addition, those Basic DBS checks would also need to be applied for by the individual themselves via the Government Website.

The Committee was aware that its Terms of Reference were to promote and maintain high standards of conduct by Members and Co-opted Members of the authority and to inform Council and the Chief Executive of relevant issues arising from the determination of Code of Conduct complaints.  No concerns had been raised through the determination of Code of Conduct complaints which would give justification to requiring a mandatory scheme of basic DBS checks for elected Members.

Members were informed that, in September 2017, the Department for Communities and Local Government had consulted on proposals to update the disqualification criteria for councillors and Mayors in order to bring it into line with both modern sentencing practice and the values and high standards of behaviours the electorate had a right to expect of the elected Members that represented them.    

The Government had considered that there should be consequences when councillors, mayors and London Assembly members fell short of the behaviour expected in an inclusive and tolerant society and where that behaviour had led to a conviction or enforcement action resulting in an individual being subject to one or more of the following:

·         the notification requirements set out in the Sexual Offences Act 2003;

·         a civil injunction granted under Section 1 of the Anti-social Behaviour, Crime and Policing Act 2014; or

·         a Criminal Behaviour Order made under section 22 of the Anti-social Behaviour, Crime and Policing Act 2014.

The Committee was reminded that this Council had responded to the consultation supporting those proposals.  Any changes to the disqualification criteria would require changes to primary legislation.  In October 2018, the Government had published its response to the outcome of the consultation stating that they would seek to legislate in order to ensure that councils across England would have the power to prevent individuals from standing for election or holding office as local authority members or Mayors. 

It was reported that Colchester Borough Council, at the request of its Governance and Audit Committee, had considered whether it should implement Disclosure and Barring Service checks for Elected Members. Their investigation into the matter had included obtaining information on the approach of neighbouring, second tier local authorities, towards DBS checks (both in October 2017 and February 2018), to which they had reported, all eight responses had confirmed that no checks (including Basic Level checks) were carried out by neighbouring authorities.

Members were advised that a similar exercise had been undertaken by Harlow Council in 2019, they had reported that the following Councils: Dacorum, Maldon, Castle Point, East Herts, Colchester, Brentwood, Basildon, Welling & Hatfield, Chelmsford, Braintree, Stevenage, Uttlesford and Epping Forest, had each responded to confirm that they did not carry out DBS checks on Councillors. Following their research, Harlow Council was not proposing to start carrying out DBS checks on its Elected Members.

It was the conclusion of the Monitoring Officer there was no legal basis on which the Council could currently require or seek either Enhanced or Standard DBS Checks on Elected Members. Although the legislative framework allowed discretion on the issue of Basic Checks, there was no clear case for the introduction of such a measure: Basic checks revealed “Unspent Convictions” only, and were therefore of limited value, and there was no clear framework for the enforcement of such a policy as it was not required in law.

Having considered and discussed the information provided in the Monitoring Officer’s report and whether the Council had a Safeguarding Policy, which gave advice and guidance to elected Members in fulfilling their functions and the legal advice provided by the Monitoring Officer:-

It was moved by Councillor Alexander, seconded by Councillor Harris and:-

RESOLVED that the Committee –

(a)    notes the outcome of the investigation into introducing DBS checks as mandatory for all elected Members (having had regard to the statutory criteria);

(b)    endorses that the Council continues with its current approach of not requiring or seeking DBS checks for Elected Members;

(c)    recommends that should a Tendring District Councillor wish to pursue their own Basic DBS Check, then the cost should be reimbursed to that individual councillor; and

(d)    requires that a review of the Council’s Safeguarding Policy be carried out and reported back to the next meeting of the Committee and that such a review focus on the role and activities of Members in their Ward work and:-

(1)    whether examples of best practice and guidance can be issued to Members to assist them in handling or avoiding problematical situations; and to

(2)    investigate what reasonable and practical steps can be taken to ensure that Members have considered and taken on board the contents of the Safeguarding Policy.