The Oldham Liberal Democrats have appealed to the Home Secretary to change the law to make it lawful and easier for local authorities to conduct enhanced criminal records checks (now called DBS checks) on local councillors.
The Leader of the Opposition and Liberal Democrat Group on Oldham Council, Councillor Howard Sykes MBE, has recently corresponded with the Disclosure and Barring Service, which is responsible for carrying out DBS checks. They informed him that under the law as it currently stands local authorities are unable to carry out such checks on elected members.
Dismayed at the response, Councillor Sykes yesterday wrote to the Home Secretary, Priti Patel MP, asking her to ‘make Councillors a specifically listed role in the Exceptions Order to the Rehabilitation of Offenders Act 1974 (so) local authorities would then be able to conduct regular DBS checks on elected members’.
In his letter, Councillor Sykes also writes: “Councillors not only serve their constituents, but they also routinely serve as corporate parents, school governors or in other capacities which may bring them into contact with children and vulnerable residents. I feel sure that you will agree, Home Secretary, that in these circumstances there is an absolute imperative, as there is with staff, to ensure that safeguarding issues are considered paramount.”
‘It is my view that one measure local authorities could adopt to improve public confidence in the propriety of their councillors is to require them to undertake a ‘rolling DBS’ check so any convictions would come to light and be open to public scrutiny as soon as is practically possible rather than years later. Or in some occasions never come to light at all!”
Commenting Councillor Sykes said: “I now hope that common-sense will prevail and that the Home Secretary will write back to me with a promise to change the current legislation to make such checks lawful for local authorities and so help maintain the public’s trust in their elected representatives.”
The letter sent to the Home Secretary, the Rt Hon Priti Patel MP, on 11 February 2021:
The Rt Hon Priti Patel MP
Home Secretary
Home Office
2 Marsham Street
London
SW1P 4DF
C/o Public.enquiries@homeoffice.gov.uk
Dear Home Secretary,
I am writing to you about the current restrictions that prevent local authorities from commissioning regular criminal records checks with the Disclosure and Barring Service, which would detect any offending behaviour amongst elected members.
As with Members of Parliament, local authority elected members are rightly expected by their electorates to be law-abiding, upright citizens who are sincere in their commitment to serve their community. Gratifyingly, most councillors of all parties (and none) fit this description, but regrettably there are rare occasions, when elected members do break the law whilst in office and are also sometimes convicted of offences that outrage both their peers and public decency. Sadly, this has been the case in Oldham, as in other authorities.
Councillors not only serve their constituents, but they also routinely serve as corporate parents, school governors or in other capacities they may bring them into contact with children, young people and vulnerable people. I feel sure that you will agree, Home Secretary, that in these circumstances there is an absolute imperative, as there is with staff, to ensure that safeguarding issues are considered paramount.
It is my view that one measure local authorities could adopt to improve public confidence in the propriety of their councillors is to require them to undertake a ‘rolling DBS’ check so any convictions would come to light and be open to public scrutiny as soon as is practically possible rather than years later. Or in some occasions never come to light at all!
I suggested we take this step to the senior management team at my authority, Oldham Council. I was informed that this action was not legally possible. I subsequently wrote to the Chair and Chief Executive of the Disclosure and Barring Service and received a similar response. For your information I have added both correspondence to the end of this letter (HS to DBS dated 20 January and DBS to HS dated 27 January).
Reading Mr Connelly’s response of 27 January, it appears that if the Government changed the legislation to make Councillors a specifically listed role in the Exceptions Order to the Rehabilitation of Offenders Act 1974 local authorities would then be able to conduct regular DBS checks on elected members.
I am therefore writing to you, Home Secretary, to ask you if this Government would be agreeable and willing to act to change the necessary legislation to permit local authorities to conduct regular DBS checks on local elected members, and if these measures could implemented to this effect as soon as Parliamentary time permits?
I thank you for your attention to this matter, and very much look forward to receiving your response.
Kind regards,
Howard Sykes
The letter sent to Dr Gillian Fairfield, Chair and Mr Eric Robinson, Chief Executive, Disclosure and Barring Service, 20 January 2021
Dear Dr Fairfield and Mr Robinson,
RE: DBS checks for councillors
I am writing to you with reservations about the current arrangements in place to conduct DBS checks on elected members in local authorities.
I made a request to the senior management team at my authority, Oldham Council, that we introduce ‘rolling’ DBS checks’ for all elected members. My proposal was to
introduce a requirement for all councillors to have such a rolling check – like teachers and others do – so information was as up to date as possible.
I have been informed that this is not possible, and I cannot understand why this is so?
Elected members are rightly expected by their electorates to be law-abiding, upright citizens who are sincere in their commitment to serve their community. Gratifyingly, the vast majority of councillors of all parties (and none) fit this description.
Regrettably there are rare occasions, when elected members do break the law whilst in office and are also sometimes convicted of offences that outrage both their peers and public decency. Sadly, this has been the case in Oldham, as in other authorities.
It is my view that one measure that local authorities could adopt to improve public confidence in the propriety of their councillors is to require them to undertake a ‘rolling DBS’ check so any such issues would come to light and be open to public scrutiny as soon as is practically possible rather than years later. Or in some occasions never come to light at all!
Please can I ask whether the advice I have been given is correct?
If it is correct, please could you explain why this is and could I ask for further consideration to be given by the Executive of the DBS Service to allow checks as I have outlined above.
If the advice I was given was incorrect, I would appreciate further clarification of the relevant regulations etc permitting ‘rolling’ DBS checks to be made in these circumstances so that I can refer this again to the Council’s senior management team.
I thank you in anticipation of your attention to this matter and look forward to your reply.
Best wishes and stay safe.
Howard Sykes
The response received from Mr Christopher Connelly of the Disclosure and Barring Service, 27 January 2021
Dear Howard Sykes.
Thank you for your most recent enquiry, this has been passed to me to reply.
I can advise that the relevant legislation relating to eligibility for Disclosure and Barring Service (DBS) checks and functions are:
- The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 – owned by the Ministry of Justice, defining the roles and types of work that allow access to Standard DBS checks
- Part V of the Police Act 1997 & Police Act 1997 (Criminal Records) Regulations – sets out what functions the DBS has and defines ‘prescribed positions’, which allow access to Enhanced DBS checks and checks against DBS Barred Lists
- Safeguarding Vulnerable Groups Act 2006 – defines ‘regulated activity’ (which is work that a barred person must not do)
- Protection of Freedoms Act 2012 – redefines the scope of ‘regulated activity’ and enables continuous monitoring via the Update Service
The DBS has a statutory duty to issue criminal record checks, when we receive a correctly completed application form and the correct fee is paid.
It is for employers to assess the specific roles that they provide against the legislation governing the eligibility to access DBS checks and any sector specific guidance and submit DBS applications accordingly.
Eligibility to apply for a DBS check depends on the specific role a person will perform whilst conducting their duties within an organisation, you may find the DBS eligibility guidance helpful to take you through this process – https://www.gov.uk/government/publications/dbs-check-eligible-positions-guidance
From the information provided in your email there does not appear to be any eligibility for DBS checks for local government elected members. The role is not specifically listed in the Exceptions Order to the Rehabilitation of Offenders Act 1974, therefore would not automatically be eligible for a DBS check.
For positions that are not eligible for Standard or Enhanced DBS checks, individuals can obtain a Basic check. A Basic check will contain details of convictions and conditional cautions considered to be ‘unspent’ under the terms of the Rehabilitation of Offenders Act 1974.
Please see our website guidance; https://www.gov.uk/guidance/basic-dbs-checks-guidance for further information about this service.
In closing, I trust this answers your query.
Yours sincerely
Christopher Connolly | Customer Services |
Disclosure and Barring Service
PO Box 165, Liverpool, L69 3JD
Call Centre: 03000 200 190 | Canolfan Alwadau: 03000 200 191
https://www.gov.uk/dbs | Follow us on Twitter: @dbsgovuk