HC Deb 30 April 1999 vol 330 cc630-53
Ms Shipley

I beg to move amendment No. 19, in page 1, line 16, leave out 'any of the following conditions is fulfilled' and insert 'there is fulfilled—

  1. (a) any of the conditions mentioned in subsection (2) below; or
  2. (b) the condition mentioned in subsection (2A) below'.

Mr. Deputy Speaker

With this, it will be convenient to discuss the following amendments: No. 20, in page 1, line 17, after 'conditions' insert 'referred to in subsection (1)(a) above'. No. 35, in page 2, line 9, at end insert— '(e) that information has come to light such that the organisation would have dismissed him had it been aware of the information at the time.'. No. 21, in page 2, line 9, at end insert— '(2A) The condition referred to in subsection (1)(b) above is that—

  1. (a) in circumstances not falling within subsection (2) above, the organisation has dismissed the individual, he has resigned or retired or the organisation has transferred him to a position within the organisation which is not a child care position;
  2. (b) information not available to the organisation at the time of the dismissal, resignation, retirement or transfer has since become available; and
  3. (c) the organisation has formed the opinion that, if that information had been available at that time and if (where applicable) the individual had not resigned or retired, the organisation would have dismissed him, or would have considered dismissing him, on such grounds as are mentioned in subsection (2)(a) above.'
No. 37, in page 2, line 19, leave out ', if he thinks fit,'. No. 22, in page 3, line 9, after '(2),' insert '(2A),'.

No. 24, in clause 3, page 3, line 16, after 'above' insert ', or the condition mentioned in section 2(2A) above,'. No. 34, in page 3, line 22, leave out ', if he thinks fit,'. No. 27, in clause 13, page 9, line 43, after '(2)' insert ', or the condition mentioned in subsection (2A),'.

Ms Shipley

The amendments deal with a point that came up in Committee, with which it was not possible to deal then. It related to the need to ensure that the ability to refer names to the Secretary of State for inclusion on the Department of Health list was not limited to more or less the immediate circumstances and timing of a person's dismissal, resignation, retirement or transfer, when there was no information available to the employer to suggest that there were grounds that would justify reference. Accordingly, the amendments will permit reference where such further information subsequently becomes available, but without requiring child care organisations automatically to review all past cases.

That effect is achieved as follows: amendments No. 19 and 20 are paving amendments for amendment No. 21, and amendments Nos. 22, 24 and 27 are consequential to amendment No. 21. The latter provides that the capacity to refer names to the Secretary of State extends to circumstances where, after the dismissal, resignation, retirement or transfer of an individual, it becomes apparent to a child care or other organisation that, had the relevant information been available at the time, it would have dismissed that person, or considered dismissing him or her, on the grounds of misconduct that harmed a child or put a child at risk of harm. Referrals made on that basis will be dealt with on exactly the same basis as other referrals made under clause 2.

The amendments lay down no time limits because, as experience has sadly demonstrated, in some cases it could be many years before evidence of misconduct became available. Such delay does not make such cases any less serious, and there seems no reason why they should not be acted on if there are sufficient grounds.

In the older cases, the Secretary of State must, under the duty imposed on him by clause 2(3), have particularly careful regard to the quality of the relevant evidence before deciding whether it may be appropriate to include the individual in the departmental list. Thereafter, under clause 2(6), he will need to be satisfied that the organisation has reasonably concluded that the individual is guilty of the alleged misconduct and unsuitable to work with children. If such cases came before the tribunal, no doubt it would also consider them carefully in the same way.

If the Secretary of State is satisfied under clause 2(3) that the reference should be accepted for consideration, there seems no reason why the ordinary clause 2 procedure for provisional listing should not apply to those cases, as to others.

I commend the amendments to the House.

Mr. Hammond

Amendment No. 19 is indeed important. It addresses an aspect that aroused considerable concern in Committee—an aspect which, I think that it is fair to say, members of the Committee were not aware of as a problem until part of the way through their deliberations. Essentially, it deals with the situation where new information becomes available after the event—the situation where an employee is dismissed by, or resigns from, an organisation or is moved on into a position that is not, in the Bill's definition, a child care position, without there being any suggestion or any knowledge at the time that that dismissal, resignation or promotion was within the scope of the referral requirements in the Bill. Then—perhaps, as the hon. Member for Stourbridge (Ms Shipley) said, very many years later—information emerges that shows matters in a different light.

Sadly, that is frequently the way in which such cases develop. In the past few years, in the London borough of Lambeth, information has gradually come to light to suggest that, over a period of very many years—perhaps decades—systematic abuse has been carried on by employees of that borough. It is only now, perhaps, that the people responsible are being traced and identified.

The cases in north Wales, which I believe shocked everyone in the country when they came to light a few years ago, and in relation to which police investigations are on-going, also show that it can take many years—perhaps decades—to unravel the full truth of what has happened. It is likely that such referrals will not be a rare and unusual occurrence; indeed, they could make up a very significant percentage of total referrals.

Amendment No. 21, the key amendment in the group, goes a long way towards addressing that issue, but some questions arise. The hon. Member for Stourbridge did not deal with the issues that have been playing on my mind. Perhaps, when I have explained what they are, she or the Minister will offer some thoughts to the House on those issues.

I confess that I am not a lawyer. Perhaps "confess" is not the word; maybe, given the current mood, I should proclaim from the rooftops that I am not a lawyer. Nevertheless, I am concerned about the proposals. The first question in my mind is whether the provision of a totally open-ended arrangement, which would allow a person effectively to remain in jeopardy of a referral for ever, falls within the concept of some kind of limitation on jeopardy which, as I understand it, as a layman, is one of the principles of our legal system. I shall leave it to others who are more knowledgeable in such areas to address that issue.

The issues that bother me relate to the effectiveness of a referral under the amendment. Is it intended—as I took it to be when I first read the amendment—that a person placed on the list as a result of a retrospective referral would suffer the same disabilities and be dealt with in the same way as any other person placed on the list?

Clause 7 addresses itself to an organisation that is proposing to offer child care employment to an individual; and it requires that organisation, at the point in time when it is considering offering such employment to an individual, to check that that individual is not on the list. If the individual is on the list, it requires that organisation not to offer that individual employment.

The situation will be different in the case of retrospective referrals, where the individual in question may have—in most cases, probably will have—moved on to other employment, perhaps in a child care position. By the time that such information comes to light, that individual may be working in a position of trust—a child care position—giving him or her access to vulnerable children. He or she may have been employed in that position for 10 to 15 years, apparently without incident, and then, as a result of the coming to light of information relating to a former employment, that person might be referred to the Secretary of State and their name included in the list.

What would happen next? Must the Secretary of State inform the current employer of the person in question? Must the person in question inform his current employer? What is the status of his employment? Will he be allowed to continue in that current position, as though his name had not been included in the list? On the face of it, that must be the case; there is no mechanism in the Bill to require a person, on being included in the list retrospectively, to be dismissed from a position of responsibility in relation to children.

There is nothing that I can see that would make it an offence to continue employing a person in such a position. Even if an employer became aware that that person had been entered on the list and decided of his own volition, regardless of any requirement on him in the Bill, to dismiss that person, it is not clear to me—of course, I am not an expert on employment law—whether the employer would be within his legal rights to dismiss a person who had worked for 10 or 15 years without incident, merely as a result of information coming to light about something that had happened much earlier in that person's life.

We need to understand the effect of a person's retrospective inclusion on the list. If, as I suspect, the Bill as drafted would not provide that such a person had to be dismissed, we would end up with an anomalous and potentially unsatisfactory situation. A known paedophile could be allowed to continue in child care employment because the information took some years to come to light. It seems that there is a problem there. It would be widely perceived as unacceptable that, once a person had been deemed suitably offensive to be included on the list, there was a possibility of him or her continuing in employment that gave access to vulnerable children. In my view, it would not be acceptable if such a retrospective inclusion had force to it only when that person sought to move on to seek new employment.

I raise these questions in pursuit of information. I do not quite understand how the amendment is intended to address the issues that I have raised within the structure of the Bill. I look forward to some answers to my questions. That is not to say that I do not welcome the measures that have been put forward by the hon. Member for Stourbridge; it is important that there should be the provision that she seeks to put into the Bill. I am merely anxious that it should have some teeth. I want it to be effective in ensuring that, where someone's misdeeds come to light retrospectively, they are dealt with. I want that person to labour under the same effective disabilities as people who are dismissed in circumstances where their unsuitability for child care employment is known at the time of dismissal.

12 noon

Ms Margaret Moran (Luton, South)

I support the amendments tabled by my hon. Friend the Member for Stourbridge (Ms Shipley), and especially No. 21. In a sense, it epitomises all that was best about the way we worked when considering the Bill in Committee. Constructive criticism of parts of the Bill and cross-party co-operation were evident throughout our discussions. The amendment arises because of intensive discussion of various clauses, which revealed that there was a potential loophole that we had not foreseen and we needed to close. All members of the Committee are to be congratulated on the way in which they identified potential difficulties and potential risks to children. My hon. Friend is to be congratulated especially on the constructive way in which she introduced the amendment, which was revealed to be necessary at quite a late stage in Committee.

I beg your indulgence, Mr. Deputy Speaker, to be allowed to take this opportunity to thank a number of people who were extremely helpful when we were examining the Bill in Committee and thereafter. Many wiser, if not older, Members and Officers of the House have been extremely helpful in advising many of us who are novices when it comes to private Members' Bills. I hope that they feel that their reward is a much better Bill.

The Bill is very much a balance between civil liberties and the rights of children. If it is perceived sometimes to be on the side of the rights of children, we make no apologies for that. It is a difficult and delicate balance to strike. If we are in this place for anything as parliamentarians, it is to protect the most vulnerable. That is the balance that we must always strike.

The clause is crucial in ensuring that we block a loophole that could enable those seeking to abuse their position of power in respect of children to gain employment at a much later stage once further information has become available. The Bill is very much a building block. It will not provide the comprehensive protection for children that we all seek, but it will be one of a series of measures that I know will be introduced by the Government to try to ensure that there is the most comprehensive protection for children that we can provide.

I take this opportunity to congratulate the Luton Herald and Post, which is campaigning in my constituency for the rights of children who have been abused. The newspaper has brought to me many examples that have been helpful in identifying possible loopholes in the Bill which need to be identified. I think that it deserves our congratulations. It has provided a fine example of sensitive and responsible journalism.

The amendment is the result of the serious work that was done in Committee. It was said in Committee that concern remained that there were instances where information could come to light at a much later stage when the person concerned might have ceased to be employed in a child care role. The spirit of the Bill is that such cases should be within its ambit, but its drafting meant that that issue could not be addressed at that stage. My hon. Friend the Member for Stourbridge has consulted widely on closing that loophole. and the amendment is the result.

We must ensure that the ability to refer names is not limited to the immediate time and circumstances of dismissal or resignation, when no information suggesting grounds to justify a referral would be available to the employer. Accordingly, the amendment permits a referral to be made when such information becomes available subsequently.

The amendment does not provide for a time limit. Some hon. Members may be concerned about that, but it is difficult to specify a time limit because information can come to light after many years, as the cases in north Wales, for example, have shown. There may be many years of investigation before the truth of the circumstances of child abuse comes into the public domain. It would therefore be unjust to specify an arbitrary time limit, which could allow those who had previously been involved in child abuse to slip through the net. None of us, in retrospect, could justify that happening.

As no time limit is provided for, the Secretary of State would have to deal with such cases with great sensitivity—the abuse may have taken place some time ago, there may be complications and the investigations may be lengthy. The Secretary of State would have to ensure that there was justice for the person who had been accused, but also, and more importantly, for the children, who may have grown up by the time a case is brought.

The terms under which the Secretary of State would be required to investigate such matters are very important, and we will expect particular care to be taken with the quality of the evidence, which may be quite old. However, the fact that abuse took place a considerable time ago does not lessen its seriousness. Indeed, in many cases it gives it greater import—if there is a chain of incidents that has been recognised only latterly, the passage of time does not lessen the impact of abuse on the children concerned.

As a former council leader, I am all too painfully aware that child abuse can be discovered long after it has occurred, perhaps after rafts of personnel changes in a children's home or because political leadership has changed. Matters that were not brought to light before either professional or—dare I say—political protection was put in place are sometimes revealed only after a long period, when there is a change of staff or of political personnel. It is sometimes hard for people to admit that, but, once such matters have been identified, it is incumbent on all those in positions of authority to ensure that further abuse is prevented and that a referral is made as swiftly as proper investigation allows. That is the essence of the amendment.

I asked the social services department of my local authority whether it had had similar experiences or had similar concerns. It drew to my attention an example from about three years ago. A man had gained employment with the former county council education department as a peripatetic teacher, which gave him access to children's homes. By chance, the man was spotted outside a school by a former teacher, who remembered that, many years earlier, he had left a teaching post in the county, having been confronted with very serious concerns about his behaviour around young male pupils. That behaviour included hanging around showers, taking the children camping and making special friends with certain children.

When staff in the education department made inquiries outside the county, they found that the man had left his previous employment in similar circumstances and that there had been a repeat pattern. They had been tipped off that he might have held several jobs in schools outside the county and left them in similar circumstances, and their investigations proved that suspicion to be correct. Thus, many years after the original occurrences, it came to light that the man had a history of behaviour that would have made him subject to disciplinary proceedings had he remained in his job. However, he had left those jobs to avoid disciplinary action.

Such a pattern of behaviour is not unusual. It is what Luton's assistant director of social services referred to as a good example of the operation of a "smart" paedophile. That is what the Bill seeks to prevent. In this instance, Luton social services had the opportunity to take action and investigate the man's previous behaviour because he was still employed with them. However, what would have happened if that information had come to light only once the man had resigned from his post and moved elsewhere? That is precisely the problem that the amendment seeks to address.

Mr. Hammond

The hon. Lady says that that is precisely the problem that the amendment seeks to address. What is her understanding of what happens to a person in that position once he is uncovered in his new post?

Ms Moran

One would certainly expect that an employer who had taken on someone in good faith, believing him capable and entitled to work with children, but who subsequently discovered that he was not reliable would take disciplinary action under employment law. To do anything else would be deemed negligent. Like the hon. Gentleman, I take pride in the fact that I am not a lawyer, so I cannot give him a definitive answer. Having been an employer responsible for a large number of employees, I expect that serious questions would be asked of the employer who had that information to hand but who continued to allow such a person to work with children. Many such cases would be tested in court, but it would be unusual for an employer to be challenged for taking disciplinary and other action if previous evidence was substantial enough to justify the accusation that the person was not fit to work with children.

This important amendment embodies the hard work done in Committee to identify as many loopholes as possible in order to protect children. I congratulate my hon. Friend the Member for Stourbridge on tabling it, and I commend it to the House.

12.15 pm
Mr. Maclean

This is an important group of amendments. I want to speak briefly in support of the amendments of the hon. Member for Stourbridge (Ms Shipley). As I was putting together my notes before the debate, I realised that the amendments that I have tabled, perhaps in a less professional capacity, mirror those of the hon. Lady. I hope that my hon. Friends are not appalled that I have tabled amendments that drastically infringe on civil liberties, but I want some limitations on the extent to which we can go back in time to deal, quite rightly, with those who have probably or possibly been abusing children and have moved on to other employment. If is perfectly right that they should be caught within the scope of the Bill, but I have a few questions about the time limit and about how far one can go back.

Amendment No. 35 is in this group, but I want to say a few words about my other amendment, which is slightly different from the general thrust of the amendments that we have discussed so far. Amendment No. 37 would require the Secretary of State to allow an individual who has been referred to him to comment on the observations of the organisation that so referred him. The justification of the amendment is that an individual should have an automatic right to know what comments his organisation has made about him, given the seriousness of a referral to the Secretary of State for inclusion in the list.

The Bill requires the Secretary of State to invite observations from the employee on the information submitted by the organisation when it makes the reference, but not on any subsequent observations that it makes, in particular on the employee's comments. The amendment is intended to help to reduce the likelihood of malicious referrals by employers against which the employee has little redress.

Given the seriousness of a referral to the Secretary of State—and rightly so—should an employee not be able to respond to all the criticisms or allegations made by an employer? We must avoid the situation in which accusations and counter-accusations are made which go back again for a response. We must not spend weeks and weeks on pleas and counter-pleas from the lawyers.

Mr. Hammond

I seem to remember that we discussed this matter in Standing Committee. If my right hon. Friend's amendment were carried, would there not be a danger of a perpetual ping-pong? The Secretary of State is required to invite observations from the individual on information submitted with the reference, but, if he has to submit observations from the individual back to the organisation, and the organisation's observations back to the individual, the process could potentially become a method by which the individual could delay progress in determining the outcome.

Mr. Maclean

As my hon. Friend describes it, that would be the case, but I want to avoid it. I am happy to say that my amendment is a probing one, and is trying to deal with a point in principle. If, as drafted, it would result in a never-ending ping-pong, that is unacceptable and I do not want that. I do not want a ping-pong over five or six months. Perhaps we should impose time limits or require that there should be only two referrals or one claim and counter-claim. I am not sure about that, but I am fairly certain that the present situation may not be entirely fair.

This is a drastic step. If an individual is referred and it sticks, he will be on a nasty blacklist, and rightly so. We may refer to it as the Department of Health list, but we know what the press and the media will call it: it will be called the perverts list of total unemployables, who will be regarded as the vilest people on this earth. Some of them are the vilest people on this earth, but it is important that people referred for inclusion on the list are allowed to offer some defences. I think that the individual should have a chance to say, "I am sorry; the allegation is not justified. These are the facts." Perhaps it should stop there, rather than bouncing back two or three times.

The only other comments that I wish to make relate to other amendments that I have tabled, but, in a different form, were drafted more ably by the hon. Member for Stourbridge. We have made excellent progress today, and much of what we will discuss before Third Reading—now that we have dealt with new clause 1 and this group of amendments—is technical; but there is an important point of principle. Is there a case for limiting the period for which the clause should apply?

Having read the report of the Committee stage, I concluded that the Government, and the hon. Lady, felt that, although it often takes years for information about misconduct to become available, there was no reason why such information should not be acted on if there were sufficient grounds for action, and if special care was taken in regard to the quality of the evidence in particularly old cases. That is all right as it stands, but I need to know from the Minister what constitutes a particularly old case. Is it five years—a period that was mentioned in Committee—10 years or 15 years?

I also want to know what constitutes special care. The Government say that they wish to act—or the Minister may wish to make his decision—provided that, in a particularly old case, special care is taken to ensure that they get it right. Perhaps this is just a case of loose terminology. We think that we all know what "special care" means, but do the Government intend to provide internal guidelines to deal with particularly old cases, and to ensure that "special care" means exactly that? I should also like to know whether they have made any assessment of the implications for compliance with the European convention on human rights.

Like clause 2, the amendment includes a requirement to refer an individual to the Secretary of State when the organisation concerned would have considered dismissing him", as opposed to "would certainly have dismissed him". In England and Wales, before someone is charged with an offence the case is referred to the Crown Prosecution Service, which has its own yardsticks. Those yardsticks may be subjective in some respects, but generally they are fairly objective. Throughout England and Wales, the CPS should operate according to the same yardstick: is there sufficient evidence to justify the bringing of criminal charges? The Bill proposes a different yardstick. Hundreds of organisations—multifarious organisations—must ask themselves, "Would we have considered dismissing this person?"

I see from the Order Paper that an early-day motion has been tabled by hon. Members who are critical of an organisation—it is not involved in child care—that has, in their view, ruthlessly sacked 300 employees at Heathrow for no good reason. Some organisations decide to dismiss staff quickly and ruthlessly, on the basis of slimmer evidence than that used by other organisations. Admittedly, child care organisations operate under fairly tight criteria, or at least we hope that they do, but some big professional child care organisations may be told by personnel officers or legal advisers that, to satisfy existing regulations relating to the dismissal of staff, if they are considering dismissing staff they must ensure that certain important factors are present—that there are more objective criteria for the consideration of whether dismissal is appropriate.

No doubt, when the Bill is implemented, some of those big organisations with access to information from personnel officers or legal advisers will tell bosses, employees and, indeed, their own personnel officers what should be in their minds. No doubt they will specify the extent of the criminality, or wrongdoing, that would have to be involved before dismissal was a legitimate consideration. That is what I want, and doubtless it is what the Government want. Hundreds of other organisations, however—small organisations, perhaps—will not have access to the same personnel procedures, and will consider dismissal if there is the slightest whiff of a suggestion that an employee has been behaving improperly. It is possible that quite junior staff will say, "You have been up to bad things. We will consider dismissing you." Conversely, the matter may be referred to those higher up in the organisation, and a decision may be taken not to consider dismissal.

I hope that the Minister understands the point that I am trying to make. Whereas the Crown Prosecution Service uses the more objective yardstick of whether there is sufficient evidence to justify a decision to prosecute, the provisions would be applied by hundreds—or thousands—of child care organisations, and they might not all apply the same objective yardstick in determining what behaviour merited consideration of dismissal.

As there is no definition of "consideration", various retrospective cases could be referred. In some of them, consideration might have been at board level, where half a dozen people were involved and took a serious decision. However, other cases might have been decided somewhere else, where, after a fleeting few seconds of consideration, those making the decision said, "We'll sack that bloke, because he must be a pervert." Although that would also be consideration, it would be very flimsy consideration, and it might be completely unfair and unjust.

I shall not labour the point, as my hon. Friend the Member for Gainsborough (Mr. Leigh) is more legally qualified and a lawyer whom I respect. I hope that he will catch your eye, Mr. Deputy Speaker, as he would be able to make the point better than I can. It is an important point.

Although I am happy that the amendments should deal with retrospectivity, I am concerned that there should be both a cut-off point and a quality yardstick in determining proper consideration of dismissal.

Mr. Leigh

This is a difficult group of amendments to speak to. No one takes a stronger view than I do of the iniquity of those who indulge in bad behaviour with children. They have to be rooted out, and action must be taken to ensure that they are not put in the proximity of children. I hold that view as strongly as any other hon. Member. However, I am somewhat concerned by the amendments—although I am probably not so concerned about them that I should like unduly to delay the House or to vote against them. Nevertheless, I feel that it is my duty to sound a warning.

Although we all appreciate that the hon. Member for Stourbridge (Ms Shipley) is extremely well-intentioned, and that she is trying to make her Bill as watertight as possible, some concerns about civil liberties should be expressed about this aspect of the Bill.

I should give a simple example. An individual works in child care for an organisation and does his job perfectly satisfactorily. There has been no complaint against him or, if there has been one, it has been dismissed as trivial. Subsequently, he is promoted to another part of the organisation; or, without being dismissed, he moves on to another organisation in another part of the country; or he retires.

Then—five, 10, or 20 years later—someone makes an allegation about him. The allegation does not relate to his current job, and cannot be attested to by available witnesses, but deals with something that happened in an organisation for which he worked previously, possibly many years before.

If I describe the matter in those terms, perhaps the House will begin to understand why some hon. Members have some concerns about the provision. Although people living in a free society quite rightly take a very serious view of that type of allegation and seek to protect children, we also believe that one of our duties is to protect innocent people.

Mr. Hammond

Does my hon. Friend agree that the circumstances in which information comes to light after many years are more than likely to be in the context of a police investigation? Certainly, the celebrated cases that were quoted in Committee all involved police investigations uncovering information about individuals.

12.30 pm
Mr. Leigh

Yes. That may indeed be true. That is why an amendment may be necessary. One can conceive of cases in which the circumstances are clear and the evidence is overwhelming. Equally, however, I have to follow the comments of my right hon. Friend the Member for Penrith and The Border (Mr. Maclean). Unfortunately, under the Bill as drafted, we may have to deal with allegations in a court of law. I may be wrong about that, and if so I shall be corrected, but somebody has to sound a note of warning.

As has already been said, there is no limit on the period involved. I understand that in respect of serious allegations that have been tried and tested, but perhaps the Minister should say something about the legal position in respect of the statute of limitations. We have a tried and tested procedure in our common law which has developed over many centuries—that, in dealing with civil matters, there has to be some time limit within which one has to take action. That stipulation, convention or rule has grown up not by chance, but for very good reasons.

Mr. Hutton

The hon. Gentleman is a lawyer—I respect his knowledge and expertise—so he will be aware that the statute of limitations relates to the bringing of a criminal or civil action. That is not what we are discussing here. We are talking about a previous employer referring someone's name to the Secretary of State for inclusion on the list; so the hon. Gentleman's concerns about the statute of limitations are not strictly applicable.

Mr. Leigh

Of course I am aware of that, but it is applicable. Although we are not talking about a criminal or civil case, the effect of the listing could be very serious for the individual concerned. It could affect his career, his capacity to earn and much else. I take the Minister's point, but I am sure that he agrees that we must be careful about that.

Mr. Hammond

Does my hon. Friend agree that one of the concerns that has been expressed about the Bill is that the process is administrative rather than judicial, and that it is hardly reassuring for the Minister to tell us that the safeguards that would apply if it were judicial do not therefore apply?

Mr. Leigh

My hon. Friend has put that point extremely well. We are dealing with the possibility of serious consequences for an individual under a procedure that is entirely administrative, whereas judicial proceedings in other cases—whether in criminal or in civil law—may result in far less serious consequences for the individual concerned.

I am sure that the Minister will argue that, although there is no time limit, special care will be taken over the quality of evidence, especially in respect of an old case. He has said that the quality of evidence will have to be very clear and that there will have to be sufficient grounds. If that is his case, he needs to tell the House what special care will be taken in respect of matters that are alleged to have taken place many years previously.

Far from the hon. Lady reassuring me, my concern started to grow, particularly when she referred to what may have gone on in scout camps. How can we test evidence that may be extremely old? We may be dealing with an incident that occurred in a scout camp 10 years previously. I may have got it entirely wrong, but I am sure that the hon. Lady will realise that there may be some cause for concern.

Ms Shipley

As the hon. Gentleman was not on the Standing Committee, may I take the opportunity to clarify the matter? Sadly, in my view, the Bill is limited to a prescribed definition of child care, so it does not include the scouts.

Mr. Leigh

I am sorry, but the example of the scouts had already been used. I accept that the definition is limited to child care organisations, but, even without using the example of the scout camp, one can consider situations which, although they may be related to a prescribed child care organisation, may have been ad hoc or taken place years before, and witnesses may have moved on. In such cases, it may be difficult to test the quality of the evidence.

It is so much easier to deal with a recent case. Everything is clearer in people's memories. That is why I am worried. The Minister must reassure the House that the requirement for what he describes as special care and quality of evidence will be rigorously applied.

Mr. Hammond

Does my hon. Friend agree that there is another possible problem? If a long time has elapsed, it is possible that the organisation that should make the referral under the amendment will have ceased to exist. It would be unfortunate if people could slip through the net for that reason. Perhaps, in future, we should insert a provision to ensure that, if that happened, there would be another mechanism for referring the person to the Secretary of State.

Mr. Leigh

My hon. Friend makes a fair point, approaching the amendment from a different angle. We are talking about old cases, and organisations that may have changed their nature, so there may indeed be practical difficulties that need to be faced. The more we think about very old cases, the more problems crop up. That is why we have the statute of limitations in the ordinary law, and the entire legal process, for good reasons, is very careful about how it deals with old cases.

As with clause 2, amendment No. 21 includes a requirement to refer an individual to the Secretary of State where an organisation "would have considered" dismissing him, rather than "would certainly" have dismissed him. The Government say that the words "would have considered" are a sufficiently serious test to merit an individual's inclusion on the list. When dealing with old cases, we should worry about the use of such phrases, so I hope that there will be further consideration of what that language means.

The Minister may correct me if I am wrong, but, as I understand it, the amendments apply the ordinary clause 2 procedures for provisional listing to delayed cases. The aim is to ensure that, even in such cases, the benefit of the doubt will continue to be given in the interests of children. I can understand that. Children will be protected until the reference is determined.

However, for the individual, the problem of provisional listing is that its consequences are no different from those of permanent inclusion. As a result, any certificate obtained in respect of an individual would disclose the inclusion in the list and no child care organisation would be able to employ him or her.

There is a double, or even a triple worry—not only about how long ago the behaviour took place and about the quality of the evidence, but about the fact that, although somebody is only provisionally listed, presumably because there is some doubt, the consequences are as great as if that person were permanently listed. Some people would argue—as I would, without being an international lawyer—that that aspect could be in contravention of article 6 of the European convention on human rights, which states that a person is innocent until proven guilty. I understand the need for provisional listing if a case is current, but some of the cases will be older. Why would provisional listing be needed for a case that was many years old? The Government's lawyers will have advised the Government on the consequences of the legislation in respect of the European Court of Human Rights, but I hope that the Minister will deal with that point.

If there is to be no time limit on an individual's placement on the provisional list, will guidelines be issued on what would constitute a reasonable length of time? Will compensation be available to people who are placed on the provisional list but whom it is not found necessary to place on the full list, especially if they have spent some time on the provisional list?

Mr. Forth

My hon. Friend's suggestion for guidelines is intended to be helpful, but will it be possible to formulate guidelines that will be meaningful, practical and applicable? It is easy to resort to the use of guidelines, but they might not take us any further forward.

Mr. Leigh

I accept my right hon. Friend's strictures. It is easy—especially when the House considers behaviour that it finds horrific—to decide to take action and, when someone expresses concerns about civil liberties, to reassure the House that appropriate guidelines will be issued. The House may then lose interest and pass on to other matters, and we may not be able to have confidence in the guidelines.

The Government have stated that, after Royal Assent to the Bill, they will issue guidance to employers. Assuming that the amendment is accepted, I presume that the Government will also issue guidance to employers on what to do when the behaviour in question took place many years before. It is easy to envisage the difficulties that the Government might have in framing such guidance; it might be a thick document indeed.

Mr. Hammond

My hon. Friend referred to the important role that the guidance will play. Does he agree that it would have been helpful if draft guidance had been available during consideration of the Bill? Even at this late stage, it might be helpful if the draft guidance could be made available before the Bill is considered in another place.

12.45 pm
Mr. Leigh

That is a good point, and I would be much reassured if we were given some idea of the content of the guidance before the Bill becomes law. We need to know whether the guidance will be adequate and will cover those points that I have mentioned.

I support the amendments tabled by my right hon. Friend the Member for Penrith and The Border, because we must ensure—especially when considering acts that took place many years ago—that individuals have a right of reply at all stages.

I take the point that matters cannot be delayed unduly, as my hon. Friend the Member for Runnymede and Weybridge (Mr. Hammond) said. There cannot be a sort of ping-pong game. However, there need be no undue delay, and I cannot understand why, if we are to recognise a fundamental right for which the House has fought for centuries, there should be no right to face an accuser. That right has been whittled away in many areas and people no longer have the right to cross-examine their accuser. However, there is a fundamental right to reply, even if in writing, against points made against anyone. I cannot see how we can both preserve that fundamental right and achieve what the Bill seeks to do.

I hope that the Minister can reassure me on those points. Above all, will he reassure the House that extraordinary care will be taken to ensure that people are not put in undue jeopardy, and reassure us also on the quality of the evidence for cases brought under amendment No. 19?

Mr. Hutton

I welcome the amendments tabled by my hon. Friend the Member for Stourbridge (Ms Shipley). They are very much within the spirit of changes made in Standing Committee. My hon. Friend has listened intently to reservations expressed about the scope of the Bill, including the request of the hon. Member for Runnymede and Weybridge (Mr. Hammond) to consider whether there is a loophole in the Bill. The Government and my hon. Friend accepted that there was a need to tighten the Bill and the amendments respond fairly to the concerns expressed. I am encouraged by the broadly supportive response to them this morning by Opposition Members and my hon. Friend the Member for Luton, South (Ms Moran).

I shall try to deal with specific concerns raised this morning, and with the amendments tabled by the right hon. Member for Penrith and The Border (Mr. Maclean). The hon. Member for Runnymede and Weybridge addressed two issues. First, he asked about the implications for someone included on the list when already in employment, and he referred to the scope of clause 7. Secondly, he asked what a Secretary of State would do about notifying a current employer about someone's inclusion on the list under the terms of amendment No. 19.

The hon. Gentleman was right to say that clause 7 applies to the offering of employment. It does not make it mandatory—nor should it—for an employer to dismiss someone who is on the list. To require that would significantly change the character of the Bill. We never had it in mind that the Bill should encompass that kind of mandatory sanction on employment.

I hope to reassure the hon. Gentleman by saying, as my hon. Friend the Member for Luton, South did, that it is pretty well established that an employer is entitled to take into account evidence of misconduct by an employee when deciding whether it is appropriate to continue to employ that person. Any such decision must be taken fully in accordance with employment legislation. Employers should act fairly to give appropriate notice or do anything else required by the existing legislation and the common law relating to contract. There is plenty of evidence in case law to support the suggestion that an employer can act in response to evidence of previous misconduct that directly relates to a person's ability to perform his or her current employment.

I should draw the House's attention to the preliminary report that we published in January on the future work of the interdepartmental ministerial group on preventing unsuitable adults from working with children. We are considering a range of new criminal sanctions that would make it a criminal offence for someone to seek employment if he or she is included on the lists of the Department of Health or the Department for Education and Employment, or to continue or remain in employment once included on those lists.

The hon. Member for Runnymede and Weybridge was rightly concerned about the effect of including someone on the list if we could not directly affect his or her employment when we thought that there was a risk to children. Taken in conjunction with existing employment law and the range of new criminal offences that we envisage—and for which we are working up the detail—the overall provision will be comprehensive. There should not be any difficulty in dealing with people—I do not know how many there will be—who are included on the list for misconduct that took place a long time ago.

Mr. Hammond

I listened carefully to what the Minister said about employers' ability to take into account misconduct in a previous employment under existing employment law. As I have often said, I am not a lawyer, but I suspect that, once the employee has been in his new employment for a considerable number of years without incident, the ability to take into account previous misconduct must diminish—it is probably equitable that it should.

I am grateful to the Minister for explaining that measures that would make it a criminal offence for certain people to remain in employment are proposed. The amendment may thus have little bite at the moment, but it would become a paving measure which would have bite once the measures that the hon. Gentleman mentioned came into effect.

Mr. Hutton

I do not want the hon. Gentleman to assume that I am laying down some new principle of employment law; I am not. I am trying to summarise the situation as I understand it. Of course, he is right to say that every case must be decided on the facts. Employers' actions will be judged by the industrial or employment tribunal on the basis of whether they acted fairly in treating that misconduct as sufficient reason for dismissal. That is the existing corpus of employment law and I hope that I am not implying any substantial modification of it—I am not in a position unilaterally to do so. Each case must be decided on its merits. The hon. Gentleman made a fair point: the employer will have to judge the suitability of the employee and whether the evidence of which he has become aware is sufficient to justify dismissal.

We are working up the detail of those criminal proposals. I do not say that they are problem free, as there will be some problems. In particular, we shall have to take into account the fact that any criminal sanctions should apply only when a person is aware that he or she is included on the list.

That is a genuine problem and it is related to the second problem to which the hon. Gentleman referred. He asked what the Secretary of State would do about notifying the current employer that an employee had been included on the list under the terms of the amendment. There are some genuine practical difficulties. The question assumes that the Secretary of State knows where the person is employed, which may not always be the case. However, if we know the employer, the Secretary of State will notify him or her that a person has been included on the list. The Bill does not require us to do so, but, as a matter of good practice, we would always do that if the information came to our attention.

Mr. Hammond

For information, would the Secretary of State have access to the records of the Contributions Agency, which would be the best method of tracking an employee, who has a single national insurance number throughout his life?

Mr. Hutton

I am afraid that I cannot answer that question, but I will correspond with the hon. Gentleman about it. That might be an effective way to track an employee through the system. However, there are some genuine practical difficulties. I am not trying to pretend to the hon. Gentleman or to the House that the legislation is foolproof, and that we can simply press a button to ensure that child abusers are easily rooted out of the system. It will be difficult, as has been acknowledged.

The right hon. Member for Penrith and The Border raked over some concerns that were pretty fully aired in Committee, as did his hon. Friend the Member for Gainsborough (Mr. Leigh), although they were not the subject of his amendments. He mentioned the term, "would have considered dismissing". As I understand it, those words do not appear in his amendments and he is not attempting to amend the Bill in such a way now.

I shall try to deal with those issues briefly by repeating that we shall issue guidance to employers to explain how the legislation will work and to deal with the question of when a name should be referred to the Secretary of State. We can cover such concerns in the guidance.

The hon. Member for Gainsborough should not be so cynical about the ability of guidelines to be constructive and to help employers to pilot their way through the legislation. I accept that the scope of the Bill is considerable. That is why we accept the need to assist employers properly so that they can take the action that the legislation might require of them. I assure the House that the Secretary of State will discharge those responsibilities seriously.

On the rigour of decision making under clause 2, I refer hon. Members to clause 2(3), under which the Secretary of State has a specific function which he will have to exercise fully and carefully. We want to ensure, particularly given the general difficulty of such cases, that the decision-making process used by the Secretary of State is as rigorous, comprehensive and fair as possible to all concerned.

The right hon. Member for Penrith and The Border tabled several amendments, and I should briefly explain why the House should not accept them. I hope that he will understand. Amendment No. 35 duplicates, although not so well, the amendment tabled by my hon. Friend the Member for Stourbridge. The key amendment is No. 21. As she said, it provides scope to refer names to the Secretary of State in circumstances where it appears to a child care or other organisation that, after the dismissal, resignation, retirement or transfer of an individual, had the relevant information been available, it would have dismissed, or considered dismissing, that person on the grounds that the misconduct harmed a child or put one at risk of harm. As referrals made on that basis will be dealt with on the same basis as other referrals under clause 2, amendment No. 35 is unnecessary and has to some extent been overtaken by the amendment tabled by my hon. Friend.

The right hon. Member for Penrith and The Border also tabled amendments Nos. 37 and 34. They would be unhelpful because they would put a rigidity into the system that would not be conducive to good decision making. As drafted, the Bill allows the Secretary of State to exercise some discretion in considering whether to refer back to the parties for observations on the issue raised by a reference. Only when he is satisfied that he has all relevant information from the parties can he make a final decision on inclusion in the list.

The purpose of the words that the right hon. Gentleman wants to delete is to ensure that the Secretary of State does not get caught up an endless round of correspondence with the parties in which no new issues are raised and existing ones are simply regurgitated. Removal of the words would oblige the Secretary of State to refer all correspondence to the other party for further comment regardless of whether any new issues had been raised. There is a risk that we might go around in circles, being unable to come to a decision about inclusion on the list, when all hon. Members have pressed the need for rapid, early decisions. An intended consequence of the amendment would be to make it harder to come to early decisions. We cannot accept it.

The hon. Member for Gainsborough asked whether people caught by this amendment, which was moved so well by my hon. Friend the Member for Stourbridge, should be exempted from the provisional listing procedures in clause 2. He felt that there might not be an argument for provisional listing in such cases. That is a fundamental point which raises the whole purpose and rationale of the provisional listing procedure. Its purpose is to ensure that, when the information is available and when the Secretary of State considers provisional listing appropriate, we do it. That will prevent people from seeking alternative employment in a child care position. It is an essential piece of the elementary framework of protection that we think that the Bill will provide. If we make an exemption for these admittedly difficult cases, we open the possibility that such people could move around the system, and we would lose them. That would be fundamentally contradictory to the Bill's whole purpose and rationale.

If the hon. Gentleman needs further confirmation—I am sure that he is assiduous in reading about this subject—he need only read Sir William Utting's report on the child safeguards review to find out exactly why we have decided that the Bill needs to include a mechanism for provisional inclusion on the list. That is an essential part of the effective protection that we want to offer.

I cannot recommend to the House the amendments in the name of the right hon. Member for Penrith and The Border, and I am sure that he understands that, but I strongly support the amendments tabled by my hon. Friend the Member for Stourbridge.

1 pm

Mr. Forth

The best summation that I have come across of the kernel of the problem with which the House has been wrestling lies in the record of the Committee proceedings, and nobody will be surprised to hear that it was given by the hon. Member for Denton and Reddish (Mr. Bennett). I am sorry that he is not present because, as I am sure my hon. Friend the Member for Runnymede and Weybridge (Mr. Hammond) will agree, his contribution was most valuable to the Committee.

The hon. Member for Denton and Reddish said: We need to be certain that the Bill will catch someone who has been discovered committing wrongdoings long after he has left his job, but I am worried about how far back it is reasonable to go. I am also worried about false memory syndrome. On occasion, it may be difficult to go back very far. From my experience as a teacher, I know that it is relatively easy to mount a defence against the occasional false allegation that is made by a pupil if the events are fairly clear to oneself and one's colleagues. However, when one goes back further than five years, it is extremely difficult for justice to be done on either side."—[Official Report, Standing Committee C, 17 March 1999; c. 43.] That sums up succinctly and elegantly the nature of the problem that we face.

As hon. Members have said during this brief debate, problems and anomalies arise when one starts to go beyond what my hon. Friend the Member for Gainsborough (Mr. Leigh) rightly pointed out is the normal philosophy of the statute of limitations, which has served us well for many centuries. The Bill would move away from that and say that it is not only legitimate, but desirable and necessary, to be able to reach much further back into times past, identify misdemeanours from that time which one has reason to believe may be repeated or may, in this case, put children at harm now, and take the appropriate action. That, as my hon. Friend the Member for Runnymede and Weybridge said in his opening remarks, makes the jeopardy open-ended. We must now try to deal with that difficult problem, which was so well summed up by the hon. Member for Denton and Reddish.

We are saying that a ghastly event, a long time ago, may never have been repeated, and regardless of the time that has passed since that event, if it now comes to light, it may be desirable to ensure that the individual responsible is debarred from employment, if he or she can be found. That challenges several bases on which we have operated our law for a long time, which is why the matter must be treated with extreme caution.

If people commit one offence that comes to light many years later, the philosophy of the statute of limitations kicks in. In addition, there will be doubt about whether they are likely to repeat the offence. There is also a practical difficulty, which was alluded to a moment ago, about whether they could be found. People who committed such an offence might then be thoroughly ashamed of it, and therefore change their identity and move jobs or location, perhaps several times. Women who committed such an offence could legitimately change their name by getting married. It may then prove to be very difficult to track down those people.

When the Minister was asked whether the national insurance number would be a reliable source of information in this case, I detected from movements off—if I may put it that way—in the Chamber, which the Minister could not see but which were visible to me where I was sitting, that the answer to that question was probably no. The Minister may have already received a definitive answer, and perhaps he can help us before we complete the debate.

The matter is important, because whether the person can be traced is relevant to the practicability of the provision. As, in some cases, a long period will have passed, that is a very significant consideration. Therefore we have a difficult combination of, on one hand, a challenge to some very long-standing legal principles and, on the other, significant practical difficulties.

All that leads me to wonder what the value of the measure will be. Given the many questions that have been asked about the relationship between the current employer and the individual involved; given that, although the Minister has said that changes to the law are coming down the track, we cannot take those into account but must deal with current law; and given that the Secretary of State, in a sense, is put in the difficult and delicate position of having to judge that it is right, sensible or beneficial to pass on such information, the difficulties are very considerable indeed.

I am not saying that we should not admit the possibility of such a retrospective process taking place. I am simply left wondering whether we have taken sufficient account of the philosophy of the statute of limitations, or of the practical difficulties—to say nothing of the profound effect that such a process is likely to have not just on the individual, but on his or her family.

Mr. Hutton

The right hon. Gentleman again mentions the statute of limitations. I understand his concern, but he may want to be aware that for indictable criminal offences—the more serious sexual offences—there is no statutory time limit on prosecution.

Mr. Forth

I am very grateful for that helpful guidance.

I believe that I have said enough to show that I am uneasy about this approach, which should be monitored more carefully than many other provisions in the Bill that have caused concern. It is worth pondering whether such a matter would emerge as part of the reporting that we debated at length earlier. I hope that sufficient unease has been expressed to cause the promoter and the Minister to give the matter some thought.

The Bill will, of course, go to another place and there will be opportunities for it to be considered there, perhaps in light of some of these considerations. I believe that the difficulties are by no means an insurmountable obstacle, but every Conservative Member who has spoken has said that the matter should be looked at very carefully, and that, if possible, ways should be found to allay our fears, so that vulnerable individuals may be protected without our encroaching unacceptably on the long-standing liberties of individuals.

Amendment agreed to.

Amendments made: No. 20, in page 1, line 17, after 'conditions' insert 'referred to in subsection (1)(a) above'.

No. 21, in page 2, line 9, at end insert— '(2A) The condition referred to in subsection (1)(b) above is that—

  1. (a) in circumstances not falling within subsection (2) above, the organisation has dismissed the individual, he has resigned or retired or the organisation has transferred him to a position within the organisation which is not a child care position;
  2. (b) information not available to the organisation at the time of the dismissal, resignation, retirement or transfer has since become available; and
  3. (c) the organisation has formed the opinion that, if that information had been available at that time and if (where applicable) the individual had not resigned or retired, the organisation would have dismissed him, or would have considered dismissing him, on such grounds as are mentioned in subsection (2)(a) above.'

No. 22, in page 3, line 9, after '(2),' insert '(2A),'.— [Ms Shipley.]

Ms Shipley

I beg to move amendment No. 23, in page 3, line 9, at end insert— '(9) Nothing in this section shall require a child care organisation to refer an individual to the Secretary of State in any case where the dismissal, resignation, retirement, transfer or suspension took place or, as the case may be, the opinion was formed before the commencement of this section.' The amendment addresses and clarifies transitional issues that arise from moving from the old administrative system to the new statutory one. It provides that child care organisations will not be under a duty to refer cases where dismissal, resignation or retirement took place prior to the commencement of opinion in clause 2. It provides also that the obligation will not arise in relation to referrals made under subsection 2(2)(a) where the opinion that triggers a referral was formed before the commencement of the operation of clause 2.

The amendment also makes it clear that there will be no obligation on any organisation to trawl through its old cases relating to events that occurred before clause 2 was brought into effect. This will still enable an organisation to refer names where it thinks that there is a case for doing so. As I have explained, such cases will not be automatically entered into the procedure for considering listing by the Secretary of State unless and until he is satisfied that the person concerned is eligible under clause 2(3) criteria to have his name included in the list, particularly in the light of, for example, the age of the allegations, the distance of the alleged events, the reliability of the evidence and such other factors as are relevant in the circumstances of the particular case.

Mr. Maclean

This is an important little amendment, but I do not propose to delay the House for long. I shall ask a few probing questions. I listened carefully to the hon. Member for Stourbridge (Ms Shipley) and I admit that I do not fully understand the legal explanation that she gave. However, I think that I understand the effect of the amendment. It is that the Bill's provisions need not be applied retrospectively. It seems that the amendment provides that there is no obligation on child care organisations to refer cases where the dismissal, resignation, retirement, transfer, suspension or whatever took place, or the opinion on it took place, before the Act came into effect. Some of the other terminology that the hon. Lady used began to confuse me.

If the amendment does not require an organisation to refer to the list employees whose actions took place before the Act's commencement, it seems that it allows it to do so. It is permissive. There is nothing to stop the organisation making a referral. No doubt the Government are happy with the amendment. If they were not, we might not be at this stage. I ask the Minister whether there is an inconsistency. Is he worried that there might be one?

It seems to me that some employees who have been dismissed, possibly on quite serious grounds, will not be referred to the list because their employer is not required to implement the provisions of the Act retrospectively. There will be other employers, however, who will be more meticulous than others. However, they will not be required to trawl through and check their books for the past 20 years and come to an opinion on whether they had an abuser on their books. None the less, some organisations may wish to enter into a research project in looking back through their books on their former employees, or existing employees, to satisfy themselves that they have suitable procedures in place.

In undertaking that research, an organisation may discover that it has an individual or individuals who could be referred, and it would be permitted to do so. Other organisations may say, "We are permitted to refer, but we are not going to." Others may not bother to undertake the research. I know that we never pass any legislation that is tidy, clean and neat and packs and parcels everything up in one neat box, but in this instance there is a difficulty. It is not such a difficulty that I would be tempted to oppose the amendment or vote against it, but I ask the Minister whether it would lead to the possibility of a messy inconsistency. Could it lead to judicial review proceedings?

As I have said, some organisations are meticulous. They will be permitted to refer and they will do so. Other organisations may be sloppier or may not want to start looking backwards. They may not want to make inquiries because they are fearful of what they might discover. They may take the view that it is better to accept that there is no obligation to go back and look at what had happened before implementation of the Act. They may close the books on what had gone on before. That inconsistency worries me.

I have only one other point to make, and I shall not criticise the Minister if he does not have the information to hand; perhaps he will write to me in due course. What are the precedents for retrospective application? When I ask about the precedents for Government action, they may be able to dig out something that I did in the past few years.

Mr. Forth

Surely not.

1.15 pm
Mr. Maclean

It is appalling that the Government should even mention that I may have done similar things in my past life. I suspect that the Minister will not have the information to hand, but I should be grateful to be informed of any precedents for retrospective application.

Mr. Forth

The remarks made by my right hon. Friend the Member for Penrith and The Border (Mr. Maclean) raise an interesting question concerning how long previous ministerial misconduct can be taken into account in this place.

The Minister of State, Home Office (Mr. Paul Boateng)

In the right hon. Gentleman's case, for ever.

Mr. Forth

For quite a long time, but my right hon. Friend and I will have to learn to live with that. Following on from the thrust of what he said, I am worried about and intrigued by whether we are being consistent.

When we debated the previous amendment, which has been accepted, it was argued that we must be worried about what people have done in the past and must not put any obstruction in the way of the consideration of past misdemeanours and the application of the full force and benefit of the Bill. Having said that, we now seem to be saying that there is no obligation to consider what may have happened in the past. It may or may not be desirable, but, to use the intriguing word used by the hon. Member for Stourbridge (Ms Shipley), nothing provides that employers should "trawl" for previous offences or misdemeanours.

If we accept the thrust of what the hon. Lady argued only a few moments ago, however, I should have thought that obligatory trawling might be a good thing. I am anxious that we seem to be heading in two quite different directions. We have said that we must look back at past events and that they must all be taken into account, even if a long time has passed, but, if I understand correctly, we are now saying that there is no obligation to look back and that that may or may not happen, depending, presumably, on the employer's judgment or, more worryingly, on whether he is inclined, or can be bothered, to investigate.

If we have come down to that, a weakness may be beginning to emerge. An employer may not be inclined, or may not have the facility or the resources to trawl—to use the word used by the hon. Member for Stourbridge. Is there any danger that we are encouraging or creating a loophole?

We have almost reached the final stage in our deliberations on the Bill and we are getting it ready to be passed to the other place for further consideration. I have raised this question because I do not want such weaknesses to emerge at such a stage, although I am comforted because they could still be corrected finally by the revising Chamber, which, I am delighted to say, is still with us and is still doing such a wonderful job.

Mr. Hammond

I welcome the principle of the amendment, which closes what appears to be a gap in the wording of clause 2 and makes it absolutely clear that there is no requirement on employers to go back through their records and report what happened in the past. In the great generality of cases, that will be welcome clarification. Retrospective cases will be referred as a result of amendment No. 21 being agreed to, and this amendment will bring such cases into line with cases referred under the normal provisions of clause 2. It is equitable to do so.

Another problem occurred to me as the hon. Member for Stourbridge (Ms Shipley) was speaking. I may have misunderstood what she said, so I should like clarification. The hon. Lady noted, as did my right hon. Friends, that, although child care organisations will not be required to make a referral in relation to something that occurred before the coming into force of this measure, they will be permitted to do so. To a large extent, that simply reflects the current position, in which voluntary referrals can be made to the Secretary of State for inclusion in his non-statutory list. However, the hon. Lady said that voluntary referrals would not be included in the list until the Secretary of State was sure that they met the criteria set down in clause 2(3).

My understanding is that no one will be put on the list unless the Secretary of State is sure that he or she meets the criteria listed in clause 2(3), because it must appear to the Secretary of State, from the information submitted with the reference, that it may be appropriate for the individual to be included in the list before he or she is even provisionally included.

The implication behind the hon. Lady's remarks is that the way in which the Secretary of State will deal with voluntary references about events that occurred before the Act comes into force will somehow be different from the way in which he will deal with statutory referrals after the Act comes into force. I am not sure, from what she said, how that is the case. I wonder whether she intended to imply that those who were referred voluntarily in respect of events occurring before the statute came into operation would not be subject to the provisional inclusion regime, but would be left off the list altogether until the Secretary of State had completed the processes set out in subsection (3) and made a decision, as is required of him in subsection (5). It would be helpful if the hon. Lady would clarify that point.

Ms Shipley

It might be worth my reiterating—I may have stumbled over my words—the precise wording, because it is very important. As with all aspects of this technical Bill, the wording must be precise.

As I explained, such cases will not be automatically entered into the procedure for considering listing by the Secretary of State unless and until he is satisfied that they are eligible under clause 2(3) criteria.

Amendment agreed to.

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