§ Lord Laming
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Laming.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The CHAIRMAN OF COMMITTEES in the Chair.]
§ Clause 1 [Duty of Secretary of State to keep list]:
§ Earl Howe moved Amendment No. 1:
§ Page 1, line 13, at end insert ("or should no longer be included in it")
§ The noble Earl said: The Bill is quite rightly concerned with closing loopholes that have in the past enabled child molesters to move from one childcare job to another, sometimes with complete impunity, over a period of many years. There is an urgent need to ensure that such people are prevented permanently from working with children. I am the first to recognise how important that need is.
As a result of amendments passed in another place, the grounds for including someone on the Secretary of State's list are now confined, in Clause 2(7)(a), to,
misconduct … which harmed a child or placed a child at risk of harm",
combined with the Secretary of State's opinion that the person concerned was unsuitable to work with children. "Misconduct" is a term that I take to mean several things. It includes the case of the child molester whose deliberate actions cause harm to a child, but it also includes the case of someone who has been relieved of his position within an organisation, perhaps transferred elsewhere within it, as a result of gross incompetence that harmed a child or placed a child at risk of harm. In other words, it is quite possible to imagine circumstances where a person's name is included on the list as a result of an act of inadvertence, albeit a serious one, as opposed to an act involving deliberate predatory behaviour.
§ For example, we can well imagine a young person of, say, 18 or 19, working in a children's home who puts a child's life at risk by virtue of sheer thoughtlessness or even ignorance. The children's home decides that it cannot afford to take a risk again with that individual and therefore dismisses him for misconduct. Assuming that the Secretary of State shares that view and believes that the individual is unsuitable to work with children as a consequence of what he has done, his name will go 1662 on the list. There is then only one way that his name can be removed from the list; namely, following a successful appeal to the tribunal.
§ However, let us suppose that the tribunal dismisses an appeal. The young person grows up, becomes wiser and more experienced, perhaps has a family of his own, perhaps even persuades a voluntary group such as the Scouts to let him supervise a Scout group, and that person comes to be regarded as a thoroughly reliable and trustworthy individual in the supervision of children. The question we have to ask is whether in a case such as that there should be no mechanism whatever open to the individual to enable him to have his name removed from the list.
§ Under Clause 1(3) the Secretary of State is enabled to remove a person's name from the list if he is satisfied that it should not have been included in the first place. That is entirely reasonable and right. But it does not cover the case of someone such as I have described who has lost an early appeal to the tribunal but who has then convincingly redeemed himself of his past incompetence by virtue of a long and satisfactory track record looking after children.
§ I therefore need to ask the noble Lord, Lord Laming, via the amendment that I have tabled, whether he thinks that in the interests of natural justice there should be another means whereby someone is able to rid himself of the stigma of appearing on the list by having his name removed from it.
§ I do not suggest that there are many cases that ought to be eligible for such treatment—quite the contrary. I emphasise again that I am not talking about allowing wilful child molesters to apply to have the slate wiped clean after an apparently blameless few years. But as we debate the Bill we must all the time be mindful not only of the interests of children but also of what is fair and right. Blacklists are powerful tools. Including someone's name on a blacklist for the rest of his life may be further than we should want to go in certain exceptional cases. I hope very much that the noble Lord will be able to give me some satisfactory reassurances in response to the concerns that I have raised. I beg to move.
§ Lord Campbell of Alloway
I support the amendment, for all the reasons that have been given which the Committee may think are entirely logical, humane and right. I seek clarification on one matter that troubles me. It relates to this amendment and is not itself the subject of an amendment.
It appears that the individual concerned may not write to the Secretary of State directly and say, "Could you now remove me for these reasons?" That avenue seems to have been foreclosed upon by Clause 4(1) (b), which seems to ordain—this is the trouble—that a person has to go to the tribunal and seek leave in order to have his name removed from the list. That is a nonsense. A person whose name is on the list should be able to write a letter to the Secretary of State saying, "I am represented; the parson thinks I am all right". and one thing and another, and provide a few references. The Secretary of State can write back and say no; then the person can go to the tribunal. As I said, no 1663 amendment has been tabled to that effect. I merely ask that consideration be given to the point at some stage. It relates to a more orderly and proper system of administration.
§ Lord Meston
This amendment and the questions that have been asked are important. As I read the Bill, it provides an appeal mechanism. It appears to allow for only a single appeal; however, I may be wrong about that. It does not allow for a subsequent review. The intention may be that there will be some form of administrative review of the list, but that is not apparent on the face of the Bill.
Presumably there must be circumstances such as the noble Earl described in which an entry on the list ought to be reviewable. Indeed, there must be other circumstances in which entry on the list should be extinguished. Presumably some time limits will be allowed for; otherwise the lists will simply grow and grow. While I agree with the noble Earl that the circumstances in which a review should be allowed are likely to be extremely limited, perhaps we should be reassured that some such mechanism will be in place.
§ 11.15 a.m.
§ Lord Hunt of Kings Heath
First, I welcome the support that the noble Earl has given to the general intent of the Bill, which the Government, too, support. The noble Earl has raised an important issue and this has been a helpful debate. He has alerted us to the careful balance that needs to be drawn between the interests of children and the interests of the individual concerned.
The safeguards in the Bill—in terms of the procedures that have to be adopted in relation to the inclusion of a person on the list and the ability of that person to appeal to an independent tribunal—have been carefully drawn. The noble Earl's amendment strikes at one of the important principles of the Bill. I hope that I can reassure him that there are sufficient safeguards to meet the specific concerns that he raises.
Clause 1(3) is intended to enable the Secretary of State to remove an individual's name from the list if he is to avoid injustice and needless appeals and litigation in cases, for example, where fresh evidence has come to light and the Secretary of State is satisfied that the basis on which the original decision was taken was in some material way incorrect and for that reason the individual should not have been included in the list in the first place. For example, a relevant conviction could have been set aside, or evidence upon which the original decision had been based could subsequently have been discredited. In such circumstances the Secretary of State could act without the individual having formally to appeal to the tribunal as the only means of redress. However, it should be noted that that right may be exercised regardless of whether an individual has exercised his right of appeal to the tribunal.
The amendment proposed by the noble Earl would have the effect of requiring the Secretary of State not only to consider responding to information of this kind, 1664 but also to undertake reviews to see whether names should remain on the list. The amendment runs against the whole principle behind listing; namely, that once a name is finally placed on the list, that decision is permanent. The whole intention is that, if individuals have shown themselves to be unsuitable to work with children, they should not be able to work with children again.
I very much appreciate the noble Earl's concern that this may appear heavy-handed. Should, as he described it, a youthful indiscretion or a momentary lapse of attention in the case of immature young people be held against people for the rest of their lives? If that were a danger, I am sure that the Committee would be likely to agree. However, I believe that I can remove any understandable doubts on that score. Certainly, this same point troubled the Committee's deliberations on the Bill in another place. At that time the Bill provided that individuals might be listed on grounds of incompetence as well as misconduct. The Bill was amended precisely to respond to similar concerns, for example, where a youthful care assistant had carelessly left a gate open and a child had, as a result, run out into a busy street. The removal of incompetence grounds has therefore raised the threshold for referral to the list.
On that basis, when deciding whether it would be appropriate to include the name in the list, the Secretary of State must be satisfied that the employer has come to a reasonable conclusion that the individual has harmed a child or placed a child at risk of harm and that he is unsuitable to work with children.
Furthermore, in connection with appeals against listing, the tribunal will go into all the circumstances of the case afresh and will review the alleged misconduct and any resulting harm to a child. At the same time, however, it is clear that gross incompetence should meet the definition of misconduct so that that area of behaviour will be subject to referral. But, of course, that would then be a matter, in relation to the tribunal, for it to be decided on a case-by-case basis.
It must be borne in mind that there are other important filters which would screen out trivial cases. In the first place, only those cases where a child has been harmed or placed at risk of harm are to be referred to the Secretary of State. Secondly, under Clause 2(4), cases are not entered automatically into the consideration procedure following reference from an organisation. On the contrary, for the process to carry on at all, the Secretary of State has to be satisfied from the information submitted, with the original reference, that it may be appropriate for the individual to be included on the list.
It is only then, after observing closely stipulated statutory procedures that include considering observations from the individual concerned, that the Secretary of State may make a determination.
As I have already pointed out, this is subject to appeal to the independent tribunal to be established by the Bill: a tribunal which does not merely review the procedure followed by the Secretary of State but which also looks again at the whole case from the beginning, quite separately from and uninfluenced by the Secretary of 1665 State's consideration. In all those circumstances, it is difficult to see that cases will slip through to listing which should not be so listed.
§ Lord Laming
I am also grateful to the noble Earl for giving us the opportunity to discuss the amendment. It raises an important matter. It is necessary to emphasise that this Bill introduces a number of safeguards which do not exist at present. I consider that it contains five safeguards which will improve the way in which these matters are handled and provide safeguards both for the person against whom allegations are made and children who have been put at risk.
With that in mind, perhaps I may say to the noble Lord, Lord Campbell, that there is a difference between Clause 3, which sets out the responsibilities of the Secretary of State, and Clause 4, which sets out the opportunity for the individual to go direct to the tribunal to appeal. That is quite an important measure.
Turning to the amendment, as the noble Lord, Lord Hunt, indicated, the Bill provides for the test of gross incompetence. The fact that "incompetence" was removed in the other place is of great significance. "Gross incompetence" is not a matter which can be used to refer to a trivial act. The way in which the procedures are set out in the Bill allows for consideration to be given not only to the allegations of behaviour but to such matters as the inexperience of the person concerned.
It would be erroneous to suggest that someone could be placed on the list, having gone through the procedures, either because of youthful indiscretion or because they have acted in a way which, in years to come, would be thought to be less than gross incompetence. It is not only gross incompetence but gross incompetence that has resulted either in children being exposed to undue risk or experiencing abuse in one way or another. So the Bill is designed not only to protect children but also to ensure that there are proper balances and safeguards for staff.
We need to take these matters seriously because, as the noble Lord, Lord Warner, said at Second Reading, at the end of the day the adults concerned can get another job not working with children, but children can have their lives ruined through abuse from powerful adults in positions of trust. I support those sentiments because we must keep our attention clearly focused on the fact that these are people in positions of trust and authority. Matters that would be considered as justifying someone being placed on the list are matters of sufficient seriousness as to make them be regarded as unsuitable to work with children.
This is not a Bill that would prevent people working. It is simply a measure which prevents them working with children. I emphasise that youthful indiscretions do not fall within the definition of gross incompetence. For that reason I hope, after the consideration that the Committee has given the matter, the noble Earl will be willing to withdraw his amendment.
I am grateful to the Minister and the noble Lord for their explanatory comments. I recognize 1666 that the safeguards in the Bill are carefully drawn. As the noble Lord emphasised, we must be mindful of the need above all to protect children from those who represent a risk to them.
I accept that the term "misconduct" necessarily implies a serious act of commission or omission and that it would not be used to refer to a trivial act of any kind. However, I confess to remaining slightly worried. What the noble Lord said, helpful though it was, did not seem to me to cover the case of someone who in every way merits inclusion on the list at the time or shortly after the act was committed, but who after a lapse of time—perhaps many years—can demonstrate that his continued inclusion on the list is not in the interests of natural justice. That case remains in the air and unaccounted for.
The noble Lord is effectively suggesting that one cannot apply common sense to a situation. The logical conclusion of his position is that whatever someone does to prove that he is capable of being trusted with the care of children, he should nevertheless remain on the Secretary of State's list just in case he might do the same thing again. I find that proposition in the abstract difficult to accept. It runs counter to the best traditions of civil freedom that we are used to in this country.
I would appreciate an answer from the noble Lord or the Minister on the question posed by the noble Lord, Lord Meston, about the possibility of an individual being able to put in a second and subsequent appeal, having already lost an initial appeal, perhaps many years down the road, if it becomes clear that it would be right to remove his name from the list in the light of a lifetime of unblemished work. I should appreciate some guidance on that point.
§ 11.30 a.m.
§ Lord Laming
I believe that the noble Earl referred to misconduct. It is important to emphasise that the Bill is concerned now with gross misconduct. The term "misconduct" has been removed. "Gross misconduct' in these circumstances is intended to describe behaviour that exposes vulnerable children and young people to unacceptable risks or behaviour. It is important to note the difference between misconduct and gross misconduct.
With the leave of the Committee, I am a little confused. The Bill makes reference to "misconduct", not "gross misconduct". The term is a simple one.
§ Lord Laming
The misconduct is concerned with the protection of children and is not something of a trivial nature. I can give examples but I do not want to delay the House. Something done in innocence would not be regarded as misconduct. Something done deliberately in the knowledge of the likely outcome would be the test of misconduct. This is the first time that people will be able to put their case to an independent tribunal, describe their inexperience and the supervision that they did or did not have. The tribunal will take into account all of these matters.
1667 I am sorry that earlier I used the wrong term. The term "incompetence" has been removed. Therefore, innocent activity due to incompetence is not now being considered. Misconduct is something that is deliberate and determined. It is right that there should be an appeal mechanism but only if there is new information. There is no procedure in the Bill to review decisions taken earlier simply because someone now wants to have his circumstances reviewed. To ensure that these procedures are regarded with great seriousness, no one should be put on the list without a necessary appeal mechanism and until the tribunal has considered all the circumstances and come to the conclusion that the person is unsuitable to work with children. That decision will not be reached if the matters are trivial or the person has a justifiable defence of one kind or another. Therefore, I urge the noble Earl to withdraw the amendment.
§ Lord Campbell of Alloway
I had not intended to speak in this debate, but everything that the noble Lord has just said seems to me to justify the amendment. There must be some form of reconsideration at some time in some circumstances. To clear away one point raised by the noble Lord, he said that the Secretary of State would be required to keep these matters under continual review. No. It is only if a representation is, or could be, made that he is asked to consider it. I thought that I should clear that away. I hope that we come back to this very serious point about freedom of the subject. It seems to me that it is tied up a tiny bit too tightly.
I am grateful to the noble Lord and to my noble friend. I was a little confused by one observation of the noble Lord. He said that the term "misconduct" necessarily implied a deliberate act. That was not my understanding. It seems to me that gross incompetence can include an act of omission, if you like, inadvertence, rather than an act of deliberate commission. Be that as it may, I shall reflect carefully on what has been said in this debate between now and the further stages of the Bill. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1 agreed to.
§ Clause 2 [Inclusion in list on reference to Secretary of State]:
§ Earl Howe moved Amendment No. 2:
§ Page 2, line 3, leave out ("considered dismissing") and insert ("been minded to dismiss")
§ The noble Earl said: This amendment, in common with Amendment No. 6 to which I shall also speak, addresses what seems to me to be vague, and therefore unsatisfactory, wording in Clause 2. Subsections (2) and (3) set out the circumstances in which a childcare organisation must refer someone's name to the Secretary of State for provisional listing. We all understand the kinds of situation that should merit such a referral. One situation that undoubtedly must be covered is that of a person who has resigned or retired before the employer is able to invoke any disciplinary procedures against 1668 him. Another is the situation in which the procedures are commenced but the person disappears before they can be completed. This type of situation arises all too commonly. The employer is left having to form a view of the alleged misconduct without the benefit of having the accused person on hand to question. Such cases need to come within the scope of Clause 2 to ensure that potential malefactors do not slip through the net merely because they have avoided being formally dismissed from their jobs.
§ I do not argue in the least with what the clause seeks to do but merely with the manner in which it is expressed. It seems to me that the second test set out in subsection (2)(b) is not at all precise. It requires an organisation to refer someone's name to the Secretary of State not only when it has concluded that it would definitely have dismissed him had he not resigned or retired but also when it would merely have considered dismissing him. I am not sure that I know what that means. I know what it should mean; namely, a situation in which, on the balance of probabilities, an employer forms the view that a person has been guilty of misconduct but has not been able to complete the formal disciplinary process because the individual concerned has disappeared.
§ But to consider dismissing someone could mean anything from having the fleeting thought of dismissal crossing one's mind to going through a proper deliberative process, the conclusion of which is that the person would probably have been dismissed. It is the situation at the latter end of that spectrum that the Bill should seek to describe. I believe that it fails to do so. There are two aspects to this defect. One is the general principle that legal language should be precise and not vague. The other is that the wording of the Bill should point to a clear test which an employer knows with certainty he has fulfilled. The alternative wording that I propose in these amendments attempts to do just that.
§ To say that an organisation would have been minded to dismiss someone carries, I hope, the much clearer connotation of a considered, deliberative process rather than simply saying that it would have considered dismissing the individual. It also points to a more precise test that an employer must meet. That is important if one believes, as I certainly do, that the law should be capable of being policed. I look forward to hearing what the noble Lord and the Minister have to say. I beg to move.
§ Lord Hunt of Kings Heath
The noble Earl again raises an important issue. I hope to be able to clarify the views of the Government upon it and the reasons why the current wording of the Bill satisfies the needs. As drafted, the objective of including provisions for referral in circumstances where an employer would have considered dismissing is to cover the situation, as the noble Earl suggests, where, before the employer has had the opportunity to complete his investigation into the alleged misconduct or come to a firm conclusion that dismissal is appropriate, the individual retires or resigns. Until the employer completes that investigation, he 1669 cannot conclude with any degree of certainty that he would have dismissed the individual. To reach such a conclusion would be premature.
Although the employer should in principle undertake all necessary investigations, in practice it may not be possible for him always to conclude his inquiries. For example, if a child made an allegation of abuse, the employer would need to interview the child and seek any corroborative evidence available. He should also seek to obtain the individual's comments on the allegations. In circumstances where the employer has been able to obtain only one side of a story, it would be difficult for him to conclude that he would have dismissed the individual. He can only conclude that, as the present wording said, he would have considered dismissing the individual.
This does not give rise to an obligation to refer where only passing consideration was given to dismissal. Dismissal must be a real possibility or within a band of reasonable responses to the alleged misconduct. The obligation to refer does not arise where only fleeting consideration was given to whether dismissal was appropriate. If the present amendments seek to safeguard an individual from those eventualities, they therefore seem to be unnecessary, in particular taken with all the other safeguards in the Bill in relation to the procedures which have to be followed.
§ Lord Laming
I agree with the noble Earl, Lord Howe, that the law should be as clear as possible. It is for that reason that I believe that "to be minded" seems to have within it a presumption; whereas "would have considered" makes a claim that all the facts will be allowed before any decision is reached.
It should be remembered that the Secretary of State can commence the process of deciding whether someone should be listed only,if it appears from the information submitted with a reference … that it may be appropriate for the individual to be included in the list".In other words, although the amendment might restrict the threshold for referral by an employer, it does not in any way restrict the position of the Secretary of State.
There is a further important consideration on the noble Earl's point on the law. The terminology in Clause 2, "would have considered," is used in a great deal of legislation including the Education (Teachers) Regulations 1982 in relation to the reporting of misconduct cases. It is still used in the current version of those regulations; namely, the Education (Teachers) Regulations 1993. Section 15 of the Teaching and Higher Education Act 1998 also relies on those words.
There is consistency in the way the provision is framed. I urge that the amendment be withdrawn.
The Minister and the noble Lord have gone some considerable way to assuage my concerns. I am most grateful. It is helpful to have on the record that the phrase "would have considered dismissing him" will in practice be interpreted strictly in the way I sought to define.
1670 However, I remain uneasy that the Bill contains terminology that at least in ordinary language seems inherently vague. Perhaps there is an argument from precedent, as the noble Lord said. But riot having considered that precedent, I wonder whether it is a proper parallel to the situation envisaged in the Bill. If the guidance to be issued by the department will spell out the whole issue, there is a good argument for it to be spelt out on the face of the Bill. If we do nor do so, in one breath we are inviting an employer to refer someone's name to the Secretary of State, even in a case where that would be manifestly inappropriate. For example, if an employer receives an allegation of child abuse, investigates it, and finds it to be wholly without foundation, he would be obliged, nevertheless, to refer the name of the alleged abuser to the Secretary of State because dismissal of the person had seemed a real possibility at the outset of the investigation. So the lack of clarity in the drafting of the Bill could lead to an absurdity, or worse, bearing in mind that having one' s name referred to the Secretary of State is mortifying to anyone who is innocent. Where we are dealing with civil liberties, as we are here, we should have no truck with imprecise terminology.
I am sorry to say to the Minister that I do riot find the answer entirely convincing. However, I am in large measure reassured. I shall reflect carefully on what has been said. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 11.45 a.m.
§ Earl Howe moved Amendment No. 3:
§ Page 2, line 8, leave out paragraph (d).
§ The noble Earl said: In the previous amendment I highlighted my concern that the Bill. may unintentionally bring about a situation in which someone's name could be referred to the Secretary of State in quite inappropriate circumstances. However, we have here a paragraph which appears consciously to encourage the possibility of inappropriate referrals.
§ Clause 2(2)(d) provides that a childcare organisation must refer to the Secretary of State the name of someone whom it has suspended or provisionally transferred on the ground of misconduct before it has decided whether to transfer the person permanently or to dismiss him or her. As I have said, we are all in favour of closing as many loopholes as possible against those who might harm children. But the more I consider this paragraph the less desirable I think that it is; and the less I understand how it meshes in with the remainder of the Bill.
§ We can easily imagine the situation of an employee in a childcare organisation being subject to a malicious and wholly unfounded allegation of abuse. Nevertheless, the organisation feels duty bound to suspend that individual at the outset of the investigation as a precautionary measure. At the same time, it will be required under the Bill to refer the person's name to the Secretary of State. I fully accept that the Secretary of State will not proceed to a provisional listing of that person unless he is satisfied that there is at least a prima facie case, of misconduct 1671 presented to him. In the situation that I describe, there may well not be. I question whether it is good practice to create a situation in which there is a statutory duty to refer someone in circumstances where the Secretary of State would clearly determine that it was not appropriate for that person to be included in the list.
§ The organisation should not be encouraged to be trigger-happy as regards the referral process. If it refers someone's name to the Secretary of State, it should at least be persuaded at that juncture that, on the balance of the information available to it, there is a real case for that individual to answer. But that is not what paragraph (d) states. The threshold for referral is a great deal lower than elsewhere in the clause; and I am worried about that.
§ Before the noble Lord accuses me of not understanding the clause, I believe I know the reason that the paragraph has been included in the Bill. It is to cover the case of someone who, as soon as the shadow of suspicion falls on him in his place of work, applies for another job intending to do a runner from his present employer before he is brought to book. When that individual is suspended or provisionally transferred within the organisation, and before an internal investigation of the allegations against him commences, he knows that time is not on his side. I entirely understand why the noble Lord believes that one should minimise the risk of such a person slipping through the net and securing alternative employment. However, my question to him is this: what will constitute a prima facie case for the Secretary of State in these circumstances?
§ The suspension of an individual, and no more than that, is the trigger for a referral. The Secretary of State is unlikely to have anything more solid in front of him than an unsubstantiated allegation on which to make his judgment. If he tries to look beyond that, he will be prejudging the organisation's decision on whether the person's suspension should be upheld.
§ Some unsubstantiated allegations have a good deal of credence to them, as we all know. Much will depend on how and by whom they are made. However, in general, I do not believe that an unsubstantiated allegation, which might have led to an immediate and automatic suspension, should constitute sufficient grounds for the Secretary of State to decide to place someone's name on the provisional list. There should be more than that. The danger of having suspension as the trigger here is that we are encouraging referrals in circumstances where it is not obvious that there is a case to answer. Therefore, I wonder whether the wording in this part of the clause is appropriate. I beg to move.
§ Lord Meston
Like the noble Earl, Lord Howe, I try to envisage the situation that is contemplated by Clause 2 (2)(d). The situation in which an individual jumps before he is pushed is covered by Clause 2(2)(b) and therefore one is left wondering what, in practical reality, will be covered by Clause 2(2)(d).
It may be the limited circumstances in which someone is suspended, but manages to draw out the suspension procedure such that he is still technically employed and 1672 therefore his employment has not come to an end by resignation, retirement or dismissal, and yet there are serious misgivings about his suitability. In those situations, it might be appropriate for the employer to take action, but I am by no means sure about that. I hope that the Minister or the noble Lord can enlighten us.
§ Lord Hunt of Kings Heath
Again, the debate has shown the delicate balance which must be drawn between the overriding question of protecting children and the rights of the individual. Each amendment is testing the boundary between the two. Clause 2(2)(d) allows referrals to be made where the organisation has suspended an individual or moved him to a non-childcare post while investigating an allegation that a child has been harmed or placed at risk of harm.
The amendment would remove that provision and, as such, it would not be until a final decision was made by the employer that a referral could be made under subsections (a) to (c) of Clause 2. In answer to a point made by the noble Lord, Lord Meston, Members of the Committee will recognise that it will take some time to carry out a full investigation to decide whether an allegation can be substantiated. Witnesses will need to be interviewed and internal appeal procedures exhausted. During that period, if the amendment were accepted, that person's name would not be included in the list. As such, if the individual sought employment elsewhere in a childcare position and the check was carried out by a potential employer, the fact that an allegation was being investigated would not be revealed.
Although I accept the point that the individual would be concerned about inclusion on the list before a final decision on suitability had been taken, this clause is seen as the only way of providing the necessary protection to children and, as the noble Earl suggested, of ensuring that there are no loopholes in terms of someone trying to circumvent the overall safeguards in the Bill.
The noble Earl asked about a prima facie case against the individual for suspension. The name can go on the list only if there is an allegation of harm, or risk of harm, and if the Secretary of State believes that inclusion is appropriate. One grants that the Secretary of State would not know the individual's side of the story at that stage, but we turn to the other safeguards in the Bill. They are that a final decision on inclusion will not be taken until the employer has decided to dismiss, if that is the action that can be taken.
§ Lord Laming
I am grateful to the noble Earl. I begin by saying that I should be the last person to accuse him of not understanding the purpose of the Bill. I should not dream of having such temerity.
This is an important area of debate and I shall first answer the points made by the noble Lord, Lord Meston. Paragraph (b) deals with resignation, retirement or dismissal. Paragraph (d) deals with suspension. That is the justification for the provision. It is important to emphasise the two safeguards. First, the Secretary of State must be satisfied that there is a prima facie case. Everyone operating in the field will recognise that vexatious allegations can be made. The fact that an allegation has been made is not in itself grounds for 1673 suspension. Secondly, for the first time, the Bill allows for limits on how long the suspension can last. That is an important safeguard for someone in this situation.
It is also important to see suspension and the issues surrounding it within the wider employment legislation and guidance to social care and educational organisations about how they should deal with allegations. One recognises that allegations can be ill-founded and therefore—to quote the noble Earl, Lord Howe—one should not become trigger-happy. There is guidance to prevent authorities being trigger-happy, and for that reason the Secretary of State must be satisfied that these matters have been handled in an appropriate manner.
It is important to emphasise that it is only at the previous employment check stage that information can be made available to a prospective employer. Therefore, it is possible to envisage a situation where a prospective employer is considering offering a job to someone, makes a proper check, is given clearance as a result, and only after the offer of employment has been made learns that serious matters are being investigated elsewhere.
As the noble Lord, Lord Hunt, indicated, sometimes such allegations need several months to be properly investigated. Therefore, it is most important that during that period, if someone is suspended, a prospective employer is informed that the person is the subject of investigation elsewhere. For that reason, I believe that this is an important and essential feature of the Bill and I urge Members of the Committee to reject the amendment.
Once again I am grateful to the Minister for his comments. In tabling the amendment, it was not, of course, my intention to seek to delete those provisions from the Bill. That, 1 hope, was clear.
I have listened carefully to all the comments made, and I am entirely persuaded that the balance that the Minister referred to has been struck, in this instance, correctly. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Earl Howe moved Amendment No 4:
§ Page 2, line 47, after ("applies") insert ("and shall use his best endeavours to notify the individual accordingly")
§ The noble Earl said: This amendment reflects my deep concern that there could be circumstances in which the Secretary of State confirms someone's name on the list without that individual ever knowing that it has happened. Should such a thing be allowed to occur, it would he a profoundly damaging development for civil liberties.
§ I recognise that in many, if not most, cases an individual who has been provisionally listed and who has then submitted observations to the Secretary of State will be made aware in some way of the proceedings' outcome. But that will not always be the pattern. Let us reflect, for example, on what might happen under Clause 2(3). An organisation might uncover evidence about an individual's behaviour many years after he has left his job. It may not be possible to trace his whereabouts. The 1674 Secretary of State will determine the case on the basis of the evidence before him. Let us say that he decides to list the person. How is that individual supposed to know that this has occurred?
§ The question has particular relevance if, as we are led to understand, the Government intend to make it a criminal offence for a person to apply for a childcare position while on the list. In this context, it is instructive to look at the Home Office consultation paper, issued on 30th April. The paper puts forward proposals that would make it a criminal offence for a banned person to apply for, accept or be engaged in work with children, or to provide services to them.
§ Leaving aside the last element, which begs a whole host of questions, it is further proposed that there would need to be a defence of ignorance on the part of the individual, that he did not know that the position involved work with children. That is fair enough as far as it goes, but I see no mention of a defence of ignorance that the person did not know that he was on the list of proscribed individuals. If ignorance of one's inclusion on the list is not to be an excuse, this whole area of legislation begins to assume a somewhat Kafkaesque quality. I do not believe for one minute that that is the Minister's intention, but as the Bill stands he is implicitly allowing for that risk.
§ In debate in another place, quite a bit was made of the consequences that flow from Clause 2(3). The provision was, of course, inserted in the Bill because of concerns raised in Standing Committee. It is a useful subsection, but it brings with it certain risks. The longer the time that has elapsed since an act of wrongdoing was committed, the greater the scope for error, faulty memory and, therefore, miscarriages of justice. It is not for nothing that the Statute of Limitations, in its basic form, is one of the oldest statutes in the corpus of English law. Whenever we countenance a departure from the principle that it enshrines, we should do so only with the greatest caution. Here we do so in the context not of a judicial but of an administrative process.
§ We are saying that no matter how long ago an alleged misdeed took place, those who work with children must reckon on being in perpetual, open-ended jeopardy as regards the risk of being included, by an executive decision, on an employment blacklist. That is very serious. We may decide to take such a step in the interest of protecting children, but we certainly do not want to do so if the system that we put in place allows for the blacklisted person to remain in ignorance of the mark that society has placed upon him.
§ My amendment says that whenever the Secretary of State confirms someone's name on the list, he should use his best endeavours to notify him of the listing. 1 realise that the wording may not be precisely right in terms of legalese. However, it does recognise that in some cases an individual will prove to be untraceable. It does not impose a blanket duty on the Secretary of State to trace that individual and notify him no matter what, but a reasonable effort should be made to inform him regardless of the circumstances, and the procedure should be automatic. The Minister may tell me that that is what is intended as a matter of practice. However, 1675 when dealing with such a fundamental aspect of civil liberties there is an almost unassailable case for placing the requirement on the face of the Bill. I beg to move.
§ Lord Meston
Delayed disclosure of child abuse is a real problem with which the courts have to grapple. Occasionally, as has been said, it throws up quite acute difficulties in respect of limitation periods.
I sympathise entirely with the proposition that anyone included on one of these lists should be notified, if at all possible. It is right to say that in terms of legalese, "best endeavours" may no longer be the most favoured phrase. Perhaps something along the lines of "should use all reasonable endeavours" would be preferable. I hope that somehow the points raised will be taken on board in considering how the legislation will work in practice.
§ Lord Hunt of Kings Heath
I do not think that there can be any argument with the thrust of the noble Earl's proposal. Clearly it is important that every effort should be made to ensure that the individual concerned is aware. However, we see problems with the amendment. I hope that I can convince the noble Earl that these matters can be covered by effective administrative procedures. The amendment would impose an explicit duty on the Secretary of State to try to inform an individual when confirming his inclusion on the Department of Health's list. While the instinct behind the amendment is entirely understandable, I cannot recommend proceeding in the way proposed.
The question is not whether to achieve the amendment's intention, but rather how best to secure it without inadvertently complicating an essentially administrative process. As I understand the position, there should normally be no difficulty about informing the individuals concerned because they will have participated in the careful procedures laid down in the earlier provisions of Clause 2. Their whereabouts, therefore, will be known, and in the normal way they will be informed, possibly through their advisers, what the outcome of the reference has been. In their case, making this a statutory requirement adds nothing to the situation.
I am glad to give the assurance that the Government will in all cases seek to inform all parties of decisions that are taken. There will, however, be other cases where matters might not be so straightforward. For example, it is possible that there will be instances where individuals break contact with their advisers, or otherwise choose to go to ground. Such actions may be intended deliberately to frustrate or protract proceedings. In such cases, the imposition of the requirement proposed, reasonably worded as it is, could be used against the Secretary of State; for example, it may be alleged that his best endeavours were not good enough and that they ensured that the whole procedure was at fault. The tribunal may be invited to go into all the detail of attempts made to notify. In that way, attempts may be made to abuse the process.
1676 Experience with the current consultancy list in the Department of Health and List 99, which is operated by the Department for Education and Employment, shows that there are only handful of cases in which it has not been possible to contact the person contacted.
The noble Earl, Lord Howe, raised the issue of inclusion where the individual is not found or told that he is on the list. Although an individual who cannot be found may be included on the list, the time-limits relating to his right of appeal will not start to run until he is informed or finds out that he is not on the list. We shall deal with those matters in regulations concerning the tribunals.
The noble Earl referred to the new offence, following the work of the inter-departmental group and the Home Office report. I assure him that we shall consider that point.
§ Lord Laming
I am grateful to the noble Earl and to the noble Lord, Lord Meston. It is important to see this amendment in the context of the procedures set out in the Bill; namely, to provide protection for both children and employees.
It is helpful that we are discussing this amendment immediately after we discussed the amendment on suspension because it is almost inconceivable—I would say that it is inconceivable—that a person could not know that allegations were being investigated which could lead him to have his name included on the list. Therefore, in normal circumstances, he would not only be invited to participate in the procedures envisaged by the Bill, which enables those matters to be explored properly and provides a right to go to an independent tribunal, but he would also know from the outset what possibilities will flow from the actions which have been investigated.
For that reason, it is important to recognise that individuals who fall within the purview of the Bill will be informed fully from the outset about possible outcomes. It may help to say that in the present arrangements the procedures followed by both the Department for Education and Employment and the Department of Health go to considerable lengths to ensure that people are informed of the outcome of any decision made.
Furthermore, as the noble Lord, Lord Hunt, indicated, the department will produce guidance on the implementation of the legislation in due course. I feel sure that the department will be very happy to consult the noble Earl and the noble Lord to make sure that the point is covered adequately in the guidance. For that reason, I hope that the noble Earl will not press the amendment.
I am grateful to the noble Lord for his answer and for the comments which the Minister made. I am not sure that my concerns have really been covered fully. I welcome the assurance that notification of inclusion on the list will take place as a matter of course. But, if so, why can we not have this provision on the face of the Bill, although perhaps not as I have drafted it which is in a rather unprofessional layman's manner?
1677 The Minister raised valid objections to the form of words that I used but I am sure that there is a way round those objections if the will exists to find one.
The noble Lord, Lord Laming, said that individuals who fall within the purview of the Bill will be informed fully from the outset of the procedures. That certainly will be so in the majority of cases, but not necessarily, I suggest, when an act of abuse comes to light in the circumstances envisaged under Clause 2(2)(d) where an employee may be long gone. He will not be involved at all from the outset of the procedures. It is in those circumstances that my worries really surface.
To say that the amendment which I propose will complicate the administrative processes is no reason whatever for dismissing the validity of the central point at issue. We are talking about an absolutely fundamental issue affecting civil liberties. I am far from clear that that should simply be relegated to departmental guidance. The Bill should make explicit provision in that regard.
However, I shall reflect carefully on what has been said. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 12.15 p.m.
§ Earl Howe moved Amendment No. 5:
§ Page 3, line 2, leave out paragraph (a)
§ The noble Earl said: Clause 2(7) sets out the twin criteria upon which the Secretary of State's decision to confirm someone's name permanently on the list must be based. I have no difficulty with the thinking which underlies this subsection. But as drafted, it may give rise to some anomalies.
Let us suppose that an organisation refers a person following an allegation of misconduct; the case is investigated; and the allegation is not upheld. However, quite separately, the Secretary of State is made aware of details surrounding the individual, perhaps something in the domestic context, which make it quite clear that he is unsuitable to work with children.
As regards the organisation, the Secretary of State is obliged to reach the opinion that the verdict of misconduct was not reasonable. Therefore, he will be unable to confirm the person's inclusion on the list. But in every other way, it will be clear that that is a travesty of justice. Therefore, the word about which I am most concerned in this subsection is the word "and" right at the end of paragraph (a). Is the noble Lord happy for that word to be included?
In moving the amendment, perhaps I may ask a further question relating to the phrase "is of the opinion". What is the difference between the meaning of that phrase and the word "satisfied" in Clause 1(3) in the context of the Secretary of State's power to remove the name of someone from the list? The word "satisfied" appears also in Clause 4(3) in relation to the tribunal's determination of an appeal. Is there any significance in that? Does being "satisfied" about an issue represent a 1678 stiffer test in some way than being "of the opinion"? I hope that there is no substantive difference but if there is, I should like to know about it. I beg to move.
§ Lord Hunt of Kings Heath
This amendment would remove the first limb of the test which must be satisfied before the Secretary of State may confirm an individual's inclusion on the Department of Health list in the circumstances specified in Clause 2(6).
The test to be removed is the one requiring the Secretary of State to be of the opinion that the referring organisation reasonably considered the individual to be guilty of misconduct which harmed a child or placed a child at risk of harm. The sole test which would remain is whether the Secretary of State was of the opinion that the individual was unsuitable to work with children.
Rather than consider two matters before the test may be satisfied, the Secretary of State will be obliged to address only one because he would no longer have to consider whether the referring organisation had acted reasonably and addressed relevant criteria before deciding to refer. The Secretary of State would still have to decide whether the individual was unsuitable to work with children. The basis upon which he must do that is not clear. Either he would do that on a review of the papers before him, or he would be required to carry out a fact-finding exercise to decide whether the individual was guilty of the misconduct as alleged.
If the former were the case, the criteria for the Secretary of State's decision would be unspecified. Presumably, he would simply decide whether the person was suitable to work with children on the basis of information provided on the initial referral and any representations received from the parties. However, that is an insufficiently precise test, bearing in mind what turns upon that decision. For that reason, I believe that the amendment would not be welcome.
Alternatively, it is arguable that the amendment would mean that the only way in which the Secretary of State could discharge his function would be to carry out a fact-finding exercise, as he would need to be satisfied that the individual was guilty of a misconduct, as alleged, and would not be entitled to rely on the findings. of the employer. Of course, the Secretary of State would not be in a position to carry out such an exercise and I do not believe that it would be right to expect him to do so. Among other things, the standard of proof that he would be required to apply would be wholly unclear.
When read together with Clause 4, the effect would be one of duplication, as the Bill would then contain provisions for two fact-finding exercises in place of the one already available in the case of a tribunal. That is because under Clause 4, in determining appeals from decisions of the Secretary of State, the tribunal undertakes a fact-finding role to determine whether the person is guilty of a misconduct that harmed a child, or placed a child at risk of harm, and whether the person is unsuitable to work with children. Not only 'would there be wasteful duplication of effort, but there would also be significant cost implications.
§ Lord Laming
This provision is one of the safeguards to which I referred earlier. The Secretary of 1679 State needs to be of the opinion that the way in which the organisation has considered the issues of misconduct has been reasonable and—it is important that there is this second arm—that the evidence means that someone is unsuitable to work with children.
Earlier the noble Earl referred to what I call vexatious allegations being made. It is important that the Secretary of State forms the opinion that the way in which such matters have been handled has been reasonable and that the proper tests have been applied.
The Secretary of State needs to form an opinion about the procedures. He does not consider the merits of the case. He does not provide a rehearing. Therefore, the significance of the opinion is that he is not expressing satisfaction at the outcome because that matter will be considered by the tribunal with all the safeguards that are built into the tribunal. He will form an opinion about the way in which the matter has been handled and whether the person is, therefore, unsuitable to work with children.
There is significance in the words of the opinion in this paragraph. For that reason, I invite the Committee to reject the amendment because I believe that subsection (7)(a) provides an important safeguard in the Bill.
As so often happens when one tables an amendment in Committee, which is expressed in a form that suggests that a deletion of a certain part of the Bill should be considered, a literal interpretation is placed upon it. I tabled this amendment as a standard device to enable the Committee to debate this part of the Bill.
I have listened carefully to what has been said. Of course, I entirely understand why this part of the clause has been framed as it is. I do not dissent from it. In the remarks that I made earlier, I was merely suggesting that the double hurdle represented by subsections (7)(a) and (7)(b) may, in some circumstances, be too stiff a test and that someone could slip through the net as a result of the double hurdle.
If that is a risk that the noble Lord is willing to carry, I am the last person to dissent from his opinion on that. As he, rather than I, has been instrumental in carrying out the work on this Bill, I simply raise it as a possibility—a not altogether unreasonable possibility.
I am grateful to him for the explanation that he gave of the difference between the words "is of the opinion" and "is satisfied". I understand that the tribunal will sit in a quasi-judicial role and, therefore, the opinion that it reaches will necessarily be of a different kind, in terms of the way in which it is reached, from the initial decision taken by the Secretary of State.
That begs the question as to why the word "satisfied" is included in Clause 1(3) which states that the Secretary of State must be satisfied that the individual should not have been included in the list prior to a decision to remove him from it. That implies that the Secretary of State will, in certain circumstances, be sitting in a quasi-judicial role. I do not know whether there is any 1680 significance in that. If there is, perhaps either the noble Lord or the Minister will write to me. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 6 not moved.]
§ Clause 2 agreed to.
§ Clause 3 agreed to.
§ Earl Howe moved amendment No. 7:
§ After Clause 3, insert the following new clause—
§ NOTIFICATION OF INCLUSION BY SECRETARY OF STATE
§ (" . Where the Secretary of State—
- (a) provisionally includes an individual in the list in accordance with section 2(4)(b) above;
- (b) confirms the inclusion of an individual in the list in accordance with section 2(6) above; or
- (c) includes an individual in the list in accordance with section 3(3) above, he may, if he thinks fit for the purpose of protecting a child from harm or the risk of harm—
- (i) notify the Social Services Department responsible for the area in which the individual resides, or
- (ii) notify an organisation employing the individual, of such inclusion or confirmation.")
§ The noble Earl said: Amendment No. 7 reflects a further concern of mine that a malefactor, whose name is included permanently on the list, nevertheless may escape the notice of his current employer and the social services department in the area where he lives as being a risk to children. The list kept by the Secretary of State will be, of course, confidential and subject to a considerable degree of privileged access. If that is so, what authority does the Secretary of State possess to disclose its contents, other than in response to an inquiry initiated by a recognised organisation? The amendment attempts to put it beyond doubt that, where circumstances dictate, for the purpose of protecting children from the risk of harm, he make take the initiative and notify those with a clear interest in the matter.
§ The noble Lord will doubtless tell me that the amendment is unnecessary, or perhaps even that it attempts to move outside the strict ambit of the Bill which is concerned with employment. I do not take that view. One can easily imagine a case falling under the scope of Clause 2(3), once again, in which a person's abusive behaviour (as a result of which he is listed) comes to light long after he has left an organisation. His new employer may be completely unaware that there is a shadow hanging over that person, yet the employer clearly needs to be informed about that if the person's job involves working with children. Furthermore, such disclosure should not lay the Secretary of State open to a charge of breach of confidentiality.
§ Similar considerations apply to the person's domestic circumstances. The social services department involved in an individual's place of work may not be the same social services department responsible for the area in which he resides. Yet it is clearly appropriate that that department should be informed. That is not a case of wanting to widen the scope of the Bill, but of saying that a particular statutory organisation should be notified 1681 as a consequence of wrong-doing in the workplace. I should be grateful if the noble Lord would reassure me on those points. I beg to move.
§ 12.30 p.m.
§ Lord Meston
I certainly support the intention behind Amendment No. 7, as long as the power for which it provides is exercised with extreme caution. Like the noble Earl, I am a little uncomfortable that this Bill is so confined to the employment sphere. That is something I shall address in a later amendment standing in my name.
Recently I read a decision of the Court of Appeal, reported in Family Law Reports, Volume 1, 1999, page 267, called Re V (Sexual Abuse: Disclosure). On the facts of that case the Court of Appeal felt that,it was inappropriate to direct disclosure of findings of abuse in Children Act cases",in the circumstances of the two cases there under consideration. But the court did go on to say that,nothing in the judgment was intended to inhibit the necessary exchange of relevant information between agencies; local authorities were under a duty to respond to inquiries from other local authorities and to pass on information where children moved into a different area".Applying that reasoning to the slightly different situation envisaged by this amendment, I suggest that the same general duty to pass on information ought to apply to those who are to be responsible for keeping these lists so that they pass on information, in appropriate circumstances and with appropriate caution, to employers or to social services departments as is suggested. That is not when the specific children move around, but rather when the individual concerned is moving around or is likely to be moving around in the sort of situation described by the noble Earl.
§ Lord Hunt of Kings Heath
I am sure the noble Lord, Lord Laming, will wish to respond in detail to this important consideration. But perhaps I can say that, although I am entirely sympathetic to the principles behind the proposed amendment, discussion on these matters in another place demonstrated that it is an unnecessary additional provision. Moreover, it seeks to tie the Minister's hands; for example, it limits the grounds upon which notification might be made and specifies that there should be a choice only between two possible destinations for notifications.
Although the intention is to encourage discretionary activity for a scrupulously designated purpose, the amendment's effect may be restrictive since specifying actions in statute are normally considered to imply that those actions alone may be lawful. It follows that his ability to pass on this information to other relevant parties such as the police may be called into question if the amendment is accepted.
I turn to the matter of notifying a person's current employer. That matter was also fully debated in another place and the real difficulties of such a provision were considered. The amendment could be taken to assume that the Secretary of State knows where the person is employed, which may not always be the case. The Government, in another place, gave a firm assurance that if the employer is known, the Secretary of State will 1682 notify him or her that the person has been included on the list. As a matter of good practice, that would always be done if the information came to the Government's attention.
§ Lord Laming
Taking first the issue of notifying the social services department where the individual now resides, the Secretary of State does not require specific statutory authority to pass on this information, provided he is satisfied that it is necessary in all the circumstances and having weighed the relevant issues of confidentiality and proportionality.
It is also helpful to mention the Department of Health working document, Working Together. That provides guidance on the way in which these matters should he dealt with, not just for social services departments, but for all the relevant agencies involved in the protection of children and which have responsibilities under the provisions of the Children Act 1989.
I am grateful to the noble Lord, Lord Meston, for mentioning the recent judgment because the Working Together document is currently being revised and it will address issues raised in a number of recent cases. In particular, it will be giving guidance to area child protection committees on the way in which all such matters should be handled at a local level. This guidance will be issued under Section 7 of the Local Authority Social Services Act 1970.
As the noble Lord, Lord Hunt, also indicated, where the Secretary of State is aware of a person being employed in situations that give rise to concern, the Government have given an indication of how they intend to handle that. For that reason, I urge the noble Earl to withdraw his amendment.
I am grateful to the noble Lord and the Minister for those explanatory comments. I am entirely content and beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Earl Howe moved Amendment No. 8:
§ After Clause 3, insert the following new clause—
§ LIABILITY FOR CIVIL PROCEEDINGS ON GROUNDS OF DISMISSAL
§ (" . Where a child care organisation, or any other organisation, is made aware that an individual who is employed in a child care position is included (otherwise than provisionally) on the list and by reason of that discovery either dismisses him or transfers him to a position within the organisation which is not a child care position, that organisation shall not thereby be rendered liable to civil proceedings on the grounds of unfair or constructive dismissal (as the case may be).")
§ The noble Earl said: This amendment, I hope, is self-explanatory. An organisation may be made aware that someone working for it has had his name included on the Secretary of State's list as a result of an incident that occurred sometime earlier with a previous employer. If that person is working with children, the current employer may, quite reasonably, take the view after making appropriate inquiries that it cannot continue employing that individual.1683
§ On the other hand, the person concerned may have an unblemished track record with the current employer. What is the employer able to do? If he dismisses the person, he lays himself open to an action for unfair dismissal. If he transfers the person to a job that has no contact with children, that may not be to the employee's liking and he may resign to pursue a claim for constructive dismissal. That is why it should be a matter at least for discussion that an employer who takes a well-considered decision to dispense with someone's services, purely on the grounds of their inclusion on the list, should not thereby be rendered liable to an action in the courts under the employment laws.
§ The Minister in another place said that case law existed to show that an employer may act in response to evidence of previous misconduct that directly relates to a person's ability to perform his or her current employment. But is that good enough? I am thinking particularly of the sort of case I mentioned. An employee placed on the list as a result of a misdemeanour committed many years in the past, but with an otherwise unblemished track record with his current employer, might feel that he has been unjustly treated were he to be dismissed simply on the grounds of being on the list. But this is surely an issue for the employer to determine. A responsible employer will look at each such case on its merits and take the action he thinks appropriate. We ought to give the employer the benefit of any doubt and explicitly free him from the threat of legal action in cases where an employee refuses to go quietly.
§ I hope that the noble Lord will be sympathetic to my central point in this amendment. I beg to move.
§ Lord Meston
I take a purely technical objection. The amendment does not in fact cover wrongful dismissal; it covers unfair and constructive dismissal. That is purely technical. As a matter of principle, I do not support the suggested immunity which this amendment proposes. The question of whether or not a dismissal was unfair or wrongful surely has to be looked at on the facts and circumstances of the individual case, and, if necessary, be assessed by the court or employment tribunal which is considering the problem.
§ Lord Hunt of Kings Heath
Again, I understand the reasons why the noble Earl tabled this amendment. I sympathise with what he is seeking to do. But in principle what he is proposing is wrong—on very much the grounds put forward by the noble Lord, Lord Meston. However, I hope that I can provide some words of comfort to the noble Earl in this matter. Essentially, the amendment seems designed to give employers immunity from proceedings before the employment tribunal for unfair or constructive dismissal, where the dismissal or transfer to a non-childcare position was made as a result of the employer discovering that the individual is included on the Department of Health list.
While it is doubtful whether the amendment, as drafted, could in fact have the intended effect, perhaps I may address the merits rather than the technicalities of it. There is undoubtedly a sense in which it may seem 1684 onerous for referring organisations to be left open to possible proceedings before an employment tribunal when they consider that they have acted in good faith in accordance with the spirit of this legislation. However, I am unable to advise Members of the Committee to accept the amendment, even in principle. It would be wrong to confer such a sweeping immunity with such indiscriminate disregard for the many circumstances in which it would have effect.
It is precisely the function of the employment tribunal to discriminate between cases and to weigh each according to its particular merits. Effectively removing access to the tribunal in this way would benefit not only those employers who have acted properly and in good faith and who would, therefore, have nothing to fear from tribunal proceedings, but also others who might have taken advantage of the immunity to disregard the normal obligations imposed by Parliament under employment law.
The employment tribunal will look at a wide range of issues when considering whether a dismissal was fair. The fact that an individual is included in the list will be but one of those issues, and other relevant issues might arise. As such, it would be inappropriate to remove the individual's right to have his case heard by the employment tribunal.
In seeking to improve child protection, it is not the intention of the promoters of this Bill, as I understand it, to remove or diminish the reasonable protections already available to relevant parties. What we are seeing here is another indication of the very careful balance to be drawn between, on the one hand, the need to protect children and, on the other, the rights of the individuals concerned who may be placed on the list.
I did say that I hoped to be able to offer some comfort to the noble Earl. Despite the strong view that I expressed in relation to the principle, I believe that there is some comfort to be drawn in relation to the practice as the crucial question is whether an employer who dismissed someone from the childcare position, because the individual was found to be on the list, would be likely to lose before an employment tribunal on the grounds that he dismissed the person unfairly. Although the noble Earl was perhaps a little dismissive of the comments made by the Minister in another place concerning case law, I think that there is some comfort in that regard.
§ Lord Laming
In the presence of distinguished lawyers, I hesitate to rely upon the law in reply to the noble Earl, Lord Howe. However, it is my understanding that if an employer needs to defend a claim of unfair dismissal of an employee he has five possible statutory grounds on which to do so. The one I would expect an employer in these circumstances to rely upon is as follows:He would state some other substantial reason of a kind such as to justify dismissal of an employee holding the position which that employee had".1685 In other words, the position which the employee held at the time justified the action of the employer. Where decisions have been made in good faith, following the proper procedures, experience shows that this has provided proper protection for the employer.
However, it would seem entirely wrong to seek to remove rights from an employee to go to a tribunal because there are circumstances where the employee may have legitimate complaints about the way in which he or she has been dealt with by the employer. I believe that this amendment strikes at the heart of employment law. It would deprive people of what I think are essential rights in respect of which, as the Minister indicated, the Bill before us attempts to strike a balance. Although I have considerable sympathy with the noble Earl, having been in a similar situation myself in the past, I hope that he will agree that the existing employment law should remain undisturbed.
We have had a helpful short debate. I am grateful to all noble Lords who have commented on the amendment. I realise that it has severe drawbacks. The question I seek to pose is simply this: should a person's inclusion on the list be sufficient ground in itself for dismissing him from a post? The answer seems to be that in some cases it may and in some cases it may not; and that each case will be decided on its merits in the normal way. I have no argument at all with that. My concern was to establish that the opposite would not apply—namely, that a business dismissing someone on those grounds would automatically find that it did not have a leg to stand on. That would worry me greatly. However, from the comments made by the Minister and the noble Lord, that does not seem to be the case. Therefore, I am entirely happy to beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clauses 4 and 5 agreed to.
§ 12.4.5 p.m.
§ Clause 6 [Appeals against prohibition or restriction of employment]:
§ Earl Howe moved Amendment No. 9:
§ Page 5, line 39, leave out ("may") and insert ("shall")
§ The noble Earl said: In moving this amendment, I shall speak also to Amendment No. 10. These amendments are prompted directly by comments made by the Delegated Powers and Deregulation Committee of this House in its recent report on the Bill. I hope and believe that the point at issue can be dealt with relatively easily. In Clause 6(2) and (3) we see a provision for regulations to be made under Section 218 of the 1988 Act in relation to an appeal to the tribunal against a decision to prohibit or restrict a person's employment.
§ The wording of the clause is permissive rather than mandatory. The Explanatory Notes to the Bill and, one understands, the Department of Health memorandum to the committee present the provision in Clause 6(3) as directly mirroring that in Clause 4(4). However, as the committee points out, the prohibition contained in 1686 Clause 4(4) is an absolute provision on the face of the Bill and not, as here, a permissive power to be introduced by regulation. Therefore, the two powers do not mirror each other. I believe that my question on this occasion needs to be addressed to the Minister. Can he give me an assurance that, if this Bill is enacted, the Government will bring forward regulations in pursuit of the powers granted in Clause 6(2) and (3). I beg to move.
§ Lord Hunt of Kings Heath
I understand the noble Earl's desire to ensure that the matters mentioned in subsections (2) and (3) of Clause 6 are included in the regulations to be made by virtue of the clause. However, it is not necessary to make these amendments to achieve that aim. Those matters will have to be addressed in regulations in any event.
The reason that the word "may" is used in the subsections and not "shall" is to ensure consistency with the wording of Section 218(6) of the Education Reform Act 1988, which is expressed as a discretionary power to make regulations. The intention is to provide that the arrangements for appeals under regulations made by virtue of Clause 6 should be the same in all essential respects as the arrangements set out in Clause 4 of the Bill for appeals against inclusion on the new Department of Health list.
I am assured that the regulations will make provision for anyone who is included on List 99 in the future to ask the tribunal to consider whether there were grounds for barring him and, if so, whether barring was the appropriate sanction. If the tribunal is satisfied that there were not sufficient grounds to bar, or that barring was not appropriate in all the circumstances of a particular case, it will be able to remove the bar. The regulations will also ensure that appellants will not be able to challenge any facts on which a criminal conviction is based in an appeal to the tribunal. I hope I have given the assurance to the noble Earl that regulations will be made.
§ Lord Laming
I am tempted to respond. I hope that the noble Earl, Lord Howe, will not think that I am in this respect a leopard which is not able to change its spots. For many years I have advised Ministers on the virtues of the word "may" rather than "shall". I remain absolutely convinced of those virtues. I hope that the noble Earl will feel that these matters are best dealt with in the regulations.
If the noble Lord, Lord Laming, is convinced of the virtues of the word "may" rather than "shall" I shall follow him down that path immediately. I am grateful to the Minister for his comments. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 10 not moved.]
§ Clause 6 agreed to.
§ Clause 7 agreed to.1687
§ Lord Meston moved Amendment No. 11:
§ After Clause 7, insert the following new clause—
§ SEARCHES OF BOTH LISTS IN CERTAIN CASES
§ (" . Where—
- (a) in any family proceedings within the meaning of section 8 of the Children Act 1989 a welfare officer or guardian or litigation friend appointed by the court, or a local authority enquiring into the circumstances of a child, is directed by the court or otherwise reasonably requires to investigate the suitability of any individual in a child care position; or
- (b) a local authority exercising its duties under sections 17, 22 or 47 of that Act reasonably requires to investigate the suitability of any such individual,
§ The noble Lord said: This amendment proposes that those who are directly and properly concerned in the welfare and safety of children within the family justice system and in local authorities exercising statutory duties under the Children Act 1989 should have the ability to check the lists. Court welfare officers, social workers and those who represent children in proceedings need access to information about people who are or may become associated with the care and upbringing of the children concerned. At present they have access to criminal records, but not to the existing list or index. I believe, subject to correction, that local authorities may have access at least to the existing consultancy index when they are preparing reports for adoption agencies under the Adoption Agencies Regulations 1983. If that is correct, it is anomalous; if it is incorrect, surely local authorities should have such access when inquiring about potential adopters and their families and in all other situations which they have to investigate.
§ The wider point is that these are situations in which responsible people are required to carry out actual investigations to discover whether there is an identifiable risk to a specific child. At present the Bill is confined to inquiries by employers and potential employers, but clearly there are others who need to know as much as possible about people coming into contact with children in a domestic or non-employment context. Section 47 of the Children Act, for example, imposes a duty on local authorities who have reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm to make such inquiries as they consider necessary to enable them to decide whether they should take action to safeguard the child. How can they properly discharge that duty if they cannot in appropriate cases have access to the lists?
§ Information available in the area of child abuse is partial enough. Far from all offences or suspected offences are reported; fewer still result in convictions or cautions. The best available information should be available to all with responsibilities for children from a properly integrated database. The childcare system is based on the philosophy of Working Together, to which the noble Lord, Lord Laming, referred a short while ago. The objective of this Bill is in its title, the protection of children. I beg to move.
§ Lord Hunt of Kings Heath
The noble Lord, Lord Meston, brings a particular expertise to the 1688 Committee's deliberations on this Bill. However, notwithstanding the title of the Bill, which the noble Lord has pointed out, the Bill does not claim to be comprehensive. It is best seen as one plank in a whole series of efforts to try to ensure that we provide as much protection to children as possible. As the noble Lord explained, he is concerned to ensure that investigations undertaken either in connection with family proceedings in the courts, or otherwise by a local authority in the exercise of certain functions under the Children Act 1989, should include checking the names of individuals under investigation against the departmental list dealt with under this Bill.
The proposed new clause seeks to achieve its object by specifying that checks should be carried out in respect of individuals being investigated for the purposes of family proceedings listed in Section 8 of the Children Act 1989. It also provides that checks should be carried out by local authorities when carrying out the duties imposed on them under Sections 17, 22 and 47 of the Act when investigating the suitability of such individuals. Section 17 deals with the provision of services for children in need, their families and others. Section 22 concerns the general duty of local authorities in relation to children looked after by them. Section 47 concerns the duty of local authorities to investigate in certain circumstances whether they should take any action to safeguard or promote the child's welfare.
As the noble Lord, Lord Meston, has said, as it stands the current Bill's provisions are confined to the actions of organisations in respect of employment in childcare positions. The present amendment would extend the Bill to cover checks on individuals where there is no employment relationship with the organisation concerned; for example, checks on the partner of a parent where a residence order is being sought. This is an area which was considered to be outside the scope of the present proposals. I do not think this is surprising because, as I said at the beginning, this Bill, which has never been claimed to be the last word on the subject of child protection, has to be seen as a building block for a more complete situation and is concerned only with employment situations. That is, it is aimed at protecting children from harm where they are being provided with care for whatever reason.
Before I sit down I shall respond to the question raised by the noble Lord, Lord Meston, about access to the current list. Local authorities now have access to the list, and under the Bill will have access to the one-stop-shop provisions for checks on prospective adoptive parents when Clause 8 is enacted.
§ Lord Laming
I fully understand the point raised by the noble Lord, Lord Meston, who has great experience in this field. I support what the Minister has said in that this amendment would take this Bill into a whole new area of family proceedings which I am sure the noble Lord, Lord Meston, would agree is a complicated area, at least for a layman such as myself. I emphasise that this Bill is a Private Member's Bill which can address only the narrow but important field of employment. I hope that there will be opportunities elsewhere for the 1689 noble Lord, Lord Meston, to pursue his legitimate concerns. I hope that the Committee will not feel that this is the place to pursue them.
§ Lord Meston
I am grateful for that predictable response from both noble Lords. I am sorry that this situation is outside the scope of the Bill, which I believe is unfortunately and indeed unnecessarily confined in respect of the points which I have sought to raise. At Second Reading I gave the example of individuals who deliberately insinuate themselves into families, particularly single-parent families, where they know there is a child or children. If proceedings result, in whatever context, the welfare officer or the social services department will reasonably want to know all there is to know about that individual before approving him—usually it is "him" but sometimes it is "her"—as someone suitable to be involved in the upbringing of the child concerned.
It seems an anomaly that a welfare officer can check a criminal record to establish whether an individual has a conviction or caution recorded against him but cannot check his other record—we all know that it exists and its details will, no doubt, be greatly improved when the Bill comes into force—which shows that the person has been sacked for gross sexual impropriety. It is an omission which will, in years to come, be seen as a deliberate omission.
I understand the constraints of time and the limitations of the Bill and I shall not press the amendment. However, I suggest that it is a matter that needs urgent consideration. On that basis, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clauses 8 and 9 agreed to.
§ 1 p.m.
§ Clause 10 [Power to extend protection of Act]:
§ On Question, whether Clause 10 shall stand part of the Bin?
Perhaps I should make clear straightaway that I have no intention of trying to remove the clause from the Bill or of suggesting that that might be desirable. I seek merely to probe the noble Lord and the Minister as to the intentions behind it.
It is quite clear that the position of adults suffering from mental impairment has a close parallel with that of children in terms of their vulnerability, particularly their vulnerability to all forms of abuse. How does the clause fit in with the Government's wider intentions to introduce legislation to protect vulnerable people in society, both young and old? When might we expect to see the Government bringing forward regulations in pursuit of Clause 10? Can the Minister say what practical issues, over and above those raised by the main body of the Bill, need to be addressed before such regulations can be implemented?
The problem with the clause—if I can call it a "problem"—is that it does not go quite far enough. It seems to me that in focusing on adults with what is 1690 called a "mental impairment", it draws an arbitrary dividing line between one group of vulnerable adults and another; for example, it excludes adults suffering from dementia or a degenerative illness such as Alzheimer's disease. The disability suffered by the latter group in terms of loss of social functions and capacity of expression is, for all practical purposes, exactly the same as that suffered by the former.
If the starting point for the clause is to extend the scope of the Bill to those adults to whom society owes a duty of care similar to the duty it owes to children, then I do not understand why the clause does not go further. If it is the case that the Government are currently addressing the needs of vulnerable individuals across the board, young and old, are we likely to see Clause 10 being implemented in isolation from any measures that may be brought forward in that wider context?
§ Lord Hunt of Kings Heath
I understand that the noble Earl has chosen this device not only to probe the Government's intentions in respect of using the power in Clause 10 to extend the protection in the Bill to mentally impaired adults, but also to establish our intentions on a number of other matters, particularly with regard to the way in which protection may be strengthened for other categories of vulnerable adults. I shall try my best to respond, although I fear that I may not be able to give as great a clarification as the noble Earl may seek.
On the point about when the power in the clause might be exercised, the position is as follows. As the noble Earl will realise, a great deal of work needs to be undertaken before the main provisions of the Bill can come into force. Subordinate regulations, some of which we have discussed already, and regulations relating to the tribunal and to the education Acts, will be of some complexity. Setting up the tribunal will be a substantial task. Although no final decisions have been taken on the matter, at the moment we consider that it would be. unwise to seek to use the powers in this clause until such time as the main architecture of the scheme is in place and operating satisfactorily.
On the point about why the Bill should not contain a power similar to that contained in Clause 10 in relation to mentally impaired adults, the short answer is that they are very different issues. The point has already been made that it would be too much to expect that a Private Member's Bill would be an appropriate vehicle to extend the protection that it affords to children to all other vulnerable members of the community.
We have to be clear that the Bill is targeted on improving our child protection system. It would not be practical to expect that that system could satisfactorily encompass the needs of quite distinct groups beyond those already set out in the Bill. The position of mentally impaired adults is most similar to that of children.
Clearly it will be a considerable challenge to resolve the many and varied problems concerning vulnerable adults. We have to examine different groups individually and to produce the right solutions according 1691 to the circumstances. I am given to understand that the interdepartmental working group is studying these matters at present. I hope that the noble Earl agrees that the best course of action is to await the group's recommendations. I assure him that his comments will be fed into its deliberations.
I accept that my response may have been less precise than the noble Earl wished, but I assure the Committee that the Government have no intention of dragging their feet. Returning to the point I made earlier in relation to the operation of the Bill if enacted, it is very important to ensure that we get the main scheme in place and operating satisfactorily.
I am grateful to the Minister. I was not suggesting that the scope of the Bill should be extended to all vulnerable individuals, but merely that the dividing line created by Clause 10 in terms of who is and who is not included in the clause is somewhat artificial. I was pleasantly surprised to see Clause 10 in the Bill at all. Given that it is there, I wished to ask whether perhaps it is too narrowly drawn. However, I am grateful to the Minister for the pointers he has been able to give, such as they are. I understand entirely that, inevitably, there is still much work to do and much uncertainty ahead.
§ Lord Hunt of Kings Heath
Clearly the points made about clarification of the definition are matters which will need to be taken on board as we move forward, both in terms of the implementation of the Bill and in terms of the work of the interdepartmental group.
Again, I am grateful to the Minister. I had assumed on reading Clause 10 that the phrase "mental impairment" would not necessarily prohibit the inclusion of those suffering from dementia or a degenerative illness. They would normally not be included in the definition of "mental impairment". Nevertheless, I am grateful for what the Minister said. I look forward with interest to the way in which the provisions are implemented and lay open the way for Clause 10 to come into full operation.
§ Clause 10 agreed to.
§ Lord Meston moved Amendment No. 12:
§ After Clause 10, insert the following new clause—
§ PERSON SEARCHING LIST TO BE INFORMED OF COMPARABLE LISTS
§ (" . The Secretary of State shall by regulation make provision for a person searching the list kept under section 1 above or the list kept for the purpose of regulations made under section 218(6) of the 1988 Act, or applying under subsection (3A) of section 113 of the Police Act 1997, to be informed if an individual is included on any comparable list held elsewhere in the British Islands.")
§ The noble Lord said: This is a geographical amendment. As drafted, the Bill applies to England and Wales. At Second Reading, the noble Lord, Lord Laming, told us that a parallel system may well be brought into force in Scotland. The purpose of this amendment is to ensure that the system in Scotland and indeed any other systems which exist or may come to 1692 exist elsewhere are joined up. In that way, employers who seek information will truly be provided with a single point of reference.
§ We have reminded ourselves several times today that child abusers exploit the gaps in any system. They move around. It certainly must be likely that a conscientious employer, faced with an applicant for a job whose accent or name suggests that he comes from other than England and Wales, would wish to be assured that in checking the list, as he is obliged to do, he is getting information that is as comprehensive as possible. Indeed, I would hope that it could work both ways so that the prospective employer in England, Northern Ireland, the Isle of Man or wherever it may be, could likewise feel confident that when he checks the point of reference available to him he is getting comprehensive information throughout the British Isles. On that basis, I beg to move.
§ Lord Elton
The noble Lord has chosen a term which is variously interpreted in the north and the south of Ireland. I wonder whether it was his intention, which would not be a bad one, to include some form of communication between the Republic of Ireland and the United Kingdom or whether the term was intended to sweep up the Isle of Man and Jersey and was not intended to set a quite considerable flutter in the political dovecotes of the Republic.
§ Lord Meston
No, it was not intended to cover the Republic. The phrase "the British Islands" comes from the Interpretation Act. I did in fact take the trouble to look it up before drafting the amendment and it is on that basis that I used the phrase.
§ Lord Elton
My intention was not entirely frivolous. There seems to be a whole area here where we ought to be moving closer to the government of the Republic of Ireland because there is such a massive interchange of personnel working in these fields between the two states. It would be extremely helpful on both sides of the Irish Sea if some such links could be established.
§ Lord Hunt of Kings Heath
Although I cannot recommend that the Committee accepts the amendment, I have a great deal of sympathy with the points raised. particularly the noble Lord's concern that individuals might seek to exploit the gaps. The noble Lord, Lord Elton, also raised an important question, not just in relation to Ireland but also to other European countries. As part of what I described earlier as the building block towards greater child protection, these matters, while not necessarily ones for the Bill, must clearly be taken into account and considered carefully.
Neither Scotland nor Northern Ireland yet has statutory lists comparable to those proposed in the Bill. However, my understanding is that putting Northern Ireland's pre-employment consultancy service on such a basis is under consideration and that it is anticipated that proposals for a list in Scotland will be put forward in due course. Until such times as these lists are available, it would not be possible for comprehensive reciprocal checks to be carried out, although I gather that 1693 reciprocal criminal record checks between Scottish and English authorities take place via the respective police forces and the Scottish Criminal Records Office.
My understanding is that the question of a system for arranging cross-border checks at UK level is, and continues to be, one of the very important issues under discussion by the inter-departmental working group under the chairmanship of the Home Office. Both the Northern Ireland authorities and the Scottish Office are full participants in the inter-departmental working group. Additionally, Part V of the Police Act 1997 provides for different levels of criminal record checks. Both Scotland and Northern Ireland are already included within the UK provisions of that Act. Similarly, the names of people struck off the register of teachers by the General Teaching Council for Scotland and the names of people barred from teaching in Northern Ireland by the Department of Education for Northern Ireland are included in the appendices of List 99 covering education staff in England and Wales.
In those circumstances, I hope that the noble Lord would recognise that we take very much to heart the points he raised and that the matters are under urgent consideration in the inter-departmental working group and elsewhere. But that is as far as I can go today on that.
§ Lord Laming
For the reasons clearly set out by the Minister, I am satisfied that the Government are addressing these matters urgently and seriously. For that reason I hope that the noble Lord will be willing to withdraw his amendment.
§ 1.15 p.m.
§ Lord Elton
The word "urgent" has been used, I am not sure how advisedly. It is now more than 20 years since the Maria Caldwell case caused us all in horror to look at the risk that children were at. It was then quite clear that a lack of communication between the voluntary agencies, the statutory agencies and the local authority lay behind the difficulty. At the same time the importance of keeping the local authority children at risk list up to date to follow the movement of the children was a priority. I add my voice to that of the noble Lord, Lord Meston, in saying that the cross-border updating of this information—it is the same issue, but on a larger scale—should be treated as a matter of urgency. Otherwise the whole system will fall to the ground when someone crosses a line on the map.
§ Lord Hunt of Kings Heath
I shall ensure that the points raised by the noble Lords, Lord Elton and Lord Meston, are taken on board.
§ Lord Meston
I thank the noble Lord, Lord Elton, for reinforcing the points I was seeking to make. The amendment is not meant to be prescriptive. It is simply to enable the Secretary of State, wherever and whenever comparable lists are established elsewhere, to ensure that people seeking information can seek it in one go with a single point of reference. It is not dependent on there already being similar lists elsewhere. Therefore, I find it difficult to see why this enabling provision 1694 cannot fit into the Bill as presently drafted. I had the impression—perhaps the Minister will correct me if I am wrong—that whenever the new system is set up in Scotland, Northern Ireland or wherever else, further primary English legislation will be necessary to bring into force regulations such as those I suggest in the amendment. If further primary legislation will be needed, it is perhaps unfortunate that that has to be so when an opportunity is provided for an enabling measure in this Bill. However, I do not intend to press the point at this stage. Accordingly, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Remaining clauses and schedule agreed to.
§ House resumed: Bill reported without amendment.