HL Deb 25 June 1999 vol 602 cc1225-42

2.18 p.m.

Report received.

Clause 2 [Inclusion in list on reference to Secretary of State]:

Earl Howe moved Amendment No. 1:

Page 2, line 47, after ("applies") insert ('and shall use all reasonable endeavours to notify the individual accordingly")

The noble Earl said: My Lords, Amendment No. 1 is a redrafted version of an amendment I tabled in Committee. It arises out of my concern that under the procedures set out in the Bill there could easily be circumstances in which an individual might not discover that his name had been included on the Secretary of State's blacklist of people considered unsuitable to work with children. There is no requirement in the Bill for the Secretary of State to notify his decision to an individual. My concern was that without that we would be enshrining in law a provision which comes perilously close to breaching the spirit, if not the letter, of the European Convention on Human Rights.

The noble Lord in responding to me expressed his opinion that it was inconceivable that a person could not know from the outset that allegations were being investigated which could lead to his name being included on the list. Furthermore, he said that the Department of Health and the Department for Education and Employment, as a matter of normal procedure, go to considerable lengths to ensure that people are informed of the outcome of any decision made. I completely accept that what the noble Lord said is correct in the majority of cases. I entirely take on board the procedures that are followed by both government departments as a matter of routine. But that was not my point. The replies of both the noble Lord and the Minister failed to recognise that Clause 2(3), which was inserted as an afterthought in another place, introduces a new dimension, namely, the possibility of referring and listing someone many months or years after the alleged misdemeanour.

In those circumstances, the person might be long gone and his whereabouts unknown. In the nature of things, he would not have been involved in the investigations from the outset. It was, therefore, incorrect to describe such a scenario as inconceivable. The Bill explicitly allows for it. The question that I posed was, given that both the Department for Education and Employment and Department of Health consider it important to try to inform an individual of the Secretary of State's decision in all cases, is it sufficient for this to be dealt with in departmental guidance or should it be on the face of the Bill. The case for it being on the face of the Bill is that conformity with the European Convention on Human Rights and with the rules of natural justice—which may be the same thing—may be better met by an explicit provision.

When the Minister replied in Committee, he suggested that this approach would complicate matters by allowing a vexatious appellant to deploy a bogus line of defence with the tribunal to the effect that the Secretary of State's efforts to notify him had not been good enough. That is why I have now reworded my amendment so that it speaks of the Secretary of State using "all reasonable endeavours" to notify the individual, as opposed to his "best endeavours" which formed the previous wording. If the Minister's view is still that this is a matter that should not appear on the face of the Bill, I should be glad to hear his explanation as to why. It attempts to do no more than encapsulate what the two departments already do as a matter of course.

Lord Elton

My Lords, I apologise for being slightly taken by surprise by the Bill, although it is my own fault. I have risen, therefore, to raise a point that I would have been happier to raise in Committee.

It occurs to me that considerable injustice could be done to an individual if steps are not taken to inform him. Those steps may not always go well. I therefore wonder whether it is in the Minister's mind to impose in Clause 7 a duty on a childcare organisation that refuses employment to an applicant on the grounds set out in Clause 7(1)(a) and (b) to inform the individual of the reason for that refusal. That solution would come close to having the same effect as has been proposed but may have fewer holes in it.

Lord Stewartby

My Lords, I shall be interested to hear the Minister's response to this amendment. However, my reason for rising is to apologise for not having attended debates during the Bill's earlier stages. I compliment my noble friend Lord Laming on his efforts and thank him, in retrospect, for his contribution to social services and related issues in Hertfordshire, where I for many years represented a constituency in another place.

Although I am sure that I am out of order, I hope that I shall be allowed to pass on that compliment.

Lord Hunt of Kings Heath

My Lords, I thank the noble Earl, Lord Howe, for allowing us to debate this matter again. He is right; it is important. The amendment is similar to that tabled by the noble Earl in Committee and would require the Secretary of State to use "all reasonable endeavours" to try to inform an individual when confirming his inclusion on the Department of Health list.

I understand that the concern behind the amendment flows particularly from the provisions of Clause 2(3) which deal with referrals relating to past events only recently discovered. Someone could be included in the Department of Health list without his knowledge because his current whereabouts were unknown. Although such an eventuality is not likely to occur with any frequency, it is certainly possible, and might conceivably occur, in cases arising under Clause 2(2), where contact had been, perhaps deliberately, broken between the employer and the individual. Accordingly, I hope that it will help the House if I explain how notification is conducted and how the Bill's provisions will operate where individuals do not immediately, or possibly for some time, learn that they have been included in the list.

In the normal way, notifying letters will be sent by recorded delivery to last-known addresses. If those do not reach their target, inquiry will be made through the last employer and matters pursued as far as is practicable. I am sure that it will be understood that there can be no guarantee that individuals may be contacted in every case. It is also necessary to face the fact that there are limits to what may be done in Clause 2(3) or any other cases where, for whatever reason, there is broken contact. In such situations there seems no good reason why protective listing should not occur, provided that the Clause 2 criteria are met. The interests of the children must be overriding, but at the same time there is no question of the rights of individuals being taken away. Individuals may resurface at any time, and if they are not included in the list, an employer could be misled and children needlessly exposed to avoidable risk.

I know that in previous debates concern was expressed that current notification practice may come to be regarded as dispensable, especially in awkward cases. That is not the current intention. Nor, as I shall explain, is it at all likely in future. Not only would that involve a serious and unacceptable deviation from good administrative practice of a kind the parliamentary commissioner would certainly not approve, but the courts in any judicial proceedings would clearly be hostile to any such failure on the part of the Secretary of State. That would particularly be the case since failure to take reasonable steps to attempt to notify the outcome of deliberations may enable an individual to mount a claim for infringement of his rights under Article 6 of the European Convention of Human Rights.

However, where notification for whatever reason has not taken place, the cardinal point I should register with the House is that no one in that position will have their appeal rights curtailed. That is because it is intended to use the regulation-making power under Clause 9 to provide that an individual's ability to appeal to the tribunal from a decision by the Secretary of State will run from the time when he may reasonably be deemed to have learned of the decision.

Moreover, without having to appeal, the individual will also have recourse under Clause 1(3) to invite the Secretary of State to remove his name from the list on the grounds that he should not have been included in it. For example, the individual may be able to bring fresh relevant material before the Secretary of State to consider of which the department had not previously been aware because the individual had not been aware of the proceedings. Following such representations, the Secretary of State could, if he considered it appropriate, remove the name from the list without any necessity for an appeal.

The noble Lord, Lord Elton, raised the point relating to Clause 7(1) about the potential duty to inform an applicant why employment is refused. I am advised that no specific duty is necessary. There is certainly no ECHR requirement. An individual will be informed that the positive check has been made, but that will also occur when the criminal record bureau one-stop shop is running.

The noble Earl, Lord Howe, raised—

Lord Elton

My Lords, my anxiety was not to satisfy the requirements of the ECHR provisions but to protect individuals who may not have benefited from the letter which was sent by registered post to the last-known address if they were not pursued by it to another address.

Lord Hunt of Kings Heath

My Lords, I hope that the point has been met by the fact that an individual would be informed that a positive check had been made.

In relation to the question raised by the noble Earl, Article 6 of ECHR requires the Secretary of State to apply a fair and reasonable procedure when determining civil rights. If we fail to inform the individual of the Secretary of State's decision, that arguably may enable that individual to commence a claim under the ECHR. I hope that clarifies the point for the noble Earl.

Perhaps I may take this opportunity to repeat the offer made by the noble Lord, Lord Laming, in Committee. I know that the Secretary of State will be glad to ensure that steps are taken to consult the noble Earl, or any other Member of the House, over the way in which these matters may be dealt with in the detailed guidance that it is intended to prepare on the implementation of the Bill. The best way of doing that may be at the draft stage of the guidance preparation, so that there may be satisfaction before the event over how this area of difficulty, and any other, is to be tackled.

2.30 p.m.

Lord Laming

My Lords, I am grateful to the noble Earl, Lord Howe, for allowing this further debate on such an important issue. I am also grateful to the noble Lord, Lord Stewartby, for his generous comments. I do not know whether he was out of order at the time, but he provided a nice counterbalance to the criticism that the noble Earl quite rightly made about my earlier comments, when I used the word "inconceivable". That was an ill chosen word, as I readily accept. I should have said "very rare" rather than "inconceivable". The Bill allows for people disappearing and resurfacing at another time. It also allows for new information to surface at a later stage leading to inquiries that the individual may not be aware of at the time.

That takes me to the heart of what I wanted to say: we need to remind ourselves that the purpose of the Bill is to protect children from harm. As was said in earlier debates, some people who prey upon children, who seek to take advantage of children and who misuse their power and authority over children are also capable of some extremely devious behaviour. Deviousness can lead to people disappearing from the scene and re-emerging at a later stage, sometimes pretending that they have been engaged in purposeful activity of a perfectly reasonable nature when they have not. For that reason, as the Minister has said, we need to strike a balance between being fair to such individuals, but also keeping before us the overriding need to protect children.

I am grateful to the Minister for his lengthy response to the points made by the noble Earl. I hope that it will be possible for the noble Earl to accept that the details of the procedures, which will be covered by regulation, will make sure that the Secretary of State is not put into a position where he could be challenged for having failed administratively to deal with these matters in a proper and thorough manner. The last thing that the Secretary of State would want to do would be to find himself or herself criticised for having failed to address normal procedures. By putting the procedures in regulations, the Secretary of State's position would be made that much more difficult if those procedures were not followed.

While repeating that the procedures will be subject to consultation and welcoming the views of the noble Earl, Lord Howe, at the consultation stage, I hope that the noble Earl will feel able to withdraw his amendment.

Earl Howe

My Lords, I thank both the Minister and the noble Lord, Lord Laming, for their replies, and both my noble friends for their constructive interventions. The main point to have emerged is that conformity with the European Convention on Human Rights need not be seen as requiring an explicit provision in a Bill or indeed even in guidance but is dependent on what is actually done by the Secretary of State in practice. That is helpful.

I am grateful to the Minister for offering to let me have sight of a copy of the draft guidance. I welcome that. In the light of what both noble Lords said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe moved Amendment No. 2:

Page 3, line 1, leave out ("of the opinion") and insert ("satisfied")

The noble Earl said: My Lords, in moving Amendment No. 2, I shall speak also to Amendment No. 3. In Committee I asked the noble Lord, Lord Laming, whether he could explain to me why there is a difference of terminology between Clause 2(7) which covers the considerations underpinning the Secretary of State's decision to list an individual and Clause 1(3) which gives the Secretary of State power to remove a person from the list in circumstances that demonstrate that there has been a clear miscarriage of justice in the initial decision to list.

Clause 2(7) specifies that the Secretary of State must be "of the opinion that" and Clause 1(3) uses the term, "satisfied that". My understanding from the noble Lord's reply and from the letter kindly sent to me last: week by the Minister—for which I thank him—is that when the Secretary of State takes the decision to remove someone from the list, he sits in a quasi-judicial role, weighing up all the evidence on both sides. The word "satisfied" is appropriate in that context, as it is for Clause 4(3) which covers the role of the tribunal. The initial decision to list, on the other hand, does not involve a process of quite that nature. The noble Lord, Lord Laming, said, He [the Secretary of State] does not consider the merits of the case … 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".— [Official Report, 11/6/99; col. 1679.]

Two points arise from that. One is the significance of the words, "is of the opinion". What deliberative process is required of the Secretary of State when he takes a final decision to place someone's name on the list? How is that different from the process required of him under Clause 1(3)? In what sense does he not consider the merits of the case?

The noble Lord, Lord Laming, kindly wrote to me on this issue on 22nd June, and I am grateful to him for that. He explained that what he meant was that the Secretary of State would not undertake a fact-finding role. By that I take him to mean that the Secretary of State will not be required to set about gathering evidence for himself outside that which is furnished to him by the parties. Perhaps the noble Lord will confirm that interpretation.

I shall be grateful also if the noble Lord can elaborate further on the implications of Clause 2(7) as a whole. From the noble Lord's reply in Committee, it sounded as though the key determinant of a decision to list is the Secretary of State's opinion with regard to the matters set out in subsection (7)(a), that the organisation reasonably considered the individual to he guilty of misconduct … which harmed a child or placed a child at risk of harm".

The conclusion which follows from a literal interpretation of the noble Lord's remarks, especially his use of the word "therefore". is that once the test in subsection (7)(a) is passed, there is very little more to be done, because that will be both a necessary and a sufficient condition of a tick in the box under subsection (7)(b). I find that explanation slightly surprising. It is not how I read the Bill. Subsection (7)(b) seems to me quite distinct from subsection (7)(a) and not dependent on it in any way.

In the light of the noble Lord's earlier comments I shall be grateful to know what it is that subsection (7)(b) adds to subsection (7)(a), given that, as I understand it, the Secretary of State does not undertake an independent fact-finding exercise. If subsection (7)(b) involves him doing something over and above subsection (7)(a), can the noble Lord explain what it is? I beg to move.

Lord Elton

My Lords, I apologise again for asking a question to which I almost certainly ought to know the answer. But from my standpoint it is important. For the legislation to come into effect, two things have to be satisfied: first, the Secretary of State has to consider that a person is not fit to work with children; and, secondly, that person has to be employed by a childcare organisation. In the interpretation clause, a childcare organisation is described under three headings, the first of which includes the provision of social services or the "supervision of children". My question is: under what category does the function of "mentoring" come? It is not normally described as a "social service" and a mentor does not in fact supervise.

If one then looks further into the clause, one sees that "employment" is defined as "whether paid or unpaid", with various other qualifications being set out thereafter. Again, I cannot quite accurately place within that the position of a person who is working voluntarily and unpaid as a mentor of children under arrangements made by a charity, which does not actually employ him but which keeps a close eye on his work and very often trains him. My interest in this is that I am chairman of the DIVERT Trust. I repeat my apology for not having discovered this point before I came into the Chamber.

Lord Hunt of Kings Heath

My Lords, I thank the noble Earl for allowing us to discuss this matter again. He has identified differences in language. I hope that I can persuade him that the different emphasis in language actually helps to draw a useful distinction between the various actions that have to be taken.

On the basis of the Bill as drafted, the Secretary of State will initially examine the quality of the information referred by an employer and may decide to list provisionally the individual involved under Clause 2(4), while observations are invited from both parties. The Secretary of State must then include the name in the list on a final basis if he is of the opinion that the employer has reasonably considered the individual to be guilty of misconduct which harmed a child or placed a child at risk of harm and that the individual is unsuitable to work with children.

If carried, the amendment would impose a much higher standard for inclusion on the list, implying a fact-finding role for the Secretary of State. I believe that this would risk prejudicing the protective effect of the referral and listing procedure, while pre-empting the full fact-finding role given to the appeal tribunal. I would consider this to be wholly inappropriate.

Clause 4 provides that there should be access to a tribunal. The tribunal will undertake a fact-finding role to determine whether the person was guilty of the misconduct which harmed a child or placed a child at risk of harm and whether the person is unsuitable to work with children. This amendment would mean that that exercise would be undertaken twice. It is, therefore, unnecessary.

It may also be helpful if I explain that the role the Secretary of State carries out in Clause 2(7) is also distinguished from the test that he carries out in Clause 1(3) in the context of being satisfied that an individual should not be included in the list, such as when new evidence comes to light or a criminal conviction is overturned. In such cases, the relevant evidence must be looked at afresh in the light of the new evidence which has been presented. To that extent, the Secretary of State's role would appear to be more in line with a quasi-judicial function, hence the need to be "satisfied" rather than "of the opinion". As your Lordships will consequently see, there exists a hierarchy of somewhat different tests within the Bill which, in turn, reflect the various functions being carried out within it at a given point, including that in Clause 2(7).

In addition, it has to be seen that Clause 2(7) provides two stages of a test. In answer to the point that the noble Earl raised, I can say that the second test is important. If the first test in subsection (7)(a) is met, it is not a foregone conclusion that the second stage will also be met; that is to say, that the individual is unsuitable to work with children. That will involve a separate and additional consideration.

I turn to the second amendment. Essentially, the purpose of Amendment No. 3 is to impose upon the Secretary of State a more restrictive criterion for deciding whether finally to list an individual than that currently catered for in the Bill. I emphasise that point. First, he has to be, of the opinion that the organisation reasonably considered the individual to be guilty of misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm However, as I have said, this is not enough to warrant listing. He then has to decide that the above actions make the individual, unsuitable to work with children". Great efforts have been made in the Bill to balance the overriding need to protect children with the need to introduce safeguards—as far as that is reasonable—to protect the rights of the individual.

As this part of the Bill currently stands, when forming an opinion over whether an individual should be listed, the Secretary of State will consider whether the misconduct in itself is sufficient to warrant banning the future scope for an individual to work with children. This is a serious decision bearing in mind all that the ban carries with it. Clearly no two cases will be alike. There will invariably be instances—perhaps few in number—where misconduct, while putting a child at risk of harm, or indeed leading to harm, exceptionally took place in circumstances which led the Secretary of State to form an opinion that the door on future employment with children should not be closed.

The noble Lord, Lord Elton, referred to mentoring. If a mentor has access to children and satisfies the conditions of being engaged in a childcare position, he or she will fall within the provisions of the Bill, although I think that that would need to be assessed on a case-by-case basis. Conceivably mentors will be included in the definition, and probably rightly so, but I would be happy to write to the noble Lord with fuller details and discuss the matter with him if he has further concerns on that matter.

2.45 p.m.

Lord Elton

My Lords, I thank the noble Lord for putting that on the record. I point out that this is a large, growing practice. It exceptionally puts children and adults together in positions in which the child can be exploited. If the Bill does not cover that point, that is a matter for concern.

Lord Meston

My Lords, the Minister mentioned differences in language. I well understand what he was saying. Can he confirm my understanding that the exercise which the Secretary of State has to undertake under Clause 2(7) would itself be capable of judicial review? Clearly the exercise is futile—as the noble Earl indicated—if the Secretary of State merely "rubber stamps" an organisation's decision. I assume that that is not the intention of the Bill and that, whatever the phraseology, the Secretary of State will reach his opinion independently.

Lord Hunt of Kings Heath

My Lords, I confirm that judicial review would be available.

Lord Phillips of Sudbury

My Lords, I ask the Minister whether I have the matter right or wrong because this is an important issue. In answer to the noble Earl, Lord Howe, he seemed to be saying that as between a complete and thorough-going review of the evidence at one extreme and rubber stamping at the other Ministers could engage in some kind of middle way. I think that at the beginning of his reply the Minister talked about the Secretary of State looking at the quality of the evidence that was brought before him by the informing organisation. I think the consequence of that would surely be that—as indeed the Minister indicated—he would be quite content to leave the tribunal to judge more fully, and with greater sensitivity, whether or not the person concerned should be on the register. That in turn would surely mean that the risk—if I can use that term—of innocent adults finding themselves on the register is greater rather than lesser precisely because the involvement of the Secretary of State in looking at the information that has been put before him—as I understand the matter, but this is what I query—is on a kind of middle level rather than a more intense level.

That in turn has huge importance for those who may be the subject of all this, because if they ever get to the point where they must make an appeal to the tribunal, the expense and the public pain of being in that position and having to appeal will be extremely serious. If no legal aid is available, as appears to be the case, the consequences in turn are very extreme for an individual adult in that position. I am sorry to have asked such a tortuous question, but there is a secondary issue here in terms of doing justice to those who are potentially in danger of being on this list and in terms of the manner in which it is being dealt with.

Lord Hunt of Kings Heath

My Lords, perhaps I may gently point out that we are on Report stage at present. The whole construction of this Bill is delicately balanced between the overriding need to protect children and the need to ensure that an individual's rights are also protected. This Bill introduces a very important right: to appeal to a tribunal against the decision to include a person on the list. I do not think that we should forget the safeguard that that right entails.

As regards the hierarchy of decision making, which the noble Earl pointed out, in paragraphs (a) and (b) of Clause 7(1) the Secretary of State is not making a finding of fact. He is forming an opinion, first, as to the reasonableness of the employer's position and, secondly, as to whether the individual is unsuitable to work with children. He is not mounting a full investigation into the facts. That is for the tribunal to do, if an appeal is so made, and the tribunal will then undertake a fact-finding role. That is the reason for the difference in language. I hope that it helps to show how the distinction is drawn between the two functions.

Lord Laming

My Lords. we have had a very helpful debate, and there is not a great deal more that I would wish to add except to reassure the noble Lord, Lord Elton, that if mentors operate through a corporate body, as in the example that he gave, they would certainly be covered by this Bill, as would Boy Scout leaders and many other people who voluntarily give their time as part of an organisation which has frequent and regular contact with, and provides services to, children.

Turning to the points raised by the noble Earl, Lord Howe, on paragraphs (a) and (b) of Clause 7(1), I think it is important, as the Minister has made clear, to have these two tests because it is possible for an organisation to have considered very reasonably and properly the misconduct of an individual. But there is a second test as to whether or not that behaviour is of sufficient severity to make the individual unsuitable to work with children. I have hesitated throughout these discussions to give examples, because that is always dangerous, but perhaps I may offer two examples as illustrations.

There are detailed regulations about bathing vulnerable people and protecting them from harm. It is conceivable that somebody may ignore the regulations and place a child in a bath of scalding water, causing immense harm to that child. It may well be shown that that person disregarded important regulations that had been designed to protect children from harm, so that the. facts may not be in dispute as to either the event happening or the regulation being ignored.

The second test is whether or not that person behaved in such a way as to make him or her unsuitable to work with children. That would depend upon a whole range of other matters being considered. A similar example would be someone taking children sailing or canoeing without having first checked the availability and effectiveness of the safety equipment. There are proper regulations to prevent disasters occurring. If a disaster occurred, that would be tested under subsection (7)(a); and whether or not a person was suitable would be considered under subsection (7)(b).

The test is to make sure that these two elements are properly considered. As to the wording "satisfied" or "of the opinion", I support what the Minister said. It is very important that the Secretary of State should not pre-empt the work of the tribunal and that we should hold to the distinction of their respective roles. Having said that, I hope the noble Earl will not press the amendment.

Earl Howe

My Lords, this has been a useful debate which has served to clarify a very important aspect of the Bill and the way in which its provisions will work in practice. The Secretary of State is clearly neither a rubber stamp nor a tribunal in his own right; nevertheless, he will exercise his judgment and will form an opinion on the information placed before him. I am particularly grateful for the explanations which have been given about the force of subsection (7)(b) and for the useful examples quoted by the noble Lord to illustrate the process. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Clause 4 [Excessive delegation of powers]:

Earl Howe moved Amendment No. 4:

Page 4, line 15, at end insert ("; or () with the leave of the Tribunal, his continued inclusion in the list following the dismissal of an appeal under subsection (3) below.")

The noble Earl said: My Lords, in moving Amendment No. 4 I shall speak also to Amendments Nos. 5 and 6.

We had a lively and interesting debate in Committee on the very important issue of whether it is right for the Bill to contain no mechanism whatever to enable a person who has been listed and who has lost an appeal to the tribunal to apply to have his name removed from the list on the strength of his subsequent good conduct. The main point I made then was that putting someone's name on a blacklist for life may be further than we would wish to go in certain exceptional cases—I stress not in a case involving a wilful child molester but rather in a case involving a man whose conduct amounted to inexcusable inadvertence or gross incompetence.

The noble Lord said in debate last time that he felt the term "misconduct" denoted something that was deliberate and determined. He has kindly written to me since then to make it clear that "misconduct" could involve an act of omission as well as commission, which was my previous understanding of the term. A thoughtless act or one committed in ignorance of the likely outcome could in some circumstances amount to misconduct.

The example to which the noble Lord has alluded was given in another place. It concerned the owner of a business providing adventure training holidays who allowed a group of children to go out to sea without proper training, without life-jackets and in boats that were unseaworthy; several children drowned. It was said that this man was guilty of criminal negligence—and that may certainly have been so—but his employee, the man who accompanied the children out to sea, was said to be incompetent because he did not realise the seriousness of the situation and did not question his own actions. That is a very interesting example. It does not involve someone wilfully harming a child or wilfully placing a child at risk of harm. There is no deliberate intent; it is a serious act of omission. In a case such as this it is quite possible to imagine the employee being dismissed for misconduct and subsequently being listed.

If, after an unsuccessful appeal to the tribunal, that man were to demonstrate over the next 15 or 20 years that he had matured and gained in experience and, having spent time in helping children's voluntary groups such as the scouts, he had proved himself to be thoroughly reliable and trustworthy, what ought we to say to him if he were to come to us asking for a chance to prove to the tribunal that he should no longer be considered a risk to children? Under the Bill as drafted he would have absolutely no recourse to the tribunal, let alone to the courts. The stigma of being included in the list is his for life.

I recognise that all examples are to an extent artificial, but I seriously question whether the situation I have described is consistent with natural justice or the high standards of civil liberty on which we rightly pride ourselves in this country. The noble Lord may say that the kind of provision I have allowed for in my amendments, which essentially create a further ground of appeal to the tribunal, would open the floodgates to all manner of inappropriate appeals, from child molesters and so forth. I believe it would be possible to obviate that difficulty by making leave to appeal dependent on the prior agreement of the tribunal, exactly as already set out in Clause 4(1)(b). That is what I have proposed.

I remind the House that the Bill provides for an employment blacklist to be established by means of an administrative rather than a judicial procedure. It is a convenient system and we can justify it in the interests of children. But there have to be proper safeguards. The tribunal, whose importance I in no way belittle, at present has a role only in hearing an early appeal. There is a strong case for broadening its role in the way I have described. I beg to move.

3 p.m.

Lord Phillips of Sudbury

My Lords, I associate myself very strongly with the remarks of the noble Earl, Lord Howe. The impact on someone put on this register will be little different from, and in some cases worse than, being convicted before a criminal court. The consequences in terms of reputation and livelihood could not be more acute. To that end I was disappointed by the fact that the previous amendment was not carried.

The interests of children are paramount, but the interests of justice are no less paramount. Therefore, to give someone put on the list the opportunity in the circumstances described to, in effect, clear his name after the passage of time must surely be right. I strongly support the amendment.

Lord Hunt of Kings Heath

My Lords, this is a serious point. I agree with the noble Lord, Lord Phillips, that to appear on the list is a serious matter for the individual concerned. However, as he also said, the interests of the child are paramount. The Bill as drafted reflects those concerns. The very inclusion in the Bill of a right to appeal to the tribunal is a reflection of the ability of the individual to appeal.

Clause 1(3) contains provision that the Secretary of State may at any time remove an individual from the list if he is satisfied that the individual should not have been included in it. That reflects the fact that if new evidence came to light which suggested that the original decision should not have been made the Secretary of State could remove that person from the list.

I turn to the point raised by the noble Earl. He was concerned—he gave an example—about the position of those who may have found their way on to the list early in life, perhaps because of some youthful indiscretion or momentary act of immature carelessness. He asked whether it is right that they should never be able to have such a decision reviewed, even years later when they claim that they have developed into solid citizens. If that were likely to happen, there would indeed be justifiable concern. However, I shall seek to show that that is not the object of the Bill and that it is not expected or desired that its provision should operate in that way and that there are means to prevent it doing so.

It may be helpful if I describe how the process of inclusion in the list works. An individual may only be listed where, in the first place, the employing organisation has, on grounds of misconduct which has harmed a child or placed a child at risk of harm, dismissed, transferred or suspended the individual. The Secretary of State has decided from the information submitted by the referring organisation that it may be appropriate for the individual to be included in the list. Thereafter, observations of the individual and, as necessary, the observations of the referring organisation are sought and considered by the Secretary of State, together with any information which he thinks relevant; and the Secretary of State is of the opinion both 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 and that the individual is unsuitable to work with children.

If fresh evidence comes to light, individuals listed may at any time ask the Secretary of State to remove their names from the list on the grounds that they should not have been included in it. There is a right of appeal to the tribunal, which must consider merits afresh, both against decisions by the Secretary of State to include an individual in the list and against decisions by him to refuse to remove names on the grounds that they should not have been included in it.

I hope that I have demonstrated that listing for what amounts to no more than acts of youthful indiscretion is neither a desired nor a likely outcome. On the contrary, the whole character of the changes made to the Bill following its introduction in the other place have been to adjust the balance so that that kind of outcome would be the least likely, especially granted the reliance now on the single misconduct test, backed up by the statutory consideration processes and an independent, strong and thorough-going appeal system.

It may also be helpful if I refer to the purpose of the guidance that the Department of Health intends to issue. It will indicate, among other things, how referring organisations may approach their task. Such guidance would include advice which, for example, could explain that Parliament's concern on the same point made in another place had led to the dropping of "incompetence" from the grounds for referral, and that although the remaining misconduct criterion was able to comprehend gross incompetence, it was clear that Parliament, on the basis on what had been said in this House as well as in the other place, did not expect the provisions to lead to listing for trivial matters.

The guidance could then be expected to spell out some of the features of misconduct which needed to be considered before reference was made, such as the relative experience, as well as the age, of the staff concerned, the extent of the training given and the quality of management supervision and control.

Further, it is intended that the guidance should be made available to interested parties in draft. That will provide an opportunity for it to be reviewed and changed as necessary to reflect any remaining reasonable concerns. What cannot be said at this stage is that there can never be circumstances where persons, let us say, thoughtlessly harming a child or placing a child at risk of harm could find themselves on the list. Acts of omission, as well as commission, could conceivably justify inclusion on the list.

As the noble Earl, Lord Howe, indicated, the problem with hypothetical examples is that they are just that. It would be wrong for Parliament to seek to fetter the future discretion of referring organisations, Secretaries of State and tribunals while simultaneously instructing them to consider each case according to its particular merits in an overall structure in the rest of the Bill which Parliament does not seek otherwise to disturb.

I hope that the noble Earl will recognise that this matter has been given considerable thought and that safeguards are present to ensure that a person who appears on the list will only do so after very careful consideration.

Lord Laming

My Lords, the Minister has given a full reply to the points that have been raised. I should like to make a couple of brief comments in addition. The noble Lord, Lord Phillips, is quite right in saying that appearing on one of the lists or the list, when it becomes the list, is a serious matter. It is for that reason that the debate we have just had in relation to paragraphs (a) and (b) of Clause 2(7) is part of the way in which the Bill provides a balance between the protection of children and providing safeguards for members of staff against whom complaints or allegations are made.

It is a serious matter. Therefore, the procedures that will be linked with the Bill will have to demonstrate that matters have been handled with great care and thought and that the safeguards that are built into the Bill in relation to appeals will also be properly handled by a tribunal. That tribunal will be independent and its members will be appointed by the Lord Chancellor.

I emphasise that the Bill is not a bar to employment; it is simply a bar to people working with children. All the cases will be handled on a case-by-case basis, taking into account the circumstances. But I emphasise that the Bill aims to ensure that only serious behaviour—I do not need to go into detail—will fall within the purview of the Bill. For that reason, in another place, the issue of incompetence was dropped from the Bill. In those circumstances, I hope that the noble Earl feels that the points he raised have been adequately responded to and that he will feel able not to press the amendment.

Earl Howe

My Lords, once again, I thank all noble Lords who have taken part, including the noble Lord, Lord Phillips. I very much appreciated his supportive remarks.

I remain uneasy about the absence from the Bill of any provision to allow an individual to apply to have his name removed from the list, having initially failed in his endeavour to do so, but in the light of subsequent good behaviour.

As I read it, Clause 1(3) covers the case of a miscarriage of justice, if I may encapsulate the example that the Minister gave. It is where fresh evidence comes to light to show that a person's name should never have been included in the list in the first instance. My example related to a different kind of case where a person's inclusion on the list was clearly justified in the first instance but his subsequent behaviour had redeemed him.

I also take the noble Lord's point that the Bill does not create a bar to employment for individuals; it merely prevents unsuitable people working with children. Nevertheless, we must bear in mind that to be on the Secretary of State's list is a serious stigma. For those who feel, as a matter of natural justice, that their place on the list is wrong and can no longer be justified, the burden is a heavy one to bear.

I do not propose to press the amendment. All I urge on the Minister and his department is that they bear in mind what he and I have said to each other on a number of occasions. The Bill is a building block and should be seen as one measure among, perhaps, many to come which will address the extremely important area of protecting children and balancing that protection with civil liberties. If, as the Bill takes effect, it is seen that natural justice is not served by the absence from the Bill of the kind of measure I have proposed, I hope that the omission can be addressed in future legislation which I know the Government are minded to introduce at some point. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 5 and 6 not moved.]

Clause 12 [Interpretation]:

Earl Howe moved Amendment No. 7:

Page 9, line 39, after ("mind") insert ("or degenerative mental illness")

The noble Earl said: My Lords, this amendment can be dealt with briefly. I simply seek clarification from the Minister as to the definition of "mental impairment" in Clause 12. I am not sure that when we debated Clause 10 in Committee the Minister entirely took my point. At no time did I seek to suggest that the Bill should be extended to cover all types of vulnerable adults. However, having opened up the possibility of extending its remit to those particularly vulnerable adults who might be seen as corresponding most closely to children, I believed that it was not unreasonable to look a little further than the definition in Clause 12 appeared to do.

My understanding is that, arrested or incomplete development of mind", does not encompass those conditions which are characterised by a degeneration of mental faculties, such as dementia, but rather what are usually termed severe learning disabilities. For example, if one thinks of an adult woman with dementia or Alzheimer's disease there is little to separate her from an adult woman with severe learning disabilities in terms of the other half of the definition in Clause 12, which refers to, a significant impairment of intelligence and social functioning". In terms of vulnerability, which must be the key measure, there is a very close parallel.

These are people who often cannot express themselves and whose very lives are dependent on the help and support of others. I have tabled this amendment to ask the Minister whether my interpretation of this definition in Clause 12 is right. At one point in the debate in Committee I thought that the Minister was leaving open the possibility that the definition as drafted was capable of being stretched so as to accommodate the type of case to which I have referred. I should like to think that that is so, but I should be grateful for any further clarification that the Minister is able to give. I beg to move.

Lord Hunt of Kings Heath

My Lords, I say at once that I have a great deal of sympathy with the purpose behind the amendment but I cannot recommend that the House supports it. The Bill is targeted on improving the child protection system. I do not think that it would be practical to expect the system to encompass satisfactorily the needs of a very diverse group of adults as this amendment proposes. Before any such extension can be considered along the lines suggested by the amendment further work is necessary to identify the most appropriate way to proceed.

I recognise that the Bill envisages extending protection to mentally impaired adults, but they are the one group whose position is most similar to vulnerable children and whose circumstances are clearly set out in the Mental Health Act 1983. If I gave the impression to the noble Earl at Committee stage that it could be widened in the way suggested I should not have done so and in that sense I am sorry to disappoint him. But he will be aware that the interdepartmental ministerial group under the chairmanship of the Home Office is looking at the whole question of the best way to carry forward work on protecting all groups of vulnerable adults. Given the current work that is being actively carried forward in this area, I hope that the noble Earl agrees that it would be inappropriate to pre-empt the findings of that group in the way that the amendment proposes. We have taken note of the noble Earl's remarks both today and in Committee and shall ensure that the substance of what he says is reflected to that group.

Earl Howe

My Lords, I am very grateful to the Minister and look forward with anticipation, and some optimism, to the work of the interdepartmental group. In thanking him for his explanation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

House adjourned at eighteen minutes past three o'clock.