§ (" .—(1) This section applies where the Tribunal has directed under the provisions of section 31 that a disqualification order is to cease to have effect in respect of an individual.
§ (2) A relevant person may at any time apply to the Tribunal for the reinstatement of the disqualification order.878
§ (3) An application under subsection (2) may only be granted if the Tribunal is satisfied, having regard to all the circumstances, that it is likely that the individual will commit a further offence against a child.
§ (4) Where the Tribunal reinstates an order under this section, it must state its reasons for doing so and cause those reasons to be included in the record of the proceedings.
§ (5) In this section, "relevant person" means—
- (a) the Secretary of State;
- (b) a superintendent of police;
- (c) the director of social services of a local authority.").
§ The noble Baroness said: My Lords, we now have before us another vexed issue. It relates to the situation where someone has had a disqualification order revoked but where the reinstatement of such an order is required. The tests are quite serious. If a "relevant person"—namely, the Secretary of State, a superintendent of police or the director of social services—believes that someone, who has been the subject of such a order which has been revoked, has subsequently displayed the kind of behaviour that would render him—if it were a primary offence—being made the subject of a disqualification order, then an application should be made for reinstatement of that order. My amendment seeks to secure provision for an application to be made for consideration of reinstatement of a disqualification order in such circumstances.
§ I find it quite disturbing that one of the suggestions by the Minister about this was that one should wait for an offence to be committed. That is desperate! The idea that one has to wait for a child to be molested or abused in some way, or for another person to be sexually abused, before anything can be done about reinstatement of an order is quite disturbing. When someone displays the kind of behaviour in respect of which revocation can be considered because he has lived a blameless life and reformed his ways, the argument is that revocation can be considered. However, I have the interests of children in mind. As has been said many times in this Chamber, we all know just how manipulative such people can be. Indeed, paedophiles in particular can be extremely manipulative—they can, for a time, convince all the authorities that life has changed for them and that they no longer pose a risk, but suddenly things can change. It is only right that a chief constable, the Secretary of State and/or the director of social services—all of whom would be very knowledgeable about such matters—should be able to apply to have a disqualification order reinstated.
§ I do not believe that there is any argument against the terms of my amendment. I have read most carefully what was said on the previous occasion. I have also read very carefully the letters that have been sent to me in the intervening weeks. I simply find it unarguable. If a person made the subject of a disqualification order in the first place has had that order revoked (because he has displayedthe kind of behaviour that would qualify him for revocation) but subsequently displays the kind of behaviour that causes real concern that he may be a risk to children, there ought to be a mechanism, with all the process in place, through 879 which an application could be made by responsible people, as set out in the amendment, to have reinstatement considered. I beg to move.
§ 8.45 p.m.
§ Lord Williams of Mostyn
My Lords, I am grateful to the noble Baroness, Lady Blatch, for her explanation of the amendment. As she clearly said, this would allow a disqualification order, which has been removed by a tribunal, to be reinstated, subject to the filter set out in the amendment. I certainly understand the noble Baroness's concerns. I believe that I have already declared my interest here as a former trustee of the NSPCC. I also chaired the commission of inquiry into the prevention of child abuse, which the society established.
We have sought to strike an extremely important balance. It is worth bearing that in mind. As we have drafted matters at present, the tribunal will only be able to lift a disqualification if it is positively satisfied that the affected person,is suitable to work with children".That is a very high threshold. The noble Baroness said that this should be an authoritative and responsible tribunal. Perhaps I may emphasise the fact that that is a very high hurdle. Indeed, it seems to me that very few tribunals would be content to come to a conclusion on those bases without the most positive, affirmative material. Of course, like many of us, members of a tribunal would be familiar with what the noble Baroness rightly described as the notoriously "manipulative" behaviour of many paedophiles. One reaches the stages where the lifting of the order can only occur on positive satisfaction that the person is suitable to work with children. I trespass slightly here into the next group of amendments, but there are also the time filters to consider for five and 10 years respectively.
We have considered the alternative approach. Obviously no one can listen to the concerns that have been expressed without reconsidering the situation. I understand the noble Baroness's reasons and motives, but I believe that we have got the balance right. It would be a very rare circumstance where the dangers about which the noble Baroness has spoken would arise. After all, a further criminal offence—I recognise her point on this, which is a good one—would trigger a disqualification order. However, there are other safeguards: if the individual in question were a sexoffender he or she could be prevented from undertaking the relevant work by a sex offender order. Of course, the person's criminal record remains and is, therefore, available in appropriate circumstances for scrutiny.
I return to the approach that I mentioned earlier. When one looks at Schedule 4, one can see that it represents a very wide range. I believe that we have got the balance of protection right. However, I stress that no one is capable of coming to perfect conclusions in 880 this very difficult area. We will need to keep it under regular review. Once again, I hope that that response is helpful; indeed, it was meant to be so.
§ Baroness Blatch
My Lords, the noble and learned Lord's response was partly helpful, but no more than that. At paragraph 53 of the portmanteau letter sent to me by the Minister, the noble Lord, not surprisingly, uses almost the same words as those just used by the noble and learned Lord. The noble Lord says:The Government are faced with a choice of options. As drafted at present, the Tribunal can only lift a disqualification order if it is positively satisfied that a person is suitable to work with children".I understand that there is no appeal against this. If the tribunal comes to the wrong view and decides that someoneshould have a disqualification order lifted, that is the end of the matter and it is lifted. I have in mind the fact that members of a tribunal are not infallible: they can make mistakes. If that person goes on to display the kind of behaviour that presents a risk to other people, it seems to me that there ought to be some way through the judicial process to apply for reinstatement of the order. Such a matter would be in the hands of very responsible people, as set out in my amendment, and the tribunal would also have to take a view based on the evidence put before it.
However, in paragraph 54 of the Minister's letter, there is the most depressing sentence:This difference has a crucial impact on the process by which the Tribunal could reinstate the disqualification. In our view, this would represent a new disqualification".So what? If it were merited, that would not be a problem; indeed, one would not need to apologise for it. In other words, such an order should only be made if the person re-offends. That is very cold comfort for the victim, or for those who are concerned about young people being offended against in this way. In the interests of protecting children, I really believe that the Government should reflect on the issue. I hope that they will do so. Icertainly intend to return to the matter on Third Reading. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 33 [Conditions for application under section 32]:
Baroness Hanham moved Amendment No. 51:
Page 16, line 18, leave out ("he is released") and insert ("the sentence passed on him expires").
§ The noble Baroness said: My Lords, in this amendment we return to a matter that we tried to discuss in Committee; namely, the date at which the person who has been made the subject of a disqualification order can apply to have it reviewed. Under the terms of the Bill, this can take place under Clause 33(3)(a) after five years from the date of release from custody, or the date that the disqualification order was made, if the offender is under 18 years of age, and after 10 years if the person is over 18.
§ The amendment proposes that the date when application for review can be made should be five or 10 years respectively from when the sentence passed expires. We all know, especially as regards custodial 881 sentences, that the term served is considerably less than the sentence imposed. In our previous discussions on the matter the Minister was at pains to explain that consideration should be given by the tribunal to the time that a disqualified person had been free, under supervision, in the community as part of his sentence, even though that time was well within the terms of the sentence. However, that time would inevitably be spent either on licence or under probationary supervision and as a result may well not accurately reflect the true nature of the person concerned.
§ As the Minister said on the previous occasion we discussed the matter—a statement with which I concur—the whole purpose of a disqualification order is to protect children. Rehabilitation of the offender may indeed be a purpose but under these circumstances it cannot be the primary requirement; the safety of children is. Therefore we believe that no abdication should be made until five or, respectively, 10 years after the sentence expires, following which, of course, the tribunal would still have to be satisfied—as we have discussed under a previous amendment—that the disqualified person had fully demonstrated he was no longer a danger to children. The purpose of the amendment is to change those timescales. I beg to move.
§ Lord Williams of Mostyn
My Lords, I am most grateful for the moderate way in which this amendment has been moved. At the risk of tedium I return to the rigorous nature of the two-stage process. As noble Lords know, first an offender must have leave from the tribunal to apply for review of the disqualification order. That is extremely important. It is a critical threshold to be overcome. That leave can be given only if the tribunal is satisfied that the individual's circumstances have changed sufficiently during the period in question to justify even reconsideration of the disqualification. The offender needs to get beyond that stage and still has positively to demonstrate suitability to work with children. If the tribunal is not so satisfied, it must dismiss the application. As the noble Baroness rightly said, the date we are talking about is the date at which the individual can first approach the tribunal; that is, 10 years and five years respectively. Therefore, first he has to obtain leave and then he has to demonstrate that he is positively suitable to work with children.
One of the difficulties we have encountered is that it is really the record in the community that matters, not what happens in prison. Again I think that we all in this House are uneasy in the knowledge that quite a lot of sex offenders are exemplary prisoners. That is one of the curiosities of the prison system. It is the record in the community that ought to matter, not what they did in prison.
There is one aspect that I need to draw to noble Lords' attention. It is not fundamental in what I suggest. The measure would mean that those who had received a life sentence—those eligible for life sentences can vary infinitely—would never be eligible to make the application we are discussing. Therefore I do not think that the spirit of our approach is entirely 882 different. I think that the leave, the 10-year period and the strict onus constitute proportionate protection in these circumstances.
§ Baroness Hanham
My Lords, I am grateful to the Minister for his reply. I shall consider it carefully. I say only what is blatantly obvious; namely, that the people we are concerned about here are likely to be among the most serious offenders within the criminal justice system. To give way at any stage or to give any leeway does not seem either helpful or positive in terms of the protection of the children whom we seek to protect. The amendment would impose a statutory period at which the application for revocation could be made rather than—if I can put it this way—a "wobbly" time as everyone is released at different stages and spends a different amount of time in the community depending on the length of their sentence. As I say, I am grateful to the Minister for his response. I shall consider it further and perhaps return to the matter on Third Reading. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 34 [Persons disqualified from working with children: offences]:
Baroness Blatch moved Amendment No. 52:
Page 16, line 46, at end insert ("or performs on a casual basis (whether for financial reward or not) any functions which would constitute work in a regulated position").
The noble Baroness said: My Lords, what I seek here is clarification—dot and comma, as it were—of the answers that we received in Committee. The noble Lord, Lord Bassam, said:
The definitions in Clause 37—
that is now Clause 34—
cover work of any kind, whether paid or unpaid. Any casual work that falls within the regulated positions defined in Clause 34 will be covered. I hopethat the noble Baroness will accept my assurance".—[Official Report, 4/10/00; col. 1542.]
I need to be convinced by references to the actual words that achieve that. We are concerned about people, both paid and unpaid, but in particular unpaid people, who work part-time with young people in a voluntary capacity, perhaps even in an honorary position. Often those peripatetic people are more worrying in terms of possible risk to children.
The Minister further said at col. 1542:
The current definition will catch any casual worker who comes into regular contact with children".
I have read and reread the clause which is supposed to explain everything but I am not yet totally convinced about the matter. If the Government are right and anyone in a paid or unpaid position, voluntary, regular or irregular, who comes in contact with children on a regular basis and gives cause for concern is caught by the measures of the Bill, I shall rest assured. However, the reply I was given on 4th October did riot do that. I look to the noble and learned Lord to put that right. I beg to move.
§ Lord Williams of Mostyn
My Lords, the noble Baroness's request is a perfectly reasonable one. 883 I invite her to look at page 21 of the Bill. Clause 39 is headed "General". I hope that I can give her the answer she seeks. Line 25 of page 21 states:'work' includes—(a) work of any kind, whether paid or unpaid and whether under a contract of service or apprenticeship, under a contract for services, or otherwise than under a contract … and 'works' is to be read accordingly".Clause 34(1) states at page 16:An individual who is disqualified from working with children".We need to read Clauses 34 and 39 together. It seems to me that the work definition in Clause 39 is wide enough, apt enough and appropriate enough to meet the noble Baroness's concerns. I hope that my answer has been of assistance and that it is a helpful answer to the question that she most reasonably put.
§ Baroness Blatch
My Lords, I am certainly more reassured than I was. However, I hope that the noble and learned Lord can clarify whether this would include, for example, someone who is brought in temporarily by a scout leader to work with scouts or someone who is brought into a classroom temporarily, not necessarily contracted. Many parents and third parties enter classrooms to help. They are not contracted but they are nevertheless in direct contact with children. They are not in loco parentis, as the teacher, the teacher's assistant or someone under a contract of service or apprenticeship would be—or otherwise than under a contract".Do the words,otherwise than under a contractsubsume the kind of casual contact that a particular person would have with children in those circumstances?
§ Lord Williams of Mostyn
Yes, my Lords. That is why work has been defined so widely. Clause 39(1) states:'work' includes—(a) work of any kind, whether paid or unpaid and whether under a contract of service or apprenticeship, under a contract for services, or otherwise than under a contract".Therefore the casual volunteer, for example, looking after children in an adventure playground on a regular basis, perhaps once or twice a week, or even intermittently, would be covered. That is why we have drawn the definition of work as widely as we possibly can.
§ 9 p.m.
§ Baroness Blatch
My Lords, I am grateful. I am reassured on that point. I do not know whether it is possible to have a cross-reference between Clause 34 and the line on page 21. However, even if that were not possible, I now know that under the law my concerns would be covered. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.884
§ Clause 35 [Disqualification in Scotland or Northern Ireland]:
Lord Williams of Mostyn moved Amendment No. 53:
Page 18, leave out lines 30 to 32 and insert—
("( ) member of a relevant local government body,").
§ The noble and learned Lord said: My Lords, Amendments Nos. 54 to 58, 62 and 63 are grouped with the amendment.
§ These are minor amendments which add to the definition of "working with children" in Part II of the Bill. The two sets of amendments are additions or changes to Clause 35. It sets out the new definition of working with children from which disqualified persons are banned. These amendments add to or alter Clause 35(6). We have tried to include positions where there particular position of trust and respect, where the holders of those positions may have the right to go into, for example, schools or voluntary groups without supervision as a consequential privilege of that position. The children and parents may well look up to them and respect them as "safe" members of the establishment.
§ We have sought, therefore, to expand the list in the context of children's services. There is one exception which noble Lords will have seen which relates to "directors of social services". We came to the conclusion that children are only a part of their responsibility but it is a central, critical role. The possibility of abuse or cover up where things go wrong is very great.
§ We have therefore added to the list members of the Youth Justice Board and the children's commissioner and deputy children's commissioner for Wales. Those all fall within the boundaries that we have been discussing.
§ The second set of amendments is a little more complex. We spoke earlier about social services and educational functions within local government. The question was raised whether the existing definition went sufficiently far. It was a fair question. We came to the conclusion that we should widen the definitions and categories in order to meet the legitimate concerns that have been raised on earlier occasions. With that explanation, I beg to move.
§ On Question, amendment agreed to.
Lord Williams of Mostyn moved Amendments Nos. 54 to 58:
Page 18, line 35, at end insert—
Page 18, line 37, at end insert—
("(6A) For the purposes of subsection (6) a person is a member of a relevant local government body if—
Page 19, line 3, at end insert—
("( ) Any reference in subsection (6A) to a committee includes a reference to any sub-committee which discharges any functions of that committee.").
Page 19, line 28, after ("section") insert—
(""area committee" has the same meaning as in section 18 of the Local Government Act 2000,").
Page 19, line 29, at end insert—
§ On Question, amendments agreed to.
§ [Amendment No. 59 had been withdrawn from the Marshalled List.]
Baroness Blatch moved Amendment No. 59A:
After Clause 38, insert the following new clause—
(" . After section 1 of the Indecency with Children Act 1960 (indecent conduct towards young child), there shall be inserted—