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Mr. Hammond: I seem to remember that we discussed this matter in Standing Committee. If my right hon. Friend's amendment were carried, would there not be a danger of a perpetual ping-pong? The Secretary of State is required to invite observations from the individual on information submitted with the reference, but, if he has to submit observations from the individual back to the organisation, and the organisation's observations back to the individual, the process could potentially become a method by which the individual could delay progress in determining the outcome.
Mr. Maclean: As my hon. Friend describes it, that would be the case, but I want to avoid it. I am happy to say that my amendment is a probing one, and is trying to deal with a point in principle. If, as drafted, it would result in a never-ending ping-pong, that is unacceptable and I do not want that. I do not want a ping-pong over five or six months. Perhaps we should impose time limits or require that there should be only two referrals or one claim and counter-claim. I am not sure about that, but I am fairly certain that the present situation may not be entirely fair.
This is a drastic step. If an individual is referred and it sticks, he will be on a nasty blacklist, and rightly so. We may refer to it as the Department of Health list, but we
know what the press and the media will call it: it will be called the perverts list of total unemployables, who will be regarded as the vilest people on this earth. Some of them are the vilest people on this earth, but it is important that people referred for inclusion on the list are allowed to offer some defences. I think that the individual should have a chance to say, "I am sorry; the allegation is not justified. These are the facts." Perhaps it should stop there, rather than bouncing back two or three times.
The only other comments that I wish to make relate to other amendments that I have tabled, but, in a different form, were drafted more ably by the hon. Member for Stourbridge. We have made excellent progress today, and much of what we will discuss before Third Reading--now that we have dealt with new clause 1 and this group of amendments--is technical; but there is an important point of principle. Is there a case for limiting the period for which the clause should apply?
Having read the report of the Committee stage, I concluded that the Government, and the hon. Lady, felt that, although it often takes years for information about misconduct to become available, there was no reason why such information should not be acted on if there were sufficient grounds for action, and if special care was taken in regard to the quality of the evidence in particularly old cases. That is all right as it stands, but I need to know from the Minister what constitutes a particularly old case. Is it five years--a period that was mentioned in Committee--10 years or 15 years?
I also want to know what constitutes special care. The Government say that they wish to act--or the Minister may wish to make his decision--provided that, in a particularly old case, special care is taken to ensure that they get it right. Perhaps this is just a case of loose terminology. We think that we all know what "special care" means, but do the Government intend to provide internal guidelines to deal with particularly old cases, and to ensure that "special care" means exactly that? I should also like to know whether they have made any assessment of the implications for compliance with the European convention on human rights.
Like clause 2, the amendment includes a requirement to refer an individual to the Secretary of State when the organisation concerned
I see from the Order Paper that an early-day motion has been tabled by hon. Members who are critical of an organisation--it is not involved in child care--that has, in their view, ruthlessly sacked 300 employees at Heathrow for no good reason. Some organisations decide to dismiss staff quickly and ruthlessly, on the basis of slimmer evidence than that used by other organisations. Admittedly, child care organisations operate under fairly
tight criteria, or at least we hope that they do, but some big professional child care organisations may be told by personnel officers or legal advisers that, to satisfy existing regulations relating to the dismissal of staff, if they are considering dismissing staff they must ensure that certain important factors are present--that there are more objective criteria for the consideration of whether dismissal is appropriate.
No doubt, when the Bill is implemented, some of those big organisations with access to information from personnel officers or legal advisers will tell bosses, employees and, indeed, their own personnel officers what should be in their minds. No doubt they will specify the extent of the criminality, or wrongdoing, that would have to be involved before dismissal was a legitimate consideration. That is what I want, and doubtless it is what the Government want. Hundreds of other organisations, however--small organisations, perhaps--will not have access to the same personnel procedures, and will consider dismissal if there is the slightest whiff of a suggestion that an employee has been behaving improperly. It is possible that quite junior staff will say, "You have been up to bad things. We will consider dismissing you." Conversely, the matter may be referred to those higher up in the organisation, and a decision may be taken not to consider dismissal.
I hope that the Minister understands the point that I am trying to make. Whereas the Crown Prosecution Service uses the more objective yardstick of whether there is sufficient evidence to justify a decision to prosecute, the provisions would be applied by hundreds--or thousands--of child care organisations, and they might not all apply the same objective yardstick in determining what behaviour merited consideration of dismissal.
As there is no definition of "consideration", various retrospective cases could be referred. In some of them, consideration might have been at board level, where half a dozen people were involved and took a serious decision. However, other cases might have been decided somewhere else, where, after a fleeting few seconds of consideration, those making the decision said, "We'll sack that bloke, because he must be a pervert." Although that would also be consideration, it would be very flimsy consideration, and it might be completely unfair and unjust.
I shall not labour the point, as my hon. Friend the Member for Gainsborough (Mr. Leigh) is more legally qualified and a lawyer whom I respect. I hope that he will catch your eye, Mr. Deputy Speaker, as he would be able to make the point better than I can. It is an important point.
Although I am happy that the amendments should deal with retrospectivity, I am concerned that there should be both a cut-off point and a quality yardstick in determining proper consideration of dismissal.
Mr. Leigh:
This is a difficult group of amendments to speak to. No one takes a stronger view than I do of the iniquity of those who indulge in bad behaviour with children. They have to be rooted out, and action must be taken to ensure that they are not put in the proximity of children. I hold that view as strongly as any other hon. Member. However, I am somewhat concerned by the
Although we all appreciate that the hon. Member for Stourbridge (Ms Shipley) is extremely well-intentioned, and that she is trying to make her Bill as watertight as possible, some concerns about civil liberties should be expressed about this aspect of the Bill.
I should give a simple example. An individual works in child care for an organisation and does his job perfectly satisfactorily. There has been no complaint against him or, if there has been one, it has been dismissed as trivial. Subsequently, he is promoted to another part of the organisation; or, without being dismissed, he moves on to another organisation in another part of the country; or he retires.
"would have considered dismissing him",
as opposed to "would certainly have dismissed him". In England and Wales, before someone is charged with an offence the case is referred to the Crown Prosecution Service, which has its own yardsticks. Those yardsticks may be subjective in some respects, but generally they are fairly objective. Throughout England and Wales, the CPS should operate according to the same yardstick: is there sufficient evidence to justify the bringing of criminal charges? The Bill proposes a different yardstick. Hundreds of organisations--multifarious organisations--must ask themselves, "Would we have considered dismissing this person?"
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