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1 pm
Mr. Forth: The best summation that I have come across of the kernel of the problem with which the House has been wrestling lies in the record of the Committee proceedings, and nobody will be surprised to hear that it was given by the hon. Member for Denton and Reddish (Mr. Bennett). I am sorry that he is not present because, as I am sure my hon. Friend the Member for Runnymede and Weybridge (Mr. Hammond) will agree, his contribution was most valuable to the Committee.
The hon. Member for Denton and Reddish said:
"We need to be certain that the Bill will catch someone who has been discovered committing wrongdoings long after he has left his job, but I am worried about how far back it is reasonable to go. I am also worried about false memory syndrome. On occasion, it may be difficult to go back very far. From my experience as a teacher, I know that it is relatively easy to mount a defence against the
30 Apr 1999 : Column 648
- occasional false allegation that is made by a pupil if the events are fairly clear to oneself and one's colleagues. However, when one goes back further than five years, it is extremely difficult for justice to be done on either side."--[Official Report, Standing Committee C, 17 March 1999; c. 43.]
As hon. Members have said during this brief debate, problems and anomalies arise when one starts to go beyond what my hon. Friend the Member for Gainsborough (Mr. Leigh) rightly pointed out is the normal philosophy of the statute of limitations, which has served us well for many centuries. The Bill would move away from that and say that it is not only legitimate, but desirable and necessary, to be able to reach much further back into times past, identify misdemeanours from that time which one has reason to believe may be repeated or may, in this case, put children at harm now, and take the appropriate action. That, as my hon. Friend the Member for Runnymede and Weybridge said in his opening remarks, makes the jeopardy open-ended. We must now try to deal with that difficult problem, which was so well summed up by the hon. Member for Denton and Reddish.
We are saying that a ghastly event, a long time ago, may never have been repeated, and regardless of the time that has passed since that event, if it now comes to light, it may be desirable to ensure that the individual responsible is debarred from employment, if he or she can be found. That challenges several bases on which we have operated our law for a long time, which is why the matter must be treated with extreme caution.
If people commit one offence that comes to light many years later, the philosophy of the statute of limitations kicks in. In addition, there will be doubt about whether they are likely to repeat the offence. There is also a practical difficulty, which was alluded to a moment ago, about whether they could be found. People who committed such an offence might then be thoroughly ashamed of it, and therefore change their identity and move jobs or location, perhaps several times. Women who committed such an offence could legitimately change their name by getting married. It may then prove to be very difficult to track down those people.
When the Minister was asked whether the national insurance number would be a reliable source of information in this case, I detected from movements off--if I may put it that way--in the Chamber, which the Minister could not see but which were visible to me where I was sitting, that the answer to that question was probably no. The Minister may have already received a definitive answer, and perhaps he can help us before we complete the debate.
The matter is important, because whether the person can be traced is relevant to the practicability of the provision. As, in some cases, a long period will have passed, that is a very significant consideration. Therefore we have a difficult combination of, on one hand, a challenge to some very long-standing legal principles and, on the other, significant practical difficulties.
All that leads me to wonder what the value of the measure will be. Given the many questions that have been asked about the relationship between the current employer and the individual involved; given that, although the Minister has said that changes to the law are coming down the track, we cannot take those into account but must deal
with current law; and given that the Secretary of State, in a sense, is put in the difficult and delicate position of having to judge that it is right, sensible or beneficial to pass on such information, the difficulties are very considerable indeed.
I am not saying that we should not admit the possibility of such a retrospective process taking place. I am simply left wondering whether we have taken sufficient account of the philosophy of the statute of limitations, or of the practical difficulties--to say nothing of the profound effect that such a process is likely to have not just on the individual, but on his or her family.
Mr. Hutton:
The right hon. Gentleman again mentions the statute of limitations. I understand his concern, but he may want to be aware that for indictable criminal offences--the more serious sexual offences--there is no statutory time limit on prosecution.
Mr. Forth:
I am very grateful for that helpful guidance.
I believe that I have said enough to show that I am uneasy about this approach, which should be monitored more carefully than many other provisions in the Bill that have caused concern. It is worth pondering whether such a matter would emerge as part of the reporting that we debated at length earlier. I hope that sufficient unease has been expressed to cause the promoter and the Minister to give the matter some thought.
The Bill will, of course, go to another place and there will be opportunities for it to be considered there, perhaps in light of some of these considerations. I believe that the difficulties are by no means an insurmountable obstacle, but every Conservative Member who has spoken has said that the matter should be looked at very carefully, and that, if possible, ways should be found to allay our fears, so that vulnerable individuals may be protected without our encroaching unacceptably on the long-standing liberties of individuals.
Amendment agreed to.
Amendments made: No. 20, in page 1, line 17, after 'conditions' insert
No. 21, in page 2, line 9, at end insert--
No. 22, in page 3, line 9, after '(2),' insert '(2A),'.--[Ms Shipley.]
Ms Shipley:
I beg to move amendment No. 23, inpage 3, line 9, at end insert--
The amendment addresses and clarifies transitional issues that arise from moving from the old administrative system to the new statutory one. It provides that child care organisations will not be under a duty to refer cases where dismissal, resignation or retirement took place prior to the commencement of opinion in clause 2. It provides also that the obligation will not arise in relation to referrals made under subsection 2(2)(a) where the opinion that triggers a referral was formed before the commencement of the operation of clause 2.
The amendment also makes it clear that there will be no obligation on any organisation to trawl through its old cases relating to events that occurred before clause 2 was brought into effect. This will still enable an organisation to refer names where it thinks that there is a case for doing so. As I have explained, such cases will not be automatically entered into the procedure for considering listing by the Secretary of State unless and until he is satisfied that the person concerned is eligible under clause 2(3) criteria to have his name included in the list, particularly in the light of, for example, the age of the allegations, the distance of the alleged events, the reliability of the evidence and such other factors as are relevant in the circumstances of the particular case.
Mr. Maclean:
This is an important little amendment, but I do not propose to delay the House for long. I shall ask a few probing questions. I listened carefully to the hon. Member for Stourbridge (Ms Shipley) and I admit that I do not fully understand the legal explanation that she gave. However, I think that I understand the effect of the amendment. It is that the Bill's provisions need not be applied retrospectively. It seems that the amendment provides that there is no obligation on child care organisations to refer cases where the dismissal, resignation, retirement, transfer, suspension or whatever took place, or the opinion on it took place, before the Act came into effect. Some of the other terminology that the hon. Lady used began to confuse me.
If the amendment does not require an organisation to refer to the list employees whose actions took place before the Act's commencement, it seems that it allows it to do so. It is permissive. There is nothing to stop the organisation making a referral. No doubt the Government are happy with the amendment. If they were not, we might not be at this stage. I ask the Minister whether there is an inconsistency. Is he worried that there might be one?
It seems to me that some employees who have been dismissed, possibly on quite serious grounds, will not be referred to the list because their employer is not required to implement the provisions of the Act retrospectively. There will be other employers, however, who will be more meticulous than others. However, they will not be required to trawl through and check their books for the past 20 years and come to an opinion on whether they had an abuser on their books. None the less, some organisations may wish to enter into a research project in looking back through their books on their former employees, or existing employees, to satisfy themselves that they have suitable procedures in place.
In undertaking that research, an organisation may discover that it has an individual or individuals who could be referred, and it would be permitted to do so. Other organisations may say, "We are permitted to refer, but we are not going to." Others may not bother to undertake the research. I know that we never pass any legislation that is tidy, clean and neat and packs and parcels everything up in one neat box, but in this instance there is a difficulty. It is not such a difficulty that I would be tempted to oppose the amendment or vote against it, but I ask the Minister whether it would lead to the possibility of a messy inconsistency. Could it lead to judicial review proceedings?
'referred to in subsection (1)(a) above'.
'(2A) The condition referred to in subsection (1)(b) above is that--
(a) in circumstances not falling within subsection (2) above, the organisation has dismissed the individual, he has resigned or retired or the organisation has transferred him to a position within the organisation which is not a child care position;
(b) information not available to the organisation at the time of the dismissal, resignation, retirement or transfer has since become available; and
(c) the organisation has formed the opinion that, if that information had been available at that time and if (where applicable) the individual had not resigned or retired, the organisation would have dismissed him, or would have considered dismissing him, on such grounds as are mentioned in subsection (2)(a) above.'
'(9) Nothing in this section shall require a child care organisation to refer an individual to the Secretary of State in any case where the dismissal, resignation, retirement, transfer or suspension took place or, as the case may be, the opinion was formed before the commencement of this section.'
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