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Mr. Maclean: I support the amendments tabled by my right hon. Friend the Member for Bromley and
Chislehurst (Mr. Forth). I urge the Minister to consider accepting amendment No. 18--if not today, then when it goes to the other place. He should do so because clause 9 does not contain the normal catch-all regulation-making power which usually says that the Secretary of State may make any other regulations that he thinks fit. If those words had been added to clause 9, after the list of some 20 other regulation-making powers, the Minister could tell the House that amendment No. 18 was unnecessary, because any worries about access or security would be the subject of the catch-all regulation-making power.
As far as I can see, however, the catch-all power is missing. It is often a relief to see such a power missing, because regulation-making catch-all powers are in some ways too much of a Henry VIII clause. But I am concerned because clause 9 sets out specific regulation-making powers. It is some time since I have seen powers laid out so specifically. If 20 individual points are named on which the Secretary of State may make regulations, statute law may be interpreted to mean that we cannot regulate on a 21st, unless there is a catch-all.
The point about access and security is a small one. The Bill is in much better shape that it was when it went into Committee, and today's amendments today have improved its shape further. Even though the Minister has not accepted some amendments, our debates have made the Bill infinitely better than it was when it was first a gleam in the eye of the hon. Member for Stourbridge(Ms Shipley). This small amendment could improve it further.
We have all seen on television scenes in which someone has been charged with a horrible crime and, understandably, a large group--perhaps "mob" would be too derogatory a term--of relatives and concerned local people has gathered outside the court, or people are banging on the sides of the security van as the accused person is taken to and from the court. We all know that when a paedophile is released from prison there are difficulties over where that person may settle. Local people become concerned and groups form. After his having been in prison, the released person's life may be at risk once again if the public get their hands on him.
Those are extreme cases, but there is a similar potential for danger if some people are outed as possible abusers who will face a tribunal hearing. In some cases, it is understandable that, if the press misbehave and report that the person will appear before a tribunal and may be regarded as a child molester or pervert, some people will, to put it at its mildest, wish to make their point of view known to him or her; others may wish to commit violence.
I have no sympathy at all with convicted child abusers or molesters or paedophiles. However, we must assume that someone is innocent until proven guilty. We must assume that someone appearing before a tribunal is innocent until the tribunal rules against him or her. In such circumstances, people are entitled to secure access when they travel to the hearing, wherever it may be.
I agree with the points made by my right hon. Friend the Member for Bromley and Chislehurst on his other two amendments. I hope that the Minister will say whether the presumption in regulations will be for or against holding hearings in private and the imposition of reporting restrictions. There is merit in the suggestion that the tribunal should be left to decide whether to hold hearings in private or impose reporting restrictions.
The tribunal may know better than the Secretary of State, and the Secretary of State should leave it to the president of the tribunal to decide. The Bill says that the president of the tribunal must be a legally qualified person of seven years' experience who is appointed by the Lord Chancellor. He or she should have the nous, gumption and ability to make decisions for himself or herself.
Mr. Hutton:
I shall respond briefly to the points raised by the right hon. Members for Bromley and Chislehurst (Mr. Forth) and for Penrith and The Border (Mr. Maclean). Amendment No. 18 contains some serious technical deficiencies. I do not intend in any way to brush off the concerns expressed by the right hon. Member for Bromley and Chislehurst, but the amendment would fit badly with the Bill. For example, he will find that his concern about access to premises is already covered by paragraph 5 of the schedule.
The right hon. Gentleman made a number of good points when talking to amendments Nos. 16 and 17, to which I will respond as best I can. As drafted, the Bill provides that the holding of hearings in private and the imposition of reporting restrictions--both steps that should not be taken lightly, as I am sure the House will agree--may take place only in circumstances that will be specified in regulations. The amendments propose that those decisions should be left to the discretion of the tribunal, so that it may hold hearings in private and impose reporting restrictions very much at its own discretion.
It is no exaggeration to say that it is a fundamental principle of English law that hearings should take place in public and judgments should be pronounced publicly. Those rights should be curtailed only where there is specific justification for doing so, for example, to protect the interests of juveniles and the identity of witnesses, or more generally, where publicity would prejudice the interests of justice.
As such, it would be entirely inappropriate to allow the tribunal the discretion to disapply those rights at its own initiative. It should be able to do so only in certain limited circumstances, which should be clearly expressed, so that the parties to the application are clear from the outset as to their rights and any decision on those important issues is taken within clearly identified criteria so everyone knows where they stand and how their case is likely to be dealt with.
Two other matters were raised during this short debate. The right hon. Member for Bromley and Chislehurst queried the general thrust of the power to make regulations. The powers under clause 9 are similar to powers taken in the Education Act 1996--I think that it would be fair to say that the right hon. Gentleman was one of the main architects of that legislation.
The right hon. Member for Penrith and The Border expressed his concern about the list of matters to be subject to regulation under clause 9. He was concerned at the lack of a residual catch-all power to make regulations as and when the Secretary of State might think appropriate. Clause 9(3) states:
There are technical problems with both the amendments and strong reasons why they should not be included in the Bill. I hope that the right hon. Member for Bromley and Chislehurst feels able to withdraw the amendment.
Mr. Forth:
It sounds as though I should ask for my previous ministerial convictions to be taken into account, Mr. Deputy Speaker, and I do so at this stage.
I thank the Minister for his full and convincing reply to the debate. I am satisfied with what he has said and, without any further hesitation, beg to ask leave to withdraw the amendment.
Ms Shipley:
I beg to move, That the Bill be now read the Third time.
Hon. Members will recall that, when I moved the Second Reading of the Bill in February, I expressed my great pleasure at having had the opportunity to introduce a Bill whose object was further to strengthen our national arrangements for protecting some of the most vulnerable members of our society. At that time, I expressed confidence that hon. Members on both sides of the House shared a real determination to ensure that adequate and workable protection would be put in place.
In Committee, we had the opportunity to consider the Bill and its purpose carefully. I believe that the Bill returned to the Floor of the House stronger as a result of the constructive contributions of hon. Members on both sides of the Committee. I pay tribute to them for their sensitive, detailed, positive examination of it.
As has been noted, the Bill is not perfect. Sadly, we cannot guarantee that no child will ever again suffer abuse, but the Bill will nevertheless substantially enhance the protection available to prevent unsuitable people from working with children. I have been deeply touched by a wealth of letters of support. I know that other hon. Members have received many letters from people who have been directly or indirectly scarred by abuse that they or their siblings suffered in childhood outside the home.
Some incidents go back decades. I hope that those who wrote can draw some comfort from what the Bill puts in place to protect children and the wider context in which it will operate.
While improved in some details, the amended Bill returns to the House unchanged in its overall intent. By putting the existing Department of Health consultancy index on a statutory basis, it continues to offer a vital first step to providing a one-stop shop to compel, or allow, employers to access a single point for checking the names of people whom they propose to employ in a post involving care of children. With the related changes to the Department for Education and Employment List 99 and the Criminal Records Bureau, which was established under part V of the Police Act 1997, the effect will be greatly to increase and facilitate the efficiency of the checking process, as envisaged in the proposals stemming from the Whitehall working group that is examining the whole question of protecting the vulnerable.
I shall briefly identify where significant changes have been made to the Bill. Their general thrust has been to recognise concern in Committee that, while the essential aim of strengthening the protection of children from abuse and the risk of abuse should at all times be maintained, it needed to be balanced by addressing the reasonable rights of individuals facing a possible lifetime ban on working in child care positions.
I was persuaded in Committee that it would not be right to include incompetence in the grounds in clause 2 for referring a case to the Secretary of State for consideration for listing. The grounds should rely solely on misconduct that harms a child or places a child at risk of harm. That change has been made because concerns were raised that incompetence, as opposed to misconduct, would cast the net so wide that it would catch those who might have acted out of mere inexperience or immaturity. Incidents involving gross incompetence will still be included in the remaining category of misconduct. However, it seemed on reflection inappropriate to make individuals eligible for listing as a result of a single, possibly isolated, incident. Leaving a gate open and allowing a child to run out on to the street was an example cited in Committee. That could lead to people being banned from employment for which, with suitable guidance and training, they might prove well suited.
Clause 2 has been amended on Report so that the capacity to refer names extends to circumstances where it becomes apparent to child care or other organisations after the dismissal, resignation, retirement or transfer of an individual that, had the relevant information been available, they would have dismissed or considered dismissing that person on the ground of misconduct that harmed a child or put a child at risk of harm.
Clause 4 has been amended to improve the position of individuals whose names have been referred to the Secretary of State and listed by him provisionally. In its original form, there was no opportunity for such cases to approach the tribunal set up by the clause because no useful rights of appeal could be given in circumstances where there was no final decision on listing, and therefore no ground for appeal available. What is now clause 4(2), read with subsections (4), (5), and (6), safeguards the position of individuals listed provisionally by giving them an avenue of approach to the tribunal, with the tribunal's leave, if they have been listed provisionally for more than nine months. That will not, and cannot, be a right of
appeal; rather, it protects individuals against being kept provisionally listed for unreasonable periods without a decision from the Secretary of State by transferring the decision, where the tribunal agrees, to the tribunal itself.
Given the care that must be taken in such cases, nine months seems not unreasonable, especially as clause 2 lays down strict procedures under which the Secretary of State has to seek observations from the various parties and make such inquiries as he thinks necessary. By the same token, the amendments provide for a reasonable period of consideration before approach to the tribunal becomes open after the determination of any civil or criminal proceedings, should the case involve such proceedings.
The requirement to obtain the tribunal's leave in all cases will prevent abuses of process whereby individuals seek to delay the Secretary of State by failing to submit their observations. The tribunal will most appropriately function as a reviewing body, rather than substituting for the Secretary of State's initial administrative decision. However, it is clearly right that there should be protection from unreasonable delay, and individuals should not be kept waiting interminably for the Secretary of State to act. Needless to say, I have no doubt that Ministers will want to ensure that such delays occur as infrequently as possible, if at all.
"The regulations may, in particular, include provision--"
and goes on to list various items. The list is not intended to be exhaustive: we drew attention to particular issues with which we thought it necessary to deal on the face of the Bill.
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