Adoption and Children Bill

[back to previous text]

Mr. Brazier: I am having a little difficulty following the Parliamentary Secretary, not least because my pager went off at the crucial moment. Would she put it in black and white? The example that I gave was based on a real case. If Emma's parents had discovered what appeared prima facie to be a clause 56 offence—that a leak at the adoption agency had been the cause of that terrible birth mother turning up at the daughter's school and ruining the girl's life—would it be covered by the provision that we are debating now?

Ms Winterton: I will come that later in my explanation. Such cases would involve breaches of regulation. If that case had arisen from a breach of regulation, the first port of call would be the NCSC, because the commission would have the specialist expertise necessary to prosecute. If the commission said that there was not enough evidence or that a case could not be made but the person still felt strongly that he wanted to go ahead, he could apply to the Attorney-General for that decision to be waived. The procedure is the usual one for prosecutions arising out of statutory offences for breach of regulation rather than the prosecutions for criminal offences; the latter are normally prosecuted by the CPS. In addition, individuals can ask the Attorney-General to allow them to commence a private prosecution if they believe that the regulations have been breached and for some reason the commission or Assembly declines to proceed.

If the constituents of the hon. Member for Canterbury (Mr. Brazier) had approached the Attorney-General and the Attorney-General had said, ''No, I do not accept that you should be able to bring a private prosecution because I am convinced that the evidence is not there'', they could apply for judicial review of the Attorney-General's decision. The test would be whether the Attorney-General had acted lawfully, reasonably and fairly in refusing consent for the prosecution.

Mr. Brazier: So the answer to my earlier question is yes, it would have been a clause 56 offence. Surely the Parliamentary Secretary knows that to apply for judicial review is both extremely expensive and almost certain to end in failure?

Ms Winterton: If the hon. Gentleman bears with me, I am trying to elaborate on the process that his constituents would follow if they were trying to get the NCSC to bring a prosecution for breach of regulations. The issue is the breaching of the regulations under which adoption agencies operate. The judicial review would be heard in the High Court with appeals lying to the Court of Appeal and the House of Lords.

Mr. Djanogly: I should like to reinforce the point made by my hon. Friend the Member for Canterbury. Few individuals in this country could afford a judicial review. Surely the Minister appreciates that to take out a private prosecution is not some newfangled right; it is an ancient right in this county. Why cannot it be left as an option to those who wish for it? It is not as though we are asking for anything new, but this provision effectively removes that right.

Ms Winterton: There has been some confusion about what is happening. The hon. Member for Canterbury is unfortunately no longer in his seat, but perhaps his hon. Friends will inform him of this point on his return. Outwith everything in the previous scenario—that is, where there has been a breach of regulations—it is still within a person's right to take a civil claim for negligence against an agency.

Hon. Members debated to what extent the fines were adequate. If, for example, an action constituting a criminal offence more serious than a breach of regulations was found in court to be so, it would still be open to the police and the CPS to make a prosecution. If, on the civil side, the breach of regulations meant that a person had suffered increased harm, it would still be up to them to take out a claim for negligence. I am sorry that I was rather long in making that point, but I was trying to explain that these clauses relate to regulations and give the NSCS some teeth and some ability to ensure that it can pursue those prosecutions. The evidence shows that in private prosecutions—there have been relatively few—such provisions enable breaches of regulations to be more extensively investigated and result in bodies with specialist expertise in pursuing prosecutions. However, in no way do they restrict the ability of individuals to proceed with further action should they wish to do so.

11.30 am

Mr. Djanogly: We often return to talking about the clause protecting individuals from breaches of regulations rather than from breaches of provisions that are actually in the Bill. I remind the Minister that the Opposition do not support the amount of discretion given to the Secretary of State to make regulations under the Bill. We have consistently maintained that the Bill leaves too much to be dealt with by means of regulations.

Ms Winterton: To prescribe too much in the Bill would not leave it sufficiently open for proper consultation. There are many instances where it might be beneficial to consider the use of regulations to set out wider areas of responsibility.

I hope that I have been able to reassure Conservative Members that the clause would not, in the tragic cases that they mentioned, restrict prosecution by the police and the CPS, or by individuals. I hope that, with those assurances, the Opposition will feel able to withdraw the amendments.

Tim Loughton: The amendment was intended to be a probing amendment. Although it raises an important point, it was not meant to take up a lot of time. It seems to have uncovered, as the debate has progressed, ever more potential heffalump traps. In reiterating my welcome to the Parliamentary Secretary on her debut in the Committee, I must say that I have been unexpectedly disappointed by her performance. She began by repeating the background to the clauses, which my hon. Friend the Member for Canterbury and I had already set out, but she did not really answer my questions.

The debate highlights the problem of the order of consideration of clauses. We have been discussing provisions relating to offences that have not yet been discussed, and which, given the tight time restrictions on the Committee, might never be discussed. We are discussing penalties for actions that may not turn out to incur penalties, because of clauses 9 and 56, which will be discussed in future sittings.

The debate also highlights the problems of talking about offences caused by a breach of regulations when we do not have the regulations before us to assess whether a given action would be in breach of them, and how serious a breach it might constitute, let alone whether the penalties proposed under clauses 9 and 56 are sufficient to deal with those breaches of regulations. Our debate has been hypothetical, bordering on virtual reality.

I fear that the Parliamentary Secretary has not addressed the concerns that I raised. I should like her to tell me how the registration authority—the National Care Standards Commission in England and the National Assembly in Wales—will operate. Who in those bodies will determine whether regulations have been breached, the seriousness of the breach and whether action will proceed on the basis of a complaint or, to put it lightly, a mishap?

The Parliamentary Secretary referred to all manner of experts who will man the NCSC and oversee whether regulations have been breached. We do not know who those experts will be or whether there will be enough of them. We have heard many stories about the enormous problems of finding professional staff in social services departments. Will the experts be former social services workers? If they are, it will denude even further the departments, some of which have vacancies of up to 50 per cent. for key child workers.

I hope that we will discuss the Children and Family Court Advisory and Support Service later. Will we have the same problems as it had when an enormous number of its professional staff decided to walk from their jobs due to enormous incompetence by a few of the Parliamentary Secretary's colleagues? I am not assured that the NCSC will have the expertise to oversee breaches of regulations, even if I knew what they would be. I should like the Parliamentary Secretary to discuss the mechanics.

How can individuals petition the NCSC or the National Assembly for Wales if they are the instigators of a complaint? Such complaints will not necessarily be brought by the registration authority, so if birth parents, siblings, other close relatives or the adoptive parents feel that there has been a breach of the as-yet-undefined regulations but that nothing is happening about it, by what mechanism can they bring that to the attention of the registration authority and ensure that they are listened to rather than dismissed as some emotional crank on the telephone? If they bring a formal complaint, by what mechanism can they be assured that the appropriate official has the requisite forms and procedures so that the complaint may be recorded and a proper decision taken on whether it will be proceeded with within the mechanics of the authority? I want the Parliamentary Secretary specifically to enlighten the Committee on how individuals interact with the registration authority.

I also asked the Parliamentary Secretary in what circumstances she envisaged that the Attorney-General would give his consent to individuals who had taken up the unusual practice of petitioning him on failing to receive satisfaction from the registration authority. That matter was mentioned by my hon. Friend the Member for Canterbury, who is temporarily absent. How easy is that? In my limited experience, it is not easy. In how many cases, not numerically but as a general idea, does the Parliamentary Secretary envisage that the Attorney-General will entertain such applications from individuals, who might be emotional and have highly personal reasons for wanting to take the measures further?

The Parliamentary Secretary also did not tackle the question whether penalties under clause 9 would be any deterrent. If a £5,000 fine were enacted—it would presumably be paid by an authority, an adoption agency as a body, or more likely a professional negligence claim against an insurance indemnity policy—in clear cases of negligence by individuals, I am not aware of any procedures whereby those individuals would suffer any penalties and be seen to have suffered penalties for being closely aligned to the misdeed.

We are dealing also with the thorny subject of protected information. We were in danger of having a debate on clauses 54 to 63, but many hon. Members, on both sides, and just about every witness that appeared before us would be amazed if the Government were to go ahead with the proposals in those clauses. It would be a retrograde step to restrict access to information and birth records by adopted children, yet we are now discussing what penalties would be brought against those agencies that infringed the disclosure of information provisions. We are not due to debate what is probably the most important part of the Bill for another couple of weeks, by which time I hope that the Government will have had a change of heart. I hope that they will have succumbed to the overwhelming torrent of evidence against the retrograde steps that they still propose in later clauses.

My hon. Friend the Member for Huntingdon (Mr. Djanogly) made some exceedingly pertinent points, and he drew heavily on his experience of running a large and active social services committee during his time as a local councillor. He rightly said that the clause appears to be against the spirit in which the Committee has been moving with a great deal of unanimity. Other clauses that we shall debate later give access to appeals and reviews for individuals who feel hard done by as a result of decisions by adoption agencies. We have identified a much needed mechanism, whereby individuals and groups can appeal for review of a decision that they believe to be unfair, but clause 94 goes the other way. If anything, it restricts rights of redress and the practical modes of redress for individuals who feel that an injustice has taken place. As has been said, the clause is against the nature and spirit of the Bill.

A large part of the problem is the interface between the breach of regulation and other criminal matters. The Parliamentary Secretary has not started to address that problem. We do not know who will institute the regulations, nor how properly they will be monitored. When will a breach of regulation be serious enough to become a criminal matter—one to be prosecuted by the CPS through the ordinary rigours of the law? I can foresee a large grey area where certain people will be breaching the regulations but may also breach the criminal law. Where is the trigger point—the point at which the registration authority can say that it will not do anything about a breach of regulation but that something else is a criminal matter and that the full rigours of the law should be applied by the CPS in the magistrates court, or in higher courts where higher fines or penalties are available?

Previous Contents Continue

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index

©Parliamentary copyright 2001
Prepared 4 December 2001