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“could not reasonably be expected to know”
that, even as a Member of Parliament. The hon. Gentleman castigated my hon. Friend the Minister for something that was entirely subjective, but amendment No. 201 is entirely subjective, and that is the real problem with it.
Tim Loughton: The hon. Gentleman is right in that clause 7 includes the defence that one
“could not reasonably be expected to know”.
The problem is that it refers to three different scenarios in clause 7(1), as I pointed out earlier, of someone who seeks to engage, offers to engage or actually engages. Clause 7(3) is not comprehensive enough to defend everybody against all three scenarios—acts that someone might have committed inadvertently. That is why it is necessary to introduce an intent provision. Surely it is better to have to prove intent—that someone intended to engage in regulated activity, intended to offer to do so or intended to actually engage in it.
The Minister mentioned earlier that communication of the requirements of the Bill will be essential, and we remain to be convinced about how the Government will undertake such a big task. It would be better to provide for a proper defence, which shows that someone did not just drift into committing the offence. The onus should be on the prosecutor to prove that the person had the intent to commit the offence.
Rob Marris: Does not the wording of amendment No. 201 fall into the very trap that the hon. Gentleman gave of the difficulty of proving a negative in terms of the capital of Kazakistan—or whatever it is called? It would require the individual to prove a negative.
Tim Loughton: The hon. Gentleman would be expected to know how to pronounce Kazakhstan, even if he does not know its capital or how to spell it. The amendment would add another defence safety net. “Intent” has a basis in law for prosecution. As the hon. Gentleman knows as a lawyer himself, if the offence depends on intent, the law is clear on what is expected to prove it.
The amendment would beef up the defence provisions for someone who unwittingly breaches clause 7. It should be a defence to prove that one did not know or could not reasonably be expected to know, or that one had no intent of seeking or offering to engage, or of engaging, in the activity.
Clause 7 is a fundamentally important clause in a fundamentally complicated and complex Bill. I fear that it could be undermined by scooping up in its broad net many people who do not intend to fall foul of it. On that basis, I shall seek leave to divide the House on amendment No. 201, whenever we reach that point.
Sarah Teather: I broadly welcome the Government’s amendments, which deal with the issues that we discussed in Committee, especially our debate about NHS employees and whether people working under contract would be subject to the Bill. The clarification is very welcome. I shall address amendments Nos. 254 and 255 together, amendments Nos. 256 and 257 together, and then comment on amendment No. 201.
All those amendments have similar objectives and address the now thorny issue of the word “inadvertent”. I know that the debate earlier got rather over-excited, and the Minister was not keen to respond to my intervention. I hope that he will now respond with slightly better grace to what is intended to be a constructive addition to the debate. We are still not happy that the points that we made in Committee have been adequately addressed.
Amendments Nos. 254 and 255 seek to address the same points that the Conservatives seek to address through amendment No. 201. We are trying to restrict the offence of a barred person engaging in a regulated activity to situations in which there is an intention to mislead. The hon. Member for East Worthing and Shoreham (Tim Loughton) has clearly laid out the concerns, including the point that it is difficult to prove a negative. We think that our wording is slightly better than that of the Conservatives, but if they push their amendment to a Division, we will support it because we are trying to tackle the same issue. I hope that the Government will accept the points that we are making and table an amendment at a later stage.
Mr. Dhanda: Is the hon. Lady concerned that the amendments could provide loopholes for paedophiles who wish to work in our schools?
Sarah Teather: No, that is not our aim. Clause 7 aims to prevent paedophiles from working in schools, not to punish them. Many other items of legislation deal with the punishment of paedophiles. Clause 7 would provide a safety net, and we do not believe that it is drafted appropriately. We should make it clear that those caught by the clause should be penalised only if it is their intention to mislead.
We have had an extensive debate about many of the confusions in this extremely complicated Bill. If the scope of regulated activity is enlarged by the Secretary of State during the making of regulations, it is likely that people will not know the full extent of such activity that may apply to them. If there is a decent vetting procedure, it should prevent people who are barred from getting through, so the purpose of the provision should be to criminalise those who act in a misleading way—for example, by giving a false name in a job application—not those who may inadvertently get something wrong.
Amendments Nos. 256 and 257 relate to clauses 11 and 12 and make a similar point. Although the Minister said that he does not want employers or regulated activity providers to be criminalised inadvertently, I am not clear which changes in the legislation would enable that to happen. We suggest that the addition of the word “negligently” might get around the Government’s problem. I am not sure what the Government’s solution is, so I hope that he will make clear how he intends the safety net to be set up.
It is common to use the word “negligent” in legislation when an act that is not of itself criminal may have such a detrimental impact that we make it or the failure to carry it out criminal. The word “negligent” is often used in such cases. Practice suggests that it is a useful word. I hope that the Minister will respond to the points I have made.
Rob Marris: I apologise to you, Mr. Deputy Speaker, and to the House for not being in the Chamber at the beginning of the debate on this group. I particularly wanted to discuss amendment No. 201, which is the controversial one.
I have to tell the hon. Member for East Worthing and Shoreham (Tim Loughton) that he has been had in the Chamber—by me. Of course, I know how to pronounce Kazakhstan. When, during my earlier intervention, I indicated that I might not, the hon. Gentleman immediately said that I ought to know how to pronounce it.
Rob Marris: Exactly. But in my intervention I did not intend to seek to indicate to the House that I did not know how to pronounce Kazakhstan, which is precisely the problem with the hon. Gentleman’s amendment. That light-hearted example shows that, if the amendment were accepted, I would get off scot-free from the charge of not knowing how to pronounce Kazakhstan. He quite reasonably points out that I should be expected to know how to pronounce Kazakhstan. I do know; he has been had. But it was to make the point that his amendment will create, inadvertently—I stress that word for him—a loophole that I am sure he and his colleagues do not want to create.
Anne Main: The hon. Gentleman freely admitted that he did not know how to pronounce Kazakhstan even though he had heard the pronunciation at least twice. That is not intent but a sure-fire case of not paying attention—
Anne Main: Perhaps there was a desire to mislead. The hon. Member for Wolverhampton, South-West (Rob Marris) is missing the point entirely. The Minister is giving extreme latitude to employers but not to employees, and if the hon. Gentleman had been in the Chamber for the whole debate he might have picked up on that point.
Rob Marris: I had no intention of misleading the House. Had I done so, Mr. Deputy Speaker would have pulled me up. I was making the serious point that amendment No. 201 will create a loophole. The hon. Member for East Worthing and Shoreham told me that, because I am a lawyer, I should know this or that. I know a bit about intent, although I may be rusty—it was not my principal sphere of activity in the latter years of my practice as a lawyer before I entered this place. However, I know that throughout the law of England and Wales and, I suspect, in Scotland and Northern Ireland, too, in many cases there is a subjective test of intent and in many there is an objective test of intent—to put it in legal jargon.
6.45 pm
Secondly, in legal terms of art, there is also throughout the law of England and Wales and, I suspect, in Scotland and Northern Ireland, too, the concept of basic intent and the concept of specific intent; for example, section 18 of the Offences Against the Person Act 1861, which refers to the intent to cause grievous bodily harm. That is an offence of specific intent, which means looking at the actions of an individual and at what was passing through their mind—their mens rea, or guilty mind, to translate the Latin.
The difficulty with amendment No. 201 is that it relies on a wholly subjective test of the individual’s state of mind, because its first word is disjunctive—namely “or”. Were the amendment to be passed, a person would no longer have the particular defence in the second line of subsection (3) of clause 7 that
“he did not know, and could not reasonably be expected to know”.
The person would simply have to say that they did not intend to seek to engage in an activity from which they knew they were barred. That is a wholly subjective test, which will create a large loophole.
Tim Loughton: I am grateful to the hon. Gentleman; no doubt the Kazakhstan loophole will be invoked by anybody who wants to prove that they did not have intent in such cases.
The hon. Gentleman applies subjectivity to the test, but if he is to be consistent he will have to agree that the Minister earlier introduced an enormously subjective test of inadvertence that had no basis in the legislation, whereby a business will be treated differently from somebody who carried out and followed the letter of the law, as set out in the measure.
Rob Marris: There is a crucial difference. In that case, we were talking about the inadvertence of a business, but now we are talking about an individual—
Tim Loughton: It is the same thing.
Rob Marris: I am not sure that it is, but I shall develop the point slightly.
To repeat myself, the amendment introduces a wholly subjective test, which is not helpful. I am sure that no Opposition Members will want the Kazakhstan loophole to go through, if it has—as I believe it does—the consequences that I have outlined. I urge the hon. Member for East Worthing and Shoreham to reconsider the amendment. In his intervention, he referred to his criticism of my hon. Friend the Minister for subjectivity. As I pointed out earlier, the hon. Gentleman has criticised the Minister for something that was entirely subjective, but two wrongs do not make a right— [ Interruption. ] There is certainly one wrong: amendment No. 201, which is wholly subjective and not at all helpful in providing the protection that we all want.
Annette Brooke: Can the hon. Gentleman clarify his remarks? I realise now that he gave us some misleading information because, as he explained, he was testing the hon. Member for East Worthing and Shoreham (Tim Loughton), and there was clearly an intention to do that, so, as there can be a test of the intention to mislead, will he comment on our amendment No. 254, which refers to
“the intention of misleading the IBB”?
Rob Marris: Of course there can be a test of intention of misleading, but that introduces a more objective element—the testing of the intent—which is not present in amendment No. 201. That is the problem with that amendment. It is subjective because it is disjunctive, as I said, at the end of clause 7(3), and it would not be at all helpful.
Mr. Dhanda: The amendments reflect the concerns of hon. Members about unfairly criminalising individuals because of their lack of understanding of the scheme, and about the need for an effective communications campaign. Amendment No. 254 would mean that a barred person had committed an offence only if they engaged in regulated activity with the intention of misleading the IBB or a regulated activity provider. Through amendment No. 255, that would replace the defence that the Bill provides for a barred person who engaged in regulated activity without realising that they were barred.
The amendments would create a loophole potentially allowing people who wanted to harm children and vulnerable adults to engage in regulated activity without committing an offence. I doubt whether that is the aim of Liberal Democrat Members, but it would be the consequence of their amendments.
Sarah Teather: Does the Minister agree with his hon. Friend the Member for Wolverhampton, South-West (Rob Marris) that the amendments are a more objective test and introduce a safeguard that the Opposition are keen to include in the Bill, but that our amendments introduce a more objective test than amendment No. 201?
Mr. Dhanda: The safeguard that the amendment introduces could be exploited by someone to get into schools or work closely with vulnerable adults. Let us take as an example a barred person who did not intend to mislead their employer. Perhaps they still want to work with children, so they find an employer who knows they are barred to collude with. Under the amendment, the individual would not be committing an offence. That would be the consequence of the hon. Lady’s amendment. Are Opposition Members aware that the current offence for a person on the POCA or POVA list applies if the individual seeks to work in a regulated activity at present? Perhaps they do not think it should.
It would not be helpful to introduce an element into clause 7 that is based on the individual’s intention to mislead. It does, though, remain essential that an individual who does not know they are barred, or could not reasonably be expected to know, is not criminalised for seeking to engage in regulated activity. Far from providing a level of protection for barred people, to remove this defence in the way suggested by the second amendment would introduce a real risk that they would be unfairly criminalised.
Tim Loughton: The Minister asked us a question a moment ago. It is precisely because the current framework and the Protection of Children Act list and list 99 are not working properly that the Bill is deemed to be necessary. Clearly, there are problems at present.
Mr. Dhanda: The hon. Gentleman makes a good stab at it, but he knows perfectly well that the legislation is not being changed because of that facet of POCA and POVA. There are various reasons for the change, but that was a nice attempted smokescreen from the hon. Gentleman.
Sarah Teather: Will the Minister give way?
Mr. Dhanda: The hon. Lady failed to answer the question posed to her, so I shall move on.
Amendment No. 201 provides for a defence where a barred individual seeks to engage in activity without realising that it was regulated activity. As well intentioned as the amendment is, it is unnecessary and could introduce a dangerous loophole that Opposition Members are on the verge of voting to support. We certainly do not wish to criminalise individuals unfairly, so we will ensure that the scheme is well understood. Before the commencement of the Act, guidance will be issued that will provide further detail about what type of activity will be covered by regulated activity. We will consult stakeholders about the most effective means of ensuring that all those subject to the requirements of the scheme are aware which roles will be covered by the definition of regulated activity. We will also provide an advisory facility to employers and individuals to help them comply with the requirements of the scheme.
In addition, when an individual is informed that they are barred, the intention is that this communication will include an explanation of the types of activity from which they are barred. Setting this out clearly for newly barred people will help to minimise the risk that the amendment seeks to address. The amendment could in
fact introduce a different risk—that unscrupulous barred individuals would seek to escape the offence in the Bill by arguing that they did not know that a particular activity was a regulated activity. That is what Opposition Members are considering supporting in the Lobby this evening. We are trying to keep devious paedophiles out of our schools, and the possibility opened up by the amendment is too great a risk. Hon. Members need to consider their position on the issue.
Government amendments to which I shall speak later will remove the need for a barred individual to consider the frequency of a particular activity. The definition of regulated activity for the purposes of barring will be simpler to understand as a result. This will make even more remote the likelihood of engaging, or seeking to engage, in regulated activity without knowing that it is regulated activity. The hon. Member for East Worthing and Shoreham (Tim Loughton) claims that I am on the side of the employer. That is not the case. We are providing clarity for the employee about the meaning of frequency. He should concentrate and read the Bill to understand that.
Amendments Nos. 256 and 257 are intended to prevent regulated activity providers or appropriate officers from committing an offence if they fail to make an appropriate check or obtain relevant information where they are not at fault. Amendments Nos. 208 to 210 ensure that the person or body at the top of an organisation is ultimately responsible for checking individuals engaging in regulated activity. If no check is carried out, that person or body would be liable. These amendments are important in ensuring that organisations take their responsibilities seriously.
The hon. Lady should be reassured that new clauses 15 and 16 and related amendments ensure that individual employees of a regulated activity provider who fail to make a check commit an offence only if their failure to check was due to their act or reckless default. We believe that this is both fair and appropriate. It ensures that individuals take their responsibilities seriously but does not penalise individual employees who are not at fault. I reiterate my previous commitments and the commitments of my noble Friend in the other place that we intend to have widespread ongoing communications to ensure that organisations and individuals are aware of the requirements upon them.
Clause read a Second time and added to the Bill.
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