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“on the balance of probabilities”.
It is a shame that the hon. Member for Wolverhampton, South-West (Rob Marris) is not here, because he could apply his legal brain to that amendment and either cast it out on the basis that it is a double negative, or agree with it in order to enhance the Bill.
We need to include a definition for lower thresholds of proof, which is what amendment No. 12 seeks to do. Of course, in law “beyond reasonable doubt” is at the top of the hierarchy of proof, followed by “balance of probabilities” and “has reason to suspect”. In summary, amendment No. 11 would replace “thinks” with the latter phrase, and amendment No. 13 would replace “if” with “balance of probabilities”. Similarly, amendment
No. 12 would replace “thinks” in schedule 2 with the phrase “has reason to suspect”, and amendment No. 7 would replace the word “thinks” in line 9 of schedule 2 with the phrase “has reason to believe”.
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I hope that the Minister will welcome these amendments, rather than displaying the petulance that he displayed when we considered our amendments in the previous group, through which we were trying to be helpful. We were certainly not in the business of furthering the activities of paedophiles through those amendments, as he rather clumsily suggested, I think, earlier. The amendments in this group try to establish some basis in law for the fairness that we want to provide for everybody concerned. This legislation will work only if it is practical and is seen to be workable and fair by everybody concerned. If it is not, it simply will not work, and we will end up pursuing and prosecuting a lot of people who are in fact innocent of the charges set out in this legislation, and who certainly never had any intention of abusing vulnerable children and adults. In the process, we could well miss the genuine wrongdoers who are able to circumvent the law, and on whom our priorities should surely be placed in trying to ensure that the legislation is workable.
These are constructive amendments, tabled in an effort to enhance the Bill and to make it more watertight. As such, I hope that the Minister will respond to them in a rather more positive and less churlish way than he did to our amendments in the previous group.
Annette Brooke: I welcome the Government amendments that establish in the Bill that under-18s will not automatically be barred from working with children or vulnerable adults without the right to representations. There are a number of other Government amendments in this group that we support, particularly those clarifying the situation regarding pornography.
However, there is an aspect of the under-18s debate that the Government amendments do not cover. There are two circumstances in which the situation for under-18s is very different from that for adults. First, let us consider young people in a mutual sexual relationship where one party is under the age of consent—for example, a 17-year-old boy and a 15-year-old girl. We know that such a relationship gives rise to difficulties under sexual offences legislation. Secondly, we must also consider young people who display sexually harmful behaviour.
I believe that all children who have been abused—about 16 per cent. of all children have been abused—should be offered therapeutic services. However, it is estimated that 90 per cent. of children in such circumstances receive no substantial support. Those are horrendous statistics and as is known, many children and young people who have been abused go on to abuse other children and vulnerable people, which is why the provision of therapeutic services is absolutely vital. Our new clause 24 calls for the IBB to
“make a referral for therapeutic purposes, as specified in regulations”—
we are not attempting to write this provision into the Bill tonight, just the principle behind it—
“for a person under the age of 18 included on the children’s barred list after representations have been heard.”
A similar difficulty would also apply to the adults’ barred list.
There is no comprehensive national strategy for children and young people who sexually abuse other children. Different local authorities take very different approaches to this work. Policy is unclear and services on the ground are sporadic. There is a worrying lack of knowledge and threadbare provision, and in general there is poor access to specialist treatment provision for many children in need of such services. Treating sexual abusers in any way other than punitively may be politically unpopular, and it is difficult to communicate complex messages about that group of people.
One is knowing whether sexual behaviour is harmless. Many children engage in activities that form a normal part of their sexual development, but sexual behaviour by young people exists on a continuum from mutually agreed experimentation to serious behaviour, such as multiple rape. Indeed, research shows that juveniles commit almost one quarter of all sexual offences, and such studies also contain clear evidence that many such children have suffered abuse or trauma. In particular, such behaviour is linked to sexual abuse, domestic violence and poor attachment, and a significant proportion of those who are seen by specialist services have severe emotional or learning difficulties.
It is essential that child protection and criminal justice agencies work together and that there is a clear obligation on social services departments to respond to that group of children and young people from a child protection perspective. Children and young people who go down the criminal justice route are unlikely to have their needs assessed adequately. The outcomes resulting from the different routes are inevitably very different. Social services may take no further action, whereas a custodial sentence can lead to a child being placed on the sex offenders register.
Initial abusive behaviour is often the response of a vulnerable set of children to their own experiences and difficulties, and it is a way of expressing anger and exerting power by those with complex issues and needs. Such children are still in the process of growing up, and they can be helped away from spiralling patterns of sexual abuse by an appropriate therapeutic intervention.
Robert Key (Salisbury) (Con): Where do parents fit in? I have listened carefully, and the hon. Lady is making a lot of sense, but should specialist services not be provided to parents in such cases? The matter involves not only children, specialist agencies, clinicians and social services, but parents, too. If parents are not involved, it is likely that children will fail.
Annette Brooke: That is the case most of the time. However, it is possible that parents may have abused a child who goes on to abuse others, which occurs more than occasionally.
Given that intervention, I shall again raise a constituency case. My constituents are the parents of someone who is in jail and who will probably never come out. At the age of 14, that person committed a minor sexual offence, and his parents sought an independent psychiatric report, for which they had to pay themselves. The report concluded that their son posed no danger to others in society, but he went on to commit a terrible offence when he was aged 19, which was a tragedy for two sets of parents. We do not know whether treatment would have worked, if it had been available in that case, but it might have worked, which is why I passionately feel that we need the proper provision of therapeutic services nation wide. I want the Minister to accept that such a provision should be included in the Bill, which is the only way to make the service available to all those who need it. I hope that the Minister will give the matter his full consideration tonight, even at this very late stage.
Amendments Nos. 1 and 2 would allow the tribunal to consider appeals from the IBB, if relevant facts emerge after the IBB has made its decision. We debated that point in Committee, where my hon. Friend the Member for Brent, East (Sarah Teather) made a number of valid points. However, having reread the Committee Hansard, we do not feel that that the question has been adequately addressed and therefore make no apology for raising it again.
Clause 4 contains the process that allows an appeal against a decision made by the IBB. It permits appeals to the tribunal, which was created by the Protection of Children Act 1999, against decisions not to remove people from the barred list or to include people on the barred list. When the Bill was originally published, an appeal was only permissible on a point of law, which caused considerable concern because a successful challenge would have had to establish that the IBB had made a mistake in the decision-making process, so we are pleased that the grounds for appeal have been extended to include the facts on which the IBB’s decision is based.
We suggest that appeals to the tribunal should also include appeals on facts not available to the IBB when the original decision was made, because there are likely to be situations in which relevant facts come to light after an IBB hearing. As clause 4(4) requires the tribunal’s permission to make an appeal, it will not permit vexatious or merit-free appeals, but it will give the tribunal appropriate leeway to consider relevant activity. I ask the Minister to consider whether the Bill covers new facts emerging after the IBB’s decision.
Amendments Nos. 249 and 251 concur with Conservative amendments Nos. 204 and 205. They are based on the same premise, that the definition in the Children Act 1989, which covers a range of physical as well as non-physical forms of mistreatment, was satisfactory. Our amendments would add “financial harm” to the definition of harm, and the Conservative amendments specifically mention “dignity”, although I feel that that is included in the definition of “ill treatment” in the 1989 Act. The IBB will make critical decisions on risk of harm, but how can it make such decisions if the Bill does not include a clear definition of “harm”? Given the lack of a clear-cut definition, that cannot be the correct process by which to judge whether somebody should be on a barred list.
Conservative amendments Nos. 11 and 12 would leave out “thinks” and insert “has reason to suspect”, and we have signed up to them. We had a long debate on the matter in Committee, where my hon. Friend the Member for Brent, East and I were convinced that the use of the word “thinks” was wrong, which is one of many examples of how this important Bill is woolly at the edges. It is all very well for the Minister to suggest that we are trying to encourage paedophiles to take up inappropriate activities, but throughout the passage of the Bill we have been committed to tightening up the definitions so that the mechanism is clear, consistent and controlled, which is important.
The principle behind amendments Nos. 252 and 253 is the most important in this group. As Conservative Members have said, people will automatically be placed on the barred list, and there will be no right to make representations under the Bill as it stands. We have been told that the categories of offences that will lead to inclusion on the list without the right to make representations will be introduced in secondary legislation.
Given the offences on the illustrative list, it is difficult to think that there will be too much to worry about. The problem is that we do not know precisely which list of offences the Minister will bring forth when the regulations are introduced. As I understand it, a list of the offences that will place somebody on the automatic barring list if they are convicted or cautioned will be approved by affirmative resolution. That means that we will have to vote against the whole list or for the whole list—there is nothing in between. There is no scope for affirmative resolution to modify the list.
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My hon. Friend the Member for Brent, East and I attempted to table a suitable amendment, but its complexity was beyond our skills, which is probably why it was not selected. However, we received a great deal of support from the Bill Clerks who helped us to write it, and I express my gratitude for that. The amendment proposed a super-affirmative resolution that would allow us to make modifications when considering the secondary legislation. That procedure was used when we debated the Identity Cards Bill—
Mr. Deputy Speaker (Sir Alan Haselhurst): Order. I have allowed the hon. Lady a glancing reference to her amendment, but as it was not selected she may not debate it.
Annette Brooke: Thank you, Mr. Deputy Speaker. If I may just complete my sentence, I promise that I will move on.
As I said, there is a precedent for this procedure, so I would like the Minister to consider it. However, as an alternative we suggest an amendment to automatic barring whereby a person should be given the opportunity to make representations on why he should be moved from the children’s barred list or from the adults’ banned list where there are exceptional circumstances, but only in cases based on a caution. As I said, it is difficult to find examples from the current list, because they are pretty awful offences for which someone would end up on the barred list. The amendment would establish a presumption that certain people will be on the barred list but leave the possibility of exceptional circumstances.
The Joint Committee on Human Rights has expressed concern that
“the list of criteria for automatic inclusion on the barred lists has not been included in primary legislation”.
It suggests that the lack of provisions on representation could create an incompatibility between the Bill and articles 6 and 8 of the European convention on human rights. Article 6 clearly provides a right to a public hearing. That has been described as a fundamental guarantee, the purpose of which is to protect litigants from the administration of justice in secret with no public scrutiny. The Bill provides for no public scrutiny. Case law has established that any procedures where civil rights are determined without hearing the parties’ submissions are incompatible with article 6.
Our amendment would, in place of the automatic bar, give the IBB a power to allow people not to be placed on the list in exceptional circumstances. I stress that that would apply only in respect of a caution. For example, somebody who is just over 18 may not have realised the age of a girl with whom he has engaged in a sexual relationship. The IBB should have the scope to decide that the circumstances are so unusual that the person concerned presents no danger.
Amendments Nos. 243, 244, 246, 245 and 248 deal with an issue that was debated at considerable length in the other place—the basis on which an assessment of the risk of harm might be made. It was suggested that a recently qualified counsellor—not many qualifications are required—might become concerned by comments made or fantasies expressed to them by a patient and could pass them on for assessment by a professional in the field. Of course, confidentiality issues are involved.
I hope that the Minister will give due consideration to the many amendments to which I have spoken.
Mr. Dhanda: Let me begin with the therapeutic services that the hon. Member for Mid-Dorset and North Poole (Annette Brooke) mentioned. We have discussed the matter on several occasions, and when we met last week she was kind enough to let me know that she intended to raise it. Although I am sympathetic to the argument about providing therapeutic services, the Bill is not the appropriate place to do that, not least because it would involve the “Every Child Matters” onion of services. This is an enabling Bill to set up an independent barring board to make barring decisions, not a Bill related to those services.
On automatic barring, the hon. Lady rightly says that there is a draft list on which we will consult widely. After 10 years, even those who are automatically barred will have a right to appeal, if they wish to take it up. We are discussing that list with stakeholders. If I may, I will read out some of the offences from the list of offences giving rise to automatic barring. In respect of the children’s list, they include:
“An offence contrary to section 1(1) of the Sexual Offences Act 1956 (rape)”,
where the victim is under the age of 16,
“An offence contrary to section 5 of the Sexual Offences Act 1956 (sexual intercourse with a girl under the age of thirteen)...An offence contrary to section 1 of the Sexual Offences Act 2003 (rape)”,
where the victim is under the age of 16,
“An offence contrary to section 2 of the Sexual Offences Act 2003 (assault by penetration)”
where the victim is under 16, and
“An offence contrary to section 5 of the Sexual Offences Act 2003 (rape of a child under 13)”.
The adults’ list refers to the Sexual Offences Act 2003, which covers offences
“against persons with a mental disorder impeding choice”.
That should give the House a flavour of the kind of offences that we believe should result in an automatic bar, without the right of appeal, although a right of review in 10 years will be built in, should a person want to exercise it.
Sarah Teather: My hon. Friend the Member for Mid-Dorset and North Poole (Annette Brooke) said clearly in her speech that, judging by the illustrative list, we saw no reason to think that there would be a problem. Our concern, however, is that we have not seen the final list, and that we shall be able to vote yes or no only when we see it; we shall not be able to modify it unless the Minister undertakes to use the super-affirmative resolution procedure to allow us to do so.
Mr. Dhanda: I can tell the hon. Lady that I am committed to ensuring that there is a dialogue, and that we involve stakeholders when we set up the list. The list to which I have referred is illustrative of where we are coming from with regard to these offences.
Amendments Nos. 1 and 2, which provide for an appeal to the Care Standards Tribunal on the basis of a fact that was unavailable to the IBB when it made its barring decision, are unnecessary. The IBB already has the power to reconsider its decisions where new facts are available that were relevant to the decision to bar. I hope that that will give hon. Members food for thought, and that they will reconsider the amendments in the light of that. It would be surprising, for example, if the IBB barred a person on the basis of a conviction that was quashed following the decision to bar, and the board was not then able to reconsider the case. I am pleased to put it on record that the IBB will have this power, under paragraph 13(1)(d) of schedule 1. The procedure in such a case would be for the barred individual to apply to the IBB for his case to be reconsidered on the basis of the new factual evidence. This process would be simpler, quicker and cheaper than providing for an appeal to the Care Standards Tribunal.
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