Safeguarding Vulnerable Groups Bill [Lords]

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Mrs. Miller: The group appears intimidating, but the amendments in fact relate to similar issues at various points in the Bill. To try to ease discussion and make the Minister’s response a little, I have clustered them together with regard to the issues to which they relate. Before I go into the detail, I think it important to recognise that discussing these amendments, which are all to do with the thresholds at which decisions are made, gets to the heart of one of the issues that the Bill is supposed to address. Again, it was a key issue in the Bichard report: inconsistent decisions were being made by many different groups as a result of a lack of understanding and clarity about what the processes and procedures were. In particular, inconsistent decisions were made by employers about whom they employed, and there were inconsistencies between lists that were held which barred people from various activities and inconsistencies of police disclosures between authorities.
The Government have done a great deal to try to ease some of those issues through measures that fall outside this Bill. As I said earlier, we cannot view it in isolation. I applaud the Government for the work that they have done to date in attempting to address a number of the considerable concerns that Bichard voiced. The key to the Bill, and to our discussion on this group, is to ensure that it does not create more problems than it solves in terms of inconsistencies and clarity. The language used in the Bill is at best unclear. It is certainly not readily understood either by the layman or by the legal expert.
Can more be done to make the Bill’s intention clearer? I think a great deal can be done, and whether the Minister and the Government choose to do it in or out of Committee is immaterial. Clarity is needed. The amendments hopefully give some idea of how it could be achieved.
First, I shall set out the types of decisions that the amendments deal with. If I did not, reading a list of numbers would be unintelligible. The Bill contains a hierarchy of decisions that have to be made. There is a decision to bar somebody because of actions that they have taken and that have been judged elsewhere, possibly in a court. There is a decision to bar somebody as a result of the behaviour that they have undertaken. There is a decision to refer somebody, again because of actions that they have undertaken. There are activities by the IBB, and there are actions in terms of disclosure of information. A number of different actions are in the Bill, and the threshold for each should be different, because the consequences of the actions taken are very different.
Let us be clear that nobody in this room today would want the thresholds included in the Bill for these actions to be a deterrent to referral for inappropriate behaviour that should lead to barring. That is not the intention of the amendments, and I must make that clear. Indeed, I believe that it has been agreed in discussions in the other place to include a clause about any malicious actions that are taken. I am therefore not as concerned that the thresholds need to be a deterrent for malicious allegations, as that they should be a guide to those who have to make the law work.
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The thresholds also need to be proportionate and transparent, and engender trust among those who are being monitored. Currently, the language is unclear and does not use clear, known, legal principles. As I said during the debate on clause 1, there is considerable concern that the thresholds as expressed in no way match those that are used by the Care Standards Tribunal, which is the body to which the IBB will refer appeals.
Thresholds that need to be defined fall into the categories that I have detailed. On inclusion on the barred list, schedule 2 states that
“if it appears to the Secretary of State”
that a person has undertaken an activity that leads to automatic barring, they should be barred. Amendments Nos. 11 and 20 refer to that. Inclusion on the barred list that is subject to representation has a similar style to it. The risk of harm test also comes down to whether it appears that a person will cause harm to a child or a vulnerable adult—that is the threshold.
Perhaps the Minister can clarify what is meant by the word “appears”. It is not a transparent word, so perhaps he could explain how it will be taken as a robust measure of the activities that have been undertaken. The word is certainly not one that those whom we have consulted on the legal side of things understand clearly. Does the Minister feel that the meaning will be as clear and unambiguous as it needs to be? Does the word sit well alongside the measures used by other regulators—particularly the Care Standards Tribunal—to which we need to pay attention? We need to consider those issues, so I would appreciate the Minister’s response.
Amendments Nos. 75 and 77 to 79 deal with the duty to refer. The consequences of being referred are not as momentous as those of being barred, but there needs to be further consideration of what threshold should be adopted. Currently, the regulated activity providers have a duty to refer if they think that an individual has done something or behaved in a way that would lead them to be considered for barring. Local authorities also have a duty to refer if they think that an individual has done something or behaved in a way that could them to being considered for barring. Does the Minister really feel that the word “thinks” provides an open, transparent and objective measure of activity that has been undertaken? I reiterate that I understand the desire not to use thresholds as a way of deterring people from being referred. That is important, but neither I nor my hon. Friends are convinced that the word “thinks” is the clearest that could be used in this instance.
How will organisations respond to how this part of the legislation is written? We are dealing with allegations about activities potentially to do with the safety of young children, so the issue is very sensitive. Will organisations be led to react in a way other than how the Government intended? I am concerned that their reaction would not necessarily be to do with concern for a child or vulnerable adult, but could arise out of concern that they might break the law if they did not put forward a piece of information.
The duty to refer is an important part of the Bill, and I understand that we do not want a threshold that would stop people from putting information forward. However, the wording that we have put forward in place of “think”—“reason to suspect”—is more in line with legal terms currently in play, and I hope would be more readily understood by organisations. It is also the lowest possible legally recognisable threshold, so I hope that it will not be criticised for being unduly onerous. In fact, it gives a basis on which information can be put forward and, hopefully, does not run the risk of deterring anybody from referring individuals about whom they are concerned. I shall be interested to hear the Minister’s response to that point.
Amendment Nos. 91 to 93 refer to the operation of the independent barring board, and it is worth considering them. I feel, and I am sure that the Minister will agree, that openness and transparency in how the board works is vital, yet the language in the Bill about how the board will operate is, at best, vague. The amendments attempt to ensure a little more openness and transparency in how the board will work. The Bill may use new parliamentary language, but it is not helpful to those with legal minds. I am not legally minded myself, but I take the advice of those who are.
The IBB is to undertake activities that it “thinks” are correct in respect of compensation, staff, gifts and loans. The word “thinks” smacks not of objectivity, but of subjectivity. Our amendment would change “thinks” to “believes” and put the IBB on a far more stable footing. Again, amendment No. 62 would change “thinks”, in respect of the actions of the Secretary of State, into “believes”—and again, that would lead to a more objective measure. Amendment No. 101 is similar.
I move on to the most important part of this set of amendments—the behaviour that would lead to barring. I draw the Committee’s attention particularly to amendments Nos. 14 and 42. They are important because when an individual is considered for automatic inclusion, or inclusion subject to representation, they will, for the most part, have undertaken an activity for which they have been found guilty by another body. However, the other way of getting barred is through behaviour. By definition, that issue will be far more important to get right, because it will often involve soft data. It will certainly not involve data that would necessarily stand up in a court of criminal law, so it is important that we have a clear idea of what the IBB will do in terms of the threshold for barring based on a particular sort of behaviour.
Again, we have not proposed an amendment that would unduly raise the threshold to a level that would cause concern or deter people. We would merely change the word “appears” to something that would be more appropriate and understandable and perhaps provide more of a basis. I am referring to the concept of reasonable suspicion. As the Minister will know, that is the lowest standard of proof available to us legally.
The final area that needs clarification concerns the disclosure of information—when someone should or should not disclose information. I draw the Committee’s attention in particular to amendment No. 99, which relates to the police’s ability to withhold information if they think that it is not in the interests of preventing crime to release that information. Under the Bill, we are saying that the only threshold that the police force needs to satisfy is that it “thinks” that it is not in the interests of preventing crime to release the information. “Thinks” is such a vague term. There have been problems in the past with inconsistencies in relation to releasing data and the way in which the police deal with data. We have to learn from that experience and put in place a measure that is far more readily understandable and, we hope, will be far more consistently applied.
The rationale behind this string of amendments is clear. At some stage, someone will have to make a decision on whether an individual is barred, either because they have done something for which they have been convicted, or because they have undertaken an activity that is deemed to be inappropriate and therefore they are eligible for barring. We cannot sidestep that issue; we must face it head-on. The Government have clearly chosen not to deal with it directly in the Bill, which I am surprised at, given the level of debate on these issues. This is not a debate on which standard or threshold should apply. It is about the fact that a threshold is needed in the measure and it needs to be consistent, clearly communicated and actionable. At the moment, the Bill is not clear and therefore perhaps not easily actionable by those who will have to deal with it.
Annette Brooke: We have a great deal of sympathy with the comments of the hon. Member for Basingstoke, in that the terms “thinks” and “appears” do not provide a sound basis on which one could make a judgment or, indeed, make representations against a judgment, which is quite an important aspect of the Bill. We shall therefore be interested in what the Minister has to say about the lack of precision. That is the real concern. We all agree with the principles, but there is a lack of real understanding of what is meant.
With regard to amendments Nos. 91 and 92, paragraph 13(1)(d) of the schedule refers to
“such other things as IBB thinks necessary or expedient.”
We Liberal Democrats question whether a board as a collective or a corporate body thinks. It is not applicable for “believe” to be used either, in so far as there is more clarity concerning the Secretary of State. We are sure that the Secretary of State does think, but we are not sure that the independent barring board should be said to think. We are concerned, beyond what the hon. Member for Basingstoke mentioned, about paragraph 13 of the schedule.
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I should like to know about the terms of the delegation mentioned in clauses 6 and 7 and whether the protocol involved will clearly be set out somewhere. We asked about that earlier but did not get a clear answer. If we accept that the board cannot deal with the decisions itself, what will be the terms of the delegation? Will those be clearly published?
Mr. Dhanda: The amendments seek to make explicit provisions to require the IBB, the Secretary of State, the independent monitor, chief officers of police, local authorities, professional regulatory bodies, inspectorates, employment agencies and employers to have a reason or evidence before taking any action that they are obliged or have the power to take under the Bill.
As a general principle in relation to referrals, it is right that the IBB should be able to consider all information that is referred to it. To limit that in any way would limit the power of the IBB to make an informed barring decision. If information referred to the IBB is obviously false, spurious or insufficient to result in inclusion on a barred list, the intention is that it should not consider the information further than is necessary to establish that fact. There will be no detrimental effects on the person who is the subject of the referral. I hope that hon. Members will agree that it is better that the IBB should be able to consider the information, even if only to dismiss it immediately, rather than never being able to consider it all and risking missing a vital piece of information. In some cases, it is only as a result of many small pieces of information that a serious risk can be identified. That is the rationale behind the central and expert IBB. The hon. Member for Basingstoke answered her own question by saying that she wished to include the thresholds or legal words in the Bill, but did not want to deter people. She finds herself in the conundrum of doing one thing or the other.
Many of the amendments relating to the operation of the IBB do not make sense in that context. For example, amendments Nos. 11, 12, 21 and 22 would require the Secretary of State to have evidence that a person has committed an offence that would lead to automatic barring before he referred the matter to the IBB, rather than it appearing to him to be so. The commission of the offence will not be in doubt. The Secretary of State will know about it through criminal records, so no test that he has evidence that the offence has been committed is required in the Bill. I realise that that is complex and legalistic.
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