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 Ministers 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 Bills 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.
12
noon 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. I should
like to press the Minister again on that point. If somebody is found to
be barred by the IBB because they appear to have undertaken a certain
activity, they will be able to refer to the Care Standards Tribunal,
which will, I presume, use its current practice
of employing the civil standard, which involves a balance of
probabilities. I am sure that the Minister does not need me to point
out to him the inconsistency in that. I am not entirely sure how that
process will work. Again, perhaps the Government intend to use the
civil standard for the barring process, but that is not specified in
the Bill. It is important that we know what standard will be used,
because we do not want the thresholds to be a deterrent, but we do need
to ensure that they are proportionate to the actions that are being
taken. 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 adultthat 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
regulatorsparticularly the Care Standards Tribunalto
which we need to pay attention? We need to consider those issues, so I
would appreciate the Ministers 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
thinkreason to
suspectis 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
Ministers 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
believesand 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 amendmentsthe behaviour
that would lead to barring. I draw the Committees 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. We have had a
great deal of debate on this issue and we are concerned that there will
be a discrepancy with the Care Standards Tribunals way of
working, which is based on the balance of probabilities. For that
tribunal, people must be more than 50 per cent. sure that someone has
undertaken an activity. With the
amendment, we are proposing something that does not fit with that. We
are saying that someone has only to have reasonable suspicion in order
for a person to be put forward for barring. There is an inconsistency
in that respect, but I can thoroughly understand the need to err on the
side of caution. However, can the Minister say how in practice the
differences will be ironed out, because someone, at some point in time,
will have to deal with the
inconsistency? The
final area that needs clarification concerns the disclosure of
informationwhen someone should or should not disclose
information. I draw the Committees attention in particular to
amendment No. 99, which relates to the polices 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.
12.15
pm 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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