Safeguarding Vulnerable Groups Bill [Lords]

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Mrs. Miller: Is the Minister saying that there is no requirement to have evidence? A certain group of people will be referred for barring based on activities that they have undertaken and for which they have been convicted. They will automatically be barred—or barring will at least be proposed—but they will be able to have representation. However, another group will be put forward for barring based on the sort of evidence that the Minister has been speaking about—information that is gathered together, which is colloquially known as soft evidence or soft data. Is he saying that there will not be a standard of proof for that data? How will the IBB assess it?
Mr. Dhanda: The hon. Lady is probably aware that there are four ways to be barred. First, the automatic bar, without the right to make representations, is for the most serious crimes—for example, the rape of a child under the age of 13. In the second, people can be barred because they have committed crimes, but less serious ones, and they have a right to make representations. The third is the discretionary bar—perhaps Ian Huntley could have been subjected to one—when evidence has amassed over time and referrals have been made to the IBB. If it judges the evidence—I shall speak in a moment about judging evidence—it can choose to place a bar on that individual. The fourth can be imposed because of the risk of future harm, which we shall come to later in the Bill; a person can be barred because the IBB has decided that there is a danger that someone will commit harm to a child in future. That can be decided, for example, on the back of a psychiatrist’s report. In all those cases, however, the priority, first and foremost, is the child or vulnerable adult, and erring on the side of caution.
The hon. Lady asked fair questions about the standard of proof or evidence. The IBB is the decision-making body. As I said earlier, the Care Standards Tribunal hears appeals on points of fact and law. The burden of proof for the tribunal and the IBB is the same. However, their respective roles are different. In determining appeals, the tribunal uses the civil standard of proof—the balance of probability.
Mrs. Miller: I thank the Minister for that enlightening reply. Although I have read all the debates in the Lords, this is the first that I have heard of that. I am not aware of it having been spoken of before. If it requires the civil standard of proof, why not state it in the Bill? It is not something that will be pored over only by lawyers. All members of the Committee who are school governors will need to know what it says. Those who run voluntary organisations will need to know. If the standard of proof required for soft evidence is the balance of probabilities, it will be jolly useful to have it stated in the Bill.
Mr. Dhanda: I will have to come back to the hon. Lady on that, but I believe that a provision on the balance of probabilities may well be in the Bill.
Mrs. Miller: It is not.
Mr. Dhanda: I will take the hon. Lady’s point on that. However, the decisions will be made by the independent barring board, and experts will have to make a judgment on the circumstances and form opinions on them. Yes, they will have to consider the burden of proof, but it is only common sense to expect them to use the balance of probabilities when considering that evidence.
I shall continue with the amendments. They are unnecessary in drafting terms, as Parliament imposes an obligation on, or gives a power to, a person to do something that arises only if he thinks that something is the case. Parliament does not intend that the obligation should arise, or that the power should be exercised, on the basis of a thought that is unreasonable. It is implied that any view that a person must form as a precondition for a power of duty to arise must be a reasonable one. That means that there is a reason to form the view, or evidence to that effect. Having given that reassurance, it may be useful if I address some of the concerns that may lie behind the amendments relating to referrals to the IBB.
Amendments Nos. 32 and 34 modify the harm test, so that an employer or personnel supplier must have “reasonable grounds to suspect” that the harm test has been satisfied, rather than “thinking” that it has been satisfied, before the employer falls under a duty to refer relevant information to the IBB about the person whom the employer has dismissed, or who resigned before he could be dismissed. The harm test is that a person may harm, attempt to harm or incite another person to harm a child or vulnerable adult. Amendments Nos. 32 and 34 appear to add nothing to amendments Nos. 75 and 76, which would require the grounds for all obligatory referrals to the IBB, including those referrals made as a result of satisfying the harm test, to be based on a reason to suspect.
Amendments Nos. 75 and 76 would have no practical effect on referrals from employers and employment agencies to the IBB. That is for two reasons. The first is that, in order to refer to the IBB, an employer or employment agency will need to have information on the basis of which they think that the conditions for the duty to refer the information have been satisfied. The information to be referred will be prescribed in secondary legislation and may include name and address details, details of the behaviour engaged in by the subject of the referral, other relevant documents, including medical or psychological reports, and details of any disciplinary hearings. In practice, that information must include the evidence on the basis of which the employer or employment agency thinks that the conditions for the duty to refer have been satisfied. In another place, the Government have already committed themselves to issuing guidance to employers on the thresholds for the duty to refer information to the IBB, including on interpreting the harm test.
Mrs. Miller: It is great progress to know that, in order to be referred for barring, a person needs to have passed the civil standard. I just want to make sure that I am absolutely clear on the subject. I know that it is a complex matter, but it is what we are here to debate. On the harm test and the duty to refer, will employers be asked—presumably in codes of practice—to use the civil standard, too? Is the Minister rejecting my amendments because they are not strident enough, and because “reasons to suspect grounds” is a lower burden of proof, or is he rejecting them for some other reason? I am not quite clear on that.
Mr. Dhanda: Let me make it clear: I am not talking about a civil standard of proof having to be met before people can make referrals, as I said early on. That is for reasons that the hon. Lady gave herself: we do not wish to deter people from providing evidence. It is up to the IBB to decide whether to accept that evidence, whether the evidence is spurious, or whether it should disregard the evidence. Piece by piece, that evidence might in future be relevant to the IBB in making a decision. We are not setting a standard that has to be met by those who refer before putting forward that information. It is up to the IBB to judge on a case-by-case basis, as I made clear. The hon. Lady alluded to that herself earlier.
It is important to remember that a condition of the duty to refer arising in relation to employers is that the employer must have dismissed the individual, or have intended to dismiss him had he not left the employer’s employment. I think that that already sets a high threshold before the employer refers the case to the IBB.
The second reason that amendments Nos. 75 and 76 add nothing to the Bill is that a person acting as a private citizen, including an employer or employment agency, already has the ability to make a referral to the IBB, which may then consider the information and decide whether to include a person on the barred list, according to the procedures set out in the Bill. Let us imagine a hypothetical situation in which an employer or employment agency thinks, without a reason or reasonable grounds, that the conditions necessary to trigger a duty to refer information to the IBB have been met. Even under amendments Nos. 75 and 76, the employer or employment agency would still have the ability to make the referral.
12.30 pm
Mrs. Miller: This will my last question on the issue; it is important that we get this clear. The duty to refer is an important duty on local authorities and other such organisations and on third parties that will have to undertake an awful lot of work. They need clarity and will read what is said in Committee to ensure that they do their jobs right. The Minister said that they do not refer on a balance of probability, because they have reason to suspect or because they have reasonable grounds, and that for some reason using the word “thinks” is different from the three accepted ways of analysing a situation. Will he expand on why that is different from specifying “reasonable grounds”? It is not a word with which legal departments in local authorities are used to dealing.
Mr. Dhanda: It is different for the reasons explained by me and others in our debate about over-legalistic language. People understand the term “thinks” in its normal sense as well as they understand “reasonable thought”. [Interruption.] Obviously, I have not totally reassured hon. Members on that point, but I do not feel that making changes and adopting the terms that the hon. Lady has proposed will help to safeguard children or vulnerable adults. It might even do the opposite and deter people from referring information to the IBB.
Sarah Teather: May I test what I think that the Minister is saying, then perhaps he can explain whether I have got it right? I believe that he is saying that anybody who thinks that there might be a problem has the ability to refer, but they have a duty to refer only if they are about to dismiss, or have dismissed, the person concerned. Is that correct?
Mrs. Miller: I am sorry, but I have broken my promise—I have one further point to raise. My point relates directly to inclusion on the barred list and the much more serious situations in which somebody has undertaken an activity that may result in their being considered for inclusion. I have a note to remind myself that there was a Department for Education and Skills note about that matter in April. It talks about reasonable doubt, which is the only place I have found that reference. Will the Minister take this opportunity to clarify whether those included on the barred list, either through automatic inclusion or following representation, will be measured by reasonable doubt? The notice dated April talked about reasonable doubt in those situations. Would that be yet another threshold that he implicitly assumes will be there?
Mr. Dhanda: Let me provide a bit of clarity. There are two forms of auto-bar. One is for the most serious crimes, such as child rape and robbery. If someone has been through the legal process and been found guilty, there is little reasonable doubt about it. The other process is where a person has committed a crime or accepted a caution and the IBB has informed them that they are barred from working with vulnerable children or adults. In such cases, they have a right to make representations. That is the difference, regardless of terminology. With all that considered and taken on board, I hope that the hon. Lady will withdraw the amendment.
Mrs. Miller: This has been an enlightening discussion that it was important to hold. As I said in my introductory remarks, the Bill contains a number of thresholds that have to be considered. At present, because of the language used, it is unclear what standard of proof is required for each different process. The Minister has gone some way to clarifying some of the processes, but I remain concerned that this is a Bill that people must interpret. Back in my office, I have four lever-arch files of letters from Lord Adonis and notes from the DFES about how the Bill is to be interpreted.
We heard earlier from one of the Liberal spokesmen about the lack of clarity in educational establishments over which regulations are in force and which bits of paper have overridden others. I am concerned that before the Bill has even passed through this place parts of it are being given meaning in additional notes, without that meaning being enshrined in the Bill. I understand that in the real world we need to ensure that the pieces of legislation we pass can evolve and develop in accordance with the situations we find ourselves in.
I am not trying to fetter the IBB’s activities by putting forward my amendments, but the ambiguity in the Bill is not as necessary as I first thought. It appears that the Government have gone a long way in their thinking about how terms are to be interpreted. I am pleased that there is not a discrepancy between the Care Standards Tribunal’s standard of proof and the standard that will be employed by the IBB. But I and several lawyers read the Bill and did not pick that up. That is of deep concern.
I urge the Minister to consider whether amendments, perhaps on Report, would be of benefit, not so that we can feel that our arguments have been heard but for the far more practical reason that people may understand what they are supposed to be doing. We could then hold the relevant bodies to account to ensure that they are doing what they should be.
The wording that I have suggested, particularly with regard to inclusion on the barred list, is an awful lot less burdensome than the language that the Minister says should be there. I fought shy of putting the civil standard forward as the burden of proof because I felt, clearly wrongly, that one would be criticised for putting forward a burden of proof that was quite difficult to attain. Clearly that is in the Minister’s mind. Perhaps it should now be more clearly articulated in the Bill because it is an important point that needs to be clarified.
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Prepared 12 July 2006