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.
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?
Mr.
Dhanda: Yes. There is a difference between a duty to refer
in those circumstances and an ability, as is
laid out later in the Bill. As the hon. Member for Mid-Dorset and North
Poole mentioned, we will talk later about that duty to refer. The hon.
Lady will see that clause 27 and related clauses will bring us to that
specific issue and that there is a duty to refer. She is right,
however, about the meaning of “thinks”. My view is that
changing the term to a more legalistic one would not assist the
safeguarding of vulnerable adults and
children.
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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