Safeguarding Vulnerable Groups Bill [Lords]


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The Chairman: Order. I am afraid that that was a winding-up speech on the amendment, but I shall use my discretion and allow the hon. Lady to speak.
Annette Brooke: I really do welcome you to the Chair, Mr. Martlew. It will be a great pleasure to serve under your chairmanship.
I want to make a few brief points. Liberal Democrat Members are still confused about the automatic barring. If there are no representations and no appeal, how can there be a check on whether there is an error in the listing? Will the Minister please answer that, so that we know where we stand?
On amendments Nos. 133 and 134, I am pleased that there will be something in regulations because the point is important. I notice that the Minister in his amendments specifies under-16s later on, but I want to quit while I am ahead and accept that the details will be in regulations.
Mr. Dhanda: I assure the hon. Lady that it is not our intention that the IBB will be an all-seeing, monstrous beast. I want to make it clear to the hon. Member for Brent, East that, if someone is on a barred list because they have committed, for example, rape of a child—we are talking about the most serious crimes for which offenders receive an automatic bar without the right of representation—but says that they did not commit the crime and are not in prison and the IBB then receives correspondence from that person, it has the right to take that person off the list and admit that it made a mistake. That is what we envisage it would do.
Annette Brooke: I think my hon. Friend and I are both relieved to hear that answer.
I am disappointed about the therapeutic services point. I moved an amendment to the Children Bill 2004, which would have covered the health authority, local authority and the police, but I could not persuade the then Minister that that was appropriate. I wonder whether there will ever be a time in this country when everyone who needs therapeutic services will actually be referred to them. I am sure that I shall revisit the issue in yet another guise, but I am disappointed because the same points were made in relation to the Children Act 2004 and the Sexual Offences Act 2003, yet we still know that young people are not getting the treatment that they need. I hope that the Minister will consider that in his wider role, because it is important.
Mrs. Miller: I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.15 pm
Mrs. Miller: I beg to move amendment No. 50,in schedule¬ 2,¬ page¬ 35,¬ line¬ 21,¬ leave out sub-paragraph (a).
The Chairman: With this it will be convenient to discuss amendment No. 52, in schedule 2, page 37, line 16, leave out sub-sub-paragraph (a).
Mrs. Miller: The second string of amendments to schedule 2 consists of amendments Nos. 50 and 52. Those amendments would change the Bill so that there would be no automatic bar on reference fromthe Secretary of State without the opportunity tomake representations first. That follows the same theme as before. Amendment No. 50 would remove the obligation to place directly on to the barred list those who are referred to the IBB for consideration for barring. Amendment No. 51 places a duty on the IBB to inform relevant organisations that a person is under consideration for barring. The amendments are therefore obviously linked.
As the Bill stands, the IBB must automatically bar an individual on referral. As we discussed this morning, the threshold for that referral is the belief that somebody has undertaken an activity construable as inconsistent with holding a job relating to vulnerable adults or children. We have rehearsed the arguments on why that is the appropriate threshold for referral and the Minister has made clear his view. On the strength of the threshold, an individual can be put forward to be automatically barred from the list until the case is reviewed. It is entirely possible that there are other meanings, and the Minister might want to clarify the position, but that is the way that the Bill reads now.
I should like to know why the Bill is worded that way, however. Obviously, we want to remove individuals from settings where there is potential for harm, but there are some clear consequences that would ensue from that procedure. When the new legislation is enacted, there could well be a great many people who are referred to the IBB because of a lack of understanding and clarity on the nature of the threshold for barring. We could end up with a situation in which many people are proposed for barring and are put on the list, but then need to have their cases reviewed because their cases are believed to be unsound. That could undermine the credibility of the IBB.
The amendment attempts to achieve what the Minister is trying to achieve in the Bill, but differently. It might be desirable for individuals to be put forward for potential barring, but it is not desirable that they continue in situations that would potentially cause vulnerable adults or children to be exposed to unnecessary risk. However, is it absolutely necessary to put them on the list straight away?
Perhaps the Minister will take the opportunity to clarify that point, because taking the course of action that is proposed could cause unnecessary complications in the procedure. If he would explain a little more fully how it might work in practice and why the amendments are not required, I should be most grateful.
Mr. Dhanda: I think that, all in all, the hon. Lady is doing a decent job of scrutiny. I do not mean to patronise her, but she has got it wrong on this particular area, which is why I am hoping that she will not press her amendments to a Division. I can assure her that there is no danger of somebody who is in the work force being automatically barred as a consequence of a referral. I therefore hope that she will withdraw the amendment.
The automatic inclusion provisions apply only to the prescribed criteria—convictions or cautions. Where there are allegations against someone in the workplace, such as a teacher in a school, once a referral has been made to the IBB that person will not be suspended or stopped from working. They will have a right to make representations. I can assure the hon. Lady that she has slightly misread the Bill in that respect, so I hope she will not press her amendments to a Division. It is a complex Bill and I can understand why she may have drawn her conclusion, but I can reassure her that what she outlined is not the case.
Amendments Nos. 50 and 52 would remove the provisions in paragraphs (2) and (7) to schedule 2 stating that the IBB would include individuals in the barred lists as a result of automatic barring offences where the individual is given a right to make representations. Our intention in making provision for automatic barring with a right to make representations and a right of appeal was to afford the maximum protection to vulnerable groups by immediately removing the group of people who had committed a range of serious offences—I must emphasise that we are talking about serious offences—from positions where they could cause harm to children or vulnerable adults.
At the same time, we will ensure that the system is fair by providing a right to make representations to reflect the fact that in these cases an assessment of risk should be made by the IBB following barring so that there is a possibility that such an individual may be removed from the list. I am talking even about the most serious cases. We envisage that unless the representations that the individual makes clearly demonstrate that they did not pose a risk of harm, the IBB would not remove them from the barred list.
Once the IBB has decided to retain an individual on the barred list, there would be a right of appeal to ensure that any mistakes in findings of fact or law could be rectified. If we did not have such a provision, fairness would dictate that the IBB would have to provide a right to make representations before barring and effectively treat the offences under a discretionary route. That would reduce protection for vulnerable groups. The provision is a key element of the barring scheme and of ensuring that we are able to provide the safeguards that vulnerable groups deserve. I therefore ask the hon. Lady to withdraw the amendment. I hope that I have been able to help clarify the reasons behind the Bill as it stands.
Mrs. Miller: I thank the Minister for clarifying that. It is reassuring to know what is and what is not the intention behind what is included in the Bill. I feel that the use of language in the Bill and the over-complexity of the Bill makes its interpretation a little questionable. Will he consider the many people who will have to interpret the Bill’s content and how we can make it easier and more straightforward?
Mr. Dhanda: I think that is why the point that the hon. Lady and Members made about communication will be so important. We will ensure that we take such action to ensure that that kind of confusion does not occur.
Mrs. Miller: I want to make a final point on this matter. The process is complex; perhaps it has to be complex. I reiterate the point that the hon. Member for Mid-Dorset and North Poole made earlier about people being included on the list automatically, even when there is potential for error, because the rules of the game must be clear when we communicate the end product of the Bill to people who are affected by it. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mrs. Miller: I beg to move amendment No. 29, in schedule¬ 2,¬ page¬ 36,¬ line¬ 13,¬ leave out ‘child’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 48, in schedule¬ 2,¬ page¬ 36,¬ line¬ 27,¬ at end insert—
‘(5) Any guidance issued under this paragraph must prior to implementation be approved by Parliament through regulations subject to the affirmative resolution procedure.’.
No. 49, in schedule¬ 2,¬ page¬ 38,¬ line¬ 9,¬ at end insert—
‘(5) Any guidance issued under sub-paragraph (4) must prior to implementation be approved by Parliament through regulations subject to the affirmative resolution procedure.’.
Mrs. Miller: This group of amendments is relatively straightforward. I shall be interested to hear the Under-Secretary’s response, because this subject was discussed in the other place.
Amendment No. 29 focuses on removing the discrepancy on conduct involving pornography concerning adults and children in the two parts of schedule 2, as was discussed in the House of Lords. Amendments Nos. 48 and 49 relate to defining inappropriate conduct inschedule 2. The amendments are all about better defining conduct that might prove prejudicial against individuals and prevent them from working with children or vulnerable adults. Like many of our amendments, they are intended to clarify, probe and therefore strengthen the Bill.
Amendment No. 29 would remove an inconsistency identified by many interest groups and Members of both Houses of Parliament. Currently, there is a provision relating to child pornography and relevant conduct that might bar people from working with children, whereas the measure relating to relevant conduct in relation to vulnerable adults mentions all pornography, without the qualifier, “child”. It is for the IBB to assess whether conduct relating to pornography is inappropriate. The Bill does not state that possession of pornography would, in itself, lead to barring, but we need to take some time to understand this issue. I was interested to hear that the Government have not tabled an amendment on this schedule, even though there was a heavy indication from Lord Adonis that one would be tabled on Report, primarily because he felt that there was great merit in this argument.
The difference between the two elements of the schedule, relating either to children or to vulnerable adults, needs to be removed, because—I am sure the Under-Secretary has been briefed on this—there is a genre of pornography that depicts adults as children or babies. The caveat in that part of the Bill is at best confusing and does not provide the clarity that we need. It is irrelevant whether the pornography that is deemed to be used inappropriately relates to children or adults; if it results in behaviour that causes concern, the IBB should be able to consider it in whatever form it takes.
Mr. Dhanda: I may have more good news for the hon. Lady. As she has said, there has already been a lot of discussion about this difficult issue in the other place. Lord Adonis advised on Third Reading that further analysis was needed to agree the precise words to assure that the requirements for both lists provided the necessary protection to both groups. He made it clear that that would involve considering both provisions for both children and adults to ensure that we deal with all the situations that we wish to cover.
As we expected, the issue is particularly complex, for some of the reasons that the hon. Lady mentioned. We have yet to resolve it, but we remain committed to doing so. I know from discussion here and in the other place that there is agreement, but we must ensure that amendments do not create a situation whereby a large number of individuals are referred to the IBB for legitimate behaviour relating to adult pornography, which is not illegal and the use of which will not generally be of concern to the IBB.
4.30 pm
Tim Loughton (East Worthing and Shoreham) (Con): I appreciate that this is a thorny subject and that the Minister’s colleagues in the Home Office have recently undertaken a consultation on the use of extreme images on the internet, to which I made a submission. Will he acknowledge that, while adult pornography is a separate issue, the downloading, possession and possible acting on influences of hardcore images involving violence against both children and adults—murder in many cases—is inappropriate behaviour that should be covered in the Bill? We need to extend the definition of pornography to such material. I believe that the Minister’s colleagues in the Home Office are rightly looking to bring in offences to clamp down on it.
 
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