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withdrawn. 4.15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? Amendment No. 51
would ensure that even when somebody is being considered for barring,
employers would be aware of the situation and would be obliged to take
appropriate action to ensure the safety of vulnerable adults and
children. We would have to
consult various bodies on the operation of the amendment in practice.
However, those operational details could be incorporated into the
copious volumes of regulations and codes of practice that will follow
the legislation. One can anticipate that employers would take the
stance that individuals should be suspended while they are being
investigated by the IBB. However, I should like to press the Minister
on whether we should consider anonymity for individuals who are under
referral, until a ruling has been made. 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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