Mr.
Dhanda: The hon. Gentleman effectively
highlights some of the complex issues that need to be considered. We do
not consider that accepting the amendments would be the best way to
achieve our policy aims, so I hope that hon. Members will not press
them. I can commit to return on Report with something that I hope all
hon. Members will be able to
support.
Mrs.
Miller: I think that is a bit disappointing. Lord Adonis
was quite clear on the matter in his response in the other place. If we
receive assurances at one stage of the Bill that are not carried
through as promised by a Minister, it creates a certain level of
uncertainty. I understand the complexity of the matter and the need to
get the wording right, but if we are to move forward constructively we
need to ensure that the indications given are followed
through. Shona
McIsaac (Cleethorpes) (Lab): I listened to the hon.
Lady’s speech on the amendments, in which she indicated that
Lord Adonis said that a suitable amendment would be brought forward on
Report in this place. The Minister has reiterated that. We are not yet
on Report, so I cannot understand the hon. Lady’s
disappointment.
Mrs.
Miller: I thank the hon. Lady for her contribution. I did
not quite catch the Minister undertaking that he would bring something
through on Report. Maybe I have got that
wrong.
Mr.
Dhanda: I think I made it perfectly clear, maybe more than
once, that I will return with an amendment on
Report.
Mrs.
Miller: Well then, I think that that is fair. I look
forward to that at a later date. The matter is important and needs to
be clarified, and Lord Adonis gave an undertaking that we would review
it in Committee. We are disappointed that the Government have not been
able to move forward on it yet, but the Minister is in a difficult
situation. I look forward to discussing it in more detail on Report
when the Government have had a chance to give us detail. I beg to ask
leave to withdraw the
amendment. Amendment,
by leave,
withdrawn.
Mrs.
Miller: I beg to move amendment No. 43, in
schedule 2, page 36, line 27, at
end add— ‘(5) In this
paragraph— “harm”
means ill-treatment or the impairment of health or development
including, for example, impairment suffered from seeing or hearing the
ill-treatment of
another; “development”
means physical, intellectual, emotional, social or behavioural
development; “health”
means physical or mental health;
and “ill-treatment”
includes sexual abuse and forms of ill-treatment which are not
physical.’.
The
Chairman: With this it will be convenient to discuss the
following amendments:
No. 44, in
schedule 2, page 36, line 41, at
end add— ‘(4A) In this
paragraph— “harm”
means ill-treatment or the impairment of health or development
including, for example, impairment suffered from seeing or hearing the
ill-treatment of
another; “development”
means physical, intellectual, emotional, social or behavioural
development; “health”
means physical or mental health;
and “ill-treatment”
includes sexual abuse and forms of ill-treatment which are not
physical.’. No.
45, in
schedule 2, page 38, line 23, at
end insert— ‘(4A) In this
paragraph— “harm”
means ill-treatment or the impairment of health or development
including, for example, impairment suffered from seeing or hearing the
ill-treatment of
another; “development”
means physical, intellectual, emotional, social or behavioural
development; “health”
means physical or mental health;
and “ill-treatment”
includes sexual abuse and forms of ill-treatment which are not
physical.’. No.
33, in
clause 27, page 18, line 4, at
end add— ‘(7) In this
section— “harm”
means ill-treatment or the impairment of health or development
including, for example, impairment suffered from seeing or hearing the
ill-treatment of
another; “development”
means physical, intellectual, emotional, social or behavioural
development; “health”
means physical or mental health;
and “ill-treatment”
includes sexual abuse and forms of ill-treatment which are not
physical.’. No.
35, in
clause 28, page 19, line 4, at
end add— ‘(10) In this
section— “harm”
means ill-treatment or the impairment of health or development
including, for example, impairment suffered from seeing or hearing the
ill-treatment of
another; “development”
means physical, intellectual, emotional, social or behavioural
development; “health”
means physical or mental health;
and “ill-treatment”
includes sexual abuse and forms of ill-treatment which are not
physical.’. No.
37, in
clause 31, page 20, line 32, at
end add— ‘(8) In this
section— “harm”
means ill-treatment or the impairment of health or development
including, for example, impairment suffered from seeing or hearing the
ill-treatment of
another; “development”
means physical, intellectual, emotional, social or behavioural
development; “health”
means physical or mental health;
and “ill-treatment”
includes sexual abuse and forms of ill-treatment which are not
physical.’. No.
39, in
clause 33, page 21, line 33, at
end add— ‘(8) In this
section— “harm”
means ill-treatment or the impairment of health or development
including, for example, impairment suffered from seeing or hearing the
ill-treatment of
another; “development”
means physical, intellectual, emotional, social or behavioural
development; “health”
means physical or mental health;
and “ill-treatment”
includes sexual abuse and forms of ill-treatment which are not
physical.’.
No. 41, in
clause 36, page 25, line 5, at
end add— ‘(9) In this
section— “harm”
means ill-treatment or the impairment of health or development
including, for example, impairment suffered from seeing or hearing the
ill-treatment of
another; “development”
means physical, intellectual, emotional, social or behavioural
development; “health”
means physical or mental health;
and “ill-treatment”
includes sexual abuse and forms of ill-treatment which are not
physical.’.
Mrs.
Miller: The amendments relate to the
harm test, which is an important provision in the Bill setting out
behaviour that will qualify somebody to be considered for barring. It
is important that the definition should be clear in our minds and that
those who interpret the Bill have all the information that they can
have, truly to understand the actions that they need to take and the
standard of proof that is required, to ensure that the legislation is
put forward in the way that is
intended. However,
there is no clear definition of “harm” in the Bill as it
stands. When the issue was raised in the other place, correspondence on
the matter followed from Lord Adonis. Before I comment on that, I shall
explain the amendment. It is intended to define “harm”,
which means
“ill-treatment or the impairment
of health or development including, for example, impairment suffered
from seeing or hearing the ill-treatment of
another”. “Development”
means “physical,
intellectual, emotional, social or behavioural
development”, “health”
means “physical or mental health”, and
“ill-treatment”
includes “sexual abuse
and forms of ill-treatment which are not
physical.” Harm
and the harm test are fundamental planks of the legislation, and
references to them appear throughout the Bill, in schedule 2, and in
clauses 27, 28, 31, 33 and 36—hence the long string of
amendments in the group, to ensure that we cover all references to the
concept in the Bill. The amendment seeks to define “harm”
as a key term in the Bill. How can parents, employers and social
service practitioners be expected to know their responsibilities under
the Bill if such a fundamental concept as harm is not clearly and
unequivocally defined?
As I mentioned, Lord Adonis
said in correspondence on the issue that the common-sense definition of
harm would stand. However, as I am sure the Minister is aware, common
sense has no legal meaning. By leaving the Bill as it is drafted, we
risk creating confusion and inconsistency in the system, and
potentially make more work for lawyers, which we would not want to do.
We are anxious to make the Bill as simple and clear as possible. That
sentiment not only was articulated when the Bill was discussed in full
in the other place, but has been expressed by a number of pressure
groups. The concept requires further definition.
The group of
amendments use an existing and well-understood definition of harm,
namely that which is contained in section 31(9) of the Children Act
1989. That definition and its reference to “development”
has been said perhaps to be more appropriate for children than for
vulnerable adults, and the Minister might want to pick up on that in
his response. However, it is not necessary for all the elements of the
harm test to come
into play at once. Therefore, we on the Conservative Benches feel that
it would be entirely appropriate to include this reasonably lengthy
definition of harm in the Bill, so that those who interpret it know
what we mean. Although some parts of the definition would perhaps not
be deemed appropriate for all the vulnerable groups for whom the Bill
is important, it would be a catch-all for
most. We
tabled the amendments in the spirit of highlighting that point and
implore the Government better to define such a key term, to ensure that
the system works. I again point out that the Bichard report’s
overriding message was that it is vital to ensure clarity in such
areas, but there are too many loose ends in the Bill to ensure that
clarity. I hope that the Minister seizes this opportunity to improve
the Bill, to provide that clarity and to make it a more workable piece
of legislation at the end of the
day.
Annette
Brooke: I am concerned about the lack of
a definition of harm. I can see that in some ways that might mean that
it will have such a wide interpretation that everything could be
covered, which in some sense could be useful. However, it slightly
offends my logic that we do not know what it includes. I have
particular concerns about some issues that were raised by organisations
that represent older people. If the personal property or even the
personal allowance element of money that is paid in to a care home
automatically was withheld from a patient, would that definitively come
under the definition of harm? I am not sure that it comes under the
definition with these amendments, but I am quite concerned about the
financial element when we are talking about elder abuse. Sadly, it
often happens that people make friends with an elderly person, visit
them in their home and then a few things just disappear. Sometimes it
is the price of having some company, which is a really sad state of
affairs. The other
subject that was raised by some of the organisations representing the
elderly was dignity. It is very difficult to calculate an infringement
of dignity in the definition of harm, but dignity is an important
principle. This is so difficult to define that I am not convinced that
the amendments cover everything that needs to be covered. Therefore, in
a sense that is an argument against getting a definition, but on the
other hand is the Minister convinced that the Bill will be workable if
it is left as it
is?
Mr.
Dhanda: Hon. Members are right. This
debate lasted for some hours in another place. This group of amendments
seeks to provide a definition of harm to cover a range of circumstances
in the Bill. They define the term for the purposes of referrals by
employers, local authorities and regulatory and supervisory bodies to
the IBB. The definition would also apply where the IBB was considering
an individual for inclusion in a barred list. The meaning of the word
“harm” is clearly central to many elements of this Bill.
On that we are all agreed. With that in mind, I fully sympathise with
the intentions of hon. Members in tabling the amendments, but they do
not take us beyond the point that we have reached already with our
proposals for the meaning of the term. I shall explain that in a
moment, not least with reference to what the hon. Member for Mid-Dorset
and North Poole said about elderly people and finance.
As the hon. Member for
Basingstoke said, the definition used in these amendments is taken from
section 31 of the Children Act 1989, as amended by the Adoption and
Children Act 2002. I would argue that the definition of harm in that
section serves a different purpose from the one that we are trying to
achieve in the Bill. That section is about care and supervision orders
and sets the conditions that must be satisfied before a court grants
such an order. The threshold is deliberately defined in that definition
as significant harm. We must ask ourselves whether that is what we want
to put in the Bill
today. For the
purposes of the Bill, however, we want employers, local authorities and
others, to refer information to the IBB and the IBB itself to place an
individual on the barred list when the conditions set out in the Bill
are met. The Bill is concerned with referrals being made and
individuals being barred in accordance with the specific thresholds
that will underpin the effective functioning of the
scheme. 4.45
pm For the IBB to
include an individual on the barred list, it must think it appropriate
to include them. In other words, the IBB will be required to decide
whether an individual’s conduct, or the risk that they may harm
a child or vulnerable adult is sufficiently serious for them to be
included on the list. The conditions are central to defining the
thresholds in a way that is appropriate for the purposes of the Bill,
which are different from the purposes of the Children Act
1989.
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