Safeguarding Vulnerable Groups Bill [Lords]

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Mrs. Miller: Is the Minister saying that he does not want a definition, or that this is the wrong definition? Perhaps he could clarify that. In his response, he is saying that it might be the wrong definition. Perhaps it would help if we looked for another definition of harm.
Mr. Dhanda: I would be delighted if, during her winding-up speech, the hon. Lady were to suggest another, better definition. I would be happy to consider that during the debate. I shall come to the definition that we are using in a moment. Her definition relates specifically to supervision orders, and the hon. Member for Mid-Dorset and North Poole made some good points during debate on earlier clauses about simplicity and the need for people to understand the Bill. We are discussing the usual use of the word “harm”, but I shall elaborate on that in a moment.
If we define the precise meaning of harm as the amendments suggest, there is a danger that we will unnecessarily restrict the circumstances in which an employer, for example, can refer information to the IBB or the IBB itself can consider barring an individual. It is not clear, for instance, whether the suggested definition would allow the IBB to determine whether an individual had harmed a vulnerable adult if they had defrauded elderly care home residents, who the hon. Member for Mid-Dorset and North Poole mentioned. Is that what we want to do? That would be the consequence of the amendment.
Annette Brooke: Will the Minister give way?
Mr. Dhanda: I am afraid that I have concluded my remarks.
Mrs. Miller: I thank the Minister for his response on that string of amendments—at least, I think I do. I certainly thank the Liberal Democrats for their support, albeit with some reservations, for the amendments.
As the Minister said, the concept of harm is central to the Bill. We have used the definition from another Bill to illustrate the need to include a firmer definition in this one. I think that all Members would be open to considering alternatives that may cover the issues—
Sarah Teather: Does the hon. Lady agree that there is a problem with leaving the definition so broad? I can imagine, for example, a situation in which a bad teacher instilled low self-esteem in a child. Would that count as harm? Unless it is quite tightly defined, there is a danger that, in a whole set of issues, somebody might be eligible for barring. I understand the Minister’s point about wanting the widest possible range of people, but that is quite different from the legalistic way that we expect the independent board to make decisions about who should be barred.
Mrs. Miller: I thank the hon. Lady for her contribution. It shows the strength of feeling in the Opposition about the issue and the need for the Minister to reconsider it before Report. As she says, the concept is currently used as a catch-all for many different activities.
Again, we must consider what we are trying to achieve with the Bill. We are trying to achieve clarity, and if we fail to do that, we will fail in our duty to protect the people whom we are here to serve—the vulnerable people and children for whom we are trying to provide more protection. I asked the Minister whether he would like to have a different definition rather than this one. I got the impression that he was quite interested in pursuing a further definition. Perhaps he is as uncomfortable with Lord Adonis’s concept as we are.
Mr. Dhanda: I am comfortable with it. The hon. Lady needs to be aware that, regarding discretionary barring, a risk of harm alone is not sufficient for the IBB to place a person on the barred list. There is an additional appropriateness list set out in the Bill. Together with the normal definition of harm to which we are accustomed in society, that makes this a good rationale for us to move forward.
Mrs. Miller: I thank the Minister for that clarification. I still think that it is a broad, catch-all concept that says that anything that constitutes harm can be construed as behaviour that would, if not completely, at least partially, put somebody forward for consideration to be barred.
It is difficult when we are struggling with English in the provision. We have heard from the Opposition Benches and from other groups that a tighter definition of harm may be helpful. Yet the Minister said that it would only ever be part of a decision-making process and that we do not have to worry too much about it. I do not take much comfort from that. If we are going to use concepts and terms within Bills that we are struggling with, let us think about those who are trying to interpret it, who may not have the assistance—
Mr. Dhanda: Of lawyers.
Mrs. Miller: Absolutely. A great number of groups in my constituency will be forced to take account of what is in this Bill. They do not have the funds to employ an army of lawyers to go through it with a toothcomb to attempt to understand the minutiae of the provision. The Minister needs to remember for whom such legislation is introduced.
The Minister has heard from the Opposition that concern remains about leaving the concept of harm so broadly defined. It is our intention to return to the matter at a later stage, perhaps when we have had the opportunity further to discuss with him his particular concerns with the amendment in its current form. We will do a great service to many people if we are able to pursue and to receive further clarification on the matter. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Tim Loughton: I beg to move amendment No. 116, in schedule 2, page 38, line 27, leave out sub-paragraph (1) and insert—
‘(1) IBB must ensure that, on receipt of any information in relation to an individual from whatever source or of whatever nature, it considers whether the individual should be included in both barred lists, in one barred list, or in neither barred list.’.
The Chairman: With this it will be convenient to discuss amendment No. 54, in schedule 2, page 38,line 31, leave out sub-paragraph (2).
Tim Loughton: I thought I had better justify my existence here today. Amendments Nos. 116 and 54 are probing and relate to schedule 2. My hon. Friend said just now that we are struggling with English in this Bill. This is again a classic example of the way in which many parts of this Bill are opaque in the extreme.
The offending provision is paragraph 11(1) of part 3 of this schedule. Mr. Martlew, if you can make any sense of it, you are a greater man than I am. It reads:
“IBB must ensure that in respect of any information it receives in relation to an individual from whatever source of or whatever nature it considers whether the information is relevant to its consideration as to whether the individual should be included in the barred list.”
There are concerns among certain organisations as to whether inclusion on one list should effectively mean automatic inclusion on another list. Some of them would like to see that, and the wording of amendment No. 116 would make it much clearer that the IBB should consider whether the individual under consideration
“should be included in both barred lists, in one barred list, or in neither barred list.”
That is plain and unambiguous, which one cannot say for a lot of the Bill.
Amendment No. 54 refers to paragraph 11(2), which I just cannot understand. That sub-paragraph says:
“Subparagraph (1) does not,”—
at least we have punctuation—
“without more,”—
it looks as though there is a word missing—
“require IBB to give an individual the opportunity to make representations as to why he should not be included in a barred list.”
I have been doing Bills for some years, and I have not previously come across the phrase “without more”. I may be missing something, and I hope that the Minister will enlighten us and tell us that the term is perfectly legitimate, so that at least in Committee we may understand what “without more”—without any noun or adjective attached—actually means. I hope that he will also explain why the intention is apparently to prevent individuals from making representations that they should not be included on the list.
I am afraid that this particular part of the schedule is especially woolly and badly worded, and the intention is not clear. The amendments are supposed to be constructive and I think that it is quite plain what we are trying to say. I should like to hear the Minister’s justification of why paragraph 11(2) should remain in the Bill, and his explanation of what “without more” means.
Mr. Dhanda: Before I set out the unintended consequences of the hon. Gentleman’s probing amendment, regardless of how clear the English of it might be, I am reliably informed that the offending paragraph to which he referred was inserted in the Lords to make explicit what was implied. The Government were responding to pressure to ensure that the Bill stated the obvious, and I shall explain more about what that obvious thing is—we shall probably have some level of agreement on that.
5 pm
The provision is important. It was created by Government amendment in another place to make explicit in the Bill what was already implicit. There was much debate about the issue, and all parties welcomed the resultant amendment. Lord Adonis noted that the amendment would ensure proper consideration of cases that are referred from both lists. That is the principle: if an individual is referred to the IBB, they can be considered for both lists.
Amendment No. 116 would replace that provision. The IBB would proceed to full consideration of the case on receipt of any information by gathering evidence and giving the individual the opportunity to make representations, rather than first being able to consider whether the information is relevant. It is important that the IBB can use its discretion to consider information and choose not to proceed to a further stage where, for example, the information is clearly false or malicious. That is why I refer to the unintended consequence of the probing amendment.
Sub-paragraph (2) clarifies that the opportunity to make representations does not arise in every case, as the IBB, having considered some information, may conclude that it does not warrant the individual’s inclusion on the list. If the IBB considers it appropriate to include a person on the list, it must give the individual the opportunity to make representations.
Amendment No. 54 would remove the clarification that paragraph 11(2) provides, but the IBB would nevertheless be required to give an individual the opportunity to make representations in every case when the information indicated a risk of harm. I hope that that provides some clarification for the hon. Member for East Worthing and Shoreham and that my remarks provide clarity for anybody who should look up the clause. With all that considered, I hope that the hon. Gentleman will withdraw his probing amendment.
Tim Loughton: Pepper v. Hart comes to the fore if we are required to consider this debate to work out what the legislation means.
I am grateful for what I think is a clarification in part, although I did not hear the definition of “without more”, about which I asked. If the Minister would like to intervene, I would be grateful, because it is not English, let alone meaningful.
Mr. Dhanda: I shall be happy to drop the hon. Gentleman a note to clarify exactly what it does mean.
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