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. The
Government believe that it is far better for harm to take its normal
meaning, which covers our intentions for the scheme. That includes
damage to a
child or vulnerable adults mental or emotional state as well as
physical harm. It will include acts of omission as well as commission.
The meaning of the word would not be restricted to physical or indeed
any other kind of consequences. In the case of vulnerable adults, it
might also include harm incurred through financial loss. With all that
in mind, I hope that hon. Members will see fit not to press their
amendments, or perhaps they will present a better definition in their
winding-up
speeches.
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 amendmentsat 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 Ministers 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 servethe
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 Adoniss 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
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 is not a
single punctuation mark in that entire sentence, so it is not easy to
grasp. When one gets ones head round it, however, it appears to
bein common parlancestating the bleeding obvious.
Naturally, the IBBs job is properly to consider any information
put to
it, and to decide whether that information is germane and relevant to
subsequent action by the IBB, but the wording of the provision is
terribly woolly, which is why we have suggested an amendment that in my
view reads much more clearly. As well as containing some punctuation,
which is no bad thing, the amendment has the added advantage of
including a cut-across between the two liststhe childs
list and the adults listthereby strengthening the
Bill. 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 morewithout any noun or adjective
attachedactually 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 Ministers 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. Gentlemans 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 iswe shall probably have some
level of agreement on that.
Amendment No. 116 would remove
paragraph 11(1) of schedule 2 and replace it with a different
provision. Amendment No. 54 would remove paragraph 11(2) of the
schedule. Paragraph 11(1) makes it explicit that the
IBB is under a duty to consider all information thatit receives
in relation to both the childrens and vulnerable adults
barred lists. IBB experts will then exercise their judgment to decide
whether the information merits further consideration in respect of both
or one of the lists. The IBB will then give the individual the
opportunity to make representations on all the evidence on which it may
base its decision, so that the individual might demonstrate that they
do not pose a risk of harm to either or both vulnerable groups.
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 individuals 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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