Safeguarding Vulnerable Groups Bill [Lords]


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I take on board the Minister’s comments about amendment No. 116 and its unintended consequences. I applaud the sentiment behind his statement and the Lords amendment to discount vexatious referrals, about which we are particularly wary. It is too late to table an amendment, but on that basis, will the Minister reconsider on Report the wording of paragraph 11(1)? It refers to
“whether the information is relevant to its consideration”.
I would have thought that we could find a better word than “relevant”. Information may be relevant to the work of the board or to an inquiry that it undertakes, but is it justified? We need to find a word—not necessarily “justified” but with the same implication—that would clearly give the IBB the power to dismiss vexatious complaints not because they are not relevant but because they are not justified. The Minister and I know what he wants from the clause, but it is still unclear in the Bill.
I have said that the amendments are probing. They have been changed since similar amendments were tabled in the Lords. I cannot remember the original wording, but we might be able to go one step further and make the language of sub-paragraphs (1) and (2) of paragraph 11 rather better English and clearer on what they are intended to achieve. I understand what that is, but it is not properly set out.
The Minister has said he will write to me, which means that he will further examine the matter. I hope that that means he might consider an amendment on Report. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Tim Loughton: I beg to move amendment No. 30, in schedule 2, page 38, line 36, leave out ‘may’ and insert ‘shall’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 31, in schedule 2, page 38, line 36, after ‘regulations’, insert ‘subject to the affirmative resolution procedure’.
No. 109, in schedule 2, page 38, line 40, at end insert—
‘13A (6) The Secretary of State shall by regulations, subject to the affirmative resolution procedure, make provision as to—
(a) the procedure to be followed for the purposes of removing any person from the children’s barred list or the adult’s barred list; and
(b) the procedure to be followed for the purposes of referring information or individuals to the IBB.
(7) Such provision may include provision as to the time within which anything is to be done.’.
No. 55, in schedule 2, page 40, line 28, at end insert—
‘(7) The duration of the minimum barred period for adults shall be determined through regulations approved by Parliament, subject to the affirmative resolution procedure.
(8) The duration of the minimum barred period for those under 18 shall be determined through regulations approved by Parliament, subject to the affirmative resolution procedure.’.
No. 111, in schedule 2, page 40, line 28, at end insert—
‘16A (1) If IBB refuses to place a person on a barred list following a referral, the organisation or individual who made the referral may ask for an internal review of the decision by IBB.
(2) IBB shall establish procedures for internal reviews established under this paragraph.
(3) No IBB employee involved with the original decision shall take part in a related internal review held under this paragraph.
(4) Any decision reached by an internal review shall be final.’.
No. 119, in clause 5, page 3, line 11, leave out ‘order’ and insert
‘regulation, subject to the affirmative resolution procedure,’.
Tim Loughton: These are again largely probing amendments, but they follow the principle, to which we like to adhere, of making explicit in the Bill as much as possible and ensuring that anything left to the Secretary of State should be made by affirmative resolution, giving the House sufficient opportunity to scrutinise it.
Amendment No. 30 brings us back to a favourite battleground: the substitution of the word “may” with “shall” on the basis of the preference that I have just expressed. The provisions in part 3 of the schedule are defined as “supplementary” but are actually important and far-ranging. Paragraph 13(1) gives the Secretary of State the power, by regulations, to
“make provision as to the procedure to be followed for the purposes of any decision IBB is required or authorised to take under this Schedule.”
The schedule is at the guts of the Bill, and that is a far-reaching sub-paragraph. It gives the Secretary of State power to change all the procedures that the IBB will follow; that is, all the detail that we have debated and tried to tease out from the Minister. The Secretary of State, if he so wishes, will be able to change that detail by regulation on a whim. He will be able to change the whole nature of the procedures followed to enable people to be referred to and investigated by the IBB. On that basis, it is essential that the Secretary of State “shall” do that by regulations rather than just by order. Contingent on that is amendment No. 31, stating that such regulations should be
“subject to the affirmative resolution procedure”.
We are considering an important part of the Bill that is not just about day-to-day running, so it should be subject to the full scrutiny of the House.
Amendment No. 109 is on a similar theme, stating that the Secretary of State shall, again by regulations subject to the affirmative resolution procedure, make clear the procedures
“to be followed for the purposes of removing any person from the children’s barred list or the adult’s barred list; and...the procedure to be followed for the purposes of referring information or individuals to the IBB.”
Such considerations are important. If changes are to be made, we believe that that should happen by regulations subject to affirmative resolution procedure if the extra information is not to be put in the Bill.
I now come to our two other amendments. I shall leave the other to the Liberal Democrats to explain. Amendment No. 55 tries to put more detail into the Bill about timings of the minimum barred period that will be determined again by regulations that are
“subject to the affirmative resolution procedure”.
It also suggests the procedure to be followed on timings for those under the age of 18. I hope that that is clear.
Amendment No. 119 refers to clause 5. It would pin down some detail of how the Secretary of State can be scrutinised. Clause 5(3) gives an enormous power to the Secretary of State. It states:
“The Secretary of State may be order amend that Schedule so as to vary the meaning of—
(a) regulated activity relating to children;
(b) regulated activity relating to vulnerable adults.”
The definition of regulated activity is important. We need to know what occupations and activities are covered by the Bill. Such detail needs to be available at the outset.
The clause gives the Secretary of State the power to change the whole meaning of regulated activity, which is core to what the Bill wants to achieve. A change can be made purely by order. Again, we believe that there should be regulations subject to affirmative resolution of the House so that matters can be properly scrutinised in Committee in a timely fashion, otherwise we are giving considerable powers to a Secretary of State who may choose for whatever reason to change the ground rules. For example, the IBB might have made a hash of matters and not acted as intended under the Bill. If that were the case, Parliament would need to know about it. Parliament needs to know that the IBB, which has been charged to set up an important initiative and has considerable powers, is capable of getting it right and will not be subject to having its ground rules changed at the whim of the Secretary of State without due scrutiny by Parliament.
On that basis, these are helpful amendments that try to take further the sort of detail that we have been asking for all through the parliamentary stages of the Bill. At the very least, if we are not to have the detail concomitant with the passage of the Bill, we need to know that the Secretary of State will be subject to further full and proper parliamentary scrutiny if he chooses to change definitions and procedures.
5.15 pm
Sarah Teather: I have great sympathy with the comments of the hon. Member for East Worthing and Shoreham about leaving vast amounts of discretion to the Secretary of State. There is a great danger in leaving so many powers so centralised and I look forward to hearing in the Minister’s reply why this is necessary.
Paragraph 16 of schedule 2 describes a process of review for which someone may apply if they have been included in a barred list. In amendment No. 111 we suggest a similar internal review mechanism for organisations or individuals who refer somebody to the IBB but it decides not to include them within the barred list. The Government made it clear in debates in the other place that they are unwilling to consider any kind of external review mechanism, but we think this kind of internal review mechanism fits nicely within that proposed in the schedule and would not fetter the IBB’s expertise.
I wonder whether this would be an acceptable compromise that the Minister might wish to consider. It does, of course, add an extra balance to the system as many of the decisions proposed within the Bill are highly discretionary. We need some kind of internal quality assurance mechanism, partly to ensure that decisions are made on a consistent basis. We wonder whether this kind of internal mechanism could give organisations the confidence of knowing that they have an opportunity to challenge again if they feel that their concerns have not been heard, but also leave the expertise of decision making up to the body itself.
Mr. Dhanda: It would be interesting to know whether the hon. Member for Brent, East thinks that the appeal mechanisms in the system are insufficient and that another process is needed in addition to the Care Standards Tribunal, the Court of Appeal and, ultimately, judicial review. Perhaps she will come back on that.
These amendments primarily address the issue of regulations and I should first like to remind hon. Members that the Delegated Powers and Regulatory Reform Committee is broadly content with the position set out in the Bill and raised no concerns about the issues covered by these amendments. Amendment No. 30 would ensure that the Secretary of State will make regulations governing IBB decision-making procedures under the provision in paragraph 13(1) of schedule 2. I can assure hon. Members that we intend to make such regulations following Royal Assent. We therefore see no need to specify in the Bill that the regulations will, rather than may, be made. We would argue that a certain degree of flexibility is helpful to allow regulations to be made covering those aspects of IBB procedures that I have described as and when it becomes necessary.
Amendment No. 31 requires that the regulations specifying IBB procedure would be subject to the affirmative resolution procedure. We believe that that would unnecessarily limit the flexibility to adapt these provisions to changing circumstances and would require Parliament to give greater oversight to matters of great detail in relation to the operation of the IBB, which would customarily be left to standing regulations. It is a convention that that would normally be the case. Having said that, the hon. Member for East Worthing and Shoreham did mention some specific areas, such as regulated activity, where the affirmative process would be required. Within the context of this, some of those regulations will be introduced by the affirmative procedure.
Tim Loughton: I appreciate that some of these things may be automatically subject to affirmative resolution. However, he has used an often used phrase in defence of his position, which is that our amendments would “unnecessarily limit the flexibility”. Why?
Mr. Dhanda: First and foremost, before the regulations come into being, we want to have a period of consultation. I believe that we have already said—and I will be corrected if I am wrong—that we are looking for a period after Royal Assent during autumn 2007 for completing the regulations, so that the Bill, or rather the vetting scheme, can be in place during 2008. In order to do that, we will need to go away and extensively consult stakeholders to make sure that we do that appropriately.
We mentioned quite a few areas involving regulation. I accept that there is a lot of regulation in the Bill, but there is detail within it as well. As agreed by those on the Delegated Powers and Regulatory Reform Committee, the convention is that it will be done in the usual way. The usual way is the negative resolution process. However, I am more than willing to listen to the hon. Gentleman’s case-by-case argument. I have made one such case with regard to regulatory activity. He may feel that there will be specific areas and regulations that should be done in a different way and I would be interested to hear that.
Amendment No.55 would ensure that the minimum barred period would be specified in regulation, subject to the affirmative resolution procedure. I assure hon. Members that it is our intention to make regulations specifying this period. For the reasons already given, we believe that it is our position to consult on the regulations before they are subject to the negative resolution procedure, and that that is the most appropriate way to ensure general agreement.
On the subject of age, which the hon. Gentleman raised, our current thinking is that those over the age of 25, who have an automatic bar, would be barred for an automatic period of 10 years and those under the age of 25, for five years. However, those are matters on which we wish to consult extensively.
Amendment No. 109 would require that the procedures for removing a person from the barred list and making referrals to the IBB would be specified in regulations subject to the affirmative resolution procedure. Removal from the list will be a key part of the IBB’s role. Those elements of this procedure that are appropriately specified in regulations will be included in the regulations specifying IBB decision-making procedure. However, we should not seek to limit the IBB’s discretion in carrying out its key function of including or removing individuals from those barred lists.
The second part of this amendment would require the Secretary of State to make regulations on the procedure for making referrals to the IBB. The clauses that cover the duties to refer information to the IBB already contain clear tests for the referral. That would place additional burdens on informers and such burdens would achieve little of value.
Those regulations would cover referrals from those who are not under a duty to refer. Placing restrictions on the way that information can be referred might limit the flow of information to the IBB, which could have serious consequences for the protection of children and vulnerable adults.
 
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