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Lord Laming: I am also grateful to the noble Earl for giving us the opportunity to discuss the amendment. It raises an important matter. It is necessary to emphasise that this Bill introduces a number of safeguards which do not exist at present. I consider that it contains five safeguards which will improve the way in which these matters are handled and provide safeguards both for the person against whom allegations are made and children who have been put at risk.
With that in mind, perhaps I may say to the noble Lord, Lord Campbell, that there is a difference between Clause 3, which sets out the responsibilities of the Secretary of State, and Clause 4, which sets out the opportunity for the individual to go direct to the tribunal to appeal. That is quite an important measure.
Turning to the amendment, as the noble Lord, Lord Hunt, indicated, the Bill provides for the test of gross incompetence. The fact that "incompetence" was removed in the other place is of great significance. "Gross incompetence" is not a matter which can be used to refer to a trivial act. The way in which the procedures are set out in the Bill allows for consideration to be given not only to the allegations of behaviour but to such matters as the inexperience of the person concerned.
It would be erroneous to suggest that someone could be placed on the list, having gone through the procedures, either because of youthful indiscretion or because they have acted in a way which, in years to come, would be thought to be less than gross incompetence. It is not only gross incompetence but gross incompetence that has resulted either in children being exposed to undue risk or experiencing abuse in one way or another. So the Bill is designed not only to protect children but also to ensure that there are proper balances and safeguards for staff.
We need to take these matters seriously because, as the noble Lord, Lord Warner, said at Second Reading, at the end of the day the adults concerned can get another job not working with children, but children can have their lives ruined through abuse from powerful adults in positions of trust. I support those sentiments because we must keep our attention clearly focused on the fact that these are people in positions of trust and authority. Matters that would be considered as justifying someone being placed on the list are matters of sufficient seriousness as to make them be regarded as unsuitable to work with children.
This is not a Bill that would prevent people working. It is simply a measure which prevents them working with children. I emphasise that youthful indiscretions do not fall within the definition of gross incompetence. For that reason I hope, after the consideration that the Committee has given the matter, the noble Earl will be willing to withdraw his amendment.
Earl Howe: I am grateful to the Minister and the noble Lord for their explanatory comments. I recognise
that the safeguards in the Bill are carefully drawn. As the noble Lord emphasised, we must be mindful of the need above all to protect children from those who represent a risk to them.I accept that the term "misconduct" necessarily implies a serious act of commission or omission and that it would not be used to refer to a trivial act of any kind. However, I confess to remaining slightly worried. What the noble Lord said, helpful though it was, did not seem to me to cover the case of someone who in every way merits inclusion on the list at the time or shortly after the act was committed, but who after a lapse of time--perhaps many years--can demonstrate that his continued inclusion on the list is not in the interests of natural justice. That case remains in the air and unaccounted for.
The noble Lord is effectively suggesting that one cannot apply common sense to a situation. The logical conclusion of his position is that whatever someone does to prove that he is capable of being trusted with the care of children, he should nevertheless remain on the Secretary of State's list just in case he might do the same thing again. I find that proposition in the abstract difficult to accept. It runs counter to the best traditions of civil freedom that we are used to in this country.
I would appreciate an answer from the noble Lord or the Minister on the question posed by the noble Lord, Lord Meston, about the possibility of an individual being able to put in a second and subsequent appeal, having already lost an initial appeal, perhaps many years down the road, if it becomes clear that it would be right to remove his name from the list in the light of a lifetime of unblemished work. I should appreciate some guidance on that point.
11.30 a.m.
Lord Laming: I believe that the noble Earl referred to misconduct. It is important to emphasise that the Bill is concerned now with gross misconduct. The term "misconduct" has been removed. "Gross misconduct" in these circumstances is intended to describe behaviour that exposes vulnerable children and young people to unacceptable risks or behaviour. It is important to note the difference between misconduct and gross misconduct.
Earl Howe: With the leave of the Committee, I am a little confused. The Bill makes reference to "misconduct", not "gross misconduct". The term is a simple one.
Lord Laming: The misconduct is concerned with the protection of children and is not something of a trivial nature. I can give examples but I do not want to delay the House. Something done in innocence would not be regarded as misconduct. Something done deliberately in the knowledge of the likely outcome would be the test of misconduct. This is the first time that people will be able to put their case to an independent tribunal, describe their inexperience and the supervision that they did or did not have. The tribunal will take into account all of these matters.
I am sorry that earlier I used the wrong term. The term "incompetence" has been removed. Therefore, innocent activity due to incompetence is not now being considered. Misconduct is something that is deliberate and determined. It is right that there should be an appeal mechanism but only if there is new information. There is no procedure in the Bill to review decisions taken earlier simply because someone now wants to have his circumstances reviewed. To ensure that these procedures are regarded with great seriousness, no one should be put on the list without a necessary appeal mechanism and until the tribunal has considered all the circumstances and come to the conclusion that the person is unsuitable to work with children. That decision will not be reached if the matters are trivial or the person has a justifiable defence of one kind or another. Therefore, I urge the noble Earl to withdraw the amendment.
Lord Campbell of Alloway: I had not intended to speak in this debate, but everything that the noble Lord has just said seems to me to justify the amendment. There must be some form of reconsideration at some time in some circumstances. To clear away one point raised by the noble Lord, he said that the Secretary of State would be required to keep these matters under continual review. No. It is only if a representation is, or could be, made that he is asked to consider it. I thought that I should clear that away. I hope that we come back to this very serious point about freedom of the subject. It seems to me that it is tied up a tiny bit too tightly.
Earl Howe: I am grateful to the noble Lord and to my noble friend. I was a little confused by one observation of the noble Lord. He said that the term "misconduct" necessarily implied a deliberate act. That was not my understanding. It seems to me that gross incompetence can include an act of omission, if you like, inadvertence, rather than an act of deliberate commission. Be that as it may, I shall reflect carefully on what has been said in this debate between now and the further stages of the Bill. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 [Inclusion in list on reference to Secretary of State]:
Earl Howe moved Amendment No. 2:
The noble Earl said: This amendment, in common with Amendment No. 6 to which I shall also speak, addresses what seems to me to be vague, and therefore unsatisfactory, wording in Clause 2. Subsections (2) and (3) set out the circumstances in which a childcare organisation must refer someone's name to the Secretary of State for provisional listing. We all understand the kinds of situation that should merit such a referral. One situation that undoubtedly must be covered is that of a person who has resigned or retired before the employer is able to invoke any disciplinary procedures against
I do not argue in the least with what the clause seeks to do but merely with the manner in which it is expressed. It seems to me that the second test set out in subsection (2)(b) is not at all precise. It requires an organisation to refer someone's name to the Secretary of State not only when it has concluded that it would definitely have dismissed him had he not resigned or retired but also when it would merely have considered dismissing him. I am not sure that I know what that means. I know what it should mean; namely, a situation in which, on the balance of probabilities, an employer forms the view that a person has been guilty of misconduct but has not been able to complete the formal disciplinary process because the individual concerned has disappeared.
But to consider dismissing someone could mean anything from having the fleeting thought of dismissal crossing one's mind to going through a proper deliberative process, the conclusion of which is that the person would probably have been dismissed. It is the situation at the latter end of that spectrum that the Bill should seek to describe. I believe that it fails to do so. There are two aspects to this defect. One is the general principle that legal language should be precise and not vague. The other is that the wording of the Bill should point to a clear test which an employer knows with certainty he has fulfilled. The alternative wording that I propose in these amendments attempts to do just that.
To say that an organisation would have been minded to dismiss someone carries, I hope, the much clearer connotation of a considered, deliberative process rather than simply saying that it would have considered dismissing the individual. It also points to a more precise test that an employer must meet. That is important if one believes, as I certainly do, that the law should be capable of being policed. I look forward to hearing what the noble Lord and the Minister have to say. I beg to move.
Page 2, line 3, leave out ("considered dismissing") and insert ("been minded to dismiss")
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