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Lord Hunt of Kings Heath: Again, the debate has shown the delicate balance which must be drawn between the overriding question of protecting children and the rights of the individual. Each amendment is testing the boundary between the two. Clause 2(2)(d) allows referrals to be made where the organisation has suspended an individual or moved him to a non-childcare post while investigating an allegation that a child has been harmed or placed at risk of harm.
The amendment would remove that provision and, as such, it would not be until a final decision was made by the employer that a referral could be made under subsections (a) to (c) of Clause 2. In answer to a point made by the noble Lord, Lord Meston, Members of the Committee will recognise that it will take some time to carry out a full investigation to decide whether an allegation can be substantiated. Witnesses will need to be interviewed and internal appeal procedures exhausted. During that period, if the amendment were accepted, that person's name would not be included in the list. As such, if the individual sought employment elsewhere in a childcare position and the check was carried out by a potential employer, the fact that an allegation was being investigated would not be revealed.
Although I accept the point that the individual would be concerned about inclusion on the list before a final decision on suitability had been taken, this clause is seen as the only way of providing the necessary protection to children and, as the noble Earl suggested, of ensuring that there are no loopholes in terms of someone trying to circumvent the overall safeguards in the Bill.
The noble Earl asked about a prima facie case against the individual for suspension. The name can go on the list only if there is an allegation of harm, or risk of harm, and if the Secretary of State believes that inclusion is appropriate. One grants that the Secretary of State would not know the individual's side of the story at that stage, but we turn to the other safeguards in the Bill. They are that a final decision on inclusion will not be taken until the employer has decided to dismiss, if that is the action that can be taken.
Lord Laming: I am grateful to the noble Earl. I begin by saying that I should be the last person to accuse him of not understanding the purpose of the Bill. I should not dream of having such temerity.
This is an important area of debate and I shall first answer the points made by the noble Lord, Lord Meston. Paragraph (b) deals with resignation, retirement or dismissal. Paragraph (d) deals with suspension. That is the justification for the provision. It is important to emphasise the two safeguards. First, the Secretary of State must be satisfied that there is a prima facie case. Everyone operating in the field will recognise that vexatious allegations can be made. The fact that an allegation has been made is not in itself grounds for
suspension. Secondly, for the first time, the Bill allows for limits on how long the suspension can last. That is an important safeguard for someone in this situation.It is also important to see suspension and the issues surrounding it within the wider employment legislation and guidance to social care and educational organisations about how they should deal with allegations. One recognises that allegations can be ill-founded and therefore--to quote the noble Earl, Lord Howe--one should not become trigger-happy. There is guidance to prevent authorities being trigger-happy, and for that reason the Secretary of State must be satisfied that these matters have been handled in an appropriate manner.
It is important to emphasise that it is only at the previous employment check stage that information can be made available to a prospective employer. Therefore, it is possible to envisage a situation where a prospective employer is considering offering a job to someone, makes a proper check, is given clearance as a result, and only after the offer of employment has been made learns that serious matters are being investigated elsewhere.
As the noble Lord, Lord Hunt, indicated, sometimes such allegations need several months to be properly investigated. Therefore, it is most important that during that period, if someone is suspended, a prospective employer is informed that the person is the subject of investigation elsewhere. For that reason, I believe that this is an important and essential feature of the Bill and I urge Members of the Committee to reject the amendment.
Earl Howe: Once again I am grateful to the Minister for his comments. In tabling the amendment, it was not, of course, my intention to seek to delete those provisions from the Bill. That, I hope, was clear.
I have listened carefully to all the comments made, and I am entirely persuaded that the balance that the Minister referred to has been struck, in this instance, correctly. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Noon
Earl Howe moved Amendment No. 4:
The noble Earl said: This amendment reflects my deep concern that there could be circumstances in which the Secretary of State confirms someone's name on the list without that individual ever knowing that it has happened. Should such a thing be allowed to occur, it would be a profoundly damaging development for civil liberties.
I recognise that in many, if not most, cases an individual who has been provisionally listed and who has then submitted observations to the Secretary of State will be made aware in some way of the proceedings' outcome. But that will not always be the pattern. Let us reflect, for example, on what might happen under Clause 2(3). An organisation might uncover evidence about an individual's behaviour many years after he has left his job. It may not be possible to trace his whereabouts. The
The question has particular relevance if, as we are led to understand, the Government intend to make it a criminal offence for a person to apply for a childcare position while on the list. In this context, it is instructive to look at the Home Office consultation paper, issued on 30th April. The paper puts forward proposals that would make it a criminal offence for a banned person to apply for, accept or be engaged in work with children, or to provide services to them.
Leaving aside the last element, which begs a whole host of questions, it is further proposed that there would need to be a defence of ignorance on the part of the individual, that he did not know that the position involved work with children. That is fair enough as far as it goes, but I see no mention of a defence of ignorance that the person did not know that he was on the list of proscribed individuals. If ignorance of one's inclusion on the list is not to be an excuse, this whole area of legislation begins to assume a somewhat Kafkaesque quality. I do not believe for one minute that that is the Minister's intention, but as the Bill stands he is implicitly allowing for that risk.
In debate in another place, quite a bit was made of the consequences that flow from Clause 2(3). The provision was, of course, inserted in the Bill because of concerns raised in Standing Committee. It is a useful subsection, but it brings with it certain risks. The longer the time that has elapsed since an act of wrongdoing was committed, the greater the scope for error, faulty memory and, therefore, miscarriages of justice. It is not for nothing that the Statute of Limitations, in its basic form, is one of the oldest statutes in the corpus of English law. Whenever we countenance a departure from the principle that it enshrines, we should do so only with the greatest caution. Here we do so in the context not of a judicial but of an administrative process.
We are saying that no matter how long ago an alleged misdeed took place, those who work with children must reckon on being in perpetual, open-ended jeopardy as regards the risk of being included, by an executive decision, on an employment blacklist. That is very serious. We may decide to take such a step in the interest of protecting children, but we certainly do not want to do so if the system that we put in place allows for the blacklisted person to remain in ignorance of the mark that society has placed upon him.
My amendment says that whenever the Secretary of State confirms someone's name on the list, he should use his best endeavours to notify him of the listing. I realise that the wording may not be precisely right in terms of legalese. However, it does recognise that in some cases an individual will prove to be untraceable. It does not impose a blanket duty on the Secretary of State to trace that individual and notify him no matter what, but a reasonable effort should be made to inform him regardless of the circumstances, and the procedure should be automatic. The Minister may tell me that that is what is intended as a matter of practice. However,
Lord Meston: Delayed disclosure of child abuse is a real problem with which the courts have to grapple. Occasionally, as has been said, it throws up quite acute difficulties in respect of limitation periods.
I sympathise entirely with the proposition that anyone included on one of these lists should be notified, if at all possible. It is right to say that in terms of legalese, "best endeavours" may no longer be the most favoured phrase. Perhaps something along the lines of "should use all reasonable endeavours" would be preferable. I hope that somehow the points raised will be taken on board in considering how the legislation will work in practice.
Page 2, line 47, after ("applies") insert ("and shall use his best endeavours to notify the individual accordingly")
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