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Lord Hunt of Kings Heath: I do not think that there can be any argument with the thrust of the noble Earl's proposal. Clearly it is important that every effort should be made to ensure that the individual concerned is aware. However, we see problems with the amendment. I hope that I can convince the noble Earl that these matters can be covered by effective administrative procedures. The amendment would impose an explicit duty on the Secretary of State to try to inform an individual when confirming his inclusion on the Department of Health's list. While the instinct behind the amendment is entirely understandable, I cannot recommend proceeding in the way proposed.
The question is not whether to achieve the amendment's intention, but rather how best to secure it without inadvertently complicating an essentially administrative process. As I understand the position, there should normally be no difficulty about informing the individuals concerned because they will have participated in the careful procedures laid down in the earlier provisions of Clause 2. Their whereabouts, therefore, will be known, and in the normal way they will be informed, possibly through their advisers, what the outcome of the reference has been. In their case, making this a statutory requirement adds nothing to the situation.
I am glad to give the assurance that the Government will in all cases seek to inform all parties of decisions that are taken. There will, however, be other cases where matters might not be so straightforward. For example, it is possible that there will be instances where individuals break contact with their advisers, or otherwise choose to go to ground. Such actions may be intended deliberately to frustrate or protract proceedings. In such cases, the imposition of the requirement proposed, reasonably worded as it is, could be used against the Secretary of State; for example, it may be alleged that his best endeavours were not good enough and that they ensured that the whole procedure was at fault. The tribunal may be invited to go into all the detail of attempts made to notify. In that way, attempts may be made to abuse the process.
Experience with the current consultancy list in the Department of Health and List 99, which is operated by the Department for Education and Employment, shows that there are only handful of cases in which it has not been possible to contact the person contacted.
The noble Earl, Lord Howe, raised the issue of inclusion where the individual is not found or told that he is on the list. Although an individual who cannot be found may be included on the list, the time-limits relating to his right of appeal will not start to run until he is informed or finds out that he is not on the list. We shall deal with those matters in regulations concerning the tribunals.
The noble Earl referred to the new offence, following the work of the inter-departmental group and the Home Office report. I assure him that we shall consider that point.
Lord Laming: I am grateful to the noble Earl and to the noble Lord, Lord Meston. It is important to see this amendment in the context of the procedures set out in the Bill; namely, to provide protection for both children and employees.
It is helpful that we are discussing this amendment immediately after we discussed the amendment on suspension because it is almost inconceivable--I would say that it is inconceivable--that a person could not know that allegations were being investigated which could lead him to have his name included on the list. Therefore, in normal circumstances, he would not only be invited to participate in the procedures envisaged by the Bill, which enables those matters to be explored properly and provides a right to go to an independent tribunal, but he would also know from the outset what possibilities will flow from the actions which have been investigated.
For that reason, it is important to recognise that individuals who fall within the purview of the Bill will be informed fully from the outset about possible outcomes. It may help to say that in the present arrangements the procedures followed by both the Department for Education and Employment and the Department of Health go to considerable lengths to ensure that people are informed of the outcome of any decision made.
Furthermore, as the noble Lord, Lord Hunt, indicated, the department will produce guidance on the implementation of the legislation in due course. I feel sure that the department will be very happy to consult the noble Earl and the noble Lord to make sure that the point is covered adequately in the guidance. For that reason, I hope that the noble Earl will not press the amendment.
Earl Howe: I am grateful to the noble Lord for his answer and for the comments which the Minister made. I am not sure that my concerns have really been covered fully. I welcome the assurance that notification of inclusion on the list will take place as a matter of course. But, if so, why can we not have this provision on the face of the Bill, although perhaps not as I have drafted it which is in a rather unprofessional layman's manner?
The Minister raised valid objections to the form of words that I used but I am sure that there is a way round those objections if the will exists to find one.The noble Lord, Lord Laming, said that individuals who fall within the purview of the Bill will be informed fully from the outset of the procedures. That certainly will be so in the majority of cases, but not necessarily, I suggest, when an act of abuse comes to light in the circumstances envisaged under Clause 2(2)(d) where an employee may be long gone. He will not be involved at all from the outset of the procedures. It is in those circumstances that my worries really surface.
To say that the amendment which I propose will complicate the administrative processes is no reason whatever for dismissing the validity of the central point at issue. We are talking about an absolutely fundamental issue affecting civil liberties. I am far from clear that that should simply be relegated to departmental guidance. The Bill should make explicit provision in that regard.
However, I shall reflect carefully on what has been said. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
12.15 p.m.
Earl Howe moved Amendment No. 5:
The noble Earl said: Clause 2(7) sets out the twin criteria upon which the Secretary of State's decision to confirm someone's name permanently on the list must be based. I have no difficulty with the thinking which underlies this subsection. But as drafted, it may give rise to some anomalies.
Let us suppose that an organisation refers a person following an allegation of misconduct; the case is investigated; and the allegation is not upheld. However, quite separately, the Secretary of State is made aware of details surrounding the individual, perhaps something in the domestic context, which make it quite clear that he is unsuitable to work with children.
As regards the organisation, the Secretary of State is obliged to reach the opinion that the verdict of misconduct was not reasonable. Therefore, he will be unable to confirm the person's inclusion on the list. But in every other way, it will be clear that that is a travesty of justice. Therefore, the word about which I am most concerned in this subsection is the word "and" right at the end of paragraph (a). Is the noble Lord happy for that word to be included?
In moving the amendment, perhaps I may ask a further question relating to the phrase "is of the opinion". What is the difference between the meaning of that phrase and the word "satisfied" in Clause 1(3) in the context of the Secretary of State's power to remove the name of someone from the list? The word "satisfied" appears also in Clause 4(3) in relation to the tribunal's determination of an appeal. Is there any significance in that? Does being "satisfied" about an issue represent a
Lord Hunt of Kings Heath: This amendment would remove the first limb of the test which must be satisfied before the Secretary of State may confirm an individual's inclusion on the Department of Health list in the circumstances specified in Clause 2(6).
The test to be removed is the one requiring the Secretary of State to be of the opinion that the referring organisation reasonably considered the individual to be guilty of misconduct which harmed a child or placed a child at risk of harm. The sole test which would remain is whether the Secretary of State was of the opinion that the individual was unsuitable to work with children.
Rather than consider two matters before the test may be satisfied, the Secretary of State will be obliged to address only one because he would no longer have to consider whether the referring organisation had acted reasonably and addressed relevant criteria before deciding to refer. The Secretary of State would still have to decide whether the individual was unsuitable to work with children. The basis upon which he must do that is not clear. Either he would do that on a review of the papers before him, or he would be required to carry out a fact-finding exercise to decide whether the individual was guilty of the misconduct as alleged.
If the former were the case, the criteria for the Secretary of State's decision would be unspecified. Presumably, he would simply decide whether the person was suitable to work with children on the basis of information provided on the initial referral and any representations received from the parties. However, that is an insufficiently precise test, bearing in mind what turns upon that decision. For that reason, I believe that the amendment would not be welcome.
Alternatively, it is arguable that the amendment would mean that the only way in which the Secretary of State could discharge his function would be to carry out a fact-finding exercise, as he would need to be satisfied that the individual was guilty of a misconduct, as alleged, and would not be entitled to rely on the findings of the employer. Of course, the Secretary of State would not be in a position to carry out such an exercise and I do not believe that it would be right to expect him to do so. Among other things, the standard of proof that he would be required to apply would be wholly unclear.
When read together with Clause 4, the effect would be one of duplication, as the Bill would then contain provisions for two fact-finding exercises in place of the one already available in the case of a tribunal. That is because under Clause 4, in determining appeals from decisions of the Secretary of State, the tribunal undertakes a fact-finding role to determine whether the person is guilty of a misconduct that harmed a child, or placed a child at risk of harm, and whether the person is unsuitable to work with children. Not only would there be wasteful duplication of effort, but there would also be significant cost implications.
Page 3, line 2, leave out paragraph (a)
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