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Lord Laming: This provision is one of the safeguards to which I referred earlier. The Secretary of
State needs to be of the opinion that the way in which the organisation has considered the issues of misconduct has been reasonable and--it is important that there is this second arm--that the evidence means that someone is unsuitable to work with children.Earlier the noble Earl referred to what I call vexatious allegations being made. It is important that the Secretary of State forms the opinion that the way in which such matters have been handled has been reasonable and that the proper tests have been applied.
The Secretary of State needs to form an opinion about the procedures. He does not consider the merits of the case. He does not provide a rehearing. Therefore, the significance of the opinion is that he is not expressing satisfaction at the outcome because that matter will be considered by the tribunal with all the safeguards that are built into the tribunal. He will form an opinion about the way in which the matter has been handled and whether the person is, therefore, unsuitable to work with children.
There is significance in the words of the opinion in this paragraph. For that reason, I invite the Committee to reject the amendment because I believe that subsection (7)(a) provides an important safeguard in the Bill.
Earl Howe: As so often happens when one tables an amendment in Committee, which is expressed in a form that suggests that a deletion of a certain part of the Bill should be considered, a literal interpretation is placed upon it. I tabled this amendment as a standard device to enable the Committee to debate this part of the Bill.
I have listened carefully to what has been said. Of course, I entirely understand why this part of the clause has been framed as it is. I do not dissent from it. In the remarks that I made earlier, I was merely suggesting that the double hurdle represented by subsections (7)(a) and (7)(b) may, in some circumstances, be too stiff a test and that someone could slip through the net as a result of the double hurdle.
If that is a risk that the noble Lord is willing to carry, I am the last person to dissent from his opinion on that. As he, rather than I, has been instrumental in carrying out the work on this Bill, I simply raise it as a possibility--a not altogether unreasonable possibility.
I am grateful to him for the explanation that he gave of the difference between the words "is of the opinion" and "is satisfied". I understand that the tribunal will sit in a quasi-judicial role and, therefore, the opinion that it reaches will necessarily be of a different kind, in terms of the way in which it is reached, from the initial decision taken by the Secretary of State.
That begs the question as to why the word "satisfied" is included in Clause 1(3) which states that the Secretary of State must be satisfied that the individual should not have been included in the list prior to a decision to remove him from it. That implies that the Secretary of State will, in certain circumstances, be sitting in a quasi-judicial role. I do not know whether there is any
significance in that. If there is, perhaps either the noble Lord or the Minister will write to me. In the meantime, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Earl Howe moved amendment No. 7:
After Clause 3, insert the following new clause--
(" . Where the Secretary of State--
(a) provisionally includes an individual in the list in accordance with section 2(4)(b) above;
(b) confirms the inclusion of an individual in the list in accordance with section 2(6) above; or
(c) includes an individual in the list in accordance with section 3(3) above, he may, if he thinks fit for the purpose of protecting a child from harm or the risk of harm--
(i) notify the Social Services Department responsible for the area in which the individual resides, or
(ii) notify an organisation employing the individual,
of such inclusion or confirmation.")
The noble Earl said: Amendment No. 7 reflects a further concern of mine that a malefactor, whose name is included permanently on the list, nevertheless may escape the notice of his current employer and the social services department in the area where he lives as being a risk to children. The list kept by the Secretary of State will be, of course, confidential and subject to a considerable degree of privileged access. If that is so, what authority does the Secretary of State possess to disclose its contents, other than in response to an inquiry initiated by a recognised organisation? The amendment attempts to put it beyond doubt that, where circumstances dictate, for the purpose of protecting children from the risk of harm, he make take the initiative and notify those with a clear interest in the matter.
The noble Lord will doubtless tell me that the amendment is unnecessary, or perhaps even that it attempts to move outside the strict ambit of the Bill which is concerned with employment. I do not take that view. One can easily imagine a case falling under the scope of Clause 2(3), once again, in which a person's abusive behaviour (as a result of which he is listed) comes to light long after he has left an organisation. His new employer may be completely unaware that there is a shadow hanging over that person, yet the employer clearly needs to be informed about that if the person's job involves working with children. Furthermore, such disclosure should not lay the Secretary of State open to a charge of breach of confidentiality.
Similar considerations apply to the person's domestic circumstances. The social services department involved in an individual's place of work may not be the same social services department responsible for the area in which he resides. Yet it is clearly appropriate that that department should be informed. That is not a case of wanting to widen the scope of the Bill, but of saying that a particular statutory organisation should be notified 12.30 p.m.
Lord Meston: I certainly support the intention behind Amendment No. 7, as long as the power for which it provides is exercised with extreme caution. Like the noble Earl, I am a little uncomfortable that this Bill is so confined to the employment sphere. That is something I shall address in a later amendment standing in my name.
Recently I read a decision of the Court of Appeal, reported in Family Law Reports, Volume 1, 1999, page 267, called Re V (Sexual Abuse: Disclosure). On the facts of that case the Court of Appeal felt that,
- "it was inappropriate to direct disclosure of findings of abuse in Children Act cases",
in the circumstances of the two cases there under consideration. But the court did go on to say that,
"nothing in the judgment was intended to inhibit the necessary exchange of relevant information between agencies; local authorities were under a duty to respond to inquiries from other local authorities and to pass on information where children moved into a different area".
Lord Hunt of Kings Heath: I am sure the noble Lord, Lord Laming, will wish to respond in detail to this important consideration. But perhaps I can say that, although I am entirely sympathetic to the principles behind the proposed amendment, discussion on these matters in another place demonstrated that it is an unnecessary additional provision. Moreover, it seeks to tie the Minister's hands; for example, it limits the grounds upon which notification might be made and specifies that there should be a choice only between two possible destinations for notifications.
Although the intention is to encourage discretionary activity for a scrupulously designated purpose, the amendment's effect may be restrictive since specifying actions in statute are normally considered to imply that those actions alone may be lawful. It follows that his ability to pass on this information to other relevant parties such as the police may be called into question if the amendment is accepted.
I turn to the matter of notifying a person's current employer. That matter was also fully debated in another place and the real difficulties of such a provision were considered. The amendment could be taken to assume that the Secretary of State knows where the person is employed, which may not always be the case. The Government, in another place, gave a firm assurance that if the employer is known, the Secretary of State will
notify him or her that the person has been included on the list. As a matter of good practice, that would always be done if the information came to the Government's attention.
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