Previous Section Back to Table of Contents Lords Hansard Home Page

Protection of Children Bill

2.18 p.m.

Report received.

Clause 2 [Inclusion in list on reference to Secretary of State]:

Earl Howe moved Amendment No. 1:

Page 2, line 47, after ("applies") insert ("and shall use all reasonable endeavours to notify the individual accordingly")

The noble Earl said: My Lords, Amendment No. 1 is a redrafted version of an amendment I tabled in Committee. It arises out of my concern that under the procedures set out in the Bill there could easily be circumstances in which an individual might not discover that his name had been included on the Secretary of State's blacklist of people considered unsuitable to work with children. There is no requirement in the Bill for the Secretary of State to notify his decision to an individual. My concern was that without that we would be enshrining in law a provision which comes perilously close to breaching the spirit, if not the letter, of the European Convention on Human Rights.

The noble Lord in responding to me expressed his opinion that it was inconceivable that a person could not know from the outset that allegations were being investigated which could lead to his name being included on the list. Furthermore, he said that the Department of Health and the Department for Education and Employment, as a matter of normal procedure, go to considerable lengths to ensure that people

25 Jun 1999 : Column 1226

are informed of the outcome of any decision made. I completely accept that what the noble Lord said is correct in the majority of cases. I entirely take on board the procedures that are followed by both government departments as a matter of routine. But that was not my point. The replies of both the noble Lord and the Minister failed to recognise that Clause 2(3), which was inserted as an afterthought in another place, introduces a new dimension, namely, the possibility of referring and listing someone many months or years after the alleged misdemeanour.

In those circumstances, the person might be long gone and his whereabouts unknown. In the nature of things, he would not have been involved in the investigations from the outset. It was, therefore, incorrect to describe such a scenario as inconceivable. The Bill explicitly allows for it. The question that I posed was, given that both the Department for Education and Employment and Department of Health consider it important to try to inform an individual of the Secretary of State's decision in all cases, is it sufficient for this to be dealt with in departmental guidance or should it be on the face of the Bill. The case for it being on the face of the Bill is that conformity with the European Convention on Human Rights and with the rules of natural justice--which may be the same thing--may be better met by an explicit provision.

When the Minister replied in Committee, he suggested that this approach would complicate matters by allowing a vexatious appellant to deploy a bogus line of defence with the tribunal to the effect that the Secretary of State's efforts to notify him had not been good enough. That is why I have now reworded my amendment so that it speaks of the Secretary of State using "all reasonable endeavours" to notify the individual, as opposed to his "best endeavours" which formed the previous wording. If the Minister's view is still that this is a matter that should not appear on the face of the Bill, I should be glad to hear his explanation as to why. It attempts to do no more than encapsulate what the two departments already do as a matter of course.

Lord Elton: My Lords, I apologise for being slightly taken by surprise by the Bill, although it is my own fault. I have risen, therefore, to raise a point that I would have been happier to raise in Committee.

It occurs to me that considerable injustice could be done to an individual if steps are not taken to inform him. Those steps may not always go well. I therefore wonder whether it is in the Minister's mind to impose in Clause 7 a duty on a childcare organisation that refuses employment to an applicant on the grounds set out in Clause 7(1)(a) and (b) to inform the individual of the reason for that refusal. That solution would come close to having the same effect as has been proposed but may have fewer holes in it.

Lord Stewartby: My Lords, I shall be interested to hear the Minister's response to this amendment. However, my reason for rising is to apologise for not having attended debates during the Bill's earlier stages. I compliment my noble friend Lord Laming on his

25 Jun 1999 : Column 1227

efforts and thank him, in retrospect, for his contribution to social services and related issues in Hertfordshire, where I for many years represented a constituency in another place.

Although I am sure that I am out of order, I hope that I shall be allowed to pass on that compliment.

Lord Hunt of Kings Heath: My Lords, I thank the noble Earl, Lord Howe, for allowing us to debate this matter again. He is right; it is important. The amendment is similar to that tabled by the noble Earl in Committee and would require the Secretary of State to use "all reasonable endeavours" to try to inform an individual when confirming his inclusion on the Department of Health list.

I understand that the concern behind the amendment flows particularly from the provisions of Clause 2(3) which deal with referrals relating to past events only recently discovered. Someone could be included in the Department of Health list without his knowledge because his current whereabouts were unknown. Although such an eventuality is not likely to occur with any frequency, it is certainly possible, and might conceivably occur, in cases arising under Clause 2(2), where contact had been, perhaps deliberately, broken between the employer and the individual. Accordingly, I hope that it will help the House if I explain how notification is conducted and how the Bill's provisions will operate where individuals do not immediately, or possibly for some time, learn that they have been included in the list.

In the normal way, notifying letters will be sent by recorded delivery to last-known addresses. If those do not reach their target, inquiry will be made through the last employer and matters pursued as far as is practicable. I am sure that it will be understood that there can be no guarantee that individuals may be contacted in every case. It is also necessary to face the fact that there are limits to what may be done in Clause 2(3) or any other cases where, for whatever reason, there is broken contact. In such situations there seems no good reason why protective listing should not occur, provided that the Clause 2 criteria are met. The interests of the children must be overriding, but at the same time there is no question of the rights of individuals being taken away. Individuals may resurface at any time, and if they are not included in the list, an employer could be misled and children needlessly exposed to avoidable risk.

I know that in previous debates concern was expressed that current notification practice may come to be regarded as dispensable, especially in awkward cases. That is not the current intention. Nor, as I shall explain, is it at all likely in future. Not only would that involve a serious and unacceptable deviation from good administrative practice of a kind the parliamentary commissioner would certainly not approve, but the courts in any judicial proceedings would clearly be hostile to any such failure on the part of the Secretary of State. That would particularly be the case since failure to take reasonable steps to attempt to notify the outcome

25 Jun 1999 : Column 1228

of deliberations may enable an individual to mount a claim for infringement of his rights under Article 6 of the European Convention of Human Rights.

However, where notification for whatever reason has not taken place, the cardinal point I should register with the House is that no one in that position will have their appeal rights curtailed. That is because it is intended to use the regulation-making power under Clause 9 to provide that an individual's ability to appeal to the tribunal from a decision by the Secretary of State will run from the time when he may reasonably be deemed to have learned of the decision.

Moreover, without having to appeal, the individual will also have recourse under Clause 1(3) to invite the Secretary of State to remove his name from the list on the grounds that he should not have been included in it. For example, the individual may be able to bring fresh relevant material before the Secretary of State to consider of which the department had not previously been aware because the individual had not been aware of the proceedings. Following such representations, the Secretary of State could, if he considered it appropriate, remove the name from the list without any necessity for an appeal.

The noble Lord, Lord Elton, raised the point relating to Clause 7(1) about the potential duty to inform an applicant why employment is refused. I am advised that no specific duty is necessary. There is certainly no ECHR requirement. An individual will be informed that the positive check has been made, but that will also occur when the criminal record bureau one-stop shop is running.

The noble Earl, Lord Howe, raised--

Lord Elton: My Lords, my anxiety was not to satisfy the requirements of the ECHR provisions but to protect individuals who may not have benefited from the letter which was sent by registered post to the last-known address if they were not pursued by it to another address.

Next Section Back to Table of Contents Lords Hansard Home Page