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Lord Hunt of Kings Heath: My Lords, I hope that the point has been met by the fact that an individual would be informed that a positive check had been made.

In relation to the question raised by the noble Earl, Article 6 of ECHR requires the Secretary of State to apply a fair and reasonable procedure when determining civil rights. If we fail to inform the individual of the Secretary of State's decision, that arguably may enable that individual to commence a claim under the ECHR. I hope that clarifies the point for the noble Earl.

Perhaps I may take this opportunity to repeat the offer made by the noble Lord, Lord Laming, in Committee. I know that the Secretary of State will be glad to ensure that steps are taken to consult the noble Earl, or any other Member of the House, over the way in which these matters may be dealt with in the detailed guidance that it is intended to prepare on the implementation of the Bill. The best way of doing that may be at the draft stage of the guidance preparation, so that there may be satisfaction before the event over how this area of difficulty, and any other, is to be tackled.

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2.30 p.m.

Lord Laming: My Lords, I am grateful to the noble Earl, Lord Howe, for allowing this further debate on such an important issue. I am also grateful to the noble Lord, Lord Stewartby, for his generous comments. I do not know whether he was out of order at the time, but he provided a nice counterbalance to the criticism that the noble Earl quite rightly made about my earlier comments, when I used the word "inconceivable". That was an ill chosen word, as I readily accept. I should have said "very rare" rather than "inconceivable". The Bill allows for people disappearing and resurfacing at another time. It also allows for new information to surface at a later stage leading to inquiries that the individual may not be aware of at the time.

That takes me to the heart of what I wanted to say: we need to remind ourselves that the purpose of the Bill is to protect children from harm. As was said in earlier debates, some people who prey upon children, who seek to take advantage of children and who misuse their power and authority over children are also capable of some extremely devious behaviour. Deviousness can lead to people disappearing from the scene and re-emerging at a later stage, sometimes pretending that they have been engaged in purposeful activity of a perfectly reasonable nature when they have not. For that reason, as the Minister has said, we need to strike a balance between being fair to such individuals, but also keeping before us the overriding need to protect children.

I am grateful to the Minister for his lengthy response to the points made by the noble Earl. I hope that it will be possible for the noble Earl to accept that the details of the procedures, which will be covered by regulation, will make sure that the Secretary of State is not put into a position where he could be challenged for having failed administratively to deal with these matters in a proper and thorough manner. The last thing that the Secretary of State would want to do would be to find himself or herself criticised for having failed to address normal procedures. By putting the procedures in regulations, the Secretary of State's position would be made that much more difficult if those procedures were not followed.

While repeating that the procedures will be subject to consultation and welcoming the views of the noble Earl, Lord Howe, at the consultation stage, I hope that the noble Earl will feel able to withdraw his amendment.

Earl Howe: My Lords, I thank both the Minister and the noble Lord, Lord Laming, for their replies, and both my noble friends for their constructive interventions. The main point to have emerged is that conformity with the European Convention on Human Rights need not be seen as requiring an explicit provision in a Bill or indeed even in guidance but is dependent on what is actually done by the Secretary of State in practice. That is helpful.

I am grateful to the Minister for offering to let me have sight of a copy of the draft guidance. I welcome that. In the light of what both noble Lords said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Earl Howe moved Amendment No. 2:

Page 3, line 1, leave out ("of the opinion") and insert ("satisfied")

The noble Earl said: My Lords, in moving Amendment No. 2, I shall speak also to Amendment No. 3. In Committee I asked the noble Lord, Lord Laming, whether he could explain to me why there is a difference of terminology between Clause 2(7) which covers the considerations underpinning the Secretary of State's decision to list an individual and Clause 1(3) which gives the Secretary of State power to remove a person from the list in circumstances that demonstrate that there has been a clear miscarriage of justice in the initial decision to list.

Clause 2(7) specifies that the Secretary of State must be "of the opinion that" and Clause 1(3) uses the term, "satisfied that". My understanding from the noble Lord's reply and from the letter kindly sent to me last week by the Minister--for which I thank him--is that when the Secretary of State takes the decision to remove someone from the list, he sits in a quasi-judicial role, weighing up all the evidence on both sides. The word "satisfied" is appropriate in that context, as it is for Clause 4(3) which covers the role of the tribunal. The initial decision to list, on the other hand, does not involve a process of quite that nature. The noble Lord, Lord Laming, said,

    "He [the Secretary of State] does not consider the merits of the case ... 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".--[Official Report, 11/6/99; col. 1679.]

Two points arise from that. One is the significance of the words, "is of the opinion". What deliberative process is required of the Secretary of State when he takes a final decision to place someone's name on the list? How is that different from the process required of him under Clause 1(3)? In what sense does he not consider the merits of the case?

The noble Lord, Lord Laming, kindly wrote to me on this issue on 22nd June, and I am grateful to him for that. He explained that what he meant was that the Secretary of State would not undertake a fact-finding role. By that I take him to mean that the Secretary of State will not be required to set about gathering evidence for himself outside that which is furnished to him by the parties. Perhaps the noble Lord will confirm that interpretation.

I shall be grateful also if the noble Lord can elaborate further on the implications of Clause 2(7) as a whole. From the noble Lord's reply in Committee, it sounded as though the key determinant of a decision to list is the Secretary of State's opinion with regard to the matters set out in subsection (7)(a),

    "that the organisation reasonably considered the individual to be guilty of misconduct ... which harmed a child or placed a child at risk of harm". The conclusion which follows from a literal interpretation of the noble Lord's remarks, especially his use of the word "therefore", is that once the test in subsection (7)(a) is passed, there is very little more to be done, because that will be both a necessary and a sufficient condition of a tick in the box under subsection (7)(b). I find that explanation slightly surprising. It is

25 Jun 1999 : Column 1231

    not how I read the Bill. Subsection (7)(b) seems to me quite distinct from subsection (7)(a) and not dependent on it in any way.

In the light of the noble Lord's earlier comments I shall be grateful to know what it is that subsection (7)(b) adds to subsection (7)(a), given that, as I understand it, the Secretary of State does not undertake an independent fact-finding exercise. If subsection (7)(b) involves him doing something over and above subsection (7)(a), can the noble Lord explain what it is? I beg to move.

Lord Elton: My Lords, I apologise again for asking a question to which I almost certainly ought to know the answer. But from my standpoint it is important. For the legislation to come into effect, two things have to be satisfied: first, the Secretary of State has to consider that a person is not fit to work with children; and, secondly, that person has to be employed by a childcare organisation. In the interpretation clause, a childcare organisation is described under three headings, the first of which includes the provision of social services or the "supervision of children". My question is: under what category does the function of "mentoring" come? It is not normally described as a "social service" and a mentor does not in fact supervise.

If one then looks further into the clause, one sees that "employment" is defined as "whether paid or unpaid", with various other qualifications being set out thereafter. Again, I cannot quite accurately place within that the position of a person who is working voluntarily and unpaid as a mentor of children under arrangements made by a charity, which does not actually employ him but which keeps a close eye on his work and very often trains him. My interest in this is that I am chairman of the DIVERT Trust. I repeat my apology for not having discovered this point before I came into the Chamber.

Lord Hunt of Kings Heath: My Lords, I thank the noble Earl for allowing us to discuss this matter again. He has identified differences in language. I hope that I can persuade him that the different emphasis in language actually helps to draw a useful distinction between the various actions that have to be taken.

On the basis of the Bill as drafted, the Secretary of State will initially examine the quality of the information referred by an employer and may decide to list provisionally the individual involved under Clause 2(4), while observations are invited from both parties. The Secretary of State must then include the name in the list on a final basis if he is of the opinion that the employer has reasonably considered the individual to be guilty of misconduct which harmed a child or placed a child at risk of harm and that the individual is unsuitable to work with children.

If carried, the amendment would impose a much higher standard for inclusion on the list, implying a fact-finding role for the Secretary of State. I believe that this would risk prejudicing the protective effect of the referral and listing procedure, while pre-empting the full fact-finding role given to the appeal tribunal. I would consider this to be wholly inappropriate.

25 Jun 1999 : Column 1232

Clause 4 provides that there should be access to a tribunal. The tribunal will undertake a fact-finding role to determine whether the person was guilty of the misconduct which harmed a child or placed a child at risk of harm and whether the person is unsuitable to work with children. This amendment would mean that that exercise would be undertaken twice. It is, therefore, unnecessary.

It may also be helpful if I explain that the role the Secretary of State carries out in Clause 2(7) is also distinguished from the test that he carries out in Clause l(3) in the context of being satisfied that an individual should not be included in the list, such as when new evidence comes to light or a criminal conviction is overturned. In such cases, the relevant evidence must be looked at afresh in the light of the new evidence which has been presented. To that extent, the Secretary of State's role would appear to be more in line with a quasi-judicial function, hence the need to be "satisfied" rather than "of the opinion". As your Lordships will consequently see, there exists a hierarchy of somewhat different tests within the Bill which, in turn, reflect the various functions being carried out within it at a given point, including that in Clause 2(7).

In addition, it has to be seen that Clause 2(7) provides two stages of a test. In answer to the point that the noble Earl raised, I can say that the second test is important. If the first test in subsection (7)(a) is met, it is not a foregone conclusion that the second stage will also be met; that is to say, that the individual is unsuitable to work with children. That will involve a separate and additional consideration.

I turn to the second amendment. Essentially, the purpose of Amendment No. 3 is to impose upon the Secretary of State a more restrictive criterion for deciding whether finally to list an individual than that currently catered for in the Bill. I emphasise that point. First, he has to be,

    "of the opinion that the organisation reasonably considered the individual to be guilty of misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm". However, as I have said, this is not enough to warrant listing. He then has to decide that the above actions make the individual,

    "unsuitable to work with children". Great efforts have been made in the Bill to balance the overriding need to protect children with the need to introduce safeguards--as far as that is reasonable-- to protect the rights of the individual.

As this part of the Bill currently stands, when forming an opinion over whether an individual should be listed, the Secretary of State will consider whether the misconduct in itself is sufficient to warrant banning the future scope for an individual to work with children. This is a serious decision bearing in mind all that the ban carries with it. Clearly no two cases will be alike. There will invariably be instances--perhaps few in number--where misconduct, while putting a child at risk of harm, or indeed leading to harm, exceptionally took place in circumstances which led the Secretary of State to form an opinion that the door on future employment with children should not be closed.

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The noble Lord, Lord Elton, referred to mentoring. If a mentor has access to children and satisfies the conditions of being engaged in a childcare position, he or she will fall within the provisions of the Bill, although I think that that would need to be assessed on a case-by-case basis. Conceivably mentors will be included in the definition, and probably rightly so, but I would be happy to write to the noble Lord with fuller details and discuss the matter with him if he has further concerns on that matter.

2.45 p.m.

Lord Elton: My Lords, I thank the noble Lord for putting that on the record. I point out that this is a large, growing practice. It exceptionally puts children and adults together in positions in which the child can be exploited. If the Bill does not cover that point, that is a matter for concern.

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