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Earl Howe: There is nothing I can say to add to what the noble Lord, Lord Phillips, and my noble friend
Lord Jenkin have said, except that, from the perspective of the Official Opposition, I strongly support the points made by the noble Lord, Lord Phillips. He has indeed done the Committee a great service. He has made a powerful case. I hope that the Minister will take serious note of all the points that he made.
Lord Hunt of Kings Heath: I thank the noble Lord, Lord Phillips, for the care and attention which he has given to these clauses. I can assure the Committee that I shall take very careful account of all the points made in the debate. The noble Lord, Lord Jenkin, referred to the belief of the noble Lord, Lord Phillips, about the lack of fairness in the provisions. What came through in our debates on the Protection of Children Bill as it went through the House was that the lack of a system to protect vulnerable adults had meant that unsuitable workers had perhaps been dismissed from one employment only to find new employment in a similar position at a nearby establishment or agency.
Over the years there have been examples of service failure where workers, as a result of neglect or deliberate acts, have caused harm to elderly people or adults with learning disabilities. One can think of one example where adults with learning disabilities were treated very badly until inspectors stepped in and the home was closed. But in that case the nurse employed at the home at the time subsequently obtained work in another care institution.
It is one of our major aims in modernising social care to improve the protection of vulnerable people, whatever their age or condition. That is why we wanted to introduce this scheme to protect vulnerable adults by putting in place measures to put out and keep out of the workforce individuals who have shown themselves to be unsuitable to work with vulnerable adults.
The second consideration we had in mind in developing the Bill was the need to strike the right balance between the protection of vulnerable adults and safeguarding the rights of individual workers. We believe that here we have achieved that balance. In the first place, a worker who is the subject of any referral to the Secretary of State will know from the outset that a referral has been made and will have every opportunity to submit written observations to the Secretary of State.
Secondly, under Clause 73(2), a person who has been provisionally listed for a period of more than nine months may seek leave from the tribunal for it to determine the matter finally. Thirdly, we have provided, under Clause 73(1), for an appeal to the tribunal against a decision to list an individual. Fourthly, under Clause 74 we have provided for a person to ask the tribunal to review inclusion in the list, with the possibility of having the listing removed if the person has been listed for a continuous period of at least 10 years.
Finally, under Clause 70(3), the Secretary of State may remove an individual from the list if he is satisfied that inclusion on the list was wrong at the outset because, for example, new evidence comes to light or a criminal conviction is overturned.
Although Members of the Committee may disagree with the exact terms of the Bill, I hope it will be accepted that a great deal of effort has been put into trying to balance the overriding need to protect vulnerable adults, with the need to have safeguards, so far as is reasonable, to protect the rights of the individuals. As the Committee knows, those reflect in broad terms the provisions that we debated in the Protection of Children Bill.
As regards the specific points raised by the noble Lord, Lord Phillips, first in Amendment No. 143A, it is our belief that the amendment would seriously weaken the scheme we have devised for protecting vulnerable adults. It seems to us that it is important that the Secretary of State has the ability to list individuals provisionally and has flexibility in the way that he can use the power, in order to ensure that the protection of vulnerable adults is satisfied.
We have sought to strike the right balance between the safety of the public and the rights of the individual worker in those proposals. The question of listing will only arise where there appears to have been a risk of harm to a vulnerable adult. The noble Lord, Lord Phillips, quoted Clause 18, where the test of a serious risk to a person's life, health or well-being is used and consideration is given to applying to a justice of the peace to close a home immediately. It is our view that there is no direct read-across to the provisional listing of an individual, since the problems within a home can often be remedied by the removal of one or more individuals from it; not so when it is a matter of the individual worker.
In considering provisional listing of an individual, the Secretary of State needs to be able to take a broad view in the interests of all concerned and not to be hampered by the consideration that this amendment would impose upon him.
In Amendment No. 143B, the noble Lord, Lord Phillips, also put forward the potential introduction of a right to make oral representations to the Secretary of State and to introduce circumstances in which cases might be referred immediately to the independent appeal tribunal, bypassing the Secretary of State's decision to confirm listing or otherwise, following observations. I am not persuaded that oral representations to the Secretary of State are the right way forward, bearing in mind the right to make them at a later stage to the tribunal. Nor do I think it appropriate for the tribunal to be asked to rule on whether listed persons should have the right to go to it before the Secretary of State has confirmed the listing. However, I am sympathetic to the suggestion that the Secretary of State should be able to refer a case directly to the tribunal. One can see that in certain circumstances that may be advantageous. I am happy to take that matter away to consider it further.
In responding to the noble Lord, Lord Phillips, I accept that the points he makes are strongly held and that his concerns about the rights of individuals under the Bill are very important. But we are debating this Bill against the backdrop of serious concerns about the vulnerability of adults and the need to protect them from unscrupulous employees--hence the whole concept of provisional listing to provide an immediate safeguard for the protection of vulnerable adults. Procedures must then be followed before that person's place in the list can be confirmed, with the possibility of that individual appealing to the tribunal. I doubt that I shall persuade the noble Lord that the Government have achieved the right balance. This is a matter to which we have given great consideration and we believe that we have struck a fair balance between the two needs identified in the debate.
10.30 p.m.
Lord Phillips of Sudbury: I am grateful to the Minister for giving the reasons that he did. I am encouraged at least by one concession related to the discretion of the civil servant who deals with the matter to make his or her own reference to the tribunal, because in fairness he or she ought so to do. As he anticipated, I am disappointed that the Government have gone no further than the position they adopted under the Protection of Children Act 1999. There are many Members of this House who, no doubt through their own fault, failed to latch on to the particular provisions in the Protection of Children Act 1999. We say that two wrongs do not make a right.
When I listened to the response of the Minister I wondered why the criminal law provided the various protections it does. For example, why should someone accused of rape, grievous bodily harm, or even worse crimes, be allowed to remain at large while the wheels of justice grind slowly, as they often do, especially as the prospects of an accused getting off a criminal charge, given the different tests involved and the right to jury trial, are much greater than the prospects of an individual escaping from this blacklist?
I was considerably sobered to hear the Minister say, "Don't worry, old chap, because at the end of the day a person can go to the tribunal and have a hearing". It is all very well to say that when one's career is in ruins because one's name is on the permanent list and the whole world can search it, as it must. It is no answer to say that a person whose reputation is destroyed and who has lost his livelihood can, perhaps following vast expense, have a tribunal decision six to nine months--even 12 months--later that vindicates him. I urge the Minister to go away and consider in particular the provisional listing.
I do not see that what is good and fair for the proprietors of a care home under Clause 18 of this Bill is unfair for an individual who is in greater jeopardy. His jeopardy is greater because the people who run the care home can go away and find other employment, whereas the person placed on the provisional blacklist is a dead man or woman. He or she does not even have a justice of the peace before whom a case can be brought in order for such an order to be made, as is
required under Clause 18. It is no good the Minister saying that there is no read-across from Clause 18 to Clause 71. The read-across is basic justice. This is not a trivial matter: one is talking about the reputation and livelihood of potentially many people. Even if there were only 10 people at risk, this House should protect them. It depresses me that the party in government, which has been a stalwart defender of basic rights--it brought in the Human Rights Act and God bless it for that--should be apparently blind on this issue to what most of us would call the simple basics of fair procedure. The Minister made no reference to the opinion of Professor Jowell. I suggest that that is simply because no answer can be given.
Forgive the warmth of my address, but it is a hugely important matter and I believe that other noble Lords who have spoken share that view. The fact that there are few Members present tonight should not mislead the Government into thinking that they can get away with the matter with few noticing. I urge them to rethink the issue even though it will reflect back on to the Protection of Children Act. I beg leave to withdraw the amendment, but hope to return to the issue.
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