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Lord Clement-Jones: My Lords, I thank the Minister for his reply. Although at this late stage I shall not ambush him on the subject, I do not believe that he has moved far enough. I took encouragement from his comment that the commission would encourage care homes to adopt an independent element as a matter of good practice, but the industry is being more progressive than he gives it credit for. It is moving towards independent adjudication in a most helpful way.

I do not want to press the point unduly, but I believe that it will be a matter of practice for the commission rather than the drafting of the Bill. Therefore, I take some comfort from the fact that the industry is providing the independent element, which will make it straightforward for the commission to ensure that the vast majority of the care homes affected will adopt it in their complaints system. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.45 p.m.

Clause 22 [National minimum standards]:

Lord Hunt of Kings Heath moved Amendment No. 6:

("( ) Before issuing a statement, or an amended statement which in the opinion of the appropriate Minister effects a substantial change in the standards, the appropriate Minister shall consult any persons he considers appropriate.").

The noble Lord said: My Lords, I have always made it clear that the Government intend to consult on each set of national minimum standards as they are developed and before they are finalised. It is inconceivable that they would not do so. However, on Report, the noble Earl, Lord Howe, pressed for the

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reassurance of a mandatory requirement to consult. I am happy to bring forward this amendment today in response to his concerns.

The amendment requires Ministers to consult on the standards before publishing them and before making any substantial change to them. We have reserved the right to make minor changes without consultation as we shall want to keep the standards as up to date as possible and shall need to make minor adjustments from time to time in order to ensure this. Perhaps I may give an example. The draft standards for older people in residential and nursing homes, as set out in Fit for the Future?, include a standard which states that:

    "Residents must have access to their personal records if they wish to in line with the Data Protection Act 1984".

In the next edition of the standards, that will need to be changed to refer to the Data Protection Act 1998, which came into force on 1st March this year at which point the 1984 Act was repealed. I am sure that noble Lords will accept that there is no need to consult on such minor changes to the standards, as in the example I have given. I believe that it is to the advantage of all concerned that from time to time the standards are developed and changed. One of the conclusions I draw from the current regulatory regime is that it was not able to keep pace with developments within the care industry. I beg to move.

Earl Howe: My Lords, I simply say to the Minister, "For this relief, much thanks". I entirely understand why the amendment has been framed in such a way. I am conscious that there is a need for flexibility and, as we have often said during proceedings on the Bill, it is a question of striking a balance between what we all want to see ideally and what is practicable in the day-to-day lives of Ministers and others in the real world. I thank the Minister again for the care he has taken in addressing my concerns.

On Question, amendment agreed to.

Clause 72 [Employment agencies and businesses: duty to refer]:

Lord Phillips of Sudbury moved Amendment No. 7:

    Page 47, line 26, at end insert ("if it appears to him that, unless such a provisional listing is made, there is a risk that any person will suffer significant harm").

The noble Lord said: My Lords, this is the last opportunity that the House will have to consider even this limited amendment to a vitally important section of the Bill. Given the Government's majority in the other place, there is not the slightest chance that any amendment will be made to the listing procedure if it is not done here. Furthermore, although the Government have in this place given indications that they were considering sympathetically improvements to Clause 71--as it now is--nothing has emerged. Other bodies, such as the Royal College of Nursing, have been endeavouring to negotiate employee safeguards and had gained the impression that the Government themselves were going to bring forward improvements.

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Perhaps I may briefly recapitulate on key aspects of the blacklisting procedure. First, it potentially covers well over 1 million people, from charity workers through to doctors by way of orderlies and nurses. Secondly, it requires every employer of any such person to report him to the Secretary of State if the worker concerned has been dismissed, suspended or transferred,

    "on the grounds of misconduct ... which harmed or placed at risk of harm a vulnerable adult".

Noble Lords should note that the risk of harm does not have to be physical and certainly need not be intentional, let alone abusive. For example, as the Royal College of Nursing parliamentary briefing on the clause states,

    "such misconduct could include situations such as a nurse accidentally giving the wrong drug or wrong dosage to a patient or failing to ensure that a frail older person has been fed or had their soiled sheets changed. These are some situations where the misconduct would be the result of an isolated incident, incompetence or genuine mistake".

It warns also,

    "Such situations can arise as a result of management failings, such as poor procedures, or because of the huge pressures on nurses and other staff caused by staffing shortages. The RCN is concerned that individuals may find themselves scapegoated and referred to the list when the responsibility and accountability for failings in the case should actually be shared and addressed at a more systematic level".

Like me, the RCN is concerned also with malicious referrals. One speaker from the Government Benches last week--I believe that it was the noble Lord, Lord Warner--suggested that no one would do so because it would risk exposing the malice. However, as the Royal College notes,

    "Malicious referrals are made to the United Kingdom Central Council every year, resulting in great stress and misery for nurses who are thus referred and often lose their careers".

It points out further--I hope that noble Lords will not mind my quoting, but it is an authoritative source--that,

    "Bullying employers might also threaten to refer workers to the list as a means of keeping their staff under control"--

a point which I tried to make in previous debates. Particularly where a worker has stood up for vulnerable people, in residential care, for example, the employer might well threaten dismissal and/or referral if they do not shut up. The Royal College says that that is already occurring before the Bill provides the blacklist weapon--if I may call it that--to unscrupulous employers. What is more, outside the mainstream health institutions to which the RCN is mostly relevant, life is a good deal less internally well regulated.

"But", say the Government, "not to worry. We are going to produce extra statutory guidelines which will require employers to go through a proper internal procedure before they dismiss and so forth a worker for misconduct". That was a point of much solace to some noble Lords who were in two minds about the amendment.

However, that is an argument for doing away with employment tribunals altogether, because in most cases which come before them the worker will have

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been through disciplinary procedures comparable with those which the Government are no doubt contemplating for their guidelines. Virtually every organisation of any size these days has theoretically fair disciplinary procedures, often based on the ACAS Code of Disciplinary Practice.

At all events, upon dismissal, the employer must then refer the worker to the Secretary of State. Under Clause 71, all that the civil servant can then do is to consider the information submitted--and nothing else; to make no contact whatever with the worker concerned; and then to make up his own mind as to whether "it may be appropriate" for the worker to be provisionally listed.

One does not need to be a lawyer to realise that where one is considering only the self-justification of one side to a dispute--in this case, the ex-employer--and where the only criterion is whether it "may be appropriate" in due course for the worker to be permanently listed, it is difficult to imagine cases where provisional listing will not almost automatically follow.

I re-read in Hansard with near-surprise--nay, astonishment--the Minister's remarks last Tuesday, that the provisional listing procedure was a consideration of the case "on its merits". All I can say is, only the merits of one side. Yet at the moment that someone goes on the provisional list, his employment prospects--or, if he has another job, his actual employment--are shattered. The career and reputational effects are devastating; far more so than in many criminal prosecutions.

My amendment seeks to add but one requirement for provisional listing; namely, that the civil servant must be of the view,

    "that, unless such a provisional listing is made, there is a risk that any person will suffer significant harm".

In the debate last week, I pointed out that in Clause 68 the Government are providing precisely that safeguard, and indeed more, in the provisional or emergency procedure to be followed where a child is to be removed from a registered childminder. The noble Lord, Lord Hunt of Kings Heath, failed to address that point, beyond saying that,

    "It is not meaningful to imagine that the likelihood of harm can be assessed in those circumstances".--[Official Report, 28/3/2000; col. 775.]

and that,

    "It could raise issues of interpretation".--[Official Report, 28/3/2000; col. 776.]

That is precisely what will be required of those who will deal with emergency procedures for childminders.

If protection of the public is the overriding consideration--many will believe that it is--one must contemplate just how matters will be left if the wording in Clause 71 is left as drafted. It is not fair, as was said on Second Reading, that the overriding need is protection for vulnerable people and that the considerations of fairness to workers with vulnerable people are secondary. That is not right. It does not

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strike a fair and proper balance. It is wholly contrary to the traditions of the balancing act which this House has undertaken since time immemorial.

If, for example, one was considering the basic freedoms and protections in criminal law according to the same test, one would receive a dusty answer. One may argue that that case is criminal and this is civil; but I put it to your Lordships that the boundary between civil and criminal is these days growing extremely blurred. As I have indicated, the consequences of a provisional and a permanent listing for an individual are more serious in many cases than would be a criminal conviction.

If the issues of the burden of proof in criminal matters; the right to trial by jury; and the right not to have one's previous convictions read before the case is heard were being considered in this House according to the measures and attitudes prevalent on the Government Front Bench in considering Clause 71, one would be in a rather dire position.

Your Lordships may recollect that on Second Reading I read the forceful opinion of Professor Jowell QC, the distinguished co-author, with the noble and learned Lord, Lord Woolf, the Master of the Rolls, of the standard text on the law in this area. He concluded by saying that,

    "This Bill surely offends principles of English administrative law in respect of the Secretary of State's provisional decision to list in its failure to provide a fair hearing to those included in that list".

As I said, I can find nothing comparable with the provisional listing procedure anywhere in our legal system, nor have the Government been able to disabuse me. Doctors, lawyers, teachers and nurses all have protections that preserve the elusive balance in a way which Clause 71 pre-eminently fails to do. This procedure is out of balance with fairness. In the last resort it will harm the very groups which we seek to protect by this Bill, for over time it will deter, as in other areas of caring people are being deterred. It will deter some of the brightest and best from exposing themselves to a system which fails to afford them fair protection. I beg to move.

4 p.m.

Lord Warner: My Lords, I oppose this amendment. I admire the noble Lord's persistence on this matter although I take issue with his judgment as to whether a balance has been struck. As a former director of social services, I speak as someone who has had to adjudicate on claims of abuse by staff against children and vulnerable adults. In my own experience the current system is slanted strongly in favour of the alleged perpetrator rather than the victim. That is because of the problems of securing evidence.

The noble Lord has made much of the fact that these cases may be akin to criminal cases. That is simply not so: we are actually deciding these cases on a different standard of proof, which is the balance of probabilities. Even with that lower standard of proof, in these cases it is often extremely difficult to prove the case against the perpetrator, a member of staff.

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We have to understand that the purpose of the provisions in the Bill is to protect the civil liberties of vulnerable adults not to be abused as well as the civil liberties of staff. In my judgment the noble Lord's amendment seems to get the balance wrong, given that there is protection for staff already in the Bill. I believe that the noble Lord has been too dismissive of the checks to be put in place against unfair treatment of an employee who is to be provisionally listed, including the guidelines that the Government are preparing.

An employer is under a duty to refer a worker for inclusion in the protection of vulnerable adults' list only when he is considering it; or has decided to terminate a worker's employment or change their duties as a result of believing that they harmed, or placed at risk of harm, a vulnerable adult.

When the Minister receives the referral, he may list the person on a provisional basis. He then writes to the worker and asks for comments on the information that the employer has provided. He may go back to the employer to get his views on the worker's comments. At that stage, and only at that stage, is he in a position to judge whether the worker is guilty of misconduct or unsuitable to work with vulnerable adults. If the answer is "yes", the worker is confirmed on the list. There is still a further right of appeal to the independent tribunal. It seems to me to be unreasonable to expect the Secretary of State to go through that process before provisional listing.

In my view, the noble Lord's amendment would make it much more likely that that would be the effect because it raises another hurdle for the Minister to jump before provisional listing. Provisional listing should be permissible on the employer's written referral. That of itself is prima facie evidence of risk of harm and therefore justification for provisional listing.

It is worth bearing in mind that many staff in social care are suspended from duty while a full investigation takes place in order to stop vulnerable people being at risk of harm. That is taking place day in and day out in this country as we debate this issue.

The noble Lord has tried to raise the spectre of unreasonable employers using any excuse to get rid of staff before the full protection of employment law bites at 12 months. In my view, that overlooks the existing checks in the system. Employers are subject to registration and have to have proper complaints and disciplinary processes. Employees will invariably have had the opportunity to put their case within these processes. As the care of vulnerable adults is hardly a sector where people are flocking to work, the idea that employers are going to rush to get rid of staff in a cavalier way seems highly improbable. If they do, they will come to the attention of the registration authorities provided for in the Bill, which can hardly be in the interests of the particular employers.

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It is already difficult enough to root out abuse of vulnerable adults even with the improvements contained in this Bill. Many abusers are deceitful and difficult to expose. Erecting a further barrier to provisional listing, which is the effect of the amendment, will work in their favour. I hope that this amendment will be withdrawn or rejected.

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