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Baroness Greengross: My Lords, I have not yet spoken to any amendments to this Bill because I was not a Member of the House when it received its Second Reading and it was a little too early for me to contribute to the Committee stage.

I agree that this is a difficult balance to strike and that the noble Lord, Lord Phillips, has put forward a persuasive argument. However, I have spent many years looking at the issue of abuse of vulnerable adults, in particular as regards a group that is especially vulnerable to neglect and abuse of all kinds; namely, the growing sector of elderly people who are slowly descending into mental incapacity. Very often they fall between all the different aspects of our welfare services because they are not sufficiently mentally incompetent to be covered by the protections offered in mental health legislation. Such people are frequently abused in terms of financial loss and neglect--sometimes unintentionally--but always with devastating results.

For that reason, in the end I have had to make a decision in support of those vulnerable adults. Nevertheless, because the noble Lord, Lord Phillips, has made such a good case here, I ask the Minister if, in preparing the guidelines, he can ensure that the process of establishing the facts is carried out with the utmost speed in order both to protect vulnerable people and to close the remaining loopholes that have been mentioned by the noble Lord, Lord Phillips. I regret that I cannot support the noble Lord's amendment.

Lord Clement-Jones: My Lords, unlike many other noble Lords who have spoken today, I believe that my noble friend Lord Phillips has made a very good case here. If we do not accept that case, we shall come to regret it in the future.

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I do not believe that anyone sitting on these Benches is any less keen to root out the abuse of vulnerable adults. That is axiomatic in the way we have approached this legislation and is reflected by the seriousness with which we have addressed this particular issue. Of course appropriate methods must be found to tackle and eradicate the abuse of vulnerable people. However, I believe that the Bill provides so much discretion that, under certain circumstances, a malicious employer could cause substantial harm to an employee.

Let me explain. This is a complicated clause. It is a lawyer's paradise to some degree and it is no surprise, therefore, that it has taken a lawyer to look through it and understand what the problems associated with it are. Perhaps I can draw attention to the subsection which deals specifically with the conditions.

On Report, the Minister and other noble Lords, such as the noble Lord, Lord Warner, talked about the extra statutory guidelines which will apply to care homes and their employment practices. Certainly if the homes follow those guidelines there will be a degree of fairness surrounding the dismissal or otherwise of an employee. But the employer is entitled to refer in circumstances where he only "considered" dismissing the employee. That is extremely loose language. It means that the employer does not have to go through the full procedure of the extra statutory guidelines; he can simply consider dismissing the employee. That seems to drive a coach and horses through the argument.

We know that the outcome of listing is effectively to deprive an employee of his or her livelihood, so we have to take particular care, as my noble friend Lord Phillips said, as to how those conditions operate. Once those conditions have operated and the employer has referred an employee, then the Secretary of State,

    "If it appears from the information submitted with a reference under subsection (1) that it may be appropriate for the worker to be included in the list ... shall".

So we have two situations. First, the employer merely "considered" dismissing the employee; he did not dismiss, just "considered" dismissing. Secondly, all that the Secretary of State has to consider is,

    "that it may be appropriate".

In those circumstances, there is a considerable gap in the Bill.

Our belief is therefore well founded that this clause could well rebound in future years. I do not believe that the "significant risk" test is a high hurdle when we consider the nature of the clause as currently drafted. If the words,

    "or would have considered dismissing him",

were not in the Bill, there may well have been a case for not introducing those hurdles. But that particular hurdle does not seem to put the balance too high.

Lord Jenkin of Roding: My Lords, perhaps the noble Lord will give way. We had this same argument at Report stage and at that time I, too, was concerned about the words,

    "or would have considered dismissing him".

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But one must read to the end of the paragraph which adds the proviso, "on such grounds" if he had not resigned or retired. That is bound to take account of the fact that there has been a discovery of abuse and mishandling and, before anyone could do anything about it, the worker left--resigned or retired. What else can we put in the Bill if one of the conditions has to be that the employer could say, "The matter is sufficiently serious so that if he had stayed I would have sacked him"? I follow the noble Lord's argument, but I still do not see what else we could put in.

Lord Clement-Jones: My Lords, that is precisely why we need the hurdle. If we could excise the words, "or would have considered", then perhaps one would not need the hurdle. But because of those words, one needs to accept the fact that the full procedures set out in the extra statutory guidelines were not followed. That is a considerable hole and diminishes the safeguards available for the worker in question.

We have had a considerable debate today. There is clearly an issue of principle involved here and I do not believe that we will resolve it easily. Suffice to say that we do not believe that the balance is correct. The noble Lord, Lord Warner, may well be correct that the current system has the balance completely wrong. But we believe that the system proposed is tilted too far the other way and that the safeguard we propose should be included.

Lord Brightman: My Lords, having listened to the debate, it occurs to me that it may be worth considering one suggestion, which did not occur to me earlier. At the moment the Secretary of State has absolutely no discretion. Once subsection (4) is triggered,

    "the Secretary of State shall--(a) determine the reference",

and shall,

    "(b) pending that determination, provisionally include the worker in the list".

The second "shall" is not included in the provision, but it follows inevitably from the wording of the paragraph.

It may be wise for the Minister to give the Secretary of State a scintilla of discretion. All we would need is to add the word "may", so that, if the subsection is triggered, it would read,

    "the Secretary of State shall--(a) determine the reference in accordance with subsections (5) to (7); and (b) pending that determination, [may] provisionally include the worker in the list".

Why should the Secretary of State be bound to include the worker in the list? Why should he not have a discretion when subsection (4) is triggered? It could not do any harm and may be worth considering as a possible amendment in the other place.

4.30 p.m.

Lord Hunt of Kings Heath: My Lords, this has been a sober and informed debate. I am grateful to all noble Lords who have taken part. It is a debate which essentially started at Second Reading and has followed through all the stages in your Lordships' House.

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Like other noble Lords, I want to pay tribute to the noble Lord, Lord Phillips, for the care and passion with which he brought these matters to our attention. But I remain convinced that the difficult balance which has had to be set between the rights of vulnerable people and the rights of the employer is right in the provisions of the Bill as they now stand. I believe also that the noble Lord, Lord Phillips, in bringing these arguments to us, perhaps ignored some of the other elements of the Bill which will raise standards in the care homes we are discussing. They will embrace the way in which the homes manage, support and train members of staff. That is a factor which needs to be taken into account when we come to the issue of potential malicious referrals.

It is worth returning to the work of the Home Office interdepartmental group on preventing unsuitable people from working with children and abuse of trust which met in 1998-99. That group recommended that certain people, including criminals convicted of specific offences, should be prevented from working with children. But the group also considered the protection of vulnerable adults and recommended that there should be a workforce ban for people who abused vulnerable adults. That is what the provisions of Part VI implement.

Much of the Bill in relation to the protection of vulnerable adults follows the same provisions contained in the Protection of Children Bill enacted through both Houses of Parliament last Session. It was during our debates on that Bill that the noble Lord, Lord Rix, raised in particular the need to ensure that the provisions of the Protection of Children Bill were extended to vulnerable adults. In essence, that is what the provisions in the Bill before the House propose.

The protection of vulnerable adults scheme requires the Secretary of State to keep a list of persons who are unsuitable to work with vulnerable adults and provides that those listed are prohibited from taking employment in a care position looking after vulnerable adults. Overall the system is similar to that provided for in the Protection of Children Act.

An individual has to be referred to the Secretary of State for possible inclusion in the list by an employer who has dismissed him on grounds of misconduct which harmed a vulnerable adult or placed him at risk of harm.

As the noble Lord, Lord Clement-Jones, has suggested--although I believe he is unhappy with the provision--to prevent avoidance of the scheme special provision is made to catch those who have resigned so as to avoid such disciplinary action or who have been suspended, transferred or provisionally transferred.

To the noble and learned Lord, Lord Brightman, who suggested a rewording of the word "shall" in the clause, the discretion lies in whether it appears to be appropriate. On referral, the Secretary of State will "provisionally list" the individual if it appears,

    "that it may be appropriate for the worker to be included in the list".

That person will then be subject to the prohibition on working with vulnerable adults.

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The Secretary of State goes on to disclose the referral papers to the person and to invite observations from him and, if appropriate, further observations from him on any observations made by the referring employer before reaching an opinion as to whether the employer reasonably believed the person was guilty of the misconduct and whether the person is unsuitable to work with vulnerable adults. If both those tests are passed, the person's listing is confirmed. That is the point at which the person has the right to take his case to the independent tribunal.

The tribunal will remove the person from the list unless it is satisfied that he is guilty of the misconduct and that he is unsuitable to work with vulnerable adults. Therefore, the tribunal provides a full hearing of the underlying merits of the case, with a burden of proof that is favourable to the applicant. The applicant will have a right to make oral representations to the tribunal.

I want to emphasise the responsibilities that employers will have in order for the scheme to operate effectively. First, an employer proposing to offer employment in a care position must, before making the offer, check whether the person is on the list. If he or she is on the list, that person cannot be employed in a care position, as defined in Clause 70. Secondly, the employer has a duty to refer workers to the Secretary of State for inclusion on the list under the circumstances I mentioned earlier.

In our debates in your Lordships' House on this subject, the key matter has been the balance to be struck between protecting vulnerable adults and securing the rights of workers accused of harming them. I have given the matter a great deal of consideration, but at the end of the day I am taken back to the basic principle of these provisions which is to offer protection to those who cannot protect themselves. We want to identify workers who have harmed these people and ban them from the workforce so that they cannot be in a position to inflict such harm again.

We have based these provisions on referrals made when a worker's behaviour towards a vulnerable adult has been so bad as to result in their being moved from a care position. We are not dealing with minor incidents or infringements. We are looking at people in need of care and protection who have been harmed or placed at risk of harm by workers in positions of trust.

Whatever provisions are put in place we must ensure that they are fair and that workers accused of harming vulnerable adults are treated justly and fairly. We have safeguards in place to do just that. As I said, the misconduct must have resulted in the worker being removed from a care position, which in many cases will mean dismissal. Workers in employment for more than a year will have access to an employment tribunal if they believe that they have been dismissed unfairly.

All services in this scheme will be required to have proper disciplinary procedures in place. I believe that that will act against malicious referrals and poor

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procedures on the part of employers. Before permanent listing, the worker will have the opportunity to comment on the employer's referral.

Finally, there will be a right of appeal against the decision to list an individual. At that point the worker who is dissatisfied with the listing decision can elect to have his case heard by the independent tribunal. Of course, there is a balance to be struck. We believe that in constructing this scheme we have provided both for the rights of the worker involved and for the safety of the vulnerable adults to whom we owe a duty of protection.

I have carefully considered the specific amendment moved by the noble Lord, Lord Phillips. On Report, when we discussed the matter of restrictive provisional listing, I expressed concern that such a move would seriously weaken the scheme we have devised for protecting vulnerable adults. Of course, I am aware of the effect that provisional listing can have on an individual and his or her future. Provisional listing is not a matter that can ever be taken lightly.

I want to assure noble Lords that provisional listing will not happen in every case that is referred to the Secretary of State; it will not be a matter of an employer making a reference and the Secretary of State reacting by immediately listing an individual provisionally. Each case will be considered on its merits and the Secretary of State will have to be satisfied that provisional listing is right in each case. He will have to make a decision that the employer has made a proper reference and that provisional listing is warranted. If necessary, he can go back to the employer and seek additional information if the reference is unclear or incomplete.

We are concerned to ensure that in a referral the Secretary of State is able to take a broad view of everyone concerned when he considers whether it is appropriate to include a worker in the list provisionally. I believe that including such provisions on the face of the Bill would detract from the Secretary of State's ability to act in the best interests of all concerned.

On the specific issue of a "significant" test, I do not believe that there would be benefit from trying to limit provisional listing to only those cases where there was a risk of "significant" harm. Apart from introducing a loophole which might leave vulnerable adults ill-protected, the qualifier "significant" adds nothing. For an act of misconduct to result in a referral to the list, it must have been an act that resulted in the person being removed from a care position. Lesser acts of misconduct would not result in provisional listing.

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