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Lord Northbourne: My Lords, I shall be fairly brief. To speak last in a debate on such a complex Bill is not easy, particularly if one was planning to propose a rather heterodox approach, out of line with those which have been advanced by other noble Lords, with all of whom I agree. I wish simply to make an additional point, but I believe it to be important.

Of course the Children Act 1989 says that the child's welfare shall be the court's paramount consideration. Of course it should be the paramount consideration of all legislation to protect children. I fully support the principle enshrined in this Bill. We must protect children from abuse and from significant harm by those who work with them. I congratulate the Government on bringing the Bill forward, but we must also recognise that it is crucial to avoid frightening away adults from the caring professions looking after our children. We must also be fair to those adults. My concern is that if we are to protect the nation's children, we need enough good staff to provide that care.

I am not comfortable with this Bill. I find it confusingly drafted and uncertain in meaning. I shall be helped by the letter received—only a few hours ago, unfortunately—from the noble Lord about the appointment of the board. It has also been helpful to hear what other noble Lords have said about the Bill. I understand it better now than I did, but before I came into the debate I wrote that the Bill seems to give the Secretary of State, through regulations and through the powers he has to appoint the barring board and the tribunal, the power effectively to terminate the career of any adult working with children. That is on the basis not of a court decision, but of suspicion or allegations, which cannot necessarily be verified.

I recognise the delicacy of the situation. The noble Lord, Lord Harris, made an extremely important intervention that touches upon the point that I am making. The decision that the board makes cannot be challenged in the courts except on a point of law. I made a note that that might be an abuse of human rights, but it is not human rights that I am concerned about. I am concerned that the threat of this bar could have an unintended consequence for the recruitment and retention of well motivated staff.

There is already an acute shortage of good quality and well trained professionals in social services, the health-visiting profession and residential care, to mention but three. The Government have important plans to extend caring services, including thousands of new children centres and thousands of new extended schools. Brilliant. Those are excellent plans, but they will all need additional staffing. Human resources are going to be needed. If a career in those services becomes too risky, staff shortages could result. If they did, the last case might well be worse than the first. More danger and harm might be created for children.
 
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I do not want to delay the House, so I am only going to touch on some of the aspects of the Bill that seem to me to need attention. Some have already been touched on by others.

I am not happy about the no claim for damages clause. Does it not even apply in cases of negligence, malice or malpractice? Also, Clause 41 seems to conflict with Clause 2(6). In Clause 4 is the issue of appeals, but why appeals only on a point of law? Surely the most important issue in most such cases is false accusations. Those are a matter of fact, not of law. It is on false accusations that there is a need for the possibility of an appeal to the courts.

Nearly every noble Lord who has spoken has mentioned Schedule 2 and the problem of "harm", which is not defined. I agree that it probably should be the same definition as the interpretation of "significant harm" in the Children Act 1989. If it is, let us say so. Any certainty that we can get in the definition of what we are talking about will increase the confidence that professionals can have about what they are allowed and not allowed to do. It will increase the uniformity of judgment across the country and make the list a great deal fairer and more effective.

What do the Government mean by,

or "risk of harm" or "relevant conduct" in paragraph 4 to Schedule 2? These are dangerously vague concepts. That vagueness represents a threat to professionals. What is the threshold of risk? As some noble Lords have said, Barnardo's and the NSPCC have drawn attention to the need for a much clearer definition of thresholds for barring. The NSPCC states:

I thoroughly endorse that comment.

Finally, Clause 42 raises the important issue of families. We shall have to have another look at that. Perhaps I have read the measure wrongly, but it seems to me that a man who has, for example, sexually abused a child in the family could not be put on the list although it might be most appropriate that he should be.

Without compromising the protection of children, what are the Government going to do to protect professional adults who work with them?

10.01 pm

Baroness Sharp of Guildford: My Lords, I too thank the Minister for introducing the Bill and presenting it with a clarity that explained some issues about which I had been uncertain. However, the debate has also shown the number of difficulties that we shall face as we examine the Bill in detail.

There is, indeed, much to be welcomed. The Soham murders showed up the inconsistencies of the present system, with different authorities using different checks, and perhaps above all the chronic failure of the systems in place to transfer information across county
 
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or police boundaries. It is good that the Bill will bring together for the first time all the information, so that the CRB and List 99 will be amalgamated into one database, provided that we can establish that database satisfactorily. I refer also to the establishment of the online facility for checking combined with continuous monitoring, which means that up-to-date information will be easily and quickly available as compared with the current six-week wait for CRB checks.

It is also good that, where discretion is required for decisions, it is now being transferred from the Secretary of State to an independent board. I think that all of us welcome that shift of responsibility. Such decisions are not appropriate for politicians. I dispute the point that, I think, the noble Lord, Lord Northbourne, made about the fact that the Secretary of State would appoint the board. The board will be genuinely independent. We welcome that.

We also welcome the expanded coverage from schools and care homes to domestic employers of nannies, childminders and so forth. However, in welcoming that provision, we should be very aware of the need to raise awareness so that those who need access to the system know about it and can get it.

It is also good to have vulnerable adults included alongside children. The abuse of vulnerable adults is something that we know much less about than the abuse of children. The noble Lord, Lord Rix, spoke for some time on that matter. It is good that the profile of vulnerable adults has been raised.

In this Bill, the devil is surely in the detail, and a number of general issues seem to have come forward time and time again in our discussions. A central one is the question of the clarity of definitions, which the noble Lords, Lord Laming, Lord Harris and Lord Northbourne, all raised. If we are to have the four categories of barring that the noble Lord, Lord Harris, mentioned, it is essential to know where the lines are drawn. There is no definition of harm in the Bill. All the definitions and the whole question of the risk of harm—what sort of behaviour will endanger children—are to be left to guidance. It is to be prescribed in guidance from the Secretary of State, and decisions will then be taken by the Independent Barring Board. What that decision-making process will be is very unclear, yet the decisions taken will be absolutely crucial.

Allied with that is the issue of the rights of appeal. The noble Lord, Lord Northbourne, said that decisions could not be challenged in court except on points of law. Yet someone's whole career can be put in jeopardy in such circumstances, as the noble Lord, Lord Harris, pointed out. Surely, under the European Convention on Human Rights, there should be the right of appeal against the automatic barring list and, for that matter, decisions made by the IBB other than just on points of law. Surely, there must be the right on occasion to challenge the facts. So, we need clarity on precisely who is and is not included in the barred lists.

A second area where we need clarity of definition is in distinguishing between regulated and controlled activity. The Bill states that anyone on the barred list
 
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is not allowed to work in regulated activity yet can work in a controlled activity, subject to safeguards and, again, following guidance from the Secretary of State. The distinction between them is whether the activity is to be carried out regularly and frequently; if so, it is a regulated activity whereas, if it is only occasional, Clause 8(7) makes it clear that it is not an offence to engage in regulated activity without being subject to monitoring—for example, parents helping in classrooms. Yet still no definitions or criteria are included in the Bill. How often is "frequently", and how seldom is "occasionally"? What distinction is to be drawn, and how can parents or employers—or the general public, for that matter—know whether an adult with whom their children are in contact has been vetted or should, indeed, be subject to vetting procedures? Why, for example, do we insist that school governors are subject to such vetting, while a parent who comes to help in the classroom is not? The distinctions are vital, yet there is no clarity in them.

A linked point is the crossover between children and vulnerable adults. The bar applies to all posts in schools and to the provision of services to children or in care homes but only where the person concerned comes into close contact with children or vulnerable adults, such as in day centres or hospitals. Surely, the criteria ought to be whether the individual concerned has unsupervised contact with children or vulnerable adults. There is the issue of canteen and cleaning staff in schools and hospitals. Often, such staff are likely to come into contact with vulnerable adults and children for substantial, unsupervised periods. Surely they need to be vetted in the same way. There are real difficulties in those circumstances.

Likewise, where a post is not a regulated one that carries the automatic exclusion of anyone who is on the barred list but is a controlled post that allows those on the list to fill the post subject to monitoring and supervision and is subject to disclosure, the vetting and barring scheme policy briefing pack suggests that employers need to "think carefully" about the level of access to children or vulnerable adults that the post gives and whether additional safeguards are necessary. What does "think carefully" mean? Does it mean producing a written risk assessment, which arguably is what one wants in the circumstances?

Then there is the issue raised by the noble Lord, Lord Rix, of vulnerable adults who pay directly for their services via the independent living allowance; that is, recipients of services that are not classed as a regulated activity. Such people are often alone for long periods with those whom they engage and are very dependent on them. Would it not be sensible for such people to be able to access secure online information about those whom they engage, just as people who employ nannies or music teachers should do? Where they are not in a position to do so, those who act as their trustees or agents should be able to do so.

All those issues arise from the lack of clarity in definitions, the vagueness of the language concerned and the need to look always to the guidance. The issue raised by the noble Baroness, Lady Thornton, was interesting and different, and the noble Lord,
 
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Lord Northbourne, also mentioned the potential disincentive to volunteers of the procedures in the Bill. As the noble Lord, Lord Northbourne, asked, are we in danger of frightening away those who are prepared to go into the caring professions, when we are desperately short of such people? The noble Baroness, Lady Thornton, spoke about those who moderated internet chat rooms and the responsibility that they had for the material that went into them. How far will the burdens placed on moderators frighten them away? In many senses, it is the thin edge of a much thicker wedge. It is extremely difficult to find people who are prepared to run Brownie and Scout groups because of the burdens of the bureaucracy that we are placing on them.

The Local Government Association has been much concerned with costs. How much will the system cost to set up? The noble Lord, Lord Laming, suggested that we might be a little sceptical about how easy it was to set up such a substantial database and how well it would work. The example of the Child Support Agency does not make one optimistic about how such a database might work; one hopes that it will work very much better. Who pays? The explanatory memorandum suggests that, once the integrated database is established, charges via the Criminal Records Bureau might rise considerably, although there will be online consultation. It says that the online consultation will be free. Will an employer be satisfied with just online consultation, or is more required? Do you require the information to be in writing? I would have expected so. If there is to be no charge, who will meet the costs of running the database? If it is online, how will access be regulated? It will contain a lot of confidential information about individuals, including, it has to be said, a lot of information that my noble friend Lady Walmsley described as "soft information". How can we prevent an individual posing as a potential employer and obtaining confidential information about individuals on the database?

The LGA is also worried about litigation. As the noble Lord, Lord Harris, said, given all that information about individuals, if the individual is to sue those who have provided the information—if they know about it and if there is litigation in relation to the list—who will pay? Who is to test the veracity of the data? Is it to be the Independent Barring Board? What about allegations of sexual harassment against teachers? How can we prevent such vexatious complaints? Do the school governing body or the police investigate them before passing them on? How does the individual clear his name if it is wrongly placed on the list? All those issues are unclear. I can see that the GLA was and is undoubtedly worried about who will meet the costs of litigation.

I conclude with a general welcome for the Bill's broad aims, but there are problems that we will have to tease out in Committee.
 
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10.16 pm


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