With this it will be convenient to discuss the following amendments: No. 91, in schedule 1, page 34, line 29, leave out ‘thinks’ and insert ‘believes’.
No. 92, in schedule 1, page 34, line 33, leave out ‘thinks’ and insert ‘has reason to believe are’.
No. 93, in schedule 1, page 34, line 38, leave out ‘thinks’ and insert ‘has reason to believe are’.
No. 11, in schedule 2, page 35, line 11, leave out from ‘If’ to ‘that’ and insert ‘there is evidence’.
No. 12, in schedule 2, page 35, line 18, leave out from ‘If’ to ‘that’ and insert ‘there is evidence’.
No. 13, in schedule 2, page 35, line 24, leave out ‘it appears to IBB’ and insert ‘IBB has evidence’.
No. 14, in schedule 2, page 35, line 28, leave out ‘it appears to IBB’ and insert ‘IBB has evidence’.
No. 15, in schedule 2, page 35, line 33, leave out from ‘If’ to ‘that’ and insert ‘IBB has evidence’.
No. 18, in schedule 2, page 36, line 30, leave out ‘it appears to IBB’ and insert ‘IBB has evidence’.
No. 19, in schedule 2, page 36, line 34, leave out ‘it appears to IBB’ and insert ‘IBB has evidence’.
No. 42, in schedule 2, page 36, line 36, after ‘if’, insert
‘there are reasonable grounds to suspect that’.
No. 20, in schedule 2, page 37, line 6, leave out from ‘if’ to ‘that’ and insert ‘there is evidence’.
No. 21, in schedule 2, page 37, line 13, leave out from ‘If’ to ‘that’ and insert ‘there is evidence’.
No. 22, in schedule 2, page 37, line 19, leave out ‘it appears to IBB’ and insert ‘IBB has evidence’.
No. 23, in schedule 2, page 37, line 23, leave out ‘it appears to IBB’ and insert ‘IBB has evidence’.
No. 24, in schedule 2, page 37, line 28, leave out ‘it appears to IBB’ and insert ‘IBB has evidence’.
No. 25, in schedule 2, page 37, line 36, leave out ‘it appears to IBB’ and insert ‘IBB has evidence’.
No. 26, in schedule 2, page 37, line 38, leave out ‘it appears to IBB’ and insert ‘IBB has evidence’.
No. 27, in schedule 2, page 38, line 12, leave out ‘it appears to IBB’ and insert ‘IBB has evidence’.
No. 28, in schedule 2, page 38, line 16, leave out ‘it appears to IBB’ and insert ‘IBB has evidence’.
No. 46, in schedule 2, page 38, line 18, after ‘if’, insert
‘there are reasonable grounds to suspect that’.
No. 94, in schedule 2, page 39, line 40, leave out ‘thinks’ and insert ‘has reason to believe’.
No. 95, in schedule 2, page 40, line 10, leave out ‘thinks’ and insert ‘has reason to believe’.
No. 96, in schedule 2, page 40, line 45, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 97, in schedule 2, page 41, line 2, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 98, in schedule 2, page 41, line 5, leave out ‘thinks’ and insert ‘has reason to believe’.
No. 99, in schedule 2, page 41, line 9, leave out ‘thinks’ and insert ‘has reason to believe’.
No. 100, in schedule 2, page 41, line 34, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 101, in schedule 2, page 41, line 46, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 62, in clause 21, page 13, line 42, leave out ‘thinks’ and insert ‘believes’.
No. 63, in clause 21, page 14, line 2, leave out ‘thinks’ and insert ‘believes’.
No. 64, in clause 21, page 14, line 5, leave out ‘thinks’ and insert ‘believes’.
No. 65, in clause 21, page 14, line 6, leave out ‘thinks’ and insert ‘believes’.
No. 66, in clause 21, page 14, line 13, leave out ‘thinks’ and insert ‘believes’.
No. 67, in clause 21, page 14, line 17, leave out ‘thinks’ and insert ‘believes’.
No. 68, in clause 21, page 14, line 32, leave out ‘thinks’ and insert ‘believes’.
No. 69, in clause 23, page 15, line 39, leave out ‘thinks’ and insert ‘believes’.
No. 70, in clause 23, page 15, line 41, leave out ‘thinks’ and insert ‘believes’.
No. 71, in clause 24, page 16, line 7, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 102, in schedule 4, page 50, line 40, leave out ‘thinks’ and insert ‘has reason to believe’.
No. 103, in schedule 4, page 50, line 44, leave out ‘thinks’ and insert ‘has reason to believe’.
No. 72, in clause 26, page 16, line 24, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 73, in clause 26, page 16, line 33, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 74, in clause 26, page 16, line 39, leave out ‘thinks’ and insert ‘believes’.
No. 75, in clause 27, page 17, line 34, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 32, in clause 27, page 17, line 39, after ‘is’, insert
‘that there are reasonable grounds to suspect’.
No. 76, in clause 28, page 18, line 30, leave out ‘thinks’ and insert ‘believes’.
No. 34, in clause 28, page 18, line 35, after ‘is’, insert
‘that there are reasonable grounds to suspect’.
No. 77, in clause 31, page 20, line 5, leave out ‘think’ and insert ‘has reason to suspect’.
No. 36, in clause 31, page 20, line 11, after ‘is’, insert
‘that there are reasonable grounds to suspect’.
No. 78, in clause 31, page 20, line 17, leave out ‘think’ and insert ‘believes’.
No. 79, in clause 31, page 20, line 27, leave out ‘think’ and insert ‘has reason to suspect’.
No. 80, in clause 32, page 20, line 37, leave out ‘thinks’ and insert ‘believes’.
No. 81, in clause 33, page 21, line 6, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 38, in clause 33, page 21, line 12, after ‘is’, insert
‘that there are reasonable grounds to suspect’.
No. 82, in clause 33, page 21, line 18, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 83, in clause 33, page 21, line 28, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 84, in clause 35, page 22, line 4, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 85, in clause 35, page 22, line 17, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 86, in clause 36, page 24, line 7, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 40, in clause 36, page 24, line 14, after ‘is’, insert
‘that there are reasonable grounds to suspect’.
No. 87, in clause 36, page 24, line 20, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 88, in clause 36, page 24, line 28, leave out ‘thinks’ and insert ‘has reason to suspect’.
No. 89, in clause 37, page 25, line 9, leave out ‘thinks’ and insert ‘has reason to suspect’.
The group appears intimidating, but the amendments in fact relate to similar issues at various points in the Bill. To try to ease discussion and make the Minister’s response a little, I have clustered them together with regard to the issues to which they relate. Before I go into the detail, I think it important to recognise that discussing these amendments, which are all to do with the thresholds at which decisions are made, gets to the heart of one of the issues that the Bill is supposed to address. Again, it was a key issue in the Bichard report: inconsistent decisions were being made by many different groups as a result of a lack of understanding and clarity about what the processes and procedures were. In particular, inconsistent decisions were made by employers about whom they employed, and there were inconsistencies between lists that were held which barred people from various activities and inconsistencies of police disclosures between authorities.
The Government have done a great deal to try to ease some of those issues through measures that fall outside this Bill. As I said earlier, we cannot view it in isolation. I applaud the Government for the work that they have done to date in attempting to address a number of the considerable concerns that Bichard voiced. The key to the Bill, and to our discussion on this group, is to ensure that it does not create more problems than it solves in terms of inconsistencies and clarity. The language used in the Bill is at best unclear. It is certainly not readily understood either by the layman or by the legal expert.
Can more be done to make the Bill’s intention clearer? I think a great deal can be done, and whether the Minister and the Government choose to do it in or out of Committee is immaterial. Clarity is needed. The amendments hopefully give some idea of how it could be achieved.
First, I shall set out the types of decisions that the amendments deal with. If I did not, reading a list of numbers would be unintelligible. The Bill contains a hierarchy of decisions that have to be made. There is a decision to bar somebody because of actions that they have taken and that have been judged elsewhere, possibly in a court. There is a decision to bar somebody as a result of the behaviour that they have undertaken. There is a decision to refer somebody, again because of actions that they have undertaken. There are activities by the IBB, and there are actions in terms of disclosure of information. A number of different actions are in the Bill, and the threshold for each should be different, because the consequences of the actions taken are very different.
Let us be clear that nobody in this room today would want the thresholds included in the Bill for these actions to be a deterrent to referral for inappropriate behaviour that should lead to barring. That is not the intention of the amendments, and I must make that clear. Indeed, I believe that it has been agreed in discussions in the other place to include a clause about any malicious actions that are taken. I am therefore not as concerned that the thresholds need to be a deterrent for malicious allegations, as that they should be a guide to those who have to make the law work.
The thresholds also need to be proportionate and transparent, and engender trust among those who are being monitored. Currently, the language is unclear and does not use clear, known, legal principles. As I said during the debate on clause 1, there is considerable concern that the thresholds as expressed in no way match those that are used by the Care Standards Tribunal, which is the body to which the IBB will refer appeals.
I should like to press the Minister again on that point. If somebody is found to be barred by the IBB because they appear to have undertaken a certain activity, they will be able to refer to the Care Standards Tribunal, which will, I presume, use its current practice of employing the civil standard, which involves a balance of probabilities. I am sure that the Minister does not need me to point out to him the inconsistency in that. I am not entirely sure how that process will work. Again, perhaps the Government intend to use the civil standard for the barring process, but that is not specified in the Bill. It is important that we know what standard will be used, because we do not want the thresholds to be a deterrent, but we do need to ensure that they are proportionate to the actions that are being taken.
Thresholds that need to be defined fall into the categories that I have detailed. On inclusion on the barred list, schedule 2 states that
“if it appears to the Secretary of State” that a person has undertaken an activity that leads to automatic barring, they should be barred. Amendments Nos. 11 and 20 refer to that. Inclusion on the barred list that is subject to representation has a similar style to it. The risk of harm test also comes down to whether it appears that a person will cause harm to a child or a vulnerable adult—that is the threshold.
Perhaps the Minister can clarify what is meant by the word “appears”. It is not a transparent word, so perhaps he could explain how it will be taken as a robust measure of the activities that have been undertaken. The word is certainly not one that those whom we have consulted on the legal side of things understand clearly. Does the Minister feel that the meaning will be as clear and unambiguous as it needs to be? Does the word sit well alongside the measures used by other regulators—particularly the Care Standards Tribunal—to which we need to pay attention? We need to consider those issues, so I would appreciate the Minister’s response.
Amendments Nos. 75 and 77 to 79 deal with the duty to refer. The consequences of being referred are not as momentous as those of being barred, but there needs to be further consideration of what threshold should be adopted. Currently, the regulated activity providers have a duty to refer if they think that an individual has done something or behaved in a way that would lead them to be considered for barring. Local authorities also have a duty to refer if they think that an individual has done something or behaved in a way that could them to being considered for barring. Does the Minister really feel that the word “thinks” provides an open, transparent and objective measure of activity that has been undertaken? I reiterate that I understand the desire not to use thresholds as a way of deterring people from being referred. That is important, but neither I nor my hon. Friends are convinced that the word “thinks” is the clearest that could be used in this instance.
How will organisations respond to how this part of the legislation is written? We are dealing with allegations about activities potentially to do with the safety of young children, so the issue is very sensitive. Will organisations be led to react in a way other than how the Government intended? I am concerned that their reaction would not necessarily be to do with concern for a child or vulnerable adult, but could arise out of concern that they might break the law if they did not put forward a piece of information.
The duty to refer is an important part of the Bill, and I understand that we do not want a threshold that would stop people from putting information forward. However, the wording that we have put forward in place of “think”—“reason to suspect”—is more in line with legal terms currently in play, and I hope would be more readily understood by organisations. It is also the lowest possible legally recognisable threshold, so I hope that it will not be criticised for being unduly onerous. In fact, it gives a basis on which information can be put forward and, hopefully, does not run the risk of deterring anybody from referring individuals about whom they are concerned. I shall be interested to hear the Minister’s response to that point.
Amendment Nos. 91 to 93 refer to the operation of the independent barring board, and it is worth considering them. I feel, and I am sure that the Minister will agree, that openness and transparency in how the board works is vital, yet the language in the Bill about how the board will operate is, at best, vague. The amendments attempt to ensure a little more openness and transparency in how the board will work. The Bill may use new parliamentary language, but it is not helpful to those with legal minds. I am not legally minded myself, but I take the advice of those who are.
The IBB is to undertake activities that it “thinks” are correct in respect of compensation, staff, gifts and loans. The word “thinks” smacks not of objectivity, but of subjectivity. Our amendment would change “thinks” to “believes” and put the IBB on a far more stable footing. Again, amendment No. 62 would change “thinks”, in respect of the actions of the Secretary of State, into “believes”—and again, that would lead to a more objective measure. Amendment No. 101 is similar.
I move on to the most important part of this set of amendments—the behaviour that would lead to barring. I draw the Committee’s attention particularly to amendments Nos. 14 and 42. They are important because when an individual is considered for automatic inclusion, or inclusion subject to representation, they will, for the most part, have undertaken an activity for which they have been found guilty by another body. However, the other way of getting barred is through behaviour. By definition, that issue will be far more important to get right, because it will often involve soft data. It will certainly not involve data that would necessarily stand up in a court of criminal law, so it is important that we have a clear idea of what the IBB will do in terms of the threshold for barring based on a particular sort of behaviour.
Again, we have not proposed an amendment that would unduly raise the threshold to a level that would cause concern or deter people. We would merely change the word “appears” to something that would be more appropriate and understandable and perhaps provide more of a basis. I am referring to the concept of reasonable suspicion. As the Minister will know, that is the lowest standard of proof available to us legally.
We have had a great deal of debate on this issue and we are concerned that there will be a discrepancy with the Care Standards Tribunal’s way of working, which is based on the balance of probabilities. For that tribunal, people must be more than 50 per cent. sure that someone has undertaken an activity. With the amendment, we are proposing something that does not fit with that. We are saying that someone has only to have reasonable suspicion in order for a person to be put forward for barring. There is an inconsistency in that respect, but I can thoroughly understand the need to err on the side of caution. However, can the Minister say how in practice the differences will be ironed out, because someone, at some point in time, will have to deal with the inconsistency?
The final area that needs clarification concerns the disclosure of information—when someone should or should not disclose information. I draw the Committee’s attention in particular to amendment No. 99, which relates to the police’s ability to withhold information if they think that it is not in the interests of preventing crime to release that information. Under the Bill, we are saying that the only threshold that the police force needs to satisfy is that it “thinks” that it is not in the interests of preventing crime to release the information. “Thinks” is such a vague term. There have been problems in the past with inconsistencies in relation to releasing data and the way in which the police deal with data. We have to learn from that experience and put in place a measure that is far more readily understandable and, we hope, will be far more consistently applied.
The rationale behind this string of amendments is clear. At some stage, someone will have to make a decision on whether an individual is barred, either because they have done something for which they have been convicted, or because they have undertaken an activity that is deemed to be inappropriate and therefore they are eligible for barring. We cannot sidestep that issue; we must face it head-on. The Government have clearly chosen not to deal with it directly in the Bill, which I am surprised at, given the level of debate on these issues. This is not a debate on which standard or threshold should apply. It is about the fact that a threshold is needed in the measure and it needs to be consistent, clearly communicated and actionable. At the moment, the Bill is not clear and therefore perhaps not easily actionable by those who will have to deal with it.
We have a great deal of sympathy with the comments of the hon. Member for Basingstoke, in that the terms “thinks” and “appears” do not provide a sound basis on which one could make a judgment or, indeed, make representations against a judgment, which is quite an important aspect of the Bill. We shall therefore be interested in what the Minister has to say about the lack of precision. That is the real concern. We all agree with the principles, but there is a lack of real understanding of what is meant.
With regard to amendments Nos. 91 and 92, paragraph 13(1)(d) of the schedule refers to
“such other things as IBB thinks necessary or expedient.”
We Liberal Democrats question whether a board as a collective or a corporate body thinks. It is not applicable for “believe” to be used either, in so far as there is more clarity concerning the Secretary of State. We are sure that the Secretary of State does think, but we are not sure that the independent barring board should be said to think. We are concerned, beyond what the hon. Member for Basingstoke mentioned, about paragraph 13 of the schedule.
I should like to know about the terms of the delegation mentioned in clauses 6 and 7 and whether the protocol involved will clearly be set out somewhere. We asked about that earlier but did not get a clear answer. If we accept that the board cannot deal with the decisions itself, what will be the terms of the delegation? Will those be clearly published?
The amendments seek to make explicit provisions to require the IBB, the Secretary of State, the independent monitor, chief officers of police, local authorities, professional regulatory bodies, inspectorates, employment agencies and employers to have a reason or evidence before taking any action that they are obliged or have the power to take under the Bill.
As a general principle in relation to referrals, it is right that the IBB should be able to consider all information that is referred to it. To limit that in any way would limit the power of the IBB to make an informed barring decision. If information referred to the IBB is obviously false, spurious or insufficient to result in inclusion on a barred list, the intention is that it should not consider the information further than is necessary to establish that fact. There will be no detrimental effects on the person who is the subject of the referral. I hope that hon. Members will agree that it is better that the IBB should be able to consider the information, even if only to dismiss it immediately, rather than never being able to consider it all and risking missing a vital piece of information. In some cases, it is only as a result of many small pieces of information that a serious risk can be identified. That is the rationale behind the central and expert IBB. The hon. Member for Basingstoke answered her own question by saying that she wished to include the thresholds or legal words in the Bill, but did not want to deter people. She finds herself in the conundrum of doing one thing or the other.
Many of the amendments relating to the operation of the IBB do not make sense in that context. For example, amendments Nos. 11, 12, 21 and 22 would require the Secretary of State to have evidence that a person has committed an offence that would lead to automatic barring before he referred the matter to the IBB, rather than it appearing to him to be so. The commission of the offence will not be in doubt. The Secretary of State will know about it through criminal records, so no test that he has evidence that the offence has been committed is required in the Bill. I realise that that is complex and legalistic.
Is the Minister saying that there is no requirement to have evidence? A certain group of people will be referred for barring based on activities that they have undertaken and for which they have been convicted. They will automatically be barred—or barring will at least be proposed—but they will be able to have representation. However, another group will be put forward for barring based on the sort of evidence that the Minister has been speaking about—information that is gathered together, which is colloquially known as soft evidence or soft data. Is he saying that there will not be a standard of proof for that data? How will the IBB assess it?
The hon. Lady is probably aware that there are four ways to be barred. First, the automatic bar, without the right to make representations, is for the most serious crimes—for example, the rape of a child under the age of 13. In the second, people can be barred because they have committed crimes, but less serious ones, and they have a right to make representations. The third is the discretionary bar—perhaps Ian Huntley could have been subjected to one—when evidence has amassed over time and referrals have been made to the IBB. If it judges the evidence—I shall speak in a moment about judging evidence—it can choose to place a bar on that individual. The fourth can be imposed because of the risk of future harm, which we shall come to later in the Bill; a person can be barred because the IBB has decided that there is a danger that someone will commit harm to a child in future. That can be decided, for example, on the back of a psychiatrist’s report. In all those cases, however, the priority, first and foremost, is the child or vulnerable adult, and erring on the side of caution.
The hon. Lady asked fair questions about the standard of proof or evidence. The IBB is the decision-making body. As I said earlier, the Care Standards Tribunal hears appeals on points of fact and law. The burden of proof for the tribunal and the IBB is the same. However, their respective roles are different. In determining appeals, the tribunal uses the civil standard of proof—the balance of probability.
I thank the Minister for that enlightening reply. Although I have read all the debates in the Lords, this is the first that I have heard of that. I am not aware of it having been spoken of before. If it requires the civil standard of proof, why not state it in the Bill? It is not something that will be pored over only by lawyers. All members of the Committee who are school governors will need to know what it says. Those who run voluntary organisations will need to know. If the standard of proof required for soft evidence is the balance of probabilities, it will be jolly useful to have it stated in the Bill.
I will have to come back to the hon. Lady on that, but I believe that a provision on the balance of probabilities may well be in the Bill.
I will take the hon. Lady’s point on that. However, the decisions will be made by the independent barring board, and experts will have to make a judgment on the circumstances and form opinions on them. Yes, they will have to consider the burden of proof, but it is only common sense to expect them to use the balance of probabilities when considering that evidence.
I shall continue with the amendments. They are unnecessary in drafting terms, as Parliament imposes an obligation on, or gives a power to, a person to do something that arises only if he thinks that something is the case. Parliament does not intend that the obligation should arise, or that the power should be exercised, on the basis of a thought that is unreasonable. It is implied that any view that a person must form as a precondition for a power of duty to arise must be a reasonable one. That means that there is a reason to form the view, or evidence to that effect. Having given that reassurance, it may be useful if I address some of the concerns that may lie behind the amendments relating to referrals to the IBB.
Amendments Nos. 32 and 34 modify the harm test, so that an employer or personnel supplier must have “reasonable grounds to suspect” that the harm test has been satisfied, rather than “thinking” that it has been satisfied, before the employer falls under a duty to refer relevant information to the IBB about the person whom the employer has dismissed, or who resigned before he could be dismissed. The harm test is that a person may harm, attempt to harm or incite another person to harm a child or vulnerable adult. Amendments Nos. 32 and 34 appear to add nothing to amendments Nos. 75 and 76, which would require the grounds for all obligatory referrals to the IBB, including those referrals made as a result of satisfying the harm test, to be based on a reason to suspect.
Amendments Nos. 75 and 76 would have no practical effect on referrals from employers and employment agencies to the IBB. That is for two reasons. The first is that, in order to refer to the IBB, an employer or employment agency will need to have information on the basis of which they think that the conditions for the duty to refer the information have been satisfied. The information to be referred will be prescribed in secondary legislation and may include name and address details, details of the behaviour engaged in by the subject of the referral, other relevant documents, including medical or psychological reports, and details of any disciplinary hearings. In practice, that information must include the evidence on the basis of which the employer or employment agency thinks that the conditions for the duty to refer have been satisfied. In another place, the Government have already committed themselves to issuing guidance to employers on the thresholds for the duty to refer information to the IBB, including on interpreting the harm test.
It is great progress to know that, in order to be referred for barring, a person needs to have passed the civil standard. I just want to make sure that I am absolutely clear on the subject. I know that it is a complex matter, but it is what we are here to debate. On the harm test and the duty to refer, will employers be asked—presumably in codes of practice—to use the civil standard, too? Is the Minister rejecting my amendments because they are not strident enough, and because “reasons to suspect grounds” is a lower burden of proof, or is he rejecting them for some other reason? I am not quite clear on that.
Let me make it clear: I am not talking about a civil standard of proof having to be met before people can make referrals, as I said early on. That is for reasons that the hon. Lady gave herself: we do not wish to deter people from providing evidence. It is up to the IBB to decide whether to accept that evidence, whether the evidence is spurious, or whether it should disregard the evidence. Piece by piece, that evidence might in future be relevant to the IBB in making a decision. We are not setting a standard that has to be met by those who refer before putting forward that information. It is up to the IBB to judge on a case-by-case basis, as I made clear. The hon. Lady alluded to that herself earlier.
It is important to remember that a condition of the duty to refer arising in relation to employers is that the employer must have dismissed the individual, or have intended to dismiss him had he not left the employer’s employment. I think that that already sets a high threshold before the employer refers the case to the IBB.
The second reason that amendments Nos. 75 and 76 add nothing to the Bill is that a person acting as a private citizen, including an employer or employment agency, already has the ability to make a referral to the IBB, which may then consider the information and decide whether to include a person on the barred list, according to the procedures set out in the Bill. Let us imagine a hypothetical situation in which an employer or employment agency thinks, without a reason or reasonable grounds, that the conditions necessary to trigger a duty to refer information to the IBB have been met. Even under amendments Nos. 75 and 76, the employer or employment agency would still have the ability to make the referral.
This will my last question on the issue; it is important that we get this clear. The duty to refer is an important duty on local authorities and other such organisations and on third parties that will have to undertake an awful lot of work. They need clarity and will read what is said in Committee to ensure that they do their jobs right. The Minister said that they do not refer on a balance of probability, because they have reason to suspect or because they have reasonable grounds, and that for some reason using the word “thinks” is different from the three accepted ways of analysing a situation. Will he expand on why that is different from specifying “reasonable grounds”? It is not a word with which legal departments in local authorities are used to dealing.
It is different for the reasons explained by me and others in our debate about over-legalistic language. People understand the term “thinks” in its normal sense as well as they understand “reasonable thought”. [Interruption.] Obviously, I have not totally reassured hon. Members on that point, but I do not feel that making changes and adopting the terms that the hon. Lady has proposed will help to safeguard children or vulnerable adults. It might even do the opposite and deter people from referring information to the IBB.
May I test what I think that the Minister is saying, then perhaps he can explain whether I have got it right? I believe that he is saying that anybody who thinks that there might be a problem has the ability to refer, but they have a duty to refer only if they are about to dismiss, or have dismissed, the person concerned. Is that correct?
Yes. There is a difference between a duty to refer in those circumstances and an ability, as is laid out later in the Bill. As the hon. Member for Mid-Dorset and North Poole mentioned, we will talk later about that duty to refer. The hon. Lady will see that clause 27 and related clauses will bring us to that specific issue and that there is a duty to refer. She is right, however, about the meaning of “thinks”. My view is that changing the term to a more legalistic one would not assist the safeguarding of vulnerable adults and children.
I am sorry, but I have broken my promise—I have one further point to raise. My point relates directly to inclusion on the barred list and the much more serious situations in which somebody has undertaken an activity that may result in their being considered for inclusion. I have a note to remind myself that there was a Department for Education and Skills note about that matter in April. It talks about reasonable doubt, which is the only place I have found that reference. Will the Minister take this opportunity to clarify whether those included on the barred list, either through automatic inclusion or following representation, will be measured by reasonable doubt? The notice dated April talked about reasonable doubt in those situations. Would that be yet another threshold that he implicitly assumes will be there?
Let me provide a bit of clarity. There are two forms of auto-bar. One is for the most serious crimes, such as child rape and robbery. If someone has been through the legal process and been found guilty, there is little reasonable doubt about it. The other process is where a person has committed a crime or accepted a caution and the IBB has informed them that they are barred from working with vulnerable children or adults. In such cases, they have a right to make representations. That is the difference, regardless of terminology. With all that considered and taken on board, I hope that the hon. Lady will withdraw the amendment.
This has been an enlightening discussion that it was important to hold. As I said in my introductory remarks, the Bill contains a number of thresholds that have to be considered. At present, because of the language used, it is unclear what standard of proof is required for each different process. The Minister has gone some way to clarifying some of the processes, but I remain concerned that this is a Bill that people must interpret. Back in my office, I have four lever-arch files of letters from Lord Adonis and notes from the DFES about how the Bill is to be interpreted.
We heard earlier from one of the Liberal spokesmen about the lack of clarity in educational establishments over which regulations are in force and which bits of paper have overridden others. I am concerned that before the Bill has even passed through this place parts of it are being given meaning in additional notes, without that meaning being enshrined in the Bill. I understand that in the real world we need to ensure that the pieces of legislation we pass can evolve and develop in accordance with the situations we find ourselves in.
I am not trying to fetter the IBB’s activities by putting forward my amendments, but the ambiguity in the Bill is not as necessary as I first thought. It appears that the Government have gone a long way in their thinking about how terms are to be interpreted. I am pleased that there is not a discrepancy between the Care Standards Tribunal’s standard of proof and the standard that will be employed by the IBB. But I and several lawyers read the Bill and did not pick that up. That is of deep concern.
I urge the Minister to consider whether amendments, perhaps on Report, would be of benefit, not so that we can feel that our arguments have been heard but for the far more practical reason that people may understand what they are supposed to be doing. We could then hold the relevant bodies to account to ensure that they are doing what they should be.
The wording that I have suggested, particularly with regard to inclusion on the barred list, is an awful lot less burdensome than the language that the Minister says should be there. I fought shy of putting the civil standard forward as the burden of proof because I felt, clearly wrongly, that one would be criticised for putting forward a burden of proof that was quite difficult to attain. Clearly that is in the Minister’s mind. Perhaps it should now be more clearly articulated in the Bill because it is an important point that needs to be clarified.
I think the hon. Lady may be confusing the way in which the IBB will make its decisions and the burden of proof there with the nature of the referrals. That is part of what is causing the confusion because the referral will be up to individuals and what they think. We have to make that quite clear. That relates to the hon. Lady’s earlier points about not wanting to deter people from making such referrals.
I thank the Minister for that clarification. As he said, there is a difference between the burden of proof required for referral and that required for barring. He has made it clear that the burden of proof required for barring is at least the civil standard and that in the case of those who are automatically included the burden will, almost by definition, be one of proof beyond reasonable doubt. That is why I picked that up in a DFES note on the issue. However, I feel that inclusion in the Bill should be considered so that others are not as confused as I and other hon. Members have been.
I remain somewhat concerned about the looseness of the language on the duty to refer, and the Minister has decided not to clarify it any further. Our amendments were entirely reasonable and were based on a good deal of thought and discussion. People in a great many organisations will be left in a difficult position in trying to interpret what is meant by such a subjective word as “thinks” and I urge the Minister to consider how it will be clarified. The ambiguity is the cause of many of the problems that we currently face and a principal reason why the Bill is before us. It is not just I and other hon. Members who have made that observation—a number of organisations in the statutory and voluntary sectors are concerned about the point, and I feel that the Minister should take heed.
However, given that we have had such a good discussion of the issues, we Conservatives are happy not to press the amendments for the time being so that the Minister may have the opportunity to consider how the concerns shared by many people can be addressed in later stages of the Bill’s passage. I beg to ask leave to withdraw the amendment.