Schedule 2

Safeguarding Vulnerable Groups Bill [Lords] – in a Public Bill Committee at on 11 July 2006.

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Barred lists

Amendment proposed [this day]: No. 121, in schedule 2, page 35, line 13, leave out sub-paragraph (3) and insert—

‘(3) Referrals made by the Secretary of State under this paragraph will be subject to scrutiny by IBB prior to automatic inclusion of an individual on the barred list.’.—[Mrs. Miller.]

Question again proposed, That the amendment be made.

Photo of Eric Martlew Eric Martlew Labour, Carlisle

I remind the Committee that with this we are discussing the following amendments:No. 120, in schedule 2, page 35, line 14, at end insert—

‘1A (1) This paragraph applies to the decision-making process of IBB.

(2) IBB must refer to a code of practice, to be issued by regulations, prior to including an individual on the barred list.

(3) For the purpose of sub-paragraph (2), a code of practice is—

(a) that which is issued by the Secretary of State by regulation, subject to the affirmative resolution procedure,

(b) composed after consultation with senior representatives from—

(i) the police service;

(ii) the probation service;

(iii) the Child Protection Service; and

(iv) the Crown Prosecution Service.’.

No. 133, in schedule 2, page 35, line 14, at end insert—

‘1A (4) IBB cannot include a person under the age of 18 in the children’s barred list without the right to representations.

(5) IBB must make a referral for therapeutic services, as specified in regulations, for a person under the age of 18 included on the children’s barred list after representations have been heard.’.

No. 122, in schedule 2, page 37, line 8, leave out sub-paragraph (3) and insert—

‘(3) Referrals made by the Secretary of State under this paragraph will be subject to scrutiny by IBB prior to automatic inclusion of an individual on the barred list.’.

No. 123, in schedule 2, page 37, line 9, at end insert—

‘6A (1) This paragraph applies to the decision-making process of the IBB.

(2) IBB must refer to a code of practice, to be issued by regulations, prior to including an individual on the barred list.

(3) For the purposes of sub-paragraph (2), a code of practice is—

(a) that which is issued by the Secretary of State by regulation, subject to the affirmative resolution procedure,

(b) composed after consultation with senior representatives from—

(i) the police service;

(ii) the probation service;

(iii) the Child Protection Service; and

(iv) the Crown Prosecution Service.’.

No. 134, in schedule 2, page 37, line 9, at end insert—

‘6A (1) IBB cannot include a person under the age of 18 in the adults’ barred list without the right to representations.

(2) IBB must make a referral for therapeutic services, as specified in regulations, for a person under the age of 18 included on the adults’ barred list after representations have been heard.’.

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills

I welcome you to the Chair, Mr. Martlew. I understand that it is your first outing in such a Committee; we are lucky to have you. [Interruption.] The whole Committee obviously agrees.

I shall carry on where I left off. Automatic barring without the right to make representations will result from the most serious sexual offences against children and vulnerable adults, such as the rape or sexual assault of a child under 13 in the case of the children’s barred list, or inducement, threat or deception to procure sexual activity from a person with a mental disorder in the case of the adult barred list. Automatic barring with the right to representation will result from a further list of serious sexual and violent offences, as well as offences relating to the supply of drugs to children. It will be evident from those examples that convictions or cautions for such offences are in themselves evidence of a risk of harm and justify an automatic bar, in the interests of safeguarding vulnerable groups.

More broadly, amendment No. 120 suggests that the decision-making processes of the independent barring board be set out in a code. Paragraph 13 of schedule 2 allows regulations to specify the operational details of how the IBB will carry out its functions. We envisage that the regulations will specify how the IBB will gather evidence, and will deal with representations by the individual, and the processes for verifying and considering the evidence and representations.

The regulations will be subject to the negative procedure. Under the Bill, we have followed generally accepted principles for the delegation of powers. According to those principles, secondary legislation is used for subordinate provisions in cases where the overall legislative framework is clearly in the Bill. Secondary legislation is also used where flexibility is needed to ensure effective implementation and where ability to respond to changing circumstances is required—for example, in respect of the future development of children or the vulnerable adults work force. It may also be used for operational, administrative and technical details that are not normally set out in primary legislation.

Photo of Sarah Teather Sarah Teather Shadow Secretary of State for Education

Before the Minister leaves the topic, may I pick up on the issue of the possibility of administrative error, which I raised  with him this morning? He will recall that a few months ago there was big scandal in the media about the Criminal Records Bureau mixing up people’s identity and mistakenly identifying individuals as having convictions. Does he concede that something similar could happen under the Bill? As there is no appeal process, what processes are being put in place to make sure that if someone’s identity is mistaken, the problem can be corrected?

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills

The hon. Lady makes a fair point. As I envisage it, it will be the role of the IBB to receive direct representations from people who feel that there has been a mistake. The IBB has the power to remove a person included on the list as a result of errors—so, yes, it will take that kind of information on board. [Interruption.] From a sedentary position, my hon. Friend the Member for Cleethorpes (Shona McIsaac) makes a very good point about ID cards, which will be of great assistance to the work done under the Bill. They would reduce the amount of time that it would typically take the CRB to receive a disclosure by three weeks.

Anyway, getting back to the amendment, I believe that the negative procedure is the right approach in this context. The Delegated Powers and Regulatory Reform Committee agrees, because the regulations will deal with matters of operational detail within the framework created by the Bill and provide for changes to respond to future circumstances as a scheme is phased in and becomes established.

Amendments Nos. 133 and 134 would ensure that no one under 18 would be automatically included in the children’s barred list and the adults’ barred list, respectively. I am pleased to say that I have some good news for the hon. Member for Brent, East (Sarah Teather) on this group of amendments. I agree with the Opposition on this principle, and the Government’s policy is that no under-18s would be included on either barred list automatically. Instead they would be dealt with under a discretionary process and given the right to make representations before the IBB takes its decision. The IBB will, as with all discretionary cases, need to make a judgment on whether the individual poses a risk to one of the groups and whether it is appropriate to include them on either or both barred lists. We have explained that clearly in another place and also on Second Reading.

We intend to make the provision in regulations, which will specify prescribed criteria for automatic barring. It would not be appropriate to do so in the Bill, because we will specify other provisions relating to age in regulations—for example, that minimum barred periods will be shorter for under-25s. I also explained that to the hon. Lady on Second Reading. It would be inconsistent to have one age provision in the Bill and other similar provisions in regulations. This kind of detail is commonly dealt with in regulations, but I am happy to put on record the fact that we intend to make those changes.

Amendments Nos. 133 and 134 would also require the IBB to refer anyone under 18 years old whom it chooses to bar to therapeutic services, which would be specified in regulations. The proposal would require referral to service providers such as the national health service, local authorities, children’s social care services  or appropriate charitable organisations. Unfortunately, that is inconsistent with the IBB’s primary role of maintaining the barred lists, which is what the Bill is about. It would also be unhelpful if an IBB referral to the therapeutic service provider was made at the end of the process. The IBB decision is based on information from the police, sector bodies, employers and courts, any or all of which could advise the individual to seek medical or psychiatric help at earlier stages or therapeutic services. To require a referral of juveniles upon barring does not seem to be the most effective way to help them and would add a process, when routes are already established to gain access to that kind of support, such as the child and adolescent mental health services, and local authorities are required to safeguard and promote the welfare of children in need. I therefore ask hon. Members not to press the amendment to a Division.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

I welcome you to the Chair, Mr. Martlew, and look forward to serving under your chairmanship. I thank the Minister for his responses to the arguments that were put forward by myself and the hon. Member for Mid-Dorset and North Poole (Annette Brooke). It was useful to get clarification from the Minister on these issues, although it was concerning to hear that the IBB has no discretion about people who are referred to it from the Secretary of State. Obviously, that is how these things have been proposed. Perhaps it could be viewed as being inconsistent with the arm’s-length approach, which the Secretary of State was at pains to stress in January.

I am rather disappointed that the Minister feels that it is inappropriate to define the code of practice in the Bill, although I was glad to hear that it will be subject to regulations. It is important that such bodies are clear and transparent in how they operate, and we should do everything that we can to ensure that that is the case. The Minister suggested—I hope that I understood him correctly—that the code of practice will be proposed by way of the negative procedure. If that is the case, it is a concern. Everything to do with the Bill has been of great concern to the House, and Members would want to have every opportunity to debate the issues in great detail—[Interruption.] It sounds as though someone disagrees with me from a sedentary position. I must take issue, because this is a matter of great concern to many constituents throughout the country and many hon. Members want to know the details of how the organisation will work. Many of the organisations and processes that are currently in place are simply not working as they should and we must look for the correct level of scrutiny.

I shall touch briefly on amendments Nos. 133 and 134. It was good to hear that the Government are taking heed of the amendments, and I hope that that is a sign of things to come on other amendments. It is worth pointing out that we have not always clarified Bills through other processes, such as regulations, and we must ask ourselves what the point of debating the Bill is if, first, the House does not debate it in detail and, secondly, the details are not articulated in the body of the Bill. On Second Reading, I asked when that became the regular way of doing things and whether it is helpful to hon. Members when discussing  Bills or to those who administer Bills. We should always aid the debate of legislation and it is not helpful to debate Bills, which will become Acts, if the details are not laid down in them.

I am pleased to hear that the Minister has some sympathy with the amendment, but I must press him to reconsider his stance on the use of regulations instead of including the details in the Bill, so that we can debate them in the House.

Annette Brooke (Mid-Dorset and North Poole) (LD) rose—

Photo of Eric Martlew Eric Martlew Labour, Carlisle

Order. I am afraid that that was a winding-up speech on the amendment, but I shall use my discretion and allow the hon. Lady to speak.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education), Shadow Spokesperson (Home Affairs)

I really do welcome you to the Chair, Mr. Martlew. It will be a great pleasure to serve under your chairmanship.

I want to make a few brief points. Liberal Democrat Members are still confused about the automatic barring. If there are no representations and no appeal, how can there be a check on whether there is an error in the listing? Will the Minister please answer that, so that we know where we stand?

On amendments Nos. 133 and 134, I am pleased that there will be something in regulations because the point is important. I notice that the Minister in his amendments specifies under-16s later on, but I want to quit while I am ahead and accept that the details will be in regulations.

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills

I assure the hon. Lady that it is not our intention that the IBB will be an all-seeing, monstrous beast. I want to make it clear to the hon. Member for Brent, East that, if someone is on a barred list because they have committed, for example, rape of a child—we are talking about the most serious crimes for which offenders receive an automatic bar without the right of representation—but says that they did not commit the crime and are not in prison and the IBB then receives correspondence from that person, it has the right to take that person off the list and admit that it made a mistake. That is what we envisage it would do.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education), Shadow Spokesperson (Home Affairs)

I think my hon. Friend and I are both relieved to hear that answer.

I am disappointed about the therapeutic services point. I moved an amendment to the Children Bill 2004, which would have covered the health authority, local authority and the police, but I could not persuade the then Minister that that was appropriate. I wonder whether there will ever be a time in this country when everyone who needs therapeutic services will actually be referred to them. I am sure that I shall revisit the issue in yet another guise, but I am disappointed because the same points were made in relation to the Children Act 2004 and the Sexual Offences Act 2003, yet we still know that young people are not getting the treatment that they need. I hope that the Minister will consider that in his wider role, because it is important.  

Photo of Maria Miller Maria Miller Shadow Minister (Education)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Maria Miller Maria Miller Shadow Minister (Education) 4:15, 11 July 2006

I beg to move amendment No. 50,in schedule 2, page 35, line 21, leave out sub-paragraph (a).

Photo of Eric Martlew Eric Martlew Labour, Carlisle

With this it will be convenient to discuss amendment No. 52, in schedule 2, page 37, line 16, leave out sub-sub-paragraph (a).

Photo of Maria Miller Maria Miller Shadow Minister (Education)

The second string of amendments to schedule 2 consists of amendments Nos. 50 and 52. Those amendments would change the Bill so that there would be no automatic bar on reference fromthe Secretary of State without the opportunity tomake representations first. That follows the same theme as before. Amendment No. 50 would remove the obligation to place directly on to the barred list those who are referred to the IBB for consideration for barring. Amendment No. 51 places a duty on the IBB to inform relevant organisations that a person is under consideration for barring. The amendments are therefore obviously linked.

As the Bill stands, the IBB must automatically bar an individual on referral. As we discussed this morning, the threshold for that referral is the belief that somebody has undertaken an activity construable as inconsistent with holding a job relating to vulnerable adults or children. We have rehearsed the arguments on why that is the appropriate threshold for referral and the Minister has made clear his view. On the strength of the threshold, an individual can be put forward to be automatically barred from the list until the case is reviewed. It is entirely possible that there are other meanings, and the Minister might want to clarify the position, but that is the way that the Bill reads now.

I should like to know why the Bill is worded that way, however. Obviously, we want to remove individuals from settings where there is potential for harm, but there are some clear consequences that would ensue from that procedure. When the new legislation is enacted, there could well be a great many people who are referred to the IBB because of a lack of understanding and clarity on the nature of the threshold for barring. We could end up with a situation in which many people are proposed for barring and are put on the list, but then need to have their cases reviewed because their cases are believed to be unsound. That could undermine the credibility of the IBB.

The amendment attempts to achieve what the Minister is trying to achieve in the Bill, but differently. It might be desirable for individuals to be put forward for potential barring, but it is not desirable that they continue in situations that would potentially cause vulnerable adults or children to be exposed to unnecessary risk. However, is it absolutely necessary to put them on the list straight away?

Amendment No. 51 would ensure that even when somebody is being considered for barring, employers would be aware of the situation and would be obliged to take appropriate action to ensure the safety of vulnerable adults and children. We would have to  consult various bodies on the operation of the amendment in practice. However, those operational details could be incorporated into the copious volumes of regulations and codes of practice that will follow the legislation. One can anticipate that employers would take the stance that individuals should be suspended while they are being investigated by the IBB. However, I should like to press the Minister on whether we should consider anonymity for individuals who are under referral, until a ruling has been made.

Perhaps the Minister will take the opportunity to clarify that point, because taking the course of action that is proposed could cause unnecessary complications in the procedure. If he would explain a little more fully how it might work in practice and why the amendments are not required, I should be most grateful.

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills

I think that, all in all, the hon. Lady is doing a decent job of scrutiny. I do not mean to patronise her, but she has got it wrong on this particular area, which is why I am hoping that she will not press her amendments to a Division. I can assure her that there is no danger of somebody who is in the work force being automatically barred as a consequence of a referral. I therefore hope that she will withdraw the amendment.

The automatic inclusion provisions apply only to the prescribed criteria—convictions or cautions. Where there are allegations against someone in the workplace, such as a teacher in a school, once a referral has been made to the IBB that person will not be suspended or stopped from working. They will have a right to make representations. I can assure the hon. Lady that she has slightly misread the Bill in that respect, so I hope she will not press her amendments to a Division. It is a complex Bill and I can understand why she may have drawn her conclusion, but I can reassure her that what she outlined is not the case.

Amendments Nos. 50 and 52 would remove the provisions in paragraphs (2) and (7) to schedule 2 stating that the IBB would include individuals in the barred lists as a result of automatic barring offences where the individual is given a right to make representations. Our intention in making provision for automatic barring with a right to make representations and a right of appeal was to afford the maximum protection to vulnerable groups by immediately removing the group of people who had committed a range of serious offences—I must emphasise that we are talking about serious offences—from positions where they could cause harm to children or vulnerable adults.

At the same time, we will ensure that the system is fair by providing a right to make representations to reflect the fact that in these cases an assessment of risk should be made by the IBB following barring so that there is a possibility that such an individual may be removed from the list. I am talking even about the most serious cases. We envisage that unless the representations that the individual makes clearly demonstrate that they did not pose a risk of harm, the IBB would not remove them from the barred list.

Once the IBB has decided to retain an individual on the barred list, there would be a right of appeal to ensure that any mistakes in findings of fact or law could be rectified. If we did not have such a provision, fairness would dictate that the IBB would have to provide a right to make representations before barring and effectively treat the offences under a discretionary route. That would reduce protection for vulnerable groups. The provision is a key element of the barring scheme and of ensuring that we are able to provide the safeguards that vulnerable groups deserve. I therefore ask the hon. Lady to withdraw the amendment. I hope that I have been able to help clarify the reasons behind the Bill as it stands.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

I thank the Minister for clarifying that. It is reassuring to know what is and what is not the intention behind what is included in the Bill. I feel that the use of language in the Bill and the over-complexity of the Bill makes its interpretation a little questionable. Will he consider the many people who will have to interpret the Bill’s content and how we can make it easier and more straightforward?

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills

I think that is why the point that the hon. Lady and Members made about communication will be so important. We will ensure that we take such action to ensure that that kind of confusion does not occur.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

I want to make a final point on this matter. The process is complex; perhaps it has to be complex. I reiterate the point that the hon. Member for Mid-Dorset and North Poole made earlier about people being included on the list automatically, even when there is potential for error, because the rules of the game must be clear when we communicate the end product of the Bill to people who are affected by it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

I beg to move amendment No. 29, in schedule 2, page 36, line 13, leave out ‘child’.

Photo of Eric Martlew Eric Martlew Labour, Carlisle

With this it will be convenient to discuss the following amendments: No. 48, in schedule 2, page 36, line 27, at end insert—

‘(5) Any guidance issued under this paragraph must prior to implementation be approved by Parliament through regulations subject to the affirmative resolution procedure.’.

No. 49, in schedule 2, page 38, line 9, at end insert—

‘(5) Any guidance issued under sub-paragraph (4) must prior to implementation be approved by Parliament through regulations subject to the affirmative resolution procedure.’.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

This group of amendments is relatively straightforward. I shall be interested to hear the Under-Secretary’s response, because this subject was discussed in the other place.

Amendment No. 29 focuses on removing the discrepancy on conduct involving pornography concerning adults and children in the two parts of schedule 2, as was discussed in the House of Lords. Amendments Nos. 48 and 49 relate to defining inappropriate conduct inschedule 2. The amendments are all about better defining  conduct that might prove prejudicial against individuals and prevent them from working with children or vulnerable adults. Like many of our amendments, they are intended to clarify, probe and therefore strengthen the Bill.

Amendment No. 29 would remove an inconsistency identified by many interest groups and Members of both Houses of Parliament. Currently, there is a provision relating to child pornography and relevant conduct that might bar people from working with children, whereas the measure relating to relevant conduct in relation to vulnerable adults mentions all pornography, without the qualifier, “child”. It is for the IBB to assess whether conduct relating to pornography is inappropriate. The Bill does not state that possession of pornography would, in itself, lead to barring, but we need to take some time to understand this issue. I was interested to hear that the Government have not tabled an amendment on this schedule, even though there was a heavy indication from Lord Adonis that one would be tabled on Report, primarily because he felt that there was great merit in this argument.

The difference between the two elements of the schedule, relating either to children or to vulnerable adults, needs to be removed, because—I am sure the Under-Secretary has been briefed on this—there is a genre of pornography that depicts adults as children or babies. The caveat in that part of the Bill is at best confusing and does not provide the clarity that we need. It is irrelevant whether the pornography that is deemed to be used inappropriately relates to children or adults; if it results in behaviour that causes concern, the IBB should be able to consider it in whatever form it takes.

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills

I may have more good news for the hon. Lady. As she has said, there has already been a lot of discussion about this difficult issue in the other place. Lord Adonis advised on Third Reading that further analysis was needed to agree the precise words to assure that the requirements for both lists provided the necessary protection to both groups. He made it clear that that would involve considering both provisions for both children and adults to ensure that we deal with all the situations that we wish to cover.

As we expected, the issue is particularly complex, for some of the reasons that the hon. Lady mentioned. We have yet to resolve it, but we remain committed to doing so. I know from discussion here and in the other place that there is agreement, but we must ensure that amendments do not create a situation whereby a large number of individuals are referred to the IBB for legitimate behaviour relating to adult pornography, which is not illegal and the use of which will not generally be of concern to the IBB.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children) 4:30, 11 July 2006

I appreciate that this is a thorny subject and that the Minister’s colleagues in the Home Office have recently undertaken a consultation on the use of extreme images on the internet, to which I made a submission. Will he acknowledge that, while adult pornography is a separate issue, the downloading, possession and possible acting  on influences of hardcore images involving violence against both children and adults—murder in many cases—is inappropriate behaviour that should be covered in the Bill? We need to extend the definition of pornography to such material. I believe that the Minister’s colleagues in the Home Office are rightly looking to bring in offences to clamp down on it.

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills

The hon. Gentleman effectively highlights some of the complex issues that need to be considered. We do not consider that accepting the amendments would be the best way to achieve our policy aims, so I hope that hon. Members will not press them. I can commit to return on Report with something that I hope all hon. Members will be able to support.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

I think that is a bit disappointing. Lord Adonis was quite clear on the matter in his response in the other place. If we receive assurances at one stage of the Bill that are not carried through as promised by a Minister, it creates a certain level of uncertainty. I understand the complexity of the matter and the need to get the wording right, but if we are to move forward constructively we need to ensure that the indications given are followed through.

Photo of Shona McIsaac Shona McIsaac PPS (Caroline Flint, Minister of State), Department of Health

I listened to the hon. Lady’s speech on the amendments, in which she indicated that Lord Adonis said that a suitable amendment would be brought forward on Report in this place. The Minister has reiterated that. We are not yet on Report, so I cannot understand the hon. Lady’s disappointment.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

I thank the hon. Lady for her contribution. I did not quite catch the Minister undertaking that he would bring something through on Report. Maybe I have got that wrong.

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills

I think I made it perfectly clear, maybe more than once, that I will return with an amendment on Report.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

Well then, I think that that is fair. I look forward to that at a later date. The matter is important and needs to be clarified, and Lord Adonis gave an undertaking that we would review it in Committee. We are disappointed that the Government have not been able to move forward on it yet, but the Minister is in a difficult situation. I look forward to discussing it in more detail on Report when the Government have had a chance to give us detail. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

I beg to move amendment No. 43, in schedule 2, page 36, line 27, at end add—

‘(5) In this paragraph—

“harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another;

“development” means physical, intellectual, emotional, social or behavioural development;

“health” means physical or mental health; and

“ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical.’.

Photo of Eric Martlew Eric Martlew Labour, Carlisle

With this it will be convenient to discuss the following amendments:

No. 44, in schedule 2, page 36, line 41, at end add—

‘(4A) In this paragraph—

“harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another;

“development” means physical, intellectual, emotional, social or behavioural development;

“health” means physical or mental health; and

“ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical.’.

No. 45, in schedule 2, page 38, line 23, at end insert—

‘(4A) In this paragraph—

“harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another;

“development” means physical, intellectual, emotional, social or behavioural development;

“health” means physical or mental health; and

“ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical.’.

No. 33, in clause 27, page 18, line 4, at end add—

‘(7) In this section—

“harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another;

“development” means physical, intellectual, emotional, social or behavioural development;

“health” means physical or mental health; and

“ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical.’.

No. 35, in clause 28, page 19, line 4, at end add—

‘(10) In this section—

“harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another;

“development” means physical, intellectual, emotional, social or behavioural development;

“health” means physical or mental health; and

“ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical.’.

No. 37, in clause 31, page 20, line 32, at end add—

‘(8) In this section—

“harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another;

“development” means physical, intellectual, emotional, social or behavioural development;

“health” means physical or mental health; and

“ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical.’.

No. 39, in clause 33, page 21, line 33, at end add—

‘(8) In this section—

“harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another;

“development” means physical, intellectual, emotional, social or behavioural development;

“health” means physical or mental health; and

“ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical.’.

No. 41, in clause 36, page 25, line 5, at end add—

‘(9) In this section—

“harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another;

“development” means physical, intellectual, emotional, social or behavioural development;

“health” means physical or mental health; and

“ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical.’.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

The amendments relate to the harm test, which is an important provision in the Bill setting out behaviour that will qualify somebody to be considered for barring. It is important that the definition should be clear in our minds and that those who interpret the Bill have all the information that they can have, truly to understand the actions that they need to take and the standard of proof that is required, to ensure that the legislation is put forward in the way that is intended.

However, there is no clear definition of “harm” in the Bill as it stands. When the issue was raised in the other place, correspondence on the matter followed from Lord Adonis. Before I comment on that, I shall explain the amendment. It is intended to define “harm”, which means

“ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another”.

“Development” means

“physical, intellectual, emotional, social or behavioural development”,

“health” means “physical or mental health”, and “ill-treatment” includes

“sexual abuse and forms of ill-treatment which are not physical.”

Harm and the harm test are fundamental planks of the legislation, and references to them appear throughout the Bill, in schedule 2, and in clauses 27, 28, 31, 33 and 36—hence the long string of amendments in the group, to ensure that we cover all references to the concept in the Bill. The amendment seeks to define “harm” as a key term in the Bill. How can parents, employers and social service practitioners be expected to know their responsibilities under the Bill if such a fundamental concept as harm is not clearly and unequivocally defined?

As I mentioned, Lord Adonis said in correspondence on the issue that the common-sense definition of harm would stand. However, as I am sure the Minister is aware, common sense has no legal meaning. By leaving the Bill as it is drafted, we risk creating confusion and inconsistency in the system, and potentially make more work for lawyers, which we would not want to do. We are anxious to make the Bill as simple and clear as possible. That sentiment not only was articulated when the Bill was discussed in full in the other place, but has been expressed by a number of pressure groups. The concept requires further definition.

The group of amendments use an existing and well-understood definition of harm, namely that which is contained in section 31(9) of the Children Act 1989. That definition and its reference to “development” has been said perhaps to be more appropriate for children than for vulnerable adults, and the Minister might want to pick up on that in his response. However, it is not necessary for all the elements of the harm test to come  into play at once. Therefore, we on the Conservative Benches feel that it would be entirely appropriate to include this reasonably lengthy definition of harm in the Bill, so that those who interpret it know what we mean. Although some parts of the definition would perhaps not be deemed appropriate for all the vulnerable groups for whom the Bill is important, it would be a catch-all for most.

We tabled the amendments in the spirit of highlighting that point and implore the Government better to define such a key term, to ensure that the system works. I again point out that the Bichard report’s overriding message was that it is vital to ensure clarity in such areas, but there are too many loose ends in the Bill to ensure that clarity. I hope that the Minister seizes this opportunity to improve the Bill, to provide that clarity and to make it a more workable piece of legislation at the end of the day.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education), Shadow Spokesperson (Home Affairs)

I am concerned about the lack of a definition of harm. I can see that in some ways that might mean that it will have such a wide interpretation that everything could be covered, which in some sense could be useful. However, it slightly offends my logic that we do not know what it includes. I have particular concerns about some issues that were raised by organisations that represent older people. If the personal property or even the personal allowance element of money that is paid in to a care home automatically was withheld from a patient, would that definitively come under the definition of harm? I am not sure that it comes under the definition with these amendments, but I am quite concerned about the financial element when we are talking about elder abuse. Sadly, it often happens that people make friends with an elderly person, visit them in their home and then a few things just disappear. Sometimes it is the price of having some company, which is a really sad state of affairs.

The other subject that was raised by some of the organisations representing the elderly was dignity. It is very difficult to calculate an infringement of dignity in the definition of harm, but dignity is an important principle. This is so difficult to define that I am not convinced that the amendments cover everything that needs to be covered. Therefore, in a sense that is an argument against getting a definition, but on the other hand is the Minister convinced that the Bill will be workable if it is left as it is?

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills

Hon. Members are right. This debate lasted for some hours in another place. This group of amendments seeks to provide a definition of harm to cover a range of circumstances in the Bill. They define the term for the purposes of referrals by employers, local authorities and regulatory and supervisory bodies to the IBB. The definition would also apply where the IBB was considering an individual for inclusion in a barred list. The meaning of the word “harm” is clearly central to many elements of this Bill. On that we are all agreed. With that in mind, I fully sympathise with the intentions of hon. Members in tabling the amendments, but they do not take us beyond the point that we have reached already with our proposals for the meaning of the term. I shall explain that in a moment, not least with reference to what the hon. Member for Mid-Dorset and North Poole said about elderly people and finance.

As the hon. Member for Basingstoke said, the definition used in these amendments is taken from section 31 of the Children Act 1989, as amended by the Adoption and Children Act 2002. I would argue that the definition of harm in that section serves a different purpose from the one that we are trying to achieve in the Bill. That section is about care and supervision orders and sets the conditions that must be satisfied before a court grants such an order. The threshold is deliberately defined in that definition as significant harm. We must ask ourselves whether that is what we want to put in the Bill today.

For the purposes of the Bill, however, we want employers, local authorities and others, to refer information to the IBB and the IBB itself to place an individual on the barred list when the conditions set out in the Bill are met. The Bill is concerned with referrals being made and individuals being barred in accordance with the specific thresholds that will underpin the effective functioning of the scheme.

For the IBB to include an individual on the barred list, it must think it appropriate to include them. In other words, the IBB will be required to decide whether an individual’s conduct, or the risk that they may harm a child or vulnerable adult is sufficiently serious for them to be included on the list. The conditions are central to defining the thresholds in a way that is appropriate for the purposes of the Bill, which are different from the purposes of the Children Act 1989.

Photo of Maria Miller Maria Miller Shadow Minister (Education) 4:45, 11 July 2006

Is the Minister saying that he does not want a definition, or that this is the wrong definition? Perhaps he could clarify that. In his response, he is saying that it might be the wrong definition. Perhaps it would help if we looked for another definition of harm.

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills

I would be delighted if, during her winding-up speech, the hon. Lady were to suggest another, better definition. I would be happy to consider that during the debate. I shall come to the definition that we are using in a moment. Her definition relates specifically to supervision orders, and the hon. Member for Mid-Dorset and North Poole made some good points during debate on earlier clauses about simplicity and the need for people to understand the Bill. We are discussing the usual use of the word “harm”, but I shall elaborate on that in a moment.

If we define the precise meaning of harm as the amendments suggest, there is a danger that we will unnecessarily restrict the circumstances in which an employer, for example, can refer information to the IBB or the IBB itself can consider barring an individual. It is not clear, for instance, whether the suggested definition would allow the IBB to determine whether an individual had harmed a vulnerable adult if they had defrauded elderly care home residents, who the hon. Member for Mid-Dorset and North Poole mentioned. Is that what we want to do? That would be the consequence of the amendment.

The Government believe that it is far better for harm to take its normal meaning, which covers our intentions for the scheme. That includes damage to a  child or vulnerable adult’s mental or emotional state as well as physical harm. It will include acts of omission as well as commission. The meaning of the word would not be restricted to physical or indeed any other kind of consequences. In the case of vulnerable adults, it might also include harm incurred through financial loss. With all that in mind, I hope that hon. Members will see fit not to press their amendments, or perhaps they will present a better definition in their winding-up speeches.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

I thank the Minister for his response on that string of amendments—at least, I think I do. I certainly thank the Liberal Democrats for their support, albeit with some reservations, for the amendments.

As the Minister said, the concept of harm is central to the Bill. We have used the definition from another Bill to illustrate the need to include a firmer definition in this one. I think that all Members would be open to considering alternatives that may cover the issues—

Photo of Sarah Teather Sarah Teather Shadow Secretary of State for Education

Does the hon. Lady agree that there is a problem with leaving the definition so broad? I can imagine, for example, a situation in which a bad teacher instilled low self-esteem in a child. Would that count as harm? Unless it is quite tightly defined, there is a danger that, in a whole set of issues, somebody might be eligible for barring. I understand the Minister’s point about wanting the widest possible range of people, but that is quite different from the legalistic way that we expect the independent board to make decisions about who should be barred.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

I thank the hon. Lady for her contribution. It shows the strength of feeling in the Opposition about the issue and the need for the Minister to reconsider it before Report. As she says, the concept is currently used as a catch-all for many different activities.

Again, we must consider what we are trying to achieve with the Bill. We are trying to achieve clarity, and if we fail to do that, we will fail in our duty to protect the people whom we are here to serve—the vulnerable people and children for whom we are trying to provide more protection. I asked the Minister whether he would like to have a different definition rather than this one. I got the impression that he was quite interested in pursuing a further definition. Perhaps he is as uncomfortable with Lord Adonis’s concept as we are.

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills

I am comfortable with it. The hon. Lady needs to be aware that, regarding discretionary barring, a risk of harm alone is not sufficient for the IBB to place a person on the barred list. There is an additional appropriateness list set out in the Bill. Together with the normal definition of harm to which we are accustomed in society, that makes this a good rationale for us to move forward.

Photo of Maria Miller Maria Miller Shadow Minister (Education)

I thank the Minister for that clarification. I still think that it is a broad, catch-all concept that says that anything that constitutes harm  can be construed as behaviour that would, if not completely, at least partially, put somebody forward for consideration to be barred.

It is difficult when we are struggling with English in the provision. We have heard from the Opposition Benches and from other groups that a tighter definition of harm may be helpful. Yet the Minister said that it would only ever be part of a decision-making process and that we do not have to worry too much about it. I do not take much comfort from that. If we are going to use concepts and terms within Bills that we are struggling with, let us think about those who are trying to interpret it, who may not have the assistance—

Photo of Maria Miller Maria Miller Shadow Minister (Education)

Absolutely. A great number of groups in my constituency will be forced to take account of what is in this Bill. They do not have the funds to employ an army of lawyers to go through it with a toothcomb to attempt to understand the minutiae of the provision. The Minister needs to remember for whom such legislation is introduced.

The Minister has heard from the Opposition that concern remains about leaving the concept of harm so broadly defined. It is our intention to return to the matter at a later stage, perhaps when we have had the opportunity further to discuss with him his particular concerns with the amendment in its current form. We will do a great service to many people if we are able to pursue and to receive further clarification on the matter. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

I beg to move amendment No. 116, in schedule 2, page 38, line 27, leave out sub-paragraph (1) and insert—

‘(1) IBB must ensure that, on receipt of any information in relation to an individual from whatever source or of whatever nature, it considers whether the individual should be included in both barred lists, in one barred list, or in neither barred list.’.

Photo of Eric Martlew Eric Martlew Labour, Carlisle

With this it will be convenient to discuss amendment No. 54, in schedule 2, page 38,line 31, leave out sub-paragraph (2).

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

I thought I had better justify my existence here today. Amendments Nos. 116 and 54 are probing and relate to schedule 2. My hon. Friend said just now that we are struggling with English in this Bill. This is again a classic example of the way in which many parts of this Bill are opaque in the extreme.

The offending provision is paragraph 11(1) of part 3 of this schedule. Mr. Martlew, if you can make any sense of it, you are a greater man than I am. It reads:

IBB must ensure that in respect of any information it receives in relation to an individual from whatever source of or whatever nature it considers whether the information is relevant to its consideration as to whether the individual should be included in the barred list.”

There is not a single punctuation mark in that entire sentence, so it is not easy to grasp. When one gets ones head round it, however, it appears to be—in common parlance—stating the bleeding obvious. Naturally, the IBB’s job is properly to consider any information put to  it, and to decide whether that information is germane and relevant to subsequent action by the IBB, but the wording of the provision is terribly woolly, which is why we have suggested an amendment that in my view reads much more clearly. As well as containing some punctuation, which is no bad thing, the amendment has the added advantage of including a cut-across between the two lists—the child’s list and the adults’ list—thereby strengthening the Bill.

There are concerns among certain organisations as to whether inclusion on one list should effectively mean automatic inclusion on another list. Some of them would like to see that, and the wording of amendment No. 116 would make it much clearer that the IBB should consider whether the individual under consideration

“should be included in both barred lists, in one barred list, or in neither barred list.”

That is plain and unambiguous, which one cannot say for a lot of the Bill.

Amendment No. 54 refers to paragraph 11(2), which I just cannot understand. That sub-paragraph says:

“Subparagraph (1) does not,”— at least we have punctuation—

“without more,”— it looks as though there is a word missing—

“require IBB to give an individual the opportunity to make representations as to why he should not be included in a barred list.”

I have been doing Bills for some years, and I have not previously come across the phrase “without more”. I may be missing something, and I hope that the Minister will enlighten us and tell us that the term is perfectly legitimate, so that at least in Committee we may understand what “without more”—without any noun or adjective attached—actually means. I hope that he will also explain why the intention is apparently to prevent individuals from making representations that they should not be included on the list.

I am afraid that this particular part of the schedule is especially woolly and badly worded, and the intention is not clear. The amendments are supposed to be constructive and I think that it is quite plain what we are trying to say. I should like to hear the Minister’s justification of why paragraph 11(2) should remain in the Bill, and his explanation of what “without more” means.

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills

Before I set out the unintended consequences of the hon. Gentleman’s probing amendment, regardless of how clear the English of it might be, I am reliably informed that the offending paragraph to which he referred was inserted in the Lords to make explicit what was implied. The Government were responding to pressure to ensure that the Bill stated the obvious, and I shall explain more about what that obvious thing is—we shall probably have some level of agreement on that.

Amendment No. 116 would remove paragraph 11(1) of schedule 2 and replace it with a different provision. Amendment No. 54 would remove paragraph 11(2) of the schedule. Paragraph 11(1) makes it explicit that the  IBB is under a duty to consider all information thatit receives in relation to both the children’s and vulnerable adults’ barred lists. IBB experts will then exercise their judgment to decide whether the information merits further consideration in respect of both or one of the lists. The IBB will then give the individual the opportunity to make representations on all the evidence on which it may base its decision, so that the individual might demonstrate that they do not pose a risk of harm to either or both vulnerable groups.

The provision is important. It was created by Government amendment in another place to make explicit in the Bill what was already implicit. There was much debate about the issue, and all parties welcomed the resultant amendment. Lord Adonis noted that the amendment would ensure proper consideration of cases that are referred from both lists. That is the principle: if an individual is referred to the IBB, they can be considered for both lists.

Amendment No. 116 would replace that provision. The IBB would proceed to full consideration of the case on receipt of any information by gathering evidence and giving the individual the opportunity to make representations, rather than first being able to consider whether the information is relevant. It is important that the IBB can use its discretion to consider information and choose not to proceed to a further stage where, for example, the information is clearly false or malicious. That is why I refer to the unintended consequence of the probing amendment.

Sub-paragraph (2) clarifies that the opportunity to make representations does not arise in every case, as the IBB, having considered some information, may conclude that it does not warrant the individual’s inclusion on the list. If the IBB considers it appropriate to include a person on the list, it must give the individual the opportunity to make representations.

Amendment No. 54 would remove the clarification that paragraph 11(2) provides, but the IBB would nevertheless be required to give an individual the opportunity to make representations in every case when the information indicated a risk of harm. I hope that that provides some clarification for the hon. Member for East Worthing and Shoreham and that my remarks provide clarity for anybody who should look up the clause. With all that considered, I hope that the hon. Gentleman will withdraw his probing amendment.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children) 5:00, 11 July 2006

Pepper v. Hart comes to the fore if we are required to consider this debate to work out what the legislation means.

I am grateful for what I think is a clarification in part, although I did not hear the definition of “without more”, about which I asked. If the Minister would like to intervene, I would be grateful, because it is not English, let alone meaningful.

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills

I shall be happy to drop the hon. Gentleman a note to clarify exactly what it does mean.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

Which suggests that the Minister does not know, I do not know and I do not think that anybody else on the Committee knows, which in turn  suggests that the provision is badly written. When he writes to me to define it, after consultation with his officials, who have not been able to supply the definition to him while he has been speaking, he might consider a further amendment on Report to make it clearer. It is patently not clear.

I take on board the Minister’s comments about amendment No. 116 and its unintended consequences. I applaud the sentiment behind his statement and the Lords amendment to discount vexatious referrals, about which we are particularly wary. It is too late to table an amendment, but on that basis, will the Minister reconsider on Report the wording of paragraph 11(1)? It refers to

“whether the information is relevant to its consideration”.

I would have thought that we could find a better word than “relevant”. Information may be relevant to the work of the board or to an inquiry that it undertakes, but is it justified? We need to find a word—not necessarily “justified” but with the same implication—that would clearly give the IBB the power to dismiss vexatious complaints not because they are not relevant but because they are not justified. The Minister and I know what he wants from the clause, but it is still unclear in the Bill.

I have said that the amendments are probing. They have been changed since similar amendments were tabled in the Lords. I cannot remember the original wording, but we might be able to go one step further and make the language of sub-paragraphs (1) and (2) of paragraph 11 rather better English and clearer on what they are intended to achieve. I understand what that is, but it is not properly set out.

The Minister has said he will write to me, which means that he will further examine the matter. I hope that that means he might consider an amendment on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

I beg to move amendment No. 30, in schedule 2, page 38, line 36, leave out ‘may’ and insert ‘shall’.

Photo of Eric Martlew Eric Martlew Labour, Carlisle

With this it will be convenient to discuss the following amendments: No. 31, in schedule 2, page 38, line 36, after ‘regulations’, insert ‘subject to the affirmative resolution procedure’.

No. 109, in schedule 2, page 38, line 40, at end insert—

‘13A (6) The Secretary of State shall by regulations, subject to the affirmative resolution procedure, make provision as to—

(a) the procedure to be followed for the purposes of removing any person from the children’s barred list or the adult’s barred list; and

(b) the procedure to be followed for the purposes of referring information or individuals to the IBB.

(7) Such provision may include provision as to the time within which anything is to be done.’.

No. 55, in schedule 2, page 40, line 28, at end insert—

‘(7) The duration of the minimum barred period for adults shall be determined through regulations approved by Parliament, subject to the affirmative resolution procedure.

(8) The duration of the minimum barred period for those under 18 shall be determined through regulations approved by Parliament, subject to the affirmative resolution procedure.’.

No. 111, in schedule 2, page 40, line 28, at end insert—

‘16A (1) If IBB refuses to place a person on a barred list following a referral, the organisation or individual who made the referral may ask for an internal review of the decision by IBB.

(2) IBB shall establish procedures for internal reviews established under this paragraph.

(3) No IBB employee involved with the original decision shall take part in a related internal review held under this paragraph.

(4) Any decision reached by an internal review shall be final.’.

No. 119, in clause 5, page 3, line 11, leave out ‘order’ and insert

‘regulation, subject to the affirmative resolution procedure,’.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

These are again largely probing amendments, but they follow the principle, to which we like to adhere, of making explicit in the Bill as much as possible and ensuring that anything left to the Secretary of State should be made by affirmative resolution, giving the House sufficient opportunity to scrutinise it.

Amendment No. 30 brings us back to a favourite battleground: the substitution of the word “may” with “shall” on the basis of the preference that I have just expressed. The provisions in part 3 of the schedule are defined as “supplementary” but are actually important and far-ranging. Paragraph 13(1) gives the Secretary of State the power, by regulations, to

“make provision as to the procedure to be followed for the purposes of any decision IBB is required or authorised to take under this Schedule.”

The schedule is at the guts of the Bill, and that is a far-reaching sub-paragraph. It gives the Secretary of State power to change all the procedures that the IBB will follow; that is, all the detail that we have debated and tried to tease out from the Minister. The Secretary of State, if he so wishes, will be able to change that detail by regulation on a whim. He will be able to change the whole nature of the procedures followed to enable people to be referred to and investigated by the IBB. On that basis, it is essential that the Secretary of State “shall” do that by regulations rather than just by order. Contingent on that is amendment No. 31, stating that such regulations should be

“subject to the affirmative resolution procedure”.

We are considering an important part of the Bill that is not just about day-to-day running, so it should be subject to the full scrutiny of the House.

Amendment No. 109 is on a similar theme, stating that the Secretary of State shall, again by regulations subject to the affirmative resolution procedure, make clear the procedures

“to be followed for the purposes of removing any person from the children’s barred list or the adult’s barred list; and...the procedure to be followed for the purposes of referring information or individuals to the IBB.”

Such considerations are important. If changes are to be made, we believe that that should happen by regulations subject to affirmative resolution procedure if the extra information is not to be put in the Bill.

Under proposed new paragraph 13A(7), the timing must be made clear, too. The Bill does not contain, as with much else, detail of timings. How long will the procedure take whereby information about people is referred to the IBB and various actions are taken  against them? If people are put under the spotlight, it is essential that they can expect justice swiftly and fairly. As the Minister said, we are potentially dealing with a great many people, so if the information cannot be specified on the accompanying procedures with the Bill, it must certainly be put in regulations to show that the IBB will deal with the issues in a timely manner. Perhaps he can suggest what would be defined as timely.

I now come to our two other amendments. I shall leave the other to the Liberal Democrats to explain. Amendment No. 55 tries to put more detail into the Bill about timings of the minimum barred period that will be determined again by regulations that are

“subject to the affirmative resolution procedure”.

It also suggests the procedure to be followed on timings for those under the age of 18. I hope that that is clear.

Amendment No. 119 refers to clause 5. It would pin down some detail of how the Secretary of State can be scrutinised. Clause 5(3) gives an enormous power to the Secretary of State. It states:

“The Secretary of State may be order amend that Schedule so as to vary the meaning of—

(a) regulated activity relating to children;

(b) regulated activity relating to vulnerable adults.”

The definition of regulated activity is important. We need to know what occupations and activities are covered by the Bill. Such detail needs to be available at the outset.

The clause gives the Secretary of State the power to change the whole meaning of regulated activity, which is core to what the Bill wants to achieve. A change can be made purely by order. Again, we believe that there should be regulations subject to affirmative resolution of the House so that matters can be properly scrutinised in Committee in a timely fashion, otherwise we are giving considerable powers to a Secretary of State who may choose for whatever reason to change the ground rules. For example, the IBB might have made a hash of matters and not acted as intended under the Bill. If that were the case, Parliament would need to know about it. Parliament needs to know that the IBB, which has been charged to set up an important initiative and has considerable powers, is capable of getting it right and will not be subject to having its ground rules changed at the whim of the Secretary of State without due scrutiny by Parliament.

On that basis, these are helpful amendments that try to take further the sort of detail that we have been asking for all through the parliamentary stages of the Bill. At the very least, if we are not to have the detail concomitant with the passage of the Bill, we need to know that the Secretary of State will be subject to further full and proper parliamentary scrutiny if he chooses to change definitions and procedures.

Photo of Sarah Teather Sarah Teather Shadow Secretary of State for Education 5:15, 11 July 2006

I have great sympathy with the comments of the hon. Member for East Worthing and Shoreham about leaving vast amounts of discretion to the Secretary of State. There is a great danger in leaving so many powers so centralised and I look forward to hearing in the Minister’s reply why this is necessary.

Paragraph 16 of schedule 2 describes a process of review for which someone may apply if they have been included in a barred list. In amendment No. 111 we suggest a similar internal review mechanism for organisations or individuals who refer somebody to the IBB but it decides not to include them within the barred list. The Government made it clear in debates in the other place that they are unwilling to consider any kind of external review mechanism, but we think this kind of internal review mechanism fits nicely within that proposed in the schedule and would not fetter the IBB’s expertise.

I wonder whether this would be an acceptable compromise that the Minister might wish to consider. It does, of course, add an extra balance to the system as many of the decisions proposed within the Bill are highly discretionary. We need some kind of internal quality assurance mechanism, partly to ensure that decisions are made on a consistent basis. We wonder whether this kind of internal mechanism could give organisations the confidence of knowing that they have an opportunity to challenge again if they feel that their concerns have not been heard, but also leave the expertise of decision making up to the body itself.

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills

It would be interesting to know whether the hon. Member for Brent, East thinks that the appeal mechanisms in the system are insufficient and that another process is needed in addition to the Care Standards Tribunal, the Court of Appeal and, ultimately, judicial review. Perhaps she will come back on that.

These amendments primarily address the issue of regulations and I should first like to remind hon. Members that the Delegated Powers and Regulatory Reform Committee is broadly content with the position set out in the Bill and raised no concerns about the issues covered by these amendments. Amendment No. 30 would ensure that the Secretary of State will make regulations governing IBB decision-making procedures under the provision in paragraph 13(1) of schedule 2. I can assure hon. Members that we intend to make such regulations following Royal Assent. We therefore see no need to specify in the Bill that the regulations will, rather than may, be made. We would argue that a certain degree of flexibility is helpful to allow regulations to be made covering those aspects of IBB procedures that I have described as and when it becomes necessary.

Amendment No. 31 requires that the regulations specifying IBB procedure would be subject to the affirmative resolution procedure. We believe that that would unnecessarily limit the flexibility to adapt these provisions to changing circumstances and would require Parliament to give greater oversight to matters of great detail in relation to the operation of the IBB, which would customarily be left to standing regulations. It is a convention that that would normally be the case. Having said that, the hon. Member for East Worthing and Shoreham did mention some specific areas, such as regulated activity, where the affirmative process would be required. Within the context of this, some of those regulations will be introduced by the affirmative procedure.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

I appreciate that some of these things may be automatically subject to affirmative resolution. However, he has used an often used phrase in defence of his position, which is that our amendments would “unnecessarily limit the flexibility”. Why?

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills

First and foremost, before the regulations come into being, we want to have a period of consultation. I believe that we have already said—and I will be corrected if I am wrong—that we are looking for a period after Royal Assent during autumn 2007 for completing the regulations, so that the Bill, or rather the vetting scheme, can be in place during 2008. In order to do that, we will need to go away and extensively consult stakeholders to make sure that we do that appropriately.

We mentioned quite a few areas involving regulation. I accept that there is a lot of regulation in the Bill, but there is detail within it as well. As agreed by those on the Delegated Powers and Regulatory Reform Committee, the convention is that it will be done in the usual way. The usual way is the negative resolution process. However, I am more than willing to listen to the hon. Gentleman’s case-by-case argument. I have made one such case with regard to regulatory activity. He may feel that there will be specific areas and regulations that should be done in a different way and I would be interested to hear that.

Amendment No.55 would ensure that the minimum barred period would be specified in regulation, subject to the affirmative resolution procedure. I assure hon. Members that it is our intention to make regulations specifying this period. For the reasons already given, we believe that it is our position to consult on the regulations before they are subject to the negative resolution procedure, and that that is the most appropriate way to ensure general agreement.

On the subject of age, which the hon. Gentleman raised, our current thinking is that those over the age of 25, who have an automatic bar, would be barred for an automatic period of 10 years and those under the age of 25, for five years. However, those are matters on which we wish to consult extensively.

Amendment No. 109 would require that the procedures for removing a person from the barred list and making referrals to the IBB would be specified in regulations subject to the affirmative resolution procedure. Removal from the list will be a key part of the IBB’s role. Those elements of this procedure that are appropriately specified in regulations will be included in the regulations specifying IBB decision-making procedure. However, we should not seek to limit the IBB’s discretion in carrying out its key function of including or removing individuals from those barred lists.

The second part of this amendment would require the Secretary of State to make regulations on the procedure for making referrals to the IBB. The clauses that cover the duties to refer information to the IBB already contain clear tests for the referral. That would place additional burdens on informers and such burdens would achieve little of value.

Those regulations would cover referrals from those who are not under a duty to refer. Placing restrictions on the way that information can be referred might limit the flow of information to the IBB, which could have serious consequences for the protection of children and vulnerable adults.

Amendment No. 111 would allow a referrer, usually an employer, to request an IBB review of a decision not to include someone in the barred list. That would introduce employer oversight of IBB decisions. I am not convinced that employers are best placed to decide  whether the IBB has erred, and I am unclear what new evidence employers would have to contribute once the IBB had assembled information from all relevant parties and come to a decision on the case. The amendment would draw employers into initiating an appeals process, which is not a role for them as far as existing barred lists are concerned. They would require significant resources to pursue it actively.

Photo of Sarah Teather Sarah Teather Shadow Secretary of State for Education

The Minister asked me after I sat down whether I felt that the Bill’s appeals process was adequate. He will realise that the appeals process allows only those included on the list to appeal against it; it does not allow someone who has referred a complaint and feels that it has not been satisfied to have that decision reviewed. That is the point that we are trying to make. He might have misunderstood it.

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills

I take the point, but I must disagree. Those making the referral will have the right to know whether the person has been barred, but the reasons why they have or have not been barred will not be shared with the referrer for understandable reasons. Some referrals could be vexatious. The evidence might be flimsy. There might be a range of circumstances. We are discussing individuals who have lives to lead. After the IBB has made a decision and expertly weighed up all the evidence, those who made the referral will not necessarily need to pry into it, although I agree with the hon. Lady that it would be best to let them know what the IBB’s decision is, and we intend to do that.

The IBB will have internal administrative procedures to ensure quality and consistency in its decisions. For example, I would expect it to have procedures governing the collection of all the information needed to make a decision and to ensure that the necessary expertise is brought to bear on decision making. IBB members and senior management will establish systems for monitoring and quality control before rather than after notification of decisions.

The Government envisage that the IBB will engage actively with employers on the referral process, so that they know what is required of them and in what circumstances they should refer information. That will be an important part of the IBB’s role in ensuring the effective functioning of the scheme. I hope that I have assured the hon. Lady that the scheme will work well without the amendment.

I turn to amendment No. 119, which would ensure that any changes to the definition of regulated activity are made through regulations subject to the affirmative procedure. I reassure hon. Members that the amendment is not necessary, because clause 46(3) already provides for that. I hope that I have provided the clarification required, and I ask hon. Members to withdraw their amendments.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education), Shadow Spokesperson (Home Affairs)

The Liberal Democrats are still not convinced that we have conveyed what we mean by the amendment. I am sure that that is due to its wording rather than anything else. We envisage that a referral from an organisation or individual that does not result in a barring decision should have a right of review involving different people making the decision. That would ensure consistency in decision making. There  will inevitably be a lot of people making delegated decisions, internally rather than in a rigid appeal process. There must be checks and balances in the system so that somebody does not fall through the net simply because a particular group did not act. We envisage that the person or organisation concerned would have to prove in some way that they had deep concern.

Photo of Parmjit Dhanda Parmjit Dhanda Parliamentary Under-Secretary (Children, Young People and Families), Department for Education and Skills 5:30, 11 July 2006

I think I am getting a slightly better understanding of what the amendment refers to. The internal processes of the IBB will be a matter for itself, as it will be independent. Although the hon. Lady’s point is fair, I cannot comment on the internal processes of the IBB. It is important that we have an independent body, making expert decisions. I am sure that there will be a process whereby those who have made a referral can send supporting information to the IBB.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education), Shadow Spokesperson (Home Affairs)

I thank the Minister. We are beginning to get on the same wavelength. I have a genuine concern that something could be overlooked, because there is a lot of information and some vital pieces of it might not picked up by a small panel of people. I hope that the Minister, although he cannot dictate the board’s internal procedures, will give guidance—not written guidance—that he expects a review process and a test of the consistency of the board’s decisions.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

I heard what the Minister said, which did not surprise me. He used phrases that are common when Ministers are resisting the putting of more detail in a Bill, particularly on tying down the Secretary of State’s ability to exercise the considerable powers of regulation that he is given.

We are in no way trying to limit, as the Minister put it, the IBB’s discretion to carry out its functions. We support the idea of the board and therefore its power to get on with the job that we are tasking it to do. Nowhere in the amendments do we seek to limit the IBB’s discretion. We seek to limit the discretion of the Secretary of State, whose role should be subject to ongoing scrutiny by the House. At every appropriate juncture when he makes and changes regulations, they should be subject to affirmative scrutiny. That is the case in clause 5, which amendment No. 119 has usefully probed.

I remind the Minister that the Secretary of State is being given powers to make regulations that, the Minister says, will be published after Royal Assent. I do not argue about that; it is the case with all Bills. It would be desirable if a Standing Committee could look at the regulations in tandem with the Bill that gives them effect. That rarely happens, and in this case it was even less likely to happen because of the necessary speed with which the Bill was introduced after the Government had been rather dilatory in responding to the Bichard recommendations.

Let us remind ourselves that the Bichard report was published in June 2004. It was only the scandals that hit the headlines at the beginning of this year about  paedophiles and other dubious individuals working in privileged positions, particularly in schools alongside children, that prompted the Bill. We welcome it, albeit rather late in the day after the Bichard report. However, the lead time between the Government announcing that they would introduce the Bill and their producing it has necessarily been truncated because of the urgency of the situation. We welcome that.

The point that I am trying to make is that in those circumstances—less so than those with other Bills that have been on the back burner for many years—it would not be reasonable to expect all the regulations to have been done and dusted and thought through. That is why it is important to tease out some of the Government’s thinking, to give us an indication of whether we think that they are going far enough and will achieve the right balance between protection and the civil rights of individuals who are in the frame.

Nothing we are suggesting limits the flexibility of the board to do its job when it is up and running. We are purely asking for checks and balances on the Secretary of State in what is currently a grey area. Secretaries of State might find it inconvenient to have to appear before regulation Committees occasionally. However, it is preferable that they are put on the spot to justify why various regulations are being fashioned in the way that the Government propose than to let those regulations go through without the proper scrutiny that they require.

This is pioneering territory. The board is a new body. We welcome it, but it is particularly important that we get it right. We are not just talking about the initial regulations that the Secretary of State will fashion after the Bill receives Royal Assent; the Bill will also give him powers to change those initial regulations. He can change the regulations for the procedures to be followed, the terms of reference on which certain people are referred to the board and subsequently barred, and the timescale over which they may be barred. He is being given the powers to change an awful lot of things even after he first sets them out in regulations after Royal Assent.

It is important that, where possible, the Secretary of State should ensure that those regulations and subsequent changes to those regulations are subject to full and proper timely scrutiny by the House. That is what the amendments are all about, and that is a point worth making. The Minister is quite understandably trying to give us reassurances about when those regulations would be proposed, but that is entirely irrelevant, given the various points that I have just made. I want to put that on record.

I know that we will not get anywhere if we seek a vote on the amendment, but it is important. These are enormous powers, the manifestations of which both ourselves and the Minister are unclear about at this stage, because the provision has not been completed. That is why we need to make sure that they are scrutinised properly. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 ordered to stand part of the Bill.