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I set out the arguments in detail in my speech in March on my ten-minute Bill. I shall not, therefore, go into them all again but set out the background briefly. Twenty years ago, the internet was perceived as a plaything for boffins, not as something that would
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mushroom so amazingly. We regard it now as a force for good but we also understand that it can be a force for evil through the mushrooming of distribution, for massive profits, of, for example, child pornography and abuse and the distribution of criminal funds. We are running to catch up with ourselves to keep control of it.

Mass surveillance of people through electronic means, sometimes without their knowledge, and potential electronic surveillance of children without the necessary controls to ensure that information does not get into the hands of people who would harm them, is another aspect of technology that is escalating. It is important to get to grips with the matter now and I hope that the Bill can be amended to do that, or that we can find some other mechanism for starting to license that development.

Margaret Moran: I congratulate my hon. Friend on championing the matter. As she said, technology is advancing fast and, although a voluntary code currently covers the matter, even those in the industry acknowledge that it does not apply to the latest satellite technology. Does she agree that we need urgently to cover that to safeguard our children?

Judy Mallaber: I agree. The matter came to my attention through coverage of one of the big CeBIT international fairs in Hamburg. In the massive exhibition, someone had surveillance products, especially child location products. He said, “I can’t understand why every parent hasn’t rushed to pick up my teddy pack. You can just pop it in your child’s rucksack and have peace of mind.” How can there be peace of mind if we do not know whether the person who provided the equipment and popped it into a child’s rucksack was a parent or a paedophile? How does the organisation selling the product know whether parents or paedophiles have bought it?

My hon. Friend the Member for Luton, South (Margaret Moran) is right that the escalation of the technology is getting grossly out of hand and we must take hold of it and regulate it somehow. The mass market is being bombarded with one product after another. It is getting bigger and bigger, with more and more different products. It begins with a simple Teddyfone, which is attractive to a child. It would be easy for someone to persuade a child to take one. One may know the location of the Teddyfone, but not necessarily that of the child or whether the child is with the Teddyfone. It should not give peace of mind. The person who has given it to a child could also be tracking it because it can act as a listening-in device. As soon as someone phones it, it states the child’s location. That is dangerous and we have not got the matter under control.

My hon. Friend is right that there is a code of practice, which was drawn up with the mobile phone networks, so it covers only that part of the technology—not new forms of satellite technology. That is great if people need to know where someone is if they have had an accident or if somebody wants to use the sat nav system in their car, but not so good if a child is being tracked through that technology, or a jealous stalker is chasing someone. We really do not have the way of controlling it that we need.


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4.15 pm

Although there is a code of practice, it has turned out to be woefully inadequate, and I gave some examples in my speech on my ten-minute Bill. Just in the previous couple of weeks, three journalists had managed to track people without their knowing, outwith the provisions of the code, and they did not meet the requirements of the code. Even in respect of the technology to which the code is meant to apply, it has not been operated properly.

We need to get to grips with this matter. Indeed, the person who put me on to looking at it was the adviser to the children’s charities on internet and technology issues, who himself was involved in drawing up the code of practice—he definitely knows about it. One of a number of organisations that have contacted me since I introduced my ten-minute Bill is a company, whose representative has

That comes from within the respectable end of the industry.

Action on Rights for Children welcomes my Bill, saying:

We need to manage—to regulate—this industry. What made me realise that we might be able to do that through this Bill was the welcome inclusion of the provisions on vetting those involved in moderating chat services, which already introduce an element of control of the use of technology on the internet. We have done extraordinarily well in the work that has been done in trying to control other areas of abuse on the internet, such as child pornography, although we are always running to catch up, but let us grab hold of this one before it is too late.

I suggested on Second Reading and in Committee that we should try to amend paragraph 2(1)(e) of schedule 3, which is about moderators of chat rooms, but my hon. Friend the Minister wrote to me to say that that would not work in terms of the wording. I accept that, which is why my colleagues and I have tabled an amendment proposing a separate paragraph 2(1)(f), which would make this an additional activity to be regulated. It would not have the same force and range of licensing measures, which I would like us to move towards, but at least it would ensure that those who are involved in providing devices that can be a force for good, but also a potential force for evil, are subject to checks to make sure that they are responsible enough to be allowed to do so.

We could then perhaps follow up from that and talk about what other provision we should have for licensing, which I would like to have, in ensuring that the products are given only to the right people, and that there are checks, proper regulations and a proper regime in force on the provision and use of such equipment.


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We are walking into a world where we could each easily be subject to surveillance without knowing it. If we do not get to grips with that now, it will be too late, and perhaps in a year we will be asking, “Why didn’t we get to grips with it?” We have been very slow. The Department of Trade and Industry even gave an enterprise award to one of those products. When we queried whether it should not have checked that out with the children’s organisations in relation to child safety issues, it said, “Why should we?”

That product supposedly deals with child safety, but the DTI had not clicked about that. Often, there is no matching up between Departments on what should happen, so the DTI does not necessarily know about the good work and expertise that rest, for example, in the Home Office. The Department for Education and Skills does not necessarily know about some of that technology and some ways in which we need to control it.

I urge that we take this issue on board and include it as an activity in relation to which we at least ensure that the people providing such services are properly regulated and vetted. We should move to a system of proper licensing for this area of technology. Otherwise, we may just find, even in a year, that we regret not grabbing it early when we had the chance.

Annette Brooke (Mid-Dorset and North Poole) (LD): I endorse the comments of the hon. Member for Amber Valley (Judy Mallaber), whose amendment I support. Getting round to the introduction of adequate protection in relation to the internet has taken time, and we need to be proactive in that area. Without doubt, tracking devices have two aspects to them. The aspect that relates to parents getting information is entirely good. The downside, however, is that in the wrong hands such devices have potential for the setting up of some very unpleasant crimes. It is now time to introduce into regulations a process that, eventually, can be used for licensing.

Many amendments have been tabled for consideration today, and in so far as they respond to the points made on Second Reading and in Committee we must welcome them. Whether we have the time to scrutinise the brand new amendments, however, is a real issue. If it has suddenly been decided that we must consider foster parents, which sounds fairly obvious, what other groups have we forgotten? Can we really put the Bill to bed tonight and feel that we have done a thorough job? I do not think so, and I am very concerned about that. Getting to grips with the vast number of Government amendments has been an enormous burden for a relatively small party such as ours.

Having said that, I particularly welcome the amendment relating to language schools, on which my hon. Friend the Member for Torbay (Mr. Sanders) made an excellent contribution on Second Reading. I also have language schools in my constituency, and he and I will feel happier as a result of the amendment. There has also been responsiveness to the points made in Committee about prison and probation officers, which is important.

New clause 1 specifically mentions private fostering, which sounds good in theory. However, given that the Government have never conceded to amendments tabled by Front Benchers from both main Opposition
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parties that would require a registration scheme for private fosterers, how will the information about the Bill be communicated to those who are privately fostering? At the moment, there is no way of tracking down everybody who is involved in private fostering. Therefore, we have a Bill that puts an enormous burden on and potentially criminalises such people, but no way to ensure that they even know about the Bill. It leapt off the page to me that private fosterers were an obvious group for attention.

Anne Main: Does the hon. Lady share my concern that many private fostering arrangements are on an inter-country basis? People are often asked to foster children from impoverished countries who are members of, or seen to be members of, their extended family. The familial relationship is not formal, but such people are considered aunties and uncles. How are we to ensure that those people are correctly informed of their duty under the Bill as it stands?

Annette Brooke: I thank the hon. Lady for reinforcing my point. I do not see how the provisions can be communicated to everyone to whom they apply. I hope that the Minister will address that matter.

Amendments Nos. 258 to 260 were tabled by me and my hon. Friend the Member for Brent, East (Sarah Teather), and I want to explain why it is necessary to delete “reason to believe” and instead insert “suspects”. The aim is to restrict the offence of use of a person not subject to monitoring to situations where it can be established that a regulated activity provider had actual knowledge or suspicion that someone was barred. We debated that many times in Committee. Given the decisions that will be made, we thought that precision was needed, and that we must not risk criminalising people in cases in which there might be genuine lack of knowledge.

There is a crucial difference between clauses 9 and 10, which is why our amendments address clause 10 in particular. Clause 9 relates to people who are barred, but clause 10 relates to the use of people who are not subject to monitoring. Using barred people for regulated activities is far more serious than using someone who is not monitored, as the use of the former obviously poses a greater risk to children and the vulnerable. That is not to imply that the use of a person who is not subject to monitoring is not a serious matter—it is. If a regulated activity is carried out by such an employee, severe disciplinary action, and even dismissal, may well result.

Our concern, however, is that the creation of offences targeted at people who make mistakes is excessive. Mistakes will be made, especially while the complicated system beds down. We suggest that, for a successful prosecution, the defendant must, at the very least, have some knowledge of the fact that someone is barred, but have failed to act on that knowledge. In other words, we would restrict criminalisation to situations in which, although the person “suspects”, rather than “has reason to believe”, that someone is not subject to monitoring, they still allow them to engage in regulated activity. I hope that the Minister will address that important point.


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My hon. Friend the Member for Sutton and Cheam (Mr. Burstow) will speak to the amendments that he tabled, which are supported by our Front-Bench team, but first I should like to make a few comments. The hon. Member for Basingstoke (Mrs. Miller) mentioned family and friends. Liberal Democrat Members think it important to make it clear that the probable regulations on powers of attorney and guardianship should be all-encompassing, because they involve the handing over of a great deal of power. For example, someone might name a person as their attorney long before that power is used, and of course things could change in the intervening period. A personal friend of 15 years ago may have been involved in unacceptable activity in the intervening period. I would particularly like the Minister to address that point of view.

As I said on Second Reading, we are concerned that there is an information flow, for example between the Department for Work and Pensions and the Office of the Public Guardian. If either of those bodies learns something about somebody—for example, if there is a revocation of the power of attorney—will that be conveyed to the independent barring board, and will the board transfer information? I leave it to my hon. Friend the Member for Sutton and Cheam to lead a detailed debate on the amendments, but I hope that the Minister will pay particular attention to my point about new clause 1.

Mr. Paul Burstow (Sutton and Cheam) (LD): I congratulate the hon. Member for Amber Valley (Judy Mallaber) on her amendment. I support both the spirit and the letter of that provision, because it deals with an important issue that must be aired and resolved—if possible, by means of the amendment, or reassurances from the Minister.

I welcome the extension of the remit of the legislation to chat room moderators. A few years ago I was a member of the Home Office’s internet child protection taskforce, which was responsible for a number of issues, not least the drafting of those parts of the Sexual Offences Act 2003, considered by the House in the last Parliament, that created the new offence of grooming. It is an important subject, and I was determined to be involved, as at the time I was dealing with constituency cases that centred on grooming. Any developments under the Bill to further protect young and vulnerable people are only to be welcomed.

My hon. Friend the Member for Mid-Dorset and North Poole (Annette Brooke) rightly asked whether we can be satisfied tonight that the Bill can safely pass from the House and be put to bed. I have tabled amendments Nos. 192 to 196 because I and a number of organisations outside the House are not entirely confident that that is the case. As she said, my amendments attempt to clarify how far the Bill will help to safeguard one of the most vulnerable groups of people in our land—those who lack capacity, who do not have the ability to make decisions for themselves and who necessarily have to rely on others to make decisions about their financial and other welfare considerations.


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Throughout the progress of the Mental Capacity Act 2005, questions were asked in both Houses about how far there would be checks on people who act as attorneys, deputies or appointees from the Department for Work and Pensions because those people will have responsibility for the finances of vulnerable people. Attorneys and deputies also have decision-making powers over welfare. If the Bill is to do what it rightly says it aims to do—protect and safeguard vulnerable groups—it must ensure that someone who is barred from working with vulnerable people does not move on to a less well-policed part of the system and exercises power under the 2005 Act as an attorney, deputy, appointee, public guardian or court protection visitor.

The main thrust of the amendments—I am grateful to Age Concern in particular for its help and assistance in drafting them—is to probe how far the various lists work with each other: in other words, how the various agencies set up under mental capacity legislation will interface with the barring board and the barring register. For example, if someone has their attorneyship, deputyship or appointeeship revoked, as my hon. Friend said, because they have caused harm to a vulnerable person, that information should be passed to the barring board. Similarly, the barring board should inform the Office of the Public Guardian and the Department for Work and Pensions of those whom they have barred.

Amendment No. 192 would clarify beyond doubt that where a family member or a friend is acting in the capacity of an attorney, deputy or appointee, that activity is regulated. I welcome the Government amendment which is intended to deal with that in part, but what information will be given to attorneys, deputies and appointees—this thread has run through the debate—to explain to them that they will be covered by the Bill’s provisions? Will that be provided in the forms and guidance that are made available to them?

Amendment No. 193 would ensure that the Court of Protection, the Office of the Public Guardian and the Secretary of State for Work and Pensions are under a duty to check whether a person who will be involved with the finances and personal welfare decisions of someone who lacks capacity is barred from working with vulnerable groups. What form of risk assessment will be put in place within those organisations to decide when checks with the barring register are necessary? Will there be consultation with organisations such as Age Concern and other interested parties about precisely how that risk assessment might be implemented and on what occasions it might be necessary to make a reference to the barring register?

Amendments Nos. 194 and 195 would ensure that the Office of the Public Guardian and the DWP were alerted when someone is subsequently barred by the barring board. Otherwise, someone with a record of abuse could continue to abuse as an appointee, deputy or attorney, and that surely cannot be right. Will the barring board see it as part of its duty to alert other organisations when it becomes aware that those people are also appointees and attorneys? Amendment No. 196 would ensure that those officials of the Office of the Public Guardian and the Court of Protection
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who visit people in private—again, I am talking about people who lack capacity and are most vulnerable—are also subject to checks.

There are clearly a number of areas where the Government are extending the measure. They have listened to representations. Further categories of persons will have direct access to vulnerable people who lack the capacity to make decisions for themselves. Those vulnerable people should be afforded the same protection as those who are in a chat room on the internet. That is why I hope that the Minister will give us a positive response.

Mr. Dhanda: We agree with the intention behind amendment No 192. We do not think that someone who is barred should be able to act as a deputy, have lasting or enduring power of attorney, or look after someone’s benefit. The hon. Gentleman has raised an important point in a very fair manner. We do not think it should be possible even for a family member or friend to act in that way, but that is dealt with in clause 43.

Anne Main: If, once the Bill was law, a person who previously was not barred but would now be barred had power of attorney, would that person be obliged to stand down? If he or she did not do so, would it constitute an offence?

Mr. Dhanda: I promise that I will come to that point, if the hon. Lady is patient. Later we will discuss an amendment that would remove the explicit provision from the Bill and allow a power to make regulations in that regard, as there may be other circumstances that require such clarity. I can reassure the House that we will use the regulations to ensure that a barred person cannot act as a deputy or an attorney, or receive someone’s benefits.

Mr. Burstow: I am grateful for the Minister’s reassurance on amendment No. 192. He mentioned clause 43, entitled “Family and personal relationships”. Not all appointeeships, deputyships or attorneyships will be personal or family relationships. Can the Minister assure us that they will also be covered when they extend beyond the family?

Mr. Dhanda: I shall describe a new role for the Office of the Public Guardian in a moment.

Let me make clear in relation to amendment No. 193 that the Office of the Public Guardian and the Department for Work and Pensions will not automatically make checks on deputies or attorneys appointed under the Mental Capacity Act, or people looking after others’ benefits. Many of those who act in that capacity—although not all, as the hon. Gentleman says—are family members and close friends. In their case, compulsory checks are unnecessary and could be seen as intrusive. Making such checks compulsory has the potential to raise costs to all applicants massively without adding value. We have, however, allowed direct-payment recipients to choose whether to check those whom they choose to act for them. Similarly, we must respect the choice of those who are planning for the future by making a lasting or enduring power of attorney.


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