Mr.
Dhanda: I think the hon. Lady may be confusing the way in
which the IBB will make its decisions and the burden of proof there
with the nature of the referrals. That is part of what is causing the
confusion because the referral will be up to individuals and what they
think. We have to make that quite clear. That relates to the hon.
Lady’s earlier points about not wanting to deter people from
making such
referrals.
Mrs.
Miller: I thank the Minister for that clarification. As he
said, there is a difference between the burden of proof required for
referral and that required for barring. He has made it clear that the
burden of proof required for barring is at least the civil standard and
that in the case of those who are automatically included the burden
will, almost by definition, be one of proof beyond reasonable doubt.
That is why I picked that up in a DFES note on the issue. However, I
feel that inclusion in the Bill should be considered so that others are
not as confused as I and other hon. Members have
been. I remain
somewhat concerned about the looseness of the language on the duty to
refer, and the Minister has decided not to clarify it any further. Our
amendments were entirely reasonable and were based on a good deal of
thought and discussion. People in a great many organisations will be
left in a difficult position in trying to interpret what is meant by
such a subjective word as “thinks” and I urge the
Minister to consider how it will be clarified. The ambiguity is the
cause of many of the problems that we currently face and a principal
reason why the Bill is before us. It is not just I and other hon.
Members who have made that observation—a number of organisations
in the statutory and voluntary sectors are concerned about the point,
and I feel that the Minister should take heed.
However, given that we have had
such a good discussion of the issues, we Conservatives are happy not to
press the amendments for the time being so that the Minister may have
the opportunity to consider how the concerns shared by many people can
be addressed in later stages of the Bill’s passage. I beg to ask
leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Schedule
1 agreed
to.
Clause
2barred
lists Question
proposed, That the clause stand part of the
Bill.
Annette
Brooke: I want to address one issue, an aspect considered
in the December consultation. It is whether the IBB will have to
provide employers with a summary of the reasons for including an
individual on one of the barred lists. It is fairly clear, and it was
implied in the early consultation, that employers will probably have to
carry out a full risk assessment if they employ somebody, and they will
need such relevant information. For example, if someone was barred from
carrying out regulated activity work but was able to carry out
controlled activity, the employer would know the situations that would
carry more risk and could put measures in place to minimise
risks. That may be
what is intended, but I am not sure that it is said anywhere, despite
its being clearly referred to on page 4 of the December consultation.
The suggestion was that to equip employers to make such
determinations “we are
considering providing them with a summary of the reasons for a barring
decision.” What stage are
we at with that consideration? On page 12 of the same document, one of
the questions was on that very issue. If the information were provided,
a supplementary question
asked: “Would
this help those employing individuals in positions not covered by the
bar to make a judgement whether to employ the individual with
appropriate safeguards in
place?” A lot of issues
were raised that have not been followed through in this part of the
Bill.
Mr.
Dhanda: Before I come to that point, let me make a couple
of brief comments about clause 2. The clause requires the IBB to
establish and maintain two barred lists: one that includes those barred
from working with children, and another that includes those barred from
working with vulnerable adults. The two lists relate to two distinct
work forces. In some cases an individual will pose a risk to both
groups, but that will not be true in every case. Where there is
evidence of a risk only to a specific group, we cannot justify barring
the individual from a much wider work force. Were the lists combined,
they would cover upwards of 7 million jobs, which clearly raises the
issue of whether a bar would be appropriate and fair in all
cases.
12.45
pm In
paragraph 11(1) of schedule 2, we have placed a clear duty on the IBB
to consider all information in relation to both lists to ensure that,
where there is evidence of a risk of harm, the individual can be
included on both lists. We are confident that that allows the scheme to
fulfil its purpose of barring those who pose a risk to children and to
vulnerable adults.
Schedule 2 makes provision for
determining whether a person should be included in the lists. The
barred lists are necessary to maintain a record of those who are known
to pose a risk to vulnerable groups. They replace the current schemes.
POCA, List 99 and the disqualification order regime will be replaced by
the children’s barred list, while POVA will be replaced by the
vulnerable adults’ barred list.
Part 3 of schedule 2 provides
supplementary provisions for the barring scheme, including procedures,
representations and information gathering. The barred lists are an
integral part of the scheme and will provide greater safeguards for
children and vulnerable adults.
On the hon. Lady’s point
about a controlled activity, I can confirm that an employer who is
allowed to employ someone who is barred for a controlled activity will
be given further information to ensure that they can put in place the
necessary safeguards.
Question put and agreed
to. Clause 2
ordered to stand part of the Bill.
Schedule
2Barred
Lists
Mrs.
Miller: I beg to move amendment 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.’.
The
Chairman: With this it will be convenient to discuss 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.’.
Mrs.
Miller: The amendments in my name and those of my hon.
Friends relate to schedule 2 and to scrutiny of the Secretary of
State’s referrals to the IBB. I should be interested in the
Minister’s response because the amendments also include
provision for the IBB’s decision-making process to be defined in
a code of practice. The issue was discussed in the other place, but
given the importance of having clarity and transparency in these
matters, it is important that we continue that debate in
Committee.
The amendments are all about
introducing greater transparency into the IBB’s decision-making
process, which is vital if there is to be confidence in the system. The
amendments are tabled in the same spirit as those tabled in the other
place. They are probing amendments, which are meant to clarify the
IBB’s processes and, I hope, thereby strengthen the system that
the IBB puts in place.
Amendments Nos. 121 and 122
would ensure that referrals made by the Secretary of State were subject
to the same scrutiny as referrals made by other individuals. Lord
Adonis, the Minister in the other place, said that there would be
little point in asking the IBB to consider whether someone referred to
it for raping a 13-year-old girl should be barred. That is of course
true, but there should be a process or safeguard to ensure that
Secretary of State referrals are free from political interference or
expediency. As the Minister has said and as the former Secretary of
State, the right hon. Member for Bolton, West (Ruth Kelly), has
attested, the point of the new scheme is to divorce the vetting and
barring of individuals from the political
process. The power of referral and the IBB’s status as a
non-departmental public body, which we have discussed, will put at
arm’s length Ministers’ control, but not remove it. Will
the Minister reassure me on that
matter? Amendments
Nos. 120 and 123 would establish a code of practice for the IBB. It is
vital that the decision-making process for the new body be clearly
spelt out and transparent to those who will be affected. I hope that
that will ensure that the system is robust and has the full support of
all those who need to support it if it is to be
successful.
Annette
Brooke: I specifically wish to speak to amendments Nos.
133 and 134, in my name and that of my hon. Friend the Member for
Brent, East. I should say at the outset that I welcome the statement of
the noble Lord Adonis in Grand Committee that under-18s will not
automatically be barred from working with children without the right to
representations. He
said: “There
may be mitigating circumstances which mean that it will not be
appropriate in every case to include young people who commit offences
on a barred list without the right to make representations... He
or she may not present a risk of harm to children in general and
therefore may not be an appropriate person to automatically be included
on the children's barred list.”—[Official Report,
House of Lords, 2 May 2006; Vol. 681, c.
GC187.] He went on to give more
detail on the issue. I note that in the recent pack of information
circulated by the Minister the point about under-18s is reiterated. We
are pleased about that, but I wish to push the matter a little further.
Why cannot such a commitment be put into the Bill? Amendment No. 133 is
partly intended to translate what has been agreed—probably not
into the correct language—and to put it into the
Bill. The amendment
has a second important strand. It seems to me that there is an
opportunity, without imposing a great deal of work on the IBB, to have
an automatic referral to therapeutic treatment. That should certainly
be the case if somebody under 18 were placed on the barred list after
representations were heard. There may be a case even if a person has
not been put on the barred list, but for simplicity I have gone for the
stronger case. The
issue of young people who sexually harm has been highlighted in many
reports, but there has not been uniform action across the whole
country. From the experience of the National Society for the Prevention
of Cruelty to Children, we know that local authorities often take very
different approaches to their work. It is difficult to know what sexual
behaviour is harmless. Many children engage in activities that form a
normal part of their sexual development. There is a range of sexual
behaviour among young people, from an extreme multiple rape case to
mutually agreed experimentation. I understand that juveniles commit
almost one quarter of all sexual offences. The evidence is that many of
those children have themselves suffered from sexual abuse or some form
of trauma. Indeed, domestic violence is often a trigger. That is why it
is so important not just to acknowledge the differences surrounding the
under-18s because of the complexity of their behaviour, but to provide
a direct link to specialist services.
I carefully wrote the amendment
and included “as specified in regulations”. I thought
that that would be the most straightforward wording. It would not be
the duty of the IBB to seek out the treatment. Its duty would be to set
up the process such that a direct referral was made and treatment
received. We know that treatment of young people can be successful. If
we want to make inroads into society’s problems, making
treatment available at the appropriate time for young people will
prevent the incredibly sad consequences of such behaviour escalating to
great proportions and eventually ending up in several people being
injured. I hope that
the Minister will give serious consideration to the amendment, as it
picks up on an important point and campaign. We must ensure that young
people in that position are referred to the appropriate services and
treatment. I have a
great deal of sympathy with the amendments of the hon. Member for
Basingstoke.
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