Tim
Loughton: 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withdrawn.
Tim
Loughton: I beg to move amendment No. 30, in
schedule 2, page 38, line 36, leave
out ‘may’ and insert
‘shall’.
The
Chairman: 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,’.
Tim
Loughton: 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.
5.15
pm
Sarah
Teather: 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.
Mr.
Dhanda: 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.
Tim
Loughton: 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?
Mr.
Dhanda: 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. | 
