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House of Lords

Friday, 11th June 1999.

The House met at eleven of the clock: The LORD CHANCELLOR on the Woolsack.

Prayers--Read by the Lord Bishop of Bradford.

Protection of Children Bill

Lord Laming: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.--(Lord Laming.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 1 [Duty of Secretary of State to keep list]:

Earl Howe moved Amendment No. 1:

Page 1, line 13, at end insert ("or should no longer be included in it")

The noble Earl said: The Bill is quite rightly concerned with closing loopholes that have in the past enabled child molesters to move from one childcare job to another, sometimes with complete impunity, over a period of many years. There is an urgent need to ensure that such people are prevented permanently from working with children. I am the first to recognise how important that need is.

As a result of amendments passed in another place, the grounds for including someone on the Secretary of State's list are now confined, in Clause 2(7)(a), to,

    "misconduct ... which harmed a child or placed a child at risk of harm", combined with the Secretary of State's opinion that the person concerned was unsuitable to work with children. "Misconduct" is a term that I take to mean several things. It includes the case of the child molester whose deliberate actions cause harm to a child, but it also includes the case of someone who has been relieved of his position within an organisation, perhaps transferred elsewhere within it, as a result of gross incompetence that harmed a child or placed a child at risk of harm. In other words, it is quite possible to imagine circumstances where a person's name is included on the list as a result of an act of inadvertence, albeit a serious one, as opposed to an act involving deliberate predatory behaviour.

For example, we can well imagine a young person of, say, 18 or 19, working in a children's home who puts a child's life at risk by virtue of sheer thoughtlessness or even ignorance. The children's home decides that it cannot afford to take a risk again with that individual and therefore dismisses him for misconduct. Assuming that the Secretary of State shares that view and believes that the individual is unsuitable to work with children as a consequence of what he has done, his name will go

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on the list. There is then only one way that his name can be removed from the list; namely, following a successful appeal to the tribunal.

However, let us suppose that the tribunal dismisses an appeal. The young person grows up, becomes wiser and more experienced, perhaps has a family of his own, perhaps even persuades a voluntary group such as the Scouts to let him supervise a Scout group, and that person comes to be regarded as a thoroughly reliable and trustworthy individual in the supervision of children. The question we have to ask is whether in a case such as that there should be no mechanism whatever open to the individual to enable him to have his name removed from the list.

Under Clause 1(3) the Secretary of State is enabled to remove a person's name from the list if he is satisfied that it should not have been included in the first place. That is entirely reasonable and right. But it does not cover the case of someone such as I have described who has lost an early appeal to the tribunal but who has then convincingly redeemed himself of his past incompetence by virtue of a long and satisfactory track record looking after children.

I therefore need to ask the noble Lord, Lord Laming, via the amendment that I have tabled, whether he thinks that in the interests of natural justice there should be another means whereby someone is able to rid himself of the stigma of appearing on the list by having his name removed from it.

I do not suggest that there are many cases that ought to be eligible for such treatment--quite the contrary. I emphasise again that I am not talking about allowing wilful child molesters to apply to have the slate wiped clean after an apparently blameless few years. But as we debate the Bill we must all the time be mindful not only of the interests of children but also of what is fair and right. Blacklists are powerful tools. Including someone's name on a blacklist for the rest of his life may be further than we should want to go in certain exceptional cases. I hope very much that the noble Lord will be able to give me some satisfactory reassurances in response to the concerns that I have raised. I beg to move.

Lord Campbell of Alloway: I support the amendment, for all the reasons that have been given which the Committee may think are entirely logical, humane and right. I seek clarification on one matter that troubles me. It relates to this amendment and is not itself the subject of an amendment.

It appears that the individual concerned may not write to the Secretary of State directly and say, "Could you now remove me for these reasons?" That avenue seems to have been foreclosed upon by Clause 4(1) (b), which seems to ordain--this is the trouble--that a person has to go to the tribunal and seek leave in order to have his name removed from the list. That is a nonsense. A person whose name is on the list should be able to write a letter to the Secretary of State saying, "I am represented; the parson thinks I am all right", and one thing and another, and provide a few references. The Secretary of State can write back and say no; then the person can go to the tribunal. As I said, no

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amendment has been tabled to that effect. I merely ask that consideration be given to the point at some stage. It relates to a more orderly and proper system of administration.

Lord Meston: This amendment and the questions that have been asked are important. As I read the Bill, it provides an appeal mechanism. It appears to allow for only a single appeal; however, I may be wrong about that. It does not allow for a subsequent review. The intention may be that there will be some form of administrative review of the list, but that is not apparent on the face of the Bill.

Presumably there must be circumstances such as the noble Earl described in which an entry on the list ought to be reviewable. Indeed, there must be other circumstances in which entry on the list should be extinguished. Presumably some time limits will be allowed for; otherwise the lists will simply grow and grow. While I agree with the noble Earl that the circumstances in which a review should be allowed are likely to be extremely limited, perhaps we should be reassured that some such mechanism will be in place.

11.15 a.m.

Lord Hunt of Kings Heath: First, I welcome the support that the noble Earl has given to the general intent of the Bill, which the Government, too, support. The noble Earl has raised an important issue and this has been a helpful debate. He has alerted us to the careful balance that needs to be drawn between the interests of children and the interests of the individual concerned.

The safeguards in the Bill--in terms of the procedures that have to be adopted in relation to the inclusion of a person on the list and the ability of that person to appeal to an independent tribunal--have been carefully drawn. The noble Earl's amendment strikes at one of the important principles of the Bill. I hope that I can reassure him that there are sufficient safeguards to meet the specific concerns that he raises.

Clause 1(3) is intended to enable the Secretary of State to remove an individual's name from the list if he is to avoid injustice and needless appeals and litigation in cases, for example, where fresh evidence has come to light and the Secretary of State is satisfied that the basis on which the original decision was taken was in some material way incorrect and for that reason the individual should not have been included in the list in the first place. For example, a relevant conviction could have been set aside, or evidence upon which the original decision had been based could subsequently have been discredited. In such circumstances the Secretary of State could act without the individual having formally to appeal to the tribunal as the only means of redress. However, it should be noted that that right may be exercised regardless of whether an individual has exercised his right of appeal to the tribunal.

The amendment proposed by the noble Earl would have the effect of requiring the Secretary of State not only to consider responding to information of this kind,

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but also to undertake reviews to see whether names should remain on the list. The amendment runs against the whole principle behind listing; namely, that once a name is finally placed on the list, that decision is permanent. The whole intention is that, if individuals have shown themselves to be unsuitable to work with children, they should not be able to work with children again.

I very much appreciate the noble Earl's concern that this may appear heavy-handed. Should, as he described it, a youthful indiscretion or a momentary lapse of attention in the case of immature young people be held against people for the rest of their lives? If that were a danger, I am sure that the Committee would be likely to agree. However, I believe that I can remove any understandable doubts on that score. Certainly, this same point troubled the Committee's deliberations on the Bill in another place. At that time the Bill provided that individuals might be listed on grounds of incompetence as well as misconduct. The Bill was amended precisely to respond to similar concerns, for example, where a youthful care assistant had carelessly left a gate open and a child had, as a result, run out into a busy street. The removal of incompetence grounds has therefore raised the threshold for referral to the list.

On that basis, when deciding whether it would be appropriate to include the name in the list, the Secretary of State must be satisfied that the employer has come to a reasonable conclusion that the individual has harmed a child or placed a child at risk of harm and that he is unsuitable to work with children.

Furthermore, in connection with appeals against listing, the tribunal will go into all the circumstances of the case afresh and will review the alleged misconduct and any resulting harm to a child. At the same time, however, it is clear that gross incompetence should meet the definition of misconduct so that that area of behaviour will be subject to referral. But, of course, that would then be a matter, in relation to the tribunal, for it to be decided on a case-by-case basis.

It must be borne in mind that there are other important filters which would screen out trivial cases. In the first place, only those cases where a child has been harmed or placed at risk of harm are to be referred to the Secretary of State. Secondly, under Clause 2(4), cases are not entered automatically into the consideration procedure following reference from an organisation. On the contrary, for the process to carry on at all, the Secretary of State has to be satisfied from the information submitted, with the original reference, that it may be appropriate for the individual to be included on the list.

It is only then, after observing closely stipulated statutory procedures that include considering observations from the individual concerned, that the Secretary of State may make a determination.

As I have already pointed out, this is subject to appeal to the independent tribunal to be established by the Bill; a tribunal which does not merely review the procedure followed by the Secretary of State but which also looks again at the whole case from the beginning, quite separately from and uninfluenced by the Secretary of

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State's consideration. In all those circumstances, it is difficult to see that cases will slip through to listing which should not be so listed.

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