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Earl Howe: We have had a helpful short debate. I am grateful to all noble Lords who have commented on the amendment. I realise that it has severe drawbacks. The question I seek to pose is simply this: should a person's inclusion on the list be sufficient ground in itself for dismissing him from a post? The answer seems to be that in some cases it may and in some cases it may not; and that each case will be decided on its merits in the normal way. I have no argument at all with that. My concern was to establish that the opposite would not apply--namely, that a business dismissing someone on those grounds would automatically find that it did not have a leg to stand on. That would worry me greatly. However, from the comments made by the Minister and the noble Lord, that does not seem to be the case. Therefore, I am entirely happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 4 and 5 agreed to.

12.45 p.m.

Clause 6 [Appeals against prohibition or restriction of employment]:

Earl Howe moved Amendment No. 9:

Page 5, line 39, leave out ("may") and insert ("shall")

The noble Earl said: In moving this amendment, I shall speak also to Amendment No. 10. These amendments are prompted directly by comments made by the Delegated Powers and Deregulation Committee of this House in its recent report on the Bill. I hope and believe that the point at issue can be dealt with relatively easily. In Clause 6(2) and (3) we see a provision for regulations to be made under Section 218 of the 1988 Act in relation to an appeal to the tribunal against a decision to prohibit or restrict a person's employment.

The wording of the clause is permissive rather than mandatory. The Explanatory Notes to the Bill and, one understands, the Department of Health memorandum to the committee present the provision in Clause 6(3) as directly mirroring that in Clause 4(4). However, as the committee points out, the prohibition contained in

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Clause 4(4) is an absolute provision on the face of the Bill and not, as here, a permissive power to be introduced by regulation. Therefore, the two powers do not mirror each other. I believe that my question on this occasion needs to be addressed to the Minister. Can he give me an assurance that, if this Bill is enacted, the Government will bring forward regulations in pursuit of the powers granted in Clause 6(2) and (3). I beg to move.

Lord Hunt of Kings Heath: I understand the noble Earl's desire to ensure that the matters mentioned in subsections (2) and (3) of Clause 6 are included in the regulations to be made by virtue of the clause. However, it is not necessary to make these amendments to achieve that aim. Those matters will have to be addressed in regulations in any event.

The reason that the word "may" is used in the subsections and not "shall" is to ensure consistency with the wording of Section 218(6) of the Education Reform Act 1988, which is expressed as a discretionary power to make regulations. The intention is to provide that the arrangements for appeals under regulations made by virtue of Clause 6 should be the same in all essential respects as the arrangements set out in Clause 4 of the Bill for appeals against inclusion on the new Department of Health list.

I am assured that the regulations will make provision for anyone who is included on List 99 in the future to ask the tribunal to consider whether there were grounds for barring him and, if so, whether barring was the appropriate sanction. If the tribunal is satisfied that there were not sufficient grounds to bar, or that barring was not appropriate in all the circumstances of a particular case, it will be able to remove the bar. The regulations will also ensure that appellants will not be able to challenge any facts on which a criminal conviction is based in an appeal to the tribunal. I hope I have given the assurance to the noble Earl that regulations will be made.

Lord Laming: I am tempted to respond. I hope that the noble Earl, Lord Howe, will not think that I am in this respect a leopard which is not able to change its spots. For many years I have advised Ministers on the virtues of the word "may" rather than "shall". I remain absolutely convinced of those virtues. I hope that the noble Earl will feel that these matters are best dealt with in the regulations.

Earl Howe: If the noble Lord, Lord Laming, is convinced of the virtues of the word "may" rather than "shall" I shall follow him down that path immediately. I am grateful to the Minister for his comments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 10 not moved.]

Clause 6 agreed to.

Clause 7 agreed to.

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Lord Meston moved Amendment No. 11:

After Clause 7, insert the following new clause--


(" . Where--
(a) in any family proceedings within the meaning of section 8 of the Children Act 1989 a welfare officer or guardian or litigation friend appointed by the court, or a local authority enquiring into the circumstances of a child, is directed by the court or otherwise reasonably requires to investigate the suitability of any individual in a child care position; or
(b) a local authority exercising its duties under sections 17, 22 or 47 of that Act reasonably requires to investigate the suitability of any such individual,
the person or authority so directed or requiring to investigate shall ascertain whether the individual is included in the lists referred to in section 7 above.")

The noble Lord said: This amendment proposes that those who are directly and properly concerned in the welfare and safety of children within the family justice system and in local authorities exercising statutory duties under the Children Act 1989 should have the ability to check the lists. Court welfare officers, social workers and those who represent children in proceedings need access to information about people who are or may become associated with the care and upbringing of the children concerned. At present they have access to criminal records, but not to the existing list or index. I believe, subject to correction, that local authorities may have access at least to the existing consultancy index when they are preparing reports for adoption agencies under the Adoption Agencies Regulations 1983. If that is correct, it is anomalous; if it is incorrect, surely local authorities should have such access when inquiring about potential adopters and their families and in all other situations which they have to investigate.

The wider point is that these are situations in which responsible people are required to carry out actual investigations to discover whether there is an identifiable risk to a specific child. At present the Bill is confined to inquiries by employers and potential employers, but clearly there are others who need to know as much as possible about people coming into contact with children in a domestic or non-employment context. Section 47 of the Children Act, for example, imposes a duty on local authorities who have reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm to make such inquiries as they consider necessary to enable them to decide whether they should take action to safeguard the child. How can they properly discharge that duty if they cannot in appropriate cases have access to the lists?

Information available in the area of child abuse is partial enough. Far from all offences or suspected offences are reported; fewer still result in convictions or cautions. The best available information should be available to all with responsibilities for children from a properly integrated database. The childcare system is based on the philosophy of Working Together, to which the noble Lord, Lord Laming, referred a short while ago. The objective of this Bill is in its title, the protection of children. I beg to move.

Lord Hunt of Kings Heath: The noble Lord, Lord Meston, brings a particular expertise to the

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Committee's deliberations on this Bill. However, notwithstanding the title of the Bill, which the noble Lord has pointed out, the Bill does not claim to be comprehensive. It is best seen as one plank in a whole series of efforts to try to ensure that we provide as much protection to children as possible. As the noble Lord explained, he is concerned to ensure that investigations undertaken either in connection with family proceedings in the courts, or otherwise by a local authority in the exercise of certain functions under the Children Act 1989, should include checking the names of individuals under investigation against the departmental list dealt with under this Bill.

The proposed new clause seeks to achieve its object by specifying that checks should be carried out in respect of individuals being investigated for the purposes of family proceedings listed in Section 8 of the Children Act 1989. It also provides that checks should be carried out by local authorities when carrying out the duties imposed on them under Sections 17, 22 and 47 of the Act when investigating the suitability of such individuals. Section 17 deals with the provision of services for children in need, their families and others. Section 22 concerns the general duty of local authorities in relation to children looked after by them. Section 47 concerns the duty of local authorities to investigate in certain circumstances whether they should take any action to safeguard or promote the child's welfare.

As the noble Lord, Lord Meston, has said, as it stands the current Bill's provisions are confined to the actions of organisations in respect of employment in childcare positions. The present amendment would extend the Bill to cover checks on individuals where there is no employment relationship with the organisation concerned; for example, checks on the partner of a parent where a residence order is being sought. This is an area which was considered to be outside the scope of the present proposals. I do not think this is surprising because, as I said at the beginning, this Bill, which has never been claimed to be the last word on the subject of child protection, has to be seen as a building block for a more complete situation and is concerned only with employment situations. That is, it is aimed at protecting children from harm where they are being provided with care for whatever reason.

Before I sit down I shall respond to the question raised by the noble Lord, Lord Meston, about access to the current list. Local authorities now have access to the list, and under the Bill will have access to the one-stop-shop provisions for checks on prospective adoptive parents when Clause 8 is enacted.

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