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Lord Meston: My Lords, the Minister mentioned differences in language. I well understand what he was saying. Can he confirm my understanding that the exercise which the Secretary of State has to undertake under Clause 2(7) would itself be capable of judicial review? Clearly the exercise is futile--as the noble Earl indicated--if the Secretary of State merely "rubber stamps" an organisation's decision. I assume that that is not the intention of the Bill and that, whatever the phraseology, the Secretary of State will reach his opinion independently.

Lord Hunt of Kings Heath: My Lords, I confirm that judicial review would be available.

Lord Phillips of Sudbury: My Lords, I ask the Minister whether I have the matter right or wrong because this is an important issue. In answer to the noble Earl, Lord Howe, he seemed to be saying that as between a complete and thorough-going review of the evidence at one extreme and rubber stamping at the other Ministers could engage in some kind of middle way. I think that at the beginning of his reply the Minister talked about the Secretary of State looking at the quality of the evidence that was brought before him by the informing organisation. I think the consequence of that would surely be that--as indeed the Minister indicated--he would be quite content to leave the tribunal to judge more fully, and with greater sensitivity, whether or not the person concerned should be on the register. That in turn would surely mean that the risk--if I can use that term--of innocent adults finding themselves on the register is greater rather than lesser precisely because the involvement of the Secretary of State in looking at the information that has been put before him--as I understand the matter, but this is what I query--is on a kind of middle level rather than a more intense level.

That in turn has huge importance for those who may be the subject of all this, because if they ever get to the point where they must make an appeal to the tribunal, the expense and the public pain of being in that position and having to appeal will be extremely serious. If no legal aid is available, as appears to be the case, the

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consequences in turn are very extreme for an individual adult in that position. I am sorry to have asked such a tortuous question, but there is a secondary issue here in terms of doing justice to those who are potentially in danger of being on this list and in terms of the manner in which it is being dealt with.

Lord Hunt of Kings Heath: My Lords, perhaps I may gently point out that we are on Report stage at present. The whole construction of this Bill is delicately balanced between the overriding need to protect children and the need to ensure that an individual's rights are also protected. This Bill introduces a very important right: to appeal to a tribunal against the decision to include a person on the list. I do not think that we should forget the safeguard that that right entails.

As regards the hierarchy of decision making, which the noble Earl pointed out, in paragraphs (a) and (b) of Clause 7(1) the Secretary of State is not making a finding of fact. He is forming an opinion, first, as to the reasonableness of the employer's position and, secondly, as to whether the individual is unsuitable to work with children. He is not mounting a full investigation into the facts. That is for the tribunal to do, if an appeal is so made, and the tribunal will then undertake a fact-finding role. That is the reason for the difference in language. I hope that it helps to show how the distinction is drawn between the two functions.

Lord Laming: My Lords, we have had a very helpful debate, and there is not a great deal more that I would wish to add except to reassure the noble Lord, Lord Elton, that if mentors operate through a corporate body, as in the example that he gave, they would certainly be covered by this Bill, as would Boy Scout leaders and many other people who voluntarily give their time as part of an organisation which has frequent and regular contact with, and provides services to, children.

Turning to the points raised by the noble Earl, Lord Howe, on paragraphs (a) and (b) of Clause 7(1), I think it is important, as the Minister has made clear, to have these two tests because it is possible for an organisation to have considered very reasonably and properly the misconduct of an individual. But there is a second test as to whether or not that behaviour is of sufficient severity to make the individual unsuitable to work with children. I have hesitated throughout these discussions to give examples, because that is always dangerous, but perhaps I may offer two examples as illustrations.

There are detailed regulations about bathing vulnerable people and protecting them from harm. It is conceivable that somebody may ignore the regulations and place a child in a bath of scalding water, causing immense harm to that child. It may well be shown that that person disregarded important regulations that had been designed to protect children from harm, so that the facts may not be in dispute as to either the event happening or the regulation being ignored.

The second test is whether or not that person behaved in such a way as to make him or her unsuitable to work with children. That would depend upon a whole range of other matters being considered. A similar example

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would be someone taking children sailing or canoeing without having first checked the availability and effectiveness of the safety equipment. There are proper regulations to prevent disasters occurring. If a disaster occurred, that would be tested under subsection (7)(a); and whether or not a person was suitable would be considered under subsection (7)(b).

The test is to make sure that these two elements are properly considered. As to the wording "satisfied" or "of the opinion", I support what the Minister said. It is very important that the Secretary of State should not pre-empt the work of the tribunal and that we should hold to the distinction of their respective roles. Having said that, I hope the noble Earl will not press the amendment.

Earl Howe: My Lords, this has been a useful debate which has served to clarify a very important aspect of the Bill and the way in which its provisions will work in practice. The Secretary of State is clearly neither a rubber stamp nor a tribunal in his own right; nevertheless, he will exercise his judgment and will form an opinion on the information placed before him. I am particularly grateful for the explanations which have been given about the force of subsection (7)(b) and for the useful examples quoted by the noble Lord to illustrate the process. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Clause 4 [Excessive delegation of powers]:

Earl Howe moved Amendment No. 4:


Page 4, line 15, at end insert ("; or
( ) with the leave of the Tribunal, his continued inclusion in the list following the dismissal of an appeal under subsection (3) below.")

The noble Earl said: My Lords, in moving Amendment No. 4 I shall speak also to Amendments Nos. 5 and 6.

We had a lively and interesting debate in Committee on the very important issue of whether it is right for the Bill to contain no mechanism whatever to enable a person who has been listed and who has lost an appeal to the tribunal to apply to have his name removed from the list on the strength of his subsequent good conduct. The main point I made then was that putting someone's name on a blacklist for life may be further than we would wish to go in certain exceptional cases--I stress not in a case involving a wilful child molester but rather in a case involving a man whose conduct amounted to inexcusable inadvertence or gross incompetence.

The noble Lord said in debate last time that he felt the term "misconduct" denoted something that was deliberate and determined. He has kindly written to me since then to make it clear that "misconduct" could involve an act of omission as well as commission, which was my previous understanding of the term. A thoughtless act or one committed in ignorance of the likely outcome could in some circumstances amount to misconduct.

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The example to which the noble Lord has alluded was given in another place. It concerned the owner of a business providing adventure training holidays who allowed a group of children to go out to sea without proper training, without life-jackets and in boats that were unseaworthy; several children drowned. It was said that this man was guilty of criminal negligence--and that may certainly have been so--but his employee, the man who accompanied the children out to sea, was said to be incompetent because he did not realise the seriousness of the situation and did not question his own actions. That is a very interesting example. It does not involve someone wilfully harming a child or wilfully placing a child at risk of harm. There is no deliberate intent; it is a serious act of omission. In a case such as this it is quite possible to imagine the employee being dismissed for misconduct and subsequently being listed.

If, after an unsuccessful appeal to the tribunal, that man were to demonstrate over the next 15 or 20 years that he had matured and gained in experience and, having spent time in helping children's voluntary groups such as the scouts, he had proved himself to be thoroughly reliable and trustworthy, what ought we to say to him if he were to come to us asking for a chance to prove to the tribunal that he should no longer be considered a risk to children? Under the Bill as drafted he would have absolutely no recourse to the tribunal, let alone to the courts. The stigma of being included in the list is his for life.

I recognise that all examples are to an extent artificial, but I seriously question whether the situation I have described is consistent with natural justice or the high standards of civil liberty on which we rightly pride ourselves in this country. The noble Lord may say that the kind of provision I have allowed for in my amendments, which essentially create a further ground of appeal to the tribunal, would open the floodgates to all manner of inappropriate appeals, from child molesters and so forth. I believe it would be possible to obviate that difficulty by making leave to appeal dependent on the prior agreement of the tribunal, exactly as already set out in Clause 4(1)(b). That is what I have proposed.

I remind the House that the Bill provides for an employment blacklist to be established by means of an administrative rather than a judicial procedure. It is a convenient system and we can justify it in the interests of children. But there have to be proper safeguards. The tribunal, whose importance I in no way belittle, at present has a role only in hearing an early appeal. There is a strong case for broadening its role in the way I have described. I beg to move.

3 p.m.

Lord Phillips of Sudbury: My Lords, I associate myself very strongly with the remarks of the noble Earl, Lord Howe. The impact on someone put on this register will be little different from, and in some cases worse than, being convicted before a criminal court. The consequences in terms of reputation and livelihood could not be more acute. To that end I was disappointed by the fact that the previous amendment was not carried.

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The interests of children are paramount, but the interests of justice are no less paramount. Therefore, to give someone put on the list the opportunity in the circumstances described to, in effect, clear his name after the passage of time must surely be right. I strongly support the amendment.


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