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Lord Hunt of Kings Heath: My Lords, this is a serious point. I agree with the noble Lord, Lord Phillips, that to appear on the list is a serious matter for the individual concerned. However, as he also said, the interests of the child are paramount. The Bill as drafted reflects those concerns. The very inclusion in the Bill of a right to appeal to the tribunal is a reflection of the ability of the individual to appeal.

Clause 1(3) contains provision that the Secretary of State may at any time remove an individual from the list if he is satisfied that the individual should not have been included in it. That reflects the fact that if new evidence came to light which suggested that the original decision should not have been made the Secretary of State could remove that person from the list.

I turn to the point raised by the noble Earl. He was concerned--he gave an example--about the position of those who may have found their way on to the list early in life, perhaps because of some youthful indiscretion or momentary act of immature carelessness. He asked whether it is right that they should never be able to have such a decision reviewed, even years later when they claim that they have developed into solid citizens. If that were likely to happen, there would indeed be justifiable concern. However, I shall seek to show that that is not the object of the Bill and that it is not expected or desired that its provision should operate in that way and that there are means to prevent it doing so.

It may be helpful if I describe how the process of inclusion in the list works. An individual may only be listed where, in the first place, the employing organisation has, on grounds of misconduct which has harmed a child or placed a child at risk of harm, dismissed, transferred or suspended the individual. The Secretary of State has decided from the information submitted by the referring organisation that it may be appropriate for the individual to be included in the list. Thereafter, observations of the individual and, as necessary, the observations of the referring organisation are sought and considered by the Secretary of State, together with any information which he thinks relevant; and the Secretary of State is of the opinion both that the referring organisation reasonably considered the individual to be guilty of misconduct which harmed a child or placed a child at risk of harm and that the individual is unsuitable to work with children.

If fresh evidence comes to light, individuals listed may at any time ask the Secretary of State to remove their names from the list on the grounds that they should not have been included in it. There is a right of appeal to the tribunal, which must consider merits afresh, both against decisions by the Secretary of State to include an individual in the list and against decisions by him to refuse to remove names on the grounds that they should not have been included in it.

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I hope that I have demonstrated that listing for what amounts to no more than acts of youthful indiscretion is neither a desired nor a likely outcome. On the contrary, the whole character of the changes made to the Bill following its introduction in the other place have been to adjust the balance so that that kind of outcome would be the least likely, especially granted the reliance now on the single misconduct test, backed up by the statutory consideration processes and an independent, strong and thorough-going appeal system.

It may also be helpful if I refer to the purpose of the guidance that the Department of Health intends to issue. It will indicate, among other things, how referring organisations may approach their task. Such guidance would include advice which, for example, could explain that Parliament's concern on the same point made in another place had led to the dropping of "incompetence" from the grounds for referral, and that although the remaining misconduct criterion was able to comprehend gross incompetence, it was clear that Parliament, on the basis on what had been said in this House as well as in the other place, did not expect the provisions to lead to listing for trivial matters.

The guidance could then be expected to spell out some of the features of misconduct which needed to be considered before reference was made, such as the relative experience, as well as the age, of the staff concerned, the extent of the training given and the quality of management supervision and control.

Further, it is intended that the guidance should be made available to interested parties in draft. That will provide an opportunity for it to be reviewed and changed as necessary to reflect any remaining reasonable concerns. What cannot be said at this stage is that there can never be circumstances where persons, let us say, thoughtlessly harming a child or placing a child at risk of harm could find themselves on the list. Acts of omission, as well as commission, could conceivably justify inclusion on the list.

As the noble Earl, Lord Howe, indicated, the problem with hypothetical examples is that they are just that. It would be wrong for Parliament to seek to fetter the future discretion of referring organisations, Secretaries of State and tribunals while simultaneously instructing them to consider each case according to its particular merits in an overall structure in the rest of the Bill which Parliament does not seek otherwise to disturb.

I hope that the noble Earl will recognise that this matter has been given considerable thought and that safeguards are present to ensure that a person who appears on the list will only do so after very careful consideration.

Lord Laming: My Lords, the Minister has given a full reply to the points that have been raised. I should like to make a couple of brief comments in addition. The noble Lord, Lord Phillips, is quite right in saying that appearing on one of the lists or the list, when it becomes the list, is a serious matter. It is for that reason that the debate we have just had in relation to paragraphs (a) and (b) of Clause 2(7) is part of the way in which

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the Bill provides a balance between the protection of children and providing safeguards for members of staff against whom complaints or allegations are made.

It is a serious matter. Therefore, the procedures that will be linked with the Bill will have to demonstrate that matters have been handled with great care and thought and that the safeguards that are built into the Bill in relation to appeals will also be properly handled by a tribunal. That tribunal will be independent and its members will be appointed by the Lord Chancellor.

I emphasise that the Bill is not a bar to employment; it is simply a bar to people working with children. All the cases will be handled on a case-by-case basis, taking into account the circumstances. But I emphasise that the Bill aims to ensure that only serious behaviour--I do not need to go into detail--will fall within the purview of the Bill. For that reason, in another place, the issue of incompetence was dropped from the Bill. In those circumstances, I hope that the noble Earl feels that the points he raised have been adequately responded to and that he will feel able not to press the amendment.

Earl Howe: My Lords, once again, I thank all noble Lords who have taken part, including the noble Lord, Lord Phillips. I very much appreciated his supportive remarks.

I remain uneasy about the absence from the Bill of any provision to allow an individual to apply to have his name removed from the list, having initially failed in his endeavour to do so, but in the light of subsequent good behaviour.

As I read it, Clause 1(3) covers the case of a miscarriage of justice, if I may encapsulate the example that the Minister gave. It is where fresh evidence comes to light to show that a person's name should never have been included in the list in the first instance. My example related to a different kind of case where a person's inclusion on the list was clearly justified in the first instance but his subsequent behaviour had redeemed him.

I also take the noble Lord's point that the Bill does not create a bar to employment for individuals; it merely prevents unsuitable people working with children. Nevertheless, we must bear in mind that to be on the Secretary of State's list is a serious stigma. For those who feel, as a matter of natural justice, that their place on the list is wrong and can no longer be justified, the burden is a heavy one to bear.

I do not propose to press the amendment. All I urge on the Minister and his department is that they bear in mind what he and I have said to each other on a number of occasions. The Bill is a building block and should be seen as one measure among, perhaps, many to come which will address the extremely important area of protecting children and balancing that protection with civil liberties. If, as the Bill takes effect, it is seen that natural justice is not served by the absence from the Bill of the kind of measure I have proposed, I hope that the omission can be addressed in future legislation which I know the Government are minded to introduce at some point. With that, I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

[Amendments Nos. 5 and 6 not moved.]

Clause 12 [Interpretation]:

Earl Howe moved Amendment No. 7:


Page 9, line 39, after ("mind") insert ("or degenerative mental illness")

The noble Earl said: My Lords, this amendment can be dealt with briefly. I simply seek clarification from the Minister as to the definition of "mental impairment" in Clause 12. I am not sure that when we debated Clause 10 in Committee the Minister entirely took my point. At no time did I seek to suggest that the Bill should be extended to cover all types of vulnerable adults. However, having opened up the possibility of extending its remit to those particularly vulnerable adults who might be seen as corresponding most closely to children, I believed that it was not unreasonable to look a little further than the definition in Clause 12 appeared to do.

My understanding is that,


    "arrested or incomplete development of mind", does not encompass those conditions which are characterised by a degeneration of mental faculties, such as dementia, but rather what are usually termed severe learning disabilities. For example, if one thinks of an adult woman with dementia or Alzheimer's disease there is little to separate her from an adult woman with severe learning disabilities in terms of the other half of the definition in Clause 12, which refers to,


    "a significant impairment of intelligence and social functioning". In terms of vulnerability, which must be the key measure, there is a very close parallel.

These are people who often cannot express themselves and whose very lives are dependent on the help and support of others. I have tabled this amendment to ask the Minister whether my interpretation of this definition in Clause 12 is right. At one point in the debate in Committee I thought that the Minister was leaving open the possibility that the definition as drafted was capable of being stretched so as to accommodate the type of case to which I have referred. I should like to think that that is so, but I should be grateful for any further clarification that the Minister is able to give. I beg to move.


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