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Lord Clement-Jones: My Lords, before the noble Earl, Lord Howe, responds, perhaps I may say that I appreciate the Minister's reply and his desire to achieve a balance in this clause between natural justice and proper protection for vulnerable people. However, with the greatest respect, on these Benches we believe that that balance has not been struck in the proper fashion.

In this clause the approach seems to be that one sweeps up into the net a whole collection of possible allegations and circumstances which may be unproven; referral takes place and one then relies on the tribunal to sort everything out if the individual chooses to appeal. We prefer to take a rather more measured approach at the earlier stage so that everything is not swept up with referral taking place for a broad collection of allegations and circumstances.

Clearly, there is a strong difference of approach. I understand the desire of the noble Lord, Lord Laming, to ensure that vulnerable people are properly protected. However, one has this balance to keep. We do not believe that it has yet been struck in the proper fashion. There are a number of further amendments to this section of the Bill. I do not wish to prolong the debate on this clause unduly. However, we may well return to this at a future date.

Earl Howe: My Lords, I thought I detected in the remarks of the noble Lord, Lord Laming, a degree of impatience in so far as many of these matters were debated at some length during the passage of the Protection of Children Act--a series of debates I recall with great clarity. However, I respectfully point out to the noble Lord that this is a different Bill with different effects and containing different provisions. It is perfectly right and proper that we should explore the clauses in as much detail as we feel necessary.

I have to say to the noble Lord that if the meaning of the word "misconduct" is clear to him without explanation, it certainly is not clear to me. I was grateful to the Minister for his clarification of the meaning of the word. It worries me that, as the noble Lord, Lord Clement-Jones, pointed out, the degree of proof that is required to refer somebody on the ground of misconduct that would harm a vulnerable adult or place a vulnerable adult at risk of harm is low. The answer seems to be that very little proof is required.

The noble Lord, Lord Clement-Jones, mentioned the balance to which the Minister referred at the outset of his remarks, and I wonder about that. Nevertheless,

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in view of the time I do not propose to say more at this stage. I shall read the Minister's reply and reflect on it carefully, reserving the right to bring the matter back at a later stage. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Phillips of Sudbury moved Amendment No. 140A:

    Page 42, line 32, after ("resigned") insert (", been made redundant").

The noble Lord said: In moving Amendment No. 140A, I shall speak also to Amendments Nos. 142A, 142B, 142C, 144A and 144B, which address a single point. I hope it will be taken as a sign by the noble Lord, Lord Laming, and the Government that I have no partiality vis a vis this Bill; I want to see it succeed in its proper purposes.

One of the Bill's proper purposes, and an important one, is to protect vulnerable people of whatever age against maltreatment by whomsoever. In Clause 71 there is a gap in the duty to refer a case in relation to somebody who may not have been dismissed for misconduct; may not have resigned and may not have retired; but may have been made redundant.

I make clear at the outset that, whereas dismissal on its own can include redundancy, Clause 71 as drafted will not. The only dismissal referred to in that clause is dismissal for misconduct. If I can help the noble Earl, Lord Howe, I am confident that, in relation to the trouble he had with the words, "on such grounds" in Clause 71(2)(b), (c) and (d), they all refer to dismissal for misconduct.

We have the situation, therefore, where an employee could be made redundant in circumstances where, had he or she been dismissed, retired, been transferred or suspended, there should have been a reference to the Secretary of State, and where public interest declares that there should be a reference.

I may sound unduly cynical, but I fear that there are cases--the noble Lord, Lord Laming, referred indirectly to one such--where the proprietors of a care home and an employee may each have reasons, albeit completely different ones, for settling on redundancy as a means of ending an employment rather than on any of the other possibilities. For example, the care home proprietor may want to avoid potentially bad publicity from a reference being made. Though it may be said that the reference would be secret, there are many ways in which information can be leaked. If a local paper published the fact that there had been a reference, that would not be defamatory and would not breach any law.

Therefore a care home proprietor may want to hush up the circumstances in which he was getting rid of an employee. The employee would do a deal, go quietly, shut up and all would be well; the home would have got rid of a lousy employee but in circumstances where there would not be a reference. That is the point of these amendments. I beg to move.

Lord Laming: I support the thrust of these amendments in trying to fill another bolthole in which

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some people will seek to hide in order to avoid tackling some of these issues. Perhaps while I am on my feet I may apologise if I showed the impatience of which I was accused earlier.

Lord Hunt of Kings Heath: I am grateful to the noble Lord, Lord Phillips, for raising these issues.

Clearly our debates in this area are important in teasing out some of the concerns which reputable employers have about the Bill. It is my hope that in our debates we reassure those people that the Bill is workable and is able to be fair to all those concerned. As I said earlier, the intent is to issue guidance to employers when the scheme begins. I hope that in that guidance we can pick up some of the anxieties and operational issues which noble Lords will no doubt continue to identify during the course of this Bill.

Perhaps I may deal, first, with Amendments Nos. 142A, 142B and 142C. The noble Lord, Lord Phillips, not only put the point very well but also anticipated my response; namely, that I am certainly advised that redundancy is covered by the term "dismissal". Redundancy is one of the lawful means of dismissal. Therefore, the point in relation to the first three amendments is unnecessary. However, I take the point in relation to Amendments Nos. 140A, 144A and 144B. Indeed, we would clearly wish to avoid the circumstances described by the noble Lord in which an employer and a worker might collude to create an appearance of redundancy in order to evade the requirements of the Bill. I should like to take that matter away and give it further consideration.

Lord Phillips of Sudbury: I am grateful to the Minister for that response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 141 to 143 not moved.]

10 p.m.

Lord Phillips of Sudbury moved Amendment No. 143A:

    Page 43, line 14, at end insert ("if it appears to him that, unless such a listing is made, there will be a serious risk to a person's life, health or well being").

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 143B. Both these amendments go to the heart of arguably as important a single issue as there is in the Bill; namely, the proper balance to be struck between, on the one hand, protection of vulnerable people and, on the other hand, fairness to employees and workers.

On Second Reading, I believe I am right in saying that I was the only Member of this Chamber who raised this issue. Indeed, it was gratifying afterwards to hear from several other speakers who talked about other aspects in the debate that they were unaware of this problem. In all cases they supported the attempt that I was then making to persuade the Government to rejig the balance. I should also like to say how grateful I am to the Minister and his civil servants for affording me very open and helpful discussions. I hope that that practice will continue.

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I fully share the wish on the part of this Chamber to make the Bill as effective as it can be. I also fully accept the beneficence of the general thrust of the legislation.

The importance of any amendment is, of course, directly related to the scale of the problem that it addresses. Here we have an audience of 2 million--that is the best estimate that I can get of the numbers employed within the care industries which will be covered and governed by this piece of legislation. Many of those workers are in small units; indeed, sometimes two or three employees is not uncommon, especially in small care homes. Not many of those workers appear to be members of unions. Some are members of professional bodies, but most of them are not.

As far as I can see, most of those 2 million workers will come within the purview of the blacklisting procedure laid down in Clause 71; that is to say, first, they are people who have or are able to have regular contact with adults in care homes; secondly, those in clinics or hospitals--public or private; and, thirdly, those concerned with the provision of personal care for people in their own homes who are ill, infirm or disabled. As I mentioned when we discussed an earlier amendment, "personal care" is extremely wide and extends to those who merely give "advice and encouragement".

When the Bill talks of employment, it also uses that word in an abnormal way. I cannot find any precedent for the breadth of interpretation to be given to it, other than in the Protection of Children Act passed in the summer of last year. It will extend to unpaid workers, to those without contracts, to volunteers and to those who provide independent services--chiropodists to solicitors, one might say. It might even cover other groups who make regular visits to those in their community, for example people who provide meals on wheels.

Clause 71--the key clause--requires a person who provides care for vulnerable adults to refer to the Secretary of State, as we have heard, anyone dismissed for misconduct, whether or not incidentally that was misconduct in the course of their work. That is an important widening qualification. As we have also heard, "misconduct" is not defined; "harm" is. "Harm" in this Bill covers,

    "any ill treatment ... which is not physical".

It would, for example, cover verbal abuse or bullying. It could cover a nurse or an orderly who treated a patient unkindly so that that patient became distressed, even if the unkindness was confined to "sending the patient to Coventry", for example. It is necessary to get clear in our minds the wide scope of this provision in order to understand the deep importance of the issues.

As I say, the ambit of the Bill is vast. If anyone is blacklisted--I suppose that this is the heart of all this--the reputation and the career of that person are destroyed, not just hindered or undermined, but destroyed. In many ways the consequence of a blacklisting will in many cases be worse than

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conviction for a criminal offence, even though the standard or test by which someone is convicted of a criminal offence is that of "beyond reasonable doubt". As we have heard already in this Bill in relation to this provision, the standard test is one of civil liability; namely, a balance of probabilities. Indeed the language used in Clause 71 is that the Minister "is of the opinion"--an even lower test than others that one finds in comparable legislation. Therefore this measure could cover health visitors, domiciliary helpers, orderlies, meals on wheels providers, nursing auxiliaries, doctors, lawyers, financial advisers, masseurs or anyone else who provides services.

I do not criticise any of that. It seems to me to be fair enough to make the net wide. But if the net is wide, the safeguards against people being caught up in it unjustly must be rigorous. The effect of being put on the blacklist, as I have described, is devastating.

The heart of the inadequacy is the fact that the listing process does not give those listed any opportunity to cross-examine--whether themselves or by a representative--their accusers before being listed. Worse still, it does not even give the person to be listed the right to make oral representations. All that he or she can do is to submit written observations under Clause 71(5) to the civil servant charged with deciding whether he or she is to go on the blacklist permanently.

Let us imagine a straightforward case in which the proprietor of a care home says that Alice Brown has failed to do this or that as commanded, perhaps to help an old person to have a bath, or to lift them in a certain way, or to change the bed linen at a certain time, or to feed them in a certain manner, or to respond to their calls within a certain time, or to deal with patient paperwork in a certain way. Let us suppose that Alice Brown is in fact a conscientious nurse who has criticisms of the way in which the patients are treated in a particular care home. Let us suppose further that the proprietors resent and are defensive about the criticisms she voices. Particularly if the proprietors wanted to ensure that the nurse was got rid of before the one-year qualification period for protection against unfair dismissal, they might well be tempted to give her notice on grounds of misconduct--let us say, three or four minor departures from detailed instructions, even oral instructions, of the sort that I have indicated.

Whether the proprietors are officious and wrong-headed, or even calculatingly malicious, they could use the statutory duty under Clause 71 to refer the care worker to the Secretary of State. He would then be obliged, unless the details of misconduct do not even constitute a prima facie case, to put the worker on the provisional listing before deciding whether to make that permanent. At that moment the damage has been done.

Thereafter, as the Bill states, the civil servant is required under Clause 71(5) to pass the reference from the provider to the complainant and to give him or her the opportunity to submit written observations.

It is not a great feat of imagination to think of many so-called ordinary employees, most of them without trade union assistance, most of them not thinking to

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get professional help or perhaps being unable to afford it, making a pretty bad stab at written representations in response to the reference.

And what if the response, in any event, is a flat denial of the facts given by the proprietor or provider who has made the written reference? For example, what if they say that the instructions were never clear and that there were no adverse consequences to the patient? What if the person accused goes on to say that the real reason that she was got rid of was that the care home was badly run and she had spoken up about it? How does the poor civil servant in Whitehall resolve this? How on earth can a basic conflict of purported fact be resolved by a civil servant shuffling pieces of paper between the complainant and the complainee when he is sitting in Whitehall and seeing neither of them?

In previous debates the Government have made clear that they do not claim that the process leading up to the permanent listing is a full or rigorous test of facts; they do not claim that it is a test of merits. As I say, the Bill merely refers to the Secretary of State at the end of the process being "of the opinion that the (proprietors of the home) reasonably considered the worker to be guilty of misconduct". An opinion on an opinion without any test of the facts can destroy the career and livelihood of the person concerned.

Anyone who has had any part in judging disputes as to fact knows that it is utterly impossible to get anywhere near the root of the truth without an oral hearing. That is one of the basic rules of justice.

I hope your Lordships will think it worth while if I mention an opinion I have taken from Professor Jeffrey Jowell, QC, who is Dean of the Faculty of Law at University College London. I wanted an expert opinion on the legal merits or demerits of what we are debating. He is the co-author with the Master of the Rolls, Lord Woolf, of a standard work on administrative law. He said:

    "The basic principle is clear: No one should be deprived of a right, interest or even a legitimate expectation without a fair hearing. Taking the Secretary of State's (SOS) provisional decision first, the Bill clearly offends that principle. The question then is: Does the situation here fall within one of the recognised exceptions to that principle?"

Which are, firstly,

    "where the situation requires emergency action",

and, secondly,

    "where the decision is "preliminary" and will be followed by one where a fair hearing will be provided".

He gives cases before concluding that,

    "the Bill surely offends principles of English administrative law in respect of the SOS's provisional decision in its failure to provide a fair hearing to those included in the list".

What does he then say about the next step in the procedure, whereby the Secretary of State receives observations from the person accused? He says this:

    "Turning now to the SOS's final decision, after the investigation under s.71(5)(a) and (b), the question here is whether that investigation qualifies as procedurally fair. It seems clear to me that a decision of this kind ... carrying major implications in respect of a person's reputation, character and livelihood, requires

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    the fullest content of natural justice. That normally means an oral hearing, opportunity to call witnesses, the right of cross-examination, and even, possibly, reasons for decision".

I may say that I have been unable to find any comparable field in our legislation where there is no opportunity for oral representations or an oral hearing before someone is blacklisted in the manner and with the consequences that we are dealing with here. Solicitors and doctors, for example, have an elaborate tribunal system ab initio with a right of appeal to the High Court. Teachers are protected by elaborate disciplinary hearings, usually involving governors of schools, before they are ever dismissed or suspended or transferred. In any event, the relevant regulations of 1993 and the Education Reform Act 1988 to which they relate, overwhelmingly refer to cases where teachers have been convicted before a court of law for specified sexual offences.

I now turn to my amendments. They provide a new and reasonable, balanced and wieldy, practical set of arrangements. First, they give the worker or the provider, where that is relevant, an opportunity to make oral representations to the civil servant dealing with the matter. Secondly, subsection (d) gives the civil servant, at any point in his or her deliberations, the power and discretion to transfer the matter to the tribunal so that the tribunal can decide the matter, where he or she considers that that, in all fairness, should be done. Thus, two simple but powerful protections have been introduced for employees. But, I have also provided that, instead of people being put straight on to the provisional list, that action will be replaced by a situation where they go on to the provisional list only if it appears to the person looking at the matter that,

    "unless such a listing is made there will be a serious risk to a person's life, health or well being".

Those words have been carried from Section 18 of the Bill, which provides that protection for a care home in danger of being delisted. A justice of the peace must be satisfied of that situation before any delisting can take place. Is the Minister questioning that point? I think not.

The final link in this chain of reform that I have provided for is that, if a civil servant decides not to refer the case to the tribunal, the worker can request that it is passed to the tribunal. It will then be for the civil servant to decide, "Yes, in all the circumstances I think that is fair", or, if he declines to accept the request, the worker can make an appeal direct to the tribunal for it to hear the matter ab initio.

If I had been more zealous in advocating this course, I could have provided a more stringent set of protections for the worker. However, I believe that these provisions are fair. I have tried to make them both fair and practical.

In my final comments I will say only this. It is not simply a question of fairness to employees as against the need to protect the vulnerable old and young. At the root of this matter lies a crucial question of fairness towards those who sustain the whole of the care industry. If there is no fairness, then there will be repercussions in ways that one cannot quantify or

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foretell in terms of the calibre of people who will be willing to subject themselves to the risks which the present regime provided by the Bill represents. I need hardly say to any noble Lord in the Chamber that to be put onto this blacklist and to have one's reputation and livelihood simply terminated there and then is a risk that, in this day and age, most people do not want to contemplate. All those in the Chamber who know anything of the social work, teaching or care scenes, realise that false criticisms are not unknown. Deluded criticisms are common among the aged. I recommend to the Committee that whatever may have been passed in the Protection of Children Act, in the Bill before us we must get it right. I beg to move.

10.15 p.m.

Lord Jenkin of Roding: After such a formidable indictment of these clauses I need say only a few words. The noble Lord, Lord Phillips of Sudbury, has no reason whatever to apologise for going into the matter at some length. His has been one of the most powerful speeches I have heard in the House for a long time.

I had not appreciated quite how one-sided is the Bill. The noble Lord has drawn the issue to our attention in stark and compelling terms and I believe that the Government would be very unwise if they did not listen carefully to what has been said and to take the necessary action to ensure, as the noble Lord, Lord Phillips, pointed out, that fairness is shown to people whose lives may otherwise be totally destroyed.

As the noble Lord was making his case--I was following his arguments and his references to the clauses--one began to realise that one was catching echoes of the attack on paedophiles over the past 18 months and the extremely unpleasant cases that have come to light. We have had the strong public feeling that such people really should be dealt with very condignly and that there should be total protection for the children finding themselves in that situation. Somehow that attitude of mind has come over into this legislation, which, as the noble Lord said, is drawn infinitely more widely.

The noble Lord referred to two million people. I have not attempted to make the calculation myself. One knows that roughly one million people are engaged in the caring side and if one adds the National Health Service people and all the others who would be providing independent services, I am sure that that is the kind of figure it could be. One's mind boggles and one asks how on earth the clause has reached this stage without anyone raising the question of whether it will be fair to the people against whom these charges will be made.

The noble Lord, Lord Phillips, has performed an extremely valuable service. I hope that we shall get our teeth into this and hang onto it and that when the Bill finally leaves this House it will have had this manifest unfairness excised from it and a much fairer regime put in its place.

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