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Lord Phillips of Sudbury moved Amendment No. 113:


The noble Lord said: My Lords, I shall not this evening repeat many of the statements that I made in earlier debates on this crucial section because I

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apprehend that nearly everyone in the Chamber suffered my earlier effusions. None the less, I shall, if I may, make some detailed analysis of what we are contending with.

As will be well known to the Minister and to the House, we on these Benches consider that the blacklisting procedure laid down in the Bill--which is a precise copy of the one contained in the Protection of Children Act 1999--is seriously defective and apt to lead to serious injustice. That, we maintain, is not simply a matter as between the ex-employer and ex-employee; it is not merely, if one can use that word, a matter of protection of vulnerable adults; it is much more a question of how the whole of this blacklisting procedure will or will not broadly underpin the purposes of the Bill, to which all of us subscribe. As I have made clear in the past, it is our view that the set of procedures in Clause 72 leans over so far in favour of protection that in the long run it will undermine that very purpose.

Let me start by drawing the attention of the House to what must be proven in order for a provisional listing to take place, and then for a permanent listing to take place. That is the nub of all this. First, if one looks at Clause 72, one finds that the Secretary of State, through a civil servant, will have to consider the question of a provisional listing behind closed doors, without any reference at all to the person complained against, if I can use that phrase. It will be useful to talk about the "complainee", and the "complainer", being the ex-employer.

Then, under the terms of subsection (4), the Secretary of State will have to make a decision on the basis of the information submitted by the complainer--that is to say, the civil servant will. He cannot go any further; he cannot go back to the complainer; he certainly cannot go to the complainee. He must reach a decision which will have an instant and cataclysmic effect on the reputation and livelihood of the worker concerned. He or she will be instantly debarred from any further employment within his or her industry, if I can use that word. It may be someone who has spent 10 years gaining qualifications and experience; none the less, this procedure will debar him or her instantly.

We then come to the permanent listing criteria. When permanently listing, must the civil servant have been "satisfied beyond reasonable" doubt that the worker concerned had been guilty of misconduct and was no longer suitable to work with vulnerable people? No. Must the civil servant at least have been "satisfied" that the worker must be disbarred? Not even that. He need only be "of the opinion". Opinion as to what? That it is in the public interest that the worker should be disbarred? No. Is it an opinion that the ex-employer has fairly found the worker guilty of misconduct? Is it that test? Not even that. The test to be applied in deciding whether or not to permanently list is whether, at the time of the dismissal, the employer reasonably considered the worker guilty of misconduct--I emphasise "at the time of the dismissal"--so that, if new facts emerge during the

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course of this extremely truncated inquiry which cast severe doubt on the facts as they appeared to be to the employer at the time of the dismissal, those are irrelevant. He can only look at what was reasonably considered at the time of dismissal.

As regards the case where the employer subsequently hears of information which might--had the employer known about it, but which may not be fact--have led him or her to have considered dismissing the employee, the test is based on, first, the opinion of the Minister; and, secondly, on the conjecture of the former employer as to the risk of misconduct--not actual misconduct--which does not have to have been in the course of the employment; does not have to have involved physical harm; does not have to have been abusive and does not have to have been intentional.

We say that of course the law must be swift to protect vulnerable people. We have too many instances in our own times of severe misconduct on the part of those in whom great trust is reposed as regards looking after children and vulnerable old people. But what perplexes us is why this extremely flimsy framework of protection should be satisfactory to the Government in this Bill, particularly as in the self-same Bill a procedure is laid down as regards childminders in Clause 69 which, if passed, will see Part XA incorporated into the Children Act 1989.

There we see a set of procedures where there is no debarring of a childminder under Clause 69 without, first, an open court application to an independent justice of the peace where he or she will be able to cross-question the applicant in open court and where the applicant will not be, as may be the case here, a disgruntled former employer, but is, and has to be, an independent professional; namely, Her Majesty's Chief Inspector of Schools or the National Assembly of Wales, where, by dint of the registration procedure, he or she will have a great deal of knowledge of the childminder concerned and will have had inspections which would have added to that knowledge and where the test that the magistrate must apply before giving professional or emergency relief to the applicant is that the child is "likely to suffer significant harm" unless the application is granted.

The amendment that I recommend this evening is different from the one that I put forward with my colleagues in the past. It does not say that in the case of provisional listing the civil servant has to find that there is "likely" to be significant harm. I have conceded that in an effort to go towards meeting the Government in this matter. I have not included that test of likelihood, but merely that there is a risk that any person will suffer "significant harm" unless the provisional order is given. We believe that to incorporate the same phrase "significant harm" in circumstances where there is no open court hearing and no independent judge or professional applicant is the very least that this House should agree to in order to provide a minimal framework of protection for, in this case, vulnerable carers. The point is that we are all vulnerable to an unjust procedure. We believe that this procedure is just that.

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I suggest that the House looks with the greatest possible care at what the Government are trying to do through this Bill. In leaning over backwards, as we would say, to protect the vulnerable, the Government are abandoning some of the age-old common-sense criteria of fairness which have stood us in good stead not merely for decades but for centuries.

The Bill invites us to form the view that in protecting vulnerable adults to the hilt we must accept that a price may have to be paid, and we must accept too that that price may be--and we would say is bound to be--unfairness to workers. There are two assumptions which underlie this approach. First, that the civil servants involved will work fairly according to the extra statutory guidelines which the Government say that they will bring forward, and that this will make sure that all is well, and that anyway there will be a right of appeal to the Tribunal, after of course conviction for misconduct by the civil servants working in private, never seeing either party.

Secondly--and this is a favoured tabloid cry--I suspect there is an undercurrent of belief that innocent workers will have nothing to fear in all this. My answer to the first proposition, which is the bias in favour of the vulnerable, is that two grievous wrongs can never make a right. Whatever means we employ to deal with intolerable abuse of children and adults, it can never be right to do justice by them at the expense of justice to carers. For in the face of injustice, as I have said, we are all vulnerable. Furthermore, a society which takes short cuts with justice, for however worthy an end, undermines irreparably our own long-term health and vigour, on which of course the fate of the vulnerable particularly depends.

As for the adequacy of the blacklist procedures, it ill becomes the Government--the government which after all has been the author of the Human Rights Act--to plead the bureaucratic case, as I would put, that all will be well because the civil service will be fair. Civil servants are not gods. The burden placed on them by Clause 72 would need for them to be gods if they were to work it satisfactorily and fairly.

I must confess that I have not been able to find any parallel with the paucity of just protections that the Bill is providing in Clause 72. My objection has nothing to do with the ability or fairness of the civil servants who will operate Clause 72, it is simply that the process it provides is guaranteed to obstruct fairness.

Therefore, I conclude by saying that there are many variegated circumstances to which Clause 72 will apply. For example, it is a more open field than prevails in relation to schools. We are dealing here with thousands of small private homes and domiciliary care of all kinds, including charities, voluntary agencies. This is not like List 99 or the Consultancy Service Index, which is based upon highly and professionally regulated employment circumstances.

Perhaps I may just point out that the disincentive which I believe the Clause 72 blacklist will in time create against carers going into the field of care for adults is a real one. Today I met with the chief

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executive of the Scouts Association, who told me that the impact of the Protection of Children Act last summer is already being felt within the Scout movement. They have over 100,000 young people waiting to get into cubs and scouts troops who cannot engage in those extremely beneficial activities because there are no leaders to lead them. They say that one of the major causes of the lack of men and women coming forward to undertake those roles is the extreme jeopardy they feel. One element of that is, as I say, this Clause 72 procedure.

The other point is that the cost of Clause 72, as and when the new list is up and running, is likely to be utterly extortionate. I also refer to the opinion of Professor Jowell, to which I referred in a previous debate, in which, as one of the most distinguished administrative lawyers in the land, he opined that Clause 72 is offensive to basic human rights as laid down in administrative law.

For all those reasons and many more I urge the Government as strongly as I can to review this matter and come back to us at the next stage. I am grateful to the Minister for his patience in putting up with my advocacy between this debate and the previous one and indeed for that of his civil servants. But I do not apologise for pursuing this matter with a degree of intensity because I believe that a great deal hangs upon it--more than may currently appear to the Government. I beg to move.


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