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Lord Phillips of Sudbury: My Lords, I am grateful to the Minister for explaining so clearly where the Government stand. I am grateful, also, to other noble Lords who participated in this mini-debate.

I have to say that I think there has been some misunderstanding, particularly on the part of the noble Lord, Lord Warner, as to the circumstances in which the procedure starts to roll. In many of the smaller homes and institutions there will have been no procedure, no protection, no tribunal, just a sacking. We are all at one that where that sacking has been for good reason it is entirely right that somebody should be put on the provisional list if there is, indeed, significant harm in prospect for old people. However, the whole point of the amendment and the concern on this side of the House is in respect of those cases where the sacking or suspension will not have been fair. Where it has not been fair, where there has not been a tribunal and where, therefore, the care worker has been unjustly dealt with, the provisional listing procedure will not apply. There will be no reference to the worker concerned. Unlike the childminding provisions and, indeed, the emergency protection orders for children, there will be no independent judge and no threshold, significance, seriousness or likelihood. That is why we have pressed the matter so hard.

Speaking for my own part, I confess that I remain unconvinced that the protections provided by the section dealing with childminders should not be applied in this circumstance also without any damage to the purposes we all share.

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However, one must leave it at that. I shall withdraw the amendment but reserve the right to bring it back at the next stage of debate when more noble Lords will be in the House to participate. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

11 p.m.

Lord Phillips of Sudbury moved Amendment No. 114:

    Page 43, line 46, at end insert--

("(c) afford the worker and the provider an opportunity to make oral representation to him; and
(d) if at any stage he considers that the reference ought in fairness to be determined by the Tribunal, notify the parties and transfer the same to it.").

The noble Lord said: My Lords, in moving this amendment, I can be a great deal shorter. It proposes to introduce two additional paragraphs to Clause 72(4). I hope that their intention is clear.

As I have already explained, we are anxious about the difficulty of the task given to the civil servant here. He or she must deal first with provisional listing and then with permanent listing. To those noble Lords who rest content at the thought that there is in place a right to appeal to a tribunal, I put it to them that in the interim the person concerned will have lost his or her career and reputation.

Although it is true that the list is not made available for public inspection, it must be searched by everyone who is considering employing anyone in the care industry. For that reason, the list will quickly become public knowledge and as such will be open, for example, to local newspapers to report with impunity. We feel, first, that it will be of great help to the civil servant concerned if he or she gives both the worker and the provider an opportunity to make oral representations. Secondly, if the civil servant considers that the matter is mired in complexity by being presented with two conflicting versions of the truth, reality and facts of the case, he or she can then, without more ado, refer the matter to the tribunal so that it can deal with it.

Perhaps I may make two further points. First, in the course of undertaking the Herculean task provided under Clause 72, the civil servant must try to weigh up whether the worker is suitable to work with vulnerable adults. Frankly, I cannot see how anyone can sensibly reach such conclusions without having had an opportunity to meet and speak to the worker concerned. Secondly, Clause 72(6)(a) stipulates that when considering permanent listing, the civil servant must consider not only information submitted with the reference from the complainant, and any observations submitted to him by the counter-complainant, but also,

    "any other information which he considers relevant".

The Bill offers no guidance as regards the basis on which the civil servant should search for such "other information". I put it to the Minister that it may be extremely helpful, when exercising that particular power, for the civil servant concerned to have an

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opportunity to meet and speak to the complainant and, indeed, the counter-complainant. On purely practical grounds--and very much in the spirit of what the Government seek to achieve here, and consistent with the protestations made by the Minister of the Government's wish to play fair--I hope that the Minister will consider that Amendment No. 114 represents an improvement. I beg to move.

Earl Howe: My Lords, having added my name to this amendment, I should like to emphasise to the House that I am in complete sympathy with the proposals made so eloquently by the noble Lord. I hope that the Minister will consider these proposals seriously.

Lord Hunt of Kings Heath: My Lords, let us continue the debate. Perhaps I may reflect on the proposed scheme. The intention is that the Secretary of State will write to the individual seeking his comments on the referral. He may seek the individual worker's comments again where there are clear discrepancies between the employer's referral and the worker's comments. All comments made by the worker on the referral will be taken into account when the Secretary of State comes to make his decision on whether to list an individual permanently.

It is important to remember that a person who has been referred to the list will be considered for permanent inclusion only after the employer's disciplinary procedures have been completed. I think that it is most important to stress that. At that stage, the worker would have been able to put his case in full. The Secretary of State makes his decision based on the outcome of that process.

Lord Phillips of Sudbury: My Lords, I am grateful to the Minister for allowing me to intervene. Does he accept that in many cases there will be no disciplinary procedure?

Lord Hunt of Kings Heath: My Lords, I intended dealing with that a little later when dealing with the second part of the amendment. Essentially, the Bill will ensure that in the future all establishments that are regulated under its provisions will have to have employment procedures that are up to scratch. But perhaps I can come back to that.

What I was going to say in relation to oral representations was that, based on what I have just said and the fact of the ability to appeal to a tribunal, that is the stage when it is appropriate for oral representations to be made; that is, where a tribunal conducts a full investigation of the facts and where oral representations will be a key part of that. I believe also--the noble Lord referred to the practicalities of this--that if we were to add the right to make oral representations after written representations, it would lead to the listing process taking longer, so effectively delaying the time when the Secretary of State makes his decision, in turn leading to delay in the time a person can apply to the tribunal. That is a factor which should be considered.

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I turn to the second part of the amendment in support of an earlier reference to the tribunal, in the protection of vulnerable adults scheme. We feel it is right that the Secretary of State should be able to come to a decision based on the employer's reference and the worker's comments on it. It will then be for the worker to choose whether or not he wishes to make an appeal to the tribunal against any decision by the Secretary of State to include him in the list of people banned from working with vulnerable people.

Let me come to the substance of the concerns raised by the noble Lord in relation to the employment practice of some of the establishments to be regulated under the Bill. It is worth making the point, first, that many employees will be protected by employment law and will have the opportunity of going to an employment tribunal if they consider that their employer acted unfairly against them. But it is important also that all services covered by the protection of vulnerable adults scheme will either be subject to registration by the national commission for care standards or be subject to direction from government--for example, in the case of the National Health Service.

Through those mechanisms it is possible for us to require employers to have proper procedures in place to deal with disciplinary action against employees, either through registration requirements or directions. The effect of that will be that a worker referred to the list will have more than one avenue to pursue if he thinks that the referral is wrong and he is being badly treated.

In addition, under the Bill as currently drafted, if the Secretary of State is unable to form the opinion both that the employer's view of the facts is reasonable and that the person provisionally listed is unsuitable to work with vulnerable adults, then he will have to remove him from the list. It appears to me that the amendment would actually lessen the protection for a provisionally listed person in that it allows him to remain on the list pending a tribunal hearing even where, for instance, the Secretary of State cannot say that the employer was reasonable to conclude that he risked harm to a vulnerable adult.

The procedure that we are proposing whereby the Secretary of State simply confirms or ends listing following written observations, following the process undertaken by the employer which will be subject to registration by the national commission for care standards or to direction by government in the case of the NHS, ensures that cases will be decided on a reasonable basis, and that at the end of day we keep the balance that is so very much needed in all these arrangements.

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