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Lord Phillips of Sudbury: My Lords, before the Minister concludes, can he say how the civil servant will judge whether someone is suitable to be a care worker, without interviewing that person?

Lord Hunt of Kings Heath: My Lords, the whole basis of these arrangements rests on the paperwork

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that will be provided and upon which a judgment can be made as to whether the employer has acted reasonably on the basis of the disciplinary procedures. The tribunal exists to allow for a full hearing of the facts.

Lord Phillips of Sudbury: My Lords, I am grateful for the Minister's explanation of his unwillingness to accept my amendment. I have to say that his final comment does not deal with my point. In seeking to judge the second limb of the judgment--the first is the reasonable dismissal and the second is whether the worker is suitable to work with old people--I do not know of any employer on earth who would seek to make that judgment without seeing the person in respect of whom the judgment is to be made. I should have thought that that, of itself, would work in favour of this amendment.

However, I have to accept what the Government have said. I believe that the argument about the delay is a canard; indeed, it is up to the complainee to decide whether or not he wants to risk delay by going to see the civil servant exercising such huge powers. As regards employment law protection, I have made it clear again and again that the workers who are at most risk under this procedure of victimisation by employers are those who have not yet reached the stage of being protected by the employment law because they will not have served a full year in employment. I am most disappointed.

Lord Hunt of Kings Heath: My Lords, will the noble Lord accept that the remaining provisions in the Bill will ensure, through registration by the national care standards commission, that employers do have proper provision in place to deal with such issues?

Lord Phillips of Sudbury: Yes and no, my Lords. Even under the most fulsome codes of arrangement in, for example, dismissal, the noble Lord will find that gross cases of employee failure or breach permit the employer to sack the employee instantly. There will be cases where that will happen within the code that the Minister has said will be laid down by the Government in guidelines and, therefore, the people about whom we are concerned will not be protected. Moreover--and I return to the issue--if someone has served under one year in employment, his protections will be sketchy in any event.

Lord Hunt of Kings Heath: My Lords, the whole basis of the Bill is the effective regulation of the establishments about which we are talking. Through the national care standards commission we can ensure that the proper procedures are in place to deal with such issues. This will not be guidance; it will be effective regulation of the care sector. The very reason for having this Bill is to deal with the sort of homes that the noble Lord has mentioned. We must see this as a package of measures.

Lord Phillips of Sudbury: My Lords, I am trying hard to do so. However, as someone who has practised

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the law for 35 years, I must make the point that it is all very well for the Minister to say that the Government's guidelines will provide a system of adjudicating disciplinary procedures should one of these clashes arise; but it will be a disciplinary procedure exercised, run and decided by the employer. We have an independent employment appeals tribunal because such clashes will be between the employer and the employee. If there is unjustness in the way that the employer is exercising those disciplinary rights, the employee will not be able to go to the tribunal and will not, we believe, receive adequate protection under the Bill. That is why we persist in thinking that this is an important matter, which goes to issues of victimisation and, ultimately, to the confidence of employees in the whole procedure. However, I beg leave to withdraw my amendment, while expressing the reservation that I may wish to revisit the matter at the next stage.

Amendment, by leave, withdrawn.

[Amendment No. 115 not moved.]

11.15 p.m.

Clause 73 [Employment agencies and businesses: duty to refer]:

[Amendment No. 116 not moved.]

Clause 75 [Applications for removal from list]:

Lord Hunt of Kings Heath moved Amendment No. 117:


    Page 46, line 24, at beginning insert ("Subject to section (Conditions for application under section 75),").

The noble Lord said: My Lords, we return to further discussion on protection of vulnerable adults. Amendments Nos. 117 to 122 concern applications by listed people under the protection of vulnerable adults scheme to have their names removed from the list. At present anyone so listed can apply to have his or her name removed after being listed for a period of 10 years. That means full listed for 10 years: any period of provisional listing does not count for these purposes.

We are proposing easements to this scheme. First of all, we have an amendment to allow the tribunal to grant leave to an individual to be able to seek a review not just once after the first 10 years, but to be able to apply for review at subsequent 10-yearly intervals. I believe that that reflects our discussions on the then Protection of Children Bill as it progressed through the House. I am glad that we have been able to make that change.

In our discussions on the Protection of Children Bill, the noble Earl, Lord Howe, raised the issue of young workers who might be affected for life by being placed on the list. We certainly think that in those cases the option of a review after 10 years could be too harsh on a worker who was aged under 18 at the time of listing. These young workers would have been juveniles at the time of their listing. We are therefore bringing forward amendments to provide for such young workers to be able to apply to have their names removed from the list after a period of only five

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years--and, again, at five-yearly intervals. We think it right to make this distinction between workers listed as juveniles and those listed as adults.

There are two other amendments in this area. The first requires the listed person to prove that he is suitable to work with vulnerable adults before his name is removed. At first sight this might appear to be lessening the rights of the listed person. However, we think it right in these instances that the individual should take on the burden of proving that he is now suitable to work with vulnerable adults. He will be at an advantage over anyone else seeking evidence about his life since he was listed.

The other amendment allows the tribunal to remove a person from the list only where his circumstances have changed in such a way that it is proper that his name should be removed from the list. With these amendments we think that we have achieved a proper balance between the protection of the public and the rights of the worker when it comes to considering removing workers' names from the list.

We are also making amendments to Schedule 3. Amendment No. 203 allows the tribunal to obtain the evidence it needs for the purposes of a review. Amendment No. 204 requires the Secretary of State to consult the National Assembly for Wales before he makes regulations on related matters which will affect Wales.

In the protection of vulnerable adults scheme we are seeking to identify individuals who harm vulnerable adults and ban these individuals from the workforce. Since the Bill was last in your Lordships' House, we have further considered the definition of "harm". We are now putting forward Amendment No. 149 to provide for an extended definition of "harm" that takes into account the particular needs of adults who are mentally impaired. Amendment No. 150 provides a definition of what we mean in this Bill by an adult who is mentally impaired. I beg to move.

On Question, amendment agreed to.

Lord Hunt of Kings Heath moved Amendments Nos. 118 to 122:


    Page 46, line 24, leave out ("has been included (otherwise than provisionally)") and insert ("is included").


    Page 46, line 25, leave out ("for a continuous period of at least ten years").


    Page 46, line 30, leave out ("not").


    Page 46, line 30, leave out ("remains") and insert ("is no longer").


    After Clause 75, insert the following new clause--

CONDITIONS FOR APPLICATION UNDER SECTION 75

(" .--(1) An individual may only make an application under section 75 with the leave of the Tribunal.
(2) An application for leave under this section may not be made unless the appropriate conditions are satisfied in the individual's case.
(3) In the case of an individual who was a child when he was included (otherwise than provisionally) in the list, the appropriate conditions are satisfied if--
(a) he has been so included for a continuous period of at least five years; and

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(b) in the period of five years ending with the time when he makes the application under this section, he has made no other such application.
(4) In the case of any other individual, the appropriate conditions are satisfied if--
(a) he has been included (otherwise than provisionally) in the list for a continuous period of at least ten years; and
(b) in the period of ten years ending with the time when he makes the application under this section, he has made no other such application.
(5) The Tribunal shall not grant an application under this section unless it considers--
(a) that the individual's circumstances have changed since he was included (otherwise than provisionally) in the list, or, as the case may be, since he last made an application under this section; and
(b) that the change is such that leave should be granted.").

On Question, amendments agreed to.

Clause 85 [Welfare of children in boarding schools and colleges]:


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