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Baroness Pitkeathley: My Lords, I hope that your Lordships will forgive me if I speak with rather more emotion than I am wont to do in your Lordships' debates. I have been moved to do so by the use of the words "serious injustice" and "instant and cataclysmic effect" by the noble Lord, Lord Phillips. As he was speaking, I was thinking of my years as a social worker in Manchester's Moss Side and in Basildon in Essex. I think very much of the vulnerable adults and children who themselves have had serious injustice meted out to them and whose lives have suffered an "instant and cataclysmic effect" because we were not able to bring such measures into play in order to protect them. Only last year I was contacted by the solicitor of a young man whom I supervised 35 years ago. He was trying to bring a case because his life had been seriously affected by the abuse he had suffered in a home. We all knew that he was suffering abuse but we had no means of bringing the abuser to book.
We all know that abusers currently evade the systems. We know that they abuse in one place and then go on to abuse in another because there is no follow-up system. It is essential that we have proper watertight systems to ensure that people do not escape checks. I am sorry to say it, but I believe that the amendment would seriously weaken our powers to stop the kind of abuse that I have seen in my professional life. I am desperate to ensure that it does not happen again. I agree with the noble Lord that we
must be swift and sure. But if a balance is to be struck, we must err in that balance on the side of the abused adult or child.
Earl Howe: My Lords, the noble Lord, Lord Phillips, has teased out some extremely important strands of this very complicated issue. The House will be grateful to him for that. I should begin my brief remarks by reiterating my wholehearted support for the principles and policies underlying these provisions of the Bill. What worries the noble Lord, Lord Phillips, and others of us is the scope for error and misrepresentation, whether innocent or malicious, on the part of the person referring someone's name to the Secretary of State. The result of such error or misrepresentation could be that a worker could find his or her name included on the provisional list quite unjustly and perhaps for an extended period. The Minister may be tempted to say to this that it is only a provisional listing. But we should not be in any doubt of the stigma that will attach to an individual in these circumstances or of the point of principle that this process contravenes; namely, that only an overriding risk to the public can justify the infringement of an individual's right to the normal freedoms, one of which is not to have his name officially and publicly blacklisted without at least a measured assessment of the evidence.
There are lines in the sand, sometimes not easy to determine, which should not be crossed in a free society. I am not convinced that the provisions of this part of the Bill fall on the right side of the line. The Bill takes the precautionary principle to the limit by seeking to protect the public in all conceivable circumstances of referral. Like the noble Lord, I question whether that is the right approach. The merit of the amendment is that it recognises the need to protect the public in cases where there is a risk of significant harm to vulnerable adults. The name of anyone who is seen to pose such a risk would be placed on the provisional list immediately. Those who clearly did not fall into that category--it is easy to imagine cases of misconduct arising from inexperience rather than malicious intent--would have their cases considered by the Secretary of State in the normal way, and their names would be included in the list if the conditions laid down in subsections (6) and (7) were met. I have no difficulty with that.
I realise that the amendment may be open to the objection that it poses questions of interpretation. That may be so. But the question is whether that is a price worth paying for the sake of avoiding injustice and the infringement of liberties. I believe that it is, and I urge the Minister to give this matter the most careful consideration.
Lord Rix: My Lords, first I pay tribute to the sterling work undertaken by the noble Lord, Lord Phillips of Sudbury, on behalf of Mencap during its recent transformation from an exclusively parent carer organisation to a body representative of people with learning disabilities. Last Saturday was an historic
climax to this important work when for the very first time people with learning disabilities took their place on Mencap's national assembly, or policy making body.In view of the noble Lord's efforts on behalf of Mencap, and his eloquent arguments in support of the amendment, it grieves me that as President of Mencap, having consulted my colleagues, I am unable to support the noble Lord's amendment. While I acknowledge his concerns and those of other noble Lords, I feel duty bound to examine the matter from the perspective of the welfare of vulnerable adults who receive care.
People with learning disabilities are especially likely to be abused for many reasons. These range from the general lack of value which society places on people with learning disabilities to the lack of choice and control that some adults have over their own lives, and more specific considerations such as the likelihood of living away from home and increased exposure to medication which has the potential for misuse. People with learning disabilities often rely on multiple carers in a variety of services and may face the additional problem of very limited ability to communicate about abuse.
A comprehensive register will offer comprehensive protection for vulnerable adults. That protection inevitably must be weighed against the civil liberties of individuals who are suspected of abuse. I believe that the Bill achieves the right balance. The Bill errs on the side of caution by placing known abusers, and those suspected of abuse, on the register but allowing a right of appeal to all and for evidence to be examined afresh and a detailed examination to be made of the way in which the decision has been reached. It is worth reminding noble Lords that there can be no laxity in these matters. The Bill has been assessed as being fully compliant with the Human Rights Act.
The noble Lord, Lord Phillips, has expressed to me concern about the impact of the stringent new measures on recruitment. He rightly recognises that many establishments already experience problems in filling care staff vacancies. However, I believe that any recruits deterred by the measures contained in this Bill should, in all probability, be deterred. There are many talented and dedicated staff working in the care industry. This legislation should ensure that even more join in future years. Quality needs to be preserved, not diminished. While recognising the strength of feeling on the matter, and indeed the complexity involved, I would, of course, expect the Minister to make a full assessment of concerns of the noble Lord, Lord Phillips. I await his response with interest.
10.30 p.m.
Lord Jenkin of Roding: My Lords, I have listened to this argument today as I listened to and took part in the corresponding debate in Committee. One thought crosses my mind. I would that there was a large audience listening to this debate of profound significance in which considerable differences of
principle have to be argued through and a conclusion reached. However, we are debating the issue at a late hour of the night, and largely talking to ourselves.I find myself leaning in favour of the arguments of the noble Lord, Lord Phillips of Sudbury. Perhaps I may address one remark to the noble Baroness, Lady Pitkeathley, and one to the noble Lord, Lord Rix. I address the noble Baroness. What on earth does one lose by inserting,
- "if it appears to [the Secretary of State] that, unless such a provisional listing is made, there is a risk that any person will suffer significant harm"?
I have, and have had over many years, enormous respect for the noble Lord, Lord Rix, and the work he has done through Mencap. I believe that he is being over-optimistic when he suggests that the existence of this draconian procedure for weeding out the people likely to abuse vulnerable people will encourage others to go in for that kind of social care. I suppose that in the very long run, if such a procedure leads to the drying up of the cases, the ending of the tabloid witch-hunts so that that aspect becomes as much part of our social history as the real witch-hunts of centuries ago, that belief is conceivable.
The Scouts may be only one example. I fear that there must now be many people who feel that there is a risk in dealing with children; that there is a risk in dealing with vulnerable adults: that someone, whether from malice or for whatever reason, will accuse an individual of being an abuser. Instead of being able to argue the matter, and to say, "This is not true. I am being wrongly accused. This is all entirely misconceived", that person will find his name whisked off to the Secretary of State and that he is on a black list before he has had an opportunity to do anything about it. I can conceive that younger people who may well have been attracted to the idea of entering this type of service would find that a very alarming prospect. Therefore, I believe that in an effort to go, as it were, over the top in order to protect vulnerable people, in the end one may do them more harm because it would be increasingly difficult to find people of the right quality to look after them.
I believe that importing, as the amendment does, the need for the Secretary of State to be of the opinion that there is a risk that a person will suffer significant harm is a very necessary test before a name goes on the provisional list. Therefore, I support the amendment.
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