Baroness Blatch: My Lords, the noble and learned Lord's response was partly helpful, but no more than that. At paragraph 53 of the portmanteau letter sent to me by the Minister, the noble Lord, not surprisingly, uses almost the same words as those just used by the noble and learned Lord. The noble Lord says:
"The Government are faced with a choice of options. As drafted at present, the Tribunal can only lift a disqualification order if it is positively satisfied that a person is suitable to work with children".
I understand that there is no appeal against this. If the tribunal comes to the wrong view and decides that someoneshould have a disqualification order lifted, that is the end of the matter and it is lifted. I have in mind the fact that members of a tribunal are not infallible: they can make mistakes. If that person goes on to display the kind of behaviour that presents a risk to other people, it seems to me that there ought to be some way through the judicial process to apply for reinstatement of the order. Such a matter would be in the hands of very responsible people, as set out in my amendment, and the tribunal would also have to take a view based on the evidence put before it.
However, in paragraph 54 of the Minister's letter, there is the most depressing sentence:
"This difference has a crucial impact on the process by which the Tribunal could reinstate the disqualification. In our view, this would represent a new disqualification".
So what? If it were merited, that would not be a problem; indeed, one would not need to apologise for it. In other words, such an order should only be made if the person re-offends. That is very cold comfort for the victim, or for those who are concerned about young people being offended against in this way. In the interests of protecting children, I really believe that the Government should reflect on the issue. I hope that they will do so. Icertainly intend to return to the matter on Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 33 [Conditions for application under section 32]:
Baroness Hanham moved Amendment No. 51:
Page 16, line 18, leave out ("he is released") and insert ("the sentence passed on him expires").
The noble Baroness said: My Lords, in this amendment we return to a matter that we tried to discuss in Committee; namely, the date at which the person who has been made the subject of a disqualification order can apply to have it reviewed. Under the terms of the Bill, this can take place under Clause 33(3)(a) after five years from the date of release from custody, or the date that the disqualification order was made, if the offender is under 18 years of age, and after 10 years if the person is over 18.
The amendment proposes that the date when application for review can be made should be five or 10 years respectively from when the sentence passed expires. We all know, especially as regards custodial
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sentences, that the term served is considerably less than the sentence imposed. In our previous discussions on the matter the Minister was at pains to explain that consideration should be given by the tribunal to the time that a disqualified person had been free, under supervision, in the community as part of his sentence, even though that time was well within the terms of the sentence. However, that time would inevitably be spent either on licence or under probationary supervision and as a result may well not accurately reflect the true nature of the person concerned.
As the Minister said on the previous occasion we discussed the matter--a statement with which I concur--the whole purpose of a disqualification order is to protect children. Rehabilitation of the offender may indeed be a purpose but under these circumstances it cannot be the primary requirement; the safety of children is. Therefore we believe that no abdication should be made until five or, respectively, 10 years after the sentence expires, following which, of course, the tribunal would still have to be satisfied--as we have discussed under a previous amendment--that the disqualified person had fully demonstrated he was no longer a danger to children. The purpose of the amendment is to change those timescales. I beg to move.
Lord Williams of Mostyn: My Lords, I am most grateful for the moderate way in which this amendment has been moved. At the risk of tedium I return to the rigorous nature of the two-stage process. As noble Lords know, first an offender must have leave from the tribunal to apply for review of the disqualification order. That is extremely important. It is a critical threshold to be overcome. That leave can be given only if the tribunal is satisfied that the individual's circumstances have changed sufficiently during the period in question to justify even reconsideration of the disqualification. The offender needs to get beyond that stage and still has positively to demonstrate suitability to work with children. If the tribunal is not so satisfied, it must dismiss the application. As the noble Baroness rightly said, the date we are talking about is the date at which the individual can first approach the tribunal; that is, 10 years and five years respectively. Therefore, first he has to obtain leave and then he has to demonstrate that he is positively suitable to work with children.
One of the difficulties we have encountered is that it is really the record in the community that matters, not what happens in prison. Again I think that we all in this House are uneasy in the knowledge that quite a lot of sex offenders are exemplary prisoners. That is one of the curiosities of the prison system. It is the record in the community that ought to matter, not what they did in prison.
There is one aspect that I need to draw to noble Lords' attention. It is not fundamental in what I suggest. The measure would mean that those who had received a life sentence--those eligible for life sentences can vary infinitely--would never be eligible to make the application we are discussing. Therefore I do not think that the spirit of our approach is entirely
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different. I think that the leave, the 10-year period and the strict onus constitute proportionate protection in these circumstances.
Baroness Hanham: My Lords, I am grateful to the Minister for his reply. I shall consider it carefully. I say only what is blatantly obvious; namely, that the people we are concerned about here are likely to be among the most serious offenders within the criminal justice system. To give way at any stage or to give any leeway does not seem either helpful or positive in terms of the protection of the children whom we seek to protect. The amendment would impose a statutory period at which the application for revocation could be made rather than--if I can put it this way--a "wobbly" time as everyone is released at different stages and spends a different amount of time in the community depending on the length of their sentence. As I say, I am grateful to the Minister for his response. I shall consider it further and perhaps return to the matter on Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 34 [Persons disqualified from working with children: offences]:
Baroness Blatch moved Amendment No. 52:
Page 16, line 46, at end insert ("or performs on a casual basis (whether for financial reward or not) any functions which would constitute work in a regulated position").
The noble Baroness said: My Lords, what I seek here is clarification--dot and comma, as it were--of the answers that we received in Committee. The noble Lord, Lord Bassam, said:
"The definitions in Clause 37--
that is now Clause 34--
"cover work of any kind, whether paid or unpaid. Any casual work that falls within the regulated positions defined in Clause 34 will be covered. I hopethat the noble Baroness will accept my assurance".--[Official Report, 4/10/00; col. 1542.]
I need to be convinced by references to the actual words that achieve that. We are concerned about people, both paid and unpaid, but in particular unpaid people, who work part-time with young people in a voluntary capacity, perhaps even in an honorary position. Often those peripatetic people are more worrying in terms of possible risk to children.
The Minister further said at col. 1542:
"The current definition will catch any casual worker who comes into regular contact with children".
I have read and reread the clause which is supposed to explain everything but I am not yet totally convinced about the matter. If the Government are right and anyone in a paid or unpaid position, voluntary, regular or irregular, who comes in contact with children on a regular basis and gives cause for concern is caught by the measures of the Bill, I shall rest assured. However, the reply I was given on 4th October did not do that. I look to the noble and learned Lord to put that right. I beg to move.
Lord Williams of Mostyn: My Lords, the noble Baroness's request is a perfectly reasonable one.
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I invite her to look at page 21 of the Bill. Clause 39 is headed "General". I hope that I can give her the answer she seeks. Line 25 of page 21 states:
(a) work of any kind, whether paid or unpaid and whether under a contract of service or apprenticeship, under a contract for services, or otherwise than under a contract ... and 'works' is to be read accordingly".
Clause 34(1) states at page 16:
"An individual who is disqualified from working with children".
We need to read Clauses 34 and 39 together. It seems to me that the work definition in Clause 39 is wide enough, apt enough and appropriate enough to meet the noble Baroness's concerns. I hope that my answer has been of assistance and that it is a helpful answer to the question that she most reasonably put.