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Safeguarding Vulnerable Groups Bill [HL]

My Lords, I should like to add my thanks for the helpful and detailed introduction that we have had to this Bill from my noble friend. It is also a particular pleasure to follow the noble Lord, Lord Laming. If I remember correctly, we first encountered each other 24 years ago when I was a newly elected chairman of a social services committee. The noble Lord, I think, was president of the Association of Directors of Social Services. Since then our paths have crossed on a number of occasions. I also declare an interest as an adviser to the computer company, Anite, which has had responsibility for preparing the software underpinning the violent and sexual offenders register. I know that it has some issues in respect of how these new arrangements might operate. However, my remarks are nothing to do with any concerns that it may or may not have about the proposals. I start from the basis that in considering this legislation we should have regard to the UN Convention on the Rights of the Child. The preamble of that has made it clear that by reason of the physical and mental immaturity of a child, children need special safeguards and care, including appropriate legal protection, which is underpinned in Articles 3 and 19. I mention that because it is important to understand why we need to have in this legislation provisions which may undermine the human rights of some individuals who may wish to work with children and, for that matter, other vulnerable adults. But there is no right for individuals to work with vulnerable adults or children. It is something that people can seek to do, but because of the responsibility that governments, local authorities and organisations that provide care to those groups have, there must be an acceptance that the levels of vetting of such individuals must be higher than would be the case in other forms of employment. I am pleased therefore that the Bill seeks to simplify the various systems of checks and lists—the Criminal Records Bureau, List 99, the Protection of Children Act list and so on. The Bill specifies four categories of activity that will lead to inclusion on the barred list in some or all cases. The first category is those who have done something in the past which will qualify them for automatic inclusion. There is a second category where inclusion is subject to consideration of any representations that they may make, but the presumption is very much that they will be included on the lists. The third category, where the IBB will have discretion, relates to behaviour which has not led to some form of conviction or caution. The final category—again, there is discretion here for the IBB—is where there is perceived to be a risk of harm. The first two categories are fairly straightforward. I am sure there will be some debate on which categories of offence should be in the automatic group and which should be in those where there is some element of discretion in the light of representations. The House will be able to look at those matters in detail in Committee and I suspect consensus can be reached. The third category is also relatively straightforward. There is no presumption of barring, but the IBB has discretion and the person has to be given the opportunity to make representations if they are being considered for barring. The issue will revolve around a pattern, or examples, of previous behaviour which, though not having led to a conviction or caution, provides some substance enabling the IBB to look at the individual concerned. Again, I assume that there will be some debate in Committee about what requirements will be necessary for that and what criteria the IBB should operate. I want to say more about the fourth category, where there is believed to be a risk of harm. My noble friend Lord Adonis talked about a significant strengthening of the previous provisions in this Bill. I have a lot of sympathy with what the Government are seeking to do here and I have some understanding of the dilemmas which are faced. If I can go back those 24 years, to when I was a new chair of a social services committee, I remember several instances when successive directors of social services would come to inform me of a particular concern about individuals employed by the local authority. This was not because of some known behaviour and it certainly was not because of some previous conviction which had not come to light and which would have led to dismissal or some action being taken. Typically, a professional of longstanding experience who was supervising the individual concerned would say, ““My professional experience tells me that the way in which that individual is relating to the child or the vulnerable adult in their care causes me concern. I cannot be more precise, but that is the sum total of my professional experience.”” Such cases happen. They are perhaps more frequent than your Lordships would necessarily assume and they are of course immensely difficult. I believe that where we take into account the UN Convention and everything else, we have a responsibility to try to resolve such matters. I know that the way in which my then director of social services resolved the matter was often rather crude and perhaps would not have stood up to too close a scrutiny in an employment tribunal. But it involved finding a way in which that individual was not put in a position of working closely with a child or vulnerable adult. Perhaps if that individual then left and applied for a job in a neighbouring authority and there was a request for a reference, some explanation or illustration might be given over the telephone. That would perhaps be more difficult today, given the requirements on the way in which one deals with employees and what can or cannot be said in references. Clause 27 tries to address precisely this issue. A regulated activity provider must provide the IBB with information in certain circumstances where the regulated activity provider,"““thinks . . . that the harm test is satisfied””." The harm test is that the individual concerned may, among other things,"““attempt to harm a child or vulnerable adult””." The key words are ““may attempt””, or think they ““may attempt””. Just to ensure that there are no problems:"““No claim for damages shall lie in respect of any loss or damage suffered by any person in consequence of the provision of””," such information. Perhaps it should do so, given that this is about something which it is thought might happen. For local authorities there is even the explicit statement in Clause 30(5) that,"““it is immaterial whether there is a finding of fact in any proceedings””." I start from the basis of believing that we need some way of capturing that professional feeling that people who have worked for a long time in a particular environment call upon when they say, ““I am worried about this individual””. However, I am conscious of the dangerous ground on which we tread in terms of the rights of the individual about which such statements are made. In the example I have talked about, the individual remained in employment, although perhaps not doing the job to which they were originally appointed. Further, my example did not rely on just one professional judgment. Not only was there the professional assessment of the staff supervising the individual concerned, but also the professional judgment of the director or assistant director of social services saying, ““In this instance, I have confidence in the supervisor who is making this judgment and my other knowledge of the circumstances suggests that we should take this seriously””. Under this legislation, in the circumstances of my example the local authority would be required to refer. I think that would be justified. But what is the IBB going to do with such information? The information essentially reflects someone’s subjective view of what someone else might do in the future. The board will notify the individual concerned, who in turn will make representations. No doubt those representations will say, ““I am shocked and horrified that this suggestion has been made. I have always worked with children and vulnerable adults and I would not dream of harming them under any circumstances””. How are the members of the IBB to resolve the situation? I pity them in having to face such dilemmas. I am sure they will be expert professionals with lots of experience, but when faced with written statements and even talking to the individual concerned, it will be very difficult to make a judgment. I have given an example from the point of view of a local authority social services department. Other providers, such as small businesses, may have only a handful of employees. There may not be a second professional who can validate what is being said. Moreover, there is the danger of the malicious referral. If a former employee has made your life a misery, once they have departed, what could be easier than blighting their life for ever by making such a referral? I am sure that we will return to these issues during the forthcoming stages of the Bill. Can my noble friend on the Front Bench tell us about the process to be used by the IBB in considering such matters? How will it consider them? What will be taken into account? Can additional inquiries be made, and if so, what sort of inquiries would they be? It is also clear that this is not a read-across from previous legislation. The Protection of Children Act 1999 talks about ““information””, as does the Care Standards Act 2000, while the Education Act 2002 refers back to both earlier Acts. Those were about information, not what someone thought. I believe that professional judgment may well be something which should be captured in the interests of protecting children, but how that is done, how it can be set out in legislation and provided for in guidance, is going to be extraordinarily difficult. I hope that my noble friend can give us some indication on how the guidance is to be prepared.