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Safeguarding Vulnerable Groups Bill [HL]

moved Amendment No. 18:"Page 34, line 9, leave out paragraph 1." The noble Baroness said: I shall speak also to Amendments Nos. 22, 28, 29, 33 and 39. I will divide my remarks into the three pairs of amendments that naturally fall together. First, I shall speak to Amendments Nos. 18 and 29, which would remove the automatic inclusion provisions for the barred lists for children and for adults so that regulations can list only offences or orders that will allow the opportunity to make representations to the IBB and appeal on points of law. I say at the outset, as I did at Second Reading, that any changes that I propose to the Bill are done in the spirit of improving it and not weakening its power to protect either children or vulnerable adults. If I thought that any of my amendments on the basis of human rights actually weakened the powers of the IBB and of the lists, I would not be tabling them. For each of the two lists, the offences and types of behaviour effectively form a sliding scale of seriousness, and the manner in which the IBB deals with each case depends on which category the behaviour falls into. For the two most serious categories, automatic inclusion on the list, which is covered in paragraph 1, and inclusion subject to consideration of representations, covered in paragraph 2, the types of behaviour will be detailed in regulations made under Schedule 2(19). Paragraph 1, on automatic inclusion, does not allow any representation to be made and is exempt from the appeal process set out in Clause 4. The absolute nature of this bar may very well breach the European Convention on Human Rights and be subject to challenge under the Human Rights Act 1998. I fully support the principle of the vetting scheme introduced by the Bill, and I would not wish to see it falling foul of a successful challenge under Article 6 of the convention, on the right to a fair trial. An effective vetting scheme under the IBB, which will be well set up and staffed by suitably experience professionals, should not need to introduce an absolute bar, as it would ensure that no one unsuitable to work with children or adults could do so, as much as is humanly possible. It would be extremely rare for the IBB to consider anyone convicted of or cautioned for an offence listed under the regulations currently leading to an automatic bar as a suitable person not to be barred. Having set up the board and given it power, we should leave it to the board. Otherwise, it smacks of ministerial interference, which is what this whole package has been set up to avoid. Article 6(1) of the European Convention on Human Rights requires that:"““In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law””." In considering whether the Bill contravenes the Human Rights Act, the first issue is whether IBB vetting would be considered a determination of civil rights or obligations. The Explanatory Notes seem to anticipate that Article 6 will be engaged, and ECHR case law seems to support this assumption, as there has been a succession of cases in the European Court of Human Rights establishing that professional disciplinary tribunals engage Article 6 as a determination of right to practice a profession; and that decisions about granting or withdrawing licences engage Article 6, as they affect the right to engage in commercial activity. If it is accepted that the vetting scheme engages Article 6, there must be concerns about compliance. Article 6(1) clearly provides a right to a public hearing, described as a ““fundamental guarantee””, the purpose of which is to protect litigants from,"““the administration of justice in secret with no public scrutiny””." Case law has established that any procedures where civil rights are determined without ever hearing the parties’ submissions are clearly incompatible with Article 6. I have serious doubts about the compatibility of the absolute bar, and would not wish to see it resulting in ECHR incompatibility and thereby challenged. Its removal would not affect the safety of children or vulnerable adults adversely. I trust the IBB to make the appropriate decisions in determining whether someone should be barred. This view is supported by his honour Judge Pearl in his comments representing all the judicial and lay members of the Care Standards Tribunal, which he chairs. He said that there must be considerable doubt as to whether Clause 4 is ECHR compliant, and he made reference to the most recent ECHR decision that has touched on the issue, Thaler v Austria, in 2005. The court said:"““The Court recalls that in order to establish whether a tribunal can be considered as ““independent””, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence””." We will come to the appointment of the IBB later, as proposals have been made outside the Bill. Amendments Nos. 22 and 33 are probing in nature at this stage, to ascertain from the Government whether there are any special measures in place for children aged between 10 and 18 who may be placed on the barred list. These amendments would ensure that such children cannot be included automatically on either the adults’ or the children’s barred list. Under-18s would therefore always have the opportunity to represent themselves, or be represented, to the IBB, as to whether they should be included on the list. The IBB should therefore consider whether the person is under 18 in its decision-making process, and the rest will follow. These amendments are particularly important while the IBB’s decision-making process has not been fully determined. As the Minister said, it will determine its processes for itself, once it is set up. Therefore I seek clarification on how the new lists will work in relation to under-18s. I am particularly concerned about two situations which could mean that a young person is placed on the barred list, but where there could be scope for further consideration of whether their behaviour is likely to have a wider and ongoing impact. These situations are, first, consensual sexual relationships where the parties are close in age but one is below the age of consent, such as a 17 year-old boy and a 14 year-old girl; and, secondly, young people who display sexually harmful behaviour. The Minister will know that there are many services whose work with children and young people who display sexually harmful behaviour is based on the best evidence of what works to retrieve the situation. In the past, it has been assumed that children and young people who present with sexually harmful behaviour were at risk of reoffending. This is not the case for the majority of young people. Research shows that targeted intervention can be highly effective in reducing risk, even for those children and young people who are at a higher risk of continuing harmful behaviour—people at the top end of the spectrum. However, while some young people who display such behaviour are then caught up in the criminal justice system, that should not lead to their being automatically included on a register of those barred from working with children and vulnerable adults. Will the Government consider how the vetting and barring processes will work in relation to children aged between 10 and 18? Amendments Nos. 28 and 39 would remove the category of ““risk of harm”” from the children’s and adults’ barred lists so that assessment of whether a person will be a risk to children or adults other than by way of conviction, caution or order listed in regulations is based only on assessment under the ““Behaviour”” criteria set out in paragraph 3 of Schedule 2. Entry on the barred lists—the ““Behaviour”” and ““Risk of harm”” provisions—does not require criminal conviction or caution. As a consequence, the IBB is given greater discretion. There is no presumption of entry. Instead the IBB is given the option and the person must be given the opportunity to make representations. Paragraph 3 covers a range of behaviour listed as ““relevant conduct””, including behaviour endangering or likely to endanger children, that which would endanger if repeated against a child, child pornography or conduct of a sexual nature. Clearly, it is appropriate to allow the board to bar people as inappropriate to work with children even if they do not have a conviction or caution. I agree absolutely with that. However, it is not clear what purpose is served by the ““Risk of harm”” provisions in paragraph 5. What kind of situations does this category intend to cover? Presumably, any assessment of risk of harm must be based on previous behaviour, otherwise I cannot see how any reasonable determination of risk could be made. If the assessment is based on previous behaviour, I presume that it would be covered by the behaviours listed in paragraph 3 and the person would be caught up in those provisions. Conversely, any assessment of a future risk of harm not covered by paragraph 3 must be based on behaviour that has not endangered a child, involved child pornography, or involved inappropriate sexual conduct towards a child, and so forth. To bar someone from working with children or vulnerable adults on the basis of something they might do in the future will inevitably raise concerns about inappropriate barring. Condemning someone on the basis of something they might do opens up a major debate to which Members of the House are no strangers. We had it in 2003 when we debated the dispersal powers in the Anti-social Behaviour Bill. When I raised this matter during a meeting with Peers which the Minister was kind enough to arrange, he suggested that he would look into it and respond in Committee to my questions with reassurances that we are not talking only about behaviour that would not be picked up by the ““Behaviour”” paragraph, and that we are not just talking about things that people might do but for which there is no real evidence. It is very important that, while protecting children and vulnerable adults, we do not throw away the baby with the bath water. Human rights are the basis on which all the civilised provisions that this and any other government bring forward in your Lordships’ House. We must never forget them, even while we are doing our very best to protect those who need our protection. I look forward to the Minister’s response and I beg to move.