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Safeguarding Vulnerable Groups Bill [HL]

moved Amendment No. 42:"Page 38, line 39, at end insert—" ““( ) IBB must review the inclusion of a person on a barred list if that person was under the age of 18 at the time of inclusion.”” The noble Baroness said: Amendment No. 42 is a probing amendment to ascertain from the Government what arrangements are likely to be put into place to review the cases of those included on either or both of the barred lists, in particular the arrangements for reviewing the cases of those who were under 18 at the time of inclusion on either or both barred lists. Those who have been included on either of the lists before they reached the age of 18 should be entitled to have their cases reviewed as a matter of course, perhaps when they reach the age of 18. At that point, it should be determined whether they are still a risk to children or vulnerable adults. At Second Reading, the Minister said:"““we are considering the periods for which barring applies. It could apply differentially for older adults as opposed to those under the age of 25. Where young people acquire offences for conduct in their teenage years, but which on a reasonable assessment of their progress since it would be right to reassess, that reassessment can take place in a shorter period than would apply to those who are older””.—[Official Report, 28/3/06; col. 756.]" I am pleased that the Minister recognises the difference between behaviour that took place when a child was aged between 10 and 18 and behaviour by an adult, but can he give us some concrete assurances on this issue? At Second Reading, the Minister also set out the reassessment periods that he had in mind. I would welcome any assurances from him about whether reassessments will be applied retrospectively; that is, whether those who were under the age of 18 when placed on the current register will have their cases reviewed before being transferred to the new barring lists. Can the Minister clarify that situation? I would like also to speak to Amendments Nos. 44, 56, 58 and 59 in this group. Amendment No. 44 would allow the IBB broad scope to determine whether it is permissible for a person to apply for leave to review their inclusion on the barred list, and specifically whether,"““a ‘person’s circumstances’ can be given any interpretation, including the passage of time””." Paragraph 14 of Schedule 2 allows for review of entry on to a barred list with the leave of the IBB if it determines that the people concerned do not or no longer present any risk to children or vulnerable adults. While this means that someone who has been automatically placed on the barred list has the possibility of future reconsideration—I accept that—our concerns over automatic inclusion remain, as the possibility of future review does not mitigate against the absolute nature of automatic barring. However, we have had that debate on another group of amendments. Under paragraph 14(4)(a) of Schedule 2, leave to remove a person from the list cannot be granted unless the IBB thinks that a person’s circumstances have changed since their inclusion on the list. However, there is no definition of what constitutes a change of circumstances. The passing of time is not in itself a change of circumstance, which is why I felt it necessary to specify it in the amendment. However, if several years have passed since an event warranting inclusion on the list, and there has been no subsequent event or behaviour since then that would indicate that a person should remain barred, then it should be open to the IBB to take that into account. Will the passage of time be one of the criteria that the IBB may use in determining whether someone may have permission to apply for a review on whether he no longer presents a threat? If the Minister can give me that assurance, my amendment will not be necessary. Amendments Nos. 56 and 58 concern finding of fact. There must be an opportunity for those who become disqualified from working with children to appeal, and organisations must also be able to appeal against non-barring decisions. However, the Bill states that they can appeal only on a point of law. If that is the case, it inevitably extends errors of fact into fictitious errors of law, because people who want to appeal on a finding of fact will twist it, distort it and present it as an issue about a point of law rather than a point of fact on the basis that no reasonable decision-maker—and in this case the IBB—could reach the conclusion that it reached. A proper approach to applications for leave based on errors of fact would result in refusals of leave, which may be followed by judicial review of the refusal of leave. That is an expensive and entirely unnecessary waste of scarce resources. I should like to quote from a paper presented to us—which I quoted earlier—by Judge David Pearl, who leads the Care Standards Tribunal. He points out:"““The CST is a Tribunal of first instance, and it is important that the provisions of the Safeguarding Vulnerable Groups Bill fit into the philosophy of the draft Tribunals and Courts Bill, shortly to be published, and hopefully to be introduced into a future session of Parliament. The CST transfers to the DCA in April 2007. As currently drafted, Clause 4 provides the CST with the status, in this context, of a second tier Tribunal (similar to the Employment Appeal Tribunal)””." He also points out:"““Given the clear warning of Lord Laming, for example, in his contribution to the Second Reading of,""‘the danger of malicious allegations which can have a devastating impact on [employees] and their families’.—[Official Report, 28/3/06; col. 743.],""““it must be proportionate for there to be provision for a full merits appeal””—" in other words, finding of fact as well as points of law. He continues:"““The Tribunal feels that public confidence in the new measures would be seriously undermined if people felt themselves to have been unjustly included on the lists and complained that they had not had a full and fair hearing””," including the finding of fact as well as just points of law. On Amendment No. 59, it is important to enable a fair appeals process for someone to appeal from being barred on a point of fact. It is important that the composition of the tribunal that hears the appeal is broader than is currently intended; in other words, it needs to be closer to that of the IBB itself. As well as legal expertise, members would need to have the same range of expertise as is envisaged among the members of the Independent Barring Board, as we heard earlier. We have now received specific information from the Minister on the composition of the IBB. In order to review such decisions, it is important that the tribunal should have a similar range of expertise. I beg to move.