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Safeguarding Vulnerable Groups Bill [HL]

I am grateful to my noble friend for setting out some of the reasons why we are wrestling with this complicated issue and have not yet reached a firm decision. As I said earlier, in response to the noble Baroness, Lady Buscombe, we are giving intensive consideration to this issue of appeals on the basis of the finding of fact and I will report back to Members of the Committee before Report, setting out fully the conclusions that we have reached. The points made by my noble friend are part of the reason why we have to consider this further. There are also established rights of appeal on issues of fact and merit under the existing schemes, which we also need to take account of in reaching a final decision on what the appropriate grounds for appeal to the Care Standards Tribunal should be in respect of decisions taken by the IBB. I hope, therefore, that the Committee will accept my assurance that we will consider these issues further, including the points made by the noble Baronesses, Lady Buscombe and Lady Walmsley, and by my noble friend, and that there will be no need to press these amendments further. Amendment No. 58 would extend the appeals process in relation to the new scheme significantly, allowing for employers’ appeals against decisions not to include someone on the barred list, whether an employee, a former employee, job applicant or other person. This would introduce employer oversight of IBB decisions. I am not convinced that that is either necessary or appropriate. It is not necessary if the IBB is doing its job properly. We have given this matter much consideration, and we are not convinced that it would be appropriate for an employer to, as it were, have a right of appeal against an IBB decision, because we are not clear what new evidence employers would have to contribute once the IBB has received representations from all relevant parties, of which the employer would be only one, and has already come to a decision on the case. This amendment would draw employers into initiation of appeals when it was previously thought not appropriate for them to do so under List 99or the other regimes which are being subsumed within the new IBB arrangements. Nothing in the IBB’s decision not to bar an individual limits the right of a specific employer not to employ a specific individual. I should stress that point. It cannot be emphasised enough that a decision by the IBB not to bar someone is quite separate from the decision of an employer as to whether or not to employ them in the full knowledge of their past history, their suitability for employment and so on. We would expect employers to take their duties in that regard very seriously indeed, irrespective of any decisions of the IBB not to bar an individual. If the noble Baroness’s concern behind Amendment No. 58 is that the decision not to bar restricts the freedom of an employer not to employ, I can put on the record that that concern would be unfounded and that there would be no limitation on the power of an employer not to employ simply because an individual has not been barred. In relation to Amendment No. 59, tabled by the noble Baroness, Lady Walmsley, on the membership of the tribunal, our intention is that appeals should be considered by the Care Standards Tribunal, which was set up by the Protection of Children Act 1999 and currently deals, among other matters, with appeals against listing under several existing schemes. The president and chairmen’s panel members are appointed by the Lord Chancellor, and they must have a seven year general qualification within the meaning of Section 71 of the Courts and Legal Services Act 1990; in other words a qualification for judicial and certain other relevant appointments. The members of the lay panel are also appointed by the Lord Chancellor after consultation with the Secretary of State, in accordance with the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002. Under new arrangements made by the Constitutional Reform Act 2005, appointments to the Care Standards Tribunal will, in the near future, be made by the Judicial Appointments Committee. As the tribunal currently considers appeals from those included on the existing lists, its membership already contains a number of members with experience relating to vulnerable groups. When appointing a lay panel for a tribunal, regulations provide that the president must nominate members who appear to him to have experience and qualifications relevant to the subject matter of the case. We see no need to change those arrangements. We appreciate that it is important that panels considering appeals against decisions made by the IBB have the right experience and expertise in relation to each case being considered, and we will ensure that the existing legislation to provide for the Care Standards Tribunal lay panel membership is amended to include such additional expertise that is necessary for the tribunal to fulfil its extended remit. Amendment No. 57 has the intention of preventing the removal of a person from the barred lists following a tribunal decision to remit the case back to the IBB for a further decision. Under the amendment, the person would remain on the list until the IBB made that further decision. Under Clause 4(4), where the tribunal remits the case back to the IBB for a new decision, it also can direct that the person is not removed from the list, pending the new decision of the IBB. If it does not make such a direction, the person will not be barred, pending the decision of the IBB. We will make provision by regulations for the procedure of the tribunal and will ensure that, where the rights of a person are balanced against the protection of the vulnerable, full consideration is given to the facts of each individual case. Amendment No. 42 would remove the need for a person who was included on a barred listed when he or she was under 18 to seek leave of the IBB for a review of his or her inclusion. The effect would be that there would be no time restriction on when applications for review could be made in such cases; nor would the IBB be able to decline to carry out a review. We have gone a good part of the way towards meeting the concerns of the noble Baroness by making it clear, as I said earlier, that we intend to use regulations to make provision for a shorter review period of five years in the case of under 25s, in contrast to the 10 years that is envisaged for the over 25s. I hope that that meets the concerns of the noble Baroness. The amendment also opens up the possibility of speculative requests for reviews by those who were under 18 when they were included on the list, without the usual filter—which the process of leave is intended to provide—of having to provide information to the IBB which would indicate that a review was justified. The filter of requiring leave to make representations should continue to apply so that we do not leave the IBB having to conduct full reviews without a prima facie case having been made that there is new evidence that should be considered. We do not believe that it is necessary to require the IBB to hold reviews where there is no justification for doing so. Reviews should be based on evidence that the individual no longer presents a risk to the vulnerable and where there is no evidence that the person’s circumstances have changed since he was included on the list or since he last applied for a review. The board should not be required to hold what could be termed an ““empty review””. I hope that what I have said in respect of time periods after which a review would be permissible also helps to deal with Amendment No. 44, which would broaden the definition of a ““person’s circumstances”” to include the passage of time in relation to giving leave for reviews of a person’s inclusion on a barred list. If we changed the definition of circumstances to include time in the way that the amendment proposes, most, if not all, applications for review would have to be granted. Against that, paragraph 14(3) provides that a person may apply for leave only after the end of the minimum barred period. Paragraph 14(4) imposes a condition for the granting of leave that the IBB must be satisfied that the person’s circumstances have changed since inclusion. If the change in those circumstances was merely the passage of time, as this amendment provides, it is difficult to see in what circumstances leave for a review could be refused by the IBB, because, by definition, time would have elapsed. So the practical effect of this amendment would be undesirable in that it would do away with the ““leave”” filter in almost all cases. This should be taken in conjunction with what I said earlier about our determination to ensure that those who have committed offences for which they were included at a younger age would be eligible to apply for their cases to be reconsidered after five years. We appreciate the concern for the individual who has been included on a barred list; however, we feel that it is necessary in all cases to ensure that there is a proper balance and that the IBB is not required in all cases to entertain reviews, even when it is not persuaded on a prima facie review of the case being submitted that there are any new circumstances to justify such a review. I hope that that has dealt with the points which have been raised on this important debate.