Safeguarding Vulnerable Groups Bill [HL]

Any concerns raised by my noble friend, who has vast experience in this area, we take with the utmost seriousness. I have gone in some detail into the concerns that he set out at Second Reading on precisely this point. I am satisfied that the position that we have reached in the Bill is satisfactory when all the elements of the duty on employers to refer are understood. At Second Reading, my noble friend said that under Clause 27: "““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 last line is a direct quotation from Clause 27(4)(c). The clause then goes on to define the harm test with the five elements set out in subsection (5). My noble friend went on to say at Second Reading: "““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’””.—[Official Report, 28/3/06; col. 745.]" He then went on to point out that we are using the word ““may”” and thus talking about hypothetical future events. In that context, there is a subsequent provision in the Bill that: "““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. My noble friend then said: "““Perhaps it should do so, given that this is about something which it is thought might happen””,—[Official Report, 28/3/06; col. 745.]" in the future. We are talking about hypothetical situations that could, in those circumstances, be the cause of malicious or vexatious references to the IBB: a particular concern of my noble friend’s which has given rise to his later amendment. I believe we can meet him on that point. It would be a significant disincentive for uncorroborated allegations being put to the IBB that are malicious or vexatious if those making such allegations would be subject to claims for damages under amendments that I hope we can bring forward on Report. However, I would like to take my noble friend through Clauses 27 and 30, because, as ever when dealing with legislation of this kind, the situation is more complex than he set out on Second Reading. In order for an employer to have a duty to refer under Clause 27, it is not sufficient for subsection (4) to be satisfied. An employer must satisfy subsection (2) as well; that is, the employer must have withdrawn permission for P, the relevant person, to engage in an activity for a reason mentioned in subsection (4)—so, in practical terms, they must have dismissed them—or, if they do not withdraw permission for such a reason, but would or might have done so if P had not otherwise ceased to engage in that activity, that is the first condition that must be satisfied. I think my noble friend would agree that that is a very high threshold to meet. It is not simply a case of one or two freestanding allegations. Those allegations come into play only if Clause 27(2) is first met; namely, that the employer withdraws permission for P to engage in the activity for a reason mentioned in subsection (4), of which the harm test is one, or would have done so if P had not otherwise ceased to engage in the activity. There is a double test here, and the harm test, set out in subsection (5), needs to be seen in the context of the fact that there is a duty on the employer to refer only if they either have in effect dismissed the individual concerned or would have done so if the individual had not ceased to engage in that employment. With regard to Clause 30, which invokes the duties of local authorities to refer—wearing their social services hat, as distinct from their employer hat—there are again three conditions to be met. First, there is the conduct test in Clause 30(2) or, as my noble friend mentioned, there is the harm test, set out in Clause 30(3). As well as that test they must also satisfy the two conditions in subsection (4), which begins: "““The second condition is that the local authority think . . . ””." Those conditions are: "““that the person is engaged or may engage in regulated activity or controlled activity””," and: "““that IBB may consider it appropriate for the person to be included in a barred list””." The thresholds are higher than my noble friend may have feared, because in respect of the duties of local authorities as employers there are the requirements in subsection (2), and in respect of their duties to refer where they are not an employer there are the conditions set out in subsection (4). When it comes to the role of the IBB itself when cases are referred to it, its duty as a professional body in this area will be to gather all the available evidence, such as any police information, any other referrals and, in some cases, further expert opinion, should it believe that that would be relevant—such as, for example, a psychiatrist’s report. That whole dossier of information will then be considered by the IBB, which, as the Committee agreed yesterday, will have the necessary expertise to make judgments about the risk that the individual presents. We recognise that in some cases these judgments will be finely balanced, but that is the nature of the scheme and of the severity of the cases being considered. It is also a practical issue regarding the existing List 99, the Protection of Children Act list and the Protection of Vulnerable Adults list. That is precisely why we believe the IBB must contain the right mix of experts who will be qualified to make such decisions, including, as we discussed yesterday, senior individuals with extensive experience of social services in local government, who will bring to bear an expertise that I believe will be invaluable in making the kind of judgments that my noble friend highlighted. I am not in any way minimising the gravity of the issues that my noble friend raised. They are indeed serious, but I believe that the further conditions set out in Clauses 27 and 30, together with the appropriate professional judgments and processes conducted by the IBB, will meet the concerns that he raised, as well as the amendments I intend to bring forward at Report on vexatious or malicious allegations.