|Membership||What's Happening||Committees||Publications||Assembly Commission||General Info||Job Opportunities||Help|
This report was not approved formally by the Committee prior to the suspension of the Assembly on 14 October 2002, but is published by order of the Speaker.
Committee for Health,
Wednesday 2 October 2002
MINUTES OF EVIDENCE
Protection of Children and Vulnerable Adults
Dr Hendron (Chairperson)
Mr J L Clarke ) Department of Health,
The Chairperson: Welcome Mr John Clarke and Ms Eilis McDaniel from the Department of Health, Social Services and Public Safety. Do you have any comments to make on the remarks of Det Chief Insp McCauley?
Mr Clarke: No. His explanation of North/South relationships and with regard to the armed forces concurs with our understanding. The commencement of Part V of the Police Act 1997 would be of great assistance.
Clause 1 (Duty of Department to keep list)
The Chairperson: Clause 1 imposes a duty on the Department to keep a list of individuals who are considered to be unsuitable to work with children. It also enables the Department to remove a person from the list if it is satisfied that they should not have been included in it. The Committee received no comments on this clause from the various bodies consulted.
Mr Clarke: An issue will be raised later as regards the two lists, so the clause may be changed slightly.
Question, That the Committee is content with the clause, put and agreed to.
Clause 2 (Inclusion in list on reference following disciplinary action, etc)
The Chairperson: Subsection (2) details the conditions that must be fulfilled before an organisation can make a referral. Definitions of childcare organisation and childcare position are given in clause 18. Barnardo’s, the Children’s Law Centre, the Nexus Institute and the Down Lisburn Health and Social Services Trust suggested that the Department’s definition of organisations with a statutory duty to refer individuals found to be unsuitable to work with children was too limited due to the discretionary nature of the referral for non-childcare organisations.
The Children’s Law Centre recommended that all organisations employing staff and/or volunteers who have regular contact with children and young people should be obliged to carry out regular checks and to make referrals. It stated that institutions in the criminal justice system, such as juvenile justice courts, attendance centres, the Probation Board for Northern Ireland and PSNI should be included. Its suggested amendment is that, in clause 2(1), the words
"A child care organisation shall, and any other organisation may,"
should be replaced with the words "All organisations shall". On first reading, that seems to be a reasonable amendment. What is your opinion, Mr Clarke?
Mr Clarke: Not unexpectedly, this is a big issue. I would advise the Committee that equivalent legislation is currently before the Scottish Parliament.
I am mentioning it only now because the same issue will be debated almost in parallel in Scotland. England already has the Protection of Children Act 1999, and equivalent legislation is to be introduced in the Scottish Parliament. I was recently at a meeting, and this is one of the big issues in both pieces of prospective legislation.
You asked whether all organisations should be required to carry out checks. The amendment raises several difficulties. The first fundamental difficulty is the meaning of "all organisations", and linked to that is how such a requirement would be enforced. There are powers to exert pressure on childcare organisations and others governed by regulation if they fail to comply. If we included the phrase "all organisations" in the Bill, we would have to invent a completely different system to enforce the requirement, which may result in a criminal sanction for failing to make a referral.
I do not want to say too much about that now, but I can say something about the practical implications of adopting such an approach. Changing the legislation to read "all organisations" would not be an effective amendment: essentially it would be unenforceable.
The Chairperson: If you include the phrase "all organisations", the question of accreditation for organisations is hardly necessary.
Mr Clarke: Yes. The idea of accreditation was a means of addressing the fact that we cannot identify every single circumstance in law under which a group of people might be involved with children. The childcare organisations were always going to be limited to regulations. The idea of accreditation was to allow organisations to approach the Department voluntarily. That would not be necessary if the Bill includes the phrase "all organisations".
The Chairperson: That is very helpful.
Ms Ramsey: I take your point, but the difficulty is that we are not dealing with decent people: we are dealing with predators. Most, if not all, organisations involved in protecting children issues say that the clause is currently too wishy-washy. Can we find a compromise that takes their issues and the concerns of this Committee on board?
Mr Clarke: The accreditation scheme was the compromise. It was the only scheme put during the consultation period that we thought practical. As a member of the unit responsible for child protection, I understand what you are saying about the loophole whereby people can move into other areas. We highlighted that issue in the consultation document on the legislation, and it is worth remembering that this Bill operates in relation to the vetting of people: it does not give people certificates of clearance to work with children.
The issue of unsuitable people working with children and the circumstances under which people can get unsupervised access to children must be dealt with alongside this legislation. We are open to suggestions, but the accreditation scheme was our response to the concerns.
The Chairperson: Would it be helpful to return to that point next week? I understand that inserting "all organisations" would make the legislation unenforceable, but, as Ms Ramsey said, the legislation needs to cover all organisations working with children. I understand your point about accreditation.
Mrs Courtney: Mr Clarke, are you suggesting that inserting "all organisations" would make the legislation unworkable?
Mr Clarke: Yes. The phrase "all organisations" will create problems. A lot of thinking has gone into the clause. If we include all organisations, in which someone has substantial or regular access to children, and try to enforce that through the law, we will run into difficulties about regularity. It will create serious problems, especially for the person who is given the statutory duty to enforce the Bill.
Clause 2 referred for further consideration.
Clause 3 agreed to.
Clause 4 (Power of certain other authorities to refer)
The Chairperson: Subsection (1) confers powers on certain authorities to refer an individual who has not been referred under clauses 2 and 3. It is not clear why the only registration bodies covered in subsection (2) are the Nursing and Midwifery Council and the Northern Ireland Social Care Council. The subsection gives the Department the power to designate other persons by Order. The proposed amendment is to replace "may" with "shall" at clause 4(1).
Ms Ramsey: I suggest that clause 4 is referred until next week when we will know the outcome of the referral on clause 2.
Clause 4 referred for further consideration.
Clauses 5 and 6 agreed to.
Clause 7 (Reference by authority making direct payments in respect of services)
The Chairperson: Subsections (1) to (3) provide that an authority carrying out an inquiry under the Children (Northern Ireland) Order 1995 may refer an individual to be included in the list. The Down Lisburn Health and Social Services Trust is of the opinion that clause 7 should be more specific, with trusts being required to refer. The proposed amendment is to replace "may" with "shall" at clause (1).
Ms Ramsey: I suggest that we leave that until next week and deal with it with clauses 2 and 4.
The Chairperson: Yes. It is better to consider clause 7 in the context of changes to clauses 2 and 4.
Clause 7 referred for further consideration.
Clauses 8 to 10 agreed to.
Clause 11 (Conditions for applications under section 10)
The Chairperson: The Committee received no comments on this clause.
Ms Ramsey: Why was the figure of five years selected?
Mr Clarke: The figures of five years and ten years are arbitrary, but the intention is to avoid repeated applications.
Question, That the Committee is content with the clause, put and agreed to.
Clause 12 (Restoration to list)
The Chairperson: The Committee received no other comments regarding clause 12.
Mr Clarke: The comments refer to ensuring that executive directors of social work in trusts are covered. I am not sure whether that needs to be put as an amendment.
The Committee Clerk: Down Lisburn Health and Social Services Trust referred to the executive director of social work. Having looked at the Bill, they asked that it be mentioned specifically. In clause 49, there is a definition of "director of social services", and they wished to confirm with the Committee that it covered the other title.
Mr Clarke: It is an issue to be taken on board or at least thought about. It could remain at the level of director of social services; it is a matter of whether you want to extend the powers to make an application apply to trusts as well as boards. We can certainly consider an amendment.
The Committee Clerk: Perhaps Mr Clarke might clarify something. Clause 49 of the Bill states that
"director of social services" means: "(a) a director of social services of a Health and Social Services Board; or
(b) an executive director of social work of a Health and Social Services trust".
Does that not meet your point regarding clause 12?
Mr Clarke: The legislation works at director of social services of a health and social services board level. It is not crucial to the operation if it is not put forward as an amendment.
The Chairperson: Would it be helpful to have an amendment?
Mr Clarke: The wording is probably sufficient as it is, but we can take it away and think about it. It would not be a huge policy shift to ensure that the legislation covered both positions.
The Chairperson: Perhaps we should seek clarification and return to the clause next week.
Clause 12 referred for further consideration.
Clause 13 (List in connection with prohibiting or restricting employment in schools, etc.)
The Chairperson: We may need to defer clause 13 because we need to involve the Department of Education.
Mr Clarke: Colleagues from the Department of Education, who are involved in such issues, are in a better position to talk about the detail of clause 13.
Clause 13 referred for further consideration.
Clause 14 (Effect of inclusion on either list)
The Chairperson: "Either list" in clause 14 refers to Department of Health, Social Services and Public Safety list and the Department of Education list. The Committee has not received any oral or written comments on clause 14.
Mr J Kelly: Will clause 14 be considered in conjunction with clause 13?
The Chairperson: Yes. There could be a consequential amendment. If amendments are made to clause 2, it may be necessary to make a subsequent amendment. With that exception, is the Committee is content with Clause 14?
Mr J Kelly: Yes, if there is a consequential amendment.
Ms Ramsey: Would it not be better to defer clause 14 until next week’s meeting?
The Chairperson: Yes.
Clause 14 referred for further consideration.
Clause 15 (Access to lists)
The Chairperson: Subsection (2) covers arrangements for carrying out checks to establish whether an individual is included on the Department of Health, Social Services and Public Safety list or the Department of Education list. There is a suggested amendment. Barnardo’s has called for the Pre-Employment Consultancy Service (PECS) eligibility checks for staff, volunteers, carers and any others who are determined by an organisation, to be extended to include ongoing checks. It suggests that that could form part of a renewable license.
The suggested amendment to clause 15 is after "position" insert "of".
The Committee Clerk: The first suggested amendment to clause 15 is to amend the clause to cover "all individuals connected to an organisation".
The Chairperson: That is the proposed amendment from Barnardo’s. I mentioned the NSPCC’s proposed amendment, which applies to a different clause.
Mr Clarke: I am unsure about where the Barnardo’s amendment is supposed to be made to the clause.
The Committee Clerk: Barnardo’s made that suggestion with regard to all organisations. There is no specific place to insert that amendment. If the Committee were to adopt the suggestion by Barnardo’s, it would have to draft an amendment that meets the requirements of the Bill. I understand that it would affect subsection (2). If all the individuals who are connected to organisations were covered by it, it would affect how relevant individuals are covered.
Mr Clarke: Two matters must be mentioned. First, it is a transitional provision, which will fall if, and when, the Police Act 1997 comes into operation. If the Committee amends it, it must bear in mind that it is amending a provision that is intended to be transitional before the full system kicks in. Secondly, with regard to widening access to lists, I would be merely speculating as to where the amendment was supposed to be made.
The Chairperson: Can you explain the transition process? I am unsure about it.
Mr Clarke: As the Department has placed a requirement on certain organisations to carry out checks, the Department must provide them with access to the lists. The provision is necessary because we have neither the longer-term policy, nor has the Police Act 1997 commenced. That Act means that records would be processed here through a body equivalent to the Criminal Records Bureau. Therefore in the meantime, the Department must provide access to records, which it is doing.
The Chairperson: Is it, therefore, unnecessary to insert the words "all individuals" although we have —
Mr Clarke: The amendment is to a transitional arrangement; therefore, if all individuals connected to an organisation are supposed to gain access to records under the Bill, they will not have access to them when the Police Act 1997 comes into operation. The amendment is to a transitional provision.
The Chairperson: When will the Act commence?
Mr Clarke: We are waiting for an answer to that.
The Committee Clerk: Members may want to leave clause 15. The NIO has been invited to give evidence to the Committee as to when Part V of the Police Act 1997 will be commenced.
Ms Ramsey: Will we come back to clause 15?
Clause 15 referred for further consideration.
Clause 16 (Accredited organisations)
The Chairperson: Clause 16 brings us back to the argument on clause 2 about the inclusion of "all organisations". The Committee has suggested amendments. Do you have any comments to make, Mr Clarke? Have you seen the proposed amendments?
Mr Clarke: Yes. Changing "may" to "shall" is a drafting point; it does not make much difference. We are in total control of the commencement of each provision. I am not sure when we will make Regulations. However, there is no doubt that we will have to do that to establish an accredited organisation. The usual form of words is "may make Regulations". I have, however, no doubt that we will make Regulations.
The Chairperson: Will the Regulations be laid before the Assembly?
Mr Clarke: Of course, we want to consult on many issues before bringing the Regulations to the House. Those Regulations which include how the accredited system operates and what charges may be imposed in connection with it.
Ms Ramsey: The problems are due to clauses 2 and 4.
The Down Lisburn Health and Social Services Trust and the Mater Infirmorum Hospital Health and Social Services Trust suggested that trusts should be included because of their contact with children.
Mr Clarke: That is a misunderstanding because, whereas we are a childcare organisation, trusts and the relevant parts of hospitals are regulated. The accreditation would never be relevant to them, so we would never accredit them. As it stands they are compelled to remain as childcare organisations.
The Chairperson: Are there any more questions on clause 16? Ms Ramsey suggested that we leave it until next week.
Ms Ramsey: We should come back to clause 16.
Clause 16 referred for further consideration.
Clause 17 (Whistle-blowing by employee or member of child care organisation)
The Chairperson: Mr Clarke, you have seen the suggested amendments for clause 17. Several amendments may be necessary if the Committee accepts the argument of the National Society for the Prevention of Cruelty to Children (NSPCC).
Some organisations, spearheaded by NSPCC, have suggested that amendments should be made to clause 17 to allow organisations to blow the whistle on other bodies in cases in which they know that the requirements in clause 2, in connection with referrals of individuals, are not being met. Therefore several issues that are associated with the provision of whistle blowing must be considered, including how that would work in practice; the difficulties that employees face; and the degree of protection that the Bill and other employment legislation give to the whistle blower.
Mr Clarke: The whistle-blowing provision is about people feeling comfortable about coming forward to blow the whistle on another person. That implies that there should be whistle-blowing procedures in organisations. It is a long-standing issue in child protection that stems from the Waterhouse report in Wales on encouraging the development of whistle-blowing arrangements in all organisations.
The protection that can be afforded in law to an individual who wants to, or feels that he or she must, blow the whistle on a colleague was taken up with counsel at the time. The view was that the general protection already exists and that the Bill is taking us to an extremely dangerous area. There are human rights issues if extensive protection is afforded outside the general law to people who whistle-blow on child protection issues. It puts the rights of the person on whom the whistle has been blown into stark relief. The view was that that was best left to the general law that exists on a wide variety of circumstances.
The idea that one organisation should be able to blow the whistle on another has been discussed with the NSPCC for some time, and the proposal was mentioned at a previous Committee meeting. We are interested in that area, but we can see certain drawbacks. We face the same dilemma as others in seeing why that provision should be included. To say that one organisation may report on another organisation because it failed to make a referral makes organisations look like policemen. Whistle blowing is currently contained in organisations. However, if it works across organisations, we are effectively saying that organisations should act as policemen.
Having said that — as I have said to the NSPCC in the past — the idea has a certain attraction. It would mean that someone could take action if they clearly see and know that an organisation is not doing what it should in relation to someone about whom they have personal knowledge. However, it is a finely judged issue, as is the whole whistle-blowing area. It depends how far we want to push the line.
The Chairperson: Is it not overstating it to say that to allow one organisation to blow the whistle on another is giving them the role of policeman? Surely it is just one organisation reporting to the relevant authorities on another organisation? It is not policing.
Mr Clarke: In the provision, as it is currently drafted, whistle blowing can apply not only to an organisation, but to a named individual. I have some concern because we have had to consider that following the Bill’s introduction. I have a slight reservation about the present wording, which states that once an organisation complains about another organisation not making a referral, the discussions and the communication flow is between the two organisations and the Department and the individual, who is at the centre of it, is cut out of the loop.
I suspect that the Department will have to rethink that aspect. It is more than just a complaint about an organisation; it is a complaint about an individual. That is possibly where the NSPCC’s suggestion also gets into difficulty. There are no substantial hurdles to be jumped by the organisation that is making the referral, but something must be done about the person under clause 2.
Mr J Kelly: Are you suggesting that whistle blowing might be open to abuse?
Mr Clarke: Yes. I am concerned that the legislation must not lead to a situation in which it could be challenged because of unfair operation and openness to abuse. That it may be open to abuse may be more theoretical than real; however, with regard to human rights, it must be ensured that the legislation it is not open to challenge for that reason. If one organisation is reported by another, it is unavoidable that the finger is pointed at an individual, who will go to court. It will not be theoretical, and human rights issues will be a potential challenge.
The Chairperson: We should perhaps return to clause 17.
Mr Clarke: We shall go to counsel for legal advice. It is a wider issue than is covered by the amendments suggested by NSPCC.
The Chairperson: Perhaps the proposed amendments could be improved.
Mr Clarke: That amendment was one of the most difficult to draft, because of the concerns.
Clause 17 referred for further consideration.
Clause 18 (Interpretation of this Chapter)
The Chairperson: Clause 18 defines several terms used in chapter 1. The Children’s Law Centre recommended that all organisations that employ staff and/or volunteers and who have regular contact with children should be obliged to carry out checks. An amendment has been proposed that clause 18(1)(b) and (c) should be left out and replaced with
"Childcare organisation means an organisation —
(b) which is concerned with the provision of accommodation, education, social services, healthcare services, personal social serfvices, leisures services, advice and representation services, criminal justice services to children or care or supervision of children."
Ms Ramsey: Does the Department see any problem with that?
Mr Clarke: The main problem might be similar to that which arises when a prescribing provision is replaced with a list. The list must be kept in tune with what is happening. In this case, the prescribed provision could be retained and the text of the amendment added, but that becomes over-elaborate. I doubt whether any of the items on the list is not covered by a statutory provision in some shape or form. As in all legislation, the danger lies in being certain that the list is complete when it is compiled and whether it will remain complete.
Mr J Kelly: The list itself becomes prescriptive.
Mr Clarke: Yes, and people run down it and it becomes exclusive. Bear in mind that a list is an exclusion of everything that does not appear on it. My objection is not to that, but replacing a prescribing power with a list.
The Chairperson: The proposed amendment is to leave out clause 18(1)(b) and (c) and replace with:
"Childcare organisation means an organisation
(b) which is concerned with the provision of accommodation, education, social services, healthcare services, personal social serfvices, leisures services, advice and representation services, criminal justice services to children or care or supervision of children."
Would that improve the provisions?
Mr Clarke: No, because it runs the danger of excluding something. It is a fairly comprehensive list, but my concern is that even if that is so today it may not be at some time in the future.
The Chairperson: Do colleagues agree with that?
Mr J Kelly: I agree. By its nature it becomes prescriptive.
Mr Clarke: I can only suggest that, if the list is included in the Bill, some power to prescribe should be retained. That would always be required, but to put them both in would be to go too far.
Ms Ramsey: Depending on what agreement we come to on clauses 2 and 4, I would be concerned about making a decision on this now.
Clause 18 referred for further consideration.
Clause 19 agreed to.
Clause 20 (Meaning of "offence against a child")
The Chairperson: Nexus has queried the drafting convention that we must refer to "he". It suggests that the only reference to female perpetrators, which is under- reported, is at clause 20(1)(c), and that relates to intercourse only. Many unreported instances of abuse, such as inappropriate touching, do not go as far as intercourse. Nexus claims that the clause also stereotypes non- intercourse sexual abuse as ‘male’. Nexus believes that the clause should be expanded to refer to any inappropriate sexual contact.
That is a fair point. Nexus suggests an amendment incorporating the phrase "and any inappropriate sexual contact" into the clause, bearing in mind the references in the schedule to the legal standing of offences committed against a child.
Ms Ramsey: Let us win one, John.
The Chairperson: It seems to be a reasonable amendment.
Mr Clarke: The offences listed in the schedule are those that a court would depend on in order to decide whether to make a disqualification order. Is Nexus clear about that? It comes down to identifying the offences in the statutes. That is what a court would look for.
The Chairperson: They are making the point that using the word "he" is a problem.
Ms Ramsey: All they are asking is that the phrase, "and any inappropriate sexual contact", be included.
Mr Clarke: What is inappropriate sexual contact for the purposes of the High Court making an order?
The Chairperson: It may be a legal convention to use the word "he". I do not know if that is correct or not. However, in the particular context of sexual abuse, one has to be more specific.
Mr J Kelly: We could argue about semantics, but what is inappropriate sexual contact?
Mr Clarke: The issue is that it would be the sentence of a senior court. Courts do not impose sentences, in this case a disqualification order, unless an offence is on the list. Courts do not operate on phrases such as "inappropriate sexual contact".
The Chairperson: Mr Kelly made a point about what would be inappropriate. Any touching would be inappropriate.
Mr Clarke: I would not argue about the intention. I know where people are coming from. I am talking about the practicality of a senior court having to make a disqualification order on the basis of something that was as loosely phrased as that. Courts would not find that easy to deal with.
Ms Ramsey: I would like to discuss this matter in more detail.
Mr J Kelly: I am not sure either. I am not happy with it.
Mr Clarke: We have been examining the new Scottish legislation, which introduces a concept that is different from disqualification orders. In our case, it would give the courts a power to make referrals directly to the Department, and avoid the difficulty with disqualification orders.
It may be that a slightly different approach might address the problem that the Chairperson has raised more easily. A preliminary look at the Scottish legislation suggests that it has a bit more flexibility. As things stand here, the offences would have to be listed.
The Chairperson: Are you going to look at this and come back to us?
Mr Clarke: As regards the amendment, it would not be practical to include anything other than a specific offence. We can certainly look at the Scottish alternative to disqualification orders in detail. The principle is that, rather than having disqualification orders, courts would make referrals to the Department. This has a certain attraction because it is a lot simpler. It pulls things together.
Clause 20 referred for further consideration.
Clause 21 (Disqualification of adults from working with children)
The Chairperson: Clause 21 provides that, when an individual is convicted of, or charged with, an offence against a child, a court must impose a disqualification order to prevent the person from working with children when released.
The Probation Board suggests that the qualifying sentence should include community orders, and that courts should record whether the victim of an offence was a child. There is also the question of suspended sentences. The Probation Board suggests the words "all convictees" to cover that.
Mr Clarke: I agree in principle. I am just checking whether suspended sentences are already covered. Clause 23(2) states that
"references to a sentence of imprisonment or order for detention include references to a suspended sentence or order."
Sentences are suspended for a variety of reasons, but that does not lessen the threat to children. In principle, we would want that.
Ms Ramsey: Does clause 23 not deal with young offenders?
Mr Clarke: Clause 23(2) states:
"In this Chapter references to a sentence of imprisonment or order for detention".
The words "order for detention" relate to young people. However, "sentence of imprisonment" is in this chapter, and it includes suspended sentences.
The Chairperson: Is it worth amending clause 21?
Mr Clarke: To be honest, and I think the Committee would agree, we want to see a disqualification order whenever a court considers that someone is a risk to children. If there are any loopholes in the Bill as drafted, we will certainly want to plug them.
The legislation is couched in terms implying offences of certain seriousness. People might have concerns about that. The Scottish provision, which we have not studied in detail as yet, may allow a court to be more flexible when it considers someone a threat. I am sure that people feel that courts do not award very high sentences for a variety of reasons. However, linking a disqualification order to the length of a sentence is potentially problematic.
The Chairperson: We will come back to that again.
Ms Ramsey: In fairness to the Probation Board, I do not think that it is linking disqualification orders to sentences. It is linking disqualification orders to the people who get off: it is not linking them to sentences of 12 months or more. It is linking them to the people who get community orders or suspended sentences. That is the Probation Board’s concern.
Mr Clarke: I take the point about community orders.
The Committee Clerk: Ms McWilliams has suggested a possible amendment to subsection 5. The current wording is:
"An order shall not be made under this section if the court is satisfied, having regard to all the circumstances, that it is unlikely that the individual will commit any further offence against a child."
Ms McWilliams suggested that that should read:
"An order shall be made under this section unless the court is satisfied, having regard to all the circumstances, that it is unlikely that the individual will commit any further offence against a child."
Mr Clarke: That is clearer. We shall take that up with the draftsman. It does not change the meaning.
The Chairperson: So that is acceptable?
Mr Clarke: It basically says that they must make an order unless they are satisfied that it is not necessary.
Clause 21 referred for further consideration.
Clause 22 (Disqualification of juveniles from working with children)
The Chairperson: Barnardo’s raised concerns about the clause and the position of those under 18 who have not been convicted. Barnardo’s would like to see the provision strengthened. A person under 18 would only be disqualified if he were likely to re-offend. The danger that such a person could disappear from the system and pose a risk also needs to be considered.
Nexus raised the issue of qualifying sentences. The disqualification should apply to all convicted perpetrators, not just to those receiving sentences of 12 months or more. It should also refer to suspended sentences, if not already covered. Possible amendments to clause 22 should be considered together with clause 23, which defines the terms "qualifying sentence" and "relevant order". Have you anything to say about that?
Mr Clarke: One of the points made relates to qualifying sentence. Why should a disqualification order only apply when a sentence is for 12 months or more? The risks could be just as great when a lesser sentence is involved.
If we are going to adopt a different approach, and a court may make a referral to social services directly, then some of the concerns may be addressed. We would not be linking disqualification orders directly to the length of a sentence. We would still be linking them to the offence, but not to the length of the sentence. In other words, a court would have formed a judgement and even if it imposed a sentence of nothing, because of the nature of the offence, the person has posed a threat to children and it could make a referral to the Department.
Clause 22 referred for further consideration
Clause 23 (Sections 21 and 22: supplementary)
The Chairperson: Clause 23 follows from clause 22. Would it be helpful to come back to that again?
Mr Clarke: As I said in relation to the issue of the disqualification order, this will all change. It is another "clause 2" situation. If you change that, you start to change so much on the foot of that.
Ms Ramsey: The Probation Board and Nexus have made a valid point here. Mr Clarke said earlier that sometimes there are not sentences of over 12 months. That needs to be looked at.
Mr Clarke: The issue is about the arbitrary nature of the sentences that people get. Two people might commit the same offence, yet their sentences could be completely different. We must accept the court’s decision, and there may be reasons why the sentences were different. To link disqualification orders with the length of sentence would be a concern. A court could decide, for some perfectly legitimate reason, to give different sentences to people who committed exactly the same offence. By linking, you are not directly addressing the threat that each person poses to children.
Ms Ramsey: Based on the evidence that we have received to date, why are we sticking to 12 months?
Ms McDaniel: If we planned to go with the Scottish system, for example — and I am not saying that we will — the 12-month period would be abolished and would not come under consideration at all.
Mr Clarke: That is what I am saying. If we take the Scottish system, or what we understand it to be — and we cannot decide policy on the hoof — one of the most attractive points is that they have given the courts the power to make referrals to the Department, which is a way around this difficulty. The court would assess a person’s threat and act as referrer. There are other advantages. It would simplify parts of the Bill, particularly as regards appeals. We would have a single list of those disqualified, rather than having disqualification orders and a list.
Clause 23 referred for further consideration.
Clause 24 (Appeals)
The Chairperson: Clause 24 clarifies that a disqualification order is to treated, for the purpose of appeals, as a sentence imposed by a court.
The Committee Clerk: It may have an impact on other clauses.
The Chairperson: We will have to come back to that. The same applies to clauses 25 and 26.
Mr Clarke: This is about simplifying the legislation. If we decide to go down a different road, many of these provisions would not be necessary. This is illustrating the point that I was trying to make. Adopting the Scottish model would simplify this matter considerably. Everything would go into our list and subsequently to a tribunal.
The Chairperson: We have covered a fair bit today.
Mr J Kelly: Can we adopt the Scottish legislation?
Mr Clarke: Scotland is greatly interested in ours, particularly with regard to the provisions on whistle blowing.
The Chairperson: Mr Clarke, you have our document showing the suggested amendments. I know that this is difficult for the reasons that you have given, but it would be helpful if you could indicate which amendments would be useful or otherwise.
Mr Clarke: I will prepare as brief a paper as possible.
The Chairperson: That would apply to the clauses that we have not come to yet, as well. Thank you.
Clause 24 referred for further consideration.
Clauses 25 and 26 referred for further consideration.
|Home| Today's Business| Questions | Official Report| Legislation| Site Map| Links| Feedback| Search|