Clause 94 - Proceedings for offences

Adoption and Children Bill – in a Public Bill Committee am 10:30 am ar 4 Rhagfyr 2001.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health) 10:30, 4 Rhagfyr 2001

I beg to move amendment No. 131, in page 51, line 6, leave out subsection (1).

Welcome back, Mrs. Roe. As you said, we have finished clause 52—at least in parliamentary terminology. The Committee's debate on clauses 49 and 52 was somewhat curtailed—it lasted for one sentence before you brought the knife down, such is the nature of the programming constriction. About one fifth of the Bill has not been debated, yet in parliamentary terminology those clauses have been scrutinised. That is a great pity. On Thursday, we missed debating adoption by one person, revocation orders and other important matters.

We look forward this morning to being wowed by the Parliamentary Secretary, Lord Chancellor's Department, the hon. Member for Doncaster, Central, (Ms Winterton), who has adorned our proceedings so far with her presence but not her words. It is worth pointing out that, so far, not a single Government amendment has been tabled. Never before have I served on a Committee during which the Government have not had to admit that they were not entirely perfect and that amendments were needed. The Minister of State, Department of Health, the hon. Member for Redditch (Jacqui Smith), ably if not verbally assisted by the Parliamentary Secretary, obviously scored a parliamentary coup—but we have many weeks yet to go.

Amendment No. 131 would simply strike out subsection (1), which states:

''Proceedings for an offence by virtue of section 9 or 56 may not, without the written consent of the Attorney General, be taken by any person other than the registration authority.''

It is slightly difficult, Mrs. Roe, to discuss clause 94 without mentioning clause 9, because those two clauses are contingent on each other. However, the programme motion means that we shall not be able to discuss clause 9 until late next week at the earliest. I remind the Committee that it deals with regulations on the functions of adoption agencies and local authorities and what penalties can be brought in if those regulations are broken. Clause 56, which we may not discuss until the new year, deals with contraventions of clauses 54 and 55, which deal with the thorny subject of the disclosure of protected information.

Clause 94 is about the proceedings that can be taken against various people committing offences that, at least for us, are not yet offences. We shall have to put ourselves in the hypothetical situation of determining that they will be offences if and when we come to those clauses. We are dealing with virtual reality: we shall be determining how proceedings can proceed without knowing whether proceedings against those proceedings can proceed. I think that the Committee has followed my thinking so far, even if the logic of the numbering of the clauses leaves a little to be desired.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

One of the key points, which I think my hon. Friend may have missed, is that the background to the amendment is opposition to the minimal penalty set out in clause 9, which we will not debate until later.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

That is a good point, to which I am sure we will return. The explanatory notes for clause 9, to which clause 94 and the amendment are linked, set the maximum penalty for an infringement of the regulations at level 5, which is a fine of £5,000. That is very important. Interested parties have expressed the view and Conservative Members are concerned that such penalties are not sufficient. We are considering penalties that have not been agreed by the Committee and which may or may not be debated later, yet clause 94 sets down exactly how the proceedings that will lead to the imposition of those penalties will happen.

The amendment is designed to find out why the Bill restricts proceedings so that no one except the registration authority can bring them without written consent from the Attorney-General. Many individuals, adoption support groups or family groups may be greatly aggrieved about the activities of an adoption agency or a local authority that may or may not have broken regulations, or passed on information that it should not have passed on, or failed to pass on information that it should have. Why private individuals or groups of interested parties should not be able to initiate action themselves is a mystery.

This is a probing amendment to ask the Parliamentary Secretary, on her debut performance in the Committee, why the terms of the clause are so limiting. Why will all the power be vested in the registration authority established by the Care Standards Act 2000? That legislation has only just been enacted and we are not entirely sure how it will work in many cases. No precedents have been established so far and a lot of controversy surrounds that Act. Perhaps the Parliamentary Secretary can enlighten the Committee with more detail of how proceedings by the registration authority will work in practice, because there is no history attached to that authority that we can examine to find that out.

Why does anybody else wishing to bring an action need the written consent of the Attorney-General? That suggests that the Attorney-General will give leave to private individuals or groups to initiate action in only a small minority of cases. Even if those individuals who are closest to the subjects of the adoption procedures, such as a birth relative or an adoptive parent, have a serious grievance against the way an adoption agency has acted on disclosure or non-disclosure of information, or some other breach of the regulations on support services, they cannot initiate proceedings relating to that grievance without special permission of the Attorney-General.

We need to be assured also that the fledgling registration authority, which is largely untested, is wholly independent. It must act independently of the vested interests of adoption agencies, local authorities and social services departments, but in the early days it might be more inclined to give the benefit of the doubt to an adoption agency than to initiate proceedings.

We are working largely in the dark. We need to be fully assured that if the provisions of clauses 54 and 55 are abused as set out in clause 56 and if the regulations made under clause 9 are broken, action will be taken. For example, what if an adoption agency fails to make proper checks about the home of a pre-adopted child that had been taken into care, which resulted in harm coming to that child? The birth parent, who might have given up that child with consent, would be troubled if harm came to that child because the local authority had not carried out proper checks.

In the majority of cases, birth parents will be told that the registration authority believes that it does not have a case to answer, and they would be stymied; but in a small minority of cases, the Attorney-General might be minded to allow them to bring proceedings. When does the Parliamentary Secretary expect the Attorney-General to be minded to allow others to initiate such proceedings? What if an adoption agency had left it far too long before removing a child from a threatening situation, or the child had been the subject of a long-running placement order and still was not properly settled? Worse still, what if a child had been the subject of multiple placements or multiple fosterings? I mentioned last week evidence from an expert witnesses about a child who had been moved an incredible 256 times. I hope that the registration authority would pick up such cases early, but it may let go on less extreme cases.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

My hon. Friend has mentioned before the dreadful case in his constituency. Were that case to have been fought by an adoption agency—one must not prejudice sub judice proceedings—it is rather insulting to think that a level 5 fine could be imposed. We shall come to that later, but the idea that the case could not be prosecuted without the permission of the Attorney-General should the National Care Standards Commission choose not to prosecute, which would be the effect of the amendment not being accepted, is surely grossly unfair to the memory of that child.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I am grateful to my hon. Friend for reminding me of my constituency interest. On Second Reading, I alluded to the case of John Smith, the four-year-old who died last year at the hands of two prospective adoptive parents. They have been convicted and a derisory sentence of eight years each has been handed down. A host of problems ensued because of the joint enterprise restrictions, which I took up with the Minister, but that is a different subject. Many would say that those two got off lightly, but they have had the cheek to appeal, so I shall not go into it too closely.

In that case, no one outside the two prospective adopted parents has been prosecuted or penalised. A report has been published that easily drew to light all sorts of information about which the Brighton and Hove social services department was entirely oblivious. That information included the fact that the prospective adoptive father had been married twice before, and interviews with his two former wives raised concerns about threats of violence towards children and an episode with a two-year-old, as well as the fact that he had changed his name and that his wife had five criminal convictions. None of that had been brought to light by the local authority's social services department, which was responsible for placing the child for adoption.

In such a case, there are strong grounds for an aggrieved party, who could certainly be identified as the child's birth parent, to initiate proceedings. In my example, the child's birth parent sat through almost all the sittings of the trial and heard about the ghastly series of injuries that had been inflicted on the child. Fifty-four marks were identified on the poor child's body after he succumbed to his injuries, including adult bite marks and assorted other unspeakable wounds. The mother spoke out after the trial. Unsurprisingly, she was greatly distressed by what she had heard and what had gone on, however I do not believe that the woman has initiated any proceedings.

Only recently have we seen the independent report produced after the trial, which commented on the role of the Brighton and Hove social services department, the Worthing priority care trust in West Sussex, which is responsible for health visitors, general practitioners and others who were involved. I do not cast blame or make assertions as to where the system went wrong. The report rightly made several recommendations. The Brighton and Hove social services department and the Worthing priority care trust have made changes to their procedures, so we can hope that the problem will not happen again, but no one from the social services department has lost their job.

If the birth mother of the four-year-old wanted to initiate proceedings, she would have to rely on the registration authority to say that someone had breached the regulations, presumably under clause 9 in this case because there would have been no disclosure of information. If the authority declined to say that, she would have to ask the Attorney-General for an exceptional order for proceedings to be initiated. I do not think that she will do so. Even if she were minded to do so under the law as it stands, she would certainly not do so under the Bill, because she would have to go through an awful lot of hoops to get satisfaction.

That is a classic example of a close birth relative who feels that her son, whom she gave up for fostering and adoption, has not been properly looked after by the authorities to which he was entrusted. How does the Parliamentary Secretary think that clause 94(1) would improve the system of justice for individuals in the example that I have given, for whom the system patently failed? In that example, a child paid the ultimate price.

I apologise for taking so long to set out the principle behind the amendment, but it is important. My topical example goes to the heart of why we have grave doubts about whether the restrictions in subsection (1) would be for the best. I ask the Parliamentary Secretary to give some practical details of how she thinks that the system would work better without the changes that we suggest.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons) 10:45, 4 Rhagfyr 2001

I apologise to the Committee for my voice. Everyone I rang this week thought that I was an obscene caller, but I merely have laryngitis.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

I thank my hon. Friend for that kind remark, which will help to sustain me in my hour of need.

The clause is extremely important. It relates to offences under clauses 9 and 56. In moving the amendment, my hon. Friend gave a series of examples of relevant offences under clause 9. I want to look at a constituency case where clause 56 would have been relevant under slightly different circumstances.

Emma—for obvious reasons I cannot give her surname—was responsible for the largest constituency file on an individual case that I have ever assembled in my 15 years as a Member of Parliament. I shall not try the Chairman's patience by describing the case in detail, but instead I shall provide a brief outline for the Committee. Emma was one of two unconnected children adopted by two kind constituents of mine who know that both children brought a great deal of difficult baggage with them. Her adopted brother is today a graduate with a successful job. Emma, sadly, is somewhere on the streets of London, a drug addict and perhaps a prostitute as well. The problem in her case arose from the fact that somehow—I remind the Committee that clause 56 deals with the disclosure of information—the birth mother discovered where Emma was living, not when she was a young child but when she was almost 15 years old. She arrived at the gates of Emma's school and from then on, a happy child was set on a rapid downhill trend: within a year or so Emma had disappeared to a squat with a much older boyfriend. The rot had set in, and it almost destroyed my kind and caring constituents.

The relevance of that case to the amendment is clear. My constituents were unable to discover how the information had got out, but let us suppose that it transpired that a breach of information under clause 56 had taken place and that the adoption agency had released the information to the birth mother with catastrophic consequences—the ruination of a young life. We shall return later to the fact that the penalties are so small; absurdly, that subject relates to an earlier clause. Without our amendment to the Bill, my constituents, whose surnames I cannot give, would be faced with either trying to persuade the National Care Standards Commission to prosecute, or having to make an application to the Attorney-General as described by my hon. Friend the Member for East Worthing and Shoreham (Mr. Loughton). Why should they have to do that?

I sincerely hope that the National Care Standards Commission will work well. I hope that in such a case it would be willing to bring a prosecution, but it is possible that it would not. There is a danger with all regulatory agencies that they will be captured by the system. I am not going to mention names, but familiar faces pop up—I am thinking of the work of the NCSC on residential homes for the elderly—in certain regional offices and elsewhere. One can think of reasons, such as old ties from the past, why the NCSC may not always be vigorous in its pursuit. One looks at the various independent inquiries that have occurred over the years: sometimes they took place because of the lack of a proper outside regulatory agency, and sometimes because the existing systems did not function properly.

As my hon. Friend said, this is a probing amendment. To reject it prima facie would mean that people like my constituents—decent people who provided a home for two unhappy children and gave them a very happy upbringing—would either be forced into the hands of a Government quango, or be made to go all the way to the Attorney-General for permission to bring proceedings. If they could not afford a solicitor, why should they be denied the right to go to the Kent Law Clinic, for example, or another organisation that provides free help? I do not know whether circumstances would have allowed the couple in question to bring a private prosecution. Why should not they be able to prosecute a horrible offence under clause 56? Incidentally, I have not named the local authority that acted as the adoption agency in this case, because I have no grounds for believing that the leak came from the local authority. I am creating a hypothetical case based on a real one.

My hon. Friend, with customary excellence, dwelt at length on possible clause 9 offences. Everyone who has taken an interest in adoption issues in the past two years has done so because of the failure of so many adoption agencies. One can see from the Government's league tables, which I and other people welcome, that nearly all statutory agencies have had unsatisfactory procedures, apart from an honourable few that have shown the way and done much better. On Second Reading I quoted two bad cases that might have been eligible for clause 9 offences. I quote one of them again.

Jane adopted two siblings in the south of England. The contact arrangements required them to meet monthly with their younger brother who is in long-term foster care. Because they like him and they all get on well, he gets upset when they leave, so the parents have applied to adopt him too. The social worker, who represents the adoption agency in the context of the Bill, said that he needed to be assessed, and her first step was to remove him from the stable foster home in which he had lived for several years and put him in a new placement. Within weeks, he showed signs of emotional disturbance.

That is a genuine case of bad practice. I do not suggest that good practice does not exist because from the dark days of several years ago when only a few authorities got it right, an increasing number of agencies are doing better. However, when things go wrong and a clause 9 offence is committed, why should not an organisation other than the NCSC be able to bring legal action?

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

In the light of the cases that my hon. Friend has cited and of some of the more extreme cases that I have mentioned, does he think that a level 5 fine of £5,000 provides any deterrent at all, given that the money would not come out of an individual's pocket but would be covered by insurance? The professional integrity of the person who committed the offence might remain completely intact.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

I see that Mrs. Roe is about to call us to order. My hon. Friend knows that we shall have to return to the matter when we debate the relevant clause, which precedes clause 94 in the Bill but is being debated after it. However, I could not agree more strongly with him and I look forward to debating the matter.

I turn to the role of the Attorney-General. Hon. Members will remember that during the debate on the Home Office's Anti-Terrorism, Crime and Security Bill, the point was made repeatedly that although reserving powers to the Attorney-General for prosecution is not unprecedented, it is certainly unusual and something that Parliament should not do lightly. I am puzzled. Why have the Government chosen to give the Attorney-General a special role under the Adoption and Children Bill? That seems curious, and I look forward to hearing the Parliamentary Secretary's comments.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon 11:00, 4 Rhagfyr 2001

I concur with my hon. Friends that subsection (1) seems out of place and against the spirit in which we have generally proceeded, which considers the rights of people other than social workers and other professionals. The subsection seems to tend away from that. I concur also with my hon. Friends' comments on the subject of the Attorney-General. It seems extremely unusual to have to go to that level to get consent, should consent be thought necessary. I should have thought an approach to the court would be more than adequate in the circumstances. A demanding requirement is being established for non-professionals who want to claim their rights. The rights of non-professionals are not adequately catered for in the clause.

The effect of the clause on younger children and teenagers has been discussed. I shall focus on older children and, in relation to disclosure, the over-18s. Adoption has been around since the early 1920s. There is a lot of information in existence, much of it highly confidential. The further back in time we take the matter, the more likely the information is to be confidential. It was not until the mid-1970s that the regime changed and information was dramatically opened up.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

Without anticipating amendments that have yet to be moved, I remind my hon. Friend of the three-year time limit, which seems absurd to many Opposition Members, on pursuing prosecutions under the clause. That further reinforces my hon. Friend's point.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

Indeed. We shall discuss that in due course.

Even if an adoption agency had held records for 50 or 60 years, there might be an opportunity to start proceedings if information was wrongly disclosed. In considering the clause we are exploring the impact of such disclosure. In our discussions, we often leave aside the question of adoptive parents' rights. They are relevant in connection with protection from disclosure of confidential information. People involved in the earlier adoptions might have lived for 50, 60 or 70 years with a certain degree of knowledge or disclosure, but one day a social worker in an adoption agency might take it upon themselves to disclose information without having any right to do so. I concur with my hon. Friends in the view that it is difficult to discuss the question in detail because we have not yet discussed clauses 9 or 56.

Photo of Meg Munn Meg Munn Labour/Co-operative, Sheffield, Heeley

I am puzzled about why, years after a case has been closed, someone might be likely to obtain the records and disclose information to a birth parent. With all my years of social work practice, I cannot conceive of that happening.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

The hon. Lady makes an important point, but in a year as a chairman of a social services department I received no fewer than 20 requests for such information. Many birth parents whose children were adopted early on are now approaching death. Their children were adopted under a regime under which they accepted there would be no further contact, and they have lived with that for a long time, sometimes 40, 50 or 60 years. As I said, many are now approaching death, and some want to make wills, so requests for information are becoming much more frequent than they once were.

In many ways, we are dealing with a specific period. As time moves on and we move further into the post-1974 adoptions, the problem will become smaller. However, it is important because the disclosure of information about people could negatively affect them. They have a right to redress.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

Let me finish. In such circumstances, I do not think it adequate or appropriate that an 80-year-old whose records have been kept secret for 60 years suddenly has to rely on the NCSC to decide whether it is fair for the records to be disclosed. Such people have rights that the clause does not adequately consider.

Photo of Meg Munn Meg Munn Labour/Co-operative, Sheffield, Heeley

I appreciate the explanation, but I remain puzzled. What is being described is a system to control cases in which a person comes forward to seek information, and to deal with them in law and regulation. We are dealing with cases in which people do not follow rules and regulations, and social workers take it on themselves to provide information in a way in which they should not. The two sets of cases are not at all parallel. In my experience, such cases are highly unlikely to arise in the circumstances that the hon. Gentleman describes.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

I can assure the hon. Lady that such circumstances are not unlikely and arise quite frequently.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

In the rather harrowing constituency case that I mentioned, I did not refer to the local authority involved because we do not have concrete proof. However, it is difficult to imagine any means other than a leak from the local authority by which the mother could have discovered 11 or 12 years on where her four-year-old, now 15, was living. Imagine how much the child's appearance would have changed in that time. She did not even live locally. In that case, it appears prima facie that there was such a leak.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

I thank my hon. Friend for that helpful intervention. We deal later with clauses 9 and 56. It would have been helpful to go through the Bill clause by clause, because to a great extent in this debate we are speaking hypothetically, as my hon. Friend the Member for East Worthing and Shoreham said. We will discuss what rights people have, and perhaps have a difference of opinion as to what they should be, but whatever they are, people should be able to protect the rights on which we decide. The clause creates an unlevel playing field between the system and other parties to the adoption process, which will be significantly to the detriment of the rights of people who should have rights.

I have mentioned the rights of children at other stages of the Bill and will continue to do so because I do not believe that the Bill protects them adequately. We talk about making children's rights pre-eminent but consideration of the Bill clause by clause reveals no hard words to show that children have rights in relation to consent or representation or, in the case of clause 94, in bringing the system to task.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

Looking back on clauses 54 and 55, to which clause 56 ''Offence'' refers, I understand why the hon. Member for Sheffield, Heeley (Ms Munn) is confused. The whole Committee is confused, because much of the information that we are discussing hypothetically has not yet been prescribed in regulations. Again, we are talking about undefined information.

We are referring to both disclosure and non-disclosure of information. The hon. Lady questions whether such cases would arise, but I can think of many times when they have done. If information were released to a birth parent about the whereabouts of an abused child who was later adopted, the abused child or the adoptive parents would have a serious grievance against the adoption agency that released the information. The registration authority might not see fit to take action against that agency, and the only recourse would be a minority decision by the Attorney-General to intervene, which is a serious occurrence.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

I thank my hon. Friend for elaborating on my point. Adoption agencies have been known to get things wrong—there is no dispute about that—and one can imagine circumstances in which an agency puts a child with abusive parents in a vulnerable position. It is easy to assume that the state and institutions such as adoption agencies are there to support the child. That is what we want, and is the purpose of the Bill, but it has sometimes not been the case. The child might be doubly exposed, by having abusive parents and by being denied services that the state should provide to them. Clause 94 would not adequately protect the rights of children in such circumstances, and I support the amendment.

Photo of Rosie Winterton Rosie Winterton Parliamentary Secretary (Lord Chancellor's Department)

Mrs. Roe, may I say how delighted I am that you are the Chairman of my first Committee contribution as a Minister? I look forward to our deliberations.

First, I shall describe some of the background to the clause. Subsection (1) sets out that proceedings for offences under clauses 9 and 56 are to be brought by the registration authority unless they are brought with the written consent of the Attorney-General. Clause 9(1) enables regulations to be made to regulate local authorities, voluntary adoption agencies and adoption support agencies in relation to their adoption functions. Under clause 9(3), such regulations may provide that contravention or failure to comply with the regulations would render a person guilty of a criminal offence and liable on summary conviction. Clause 56 enables regulations to be made providing that when a registered adoption society discloses information in contravention of clause 54 or 55(4), it is guilty of a criminal offence

''and liable on summary conviction to a fine not exceeding level 5''.

Clause 54 sets out the restrictions on disclosure of protected information and clause 76 information. Protected information means identifying information about the adopted person and/or any other person. Clause 55 provides that information about a child may be disclosed to prospective adopters only if prescribed through regulations for that purpose. The effect of the amendment would be that any person could bring proceedings for the offences. Either the Crown Prosecution Service or an individual could bring a private prosecution without reference to the Attorney-General or anyone else.

Slight confusion has arisen and I would like to reassure the Committee. The provision relates to clauses that implement the regulation of adoption agencies. We believe that it is important that offences under the clause are prosecuted by the NCSC in England and the National Assembly for Wales in Wales so that they can monitor the services provided by the agencies in England and Wales. The other important point is that those bodies will be able to provide specialist expertise when conducting prosecutions. We strongly believe that the commission and the Assembly will be best placed to carry out that task.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons) 11:15, 4 Rhagfyr 2001

I do not follow the Parliamentary Secretary. The first of her two points seemed to be a non sequitur. Of course the two statutory bodies should have the power to prosecute; they are in most cases the best informed and best placed to do so. However, it would not in any way undermine that power or that expertise if others, particularly interested parties, also had the right to bring a prosecution.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

I am sorry for the double disturbance, but my point is relevant. The Parliamentary Secretary just used the words ''prosecution'' and ''monitoring'' in the same sentence, but the two do not necessarily go together. The state has the right to prosecute, but why should that be put together with its duty to monitor? If a private person were to initiate a prosecution, the state would still be able to monitor what was happening in relation to prosecutions.

Photo of Rosie Winterton Rosie Winterton Parliamentary Secretary (Lord Chancellor's Department)

The monitoring bodies' role will be enhanced by their being allowed to bring prosecutions arising from a breach of the regulations. The prosecutions will arise from the regulation of local authorities, voluntary adoption agencies and adoption support agencies in respect of their adoption functions, and of registered adoption societies in respect of the disclosure of information. Because the NCSC and the National Assembly for Wales will monitor agencies' adherence to the regulations and it will be a criminal offence to breach those regulations, prosecutions will be better carried out by those bodies than by the CPS or the police. That approach is entirely consistent with section 29 of the Care Standards Act 2000, which applies when the NCSC prosecutes offences under part II of that Act.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

It would be useful if the Parliamentary Secretary gave some parallel examples of other criminal offences the prosecution of which is restricted to a regulatory body. For example, I served on the Committee that considered the Financial Services and Markets Act 2000 and I know that the Financial Services Authority has a regulatory role and that it can initiate various prosecutions and prosecute its members internally. However, that role is not exclusive to the FSA; if fraud arises from the monitoring role of the FSA, the CPS can bring fraud charges against the offending firm or financial services practitioner.

Photo of Rosie Winterton Rosie Winterton Parliamentary Secretary (Lord Chancellor's Department)

I shall come to that point later in my response. First, I shall finish speaking about consistency between the Bill's provisions section 29 of the Care Standards Act 2000.

The offences include breaches of regulations imposing requirements on how establishments and agencies registered under the Act should be run, failing to comply with conditions of registration, and making false statements in applications for registration. Other offences under the Bill are more appropriately prosecuted by the police and the CPS, for example, one offence listed in clause 114 is that of publication of advertisements by someone other than an adoption agency or a person acting on an agencies behalf offering a child for adoption. We are talking about breaches of regulations being a criminal offence, and prosecutions would be carried out by the NCSC or the National Assembly for Wales. If someone thought that the commission had not taken effective action against an adoption agency for breach of regulation, it would be open to that individual to ask the Attorney-General whether he could take action because the commission had refused to do so.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

I am having a little difficulty following the Parliamentary Secretary, not least because my pager went off at the crucial moment. Would she put it in black and white? The example that I gave was based on a real case. If Emma's parents had discovered what appeared prima facie to be a clause 56 offence—that a leak at the adoption agency had been the cause of that terrible birth mother turning up at the daughter's school and ruining the girl's life—would it be covered by the provision that we are debating now?

Photo of Rosie Winterton Rosie Winterton Parliamentary Secretary (Lord Chancellor's Department)

I will come that later in my explanation. Such cases would involve breaches of regulation. If that case had arisen from a breach of regulation, the first port of call would be the NCSC, because the commission would have the specialist expertise necessary to prosecute. If the commission said that there was not enough evidence or that a case could not be made but the person still felt strongly that he wanted to go ahead, he could apply to the Attorney-General for that decision to be waived. The procedure is the usual one for prosecutions arising out of statutory offences for breach of regulation rather than the prosecutions for criminal offences; the latter are normally prosecuted by the CPS. In addition, individuals can ask the Attorney-General to allow them to commence a private prosecution if they believe that the regulations have been breached and for some reason the commission or Assembly declines to proceed.

If the constituents of the hon. Member for Canterbury (Mr. Brazier) had approached the Attorney-General and the Attorney-General had said, ''No, I do not accept that you should be able to bring a private prosecution because I am convinced that the evidence is not there'', they could apply for judicial review of the Attorney-General's decision. The test would be whether the Attorney-General had acted lawfully, reasonably and fairly in refusing consent for the prosecution.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

So the answer to my earlier question is yes, it would have been a clause 56 offence. Surely the Parliamentary Secretary knows that to apply for judicial review is both extremely expensive and almost certain to end in failure?

Photo of Rosie Winterton Rosie Winterton Parliamentary Secretary (Lord Chancellor's Department)

If the hon. Gentleman bears with me, I am trying to elaborate on the process that his constituents would follow if they were trying to get the NCSC to bring a prosecution for breach of regulations. The issue is the breaching of the regulations under which adoption agencies operate. The judicial review would be heard in the High Court with appeals lying to the Court of Appeal and the House of Lords.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

I should like to reinforce the point made by my hon. Friend the Member for Canterbury. Few individuals in this country could afford a judicial review. Surely the Minister appreciates that to take out a private prosecution is not some newfangled right; it is an ancient right in this county. Why cannot it be left as an option to those who wish for it? It is not as though we are asking for anything new, but this provision effectively removes that right.

Photo of Rosie Winterton Rosie Winterton Parliamentary Secretary (Lord Chancellor's Department)

There has been some confusion about what is happening. The hon. Member for Canterbury is unfortunately no longer in his seat, but perhaps his hon. Friends will inform him of this point on his return. Outwith everything in the previous scenario—that is, where there has been a breach of regulations—it is still within a person's right to take a civil claim for negligence against an agency.

Hon. Members debated to what extent the fines were adequate. If, for example, an action constituting a criminal offence more serious than a breach of regulations was found in court to be so, it would still be open to the police and the CPS to make a prosecution. If, on the civil side, the breach of regulations meant that a person had suffered increased harm, it would still be up to them to take out a claim for negligence. I am sorry that I was rather long in making that point, but I was trying to explain that these clauses relate to regulations and give the NSCS some teeth and some ability to ensure that it can pursue those prosecutions. The evidence shows that in private prosecutions—there have been relatively few—such provisions enable breaches of regulations to be more extensively investigated and result in bodies with specialist expertise in pursuing prosecutions. However, in no way do they restrict the ability of individuals to proceed with further action should they wish to do so.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon 11:30, 4 Rhagfyr 2001

We often return to talking about the clause protecting individuals from breaches of regulations rather than from breaches of provisions that are actually in the Bill. I remind the Minister that the Opposition do not support the amount of discretion given to the Secretary of State to make regulations under the Bill. We have consistently maintained that the Bill leaves too much to be dealt with by means of regulations.

Photo of Rosie Winterton Rosie Winterton Parliamentary Secretary (Lord Chancellor's Department)

To prescribe too much in the Bill would not leave it sufficiently open for proper consultation. There are many instances where it might be beneficial to consider the use of regulations to set out wider areas of responsibility.

I hope that I have been able to reassure Conservative Members that the clause would not, in the tragic cases that they mentioned, restrict prosecution by the police and the CPS, or by individuals. I hope that, with those assurances, the Opposition will feel able to withdraw the amendments.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

The amendment was intended to be a probing amendment. Although it raises an important point, it was not meant to take up a lot of time. It seems to have uncovered, as the debate has progressed, ever more potential heffalump traps. In reiterating my welcome to the Parliamentary Secretary on her debut in the Committee, I must say that I have been unexpectedly disappointed by her performance. She began by repeating the background to the clauses, which my hon. Friend the Member for Canterbury and I had already set out, but she did not really answer my questions.

The debate highlights the problem of the order of consideration of clauses. We have been discussing provisions relating to offences that have not yet been discussed, and which, given the tight time restrictions on the Committee, might never be discussed. We are discussing penalties for actions that may not turn out to incur penalties, because of clauses 9 and 56, which will be discussed in future sittings.

The debate also highlights the problems of talking about offences caused by a breach of regulations when we do not have the regulations before us to assess whether a given action would be in breach of them, and how serious a breach it might constitute, let alone whether the penalties proposed under clauses 9 and 56 are sufficient to deal with those breaches of regulations. Our debate has been hypothetical, bordering on virtual reality.

I fear that the Parliamentary Secretary has not addressed the concerns that I raised. I should like her to tell me how the registration authority—the National Care Standards Commission in England and the National Assembly in Wales—will operate. Who in those bodies will determine whether regulations have been breached, the seriousness of the breach and whether action will proceed on the basis of a complaint or, to put it lightly, a mishap?

The Parliamentary Secretary referred to all manner of experts who will man the NCSC and oversee whether regulations have been breached. We do not know who those experts will be or whether there will be enough of them. We have heard many stories about the enormous problems of finding professional staff in social services departments. Will the experts be former social services workers? If they are, it will denude even further the departments, some of which have vacancies of up to 50 per cent. for key child workers.

I hope that we will discuss the Children and Family Court Advisory and Support Service later. Will we have the same problems as it had when an enormous number of its professional staff decided to walk from their jobs due to enormous incompetence by a few of the Parliamentary Secretary's colleagues? I am not assured that the NCSC will have the expertise to oversee breaches of regulations, even if I knew what they would be. I should like the Parliamentary Secretary to discuss the mechanics.

How can individuals petition the NCSC or the National Assembly for Wales if they are the instigators of a complaint? Such complaints will not necessarily be brought by the registration authority, so if birth parents, siblings, other close relatives or the adoptive parents feel that there has been a breach of the as-yet-undefined regulations but that nothing is happening about it, by what mechanism can they bring that to the attention of the registration authority and ensure that they are listened to rather than dismissed as some emotional crank on the telephone? If they bring a formal complaint, by what mechanism can they be assured that the appropriate official has the requisite forms and procedures so that the complaint may be recorded and a proper decision taken on whether it will be proceeded with within the mechanics of the authority? I want the Parliamentary Secretary specifically to enlighten the Committee on how individuals interact with the registration authority.

I also asked the Parliamentary Secretary in what circumstances she envisaged that the Attorney-General would give his consent to individuals who had taken up the unusual practice of petitioning him on failing to receive satisfaction from the registration authority. That matter was mentioned by my hon. Friend the Member for Canterbury, who is temporarily absent. How easy is that? In my limited experience, it is not easy. In how many cases, not numerically but as a general idea, does the Parliamentary Secretary envisage that the Attorney-General will entertain such applications from individuals, who might be emotional and have highly personal reasons for wanting to take the measures further?

The Parliamentary Secretary also did not tackle the question whether penalties under clause 9 would be any deterrent. If a £5,000 fine were enacted—it would presumably be paid by an authority, an adoption agency as a body, or more likely a professional negligence claim against an insurance indemnity policy—in clear cases of negligence by individuals, I am not aware of any procedures whereby those individuals would suffer any penalties and be seen to have suffered penalties for being closely aligned to the misdeed.

We are dealing also with the thorny subject of protected information. We were in danger of having a debate on clauses 54 to 63, but many hon. Members, on both sides, and just about every witness that appeared before us would be amazed if the Government were to go ahead with the proposals in those clauses. It would be a retrograde step to restrict access to information and birth records by adopted children, yet we are now discussing what penalties would be brought against those agencies that infringed the disclosure of information provisions. We are not due to debate what is probably the most important part of the Bill for another couple of weeks, by which time I hope that the Government will have had a change of heart. I hope that they will have succumbed to the overwhelming torrent of evidence against the retrograde steps that they still propose in later clauses.

My hon. Friend the Member for Huntingdon (Mr. Djanogly) made some exceedingly pertinent points, and he drew heavily on his experience of running a large and active social services committee during his time as a local councillor. He rightly said that the clause appears to be against the spirit in which the Committee has been moving with a great deal of unanimity. Other clauses that we shall debate later give access to appeals and reviews for individuals who feel hard done by as a result of decisions by adoption agencies. We have identified a much needed mechanism, whereby individuals and groups can appeal for review of a decision that they believe to be unfair, but clause 94 goes the other way. If anything, it restricts rights of redress and the practical modes of redress for individuals who feel that an injustice has taken place. As has been said, the clause is against the nature and spirit of the Bill.

A large part of the problem is the interface between the breach of regulation and other criminal matters. The Parliamentary Secretary has not started to address that problem. We do not know who will institute the regulations, nor how properly they will be monitored. When will a breach of regulation be serious enough to become a criminal matter—one to be prosecuted by the CPS through the ordinary rigours of the law? I can foresee a large grey area where certain people will be breaching the regulations but may also breach the criminal law. Where is the trigger point—the point at which the registration authority can say that it will not do anything about a breach of regulation but that something else is a criminal matter and that the full rigours of the law should be applied by the CPS in the magistrates court, or in higher courts where higher fines or penalties are available?

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

My hon. Friend will appreciate that many essential components of the Bill—the nitty-gritty, the nuts and bolts and the administration procedures—are being put in by way of regulation, and that dealing appropriately with regulations is even more important than we would have wished.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health) 11:45, 4 Rhagfyr 2001

My hon. Friend reinforces one of the essential weaknesses of so much of the Government's legislation: the devil is in the detail and we are a long way from seeing the detail. The work of the Committee will be long done—unsatisfactorily and incompletely—by the time we see the regulations. Only then will we know whether today's debate flagged up real fears or more hypothetical fears based on real-life cases.

My hon. Friend the Member for Canterbury made an important point when the Parliamentary Secretary started talking about the monitoring role. What is the difference between the monitoring and the prosecutory role? When the Financial Services Authority was initially set up—I do not want to stray from our subject, but it provides an interesting parallel—it was judge, jury, prosecutor, executor and beneficiary from fines. It was certainly set up with a powerful role. It was largely the lobby of the City and more than 1,000 amendments tabled by the Opposition—the Government had to accept hundreds of them in another place—that better contained, divided and defined the powers of the FSA. Similarly, we need greater definition of the new powers being conferred on this body.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

On that exact point, the Parliamentary Secretary clearly said—she generously gave way three times and I am sorry to challenge her a fourth time—that it was usual for the CPS to prosecute in most cases, but that where regulations were breached it was normal practice for the regulatory agency to prosecute, with the let-out of the Attorney-General. She provided the solitary example of the Care Standards Act 2000, which has only just passed through Parliament and is presently being implemented. Can the Parliamentary Secretary provide any further legislative examples where that form of policing applies?

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

That is precisely the point. The registration authority in this case is the National Care Standards Commission in England and the National Assembly in Wales. The NCSC started its work on 1 April this year when the Act came into force, so there are no precedents. I am not aware of any other cases that involve the care of children, so perhaps the Parliamentary Secretary can enlighten us. I am far from clear about where the monitoring stops and where the prosecutory action starts.

The amendment would add to the variety of routes open to aggrieved individuals. Allowing individuals to bring a case to the notification of the CPS and other legal routes would not detract from what is laid down in the clause or undermine the expertise of the professional groups at work in the National Care Standards Commission. I appreciate the Parliamentary Secretary's point that the best monitors of whether the regulations are breached will be the professionals in the regulatory organisation. No one disputes that. We are disputing what should happen where that job becomes prosecutory. We are debating the interface between the breaches and monitoring of regulations and taking action when offences have been committed. That is the grey area revealed by our extensive but worthwhile deliberations this morning.

What we are proposing would not undermine the work of the regulatory body. If anything, it would give it more teeth. More avenues would be available to aggrieved persons and it would be even more implicit that the regulator should ensure that the bodies that it regulates—the adoption agencies and local authorities—are doing their jobs properly. Otherwise, prosecution could be taken elsewhere, which would leave the regulators looking a bit silly because they did not pick it up in the first place. The Parliamentary Secretary should reflect on the John Smith case, where no one was prosecuted other than the perpetrators of the violence against the child that led to his tragic death. Where does criminal incompetence or criminal or professional negligence in that case feature in proposals for social workers, health professionals and others? My hon. Friend the Member for Canterbury also mentioned the case in his constituency of Emma. Will the Parliamentary Secretary respond to those two cases?

When the Parliamentary Secretary said that the first port of call was the National Care Standards Commission or the National Assembly in Wales and that if aggrieved individuals did not get satisfaction there, they could go to the Attorney-General, it amounted to a tightening of choice. Those are two extremes with no intermediate stages. People do not go lightly to the Attorney-General, who does not entertain individual cases in matters such as this. If the Parliamentary Secretary tells us otherwise, I anticipate much more work for the Law Officers' Department, which may not be well equipped to cope with it. It might then have to draw on the expertise of professionals working in the NCSC or the National Assembly—a circular argument.

When challenged over other options, the Parliamentary Secretary mentioned judicial reviews. We all know that they are hard to pronounce, hard to effect and hard to bring to a satisfactory conclusion, particularly for individuals embroiled in emotional family matters. Such people are often not well versed in the law or how to press their grievances against the establishment. Doing so would be exceedingly costly and cumbersome. The Parliamentary Secretary knows from experience in the Lord Chancellor's Department how rarely judicial reviews come off.

The Parliamentary Secretary then mentioned making a civil claim. Once again, that option is available, but it is expensive and the system often works against individuals. I simply do not understand why she wants to restrict the choice of aggrieved individuals in seeking proper recourse to the law when an adoption agency or local authority has not done its job properly. Those authorities may have gone beyond the breaching of regulations into semi-criminal matters, which might not, however, be taken up by the CPS.

I seriously ask the Parliamentary Secretary to deal with those re-stated concerns. Otherwise, what started out as only a probing amendment will be put to the vote.

Photo of Rosie Winterton Rosie Winterton Parliamentary Secretary (Lord Chancellor's Department)

I am sorry that I have been such a disappointment—[Hon. Members: ''No.''] Let me see if I can put that right.

I am shocked that the hon. Member for East Worthing and Shoreham believes that it is wrong for the NCSC to have powers to prosecute. We are dealing with vulnerable children and our intention is to enable the NCSC to monitor and regulate adoption agencies. Where it finds breaches in the regulations, it should be able to prosecute.

The NCSC will inspect adoption agencies every three years, which is more often than at present. Voluntary agencies and local authorities will also be regularly inspected. The NCSC will be able to pick up on poor practice and breaches of regulations. It is important that it has the power to do that and to conduct prosecutions, because it has the right expertise. If individuals claim that they are victims of a breach of regulations, the NCSC will be able to advise them on whether a prosecution is likely to succeed. At the moment, those who fail in that process experience great problems. Our proposals will ensure that a body with expertise on such breaches of regulations will participate, because it is invaluable in ascertaining whether a prosecution is viable.

I emphasise that the process might help an individual who wanted to pursue a claim for negligence. If it had already been proven that an authority had breached regulations and an individual said that the breach had caused harm, the process would be helpful to that individual's claim. If the NCSC discovers a more serious offence than a breach of regulations, it would not prevent the Crown Prosecution Service from pursuing it. I want to assure hon. Members that the legislation does not close off other avenues.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons)

We really must not spend any more time on this small probing amendment, but what the Parliamentary Secretary said is irrelevant. The amendment would not fetter the NCSC from pursuing prosecutions, and all her points would still apply if our amendment were passed. All it states is that other people apart from the commission should be able to pursue a prosecution without contacting the Attorney-General. She might suggest restricting the amendment to those who are genuinely interested parties. However, she has not explained to our satisfaction why the process should be restricted to the NCSC except with the permission of the Attorney-General.

Photo of Rosie Winterton Rosie Winterton Parliamentary Secretary (Lord Chancellor's Department)

We want to ensure that the National Care Standards Commission has full knowledge of how regulations can be breached. That is a very important part of monitoring the process. If that knowledge were taken away, individuals might be prevented from obtaining the prosecution that they want. If the prosecution took place without specialist advice and failed, adoption agencies might get off the hook. This is the normal way to deal with such statutory offences.

Perhaps I might clarify some of the issues that the hon. Member for East Worthing and Shoreham raised about the Attorney-General. Individuals can write to the Attorney-General, and he will give consent if prosecution is backed up by admissible evidence and is otherwise appropriate. It is actually easier to go to the Attorney-General's Office for a review of a decision by the NCSC than to hold a judicial review of a decision of the Crown Prosecution Service not to pursue a complaint on behalf of an individual, which would be the case if subsection (1) were removed. The effect of the hon. Gentleman's amendment would mean that that option was not available.

Photo of Julian Brazier Julian Brazier Opposition Whip (Commons) 12:00, 4 Rhagfyr 2001

I am sorry, Marion, but—[Interruption.] I am sorry, that was terribly rude. My laryngitis has gone to my head as well as to my throat. I hope that you will forgive me, Mrs. Roe; I am not feeling well.

I must ask the Parliamentary Secretary to think about what she has just said, because it surely cannot be right. If the subsection were deleted, other parties would be able to bring prosecutions. The Attorney-General would not come into the equation at all, nor would judicial review.

Photo of Rosie Winterton Rosie Winterton Parliamentary Secretary (Lord Chancellor's Department)

If subsection (1) were removed and we reverted to a situation in which the Crown Prosecution Service, for example, took the decision, the decision would have to be judicially reviewed. At present, a decision of the NCSC not to prosecute is reviewed by the Attorney-General. On top of that, there is a further judicial review if required, but there is no intermediary stage at which the Attorney-General's Office reviews the NCSC decision.

I understand that we need to move on. I hope that, with my assurances, the hon. Member for East Worthing and Shoreham will accept that the measure ensures that individuals have an opportunity to take action if they feel that regulations have been breached, without compromising their ability to pursue the action further if necessary. The Government believe that the measure will assist individuals and will ensure that adoption agencies are properly monitored by an expert body with the power to prosecute if necessary. I hope that the hon. Gentleman will consider withdrawing his amendment.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

The Parliamentary Secretary tried hard to reverse my disappointment, but I fear that I am still disappointed. She patently fails to consider the intermediate stages, available to individuals and other prosecutory agencies, between the regulatory role of the NCSC, which at some stage becomes a prosecutory role, and the Attorney-General's Office, which under the proposed terms is likely to be flooded with many complaints from individuals.

We are in no way seeking—the Parliamentary Secretary failed to give evidence otherwise—to restrict the powers of the NCSC to prosecute. She prayed in aid the fact that in its regulatory role it will have the powers to inspect adoption agencies every three years. That is a welcome improvement on the current system in which adoption agencies are inspected less often. However, we are talking not only about inspections to reveal sloppy record-keeping, but about those that we hope will reveal serious professional incompetence that had led to children suffering because a job had not been properly done.

Photo of Rosie Winterton Rosie Winterton Parliamentary Secretary (Lord Chancellor's Department)

To clarify, we are talking about breaches of regulations. That is the whole point of the clause, and I want to ensure that the hon. Gentleman understands that.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

Absolutely—but the NCSC's inspection role is to ensure that the adoption agency is doing its job properly, is properly set up to be a recognised adoption agency and is abiding by the as yet unseen regulations.

The Parliamentary Secretary particularly alarmed me when she said that the agencies would be inspected every three years. Under the Government's proposals in subsection (2)(a), which we want to amend, there is a three-year ceiling. After that period, action can be taken if an offence has been committed. What would happen if a team of inspectors inspected an adoption agency and identified an offence that had been committed just after the previous inspection three years before? By that time, and by the time that the inspectors had got the evidence and their act together to do anything about the offence, the three years would have expired. That is another reason why the second part of the clause is woefully inadequate. The details given by the Parliamentary Secretary about the three-yearly inspection do not remotely reassure me.

Photo of Mr Hilton Dawson Mr Hilton Dawson Llafur, Lancaster and Wyre

Is not the hon. Gentleman searching for something with which to pick a quarrel with my hon. Friend the Parliamentary Secretary? The Bill provides people who are not happy with the ultimate regulatory body of care services, and who do not have the means to appeal, to go directly to the Attorney-General, over the heads of the NCSC. My hon. Friend has shown exactly how the clause is in line with a Bill that opens up adoption and gives people many more opportunities to question adoption procedures. The hon. Gentleman makes the case that the NCSC's three-year inspection regime somehow conflicts with the three-year rule under the clause, which is nonsense. The NCSC will intermittently be involved in concerns raised by consumers of the services that they inspect.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

To pick up the hon. Gentleman's words, the Parliamentary Secretary is the last person with whom I want to pick a fight. I have been struggling to give her every opportunity to elucidate a woefully inadequate clause. I have not been angered or annoyed. I am merely disappointed that she has patently and utterly failed to elucidate the clause, but she has a difficult brief, and the clause is difficult to defend. We are not suggesting anything that would close off any avenues, and do not see why there should be restrictions under the clause. We are not picking holes, but I wish that I had the hon. Gentleman's faith that such regulatory bodies and new organisations, many of which we agree with, will be completely up to their job, will be manned by officials who know exactly what they are doing, and that no problems will arise. In the real world, of course, that does not happen.

Photo of Mr Hilton Dawson Mr Hilton Dawson Llafur, Lancaster and Wyre

Is not the whole point that if those institutions and individuals are not up to their job, powerless individuals in the system can go straight to the top to the Attorney-General—aided, no doubt, by their able Members of Parliament—and have matters dealt with in a way that makes sense to people who are not used to going through legal processes and courts of law?

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

The hon. Gentleman has missed the point that we have been trying to make.

We have spent an hour and three quarters debating my probing amendment—the first amendment of the morning. Because of the inadequacy of the Parliamentary Secretary's explanations, I shall have to ask my hon. Friends to push the amendment to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 3, Noes 9.

Rhif adran 2 Adults Abused in Childhood — Clause 94 - Proceedings for offences

Ie: 3 MPs

Na: 9 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

Question accordingly negatived.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I beg to move amendment No. 148, in page 51, line 10, leave out 'three' and insert 'five'.

Photo of Mrs Marion Roe Mrs Marion Roe Ceidwadwyr, Broxbourne

With this it will be convenient to debate the following:

Amendment No. 132, in page 51, line 11, leave out 'but, subject to' and insert 'except'

Amendment No. 149, in page 51, line 12, leave out 'six months' and insert 'one year'

Amendment No. 133, in page 51, line 14, after 'knowledge', insert—

'up to seven years after commission of the offence.'.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

We proceed to debate the amendment of subsection (2), to which I have alluded. We are seeking to change a number of things in order to give maximum flexibility so that where misdemeanours have occurred they can be discovered in good time and action against them can be taken. Many of the problems can take many years before coming out of the woodwork.

Amendment No. 148 refers to paragraph (a), under which at the moment the Government stipulate that proceedings have a three year-limit. I made the exceedingly pertinent point—the hon. Member for Lancaster and Wyre (Mr. Dawson) did not concur with it—about three-yearly inspections, which may be the device by which problems are brought up, although, hopefully, matters would not just rely on such inspections. I am genuinely trying to probe the Government's thinking behind their choice of various time spans. We suggest widening the time from three to five years after the offence has been committed except, under amendment No. 132, when the evidence is brought within a period of time that the Government propose should be six months. Amendment No. 149 would extend that to one year

''from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to his knowledge.''

Again, I do not see what the rush is. Given that we are dealing with very complicated matters and with children—evidence may not come out until a later stage for a whole manner of reasons, of which we are all well aware; Members on both sides of the Committee have given examples of complicated cases—why is the provision time limited at all?

Amendment No. 133 would mean that proceedings could be brought concerning sufficient evidence coming to light for up to seven years only after the commission of the offence. We might ask why that should be time limited, but it is reasonable to define a time to focus people's minds on how long such a device applies and for how long people need to keep records. Evidence must be available for seven years, not indefinitely; the provision should not be open-ended. I shall not go back over old ground, but the proposal refers to offences under clauses 9 and 56, about which we expressed our dissatisfaction with the level of fines and everything that went with it. In tabling the amendments, we are probing the Government on their reason for what appear to be arbitrary time scales.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon 12:15, 4 Rhagfyr 2001

I support the amendments. The explanatory notes on clause 94 state:

''All prosecutions of offences under this Bill are to be brought within six months from the date the prosecutor has sufficient evidence to do so''.

The implication is that if evidence exists, prosecutions must be brought. However, clause 94(2)(b) states:

''Proceedings for an offence by virtue of this Act . . .

(b) may be brought''.

There appears to be an inconsistency between the Government's intention that prosecutions should be brought and the Bill's wording that they may be brought. I should appreciate hearing the Parliamentary Secretary's explanation.

I concur with my hon. Friend that six months seems a bizarrely short period in which the prosecution may or must be brought. It can take a lot of time to put together evidence and to make inquiries; 12 months is much more appropriate.

It is wise to have some finality and I therefore support the proposal for a prosecution to be brought within seven years after commission of the offence.

Photo of Rosie Winterton Rosie Winterton Parliamentary Secretary (Lord Chancellor's Department)

Perhaps I can help to relieve the disappointment and despair felt by the hon. Member for East Worthing and Shoreham. It is vital for prosecutions to be brought in a timely manner, commensurate with the offences committed. There should be the minimum possible delay in pursuing prosecutions, as delay could jeopardise them, as hon. Gentlemen know. The Bill seeks to maintain momentum in prosecutions but is flexible enough to allow a longer time scale for prosecutions to be brought—up to three years after the commission of the offence where it did not come to light immediately, for example, by an inspection. I hope that that answers the question asked by the hon. Member for East Worthing and Shoreham. To clarify another point, adoption agency records have to be kept for 75 years. That is outwith the amount of time that is set down in the Bill relating to prosecution.

Most of the cases that will arise under the Bill will be dealt with in the magistrates courts, where the usual time limit is six months after the offence is committed. Therefore, the clause allows a longer time scale for prosecutions to be brought—up to three years after the commission of the offence. That is because offences do not always come to light immediately.

The six-month and three-year periods are the same as those in the Care Standards Act 2000, and already provide for a considerable extension of time allowed compared to the normal six-month limit for the prosecution of offences subject to summary conviction in a magistrates court. The six-month period is also the one that currently applies to offences under the Adoption Act 1976. So the Bill already represents a considerable enhancement in protection.

Not all the offences in the Bill are dealt with only in the magistrates court, which ordinarily track the six-month time limit for prosecution. For example, offences under clauses 80 and 82 are either-way offences: they can be tried in either the magistrates court or the Crown court. Higher penalties are therefore available, including, in the Crown court, imprisonment for 12 months, an unlimited fine or both.

To elaborate, clauses 80 and 82 restrict bringing children into the UK and taking children out of the UK in order to avoid unscrupulous buying and selling and illegal adoptions. Unless a time limit is specified in legislation, as it is in the Bill, there is no set period in which a prosecution must be brought. However, if there is a lengthy delay between an alleged commission and prosecution, the court can stay the proceedings. The Adoption (Intercountry Aspects) Act 1999 provides that these offences are subject to the six-month and three-year time limits—in contrast to the six-month time limit that applies to all other offences under the 1976 Act. As I have said, the Bill goes further by providing for Crown court prosecution in serious cases to create a greater deterrent effect.

The Government believe that the Bill, as currently drafted, provides the appropriate time limits for summary offences—actually extending the usual period allowed. However, for the more serious offences under the Bill, such as those relating to taking a child out of the UK—I hope that this will address the points that the hon. Member for East Worthing and Shoreham is raising by tabling his amendments—we will consider, as a means of further enhancing the deterrent effects, whether to remove the time limits for Crown courts. That is aimed at ensuring that offenders cannot escape prosecution simply by lying low for several years. I hope that that reassures the hon. Gentleman that we are prepared to examine his point, particularly with regard to more serious offences, and that in the light of that assurance, he will feel able to withdraw the amendment.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

We have scored a bit of a result. The Parliamentary Secretary obviously appreciated the thrust behind our amendments, and I am heartened by the importance that she attaches to ensuring that the momentum of prosecutions is promoted in the Bill. I am heartened also by the information about keeping records for 75 years and her point about considering the implications of strengthening the law in the Crown court against offenders who commit offences under the Adoption (Intercountry Aspects) Act and may be lying low out of the reach of justice. On the basis of her heartening and detailed response, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 94 ordered to stand part of the Bill.