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Mr. John Greenway indicated assent.
Mr. Straw: This Bill has been a great learning process.
Mr. Straw: I think that I am about to learn something more.
Mr. Mackinlay: Indeed. One of the parts of the law of England is the Church of England's unrepealed Canon 113 of 1603, which enshrines the secrecy of confession in the established Church. The point, however, is not merely a matter of the secrecy of confession; it is that all ministers of religion should have access to and conversations with members of their flock, ring-fenced and privileged. Although I welcome the undertakings about lawyers and doctors given by the shadow Home Secretary, will he undertake that--if he has stewardship over the code of practice--conversations between ministers of religion and members of their flock will be explicitly exempted from surveillance and bugging provisions?
Mr. Straw: I will discuss that in more detail with my hon. Friend, and will learn a good deal more about his expertise regarding the 1603 settlement. I have read the Book of Common Prayer from cover to cover many times while sitting in chapel at school, but I do not remember
that part--although I remember that the 42 articles were reduced to 39. I certainly accept that, if confession takes place in Protestant churches, we shall have to consider the matter seriously. I have absolutely no intention of undermining the sanctity of the confessional.
Under the original Bill, the commissioner would apply the test of judicial review. In other words, the commissioner would have to examine an authorisation and judge whether it was so unreasonable that no sensible officer could have granted it. I am grateful to the Secretary of State for proposing that there should be a more positive test, which would be similar to, although not exactly the same as, that which applies in the Police and Criminal Evidence Act.
We never intended that the commissioner should second-guess. The issue was always whether the chief officer would base his decision on the criteria in the Bill, and whether the commissioner--either prospectively or retrospectively--would check that decision to satisfy himself that the chief officer of police had based his decision on the Bill's criteria.
Mr. Straw:
If the hon. Gentleman will allow me, I must make progress; I have already been generous with my time and with that of the House.
The Secretary of State has made provision for appeals and for improvements to the tenure and status of the commissioners by ensuring that they will be appointed by the Prime Minister, after consultation with the Lord Chancellor; that they will serve for a set term; and that they can be removed only by resolution of both Houses of Parliament.
Before moving on to part V of the Bill, I should mention that, in the course of an answer to my right hon. Friend the Member for Chesterfield (Mr. Benn), the Secretary of State attempted to invent Labour party policy on the third pillar. I have made it clear that that was an invention, and my right hon. Friend the shadow Foreign Secretary has issued this statement:
Mr. Benn:
The precedent for the matter is, of course, nothing whatever to do with Europe. The United States supplied American warheads to Britain, for nuclear purposes, on the condition that it supervised all the intelligence services in Britain--I know that because I was in charge of them--and that all the Government communication headquarters bugging that goes on be made available to the Central Intelligence Agency. It is not a new point.
My question was whether, under security arrangements already entered into, the information would be available--as I believe it will be--to the European security authority, which is just as keen to deal with crime as the Secretary of State and my hon. Friends. My hon. Friend must not
think that it is a precedent, because it has gone on for years. The trouble is that the matter has never been taken seriously, although it has been written about by many people, including me.
Mr. Straw:
As we now know, I am not a member of the Privy Council. My right hon. Friend is, and I do not have anything like his experience or knowledge of the secret parts of Government. Therefore, I am in no position to comment on them.
I have already mentioned the code of practice. If Labour is elected, I believe that there should be wide consultation on the draft before it is laid before the House. I also believe that, after the new statutory regime has been in operation for a year, a full review should be undertaken, with an opportunity for a debate. If we form the next Government, I shall seek to ensure that that is done.
On part V of the Bill, the maintenance of a comprehensive system of criminal records is essential for the prevention and detection of crime, for the wider protection of the public and as part of the sentencing process and the sentence. In many cases, although by no means all, the shame of having a criminal record is as much a punishment as a formal sanction of the court.
However, an important balance should be struck. For less serious offences--which pose no significant risk to the public--there must come a moment when an offender can draw a line in the sand and say that he or she has paid the price to society for his or her crime and that he or she should now be given the opportunity to put the past behind him or her. The Rehabilitation of Offenders Act 1974 was and remains an important measure in ensuring that offenders are rehabilitated and go on to lead law-abiding lives.
There are more serious crimes, for which the balance must be struck at a different point--as the 1974 Act realises, with its distinction between sentences below or above 30 months. In one sense, of course, the need to rehabilitate such offenders is all the greater because of the gravity of their crime, and we should never give up trying to do that, but there is also a much greater risk to the public from such offenders. Therefore, the public must have a greater right, in properly defined circumstances, to know about the offender's record.
There is a third category of offender, encompassing those whose formal criminal record may be very slight or non-existent but whose behaviour poses the greatest risks to communities, and especially to women and to children. The challenge to achieve the right balance between civil liberties and public protection is at its most acute with the third category. So far as I am aware, Thomas Hamilton, in Dunblane, had no serious previous convictions to his name, and he could--and did--claim that he was of good character. However, as we know from the Cullen inquiry, plenty of intelligence showed the terrible side of his character. Had it been possible to take greater account of that intelligence, Hamilton would not have been able to obtain a firearms certificate and he might have been prevented from his wholly undesirable involvement with children.
Part V attempts to reflect what I believe is a natural hierarchy of seriousness in criminal convictions. There will, as we have heard, be ordinary criminal conviction certificates that cover only non-spent convictions, criminal record certificates that cover all convictions and enhanced criminal record certificates that also cover non-conviction information.
I shall deal first with the more comprehensive certificates and then return to the ordinary ones. Clause 104 provides for criminal record certificates in which, for more sensitive areas of employment, full criminal record checks, including spent and unspent convictions, will be made available to employers by the agency. The types of employment covered by the arrangements will include jobs that involve regular contact with children and other vulnerable groups--the elderly, sick or handicapped people--those involved in work related to national security, the administration of the law, sensitive licensing areas or professions in areas such as health, pharmacy and the law, and senior managers in banking and financial services.
Clause 105 provides for enhanced criminal record certificates on which, for particular sensitive areas of work or licensing, additional information will be made available from local police records. That will include some non-conviction information. The posts envisaged are prospective employees, trainees and volunteers having regular, unsupervised contact with children and young people under the age of 18 and those applying for gaming, betting and lottery licences. The Penal Affairs Consortium correctly said that those provisions made sense.
The purpose of criminal conviction certificates is, in one sense, prosaic and straightforward. The certificate is a facility that enables an individual to verify a statement made by him in circumstances in which he should in any event be under an obligation to tell the truth. As someone involved in the employment of staff--as a Member of Parliament and, more frequently, as a school governor--I want and need to know whether an applicant for a position has any unspent previous convictions. I need to know not to blackball an applicant with a record, but to have the fullest information available when reaching a decision.
Applicants for any job certify that the information given is correct. Giving false information is grounds for instant dismissal when an appointment is made. On one level, therefore, the availability of the certificates can be presented as administrative, making it easier to provide firm and accurate information that applicants have to provide anyway.
However, because there will be a formal and straightforward system where none has existed, demand for certificates may grow. That has led responsible organisations that deal with offenders and ex-offenders to express understandable anxieties that the provisions could make it much more difficult to rehabilitate former criminals through gainful employment. Those anxieties must be addressed seriously in Committee.
There is an overwhelming case for making the provisions of the code of practice mandatory for employers in respect of all the certificates. The code will be mandatory for employers in respect of the higher level certificates, so why not in respect of all of them? We must also recognise that, if we want more, rather than fewer, ex-offenders appropriately employed--and therefore going straight--we have to change the attitudes of many job givers as much as we have to change the law.
The White Paper "On the Record" said that there would be a requirement in the code for employers to have a written policy and strategy for the employment of ex-offenders. That commitment was wrongly dropped in
the other place. The commitment should apply to all certificates. Some employers, large and small, are enlightened in their employment of ex-offenders. We must draw on that best practice. Along with the widened provisions of a code of practice, we should try to agree a protocol on the employment of ex-offenders with the main employers' organisations and the trade unions. In government, I would certainly aim for that.
"The Labour party has always been clear that it will retain the veto on issues in the Third Pillar of the European Union such as border controls, immigration, asylum and police co-operation. We have never changed that position and"
the Secretary of State's
"suggestion to the contrary is just another"--
I will have to translate the phrase as "inexactitude", although I am sure that hon. Members know what that word means outside the House.
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