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Session 2001- 02
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Delegated Legislation Committee Debates

Draft Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (No. 2) Order 2001

First Standing Committee on

Delegated Legislation

Monday 26 November 2001

[Mr. Frank Cook in the Chair]

Draft Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (No. 2) Order 2001

4.30 pm

The Minister for Criminal Justice, Sentencing and Law Reform (Mr. Keith Bradley): I beg to move,

    That the Committee has considered the draft Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (No. 2) Order 2001.

I apologise to members of the Committee for the problems that we experienced last week. I thank them for their forbearance and attendance here this afternoon.

The order is important and I am pleased to have the opportunity to debate it. It is a key exception to the Rehabilitation of Offenders Act 1974 and follows on from amendments that were made earlier in the year. I wish to confirm at the outset that the measures under the order are compatible with the rights protected by the European convention on human rights.

I shall put the order in the context of the rehabilitation of offenders policy as a whole. It has long been accepted that it is important for those who offend to be able to reform, to pick up their lives again after paying the penalty and have a fresh start. That is not to undermine the principle of punishment, but if we are not to have an underclass of people who can never work again, we must have some means in place for rehabilitation. It has also been accepted that the need for rehabilitation must be balanced against the risk to society, and especially its most vulnerable members, from the ex-offender.

That is why, as long as the Rehabilitation of Offenders Act 1974 has been place, there has also been a list of positions for which the offender, even if his or her conviction is spent under the Act, cannot escape his or her past. If asked an excepted question in respect of all past convictions by a person entitled to ask such a question, he or she must answer in respect of all past convictions, and not merely unspent ones. However, we must not make the list such that an offender who has put his past behind him is disadvantaged when that is not necessary. There has been criticism of the Act, which is now more than 25 years old. Accordingly, the Home Secretary announced to Parliament that it is to undergo a fundamental review, which is expected to report next year.

The current exceptions catering for the financial services industry, which are spread across the exceptions order, the Banking Act 1987 and the Financial Services Act 1986, will be inadequate when the final implementation of the Financial Services and Markets Act 2000 occurs at midnight on 30 November this year. The order will amend the exceptions order to the Rehabilitation of Offenders Act 1974 to include the new financial services provisions. The exceptions under the Banking Act 1987 and the Financial Services Act 1986 will be repealed simultaneously.

The Financial Services and Markets Act 2000 introduces a wholly new scheme for the regulation of the financial services sector in which the Financial Services Authority will play a pivotal role. Accordingly, there needs to be a new set of exceptions that takes account of the organisational change, creation of new concepts and introduction of new terminology that the Financial Services and Markets Act 2000 will bring about. Some of the existing exceptions will be carried over and altered under the amended exceptions order. Others have been modified.

Our policy objective is to make sure that the right balance is struck between the generally beneficial effects of rehabilitation, with its neutralising effect on employers' potential prejudices on the one hand, and genuine needs for access to information on the grounds of public protection on the other. That focus has been sharpened by the Human Rights Act 1998, as we are aware that the disclosure of a person's spent convictions could infringe article 8 of the European convention on human rights. We are satisfied that the exceptions that we have drafted achieve the right balance.

The order has effect in England and Wales only. Provisions that correspond to those in the Rehabilitation of Offenders Act 1974 are provided for Northern Ireland in a separate statutory instrument. Accordingly, provisions under the order will be provided for Northern Ireland by a separate Northern Ireland amending order that will, to all intents and purposes, be identical to this one.

Separate provision must be made for Scotland. We are in consultation with the Scottish Executive as to whether the provision needs to be effected by an order in the House or in the Scottish Parliament. Even if we were to resolve that issue today, it is likely that there would be insufficient time to implement the provision for Scotland, wherever it was introduced. Accordingly, pending resolution of the issue, Her Majesty's Treasury has made an order under the Financial Services and Markets Act 2000 that makes temporary provision for exceptions to the 1974 Act in Scotland.

From next year, when people apply for posts in the financial services sector that are covered by the exceptions, the Criminal Records Bureau will provide information about previous convictions. The CRB will provide a system that enables proper checks to be carried out. It will implement Parliament's intentions as laid out in part V of the Police Act 1997. If that system is to work properly, we must first ensure that the underpinning legislative framework is right. We are therefore reviewing all the categories in the order to bring it up to date. The order is the second to be laid as part of that overall review. We needed to act on that category of exceptions quickly, as the changes that they embody reflect new legislation that is soon to be in force.

Mr. John Burnett (Torridge and West Devon): Will the Minister be reasonably specific about the jobs that are to be excepted?

Mr. Bradley: It is not my intention to be specific in my opening remarks. The exceptions cover a range of matters. It may be for the industry regulating body to decide on them, but they will relate to positions that link customers to financial aspects of the organisation, and to the nature of the authority of the work undertaken for the regulatory bodies. They cover a limited range of reasonably sensitive positions that deal with financial affairs—or the regulation of those affairs—in the industry. I am not going to give a list of exceptions—that would not be appropriate—but I think that I have explained the nature of the posts that we are dealing with in the two bodies.

As I said at the outset, the order is important. It makes an important contribution to the effective regulation and protection of the financial services industry, and I commend it to the House.

4.38 pm

Mr. James Paice (South-East Cambridgeshire): I thank the Minister for his apology for last week's errors. It is a pity that yet again the Government's business managers have set the sitting of the Committee for a time when many of us who are involved in home affairs issues would rather be taking part in the discussions on the Floor of the House.

Opposition Members will not oppose the order, but I should like to put on record my concern that it extends still further the exceptions to the Rehabilitation of Offenders Act 1974. For the most part, I do not disagree with the Minister's comments. It is a long-standing tradition in British justice that people who have paid the penalty that society, through the courts, has required of them, should be able to put the past behind them and get on with rebuilding their lives—if, as we hope, that is what they wish to do.

There must be exceptions—the Minister is right to make that point—but the order further extends the list. It is easy to make—as he did—a valid case for this group of exceptions, when one looks at the totality, one begins to wonder what is left of the 1974 Act. As he said, the Home Office is conducting a review and we shall have to await the outcome, but it is worrying that the list of exceptions is growing ever larger. As is frequently the case, a sound argument can always be made about specific regulations, but the wider picture can often be worrying.

Consumers of financial services must be protected: they must be confident that the person who is advising them, or handling their affairs, has been properly authorised by the relevant body or agency. Therefore, regrettably, it is probably right that they should be subject to these exceptions from the 1974 Act.

I draw the Minister's attention to the phrase in the order,

    ``any circumstances ancillary to such a conviction''.

Although I recognise that that phrase is included in the amended Act, it opens up the issue, as it does not merely address the conviction.

I also wish to pick up on the Minister's comments with regard to the Scottish situation. In light of the arrangements that we are faced with, it is tempting to remark, ``So much for devolution.'' Under what piece of legislation or regulation was the Treasury able to make the order that he described? Almost four years after the Scotland Act 1998 was passed, its implications are still being discovered. Moreover, tonight we will be debating, on the Floor of the House, a raft of Government amendments that aim to remove the application of proposed legislation to Scotland. It seems that the ramifications of devolution will continue to unfold for many years.

Under what piece of legislation has the order been laid? That is the specific question that I wish the Minister to answer.

My party is concerned about the ever increasing number of exceptions to the 1974 Act: we are worried that it might become almost meaningless. I look forward to reading the review, which is expected to conclude in 2002, and to studying the legislation that will almost inevitably result from it.

4.42 pm

Mr. Burnett: I welcome you to the Chair, Mr. Cook. Recently, you chaired a Standing Committee that I served on, and that had to be adjourned, so it is appropriate that you should chair this Committee, which has also had to be adjourned.

I agree with the hon. Member for South-East Cambridgeshire (Mr. Paice) that the timetabling of the Committee is extremely awkward for several hon. Members who deal with home affairs. Not only should I be on the Floor of the House, I should be attending the Third Standing Committee on Delegated Legislation, which is currently dealing with community legal services.

It is a shame that exceptions must be made to the 1974 Act. All the parties that are represented in the Committee believe in rehabilitation and that people should have a fresh start. However, the Government are seeking to except important occupations, and failures by individuals who occupy such posts would have far-reaching consequences.

I asked the Minister a question earlier. I do not and did not expect him to trot out a list of all the excepted occupations, but he used the word ``limited'' about the occupations or posts that would be excepted. Will he elaborate on that when he winds up?

Is there any duty to the effect that, or are there any rules whereby, a post that is excepted from the 1974 Act is advertised as such? In other words, will those who apply for an excepted post know that it is excepted? It would be invidious for people not to know that from an advertisement, because in the case of people with previous convictions, it could well make their application meaningless and ineffective.

What duty of confidentiality is placed on the recipient of information about previous convictions that is given correctly and pursuant to the order? That is important, because people should be protected from the information becoming either public knowledge or the knowledge of anyone other than proper person pursuant to the order.

The hon. Member for South-East Cambridgeshire rightly pointed out that the exceptions are wide, and made wider in the order, because they include circumstances ancillary to a conviction. Is that really necessary, and if so, will the Minister justify it?

4.48 pm


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Prepared 26 November 2001