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Session 2008 - 09
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Public Bill Committee Debates

Draft Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2008



The Committee consisted of the following Members:

Chairman: Joan Walley
Burrowes, Mr. David (Enfield, Southgate) (Con)
Eagle, Maria (Parliamentary Under-Secretary of State for Justice)
Efford, Clive (Eltham) (Lab)
Featherstone, Lynne (Hornsey and Wood Green) (LD)
Gardiner, Barry (Brent, North) (Lab)
George, Mr. Bruce (Walsall, South) (Lab)
Hall, Mr. Mike (Weaver Vale) (Lab)
Hesford, Stephen (Wirral, West) (Lab)
Howarth, David (Cambridge) (LD)
Kawczynski, Daniel (Shrewsbury and Atcham) (Con)
Lucas, Ian (Wrexham) (Lab)
Malins, Mr. Humfrey (Woking) (Con)
Ruane, Chris (Vale of Clwyd) (Lab)
Stuart, Ms Gisela (Birmingham, Edgbaston) (Lab)
Tyrie, Mr. Andrew (Chichester) (Con)
Wright, Jeremy (Rugby and Kenilworth) (Con)
Mark Oxborough, Committee Clerk
† attended the Committee

Second Delegated Legislation Committee

Monday 15 December 2008

[Joan Walley in the Chair]

Draft Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2008

4.30 pm
The Parliamentary Under-Secretary of State for Justice (Maria Eagle): I beg to move,
That the Committee has considered the draft Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2008.
It is a pleasure to serve under your chairmanship for the first time, Ms Walley. We look forward to being kept in order, to the extent that we need to be kept in order, but I hope that whether I end up being loquacious or succinct, you will not have to pull me up for transgressions against Standing Orders.
The purpose of the Rehabilitation of Offenders Act 1974 is to help those who have turned away from crime to put their criminal record behind them and to move into employment if possible. It does so by allowing certain convictions to be deemed spent after a period, permitting ex-offenders not to disclose them. It also prevents unauthorised disclosure of the details of such convictions. It is accepted throughout the House and acknowledged more widely that employment is an essential ingredient in reducing reoffending, hence the Government’s commitment to the rehabilitation of ex-offenders in the work force.
Public protection of course is, if anything, more important, and in certain positions even the smallest risk that an ex-offender may pose must be carefully assessed, so it is essential to have the full facts to hand when assessing someone’s suitability for work of a sensitive nature. That is where the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, to which we are considering an amendment today, comes into play. To permit employers and bodies offering positions, professions and licences of a particularly sensitive nature to address an applicant’s full criminal history before making a decision, the 1974 Act grants power to the Secretary of State to exclude applications of the general rules in relation to specific employers, bodies and proceedings. The exceptions order sets out the categories to which the Act does not apply, notably those working with vulnerable groups and in other specific sensitive positions. In those positions and categories of work listed in the order, prospective workers are not entitled to conceal convictions and the Criminal Records Bureau may release information on those convictions regardless of whether they are spent.
Today’s order also enables the introduction of a new scheme to implement the corresponding provisions in the Criminal Justice and Immigration Act 2008—an old friend of some of us—which will bring cautions, reprimands and final warnings within the definition of convictions for the purposes of the legislation. Until now, as the disposals were not convictions, those who had been issued with them could never benefit from the provisions of the 1974 Act. In other words, there were no means by which they could become spent, although some much more serious transgressions could become spent. There is a clear inconsistency that a prison sentence may become spent, but a caution may not, and that someone convicted of a relatively serious offence should benefit, but someone who received a caution could not, hence the amending provisions in the 2008 Act. This order simply updates the exceptions order so that cautions, reprimands and final warnings can still be disclosed on standard and enhanced criminal records disclosures and made available when necessary.
The final provision is the addition of a new position to the exceptions order—that of non-lawyer approved legal services body manager, which is a great title for a job. Its addition is necessary to safeguard the probity and integrity of the legal sector, which I am sure we would all be committed to, and to protect the vulnerable groups that the sector represents. The position of approved legal services body manager is created by the Legal Services Act 2007, which introduces changes that will bring benefits to consumers and the legal profession alike. It provides for the creation of alternative business structures, which allow lawyers and non-lawyers to work together, providing a range of services. Full alternative business structures cannot come into force until the Legal Services Board—the new oversight regulator—is operational, which is expected in 2010. Until then, the Act enables a limited form of alternative business structure to come into being.
Those legal practices will for the first time allow the collaboration of lawyers and non-lawyers in the ownership and control of law firms. Lawyers among us will realise that that is a quite radical step. Traditionally, a partner in a law firm was required to be either a solicitor or the equivalent, such as a registered foreign lawyer. The Solicitors Regulation Authority, the regulatory arm of the profession, plans to regulate the new forms of practice from March 2009, subject to the approval of the rule changes necessary to regulate legal disciplinary practices. Those non-lawyers managing legal services will be in a highly sensitive position, potentially able to access sensitive client information and assets, and managing others with such access. They may also have access to the vulnerable individuals whom legal practices represent. Therefore, a level of vetting is required. It is correct that the Solicitors Regulation Authority should be able to carry out the same vetting procedures for non-lawyer managers as is currently the case for their solicitor counterparts. In other words, the provision is merely a matter of consistency, given the new structures being created.
The amendments are straightforward. I have taken a little time to explain them in some detail. I hope that that will satisfy the Committee.
4.37 pm
Mr. David Burrowes (Enfield, Southgate) (Con): It is a pleasure to come under your chairmanship, Ms Walley.
One of the parts of the exceptions orders that we are considering concerns the follow-on from the Criminal Justice and Immigration Act 2008, in the consideration of which I played my part, probably in this among other rooms. I think we took 48.5 hours in considering the Bill, over two parliamentary years, but I can reassure the Committee that we shall not be taking anywhere near that time today. There is no opposition to the order.
Nevertheless, the order raises a number of issues, and today is an opportune time to consider some of those of a more general nature. The context of the exceptions order is the Rehabilitation of Offenders Act 1974. The principle within that is to allow offenders who have not reoffended for a period of time a chance to wipe the slate clean, effectively, and to start afresh. That principle, particularly when dealing with exceptions, must be properly balanced with the need to protect vulnerable young people and adults. We are considering the need to ensure that the professions covered by the 1975 order are all properly updated to take account of new legislation.
The order quite properly seeks to provide that update for the definitions of child minding, ensuring that appropriate amendments to the 1975 order as a consequence of the Childcare Act 2006 are in place. The order provides the proper scope to ensure that those involved in registered child care in England are covered. As the Minister said, it also aligns the changes made to the 1974 Act by the 2008 Act, in relation to reprimands, warnings, cautions and conditional cautions, and appropriately so. The final change is to cover the newly created position with the catchy title, as mentioned by the Minister, of the approved legal services body manager. I remember spending many an hour considering the Criminal Justice and Immigration Bill, and although I have drawn the short straw on a number of occasions, I have not done so today.
A number of important issues arise from the order, perhaps even in relation to its implementation. There are several points to make concerning guidance, including the likelihood of amending the guidance for the Association of Chief Police Officers, especially the part on reprimands, warnings, cautions and conditional cautions that arise from the 2008 Act. Given that the exceptions order will make those penalties disclosable in a check on the professions covered by it, there are implications for young people. As the scope of the penalties is being widened to young people, it is important that appropriate guidance is in place, so that the relevant information is given to them when the offer is made in relation to the penalties. Those young people may well be without legal advice and may be dependent on accurate police information concerning the implications of the penalties. One of those implications is that the penalties will remain open to disclosure on relevant applications to the Criminal Records Bureau.
On the CRB and the discretion that is available to the chief constable in the relevant police force to decide what to disclose, when processing an enhanced disclosure, the chief constable must consider whether information held on an applicant might be relevant and ought to be included in the certificate. Hon. Members may well have had a number of constituents visit them concerning an enhanced disclosure check, and the discretion that is in the hands of the chief constable and how it is applied. Indeed, there have been a number of incidents relating to that. One example that I recently encountered concerned an individual who received a two-year conditional discharge in 1994 for a financial offence. He later applied to work with young people as a youth worker and was eminently qualified in many ways. However, he was unable to get the job because he had a criminal record. His words were:
“It seems harsh that people have to carry what is effectively a life sentence for past mistakes.”
It is important that there is appropriate guidance in these cases. The question of the discretion that is applied by chief constables is brought into sharp focus when dealing with those people who have not received any convictions or any disposals, penalties, cautions or the like, and allegations have been dropped before any type of disclosure. They then find at a much later stage that, although their case has not reached any formal determination, they are included on an enhanced CRB check. Therefore, I ask the Minister, either today or at a later stage, to reflect on the importance that is attached to the issue. Hon. Members may be able to confirm that it is represented in their postbag.
It is also the case that, in relation to the youth crime action plan, there was some hope that rehabilitation of offenders, particularly young offenders, would have received a particular mention. Last year, the Minister of State, Ministry of Justice, the right hon. Member for Delyn (Mr. Hanson), who attended the National Association for the Care and Resettlement of Offenders conference, indicated that there would be specific reference to the rehabilitation of offenders, but that has not been followed through in relation to the youth crime action plan.
I can give a particular example of a young person, a 14-year-old child with foster carers who was accused of inappropriate behaviour. The case went to the police and the individual was completely cleared of any wrongdoing. That allegation will always be shown on the enhanced CRB form because the police often opt to err on the side of caution. That will have an impact on the individual if he seeks to apply for a job in the professions that are included in the exceptions order.
The Association of Chief Police Officers issued guidance in 2006. I ask for that guidance to be updated, particularly as we seek constantly to update and amend the 1974 legislation to ensure that it reflects the balance that is needed between quite properly protecting the public and allowing the rehabilitation that is inherent within the 1974 Act to apply.
In July 2002, the Home Office published the consultation document “Breaking the cycle: Taking stock of progress and priorities for the future”, which focused on the effectiveness of the 1974 Act. In their response, the Government said that a draft Bill would be published as soon as it was practicable to allow for pre-legislative consideration of how the proposals are to be implemented in detail. However, such a Bill has yet to see the light of day. That has particular relevance to young people. In their response, the Government recognised that separate disclosure periods should be set for young offenders. They accepted that recommendation and deferred consideration of another recommendation whereby consideration should be given to the development of criteria to identify young offenders convicted of minor and non-persistent crime so that their records can be wiped clean if they need an enhanced disclosure at the age of 18 for the purposes of employment. Those considerations need to be looked at in detail.
My final point concerns the disclosure of criminal records. Recently, a number of cases have reached court concerning the disclosure of police information in connection with an enhanced CRB check. Some have also gone before the information tribunal for consideration. Recent cases include the disclosure of non-conviction information by police and the complaint by the former deputy principal, John Pinnington, who had unproven sexual abuse allegations on his record. He argued that the police were wrong to disclose the information to his new employer, which had resulted in his dismissal. Although he lost the case—
The Chairman: Order. I hope that these comments relate specifically to the order before us.
Mr. Burrowes: They do. The list of professions in the exceptions order covers those seeking offices, such as a deputy head. Applications for professions in the exceptions order would be affected. I do not want to take up too much time, although the matter is relevant and topical.
The case was considered in July 2008 and led to the information tribunal ruling that related to five individuals who had complaints lodged with the Information Commissioner about the retention of records on the police national computer. They contended that the retention guidelines breached the Data Protection Act 1998. As I understand it, ACPO is appealing the decision, which suggested that the 2006 guidelines are out of step and do not give proper consideration to data protection rules. Those issues arise from the debate on enhanced disclosure of criminal records and cannot be properly dealt with today, but they merit much more detailed consideration by the Government. More substantive legislation may be needed to deal with them.
4.49 pm
Lynne Featherstone (Hornsey and Wood Green) (LD): May I say what a pleasure it is to serve on your Committee, Ms Walley?
An example from the constituency of my hon. Friend the Member for Cambridge is the mother whose son suffered from mental health problems. She had to call the police to get help for her son, who had to be taken into custody and properly assessed so that he could get treatment for his illness. Although he did not exhibit any threatening behaviour, there had to be a police reason for an arrest in order to get him taken into custody to get the help that he needed. That is a ludicrous scenario, but it is actually what happened, and it meant that something ended up in the son’s CRB check as soft information—it was disclosed on a request for enhanced disclosure—saying that he had threatened violence, although his parents denied ever feeling threatened. The mother was distressed that her attempt to help her son had damaged him in that way, and he subsequently lost his job as a result of enhanced CRB disclosure. My hon. Friend managed to get some traction on the case and the wording of the disclosure was later amended, but the entry remains.
That throws up two issues which are not specifically for this debate, but they are along the same lines. I would be grateful if the Minister considered them. First, there ought to be an accountability procedure rather than the matter just being at the chief constable’s discretion. The hon. Gentleman also referred to that. Secondly, there is no obvious formal procedure for challenging what the police say. Therefore, it is difficult to get soft information about police suspicions removed from the record and, therefore, there is disclosure under an enhanced disclosure request on a CRB check.
Those are matters which, in the long term, will affect people’s life chances for no reason. We are taking this path, but one would hope that as the balance, which, obviously, must err on the side of caution, is gradually refined, guidance will be given to remove even the more exceptional cases.
4.52 pm
Maria Eagle: There are questions for me to answer despite the fact that everybody agrees with every bit of the order, but I am happy to deal with points that have been raised. They mainly arise out of the interaction between the purposes of the newer legislation, Safeguarding Vulnerable Groups Act 2006, and the older legislation—the 1974 Act. I believe that every instance that has been raised relates to the interaction between those two pieces of legislation.
I must make it clear that the purpose of the enhanced disclosure provisions and the barring and vetting scheme, which comes into force next year, is to prevent another Soham-like set of circumstances from developing. The provisions arise out of the Bichard report which followed those terrible murders. It became apparent that the perpetrator had been in a position of trust in respect of young children, and that there had been significant suspicions about his behaviour, although there had been no convictions. The barring and vetting scheme, the Bichard report and the 2006 Act arose out of the lessons learned from that set of events, which ended in the murder of two young schoolgirls who might have been saved had some of the information about the perpetrator been known by the authorities. The 2006 Act is about putting right problems in respect of information-sharing and about ensuring public protection, particularly in vulnerable areas, not just from those who have convictions but from those about whom there are suspicions.
The examples that the hon. Members for Hornsey and Wood Green and for Enfield, Southgate gave in respect of soft information and enhanced disclosure are about attempts to track people when it comes to employment in sensitive areas where vulnerable people, whether children or adults, might be at risk. We must ensure that employers have a good chance of spotting individuals who might pose a risk before jobs are given to them, and that they are able properly to consider whether those individuals should be trusted in such positions. We must bear that in mind.
On ACPO guidance on the extension to cautions, final warnings and reprimands, the hon. Gentleman said that when young people in particular are offered the opportunity of disposals that do not count as convictions, it is important that they receive proper information about the implications of such disposals. I quite agree. However, the statutory instrument before us does not make things harder for those people; it makes the disposals subject to the removal provisions of the 1974 Act. That does not take them out of the equation when it comes to the barring and vetting scheme or to the soft information, but it is not intended to. We should bear it in mind that the barring and vetting scheme will deal only with sensitive employment—looking after, being in charge of and working with children and vulnerable adults. It will not deal with all employment, because not all employment provides an entitlement to enhanced disclosure. We have to bear in mind the legislation’s purpose.
A balance must be struck, and hon. Members made points about an individual’s circumstances. Many of us will have heard constituents at constituency surgeries raising similar issues. I certainly have. They say, “Look, if I had murdered somebody or committed a serious offence, the Rehabilitation of Offenders Act would protect me from having to disclose it at a certain point, but, because somebody tittle-tattled about what I had done in a job”— bearing in mind that, to those who come to my surgery anyway, it was never their fault and these issues were never accurately recorded—“the enhanced disclosure is going to be on the record for ever.” Well, yes it is: that is the whole purpose of the barring and vetting scheme. We, as a Parliament, decided that we wanted it, and there has to be a balance. Employers must have an obligation to take that information seriously, and they must act on it appropriately—not just refuse, in a blanket way, to employ anybody. The information exists to enable them to assess the risk, not to run away in the opposite direction. One hopes that as the legislation comes into operation, it will be operated sensibly and in that way.
Mr. Burrowes: On the subject of how employers apply their duties when information about the enhanced check comes before them, I found a policy statement, DIP 011, dating back to 2005, concerning policy on the recruitment of ex-offenders when such information comes before employers. Given the passage of time, has there been a review of the appropriateness of that code of practice, which is now in place, and of whether it needs to be updated?
Maria Eagle: As the barring and vetting scheme comes into force next year, I think that a raft of guidance from various organisations will be updated. I should not like to commit ACPO to a particular time scale or to say that a particular set of guidance will definitely be updated, because I do not speak for ACPO, but, as the scheme comes into force, clearly, significant and quite old guidance will have to be updated. I am sure that that will be done.
The hon. Gentleman made a point about the role of the chief constable, and it is currently down to the chief constable’s discretion as to how to deal with the issue. He is a responsible post-holder, and I am sure that he, in any particular constabulary, is the right person, in the right place, to make such decisions.
I have probably dealt with the hon. Lady’s point about the case in the constituency of the hon. Member for Cambridge. These are difficult issues and, on the one hand, we want to protect the vulnerable, but, on the other, we do not want to prevent people from being able to work. Perhaps some people ought not to be working in jobs that have an interface with vulnerable children and adults, and that is the whole purpose of the barring and vetting scheme. In any individual case, we must be careful to ensure that we strike the right balance, but I am sure that as the scheme is rolled out, there will be instances where the balance is wrong, and it will be for individual Members to take them up. However, we must not lose sight of the legislation’s purpose.
On data protection and Information Commissioner, I am not in the business of commenting on cases that are subject to appeal, beyond saying that we will look with interest at how the appeals turn out. No doubt, we will all be more enlightened, after that, about the appropriate way forward.
Question put and agreed to.
5 pm
Committee rose.
 
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