The
Committee consisted of the following
Members:
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 Governments 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 someones 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 applicants 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.
This
order serves three minor purposes, and I shall set them out in turn. It
updates definitions relating to child care; it extends the scope of the
order to cover cautions, reprimands and final warnings; and it adds a
new category of non-lawyer managers to the exceptions
order. The Committee will agree that protecting children is a core
responsibility on the Government, so it is vital that legislation is
consistent. The minor change that we are considering simply updates a
reference to the Children Act 1989 and inserts a reference to a
successor. It changes the definitions of child minding and day care to
make them consistent with the Childcare Act 2006. Child care provision
in England has been regulated under part 3 of the Act since 1 September
2008, and regulations made under the Act require enhanced CRB
disclosures for those caring for children, and others having contact
with children on child care premises. As the exceptions order already
covers those working with children, there is no change to the scope
implicit in the amendment that we are
considering.
Todays
order also enables the introduction of a new scheme to implement the
corresponding provisions in the Criminal Justice and Immigration Act
2008an old friend of some of uswhich 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
orderthat 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 Boardthe new
oversight regulatoris 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?
In
essence, we will support the Government on the order. It deals with an
important issue. As the Minister said, employment helps in the process
of rehabilitation. Anything that damages the chances of rehabilitation
may defeat the object of pulling people away from their criminal years
and into a better future. Like the hon. Member for Enfield, Southgate,
we have a number of cases in which a record has been left on file when
it should not have been. Such practices can damage future chances. They
are perhaps even more exceptional than the exceptions mentioned in the
statutory
instrument.
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 sons CRB check as soft informationit
was disclosed on a request for enhanced disclosuresaying 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 constables
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 peoples 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 legislationthe 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 employmentlooking 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
legislations purpose.
A balance
must be struck, and hon. Members made points about an
individuals 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
recordedthe 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
appropriatelynot 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 constables 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. Ladys 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 legislations
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.