| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord McIntosh of Haringey: I am sorry to return to this point but the Minister gave an uncertain reply to the definite question that I asked her. On one occasion she said that she hoped--and on another occasion she said that she expected--that the use of enforced subject access would decline if Clause 100 were accepted. That is not good enough. If Clause 100 is to achieve what it ought to achieve, it ought to replace enforced subject access under the Data Protection Act. Will the noble Baroness at least say that the Home Office will issue guidance to employers that they should be using the criminal conviction certificate rather than the Data Protection Act if they
wish to ask individuals to show their freedom from a relevant conviction? If she were to say that, I should support the inclusion of Clause 100 in the Bill.6 p.m.
Baroness Blatch: Between now and the next stage of the Bill, perhaps the noble Lord will allow me to read what has been said in the debate and to think about what he said. First, I gave a straight answer. I said that, no, we had not intended formally in legislation to rule out the use of enforced access to information held on computer. We shall continue, because we must under the law allow the individual to seek that information. The noble Lord looks vexed; I hope that he will hear me out on this point. The individual will be allowed to continue to seek information held about him on the computer. We believe that the absence of a criminal conviction certificate has probably given rise to an increasing use of enforced access. We believe that the criminal conviction certificate will take the place of enforced access.
I said to the noble Lord--he finds it unsatisfactory--that we would wait and see; and that only if it became an issue would we consider looking again at the rules of disclosure. The noble Lord invites me to say that simultaneously we should introduce Clause 100 and outlaw under the legislation the use of enforced access. I wish to think about what the noble Lord has said.
I come back to what the noble Lord, Lord Lester, said; I have had some advice. The noble Lord asked about disclosure being a breach of Article 8 of the European Convention on Human Rights. I understand that disclosure of the criminal conviction certificate will be a matter for the individual. Therefore, we do not believe that it is a breach of Article 8 of the convention. It is for the individual to decide to whom to disclose the information and on what terms.
Secondly, the protections of the Data Protection Act will apply to information contained in a criminal conviction certificate where held on a computer. Therefore, it could only be disclosed to a third party with the consent of an individual or where it falls within the provisions of that Act. Therefore the Data Protection Act applies only to data held on computer, although there are proposals to extend the provision to normal files. As we move towards the 21st century, the Data Protection Act and the disclosure rules would bite on this information, it being held on computer.
Lord McIntosh of Haringey: The Minister has answered my direct question in a direct way. The noble Baroness confirmed that Clause 100 does not repeal that part of the Data Protection Act. What I wanted her to say, and what I think she is saying, is that she understands the problem. She understands that the present situation is unsatisfactory and that we seek an improvement through the enactment of Clause 100. If that is the case, and if the noble Baroness is willing to talk between now and the next stage of the Bill about the possibility, for example, of issuing guidance
to employers that they prefer criminal conviction certificates, I should be prepared to urge the noble Lord, Lord Rodgers, not to put the issue to a vote.
Baroness Blatch: I should have been more forthcoming. I apologise to the noble Lord. I hope that he will understand if I reserve my position on what we do legislatively about enforced access. However, even without consulting with officials, I can say that we would consider putting the matter in guidance. I take the point that we should be discouraging employers from using this route to seek information and that the criminal conviction certificate should suffice. I can give him an absolute assurance that we would address that issue in guidance.
Lord McIntosh of Haringey: I am grateful. On that basis we could have a better position than now. I urge the noble Lord, Lord Rodgers, not to press this issue to a Division.
Lord Rodgers of Quarry Bank: I am grateful for the advice of the noble Lord. I listened with attention and wry amusement to the exchanges across the Chamber. I thought that the Minister was trying very hard to say yes to the noble Lord. In so far as she did not succeed, the noble Lord sought to put into her mouth the words which, if she spoke them, would enable him to say that he did not intend to oppose Clause 100. Although I should like to read the Official Report to gain the full flavour and excitement of the exchange, between the two of them I think they reached the conclusion that on Clause 100 they agree. As I understand it, the noble Lord asked whether Clause 100 would replace the Act. The answer was no. There was then a movement of opinion: perhaps it would lead to the phasing out of the Act. The answer was: not really. It was suggested that it might result in there being no need for access to the Act. The answer was that that might be a possibility. The Minister was asked to consider giving guidance to employers. The noble Baroness was not going to say whether she would or would not. I have never heard so many reserved opinions on both sides of the Chamber in the whole of my time here. I fully understand the difficulties of the Minister and the noble Lord. I believe that we shall remember that exchange for its entertainment value.
A number of interesting points were made during our short debate. I shall not dwell upon them too fully now. I say only that my reference to the position of parliamentary candidates was to illustrate what I believe to be the unfairness of Clause 100. I remind the Minister--she understands this even if the noble Viscount, Lord Bledisloe, pleads that he knows nothing about politics--that anyone can stand for Parliament; one does not have to be selected by a political party. I can guarantee that at the next election a large number of men and women will stand without a selection process. For the Minister to believe that within two or three days of polling day it is realistic for anyone to stand up at the back of a political
meeting and ask the candidate, "Will you produce your criminal conviction certificate?", and that that would have any bearing on the result, is Cloud-cuckoo-land.The point I make is not a major one. I made it at Second Reading and shall not do so again. It is not compatible with the fairness of the Bill that those going for paid employment, often in jobs where there is no risk, should be expected to produce this certificate. If one stands for elective office, with all the trust that that entails, whether in local or central government, one will not be expected in the same way to produce a criminal conviction certificate.
I agree with the point made by the noble Viscount, Lord Bledisloe, about the practice today. It may not be unusual for employers to ask potential employees whether they have a criminal conviction. However, Clause 100 institutionalises a routine question. For that reason I find it unacceptable.
I shall not further discuss the meaning of Clause 104. However, my understanding of the word "redress" is different from that of the Minister. The Minister repeated what is palpably true: that if for any reason a criminal conviction certificate is inaccurate, a new certificate will be issued free of charge. But that does not deal with redress in the event of damage being done to an applicant as a result of the first certificate being inaccurate.
I agree with the Minister that perhaps what matters most is rehabilitation. However, she rested where I am not prepared to rest--on the argument (it is true so far as it goes) that those with spent convictions have no need to worry. I have argued, and will continue to argue in further stages of the Bill--I understood that it was the message of the right reverend Prelate the Bishop of Lincoln--that under the Rehabilitation of Offenders Act 1974 (and there is no proposal to amend the Bill; it is the basis for our decision today) many convictions are not spent in a lifetime and other convictions are not spent for many years.
I have no doubt that Clause 100 is prejudicial to such men and women gaining jobs. I regard that as serious, unfair and likely to lead to greater offending. I do not expect 137 noble Lords to follow me into the Lobby. But the issue is one of principle and it should be on the record that at least some of us believe that Clause 100 should be deleted from the Bill.
The Deputy Chairman of Committees (Baroness Serota): The Question is, That Clause 100, as amended, stand part of the Bill. As many as are of that opinion will say "Content"; to the contrary "Not-Content". I think the "Contents" have it. The "Contents" have it.
Lord Rodgers of Quarry Bank: Forgive me, but there is some misunderstanding. The intention was to divide the House. I believe that the fault lies with what the Deputy Chairman said in putting the Question to the Committee.
The Deputy Chairman of Committees: I shall put it once more for the sake of clarity.
6.10 p.m.
On Question, Whether Clause 100, as amended, shall stand part of the Bill?
Their Lordships divided: Contents, 126; Not-Contents, 39.
Next Section
Back to Table of Contents
Lords Hansard Home Page