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Lord Mishcon: My Lords, perhaps I may say this to the Minister and the noble Lord, Lord Renton. Rather unusually they appear to have missed the point. The amendment has nothing to do with the periodic administration of the duties under the Bill which, rightly, will be reported upon to Parliament.
The Earl of Courtown: My Lords, perhaps I may remind the noble Lord, Lord Mishcon, that it is Third Reading. As I understand the procedures of the House, no one can speak after the Minister has replied.
Lord Mishcon: My Lords, I bow to a most unwelcome tradition.
Lord Williams of Mostyn: My Lords, I have been instructed by the noble Lord, Lord Mishcon, in the past. I respectfully agree with him. I always agree with him and am always deeply respectful to him. What was said in reply missed entirely the point that I made. That is understandable. However, I prefaced my remarks by indicating that it was not my intention to seek the opinion of the House or to press the amendment in its narrow form. I suggested that now was a sensible and suitable opportunity to have a brother inquiry to that carried out by the noble and learned Lord, Lord Lloyd of Berwick, in the Northern Ireland context in order to consider intrusions into privacy in this country.
If one focuses upon police intrusion--we have the provision inevitably and necessarily in the Bill--one is in danger of becoming too narrow in focus. I know that the Minister has an enormous number of different amendments and different Bills to deal with at present. I simply floated the question whether now is the time to have a general inquiry on intrusive devices. Should they be licensed? Should they be controlled? They are increasingly sophisticated, as a number of noble Lords said. Is this the moment to have a compendious, wide-ranging inquiry of the kind that the noble and learned Lord, Lord Lloyd, so well carried out? It was never my intention to have another layer of bureaucracy. I am not in favour of bureaucracy as a general principle.
Those are the points that I put forward. None of them was responded to. Perhaps I spoke too quietly. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hilton of Eggardon moved Amendment No. 7:
After Clause 107, insert the following new clause--
(" .--(1) The Secretary of State shall establish a body to be known as the Criminal Records Tribunal ("the Tribunal") to hear an appeal from any individual applicant who disputes the accuracy or relevance of information contained on a new certificate which is issued to him under section 107 and which contains the same information as the original certificate.
(2) The Tribunal may examine any information held on the applicant and that contained on the certificate and assess the accuracy of the certificate.
(3) A person who appeals to the Tribunal may be represented by a person of his choice.
(4) The Tribunal shall give reasons for its decisions.
(5) An appeal shall lie from a decision of the Tribunal to the High Court.
(6) The Tribunal may award compensation to an individual applicant.").
The noble Baroness said: My Lords, I address an issue which we considered previously at both the Committee and Report stages of the Bill. The amendment comes before your Lordships now in a slightly different form. We propose a criminal records tribunal. That was specifically excluded by the Minister on a previous occasion. However, I believe that we have not resolved the problem of someone who is supplied with an inaccurate or misleading certificate and may thereby lose a job opportunity. I realise that that person can appeal to the Secretary of State. But that is a meaningless formula. It is not clear what form the appeal procedure takes. If an applicant comes before a prospective employer for a job interview, an inaccurate certificate which the applicant wishes to challenge may well cast a cloud over the application. That person may well lose a job opportunity for which he is well suited. It seems essential that there should be a specific system for people who are issued with misleading certificates.
We know that in other fields people are blacklisted by credit companies because inaccurate information is supplied. We know too that the police criminal records computer is behind in logging new criminal records. There are many ways in which people may be issued with misleading or false certificates.
My concern is for the innocent person who is harmed by the new system. I am not concerned about the criminal or the person who has genuine convictions, but the innocent person who loses a job opportunity by failing to impress an employer because there may be some suspicion about the certificate. It seems essential to have a system of appeal which can resolve rapidly the problem of having a false certificate. It is not sufficient that a person can appeal to the Secretary of State for a new certificate. That is a meaningless formula. We need a system provided on the face of the Bill. If it is not a criminal records tribunal, it should be clear in what way people can redress what may be a grievous wrong which may affect the rest of their working life. I beg to move.
Lord Rodgers of Quarry Bank: My Lords, I support what has been said by the noble Baroness about the proposed new clause. At all stages of the Bill I have been concerned about what I believe will be the possibly fraught consequences of the implementation of Part V. I have been particularly concerned by Clause 103, which was originally Clause 100 and became Clause 102 on Report. I have argued for the omission of the provision of criminal conviction certificates or for the delay of the implementation of Clause 103. The Minister made helpful noises without being specific about her intentions when we discussed the matter late at night last week.
As the noble Baroness, Lady Hilton, rightly said, there is a danger that innocent persons will be harmed by errors which occur. By referring to Section 107, the amendment refers to all the relevant clauses in the Bill, Clause 103 onwards. We should not underestimate the extent to which an error in any certificate will cause distress. It will not be easy to remedy damage done.
The noble Baroness drew attention to the fact that the Bill provides that the Secretary of State shall consider any application. In other words the Secretary of State will consider whether an error has occurred. But many people who may be affected by the Bill, and by this provision if it becomes part of the statute, will not regard the Secretary of State as an independent person. We know from whom the certificates will come. Both innocent people and those who may have had cause to have something marked upon the certificate will not believe that the Secretary of State is wholly independent. Whether they are right or wrong will depend on the processes established to deal with appeals. However, I am sure that the public, and possible innocent persons, would be reassured if there were some procedure. Whether a tribunal is the right procedure I cannot say. But it is the only one before us, and I find it convincing. I hope that the Minister will consider that point very seriously. It does not affect the principle of the Bill, nor the effectiveness of these
Lord Renton: My Lords, when this matter arose late at night at Report stage my noble friend Lady Blatch said that the criminal records tribunal,
Clause 106 makes provision for the enhanced criminal record certificate to be issued to any individual. The provisions relating to that are very thorough. We know from experience that criminal records in this country are kept with very great accuracy, as are various other records with which we are familiar--drivers' records and so on. The administration deserves congratulations on the manner in which such records are kept. In the very rare circumstances when a mistake occurs, attention can be drawn to it without having to go to a tribunal. The amendment represents an excess of zeal. I hope that in the interests of the public broadly and because of the cost, my noble friend will resist the amendment.
"would be unwieldy, bureaucratic",
"and ... would add yet more costs to the Bill".--[Official Report, 20/1/97; col. 540.]
5 p.m.
Baroness Blatch: My Lords, I welcome the opportunity to reiterate the Government's view on this matter. It is essential that the information contained on criminal conviction and criminal record certificates is accurate. That would be supported on all sides of the House. It would be wholly wrong if, for instance, someone's prospects of securing employment were disadvantaged by inaccurate information appearing on a certificate. There will therefore be administrative procedures as well as statutory safeguards which will enable that to be dealt with.
First, it will be necessary for applicants for certificates to prove their identity so that the records can be searched using the correct details. In the case of criminal conviction certificates, proof of identity will be sent with the application to the agency. For criminal record and enhanced certificates the counter-signing organisation will have checked identity before forwarding the application.
Once the records have been checked, if there is any doubt as to whether the details of a record "belong" to an applicant, the agency will be able to seek further confirmation of identity. If necessary a fingerprint check can be sought before a certificate is issued. It should normally be possible to resolve the matter in these cases before any certificate is issued.
However, if, once a certificate is received, an individual wishes to query its accuracy he will be able to do so under the provisions of Clause 107. That also represents an enormous improvement over existing practice. Save in very unusual circumstances where information might put at risk an ongoing investigation, the individual will know exactly what is reported about him. Where a certificate is challenged a thorough check
will be carried out, including, if necessary, a fingerprint check. If an error is found, a new certificate will be provided to both the applicant and, where appropriate, the registered body. It is already accepted that fingerprints provide a reliable and accurate means of establishing identity. Central records are backed by fingerprint identification, and so, too, are many locally held records.Chief constables will be responsible for the accuracy of criminal record information and, where locally held records are not backed up by fingerprints, they will need to be confident of the reliability of the match before issuing information for inclusion on an enhanced certificate. They will also be responsible for the release of any non-conviction information and for judging its relevance for the application in question. In doing so they will need to bear in mind the guidelines set out in Annex B to the White Paper, On the Record. This is not a new responsibility which is being placed on senior police officers. They already make such decisions under existing arrangements. Should information be provided by the police negligently, the individual may have a remedy against them.
In addition, there is a formal complaints procedure which an individual can use if he feels that he has been treated unfairly or improperly in any way by a member of a police force. That is laid down under Part IX of the Police and Criminal Evidence Act. The investigation and resolution of complaints is subject to the scrutiny of the independent Police Complaints Authority. Police officers are subject to a strict disciplinary code and face possible dismissal if found guilty of a serious breach of discipline.
There are also existing sanctions that could be taken against the Criminal Records Agency if an individual believes that he has been the victim of an injustice due to maladministration. The matter could be taken up with the Parliamentary Commissioner for Administration, who has wide-ranging powers to investigate a complaint and make recommendations to the government department concerned, including the suggestion that compensation be paid. If the commissioner feels that the department has not responded adequately to any recommendation, he is able to refer the matter to the Select Committee on the Parliamentary Commissioner for Administration, which can raise the matter on the Floor of another place.
As noble Lords will appreciate, that is a serious sanction which, wherever possible, government departments will wish to avoid. That is why, in the vast majority of cases, the commissioner's recommendations are normally accepted by the government department in question.
I do not understand from the amendment how the tribunal would be constituted; how it would be qualified to assess either the accuracy or the relevance of the information on the certificate; and on what basis it would award compensation. A single tribunal would have to cope with Northern Ireland, Scotland, Wales and England. If there was one tribunal for each of the four countries, that would be very difficult for people in parts of England to access, other than at great expense.
If it was county based or district based, there would be many tribunals. We do not know from the amendment what is envisaged, nor from the way in which it was spoken to.A criminal records tribunal along the lines proposed by the noble Baroness would be unwieldy--I repeat the words used by my noble friend--and bureaucratic. It would also be expensive to set up and operate. Although, given the vagueness of the amendment, it is difficult to quantify just how expensive it would be, if one imagines making it accessible to all the potential applicants for certificates, we are talking about a very substantial amount indeed. The cost would have to be borne either by those who were unsuccessful in their appeals--and I am sure that that is not what is meant by the amendment--or, if that was not feasible, all other users of the agency, who may well not be in a position to fund the extra cost, or the taxpayer. As noble Lords have already voted to waive the fees for millions of volunteers, that would add a considerable further financial burden on other users of the agency or on the taxpayer. I would ask the noble Baroness how it is proposed that the costs are met.
A complex structure such as this should not be necessary in order to ensure that individuals receive accurate criminal record certificates. We believe that they should. In speaking to the amendment, I outlined the remedies. I believe that all the checks and balances are there in the system and that a very speedy means of remedying incorrect information is addressed. This amendment takes a sledgehammer to crack a nut. For those reasons, I hope that the amendment will not be pressed.
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