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Those who use the services of immigration advisers are often extremely vulnerable. They include recent victims of persecution, violence or torture; minors who may be unaccompanied; and those with no knowledge of the UK legal system and potentially little or no knowledge of English. For these people, immigration advisers are in a position of significant power and trust. They can represent their clients before tribunals, advise them on legal matters, and submit forms and applications about their immigration status to the UK Border Agency on their behalf. Furthermore, they may charge substantial fees for their services, and misleading their clients could result in an application being refused or detained or, at worst, the client being deported. In other words, there is therefore significant scope for wrongdoing, and it is essential to prevent those who would willingly abuse the system to provide false documentation, wrong legal advice or illegal services from being able to practise.

Since its creation, the OISC has taken enormous steps in regulating the profession and in ensuring that those who practise as immigration advisers do so for the correct reasons. However, it has now identified areas of weakness in its current vetting system that could lead to highly vulnerable individuals being abused, and as such it is only correct that we should help it to resolve them. The provisions in the draft order therefore enable the OISC to obtain criminal record disclosures for those whom it regulates. This means that it will be able to vet those who seek to work in this sensitive profession on the basis of all available evidence. In turn, it will be able to prevent those with a background of abusing immigration law from being able to gain a foothold in the sector of immigration advice.

Finally, I move to the provisions relating to the Criminal Records Bureau-the CRB. This body was set up in 2002 and is responsible for providing disclosures, including criminal record information, for all the purposes specified in the exceptions order. The nature of its work and the data to which it has access are obviously sensitive. A recent review of CRB staff security measures has recommended that, in order to meet government best practice, it should enhance its internal staff vetting from the current baseline standard checks. This need is made even more pressing by the fact that some of the CRB's work is changing, with CRB employees playing an ever more active and involved role in ensuring an effective safeguarding system. As well as the CRB's role in matching the individual named on an application form with a record on the police national computer, the CRB is increasingly conducting data-matching work that was previously conducted by the police. This will involve the CRB undertaking an initial search of police local intelligence systems. With both these searches, clicking "no match" may result in a clear disclosure being issued to a person with a criminal record or relevant local police intelligence.

The CRB will also be processing future applications for ISA registration on behalf of the Independent Safeguarding Authority. Failure to pass on details of a conviction to the ISA could result in a person who would otherwise be barred being allowed to work with children. For this reason it is vital that those working

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in this role need to be checked and cleared as not having any criminal history which would give cause for concern.

Those in the ISA who will be interpreting criminal record information to make barring decisions are already listed in the exceptions order. It is only logical that those who gather relevant information from the police national computer and are responsible for providing it to the ISA should be vetted to the same level. Put simply, as the CRB's business develops, it is vital that those who have access to the police national computer and those who can influence the outcome of disclosure and barring decisions do not themselves have criminal records that they would rather keep hidden. I trust that the Committee will agree that this is not only sensible but essential.

In conclusion, the order is a clear illustration of the Government's commitment to updating safeguarding legislation to ensure that it does not get left behind by changes in legislation and risk analysis. The rehabilitation of ex-offenders remains a priority, but the protection of the vulnerable in society is an absolute necessity, as is reducing the risk of abuse of trust in the immigration, drug licensing, locksmiths and criminal record-handling regimes. I beg to move.

Lord Henley: I thank the Minister for that extensive explanation of this order. We obviously welcome the principle behind the rehabilitation of offenders and it is right that offenders should have a chance to wipe the slate clean, as it were, and make it easier for them to seek employment thereafter. However, there have to be exceptions to that which need regular updating, as the Minister said, to make sure that the appropriate ones are put in.

I was amused by his explanation as to why those seeking membership of the Master Locksmiths Association should be included. It occurred to me that a successful burglar probably would not need to be a member of the Master Locksmiths Association, but a successful burglar is probably much less likely to be caught anyway and, therefore, to have convictions; but the unsuccessful burglar might in later years want to seek membership of the association to improve his further career chances in that profession.

I am grateful for the Minister's explanation as regards all five classes. I have only one question on which I hope he can help me. It relates to paragraph 3 of the Explanatory Memorandum on:

"Matters of special interest to the Joint Committee on Statutory Instruments".

As I understood it, the Joint Committee referred to some problems which were explained in terms of a drafting error in the primary legislation when the original Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 was amended. There is an explanation of this in paragraph 3.2 which seems to relate only to what the department now,

That is merely a statement by the department of its view. Can the noble Lord tell me if that is correct and, if so, when will the department find an opportunity to seek a proper amendment? Will that require primary

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or secondary legislation? In the mean time, does the department think that it will be safe to rely on the assertion it seems to make in paragraph 3.2 of the Explanatory Notes?

Lord Dholakia: I also welcome the explanation offered by the Minister on the order. We welcome what he has said. Obviously, the order is sensible enough, and a good case is made out for the five various exemptions that the Minister has specified.

I raise this matter because I have shown considerable patience since the Home Office first produced its consultation paper on the Rehabilitation of Offenders Act. Having cleared it with the Public Bill Office, I am now in a position to promote a Bill on the Rehabilitation of Offenders Act. I am delighted that the noble Lord, Lord Henley, has offered the support of his party and that the Minister said that this matter remains a priority for the Government. I look forward to their co-operation in the matter.

The Minister mentioned that the Office of Immigration Service Commissioners regulate immigration advisers as defined in Section 82. I think that we are talking of the solicitors who offer people advice. Now the Government want to bring in other people who may not necessarily be qualified in legal matters and yet do valuable work advising on immigration, asylum and so on. I hope that I am right on that. If I am, can the Minister explain whether that is limited simply to immigration advisers operating in this country? What happens to people who come from abroad and are attracted to work with solicitors who are qualified in immigration matters? Is there any way to determine their status through the CRB and others before they work with vulnerable groups? Does a similar system exist in other parts of the world from which immigrants or asylum seekers come to this country?

I am also delighted that the order provides for sensitive occupations, such as work with children and vulnerable adults, to remain exempt from the proposals. That exemption will, to a great extent, reduce the scope of discrimination against former offenders and, because employing offenders reduces reoffending, it will also increase public safety. It will be very helpful if the Minister can take the lesson from this exercise that, while we support the order, it would be in the interests of the Justice Secretary, Jack Straw, rather than tinkering again and again with the Rehabilitation of Offenders Act by making exemptions now and then, to look at the whole provision and see whether parliamentary time permits to either introduce legislation or at least support my Private Member's Bill, which I hope to introduce soon after the Summer Recess.

Lord Tunnicliffe: Turning first to the drafting error, it is in the primary legislative provision located in Schedule 2, which is inserted by the Criminal Justice and Immigration Act 2008. The reference in the second line of paragraph 4(a) to "paragraph 3(2)" should be to "paragraph 3(3)". That erroneous cross-reference has arisen because paragraph 3(2) was inserted after the original clauses were drafted, and the cross-reference has not been updated to reflect that. The Joint Committee on Statutory Instruments was of the opinion, as are we, that this is a clear case of a simple error of

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drafting, and that the reference can be properly read as referring to paragraph 3(3), therefore providing the proper vires for this order. I am pleased to report that we have just received notification from the House authorities that they are proceeding to issue a correction slip-actually, I now have a copy of the correction slip with me.

I turn to the questions of the noble Lord, Lord Dholakia. Speaking personally, I am impressed that the noble Lord, Lord Henley, was able to detect the humour in my reference to locksmiths; it was in the middle of a very long speech.

On the issue of immigration advisers, in order to practise in this country as an adviser a person must be subject to regulation by the OISC. I will look at Hansard to see whether that answers the noble Lord's question completely as he was going into some more difficult areas. I will write to him on it if I feel that it remains unanswered.

On the essential point that the noble Lord was making about his view that reform of the Rehabilitation of Offenders Act was long overdue, I am well aware of his commitment to this subject and I reassure him that the Government are also mindful of the importance of rehabilitation. That does not mean, though, that we can lose sight of the importance of public protection. Therefore, whether or not the reform of the Act is progressing as he desires, I am sure that he will acknowledge the importance of the current order.

I confirm that the commitment to reform the Act remains in place; however, no timeframe for such a reform has yet been set, and the task will not be a simple one when it arises. The noble Lord is aware of the pressures on parliamentary time and the ever competing priorities for it. I look forward to the noble Lord's promised Private Member's Bill, and we will give it careful consideration in due course.

Motion agreed.

Criminal Defence Service (Provisional Representation Orders) Regulations 2009

Criminal Defence Service (Provisional Representation Orders) Regulations 2009
17th Report of Joint Committee of Statutory Instruments

Considered in Grand Committee

5.22 pm

Moved By Lord Tunnicliffe

Lord Tunnicliffe: This instrument is being made to provide for publicly funded legal representation in cases of investigations of serious or complex fraud governed by the guidelines on plea discussions in those cases that were issued by my noble and learned friend the Attorney-General on 18 March 2009.

The Criminal Justice and Immigration Act last year inserted paragraph 1A into Schedule 3 to the Access to Justice Act, headed "Individuals to whom right

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may be provisionally granted", and these regulations are made under that paragraph and under paragraph 2A(1)(c). At the time of making that amendment to the Access to Justice Act, the Government envisaged making regulations to deal with plea discussions. That had been recommended in the final report of the fraud review, which was published in July 2006.

The report made a number of recommendations encompassing the prevention, reporting, measurement, investigation and prosecution of fraud. The underlying message in the report, which the Government fully accepted, was that it was essential to have an overarching fraud strategy linking all these areas and drawing in all interested parties throughout the public and private sectors.

On the subject of fraud prosecutions, the report recommended that a framework and new guidelines on the conduct and acceptance of pleas by prosecutors in fraud cases should be issued by the Attorney-General. Detailed proposals for the framework for plea discussions were the subject of a public consultation by the Attorney-General in 2008. With some caveats, which we have addressed, the majority of respondents supported the implementation of the framework.

Discussions about the plea and possible sentence already take place in criminal cases in England and Wales. They can be highly beneficial in saving time and costs, and in particular can reduce the stress experienced by victims and witnesses. The benefits can be particularly marked in fraud cases, where the investigation, case preparation and trial are often particularly lengthy and typically run for a number of years. The discussions are also likely to be more complex in these cases than in others. The Attorney-General's aim in issuing guidelines was to put these discussions on to a clearer footing in fraud cases.

Enshrined in our criminal justice system are three key principles. First, it is the duty of the prosecutor to ensure that the case is put before the court in a way that reflects the true facts and the full gravity of the offending. Secondly, the defendant must not be put under any improper pressure to plead guilty, so the framework adds no new incentive or sentence discount that would reward the defendant for reaching a plea agreement. Thirdly, the court must have the unfettered discretion to pass the right sentence for all the circumstances of the case. It is important to emphasise that the court's hands will not be tied in any way by this process.

The Attorney-General is confident that the proposed framework safeguards these principles. It has been designed to complement the legal system of England and Wales, rather than being copied from another jurisdiction where different considerations may arise.

I shall now speak to the detail of the draft instrument. Currently, a representation order for publicly funded legal representation in criminal cases can be granted only after an individual has been charged. This instrument allows the provisional grant of a representation order at an earlier point in a criminal investigative process in order that the prosecution and defence may discuss, and in appropriate cases agree, the basis of a guilty plea. If a plea agreement is reached, the case proceeds

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to the Crown Court in the usual way. Judicial discretion will not be fettered in any way, so judges may accept or reject the plea agreement.

The instrument also makes provision for circumstances in which provisional representation orders must be withdrawn. Broadly speaking, the Legal Services Commission must withdraw the provisional representation order where the plea discussions come to an end, where an individual is charged, or after three months have elapsed. The commission may also withdraw a provisional order where it believes that the plea discussions are unlikely to lead to a plea agreement.

The Attorney-General's guidelines on plea discussions in cases of serious or complex fraud will encourage discussions about guilty pleas in fraud cases to be much earlier and more transparent. Avoiding costly and lengthy fraud trials would be beneficial for the criminal justice system as a whole, including legal aid, and would provide an earlier outcome for victims and witnesses as well as defendants.

The three-month lifespan of provisional orders may be extended once, on application to the commission, for a period of up to three months. This limited period is important to ensure that the process is not allowed to drift or, if unsuccessful, simply delay cases.

The instrument will cease to have effect on 31 December 2011. At that stage, we will review the effectiveness of the process. If the process is benefiting the criminal justice system, we envisage introducing a scheme based on graduated fees, in common with many other areas of legal aid.

In order to introduce provisional representation orders, the Lord Chancellor will need to amend two other statutory instruments by the negative procedure before provisional orders can be implemented on 1 August 2009. I must make noble Lords aware that a reference to Regulation 2A(1)(c) was inadvertently omitted from the preamble in the draft currently before the House. We have consulted the Joint Committee on Statutory Instruments on this omission, and as a result a correction slip has been published to correct this in the draft before the Committee. The omission does not affect the substance of the regulations. I beg to move.

Lord Henley: I thank the Minister for his explanation of these orders which, in effect, bring in legal aid at a much earlier stage in complex fraud cases. He is right to stress that the regulations will cease to have effect on 31 December 2011-that is, in two-and-a-half-years' time-and that the Government will then review how they have been acting and then, according to whether they have had a positive effect, decide whether to continue with them. Will the noble Lord expand a little on what he means by a "positive effect"? Does it mean that there will be savings in both time and cost in some of these complex cases-many of which, as the noble Lord put it, can last for months or years, be very expensive and a drain on the Courts Service-or are there other factors relating to justice and the administration of justice that the Government wish to take into account?

Lord Dholakia: I add my thanks to the Minister for his explanation of the order. When Clause 56 of the Criminal Justice and Immigration Bill was going through

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the House we made no objection to it and we were very pleased that the Bar Council and the Law Society were supportive of the consultation. This was for two reasons: the first is that the instrument also makes provision for circumstances in which provisional representation orders may or must be withdrawn; and the second reason, which is quite attractive, is that the Attorney-General's guidelines on plea discussions in cases of serious or complex fraud will encourage discussions about guilty pleas in fraud cases to happen much earlier and more transparently. That will avoid costly and lengthy fraud trials, which will be beneficial to the criminal justice process.

As this scheme is being set up as a pilot, it would be very helpful if the Minister could indicate how long he expects the pilot to run. When it has finished, will the Government publish the results and come back to the House to update us on how it has worked?

Lord Tunnicliffe: The noble Lord, Lord Henley, asked me, perfectly reasonably, what the positive effects will be. I cannot add to what I said in opening: essentially, there will be a saving in time and costs, which is a good thing.

However, the human dimensions are also valid. I was a witness in the infamous Jubilee Line case, where the events had taken place so far in the past that the idea of having to go in front of a jury and reveal the poverty of my memory was in itself stressful. I think that I answered two out of every three questions with, "I cannot recall". I was a minor witness, but there were hundreds of witnesses. Many of my friends who were witnesses considered it an irritating event in their lives. Clearly the victims are in a similar situation.

These cases often delay justice, perfectly reasonably, because of their complexity. Securing a safe path for defendants, where they have a reasonable understanding of the range of sentencing against them after following a transparent and positive process, must be good for them. They can be sentenced, serve their punishment and then get on with their lives.

The scheme will run until its sunset date in the order, which is December 2011. We will publish the results of the pilot and consider what to do from 2012 onwards. My understanding is that that will be once we have published the results of the pilot and are able to consult on it. I shall write to noble Lords if we have more precise information on how the pilot will be judged and more on the timescale.

Motion agreed.

Data Protection (Processing of Sensitive Personal Data) Order 2009

Data Protection (Processing of Sensitive Personal Data) Order 2009
17th Report of Joint Committee of Statutory Instruments

Considered in Grand Committee

5.35 pm

Moved By Lord Tunnicliffe



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Lord Tunnicliffe: The Government have introduced a number of very important measures, which are designed to protect the public from known offenders and to improve the flow of information to the public about dangerous offenders in the community.

In 2001, the Government introduced the Multi-Agency Public Protection Arrangements-the MAPPA. By law, the police, probation and prison services are now required to work together as a responsible authority to assess and manage the risks posed by offenders convicted of the most serious sexual and violent offences. When such offenders are released from custody, either because they have completed the custodial part of the sentence imposed by the court, or because the Parole Board has directed their release from an indeterminate sentence, they will be supervised in the community under the MAPPA. The services will share information on the offender in order to identify the risks that the offender poses and then put in place a risk management plan to control those risks. While, tragically, there can be no such thing as zero risk when it comes to supervising known offenders in the community, of the 13,000 offenders managed at the highest levels of the MAPPA in 2007-08, fewer than 0.5 per cent were charged with committing a serious further offence.

By virtue of Section 327A of the Criminal Justice Act 2003, as inserted by Section 140 of the Criminal Justice and Immigration Act 2008, the MAPPA responsible authority must consider whether to disclose any information that it holds about the relevant previous convictions of any child sex offender whom it manages to a particular member of the public. Further, there is a presumption that the responsible authority will disclose such information where the offender is assessed as posing a risk of serious harm to any particular child or children, and where disclosure is necessary for the purpose of protecting a particular child or children. In addition, the guidance to the MAPPA responsible authorities, which the Lord Chancellor issues under Section 326 of the Criminal Justice Act 2003, has been amended to require responsible authorities to consider disclosure in the case of every offender managed under the MAPPA.


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