That the draft Rehabilitation of Offenders Act (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2019, which was laid before this House on 1 April, be approved.
The purpose of this draft instrument is to include inquiries established under the Inquiries Act 2005 as “excepted proceedings” in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. That will enable those types of inquiry to consider the spent convictions of individuals. This legislative change was requested initially by Sir John Mitting, chair of the undercover policing inquiry, and I will pause now to pay tribute to his predecessor as chair, the late Sir Christopher Pitchford. Sir Christopher was a distinguished member of the Bar, a High Court judge and Lord Justice of Appeal, who sadly died in the middle of this inquiry. He is much missed by all of us who knew and respected him as an outstanding lawyer of his generation.
Sir John stepped into the breach and is conducting this lengthy and serious inquiry. The reason for the request he has made is that information on individuals’ spent convictions is important for the purposes of the terms of reference of the inquiry.
The inquiry is examining undercover police operations conducted by English and Welsh police forces from 1968 onwards, including whether the police were justified in launching undercover operations against a group. To give full consideration to this, the inquiry needs to be able to consider the convictions of members of the groups; however, given the historical nature of the inquiry, many of these convictions will be spent, and therefore not disclosable under the Rehabilitation of Offenders Act 1974.
The statutory instrument will give Sir John’s inquiry the ability to consider spent convictions. The change is vital for the inquiry to successfully fulfil its remit, and hon. Members will be aware that there is a high and appropriate level of public interest in this inquiry. Although the undercover policing inquiry is a particularly clear case of an inquiry where spent convictions are relevant, the amendment will allow any inquiry under the Inquiries Act 2005 to admit evidence of spent convictions and cautions, but—this is important—limited only to where that is necessary to fulfil the terms of reference of that inquiry. It is likely that other inquiries may in future need to consider spent criminal records.
I am grateful to the Minister for giving way, and I appreciate his reassurance that the test is of necessity. Can he assure me that the same approach is intended to be taken by the chairman of the inquiry, as, for example, will be taken by a judge in determining the test of necessity and also relevance to the topic matter of an inquiry? Relevance is the normal test in court. Can he assure us that necessity will include that as well?
I am grateful to my hon. Friend, who is the Chair of the Justice Committee and a barrister of long standing at the criminal Bar. He is absolutely right to talk about the test of relevance. It is not the purport of any inquiry ambit or the function of any inquiry chair to adopt a floodgates approach to the disclosure and use of spent convictions. In the other place, the noble Baroness Barran put it very well when she set out to their lordships a flowchart of the way in which a particular decision about the use of spent convictions would be taken. She said:
“The first question is: does the individual have spent convictions, yes or no? If the answer is yes, are they relevant? Will they be treated anonymously? If they apply for anonymity, will that be agreed to? Further, even if it is not anonymous, is the hearing held in private or in public? If it is held in private, could the information then be published?”—[Official Report, House of Lords, 20 May 2019; Vol. 797, c. 1792.]
I thought that that was a clear exposition of the framework within which a decision maker would carry out their function when it comes to spent convictions. In other words, that is the sort of filter that I think meets the concerns not only of Members in the other place but of Members in this House.
I was talking about future inquiries, and was saying it is likely that other inquiries may need to consider spent criminal records, as these can be key to determining whether authorities have acted reasonably in assessing and responding to risk. The Rehabilitation of Offenders Act 1974 affords offenders protection from having to disclose their convictions and cautions, once those convictions and cautions have become what is termed “spent” under the Act. That is the point at which the offender has become rehabilitated. The exceptions order to that Act lists activities or categories of jobs where those protections are lifted so that offenders, if asked, need to disclose their spent convictions.
The Justice Committee has produced a report that recommends “banning the box”, to deal with the issue of spent convictions, and the Government gave a very positive response. There may be occasions when there is a crossover between an individual who might apply for a job in the public sector and somebody who is covered by an inquiry. I just want to get the Minister’s take on that particular point.
The right hon. Gentleman raises a very proper point, and I can assure him that the work that his Committee has done and the campaign to ban the box are matters that I and my colleagues in the Department are considering very carefully indeed. I will chart the changes that we have already made to the 1974 Act and the direction of travel later in my remarks, but I would say to him for that in the flowchart that I have outlined, the sort of concerns that he properly raises about an individual’s employment prospects could be raised in the inquiry before the Chair, when the Chair decides whether to publish the information or to retain anonymity. So there will be safeguards designed to protect against the sort of mischief that he properly probes me about.
May I politely remind my hon. and learned Friend that it is not just employment prospects that will suffer if the box is not banned? There can often be a problem with getting social housing—indeed, any sort of housing—as well as with getting insurance or going to university or college. I welcome this statutory instrument, but it is particularly important that we get this absolutely right and proportionate.
My hon. Friend uses the word “proportionate”, and as a distinguished former Government lawyer, she knows what that means. I think many other people—Madam Deputy Speaker included—will know precisely what it means. It means, in effect, making sure that any measure does not defeat the purpose for which it was brought into force. In other words, it must not become self-defeating, and the response must be in line with the nature of the challenge. My hon. Friend is also absolutely right to talk about the wider context. We have to look at meaningful rehabilitation, and we have all seen plenty of examples of individuals who have committed offences and been punished for their crimes and who have been able to go on in later life to make a success of their work and family life and become the sort of citizens we want to see in our society. That is self-evident, and it is certainly the experience that all of us will have had at some point or other.
I think the Minister is putting all our fears to rest. Paragraph 7.6 of the accompanying explanatory memorandum refers only to independent inquiries into child sexual abuse. Is that in effect what this is all about, or is it going to be wider than that? I thought that if people had signed the sex offenders register, that was already admissible evidence, so could the Minister confirm that this is not just about historical child sex abuse and tell us what the status of the sex offenders register is?
I am looking again at paragraph 7.6, and I think its purpose is to illustrate other examples of inquiries that have been set up pursuant to the Inquiries Act 2005. I will go on to explain that, because that does not cover every public inquiry. I will give the House a few examples as I develop my argument. In this case, the ongoing independent inquiry into child sexual abuse is used as an example of a 2005 Act statutory inquiry that may need to consider criminal records in the course of its deliberations. It is therefore a useful illustration of another inquiry that was set up because there was a strong public interest to be served and one would benefit from not having to undergo what would otherwise be a rather cumbersome and lengthy process of looking at the admission of evidence on a case-by-case basis.
As we know, the independent inquiry is taking considerable time, and it would be in the wider public interest for its work to be sped up in this way.
The hon. Member for Stroud (Dr Drew) talked about the register; as he knows, sex offenders are required to sign that on conviction. That public document is recorded and kept just as a conviction would be. From memory, how long an offender has to stay on the register will depend on the seriousness of the offence. Some very serious child sexual offences will, of course, rightly require life registration, so the matter will remain on public record.
The hon. Gentleman was a Member when that Act was passed; he might have a better institutional memory than mine when it comes to the debates that led up to that. My experience of it was as a practitioner and recorder, having to make sure that defendants complied with the requirement. The sex offenders register is not a court order but a statutory obligation that follows automatically on conviction.
I come back to the exceptions order, whose primary use is for employment purposes. The amendment that we are discussing is not, of course, employment related: it relates only to the consideration of evidence of spent convictions in inquiries caused to be held under the Inquiries Act 2005. Although a number of judicial proceedings are exempt from the protections of disclosure—in those proceedings, there is no restriction on considering or basing conclusions on spent conviction information—inquiries made under the 2005 Act are not currently exempt.
The Minister is being most generous, but will he help me? He asserts, in terms, that if the inquiry is set up under the Act, it automatically triggers some of the exemptions to article 8. What is the remedy, however, if a person who is to be called as a witness by the inquiry is aggrieved and wishes to challenge the finding of the inquiry chair to admit the evidence of a spent conviction? Would there be a judicial review in the ordinary way?
There would be a judicial review. That point was considered carefully in the other place. I readily accept and deal full on with the potentially onerous nature of having to bring a judicial review to challenge proceedings. But as I have said, the filter system that any chair would have to operate is considerable. There are safeguards and guarantees in respect of anonymity and publication that provide the sort of safeguard that, if misapplied, would quickly and obviously attract criticism when a higher court came to scrutinise the decision process.
Will the Minister help the House? Are the chairmen of these inquiries not nearly always senior judges, who are perfectly able to make the sort of evaluation that he is telling us about?
My hon. Friend is absolutely right. As she will know, the process of obtaining a senior serving member of the judiciary will be done in consultation between the appropriate Secretary of State or Minister and, usually, the Lord Chief Justice, who will consider availability carefully. Retired High Court judges or lord and lady justices of appeal can also be considered. We are particularly fortunate, as I said at the beginning, to have Sir John and, formerly, Sir Christopher. They were asked to fulfil the role of chair as a result of consultation between Ministers and the Lord Chief Justice.
If I understand it, this is about spent convictions. As we do not know the nature of any future inquiry in which spent convictions would need to be disclosed, would it not make sense to introduce a statutory instrument when a future inquiry needs such disclosure?
The hon. Lady tempts me down the road of ad hocery, which, as we know, can be a somewhat cumbersome instrument when it comes to issues of this nature. She can be reassured that the narrow nature of this proposed exception means that, first, the type of inquiry is tightly constrained to within the 2005 Act. Secondly, I do not envisage that many of even those types of inquiry will have to deal with the issue of spent convictions. Where they do, there will be a clear process for the chair to follow in assessing relevance, whether the spent convictions should be anonymised and whether they should be published. I would submit that there are lots of safeguards, which I hope will cure her justified concerns.
I am at times, quite properly, an advocate of ad hocery, which has been part of our system since time immemorial, and I agree with the words of the noble Lord Mackay of Clashfern, the former Lord Chancellor:
“My Lords, I well understand the need for this order in respect of the application that has been made, but innovating the Rehabilitation of Offenders Act to any extent can be done only as a matter of principle. It cannot be done ad hoc for a particular inquiry. Therefore, what is the principle under which it would be allowable in respect of this inquiry? The answer is that it is required to fulfil the inquiry’s remit. Only that would justify it. The application says, ‘We cannot fulfil the remit we have been given unless we are allowed to examine this matter’.
In my submission, it is extremely difficult to have an ad hoc system.”—[Official Report, House of Lords, 20 May 2019; Vol. 797, c. 1788-89.]
I entirely agree with the noble Lord, and I would pray in aid his remarks in support of my argument today.
I was addressing the right to privacy, and I was going to elaborate upon my earlier remarks on anonymity. Inquiry chairs must preserve the anonymity of individuals as far as is necessary to respect their legal right to privacy. The chair of an inquiry has the power under section 19 of the 2005 Act to restrict the publication of information via a restriction notice. The undercover policing inquiry, for example, has invited applications for restriction orders. Individuals can use these orders to seek to maintain their anonymity.
I welcome the Minister to his new position. We worked together on the Justice Committee and, as always, he is eloquent in trying to convince the House to pass something that I am sure, in his heart of hearts, he knows is not correct. As a lawyer and advocate, he must understand the concerns that have been raised, especially in the other place. I am sure he is well aware that the other place voted against this statutory instrument and the rebellion included a number of Conservative Members of the House of Lords. I ask him, even at this stage, to reconsider whether this statutory instrument should be approved.
The Opposition understand the sentiment and the principle behind this statutory instrument in terms of assisting public inquiries into groups where spent convictions may or may not be relevant. The request came from Sir John Mitting, the chair of the inquiry into undercover police operations from 1968 onwards, including whether the police were justified in launching undercover operations against this particular group.
The request makes sense because one of the issues in this particular undercover operation is whether any of the convictions occurred because of agents provocateurs, which is where a person has committed an offence because an undercover police officer somehow encouraged or facilitated it, or put the idea in their head. The concept of agents provocateurs is a complex legal issue, and it is clear from some of the allegations that this may have happened in this set of undercover police operations, so the convictions of some of those who may give evidence will be pertinent and relevant because they might shed light on the actions of the police officers. Therefore, we understand that for this particular inquiry this approach may be relevant and spent convictions will add a critical context to the inquiries that we would not have under the current system. However, we believe that the wording of this proposal is far too wide and is not properly structured. As my colleague Baroness Chakrabarti said, it seeks to use
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The primary rationale behind the exceptions order is that there are certain jobs—positions of public trust, for example, or those involving unsupervised work with children—where more complete or relevant disclosure of an individual’s criminal record may be appropriate to mitigate risks to public safety. The exceptions order is not limited to employment purposes, although that is its primary use. The amendment proposed here is not employment-related, but related only to the consideration of evidence of spent convictions and cautions in inquiries that are caused to be held under the Inquiries Act 2005.
Examples of proceedings that are exempt include circumstances ranging from solicitor and police disciplinary proceedings, to proceedings relating to taxi driver and security licences. We feel that the work of inquiries set up under the 2005 Act is necessarily of such public interest and importance that they must have the ability to consider all the evidence relevant to their work. To extend that ability to these inquiries, we must amend the exceptions order.
The draft instrument is necessary to amend the order to enable inquiries caused to be held under the 2005 Act to admit and consider evidence of convictions and cautions that have become spent under the Rehabilitation of Offenders Act 1974, where it is necessary to fulfil the terms of reference of that inquiry; the word “relevance” again comes very much into play.
We recognise the importance of the 1974 Act, which offers vital protections to people with convictions. We improved those protections in 2014, reducing the amount of time that most people with convictions had to wait before their convictions became spent. As I mentioned in responding to the intervention made by the right hon. Member for Delyn (David Hanson), we are considering proposals for further reform to the 1974 Act following the recommendations made by various reviews in recent years, including those carried out by the Justice Committee, on which the right hon. Gentleman serves.
There are demanding criteria for inclusion on the exceptions order. Our proposed inclusion would be the first addition to the order in three years. As I said, the amendment proposed here is not about employment; it relates only to the consideration of evidence of spent convictions and cautions in judicial proceedings—namely, before inquiries caused to be held under the Inquiries Act 2005.
Understandably, their lordships raised concerns in the other place about granting all inquiries the right to consider spent convictions and the effect that would have on individual rights. I want to make it crystal clear that we have proposed to extend this power only to a limited number of inquiries; as I said, we are talking only about inquiries set up under the 2005 Act, so non-statutory inquiries, such as both the Butler and Chilcot inquiries on the Iraq war, would not be covered by this legislation.
This legislation applies only to inquiries where considering spent convictions is necessary to fulfil their terms of reference. An inquiry’s terms of reference are set by the Minister, in consultation with the chairman of the inquiry. That provides an element of individual consideration of whether the exception should apply to each inquiry that ensures that this will not apply indiscriminately. Frankly, considering spent convictions will not be necessary for the vast majority of inquiries. In other words, the measure already has a limited application.
Our view is that sufficient safeguards are in place to ensure that individual rights—the issue that concerned their lordships—are preserved as far as is necessary. Under section 1 of the Inquiries Act 2005, inquiries are caused to be held by a Minister when particular events have caused, or are capable of causing, public concern, or there is public concern that particular events have occurred. As such, inquiries by design are held only where they are in the public interest, so any limited interference with an offender’s article 8 right to private life under the European convention on human rights would be necessary and proportionate.
Article 8 enshrines the right to respect for private life, but that is a qualified right. Subsection (2) provides that there shall be no interference with that right except such as is in accordance with the law and necessary in a democratic society in the interests of national security, public safety, or the economic wellbeing of the country, or else for the prevention of disorder or crime, the protection of health or morals or the protection of the rights and freedoms of others. Section 19 of the 2005 Act has specific regard to these rights, in as far as they ought be protected, but it does so in a way that enables the inquiry to fulfil its terms of reference and consider matters necessary in the public interest. In that way, the 2005 Act directly reflects the qualified nature of the right to privacy.
The chairman must apply a strict balancing test under section 19, taking all relevant circumstances, including potential harm or damage to an individual, into account when deciding to make a restriction order. Where an individual is not satisfied that this has been done appropriately, they can make representations to the inquiry and ultimately, as I said in response to my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), they can judicially review the decision. Together, we feel these represent a strong system of checks to ensure that individuals’ rights are upheld.
As some inquiries will be obliged to have regard to the rights of those who hold criminal records and to the legitimacy of using such evidence in the course of their duties, our view is that the duties of all inquiries are of sufficient seriousness to justify clarifying that they may take spent criminal record evidence into consideration where they believe it is necessary.
Although we do not think that considering spent convictions is likely to be necessary for the vast majority of inquiries, adding only the UCPI to the exceptions order would set a precedent that may lead to further requests—that is the ad hocery point. Adding those inquiries to the exceptions order now will ensure that more efficient use is made of the parliamentary process, as further amendments will not be required for each specific individual inquiry as and when it arises.
Not proceeding with legislation would prevent the UCPI and other statutory inquiries from admitting evidence of spent convictions, which would mean treating people with spent convictions as though those convictions had never occurred. The worry is that the inquiries would then have to accept a somewhat distorted version of reality. That could ultimately lead to conclusions based in part, or sometimes in whole, on false premises, which clearly would not be in the public interest.
We have to remember the wider purpose of inquiries set up under the 2005 Act, the job that chairs are given, the serious and grave nature of many of these inquiries and the strong public interest that underpins and runs through such proceedings and their purpose. My conclusion is that not doing so would clearly not be in the wider public interest, and I therefore strongly commend this statutory instrument to the House.
“a sledge-hammer to crack a walnut.”—[Official Report, House of Lords, 20 May 2019; Vol. 797, c. 1786.]
It is too far-reaching and too blunt to be effective without seriously threatening rehabilitation and privacy.
The powers granted by the order would mean that the spent convictions of past offenders under investigation would become unspent in terms of policing and inquiries, and, crucially, may become unspent in the public eye. It completely goes against the spirit of rehabilitation that served sentences may be reopened for potentially unconnected investigatory purposes. In this information age, the checks and balances proposed by the Minister, whereby an inquiry’s chair may rule spent convictions inadmissible, may come too late to protect the individual; this information may be raised and shared by counsel in countless different circumstances before the chair can decide whether it is relevant and, therefore, admissible. Furthermore, given the speed at which information travels on the internet, any ruling by a chair could become a bit of a lame-duck decision, because the information would probably have already reached the public sphere. Indeed, Lord Hogan-Howe, the former Metropolitan Chief Commissioner, pointed out that the internet hive mind may mean that
“the public may know more than the inquiry chairman.”—[Official Report, House of Lords, 20 May 2019; Vol. 797, c. 1791.]
In essence, once the information is out, the information is out, and it is unrealistic to expect every subject of this instrument to have the energy, time and resources to lodge a judicial review or request a restriction order to maintain anonymity. In any case, a restriction order from the chair of the inquiry would be likely to come too late to prevent the damage being done.
It is worth noting that, since the introduction of the 2005 Act, there have been only 23 public inquiries and this is the first time that a provision such as this has been proposed. Surely we should not be setting such a troubling precedent because of one inquiry; 22 others have not sought such blunt and excessive powers. It would only take someone to overlook a potentially minor and irrelevant conviction in their past and fail to mention it to their representative for their credibility and witness evidence to be undermined. This really calls into question how far the justice system will try to support rehabilitation, when spent convictions can be brought into public inquiries with limited oversight.
The checks and balances proposed seriously threaten article 8 of the European convention on human rights because they presume, first, that information regarding spent convictions will not reach the public eye without prior approval and, secondly, that the subjects of the instrument have the time, energy and resources to ensure that their rights are properly protected. I re-emphasise this point because we must recognise that, with the legal aid cuts and all the other cuts that have been carried out, and with a lot of people who are involved in these inquiries often not being financially solvent, trying to get legal assistance to maintain a judicial challenge or review is almost impossible. The lives of these ordinary people are being made even worse with this particular legislation, given the wide nature of its current format; people’s rights will not be properly effected.
At the heart of our criminal justice system is a need for the rehabilitation of convicted offenders, and the need for fair and transparent public inquiries is of real public interest. If the alternative to this overreaching order is to individually discuss the procedures of each public inquiry, that is a use of parliamentary time that accurately reflects public interest; I would much sooner the House establish the admissibility of spent convictions in terms of a public inquiry in advance of each inquiry.
Again, I say to the Minister that it is still not too late to take this SI away and reconsider the issues we have raised. We are talking about real issues, such as the fact that vulnerable witnesses may be dissuaded from giving evidence to a public inquiry for fear that a spent conviction for a minor offence committed when they were a child could come up and be in the public domain, and their families could find out, as could prospective employers. The consequences for those victims may be enormous, so they may not wish to engage in any particular inquiry, in which case we would not be being very effective. The Secondary Legislation Scrutiny Committee expressed serious concerns about
“the breadth of the power and what impact it might have on the lives of those who have been rehabilitated.”
As I have said, we successfully tabled a motion of regret about this SI in the other place. We gained sizeable support on this matter, including from some on the Conservative Benches. A Conservative peer, Lord Hodgson of Astley Abbotts, who is a member of that Committee, said that the concerns of the Committee and the other House were raised with the Ministry of Justice but its response was “largely fanciful” and “not realistic”. We therefore ask the Government and the Minister to seriously reconsider this SI, for all the reasons that have been mentioned.