HANSARD
Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2019
- Motion to Approve
- 3:39 pm
- That the draft Order laid before the House on 1 April be approved.Relevant document: 24th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee B)
- My Lords, 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, enabling them to consider the spent convictions of individuals. This legislative change was requested initially by Sir John Mitting, chair of the undercover policing inquiry, as information on individuals’ spent convictions is important for the purposes of the terms of reference of that 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 ROA. This statutory instrument will give the undercover policing inquiry the ability to consider spent convictions. This change is vital for the inquiry to fulfil its remit successfully, and your Lordships will be aware that there is a high level of public interest in the inquiry’s success.The Rehabilitation of Offenders Act 1974 affords offenders protection from having to disclose their convictions and cautions once those convictions and cautions have become spent under the Act—the point at which the offender has become rehabilitated. The exceptions order lists activities or categories of jobs where those protections are lifted, so offenders, if asked, need to disclose spent convictions. The primary rationale behind the exceptions order is that there are certain jobs—positions of public trust and those involving, for example, unsupervised work with children—where more complete and, crucially, 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 rather to the consideration of evidence of spent convictions and cautions in inquiries caused to be held under the Inquiries Act 2005. While a number of judicial proceedings are exempt from the protections of disclosure—meaning that the individual must disclose them—inquires made under the Inquiries Act 2005 are not currently exempt. To oblige an individual to divulge previous spent offending history, if asked in the course of such an inquiry, we must amend the exceptions order.Although the inquiries are made in public, we would expect all inquiries to preserve the anonymity of individuals as far as is necessary to respect their rights to privacy. In particular, the chairman has the power under Section 19 of the Inquiries Act 2005, in the form of a restriction notice, and individuals can seek to retain their anonymity through a restriction order. Inquiries will take decisions on a case-by-case basis, taking into account particularly the need to balance openness with any competing public interest in restriction or private interest in privacy. Noble Lords may be aware that the protocols and guidelines for such applications in relation to a number of recent inquiries, including the Grenfell Tower inquiry, the Leveson inquiry and the infected blood inquiry, are all clearly available on the internet.
- 3:45 pm
- I have noted the concerns raised by the noble Baroness, Lady Chakrabarti, in her amendment to the Motion about all inquiries being added to the exceptions order. Our view is that the duties of all inquiries are of sufficient seriousness to justify their taking spent criminal record evidence into consideration where, and only where, they believe it is necessary to fulfil their terms of reference. Any limited interference with an offender’s Article 8 right to private life under the ECHR would be a necessary and proportionate interference with that right for the purposes of the UK fulfilling its obligations to inquire into the acts of public authorities.
- Under Section 1 of the Inquiries Act 2005, inquiries are caused to be held by a Minister where particular events have caused, or are capable of causing, public concern or where there is public concern that particular events have occurred. Public interest is at the centre of the purpose of all inquiries. However, it is possible that evidence central to an inquiry’s terms of reference may be excluded because of the provisions of the 1974 Act. The Rehabilitation of Offenders Act provides vital protections to rehabilitated offenders; this is why we reformed it in 2014 to reduce the amount of time that most people with convictions would have to wait before their convictions became spent. The amendment we propose here relates 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. We are introducing it because it is necessary to ensure that inquiries of high public interest and concern are able to consider the evidence relevant and necessary to fulfil their purpose.
- While this is the first request that has been received, the development of data protection laws in recent years has prompted much greater awareness among public bodies of their potential responsibilities around personal data, including criminal records. As some inquiries will be obligated 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.
- While we do not think that considering spent convictions is likely to be necessary in the majority of inquiries, adding only the undercover policing inquiry to the exceptions order would set a precedent that may well to lead to further requests. Adding these 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 inquiry as and when it arises.
- Not proceeding with legislation would materially impact the timing for the undercover policing inquiry to begin hearing evidence in June 2019. The chairman of the inquiry cannot currently admit spent convictions in evidence. Delay to this legislation would cause expensive delay to the inquiry, while not legislating would prevent the inquiry admitting this evidence at all. For this and other inquiries, this would mean treating people with spent convictions as though they had never occurred. Inquiries would then have to accept distorted versions of the truth, which could lead to conclusions based on false premises, which would not be in the public interest. I beg to move.
- Amendment to the Motion
- Moved by
- At the end insert “but that this House regrets that the Order introduces the provision for spent convictions and cautions to be disclosed to all future public inquiries, which risks undermining rehabilitation and a person’s private life, and calls on Her Majesty’s Government to respect protections afforded to offenders under the Rehabilitation of Offenders Act 1974.”
- My Lords, the razor-sharp Minister predicted my specific concern in her opening remarks. This instrument is overbroad—it is a sledge- hammer to crack a walnut. It quite rightly responds to a request from a chair of an inquiry, where the disclosure of spent convictions may be highly pertinent to the subject matter—the undercover policing inquiry. Based on that specific problem, we would legislate at one fell swoop so all future public inquiries are treated in the same way, so that the presumption is that spent convictions are no longer spent. These other inquiries could be into all sorts of matters and may not even be related to the criminal justice system, let alone relevant. This seems to lack the rigour that your Lordships’ House in particular tends to prefer for secondary legislation.My concerns are echoed by the all-important Secondary Legislation Scrutiny Committee. It expressed concerns over the breadth of the power and the impact it might have on the lives that have been rehabilitated. The committee believes that the Government’s strong argument for the protection to be waived for the current undercover policing inquiry is persuasive, in contrast to that overbreadth that I am concerned about. In all other inquiries, present and future, spent convictions may be completely irrelevant. The Minister’s remedy is that an inquiry chair may rule them inadmissible. That may be after the horse has bolted if, for example, counsel representing different interests in a public inquiry decides to raise a spent conviction for any witness. Perhaps it is a firefighter in one inquiry, or a complainant or victim in another. It undermines credibility and is not pertinent to the subject matter in hand, in that public inquiry. This is an overbroad power. In my experience of your Lordships’ House—unfortunately, not of all parliamentarians—that kind of overbroad power, which undermines the principle of rehabilitation, must be of concern.
- My Lords, I declare an interest in this matter. In 2011, I promoted a Private Member’s Bill, the Rehabilitation of Offenders (Amendment) Bill. It had taken the Government nearly 40 years, despite many reviews, to finally consider what was right and proper in dealing with offenders and their rehabilitation process. The purpose of the Bill was that, after a specified rehabilitation period, ex-offenders should not have to declare spent convictions when applying for jobs, except in sensitive areas of work, such as criminal justice agencies, financial institutions and work with young people or vulnerable adults. Some parts of this Bill were accepted in the LASPO Act that was supported by my noble friend Lord McNally and supported by the then Secretary of State, the right honourable Kenneth Clarke. Since then, it has helped many offenders to leave the past behind.We support the amendment of the noble Baroness, Lady Chakrabarti, which backs up observations about this order made by the Secondary Legislation Scrutiny Committee. The committee is right to draw our attention to this on the grounds that this order gives rise to issues of public policy. We accept that there is a strong argument for the protection to be waived in relation to the current undercover policing inquiry, and I do not oppose or object to that part of it—that can go ahead, as the Minister has said, in June this year. However, we object to the order taking the broader step of making this same provision for any future inquiry. We do not accept that the Secretary of State should be given blanket authority, which would in effect mean that spent convictions and cautions could be admitted into evidence for these inquiries. Each future inquiry will have its own terms of reference and will vary in contents on the matters under investigation. We need to examine in detail the implications of such decisions on the lives of the many people whose convictions are spent.The inquiry’s terms of reference are set out by the Minister in consultation with the chairman of the inquiry. It is vital to preserve the anonymity of individuals and respect their privacy. Each inquiry will probe new grounds and each ground has to be examined carefully. We must never ignore the impact of disclosures on the lives of those who have been rehabilitated.
- 4:00 pm
- Lord Mackay of Clashfern (Con)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. The system ought to be governed, as the Rehabilitation of Offenders Act is, by principle. It is very difficult not to agree with the principle where an inquiry has been set up by a responsible Minister under the Inquiries Act with terms of reference which require that a particular matter should be looked into for the inquiry’s remit to be fulfilled. That is the principle which enables the noble Baroness to agree that it should be granted in respect of the police inquiry but not in others. It seems to me that if it is justified in the police inquiry, the reason for that must be examined. The reason is that it is required to fulfil the remit of the inquiry.I feel sad in a way that this instrument is necessary, because I thoroughly agree with the principles of the rehabilitation Act, which are extremely necessary and desirable. After all, people should have the benefit of forgiveness by society if they possibly can, and that is what this is about. On the other hand, once you have to justify an exception, the principle by which you justify it must be what you state as the basis of it. Therefore, while I understand the point that has been made, the way in which the instrument has been drafted makes it clear that this happens only in a case in which this exception to the Defamation Act is necessary to fulfil the inquiry’s remit.
- My Lords, I am a member of the Secondary Legislation Scrutiny Committee, which considered this order, under the chairmanship of the noble Lord, Lord Cunningham, who I am happy to see in his place. I understand clearly the reasons why the undercover policing inquiry—which, as it stretched back into history, had to look a long way back—needed to be able to consider early offences. However, as the committee inquired, and we were concerned about how this might be applied and how it might affect individuals, we began to see the extent to which this narrow point might affect individuals in the future in an unattractive way. Therefore, although it is dangerous to take on an ex-Lord Chancellor, I say to my noble and learned friend Lord Mackay that I do not reach his conclusion, which is that one change should justify a change across the piece.A lot of the points that I wanted to make have already been made, so I shall be brief. However, first, these are public inquiries, so a person’s conviction, no matter how trivial or long ago, may well be revealed. We drew the attention of the MoJ to this, and its response to us, quoted in the third bullet point of our report, was quoted pretty extensively by my noble friend in her opening remarks. It is, perforce, fairly general, as it is bound to be, and somebody looking to it for protection might wonder how it will be interpreted in the event, given the wide powers the chairman has to interpret where the public interest and private interest overlap. The MoJ went on, in the fourth bullet point of our report, to say that of course a person had some redress in the sense that they could always apply for a judicial review of the decision. That appeared to be largely fanciful. The idea that an individual, swept up into an inquiry like this, would have the time, resource, energy and confidence to seek a judicial review is not realistic, particularly since it would have to happen quickly. Once the name is out, the point of the judicial review is completely lost.
- My Lords, I am happy about the breadth of the instrument. I see very well the points that the noble and learned Lord, Lord Mackay of Clashfern, made, but I am also unhappy at the suggestion that if someone is told that their past is about to be disclosed, they can go to judicial review. That is a very unsatisfactory system. As I understood it, the Government were doing their best to reduce judicial review rather than increasing the opportunities for it. As the noble Lord, Lord Hodgson, said, that is indeed not a very satisfactory way to proceed.Could there be some sort of filter, by which I mean: is it possible to keep the instrument as it is but require a chairman? I was chairman of various inquiries over the years, one of which was under a previous Act, the Cleveland child abuse inquiry, so I have some experience of the requirements of a chairman balancing public and private interests. I can see that it is highly desirable not to bring this back to the House again and again, but I wonder whether the Minister could go back to the Ministry of Justice to find out whether any chairman who wanted to invoke that would have to go through some procedure for it to be checked as to whether it was appropriate.