Lords motion to approve the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020 - Sep 10

Moved by

Lord Keen of Elie

That the draft Order laid before the House on 9 July be approved.

The Advocate-General for Scotland (Lord Keen of Elie) (Con)

My Lords, I beg to move that the House considers the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020 and the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020, which were laid in Parliament on 9 July.

These two orders relate to the process by which an individual may be required to self-disclose criminal records when applying for roles eligible for standard and enhanced criminal records certificates or have criminal convictions and cautions disclosed on a standard or enhanced criminal record certificate issued by the Disclosure and Barring Service.

As noble Lords are aware, the criminal records disclosure regime is designed to protect the public, in particular children and vulnerable adults. We want to ensure that criminal records disclosure is proportionate, balancing safeguarding with supporting people who have offended in the past into employment. Criminal records checks provided by the Disclosure and Barring Service form an important part of an employer’s broader approach to safeguarding. They support employers to make informed decisions about an individual’s suitability when they recruit for sensitive roles dealing with children and vulnerable adults.

As noble Lords are aware, the Supreme Court handed down its judgment on the case of P, G and W on 30 January 2019. That judgment determined that certain aspects of the current disclosure rules are incompatible with Article 8 of the European Convention on Human Rights, which is the right to a private life. The court found a rules-based disclosure regime for criminal records certificates is justifiable and in accordance with the law, but it found two areas of concern. First, the rule where all convictions are disclosed because an individual has more than one conviction, known as the multiple conviction rule, was found to be an unnecessary and disproportionate means of indicating a propensity to offend.

Secondly, the automatic disclosure of out-of-court disposals and youth reprimands and warnings administered to young offenders was found to be an error of principle given the instructive purpose of these disposals. The Supreme Court held that

“a warning or reprimand given to a young offender whose moral bearings are still in the course of formation, requires no consent and does not involve the determination of a criminal charge. Its purpose is wholly instructive, and its use as an alternative to prosecution is designed to avoid any deleterious effect on his subsequent life.”

These two orders are necessary to ensure that the disclosure of criminal records on standard and enhanced certificates is proportionate and fully complies with Article 8 of the convention. The two orders, read together, will have the effect that youth cautions and multiple convictions, unless affected by the other rules, no longer have to be disclosed when a person is asked about them and will no longer be subject to automatic disclosure on standard and enhanced criminal records certificates.

The Rehabilitation of Offenders Act 1974 affords offenders protection from having to disclose 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. For these listed activities or jobs, applicants must, if asked, disclose their otherwise spent cautions and convictions, unless the exceptions order provides that they are protected. The primary rationale behind the exceptions order is that there are certain jobs, such as positions involving a high level of public trust—for example, 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.

Section 113A of the Police Act 1997 defines relevant matters which must be disclosed by the Disclosure and Barring Service in response to an application for a standard or an enhanced criminal record certificate. The two orders before us today work together to amend the criminal records disclosure system. First, the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020 draft instrument amends Article 2(2) and (4) of the exceptions order to change the definition of a protected caution, being a spent caution not requiring self-disclosure, to include all those given where a person was under 18 at the time. It also amends Article 2(5) and (6) to change the definition of a protected conviction by removing the multiple conviction rule exemption from the scope of the definition. The effect of this order is that an individual with a youth reprimand, warning or caution, or those with more than one conviction, will no longer have to self-disclose their criminal record when applying for a role eligible for a standard or enhanced DBS check, unless one of the other disclosure rules is engaged. This amendment is necessary, as I say, to ensure that all aspects of the criminal records disclosure system are proportionate and compatible with the convention.

The Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020 amends the definition of “relevant matter” by excluding the multiple conviction rule and youth cautions, including reprimands and warnings, from the scope of the definition of “relevant matter”. A relevant matter is a matter which must be disclosed by the Disclosure and Barring Service in response to an application for a standard or enhanced criminal record certificate.

The effect of this order is that youth reprimands, warnings and cautions and multiple convictions, where not affected by any other rule, will no longer be subject to automatic disclosure in criminal records certificates issued by the Disclosure and Barring Service. As criminal records disclosure is a devolved matter, these orders apply to England and Wales only.

Those with more than one conviction will no longer have to disclose them unless one of the other disclosure rules applies. Convictions and adult cautions will still be disclosed on certificates if they are recent, if they were received for a specified violent or sexual offence or if a custodial sentence was imposed. Youth reprimands, warnings and cautions will no longer be automatically disclosed through these rules.

Where an offence has been committed, we have a responsibility to ensure that the public are adequately safeguarded and that employers can make informed recruitment decisions through the disclosure of appropriate and relevant information, particularly for roles which involve close contact with children and vulnerable adults or a high level of public trust, but the rehabilitation of offenders is vital to enable long-term desistance for those who have offended in the past. By changing the disclosure rules, we are supporting those with childhood criminal records and those with old and minor convictions to move on with their lives, to be reintegrated into society and to take up employment and training opportunities. We are committed to increasing the employment rates of people who have offended in the past. The importance of employment in enabling those who have offended in the past to move forward with their lives cannot be overstated. We have an obligation to do what we can to make sure that people with convictions do not offend again, and employment is one of the most effective ways to do that.

These amendments to the exceptions order and the Police Act protect the privacy of an individual and represent a proportionate means of retaining the vital protections of relevant disclosure to employers, when they need them to make recruitment decisions for sensitive roles. I seek to reassure those who may be concerned that ceasing automatic disclosure of some criminal records presents a safeguarding risk. Other disclosure rules ensure that recent, sexual or serious violent convictions, adult cautions and any convictions that resulted in a custodial sentence will continue to be automatically disclosed on standard and enhanced DBS certificates. Furthermore, the statutory regime enables chief police officers to disclose any information they consider to be relevant to the purpose of a certificate and which, in the chief officer’s opinion, ought to be included in the certificate.

We intend to update the associated Home Office statutory guidance for the police alongside this legislative change to make it clear that information about convictions and cautions not automatically disclosed under the rules can, in principle, be included in a certificate in the same way as other police information reasonably believed to be relevant to the purpose for which the certificate is being sought.

In conclusion, we welcome the Supreme Court’s recognition of the important public interest in disclosing criminal records to protect children and vulnerable adults from harm, and we also acknowledge their judgment that two aspects of the regime are disproportionate. We are confident that these changes will still enable employers to make informed recruitment decisions to support safeguarding, but in a way that enables those who committed minor offences and who offended long ago to move away from their past. This will have particular benefit to those with childhood cautions. I invite noble Lords to support these two orders and I beg to move.

3.59 pm

Lord Marks of Henley-on-Thames (LD)

My Lords, we welcome these orders and the comprehensive way in which the noble and learned Lord has opened this debate. As we have heard, the order under the Police Act changes the arrangements for disclosure by the Disclosure and Barring Service.

The first change removes youth cautions and reprimands and warnings given to persons under 18 from the disclosure requirement. This is obviously sensible and necessary. The whole point of youth cautions has been to enable the police to deal with children and young people informally, without criminal prosecution. The disclosure requirement is therefore an anomaly. Secondly, the removal of the multiple conviction rule eliminates another anomaly. The effect of a second conviction, of whatever nature, has hitherto been to open up disclosure of all previous convictions, again of whatever nature.

The order under the Rehabilitation of Offenders Act achieves the same two effects in respect of disclosure by applicants for employment to potential employers—again, obviously sensible and desirable. But these two orders are laid not because the Government suddenly realised that the existing provisions were unwise, unfair and unlawful but because of the Supreme Court’s decision last year in the four cases of P and others, as the noble and learned Lord acknowledged. The unfairness of the existing law is illustrated by the facts of those cases, which I hope I will be forgiven for summarising.

In 1996 Mrs G was fined £35 in all for seat-belt offences, then in 1998 a further £80 for similar offences. She has no other convictions. In 2014, 16 years later, now a qualified care worker, she applied for a job at a day centre for adults with learning disabilities, but her disclosure of her historical convictions was incomplete and her job offer was withdrawn after the enhanced criminal record certificate disclosed all her previous convictions.

In 1999 P was cautioned for stealing a sandwich from a shop and conditionally discharged for stealing a book worth 99p and failing to surrender to bail. She was then 28, homeless and suffering from mental illness. She has committed no further offences. Now a qualified teaching assistant, she has not been able to find employment, she believes as a result of her disclosure obligations.

In 1982 W, aged 16, received a conditional discharge for an assault during a fight with other boys. In 2013, aged 47, he began a course in teaching English to adults. He believed his chances of obtaining teaching employment would be prejudiced by the need to obtain a criminal record certificate.

Finally, in 2006 G, aged 13, was arrested for two trivial offences of sexual assault on two younger boys. The police accepted that the offences were consensual and in the form of dares. He was reprimanded by police and has not offended since. In 2011 he was required to apply for an enhanced criminal record check because his work as a library assistant involved contact with children. As a result, he withdrew the application and lost his job.

The Supreme Court judges decided unanimously, though their reasons differed slightly, that the existing provisions infringed the applicants’ Article 8 rights to privacy. This case has powerful support for two pillars of our liberty. The first is the European Convention on Human Rights, which in recent years has been frequently under attack. The second is the right of citizens to apply for judicial review in respect of claims that their human rights have been breached. That right too remains under attack.

The Government and their supporters are often heard to complain of judicial activism and lawyers whom some would describe as activist lawyers overruling the supremacy of Parliament, but we should not forget that the Police Act and the Rehabilitation of Offenders Act and the orders made under them were passed by our sovereign Parliament. Nor should we forget that these judicial review cases were pursued by the Government, opposing the applicants all the way through the courts to the Supreme Court of the United Kingdom, notwithstanding a decisive finding at a lower level that the existing provisions were incompatible with the applicants’ Article 8 rights.

In the context of discussions on legal aid, we should also note that P did not have a solicitor and was represented by Liberty; nor did G, who was represented by a non-profit organisation called Just for Kids Law.

This debate reminds us of the need for judicial and extraterritorial checks on parliamentary sovereignty and the importance of constant vigilance.

4.05 pm

Lord McCrea of Magherafelt and Cookstown (DUP) [V]

My Lords, I thank the Minister for his remarks introducing these orders. I accept that they are for England and Wales; however, I will make a few remarks.

I am absolutely certain that the draft orders before us are necessary in light of the Supreme Court decision, which held that the disclosure of multiple offences and the disclosure of youth cautions, warnings and reprimands were incompatible with Article 8 of the European Convention on Human Rights. These orders therefore bring legislation into line with that ruling.

These draft orders are understandably sensitive, and it is vital that we continue to strike the right balance between rehabilitation of offenders and protecting the community. Coming from Northern Ireland, where many young people have had their lives ruined by involvement in paramilitary organisations, I recognise the need to ensure that young people who have been engaged in minor criminality have the opportunity to reintegrate into society after serving their punishment and demonstrating commitment to right the wrongs of their crimes.

I am also absolutely certain that lives can be turned around and that every opportunity should be taken to assist those who in the past were involved in criminality yet now want to lead lives that are meaningful and profitable to society. In my years of public life, I have witnessed that failure does not always have to be final.

However, I firmly believe that automatic disclosures must continue without exception for convictions that are relevant to prevent unsuitable persons working with vulnerable groups, including children, the elderly and those with disabilities. This includes violent and sexual offences. I believe maximum caution should be applied when protecting the interests of the most vulnerable.

There are also questions to be posed about the practical impact of these changes between the structures used to do background checks on job applications in different parts of the United Kingdom. Employers should be regularly kept abreast of what these changes mean for them and how they affect their rights as recruiters. It is vital that no one falls between the cracks. It would be helpful to have a statutory review period to assess the ongoing impact of these changes on employers, offenders and those who have suffered from criminal activity.

4.08 pm

Baroness Sater (Con) [V]

My Lords, I am grateful to be able to speak in this short debate. I welcome these orders, which would amend the filtering rules that govern what is automatically disclosed through the standard and enhanced criminal record certificates issued by the DBS. Removing the automatic disclosure of youth cautions, reprimands and warnings, as well as the multiple conviction rule, will help to strike the right balance between rehabilitating offenders and protecting the public.

I have been a keen advocate of reform around childhood criminal records, and here today we see real progress towards greater support for improving outcomes of those with minor criminal records and their future in society. Making errors of judgment in childhood should not prevent those who are trying to turn their lives around leading a fulfilling and rewarding life and contributing positively to their community.

My time as a youth magistrate and a member of the Youth Justice Board gave me a real insight into the debilitating effects of minor criminal records that hung over young people who were trying to put the past behind them and get on with their lives. Too often, the current disclosure system acts as a barrier to employment, as well as to other things, such as housing, education and insurance, which in turn minimises the chances of rehabilitation.

We know that employers use DBS certificates as part of their recruitment process to help them consider a person’s suitability for certain roles, particularly those requiring a high degree of public trust. We also know that securing a good job can notably increase the possibility of desistance. It is therefore very welcome that these changes will particularly benefit those with childhood cautions and those with minor offences who have moved on from their past. Too often, you hear from young people who seem resigned to the fact that because they have a criminal record, they have zero chance of securing a job and getting on with their lives.

It is right, however, that convictions and adult cautions for offences specified on a list of serious offences, and which received a custodial sentence, are recent or unspent, will continue to be disclosed. Additionally, enhanced criminal record certificates may also include any information that a chief officer of police reasonably believes to be relevant and, in their opinion, ought to be included.

I am grateful to the safeguarding Minister in the other place, Victoria Atkins, for bringing this new legislation forward. I agree with her that making these changes will help to ensure that vulnerable people are protected from dangerous offenders, while at the same time ensuring that those who have turned their lives around or live with the stigma of past convictions from their childhood are not held back. These changes build on the Government’s commitment to increase employment for ex-offenders and are a very welcome step. I believe that a wider review of criminal records would highlight further improvements that could be made to deliver better outcomes, but that is not for now.

4.11 pm

Lord Thomas of Gresford (LD) [V]

My Lords, it is a pleasure to follow the noble Baroness, Lady Sater, who has drawn upon her extensive experience in the juvenile courts to speak up for those who have turned their lives around. I fully support these two orders, but I cannot give the Government any credit for bringing them forward. My noble friend Lord Marks of Henley-on-Thames has pointed out that the Government are simply responding to the decision of the Supreme Court in the case of P, made nearly two years ago. It was a case that was fully contested by the Home Office all the way up to the Supreme Court. What it revealed was the rigidity of decision-making, the lack of discretion and the straitjacket within which these decisions were made.

My noble friend was also right to emphasise the importance of the human rights convention and judicial review as a remedy. This is the way in which these matters can be brought before the court. I remember the old days of writs of the Crown—certiorari, mandamus and so on. Judicial review has developed well from that and must be protected from all the voices that are now speaking against it.

I will not rehearse the facts of the particular case and the four people concerned in it because that has already been done. The outstanding matter for me is the triviality of the offences involved: the stealing of a sandwich, a fight between boys and so on. It is quite striking that the convictions were so trivial but that many years later the effects of the legislation could have such an overwhelming impact on the people concerned. The Supreme Court held that the multiple conviction rule was disproportionate and a breach of Article 8 of the European Convention on Human Rights, which protects the right to respect for private and family life. The same finding was made in respect of the disclosure of police reprimands given to young children. I can remember from my own youth being told off by a policeman for the way I was riding a bicycle—if I had thought that it was going to be brought up against me at some future time, I would have been very much more concerned than I was.

It should be appreciated that in the past five years alone, over 1 million youth criminal records have been disclosed on standard or enhanced criminal record checks relating to offences from more than 30 years ago—more than a million. While it is right that certain offences should be disclosed to employers, a fair system should not blight the lives of people who are trying to get on in life by disclosing warnings and reprimands or trivial convictions.

While I welcome these orders, consideration should be given to creating a distinct system for the disclosure of criminal records acquired in childhood. It is wrong that they should be carried forward indiscriminately into adulthood. I have two questions. I want to ask the Minister what filtering system exists that allows the consideration of applications for disclosure on a case-by-case basis. There have been calls from the Law Commission, the Justice Select Committee and others for a full review of the wider regime in order to determine whether the Rehabilitation of Offenders Act 1974 is fit for purpose. Will the Minister take steps to set up such a review and to deal with the disquiet that so many of us feel?

4.16 pm

Lord Singh of Wimbledon (CB) [V]

My Lords, as director of the Sikh chaplaincy service for prisons, I welcome this order. It is fair and will help offenders to move to a crime-free life. The criminal records disclosure regime rightly provides information through DBS certificates to employers about an individual’s criminal record to help them consider a person’s suitability for certain roles, principally those working closely with children and vulnerable adults, or roles requiring a high degree of public trust. However, it is important that irrelevant criminal records should not be used to limit an individual’s life chances in other work.

The order follows on from an eminently sensible Supreme Court ruling that the multiple conviction rule and the disclosure of reprimands and warnings administered to young offenders can be disproportionate and incompatible with Article 8 of the European Convention on Human Rights. While protecting the safety of the vulnerable, we should do all we can to protect an individual’s employment chances and minimise reoffending—a prime aim of the Sikh Prison Chaplaincy Service and other chaplaincy services working in prisons.

4.17 pm

Lord Paddick (LD)

My Lords, as the Minister has set out, these statutory instruments are the result of a judicial review heard ultimately in the Supreme Court on 30 January 2019, where it was ruled that the existing rules for criminal record disclosure are incompatible with the European Convention on Human Rights. Claiming victory in the face of defeat, the Government said:

“By making these adjustments we will ensure that vulnerable people are protected from dangerous offenders, while those who’ve turned their lives around or live with the stigma of convictions from their youth are not held back.”

In fact, as my noble friends Lord Marks of Henley-on-Thames and Lord Thomas of Gresford have said, the Government fought this case all the way to the Supreme Court. These changes, which the Government now herald as necessary, reinforce how important the Human Rights Act, judicial review and the independent judiciary are in upholding UK citizens’ rights—all three of which the Government have threatened to undermine.

Of even more concern is that it has taken a judicial review, fought at every stage, to implement changes similar to those first suggested by the Home Office in 2002 and again six years ago by the Independent Parliamentarians’ Inquiry into the Operation and Effectiveness of the Youth Court, chaired by the noble Lord, Lord Carlile of Berriew, of which the noble Lord, Lord Ponsonby, was a member.

We all make mistakes, particularly when we are young. As the noble Baroness, Lady Sater, said, it is essential that minor criminal matters do not ruin young people’s chances to get on in life. We support these orders, but we will oppose any attempt to restrict judicial review or to tie the hands of the judiciary.

4.20 pm

Lord Ponsonby of Shulbrede (Lab)

My Lords, I welcome the introduction of these two amendments to existing pieces of legislation. The Minister fully set out the reasoning behind the amendments and their effects. Two Acts are being amended by the orders. The first is the Rehabilitation of Offenders Act 1974, which will be amended in two respects: by removing the multiple convictions rule in certain circumstances and also by removing the requirement, in certain circumstances, that the sections order apply to any spent youth cautions. The second is the Police Act 1997, to which the second order makes various amendments, which the Minister fully explained.

I have a few questions for the Minister which arise out of his introduction. I was pleased to see that the Chartered Institute of Personnel and Development welcomed the changes, particularly on youth convictions, but it warned that, too often, employers routinely carry out DBS checks, even when they are unnecessary for the job that is to be undertaken. Does the Minister share this concern? Also, with unemployment rising and the difficult situation we are currently facing, what else are the Government doing to help offenders? They find it very difficult to get work.

When the Minister was explaining this, he referred to cautions but he did not explicitly refer to conditional cautions. Can I assume that all the provisions he has referred to apply to both youth cautions and youth conditional cautions? He made it clear the provisions apply to both the regular certificates and the enhanced certificates, but when judges or magistrates are sitting in court and looking at the police national computer, will that have a full list of cautions, conditional cautions, warnings and all the other out of court settlements? Will that still be recorded in the PNC, which is seen by magistrates and judges when they are sentencing?

The noble Lord, Lord Paddick, noted that I was a member of the independent parliamentarians’ inquiry chaired by the noble Lord, Lord Carlile, but more significantly Robert Buckland was on that commission, and as far as I remember, he agreed with everything that commission said, and that commission went far further than today’s amendments. Therefore, I look forward to the Lord Chancellor’s continued support for the work of the commission of the noble Lord, Lord Carlile.

The noble Lords, Lord McCrea and Lord Thomas of Gresford, and the noble Baroness, Lady Sater, talked about a wider review of how criminal records and orders are dealt with. I was particularly pleased to hear the contribution of the noble Baroness, Lady Sater, to today’s debate. I sat as a youth magistrate with the noble Baroness for many years, and I know she talks with huge experience from her work as a youth magistrate and on the Youth Justice Board, and I agree with the sentiments she expressed.

I will close with a personal observation. Last night, my son, who is a part-time cricket coach, was filling in the form for his DBS check. I have to say that I find it odd that, when filling in that form, the onus was on him to diclose any convictions or cautions, rather than on the system to have the data available. There was no problem in his case, but it seems to me that is a strange system. Nevertheless, I support these amendments and am happy to do so.

4.26 pm

Lord Keen of Elie (Con)

My Lords, I am grateful for the contributions to this debate. I will touch briefly on a few points.

First, regarding the points made by the noble Lord, Lord Ponsonby, he is quite right to assume these matters will refer to both conditional cautions and cautions. I understand his point about having to address unemployment amongst those leaving imprisonment, and we are concerned to develop through-the-gate services.

More generally, we are not proposing a wider review at the time, but I believe that this legislation addresses the Supreme Court ruling in full. We are confident that the regime will help employers make informed recruitment decisions, particularly for roles involving children and vulnerable adults.

Touching on another point from the noble Lord, Lord Ponsonby, we feel it is for employers to make a subjective judgment as to the circumstances in which they feel they should make a DBS check. Clearly, we want to enable people affected by this legislation to move away from their past, particularly those who have been subject to childhood cautions. It is in these circumstances that I commend these draft instruments to the House.

Motion agreed.