The Committee consisted of the following Members:
Fourth Standing Committee on Delegated Legislation
Tuesday 20 March 2001
[Mrs. Marion Roe in the Chair]
Draft Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2001
The Minister of State, Home Office (Mr. Charles Clarke): I beg to move,
That the Committee has considered the draft Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2001.
Mr. John Bercow (Buckingham): On a point of order, Mrs. Roe. I apologise for interrupting the Minister's opening remarks. I am looking forward to the debate. There is no reference to the hon. Member for West Lancashire (Mr. Pickthall) on the list of members of the Committee. We are delighted that he is here, however, and we look forward to hearing any contribution that he might wish to make in our proceedings. Can you clarify the situation?
The Chairman: I am grateful to the hon. Gentleman for bringing that matter not only to my attention, but to that of the hon. Member for West Lancashire. I am sure that he has noted what has been said.
Mr. Clarke: My hon. Friend the Member for West Lancashire will be delighted by the point of order raised by the hon. Member for Buckingham (Mr. Bercow). It is probably the first time in this Parliament that the hon. Gentleman has done a service to my hon. Friend and I am sure that it is well appreciated.
I am delighted to serve under your chairmanship, Mrs. Roe. I have not done so before and it is a privilege to do so today. I am pleased that we have the opportunity to debate this important order today. It covers three key areas of amendment to the 1975 exceptions order, namely the new definition of working with children and amendments to the provisions concerning justices' chief executives and health care workers. It also represents an important milestone in the progress towards implementation of the Criminal Records Bureau.
I shall deal first with the three areas of amendment, after which I shall say a little about the philosophy of the Act. The amendments are all covered in the 1975 exceptions order. However, they need to be brought up to date to reflect recent changes in primary legislation. I refer first to working with children, which is the most complicated matter. The main effect of the order is to carry through the policy that we agreed last year on the definition of working with children, which was set out under the regulated positions in part II of the Criminal Justice and Court Services Act 2000.
We had a substantial debate on the matter during the passage of the Bill last year. The positions from which people disqualified from working with children are banned include front-line carers such as foster carers, teachers, those who supervise such workers and, most importantly, those with power to dismiss them. They also include all workers in certain areas of particular vulnerability such as children's homes and schools, and those in positions of influence such as social services directors and the great and the good in organisations concerned with children, such as charitable trustees. All such positions need to be covered by the exceptions order, so that full checks can be made. That part of the Act came into force on 11 January this year and we need to bring the policy on the exceptions order into line with the new definition as soon as possible.
Mr. Bercow: I am grateful to the Minister for giving way. He referred to people involved in charitable organisations such as trustees. Will donors to such charities who might attend events at which children are present be covered?
Mr. Clarke: I shall respond to that question in a moment, when I have finished my remarks about working with children.
Jackie Ballard (Taunton): The Minister said that the order will cover those with the powers to dismiss and those in influential positions, such as social services directors. Will it also cover councillors and chairmen of committees?
Mr. Clarke: Again, I shall deal with that matter when I have dealt with the provisions on working with children.
The definitions to which I have referred were our intention at the outset and were accepted in the debates that were held last year. However, the exceptions order needs to go wider than that in three areas. First, I draw the Committee's attention to those working with children in further education institutions. I wish to make it clear that front-line teachers of children up to 18 years old in such institutions are already covered by the definition of regulated positions and the disqualification provisions. However, we did not believe that it would be right to extend the definition of educational institutions in the Act to institutions beyond those that are exclusively or mainly for the provision of full-time education for children. That was because of the range and diversity of institutions that may provide such education as only a small part of their remit, such as a college that may provide mainly adult education classes, but offer the odd class for schools.
Under the Act, all positions in education institutions are subject to the disqualification order provisions. However, it seemed unreasonable to cover all staff, including ancillary staff, in all institutions that offer further education in the disqualification, although it is reasonable and right for checks to be made of such staff. Therefore, they are covered by the order.
Adoption cannot be classified as work, but prospective adoptive parents must be checked. Therefore, such groups are covered as a special category.
Secondary checks must be allowed. Secondary checking occurs when a person in a regulated position, or an adoptive parent, must be checked, but their suitability for a position depends on the suitability of other adults in their family or household, or adults who are working on the premises. That concept is present in the existing order and must be carried forward to the new provisions. It has become more difficult to reflect the complexity of provisions on day care and child minding in the Care Standards Act 2000, but the principle remains the same.
Justices' chief executives are the second category that the amendments deal with. Section 87 of the Access to Justice Act 1999 removed the requirement for justices' chief executives to be eligible as justices' clerks. That effectively removed the requirement for justices' chief executives to be legally qualified as barristers or solicitors, which are professions that are included in the exceptions order. Justices' chief executives should be subject to the same provisions as justices' clerks and their assistants, who must disclose spent convictions. The amendment will ensure that all new appointees, some of whom will not be lawyers, are covered by the exceptions order.
I turn to health care workers, before responding to the interventions from members of the Committee. The existing exception applies to all who provide health services, which includes newly qualified general practitioners. However, each health authority maintains a list of GPs who are available for work. Currently, there is no provision for further criminal checks if GPs move to a new health authority and are put on its list. The new order will allow such checks.
Two points were raised in interventions. Donors would not be covered. If they were involved in a caring or supervising role, they would be covered in their own right, but not simply in their role qua donor.
The order includes councillors who discharge social services or education functions for local authorities, and also includes all members of social services and education committees.
I shall mention the definition of work that is used in the amendment order. The previous order was largely confined to questions asked by, and in respect of, those in offices or employments. The amendment order has adopted the wider definition of work used in the Criminal Justice and Court Services Act 2000. That includes all work, paid or unpaid, in all sectors, including voluntary or volunteering work. That is right, and an important development to put on the record. Where justified by the nature of work, exceptions cannot be limited to formal employment. Risks presented by certain positions are not affected by employment status, and the exceptions order should not be.
Mr. Geoffrey Clifton-Brown (Cotswold): The Minister has made helpful and detailed points. Will he tell the Committee the position of people who undertake jury service, particularly in cases involving children?
Mr. Clarke: I shall seek advice on that precise point and return to the hon. Gentleman. I believe that such people are not covered, although I will confirm later whether I am right.
The underlying philosophy of the Rehabilitation of Offenders Act 1974 is that people who offend should be able to reform, pick up their lives and make a fresh start, after paying a penalty. That has been common ground in the House for a considerable time. It does not undermine the principle of punishment. However, we must have the means of rehabilitation to avoid having an underclass of people who can never work again. That is an important principle of the system.
It has also been accepted that the need for rehabilitation must be balanced against the risk to society, especially its most vulnerable members, presented by the ex-offender. That is why, for as long as the Rehabilitation of Offenders Act has been in place, a list of positions has been specified for which the offender, even if his or her conviction under the Act is spent, cannot, rightly, escape his or her past. If the ex-offender is asked an excepted question in respect of all past convictions by a person who is entitled to ask such a question, he or she must answer in respect of all past convictions, not merely those that are unspent.
It is crucial to get that list of positions right. We must protect the vulnerable, and we must have safeguards in place for certain offences, including certain aspects of life such as national security. However, we must not make the list such that an offender who has put his past behind him is disadvantaged when that is not necessary through the demands of the job. That is the philosophy that underlines our approach. The current debate about paedophile offenders is being held in that context, and we have tried to get the difficult balance right.
The Criminal Records Bureau will provide a systematic way for proper checks to be carried out when necessary and will implement Parliament's intention in part V of the Police Act 1997. For that to work properly, we need to ensure that the underpinning legislative framework is righthence the orders.
Everyone will be able to apply for the basic certificate that shows their current criminal record, but higher-level certificates, which contain information on spent convictions, will, rightly, be strictly limited. The gateway to higher-level information will be the ability to ask exempted questions. That is why we need to be sure that the criteria are right and are reviewing all the categories in the exceptions order in order to bring it up to date.
The draft order is the first to be laid as part of that overall review of all the categories. We needed to act on those particular categories quickly, as the changes that they embody reflect new legislation already in force.
Juries are not covered. As far as I am aware, no provision is made for checking past convictions of juries in the selection process, so the matter does not arise. The answer that I gave the hon. Member for Cotswold (Mr. Clifton-Brown) was right.
This is an important order and an important milestone in our work to protect the vulnerable, and I commend it to the Committee.