Second Standing Committee on Delegated Legislation
Tuesday 12 February 2002
[Mrs. Marion Roe in the Chair]
Draft Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2002
The Minister for Criminal Justice, Sentencing and Law Reform (Mr. Keith Bradley): I beg to move, That the Committee has considered the draft Rehabilitation of Offenders 1974 (Exceptions) (Amendment) Order 2002.
This is an important order, which I am pleased to have the opportunity to debate. It is a key exception to the Rehabilitation of Offenders Act 1974, and follows previous amendments last year. The measures are compatible with the rights protected by the European convention on human rights.
I will put the order in the context of rehabilitation of offenders policy as a whole. It has long been accepted that it is important for those who offend to be able to reform, pick up their lives again after paying a penalty and make a fresh start. That is not to undermine the principle of punishment, but if we are not to have an underclass of people who can never work again, some means must be in place for rehabilitation.
It has also been accepted that the need for rehabilitation must be balanced against the risk to society, particularly to its most vulnerable members, from the ex-offender. That is why, since the Rehabilitation of Offenders Act 1974 was introduced, there has been a list of convictions for which an offender, even if his or her conviction under the Act is spent, cannot escape his or her past. If asked an accepted question in respect of all past convictions, by a person entitled to ask such a question, an offender must answer in respect of all past convictions, not merely of those that are unspent. However, we must not make the list such that an offender who has put their past behind them is disadvantaged where that is not necessary through the demands of the job.
Criticism has been made of the ROA, which is more than 25 years old. Accordingly, the Home Secretary announced to Parliament last year that there was to be a fundamental review of the Act. The review is expected to report later this year.
The order contains a number of important exceptions; some are wholly new, others amend and update existing exceptions. First are applicants for taxi and private hire vehicle driver's licences. That will put criminal records checks on a statutory footing, and allow the Criminal Records Bureau to provide the information. Next are RSPCA inspectors and other staff who are authorised, as part of their duties, to carry out the killing of animals with firearms or lethal drugs. The exception will ensure that they will be eligible for a firearms licence on completion of their
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training and that those who have access to lethal drugs and other humanitarian killing devices are fit and proper persons.
A new exception is for air traffic control personnel, because of the privatisation of the servicecurrently National Air Traffic Servicesto allow full checks to continue. Previously, such personnel were employed by the Civil Aviation Authority, which is covered separately by the exceptions order.
The public have the right to assume that anyone registered as a chartered psychologist is a fit and proper person to practice. Access to full criminal records checks will allow the British Psychological Society to better ensure that that is the case, and so protect the public. The Court of Protection appoints receivers to administer the finances of individuals who are unable to look after themselves owing to mental incapacitation. It is important to do whatever possible to guard against unsuitable individuals being appointed as receivers.
The inclusion of registered foreign lawyers and fellows of the Institute of Legal Executives will bring them in line with other members of the legal profession. The new exception covering actuaries puts them in the same position as that of their colleagues in the legal and accountancy professions. The inclusion of the Crown Prosecution Service is merely a technical tidying up of the exception for the Director of Public Prosecutions and any employment in his office.
Inclusion of the Serious Fraud Office and Her Majesty's Customs and Excise will bring them both in line with the Crown Prosecution Service. An exception covering the National Criminal Intelligence Service and the National Crime Squad is necessary to ensure that all employees, not just police officers, are subject to full criminal record checks.
The order also updates the existing social services exception to allow full criminal records checks on those who provide social and care services to vulnerable adults. To ensure the protection of children, a new exception covers people employed by internet service providers or others to monitor conversations in electronic chat rooms. Lastly, we are moving the existing exception covering national lottery licensing from the National Lottery etc. Act 1993 to its rightful place in the exceptions order.
Our policy objective is to strike the right balance between the generally beneficial effects of rehabilitation, with its neutralising effect on employers' potential prejudices, and genuine needs for access to information on the grounds of public protection. That focus has been sharpened by the Human Rights Act 1998, as we are aware that the disclosure of an individual's spent convictions may infringe article 8 of the European convention on human rights. We are satisfied that the exceptions achieve the right balance.
The order applies to England and Wales only. Provision corresponding to the ROA in Northern Ireland is made by separate legislation. Accordingly, provisions will be made for Northern Ireland by a
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separate amending order that, to all intents and purposes, will be identical to this one, where appropriate.
Separate provision must be made for Scotland. The Law Officers are currently considering whether, as a general rule, ROA exceptions relating to a reserved subject matter should themselves also become reserved for ROA purposes; that is, legislated in Westminster for Scotland as well as for England and Wales. The initial view of the Home Office was that the exceptions order to the ROA is a criminal justice matter and, as such, is devolved regardless of the subject matter of individual exceptions. However, that is to be decided by the Law Officers, and provision for Scotland will follow their resolution of the issue. Of course, it is essential that we proceed with the necessary provision for England and Wales for all the reasons that I have given.
When individuals apply for posts covered by the exceptions, the Criminal Records Bureau, once it comes on stream on 1 March this year, will provide information on previous convictions. The CRB will provide a systematic way for proper checks to be carried out and will implement part V of the Police Act 1997. However, for that to work properly, we must first ensure that the underpinning legislative framework is right. The draft order is part of a continual review of all the categories in the present exceptions orderit is the third to be laid as part of the overall reviewand brings it up to date.
As I said at the outset, this is an important order. It makes an important contribution in ensuring that those in the relevant positions are subject to appropriate criminal record checks. Therefore, I commend it to the House.
10.39 amMr. Dominic Grieve (Beaconsfield): I welcome you to the Chair, Mrs. Roe, and I welcome the Minister's comments. I hope that he will not take it amiss if I highlight some concerns that we have about the order, which otherwise we support. I had no differences with the Minister as he ran through the areas of the Rehabilitation of Offenders Act 1974 to which the exemptions apply. I did have a query concerning employment by the RSPCA, but the Minister has explained that to my satisfaction.
My concern comes from a sense that the 1974 Act badly needs to be reviewed. Having introduced the measure for good reasons, Parliament has moved the goal posts during the past few years to the detriment of the original intention of the legislation. In short, we have regularly included new categories of people and jobs that will be exempt from the protection of the 1974 Act.
I agree with the Minister that the Rehabilitation of Offenders Act 1974 is an essential tool to enable rehabilitation. It is not so much the obligation to disclose previous convictions that causes the problem as the way in which people react to the disclosure. I have seen evidence of that from constituents who have convictions for exceptionally trivial offences and come from circumstances where there is often a ready
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explanation as to why those offences were committed. A woman constituent in early middle age had two shoplifting convictions associated with an episode of depression in her early 40s. She was an outstanding nurse working with vulnerable adults and children, but 15 years after the convictions, she could not be appointed as the matron of a care home. Every time she declared the offences, social services intervened to prevent her appointment.
We must introduce a mechanism by which people with previous convictions who want to apply for jobs in areas that oblige them to disclose those convictions can apply to an independent assessment tribunal. The tribunal can decide whether the convictions need to be disclosed. There should be a system through which individuals currently exempt from the protection of the 1974 Act may seek rehabilitation a long time after their offences have been committed, if their offences are of such a nature to allow that to happen. The exemptions that we operate often do an injustice to the community, in which individuals can serve perfectly properly, and to the individuals. That said, we will not vote against the order.
I was amused to learn of the difficulties that have arisen regarding whether the provisions are devolved or reserved matters in Scotland. That is one of the inherent lacunae apparent at the time that we passed the Scotland Act 1998. I would have thought that such areas were devolved to the Scottish Parliament. I shall be fascinated to learn whether the Minister succeeds in finding a way of deciding that they remain reserved here.