Publications on the internet
Protection of Freedoms Bill
|©Parliamentary copyright||Prepared 13th May 2011|
Publications on the internet
Protection of Freedoms Bill
Protection of Freedoms Bill
The Committee consisted of the following Members:
Annette Toft, Rhiannon Hollis, Committee Clerks
† attended the Committee
Vernon Coaker (Gedling) (Lab): On a point of order, Mr Caton. May I ask whether you or, indeed, the Minister have any comment to make on this issue? You will not know this, but we received an e-mailed letter from the Minister on Monday; mine came at 7.35 in the evening, and I believe that is when other Members received theirs. It informed members of the Committee that the Government would submit a wide range of amendments on vetting and barring and criminal records, effectively merging the Independent Safeguarding Authority and the Criminal Records Bureau. To be honest, the Opposition would not necessarily disagree with that, but we discussed vetting and barring, the ISA and criminal records at our sitting on Tuesday, yet on that day we had pages of fairly significant Government amendments. Although we had had the letter telling us that those amendments would be tabled, none of us on the Committee had seen them. They could, and do, have a huge impact on the clauses they relate to. Although we may agree on a principle, the purpose of Committees for Members on both sides is to scrutinise Bills and to ensure that even where we agree, we, and indeed those who read the record of our proceedings, fully understand proposals, but that cannot happen if we do not have proper time to look at amendments.
Secondly, having read the amendments, as others did, I was surprised that no mention was made of any of them during any of Tuesday’s debates on the clauses on vetting and barring or the Criminal Records Bureau, despite the fact there was a huge number of amendments. I want to put on the record that I was, to be frank, upset about that, and I would like to hear any comment you may have, Mr Caton. The situation made it impossible for us to do as effective a job as we would have liked of scrutinising the Government’s proposals.
To be fair to the Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup, he has been in my position, and he has berated me once or twice for doing exactly the same thing. I know that he will take this on board, but what
The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire): Further to that point of order, Mr Caton. Perhaps I can respond to assist you on the point of order raised by the hon. Member for Gedling. I know him well, and he does not raise issues capriciously. I thank him for alerting me to this issue outside the Committee in the normal way. I certainly hear the points that he has made.
Before proceedings on the Bill, we obviously telegraphed the fact that we were minded to take forward the merger of the Independent Safeguarding Authority and the Criminal Records Bureau in the Bill. Obviously, we could have waited to table amendments on Report, but we felt that it was appropriate to table them in Committee to give the House as a whole as much time as possible to examine the new schedules, new clauses and amendments. As the hon. Gentleman rightly said, I believe in scrutiny and Parliament’s ability to examine Government proposals. We wished to table amendments earlier in the process, but that was not possible, so we tabled them as early as we could. That was reflected in the marshalled list that appeared on Tuesday morning and the letter on Monday evening.
We have about 23 clauses to get through today. I understand that a discussion has taken place through the usual channels to consider timing the Bill to allow for proper debate and discussion and for Opposition consideration of the new clauses and new schedules. If time is allowed, I hope that that will give the Opposition the opportunity to examine the new provisions and debate them more slowly, so that they can assess them. However, we have the opportunity to come back on Report should any further issues or thoughts arise on the new provisions.
John Robertson (Glasgow North West) (Lab): Further to that point of order, Mr Caton. I seek guidance. As a mere Back Bencher with a lot of work to do other than the Bill, I find it incredible that despite all the help that Government Front-Bench Members get from civil servants, and the fact that they obviously knew that they were going to introduce the provisions, as the Minister said, they did so at such short notice. Will you ask the Speaker about the situation, Mr Caton? Back-Bench Members, in particular, are being put in the incredible position of not being able to look at amendments. This is the first time that I have really had a look at them, and the number is incredible. There is no way that a mere Back Bencher with other work to do could consider them. I seek your guidance.
Diana Johnson (Kingston upon Hull North) (Lab): Further to that point of order, Mr Caton. The Minister said that the vetting and barring review flagged up that the Government were minded to introduce this change. That is absolutely correct, but when the Bill was published and on Second Reading, the change was not included. There has been no indication at all throughout our extensive deliberations that the matter would be addressed in the Bill. I am particularly concerned that on Tuesday we spent a great deal of time considering the provisions relating to vetting and barring, and no indication was given of this structural change, which might have had implications for some of the Opposition’s amendments.
I seek your guidance, Mr Caton, on whether you could rule, for our upcoming deliberations on the Bill, that the Minister must reflect fully on the clauses on vetting and barring with which the Committee has already dealt and make it clear what effect the changes in this further group of amendments will have on the discussions that we have already had. Further and fuller explanations need to be given. At the moment, having led on the clauses on Tuesday, I feel that I have missed an opportunity due to the Government’s failure to make clear what they planned to do.
James Brokenshire: Further to that point of order, Mr Caton. If it will assist the hon. Lady, I will be happy to talk to my officials to see whether we can arrange an informal briefing to take her through the new clauses and schedules in time for Tuesday’s deliberations.
Vernon Coaker: Further to that point of order, Mr Caton. It would be churlish not to thank the Minister for responding as he has. He mentioned the discussions that have taken place about timing, so that we can perhaps discuss the matter next Tuesday—wherever we get to today—to ensure that we can cut off then, and my hon. Friend the Member for Kingston upon Hull North will deal with that. I appreciate the Minister’s tone, the points that he has made about timing and his offer of a briefing for my hon. Friend. I know that he takes these things seriously, but it is a reminder to us all that the process is important, especially from our point of view, so that we can understand what is going on. The whole purpose of Committees is to hold the Government to account properly, rather than just ranting as we all do sometimes. The Minister’s point was well made, and I wish to put on record again my thanks to him, as well as to the Lord Commissioner of Her Majesty’s Treasury, the hon. Member for Kenilworth and Southam, who also helped with the matter.
The Chair: As I think you realise, Mr Coaker, because the amendments were tabled within the deadline, it is perfectly in order to debate them when we reach them. Having said that, I understand your concern and the Government have clearly indicated that they do, too, and it looks as though the usual channels have found a way forward. Perhaps I should remind the Opposition that until the rise of the House today, they can table amendments for consideration next week.
Diana Johnson: We now move on to chapter 3 of part 5 of the Bill. The purpose of the group of clauses is to enable men with old convictions for certain gay sex offences that are now decriminalised to apply to the Home Secretary for the deletion of such convictions. As a result, the offences would no longer be disclosed on criminal record checks and the individuals concerned would be treated as if they had never committed or been convicted of the offence in question.
We welcome the clauses. Such measures are right and appropriate, but we want to make sure that they will do what the Government intend them to do. Subsection (1) lists the offences that can be overturned, such as section 12 of the Sexual Offences Act 1956 on buggery, section 13 of that Act relating to gross indecency between men, section 61 of the Offences against the Person Act 1861 or section 11 of the Criminal Law Amendment Act 1885. Under subsection (2), for the clause to have effect, matters have to be compliant with subsections (3) and (4).
If it seems to the Secretary of State that the offence being put forward related to consensual sex between two people over the age of 16 and not committed in a public toilet, which is still an offence under section 71 of the Sexual Offences Act 2003, the procedure under the clause will apply. Section 12 of the Sexual Offences Act 1956 also covers other offences, such as bestiality, non-consensual buggery and under-age buggery. I want confirmation from the Minister that such convictions will not be overturned, leaving a narrow group of offences that can be dealt with under the procedure.
Stonewall gave evidence to the Committee at the outset of our deliberations and referred to the number of individuals who might be covered by the provisions. It spoke of 16,000 relevant convictions on the public record at the moment that might be suitable for the Secretary of State to take into consideration in the changing of records. Although that was welcomed, much was made in the debate on criminal record checks about how convictions—even irrelevant ones—can put off people from volunteering.
Stonewall said that a large group of men in the past might have felt very uneasy about putting themselves forward for positions that might need criminal record checks. Hopefully, the provisions will go some way towards allowing that group to pursue volunteer positions. It is right that, in future, people will not be deterred from volunteering or taking on roles requiring such checks.
Up to 16,000 offences might be considered, so what is the Home Office doing to prepare for receiving what might be many applications initially? What resources are being put into dealing with that? Will a special part of the Home Office focus on dealing with it? Most people who go through the procedure will want their case to be dealt with quickly. Will the Minister discuss the time scale for dealing with the applications and processes?
Other offences are set out in section 12 of the 2003 Act. Does the Minister think that there will be any practical difficulties in recognising the ones that relate to consensual sex between adults? I mention that because some applications might relate to very old offences and I wonder about the level of evidence or documentation that might still be available. How much of a problem might that cause in dealing with historical offences? Those are my major concerns about the clause, but broadly I welcome it.
The Parliamentary Under-Secretary of State for the Home Department (Lynne Featherstone): I thank the hon. Lady for her comments. The clause is significant and important, because it begins the process of removing convictions. It puts power into the Secretary of State’s hands to disregard convictions and cautions for offences between consensual adults. The measure will be broadly welcomed across the country by those who are affected and by those who are not, because it rights a wrong and a discriminatory practice that has a significant effect on many people’s lives.
As the hon. Lady said, such incidents may have happened a long time ago and may or may not be relevant today. If they came up on a CRB certificate, however, they might be of great significance. I shall deal with the specific points that she has made as I discuss the power that is set out under the clause.
It will be as though the convictions never happened, which is most important because the world has moved on. The measure will not result in a spent conviction or caution, which is always on one’s record; it will be as though it never happened—or as near as we can get to that in physical record. It certainly can never be disclosed.
The Government are committed to equality and we believe that one of the most unfair and unjust historical inequalities is the discrimination against men who have a conviction for something that has, for a long time, not been illegal, but which can, nevertheless, show up on a criminal record check. That situation might prevent an individual from taking up certain opportunities in life, such as applying for particular occupations, or volunteering—not because they present a risk, but simply because they do not want to risk anyone finding out about their past. They may not have told their family or partner about the matter, and allowing that history to be revealed can have devastating effects on lives.
The clause sets out the conditions that must be met before the Secretary of State may disregard the caution or conviction. It provides that someone with a conviction or caution for an offence of buggery or gross indecency between men, under sections 12 and 13 of the 1956 Act, may apply to the Home Office to have the conviction or caution disregarded.
As the hon. Lady rightly said, because the scope of sections 12 and 13 was wide, they cover situations where the offence involved conduct that was non-consensual or involved an under-age person. The section 12 offence
Michael Ellis (Northampton North) (Con): May I take this opportunity to welcome the measure? I consider it an historic act of sensitivity. It was under the 1885 legislation, which will effectively be expunged, that Oscar Wilde was prosecuted and sentenced to two years’ hard labour. The measure is an historic and rare act. Will the Minister confirm that it will not only affect the convictions of elderly people? Some convictions for the offences that we are seeking to disregard are much less than a decade old, perhaps dating from as recently as 2002.
“I would just say that this has been characterised as a measure that will affect only elderly people who want to work or volunteer, but that is not true. We are aware of the case of a 17-year-old who was prosecuted in 1998 for having unlawful sex; he was below the age of consent, and had sex with someone who was above it. That, of course, gives the lie to the notion that these protections were ever there to protect young people. He will be only 30 now.”––[Official Report, Protection of Freedoms Public Bill Committee, 24 March 2011; c. 130, Q383.]
On the broadness of offences that can be captured under sections 12 and 13, which was raised by the hon. Member for Kingston upon Hull North, it would clearly be wrong to disregard any conviction or caution for conduct that remains unlawful today. Non-consensual acts are still illegal, regardless of the sexual orientation of the individuals concerned, so those convictions or cautions will stand and will not be covered by the provisions.
As 50,000 cases would have to be re-examined to see which were appropriate for a disregard, we have provided for a pragmatic solution whereby individuals may apply to the Secretary of State to have their records disregarded. The scheme will allow the individual to choose what to do. If they want to pursue that course of action they can but, equally, if they do not want to they do not have to.
An application will be granted only if certain conditions are met. In particular, the Secretary of State must be satisfied that the conduct that led to the conviction or caution was consensual and involved a person aged over 16—that is, over the current age of consent. If the conduct is still covered by the offence specified in section 71 of the Sexual Offences Act 2003—sexual activity in a public lavatory, which the hon. Lady mentioned—an application would not be successful. Once an application has been granted, a notice to that effect will be sent to the applicant. The relevant conviction or caution will be treated as a disregarded conviction or caution 14 days thereafter, which will allow time for the conviction or caution to be removed from police records.
The hon. Lady asked about the practical difficulties of going back over cases and about what information will be available. We will come on to more detail about that in later clauses, but there are issues about where information comes from and what is available. The process is not a re-hearing of the case; it is simply an administrative operation to elicit the disregard for those who apply. The information available will therefore depend on how long ago the case was, whether the records can be found and how clear they are.
There is a whole range of practical issues, but only when we start to look into each case will we see what official records are available as evidence. The facts—such as name, address and date of conviction—produced by the applicant and what is available in the official records are the two sources of information on which the Secretary of State will make her judgment. I have dealt with the narrow focus.
I appreciate what the hon. Lady said about the potential number involved. We at the Home Office are working through how the process will work, in terms of what the Home Office can make available, what resources will be made available and how to make the whole procedure as smooth, informal and easy as possible—even if 16,000 people come forward, which the hon. Lady cited as being the number for whom the disregard might be relevant.
It is unlikely that all 16,000 would come forward on day one, but we are looking to see how, were they to do so, all of that could be processed and what resources could be made available. Later we will come on to the issues around the Home Secretary, who will have an expert panel who can help her in that. We are working through what will be involved and what resources will be needed as we go through the process. We will come back to it in more detail.
Nicola Blackwood (Oxford West and Abingdon) (Con): Obviously we are talking about sensitive issues, which often involve painful episodes from an individual’s past. What measures we will be taking to ensure privacy and sensitivity towards those applicants?
Lynne Featherstone: The group of people who will need to know anything and will be dealing with this information is small. It will be the Home Secretary, her private office and officials as necessary. It will be kept as small and as private as is possible in effecting the remedy. On that basis, I give the assurance that the people who know about it will be kept to an absolute minimum. We well recognise the sensitivity of the situation of an applicant who comes forward, and we respect that absolutely.
Lynne Featherstone: My understanding is that the Home Secretary has the responsibility. We will come on to her responsibility in the process when we reach those clauses and go into the detail on that point.
Diana Johnson: I have some questions for the Minister so that we can fully understand how the scheme will operate and highlight whether we have any concerns with the practicalities of the scheme at this stage. As I understand it, clause 83 sets out for the conditions for the application to be made. It has to be in writing, giving the name, address and so on of the applicant. It must give the specifics of the offence or caution that will be looked at. It must also include any other information that the Secretary of State requires to ascertain whether the conviction relates to an act between consenting adults.
How will people know about this application process? What communication strategy does the Minister envisage needs to be put in place, to ensure that everyone who may want to put an application in fully understands what the process is and what will happen? In Stonewall’s submission to the Committee, it highlighted that particular issue on the communication strategy. It said that it hopes that it will reach out to professional bodies such as the General Medical Council or the Nursing and Midwifery Council to ensure that they understand the changes and implications for their disclosure processes as well. That deals with the employer side as well. Will the Minister say a little more about how that will all work?
Will the Minister indicate just how much information will be required by an applicant? Does she believe that because there are issues of consent it would be appropriate for the Secretary of State to look for information from both parties involved in any offence, or is it just the person making the application? What happens if there is a lack of information, or records have been lost? I note that the Minister says that some cases will be more recent, but equally, there will be some much older cases. We know that records do not always stay where they are supposed to be, or they go missing, so will there be a presumption by the Secretary of State that if information is not readily available, the offence should be expunged from the record? Is that a presumption that the Secretary of State would take forward or not? The practicalities are the Opposition’s key concerns at this point.
Lynne Featherstone: All the issues that the hon. Lady raises are important because the provision affects people who, because the case was long ago, may or may not be private about it. They may be anywhere in the world, so it is very important that the message gets out and people not only know about the opportunity, but know how it can be accessed and what the conditions will be.
Clause 83 sets out the process that an individual will have to follow when applying to have their conviction or caution under sections 12 or 13 of the Sexual Offences Act 1956 disregarded. The essence of the provision is that we really want to make the process as simple as possible; it is not meant to be complicated, difficult or challenging. To keep it as simple as possible, we have kept the information requirements to the minimum. The relevant records in most cases are, as we discussed, likely to relate to events that took place a long time ago—although not exclusively so—some of them perhaps, decades ago. Tracking down the records may not be straightforward. Many will exist from the time before computerised records and may be on paper or microfiche, so we shall need a certain amount of basic information—name, address and date of birth; name and address at the time of the conviction; and the time and place of the conviction, if possible. It will also be open to an applicant to supply additional information in support of their application.
The hon. Lady asked what would happen if the position was unclear. The Home Secretary will look at the records and at whatever the applicant can supply. There is no need for a formal process; if more information comes to light, it can be sent on, added to and included in the submission for the conviction or caution to be disregarded.
The hon. Lady asked how we will get the information out. We are working with all parties with an interest in the area—we are obviously involving Stonewall—to ensure that the provisions are well publicised. Clearly, that is very important. I take on board what she says about employers and all those who need to know that the opportunity is available. They may be able to spread the word in an informed and helpful way to people who might want to make an application.
If details are very thin on the ground, which could be the case when much time has elapsed or when records are not legible—who knows why the information may not be available—and the only available information is that supplied by the applicant, it is likely, but not yet finally decided, that the decision will be based on what the applicant provides. We will, however, keep that point under close review to ensure that only offences that fall within the scope of the proposal are deleted. It is unlikely that there would be any going back to the other party, because this is not a re-hearing; it is based on what the applicant provides and the details on record.
As part of the process in response to the application, the applicant will be encouraged to give as much information as possible, but without being made to feel that they have to give any more than is necessary. The Home Office will not seek out other parties involved to supplement the information. As I say, we will look at all official records.
In difficult cases, the Home Secretary can consult expert advisers, and we will come to the expert panel in later clauses. Clearly, it will be composed of those who can best advise her when information is unclear or it is
The hon. Lady asked whether only the Home Secretary would be involved. The Home Secretary can of course delegate her functions under the provisions, in accordance with the usual Carltona principles. Clearly, a structure will need to be in place to enable individual cases to be escalated if that is appropriate.
‘(c) give reasons for the decision, and
(d) on receipt of new information, review the decision and inform the applicant of the outcome of the review.’.
‘(7) An applicant may appeal to the Home Office in order to remedy minor or administrative errors in their application under section 82 without the need to appeal to the High Court.’.
Diana Johnson: As drafted, clause 84(2) rules the Secretary of State out from holding oral hearings. Amendment 204 would strike out that part of the clause. We do not quite understand why the Secretary of State would not, in some circumstances, need an oral hearing.
Striking out offences can be a difficult and delicate business, and complex and personal information might have to be sought and considered, as hon. Members have said. It may be hard to distinguish irrelevant and out-of-date information or convictions that society no longer recognises, and which can be disregarded, from offences that are still serious and need to be properly looked at. It is vital to find the right balance, and we should not rule out, as the clause does, the opportunity for the Secretary of State to hold an oral hearing in some circumstances.
Another concern is that if the applicant wishes to appeal when their application is refused, the only remedy open to them under the Bill as drafted is to go to the High Court. As we all know, going to the High Court can be an expensive business. Furthermore, it would not be appropriate if the matter could be dealt with by an oral hearing, which would obviously be a much cheaper and perhaps much quicker remedy, and would allow the Secretary of State to look at all the evidence. Amendment 204 would therefore assist applicants and give the Secretary of State the opportunity to have an oral hearing when required.
Clause 84(4) demands that the Secretary of State record her verdict in writing and give notice to the applicant. Our amendment 205 would add to the clause. We want the Secretary of State to give reasons for her decision and to be obliged to review her decision on receipt of new information. It is important to give reasons because, as we have said, the matter is sensitive, and the applicant needs to be aware of what information has been considered so that they will know if a mistake has been made. If the Secretary of State does not give reasons and does not explain the rationale for her decision, the only way to correct any mistake, as I have just set out, would be to go to the High Court. Again, the amendment would be a helpful means of dealing with problems. A mistake might have been made on the basis of information provided, but it could be picked up if the reasons for the decision were set out clearly. We believe that a right to a certain level of redress before resorting to the High Court is important, and would fit with the coalition Government’s attempt to set such redress in train and protect the rights of individuals who apply to have their convictions disregarded.
I mentioned the cost of the High Court. There are also, as we have said, potential difficulties with information not being readily available. I do not understand why the Government are saying at this stage, “We’re not going to allow any oral hearing; the only opportunity to right what might be an administrative mistake is to go to the High Court.” Amendment 204, which would provide the opportunity for an oral hearing, and amendment 205, which would require the Secretary of State to set out clearly her reasons for making a decision, would be helpful to the process of transparency, openness and clarity.
Amendment 206 is a probing amendment supported by Stonewall, which has indicated that it is interested in pursuing the Government’s thinking. The amendment relates to clause 89 and the fact that the only right of appeal is to the High Court. The amendment would give the right to access a lower court to remedy minor or administrative errors in an application under clause 82, without the need to appeal to the High Court. It is a general probing amendment. Are the Government really minded to say that an individual must go to the High Court? That seems disproportionate.
Michael Ellis: Does the hon. Lady accept that we would not want the Home Secretary to take on a judicial role? It is for the courts to decide whether something is minor or administrative in the context. After all, they are the best judges of that. Would she not be reluctant for the Home Secretary to take on such a quasi or fully judicial role?
Diana Johnson: The purpose of amendment 206 is to provide that there should be an opportunity, if the applicant wishes, to appeal the decision of the Secretary of State. We explored in the evidence sessions Stonewall’s feeling that it did not want the initial decision to be made in the courts and was happy for it to be made by the Home Secretary. However, if someone then appeals the decision, is it appropriate to go straight to the High Court? Would not some other court be more appropriate? That is the purpose of the amendment. I wanted to test whether the Government had thought through other options involving the lower courts and had disregarded
I am interested to hear the Minister’s comments on amendment 206. I believe that amendments 204 and 205 are helpful to the Government and their proposed clauses, and I hope that I have persuaded her to accept the amendments.
Lynne Featherstone: We share the same ambition of avoiding the High Court. I do not think that there is any desire on either part for things to escalate to such a level. We will come to the reason for choosing the High Court in clause 89.
To deal with the hon. Lady’s amendments in order, amendments 204 and 205 would amend clause 84 so that the Secretary of State could hold an oral hearing on an application, and to require that reasons for any decision be given to the applicant. They would also provide that any additional information must be considered and the decision reviewed if new information becomes available after the decision has been made. On oral hearings, I quote Ben Summerskill from the witness session:
“We are reasonably satisfied on the basis of what is being proposed that it is a written procedure. We are also mindful that quite a lot of people involved have difficulty talking about what actually happened to them, and that might be onerous, too.”––[Official Report, Protection of Freedoms Public Bill Committee, 24 March 2011; c. 130, Q383.]
We have deliberately taken the view that having oral hearings might send a message that the original conviction or caution for which the application was being made would be reviewed. That would be an entirely erroneous message, and it is not the intention behind the proposal. The original decision cannot be questioned or altered in any way. We are not setting up a judicial, or quasi-judicial, process to review convictions and cautions at all. That is completely outside the personal difficulties that someone might or might not have. It is simply not the purpose or intention behind the clause.
Diana Johnson: The Government are ruling out the opportunity ever to have an oral hearing, but does the Minister not envisage that it might be sensible, if evidence were difficult to understand or there was concern about it, to have the opportunity for an oral hearing? It would not be the standard procedure, but it might be sensible in certain instances to allow the opportunity for an oral hearing. The clause, as currently drafted, rules out that opportunity altogether.
Lynne Featherstone: That is partly because of the message that it sends out, and partly because of the sensitivities. The decision is made on factual written information, which is either supplied by the applicant—name, time, date, conviction and place of conviction—or contained in the records. As far as I can see, nothing can be added orally that can change the facts on the page, because it is not a hearing.
If the Secretary of State were to hold an oral hearing, they would be taking on a judicial role, because they might be asked to decide whether the original conduct that constituted the offence was consensual. That is not something for the Home Secretary; that would be something for the courts. As well as the question of sensitivity, which Stonewall has understandably raised, and the embarrassment factor of having a hearing, there is also the legal point that having an oral hearing would be undesirable for the reasons that I have just given.
Lynne Featherstone: I thank my hon. Friend, and indeed we would not want to put the Home Secretary in the position of making any sort of judicial decisions. Thinking more widely about whether an applicant might want to explain some piece of information, I cannot see why that could not be done in the submission of factual evidence on the page. I do not think that oral hearings would help at all in that regard. They detract from the purpose of the proposal, which is to correct a wrong—in fact, on paper, which has existed for however long it has existed—so that it may be disregarded in future. That is our aim. The Bill sets up an administrative process that allows an individual to apply to have a conviction or caution that falls within the scope of clause 82 disregarded, so that they do not have to declare it for the purpose of CRB checks. We are not revisiting the original issue at all; it is simply so that people in that situation can have such convictions disregarded.
Gareth Johnson (Dartford) (Con): Does the Minister agree that if we had oral hearings, there would be a further concern over what guidelines and rules would apply to them? Would they take place in private or in public, for example? If they took place in private, they might be seen to be underhand; if they took place in public, that would put a railroad through the questions of sensitivity that have been raised.
Lynne Featherstone: I thank my hon. Friend. He highlights the difficulty once we begin down a track that adds a different process that is not central to the purpose of alleviating the position of a past that is no longer criminal being exposed on the Criminal Records Bureau certificate. We would be going down the path that made matters complicated and difficult. For that reason, I hope that the hon. Lady will not press the amendment to a Division. While I understand where it is coming from, I hope that I have persuaded her that it would not be helpful to the cause and the remedy that we want.
On amendment 205, we do not consider that it is necessary to specify in the Bill that the applicant will be given the reasons behind the Secretary of State’s decision or that a decision, when new information comes to light, will be reviewed. We expect most people to be happy simply to hear from the Secretary of State that their application has been approved, but if it were refused, reasons will be given. That is implicit in clause 89, which provides for a right of appeal. If an applicant is to exercise that right, it follows that the applicant will need to know why his application has been rejected. I assure the hon. Lady that, if the applicant produces additional information that impacts on the decision, it
Diana Johnson: Can the Minister explain where that is set out in the Bill? I might have the position wrong, but at the moment the only remedy open to someone who has received a refusal is to go to the High Court. At what point will the person receive the reasons for the refusal? If they have been refused, how will they know if the refusal is correct or not? They would not know if the reasons were not given at the decision-making stage.
Lynne Featherstone: I am sorry if I was unclear. The reasons for the refusal will be given in the letter from the Home Secretary. How would people be able to appeal, if they did not know the reasons? The reasons will be given. Such matters are not set out in the Bill, but it is implicit in the fact that clause 89 allows people to appeal to the High Court. Before they reach that stage, they must know the reasons for the original refusal. Such an explanation will be received in the letter as will details of what the applicant can do if he disagrees with the reasons why his application was rejected.
I want to assure the hon. Lady about matters before the position covered by clause 89 is reached. Having received the letter setting out the reasons for his refusal, if the applicant discovers extra information that he did not give in the first wave of information or certain matters lead to other information that will be helpful, he can then submit that to the Home Secretary and it will be reviewed without the need to go on to an appeal stage. Such cases are not finite. The Home Secretary would be minded to consider more information that came on the back of the first refusal.
Diana Johnson: I do not wish to make heavy weather of the issue because we all agree that such an approach is sensible. However, if we are setting up such a process, there needs to be clarity about what the process is so that everyone can understand it. Given the clauses as drafted, there will be an opportunity to make the application to the Secretary of State to make her or his decision, but nothing in the Bill refers to the review procedure. Perhaps the Minister can help me about that. It seems that the applicant would have to go straight to the High Court.
Lynne Featherstone: It is not in the Bill. Clause 89 sets out the ultimate appeal process, but the original issue for the applicant in terms of the publicity and the application form, all of the information about what can be done if the application is refused—[ Interruption. ] It says here that we will set out the processes in clear guidance to applicants. That is what I am saying, but in another way. Clear information will be available to those thinking of applying. Once they apply, it will be made clear what the process is, what they are likely to receive if their application is accepted or refused and what they can do if they wish to correct a point or if there is more information. The guidance will be clear. None of that is on the face of the Bill in those terms, because it is the simple side of the process.
If the ultimate process fails after all the iterative stages and guidance and there is still a dispute about the Home Secretary’s decision, that is when it will come to the High Court appeal in clause 89, which is a whole different level. Until that point, we will try to sort out between the Home Secretary and the applicant what information is needed and how it has been judged.
Diana Johnson: I understand all that. I am just concerned that we as a Committee should be clear about exactly what the process is for dealing with that sensitive issue. I am not sure that waiting for later guidance sends the right message. We might introduce a clause—we could return to this on Report—to make it clear that there will be an opportunity for review. In such matters, we need to be clear that the public will want to understand fully what they are getting themselves involved in and what the process is. I am not sure that it is clear, having listened to the Minister.
Lynne Featherstone: That is why I am trying to elucidate for the hon. Lady that everything will be set out in clear guidance. However, for the avoidance of doubt, there will be a process whereby the applicant will know what information will be provided, what is happening, how to apply, what a granting of the application means, what a refusal means and that the reasons for a refusal will be included in case alterations or more information are needed. I assure her that if the applicant produces additional information affecting the decision made, it will be considered and, where appropriate, the decision will be altered, without the applicant’s having to go through the formalities of an appeal. I hope that that puts clearly on the record the intention and practice of the Government.
Amendment 206 seeks to provide for minor or administrative errors to be remedied without the need for the applicant to lodge a formal appeal to the High Court. As I said, I share the hon. Lady’s desire not to go to the High Court and to avoid unnecessary appeals. I therefore endorse the principle underpinning the amendment, although I consider the amendment unnecessary, as I have just explained that there are other administrative processes and stages through which an applicant can go before getting to the point of appeal.
As I said, if the applicant produces additional information affecting the decision, it will be considered. We also want to adopt that approach where the applicant belatedly comes up with new evidence to support his application. For example, if he has sent one lot of information and suddenly thinks, “There is something I could have added,” he is welcome to do so. As I said, it is in no one’s interest to let matters proceed to the High Court when that can be avoided.
Diana Johnson: We have not seen the guidance, so we do not know exactly what is in it. Will it include time scales for dealing with that process? The Minister says that further information can be provided later, but will there be a time limit for submitting all the evidence relating to applications? Will that be in the guidance?
We are trying to make it informal and easy for an applicant to add things or challenge a decision at a lower, administrative level, before the matter ever gets to the High Court. I also want to put it on the record that the fact that a decision is questioned or more information is added does not mean that the refusal will be reversed, but it will ensure that all relevant information is considered without affecting the applicant’s right to appeal to the High Court should the decision to refuse the application be confirmed. Having explained our approach to applications to have a conviction or caution disregarded, I hope that the hon. Lady will withdraw the amendment.
Diana Johnson: I have listened carefully to what the Minister said and, again, we support what the clauses are doing. However, we tabled the amendments because there needs to be a clear process that everybody understands, and it would be better to have the option—the option only—available to the Home Secretary if she felt that it was appropriate to have an oral hearing. We are not saying that there should be such hearings in all cases. Clearly, the vast majority will be based on paperwork, but it would be foolish to say that there will not be those few cases where it would be helpful for the Home Secretary to have the option of some form of oral hearing.
Diana Johnson: That may be the case, but for instances in which information is not available or records have been lost and decisions are taken that are not favourable to the applicant, people may feel that being able to go and say exactly what happened may be helpful. It is an option; that is all we are saying. Ruling out the Secretary of State’s ever having that option is not sensible.
Rehman Chishti (Gillingham and Rainham) (Con): The hon. Lady says that there are oral hearings in some cases, but not in others. In the interests of fairness and consistency, should there not simply be one, written method? Otherwise, there will be an inconsistent approach, which cannot be fair.
Diana Johnson: I hear what the hon. Gentleman says, but this type of procedure is quite unusual. Given the changes that we have brought about in legislation and the going back and looking at historical offences and convictions, we probably need an element of flexibility. I know that the Minister has spoken at length about wanting to make things as accessible as possible to applicants. Categorically ruling out the option for the Home Secretary is a mistake. I want to test the Committee’s opinion on amendment 204.
Amendment 205 links in with the belief that we need to make the procedure as clear as possible to applicants, so that if they are going to start the process, they can fully appreciate and understand what will happen. Having it clearly set out that there will be an opportunity for a review and that clear reasons will be given by the Secretary of State will help the process. It will also help all applicants understand that if they are refused, there is not just the High Court, with all the costs and problems that it entails; there is a further opportunity for a review if information is forthcoming. On that basis, I want to test the Committee on amendment 205 as well. I beg to ask leave to withdraw amendment 206.
‘(c) give reasons for the decision, and
(d) on receipt of new information, review the decision and inform the applicant of the outcome of the review.’.—(Diana Johnson.)
Diana Johnson: I want to pick up on a point in Stonewall’s submission relating to making contact with the applicant at their home address, which the applicant may not always want. What thought has the Minister given to how the applicant would be informed of that
Lynne Featherstone: The hon. Lady is absolutely right. The whole process is intended to be as easy and comfortable as possible for the applicant. Should the applicant want to give a different address for receipt of information or details of a co-recipient—someone who could receive the information on their behalf—that will be absolutely fine, and they should be able to do that. There is no hesitation in making this as easy and unembarrassing as possible to remove any difficulties that might be encountered and to ensure that the process can be followed and that the remedy is received with the least difficulty possible. On that basis, I ask the Committee to let the clause stand part of the Bill.
Diana Johnson: The clause deals with the technical detail of how the disregard for conviction would take place and it refers to a data controller. Will the Minister explain whether that would be a senior civil servant? Who will be the data controller? As we know, this is sensitive information, and the Minister has said that she wants a very limited number of people to have access to it. I therefore seek reassurance about who the data controller would be.
Will the Minister give some indication of her thinking on how long that process will take? Does she feel that it should be expedited once the decision has been made? It would be helpful to know that. Does the Minister have anything to say about the impact of the amendments that have been tabled on the abolition of the ISA and the Criminal Records Bureau and on the introduction of the new body? Will they make things easier? Would the period involved be longer because the new body was being set up to deal with these matters?
Lynne Featherstone: The provisions are about the official records. If the records are police records, the data controller is likely to be a chief officer of police—that is the relevant point. The onus is on the police to delete their records as soon as is reasonably practicable. We will expect people to act swiftly in all regards as soon as a decision is made, so as soon as is viable.
The creation of the disclosure and barring service will have no impact on those decisions or the speed. We will come on to that, and I look forward to that debate, because in principle it is a sensible solution to the changes that have been made. In the discussions that we have had to date, no impact has been suggested from the proposed merger of the ISA and the CRB.
Michael Ellis: Does my hon. Friend acknowledge that some records may be quite elderly? If, hypothetically speaking, a person in his 80s who was convicted in his early 20s wanted to have records expunged, one might have to research back into records dating from perhaps the 1940s. We must not be too prescriptive, therefore, about record keepers, as they used to be called, or data controllers, as they seem to be called now, annulling those records.
Lynne Featherstone: My hon. Friend makes a really valid point. Ultimately, even if it takes a bit longer to get to the right answer, that is absolutely the correct approach and it is the approach that the Government would take. To sum up, clause 85 sets out what happens if an application to disregard a conviction or caution is successful. It might help the Committee if I explain what is meant by “disregard”. I know that in some quarters there was a suggestion that the Government had made some sort of change, because a promise had been made to delete these records.
The purpose of the proposals is to ensure that the personal details of an individual who had been convicted or cautioned under section 12 or 13 of the Sexual Offences Act 1956 are not disclosed. Clause 85 sets out that the Secretary of State will tell the relevant data controller—or record keeper—to delete the records of the conviction or caution in question. That will apply to records that are kept on the police national computer and local police records.
Some records are kept in formats that do not allow for simple deletion, however. Those include court records, which are often kept in bound volumes containing details of thousands of convictions, and records of historical interest such as those kept by the National Archives. One cannot destroy such pages. In such cases—where it is not possible to destroy the physical record, because to do so would mean the destruction of other criminal records or the destruction of documents of historical importance—we have provided for the relevant conviction or caution to be annotated with a statement that it is a disregarded conviction or caution, and that the effect of such a disregard is that the person is to be treated for all purposes in law as though they had not committed the offence. Obviously, if it is an electronic record, it will be deleted.
Mr Tom Watson (West Bromwich East) (Lab): My understanding is that the National Archives are going through an enormous digitisation process. Does that mean that the paper records that are so annotated could be digitised, and therefore might be electronically searchable?
Michael Ellis: In normal circumstances, criminal records ought to be secret for 100 years. They ought not to be searchable by strangers, if that is what the hon. Member for West Bromwich East is referring to, even well after the decease of the convicted person.
Mr Watson: Through the Minister to the legal adviser sitting at the back: that was not really the point of my question. My motive is born of a lack of faith in the electronic records that are held by central Government, because I have some experience of those. I am trying to establish whether we could inadvertently be producing a new digital record from existing paper records. I am not trying to catch the Minister out in any way; I am trying to find out whether the homework has been done on this.
Lynne Featherstone: The hon. Gentleman has put an important point on the record. Paper records will be annotated and National Archives may be searchable online but not necessarily show the original document online. I will write to the hon. Gentleman about this. It is right that we make it as certain as possible that accidental revelations do not occur because of our online media. We have recently seen examples of information revealed on the internet that not everyone wanted revealed.
The physical record will still exist in the National Archives, but anyone who sees the record there will be made aware of the consequences of the disregard, which I will go into under clause 86. Criminal offences exist under the Data Protection Act relating to unlawful obtaining of personal data. We will set out the records covered by this process in secondary legislation.
We are therefore delivering on our commitment to ensure that these disregarded convictions do not show up on criminal record checks. While we cannot physically delete every single record of a disregarded conviction or caution, for the reasons I have given, the fact that a physical record may still exist will not alter the fact that nothing about a disregarded conviction or caution should be disclosed.
Diana Johnson: In a previous contribution, the Minister said that she was going to talk about the disregard, and obviously Clause 86 deals with the effects of disregarding a conviction. As I understand it, the person will be treated as if the conviction never existed. The conviction cannot be mentioned in judicial proceedings, it will not apply to agreements demanding the disclosure of convictions and it cannot be used as grounds for dismissal. What remedy would be open to an applicant who had gone through the process of having the conviction disregarded and then found themselves in a position
Lynne Featherstone: I will come to that point. We are unable to delete every newspaper reporting of any conviction or caution happening at the time. We can be clear for the purposes of disregard for criminal records, for judicial hearings, all those purposes; however, we cannot say that the actual act never happened. Although it may be no longer relevant or disregarded, as if it never happened in criminal law, we cannot expunge it from history because it actually happened and it might have been reported on. It is possible that a newspaper article somewhere will exist.
Let me put it simply. Once a conviction or caution is disregarded, the person is treated for all purposes in law as though the offence, and what followed from it, never happened. The record of the conviction or caution can never be disclosed and the person to whom the disregard applies is under no legal obligation—I want to put this on the record—to disclose it on any form of criminal record check or enquiry. A disregarded conviction or caution will not appear on any criminal record certificate issued by the Criminal Records Bureau and it cannot be revealed in any kind of judicial proceedings.
In this respect we are going beyond the provisions of the Rehabilitation of Offenders Act 1974. Under that Act, even spent convictions are disclosable in certain circumstances, and will be on CRB certificates, as we have discussed. Under the Bill, that will not be the case for disregarded convictions and cautions, and a person with such a conviction or caution will be treated for all purposes as if he had never committed the offence and therefore had never been charged, prosecuted, convicted and sentenced for the offence.
I would like to make clear an important point. The provisions will apply only when an individual has had a conviction or caution disregarded. As I explained under clause 82, an application to have a conviction or caution for an offence under section 12 or 13 of the Sexual Offences Act 1956 disregarded is at the individual’s discretion. If the individual does not apply, or applies and is not successful, the conviction or caution will remain, and can be disclosed in a CRB check. I would not like the message inadvertently to go out that there is an automatic deletion; the deletion is applicant-applied-for. That is why we will be working with interested parties, such as Stonewall, to advertise the measure and to encourage as many individuals as possible who come within its scope to apply and have their conviction or caution disregarded.
The hon. Member for Kingston upon Hull North asked about the remedy. An applicant can take legal action if their application for a conviction to be disregarded is refused inappropriately, in employment cases for example, and that can be done at an employment tribunal.
Lynne Featherstone: It is there probably because it is better to have a clear explanation in the Bill of the distinction between a royal pardon and Her Majesty’s auspices, and to state that the provisions do not change the situation with regard to Her Majesty. The clause provides that nothing in the Bill affects Her Majesty’s power to grant a free pardon, quash a conviction or sentence, or commute a sentence. The power to issue a royal pardon remains, irrespective of the operation of the provisions. Her Majesty would take precedence over any decision to disregard, or not, an individual’s record, and that needs to be made clear.
and there then follows a long list of circumstances. What happens to information held on police databases that constitutes evidence that a person has engaged in homosexual activity, when there has not necessarily been a conviction? Will the police have to take the information off their database, and is there a mechanism for such deletion? I am worried about historical information, because there has been variation around the country regarding what information forces hold and why, and sometimes they hold information that we would not expect to be held.
|©Parliamentary copyright||Prepared 13th May 2011|