Criminal Records Bill [HL]
Thursday 29th June 2017
(7 years, 5 months ago)
Lords ChamberRead Full debate Criminal Records Bill [HL] 2017-19 Read Hansard Text
Criminal Records Bill [HL]
Friday 23rd February 2018
(6 years, 9 months ago)
Lords ChamberRead Full debate Criminal Records Bill [HL] 2017-19 Read Hansard Text
Lord Ramsbotham (CB)
My Lords, I declare an interest as president of Unlock, the charity for people with criminal convictions, which, for years, has taken a keen interest in the reform of the Rehabilitation of Offenders Act 1974, which I will refer to as the ROA from now on, and whose co-director has issued a most comprehensive brief to those who are speaking today. I also thank the Library for its usual excellent briefing, which excellence I am sure all noble Lords appreciate and admire.
I am pleased to note that the Bill is listed under my proposed title, Criminal Records Bill, rather than as a revision of the ROA, because that better describes its subject, which is only one ingredient of the rehabilitation of offenders. Just over a year ago, when my previous attempt to revise the ROA was read for the second time, the prisons part of the Prisons and Courts Bill had not started its progress through the other place. I mention that because, at the time, I had high hopes that the need to revise the ROA might be picked up by the Government, as the revision was clearly in line with other reforms envisaged in the Bill, including the holding of the Secretary of State for Justice to account for the rehabilitation of offenders. But those hopes were dashed when the prisons part was dropped from the Bill—hence yet another attempt to persuade the Government of the need for reform.
The Bill is short, consisting solely of a suggested amendment to the list of those sentences that are excluded from rehabilitation under the ROA, a table of suggested alterations to the length of rehabilitation periods for adults and children and a clause suggesting that the title of the Act be changed.
I begin by reminding noble Lords of a little of the history of previous attempts to reform the ROA. It explains why I feel so frustrated that, despite all the evidence from many different sources, a Private Member’s Bill, first by the noble Lord, Lord Dholakia, and then twice by me, should have to be used as a vehicle for trying to persuade the Government to take action on something that both their predecessors identified as a major inhibiting factor to the rehabilitation of offenders, which they profess to champion.
For many years, the main grounds for criticism of the ROA have included that it did not do enough to rehabilitate offenders, the length of its rehabilitation periods and the exclusion of prison sentences of over 30 months from its scope, the most trenchant criticism coming from the Better Regulation Task Force in 1999. Following this, the then Labour Government published a review entitled Breaking the Circle, in 2001, followed by a consultation, in response to which they said, in 2002, that they intended to publish a draft Bill containing their proposals for pre-legislative scrutiny. However, no such Bill emerged, which I have always regarded as a regrettably lost opportunity.
In 2010, the coalition Government that followed published a consultation document entitled Breaking the Cycle, in which they acknowledged that the Act was inconsistent with contemporary sentencing practice, as well as overly complex and confusing, resulting in many people not realising that it applied to them. The Government said that they were taking a fundamental look at the objectives of the Act, as part of their rehabilitation revolution, giving thought as to how it could be reformed, including broadening its scope so that it covered all offenders who received determinate sentences and reductions to the length of some rehabilitation periods. In the event, there was no mention of the Act in the Government’s response to the consultation. However, a clause was added to the Legal Aid, Sentencing and Punishment of Offenders Act 2012—LASPO—which reformed the Act in two ways. First, its scope was extended to cover custodial sentences of up to 48 months and, secondly, the length of some of the rehabilitation periods was reduced.
There are, currently, three types of criminal records check in England and Wales: basic, standard and advanced. All employers can carry out a basic check as part of their recruitment process, the length of time when convictions or cautions have to be disclosed being laid down in the ROA. However, employers have to apply to the Disclosure and Barring Service, set up following the LASPO amendments, for standard and advanced checks. Professions that are protected, and for which disclosure is compulsory, are listed in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, which is now seriously out of date because it does not mention the DBS.
I said last time that the Government should establish a system for identifying and stopping ineligible requests for checks, which too many of the 4 million each year currently are. That requires either the Ministry of Justice or the Home Office to lay down clear criteria regarding the eligibility of applications. The DBS should publish and maintain accurate guidance on its processes. Together, the Government and the DBS should take action against employers who do not take reasonable steps to ensure that they are eligible to apply for checks. Although carrying out an illegal check is a criminal offence under the Police Act 1997, there have, as yet, been no prosecutions and the DBS does not see itself as an enforcement body.
However, while government has been idle as far as revision of the Act is concerned, others have been very active. In July 2016, the Home Office asked the Law Commission to review and report on an aspect of the criminal records disclosure system known as filtering. Although outside the scope of my Bill, filtering, which has been in place since 2013, is important because it regulates those jobs that are exempt from the ROA, requiring an individual to disclose convictions and cautions even though they are spent. The Law Commission found that the legislation governing filtering was hard to understand and inaccessible to users, that there was uncertainty as to what was or was not on the list of non-filterable offences, as the content of lists, which were in two different parts of the legislation, was changed from time to time, and that, overall, there appeared to be a lack of a principled basis for the inclusion of individual offences in the list. It said that there was a compelling case for a wider review of the disclosure system as a whole.
In March 2016, the Standing Committee for Youth Justice published a report Growing Up, Moving On: The International Treatment of Childhood Criminal Records, which I mentioned at Second Reading of my previous Bill. In December 2016, Charlie Taylor, now chairman of the Youth Justice Board, said in his report on the youth justice system that, in his view, the current criminal records system lacked a distinct and considered approach to childhood offending. Both reports were picked up by the Justice Select Committee in the other place, whose first report during Session 2017-19 was entitled Disclosure of Youth Criminal Records. The committee said that the current system for disclosure undermined the principles of the youth justice system and may well fall short of the United Kingdom’s obligations under the UN Convention on the Rights of the Child. The Government, however, in their response dated January 2018, claimed that current disclosure arrangements, including rehabilitation periods and the filtering system, were proportionate and struck the right balance between protecting the public and an individual’s right to privacy.
The Government claim that they can do nothing about reforming the disclosure system until the Supreme Court has ruled, which it is due to do in June, on an appeal that it has mounted against the dismissal, by the Court of Appeal, of its appeal against a judgment of the High Court, in a case brought against the current system. The same excuse for doing nothing was used by the officials in the Ministry of Justice and the Home Office who I went to see last year in a vain attempt to get government to review the ROA on its own account. I have to admit that, to me, this smacks of procrastination, quite apart from being a waste of public money. It is now 19 years since the Better Regulation Task Force reported its concerns. The Minister will realise why it is hard to take a department seriously that takes so long to action something that successive Governments have agreed needs to be done.
Since then, another voice has been added to those calling for reform. In his review of the treatment of BAME offenders in the criminal justice system last September, David Lammy MP said that,
“it must be recognised that a job is the foundation for a law-abiding life for ex-offenders, but that our criminal records regime is making work harder to find for those who need it the most. The system is there to protect the public, but is having the opposite effect if it sees ex-offenders languishing without jobs and drawn back into criminality. A more flexible system is required, which is capable of recognising when people have changed and no longer pose a significant risk to others”.
The danger of being frustrated by such a long period of government inaction is that one is tempted to overstate one’s case, which I hope, sincerely, I have not done today. As the Minister knows, protecting the public is the responsibility of every Government, which, in the case of those sentenced by the courts, should include ensuring that active, rehabilitative measures, designed to help them to live useful and law-abiding lives on release, are provided. Unfortunately, currently, the Prison Service and probation service are failing to rehabilitate far too many of those sentenced by the courts, for reasons that need not concern us today. But, if the Government are to do everything in their power to redress that situation, the onus is on them to examine all the causes of failure. Part of the rehabilitation process must include giving all those convicted of an offence the opportunity to have the positive things that they have done, during and since finishing their sentence, recognised, in law, and allowing them to be legally rehabilitated, subject to certain clearly laid-down conditions.
The current criminal records system has been judged to be bad in practice by successive Governments and many outside observers and wrong in law by the High Court and the Court of Appeal. I hope therefore that the Minister will accept the urgency of the need for a fundamental review of the whole system, as recommended by the Law Commission, which can be initiated only by government and not by a series of Private Members’ Bills. If Scotland and Northern Ireland can do it, why cannot England and Wales? I beg to move.
Lord Dholakia (LD)
My Lords, I thank the noble Lord, Lord Ramsbotham, for this Bill, which has the support of these Benches.
Perhaps I may first make an admission: I introduced the Rehabilitation of Offenders (Amendment) Bill in previous Sessions. The purpose of my Bill was to make changes to the rehabilitation periods that are completed before cautions and convictions become spent under the Rehabilitation of Offenders Act 1974. The Bill passed all its stages in your Lordships’ House but failed to secure a First Reading in the other place. This gives me an opportunity to put on record my thanks for the support I received from my noble friend Lord McNally and from the then Secretary of State for Justice, Ken Clarke, during the coalition Government.
The noble Lord, Lord Ramsbotham, mentioned that the Government tabled amendments to the then Legal Aid, Sentencing and Punishment of Offenders Bill, which amended the length of rehabilitation periods and increased the scope of the Bill to cover custodial sentences of 48 months.
We have a crisis in our prisons. Rehabilitation has become a distant dream. On 16 February—a week ago—the Times reported:
“Thousands more prisoners are to be released early under a government drive to relieve pressure on overcrowded and drug-ridden jails”.
Will the Minister confirm whether that is so? The figures available for 2010 indicate that reoffending by all recent ex-prisoners was estimated to cost the economy between £9.5 billion and £13 billion annually. Will the Minister give the most up-to-date figures available on this? In the Bromley Briefings Prison Factfile, the Prison Reform Trust said:
“Nearly all prisoners (97%) said they wanted to stop offending. When asked what would be important in stopping them, most said a job (68%) and a place to live (60%)”.
I said earlier that we support the Bill, which seeks to extend the protection that the Rehabilitation of Offenders Act currently provides to former offenders who have turned their lives around and avoided reoffending for a significant period. This includes ex-offenders who have served sentences of over four years but have then left crime behind them and stayed out of trouble for more than eight years.
The Bill also reduces the periods after which convictions attracting shorter custodial sentences and community orders become spent. The Rehabilitation of Offenders Act 1974 provides that after specified “rehabilitation periods” ex-offenders do not have to declare spent convictions when applying for jobs, housing and insurance. These factors were identified in the Bromley briefings. It is worth re-emphasising that the Act does not apply to people applying for jobs in sensitive areas of work, such as criminal justice agencies, financial institutions and work involving young people or vulnerable adults. In my view, there is scope for narrowing down the exceptions to the Act, but for the present the noble Lord’s Bill would leave them as they are.
Despite those exemptions, since it was enacted in 1974, the Rehabilitation of Offenders Act has helped many ex-offenders to live down their past. Initially the Act applied only to offenders serving sentences of up to two and a half years. However, following my introduction of a series of Private Members’ Bills to reform the Act, the coalition Government agreed to extend the Act to include offenders who have served sentences of four years or less.
Even now, however, many genuinely reformed ex-offenders can never benefit from the Act. More than 7,000 people a year are given sentences of over four years. At present, they can never be rehabilitated for the purposes of the Act, however much they do to change their ways and over however long a period. Therefore, an offender who receives a four-year sentence at the age of 18 and never commits another offence is legally obliged to declare that conviction. If asked when applying for jobs at the ages of 50 or 60, this still applies to them—and that means when applying for any job, not just employment in sensitive occupations.
Our provisions are still notably less generous than the rules that apply in many other European nations. Most European countries apply rehabilitation periods to sentences of longer than four years and their rehabilitation periods are often significantly shorter than ours. Is it not time to remove this anomaly?
The same is true in relation to young offenders. In 2016, the Standing Committee for Youth Justice published a report entitled Growing Up, Moving On, which compared the treatment of young people’s criminal records in 16 comparable countries. It found that the system in England and Wales was the least generous of all the systems studied. A criminal record acquired by a juvenile in this country affects the young person for longer than in any of the 15 other countries compared in the study.
Again, since the Rehabilitation of Offenders Act was implemented, sentence lengths in this country have increased significantly. Many offenders who would have received sentences of four years or less back in 1974 are receiving sentences of five, six or seven years today. That means that many offenders who would have been helped by the current law if they had offended in the 1970s now find that their offences can never become spent during the whole of their lifetime.
Under the provisions of the noble Lord’s Bill, offenders who receive custodial sentences would have to avoid crime for a specified period after the sentence was completed, including any post-release supervision period. An offender who received a custodial sentence of more than four years would then have to remain crime-free for an additional period of four years. That means that those offenders would have to avoid crime for more than eight years, and in some cases for a much longer period, before the provisions would apply to them. An offender who received a three-year sentence would have to stay out of trouble for a total of five years from the date of the sentence before his or her offence became spent. So for the more serious offences, offenders would have to avoid reoffending for very significant periods. Even then, the new provisions would not apply to jobs in sensitive occupations, for which they would still have to declare their full criminal record indefinitely. Less serious offenders who receive short sentences or non-custodial sentences would benefit from the Bill’s provisions after shorter periods, but even then, only when they were applying for a position which does not involve work with children or vulnerable people or other sensitive occupations. These are important safeguards, which I am sure the Minister will welcome.
Taken overall, the provisions of the Bill would further reduce the scope for unfair discrimination against ex-offenders in the job market. Regrettably, such discrimination is still widespread. Surveys of ex-offenders in Nacro projects—the National Association for the Care and Resettlement of Offenders—have shown that 60% have been explicitly refused jobs because of their criminal record. I declare my interest at this stage as the president of Nacro. Of course, it is sometimes reasonable to refuse an ex-offender a job because of his record. For example, we must obviously bar offenders with a history of offences against children from working with children. Equally obviously, we should bar offenders with a history of offences against elderly people from working with or caring for the elderly. The Bill would not apply to cases such as these as they are covered by the exceptions to the Act. However, in many cases employers often turn down applicants because of offences that have no relevance to the job for which they are applying.
Unfortunately, the scope for discrimination against ex-offenders is wide because decisions to employ or refuse people jobs are not made at the top of companies. They are made by large numbers of individual managers and personnel staff who have usually had no specific training in how to deal with applications from people with criminal records. Unfair discrimination against ex-offenders is wrong in principle because it imposes an additional illegitimate penalty of refusal of employment on people who have already served the judicially ordered punishment for their crime. It also reduces public safety because an ex-offender’s risk of reoffending is reduced by between one-third and one-half if he or she gets and keeps a job. The whole community benefits when offending is reduced, and reformed offenders are also helped to avoid returning to wasting their lives in criminal activity.
In conclusion, the Bill would enable more people with criminal records to start again with a clean slate after a period—in many cases a very long period—free from criminal activity. That is a worthy aim and I am delighted to support the noble Lord, Lord Ramsbotham, in his efforts to achieve it.
Lord Carlile of Berriew (CB)
My Lords, as ever it is a great privilege to follow the noble Lord, Lord Dholakia, particularly given his remarkable and creditable record on the issues we are discussing today.
I congratulate my noble friend Lord Ramsbotham on presenting the Bill to the House. It deals with a very important issue. The noble Lord has a remarkable record and a huge fund of knowledge of the way in which imprisonment and other sentences of the court affect the lives of those who have been sentenced, not only when they are in custody but, importantly, when they leave custody. We tend to focus a great deal, though not always very effectively, on what happens to people when they are inside a custodial establishment. Much more difficult to pin down is what happens to them when they leave and in the years that follow, which can sometimes be the wreckage of their lives.
I would like to focus particularly on those who are under 18 years old when they are sentenced. I do so with some trepidation, knowing that the immediate past chairman of the Youth Justice Board will speak after me in this debate. The noble Lord, Lord McNally, did great service in this area and I am delighted that he is participating today.
In June 2014, a parliamentarians’ inquiry sponsored by the Michael Sieff Foundation and the National Children’s Bureau reported on its investigation of the youth justice system. Page 56 of the report of the inquiry, which I chaired, states:
“The panel recommends that, in the longer term, children who have offended be given a ‘clean sheet’ at 18, meaning that previous offences would be expunged from their record rather than only filtered. This would only be available if a specified period of time had elapsed in which there had been no further convictions. This would not be available for homicide, serial sexual offences and other violent crimes … A similar recommendation to this was notably made by the Home Office in its 2002 report ‘Breaking the Circle’”.
This issue, along with the views that are being expressed in the debate, has been around for a long time and I would simply remind the Minister, who I think comes fairly new to these matters, that five Members of your Lordships’ House were on that panel, and of the three Members of the other place, one was Robert Buckland, who is currently the Solicitor-General with a wealth of knowledge of the criminal law process, and that our report was unanimous.
In dealing with the issue of children—for they are children—who are sentenced, I want to tell your Lordships about one small episode that I experienced while doing a piece of work some years earlier for the Howard League for Penal Reform. I went into a youth custody centre and as I was walking along the corridor with officers, a boy of about 17 said, “Will you come into my room, sir?” All over the walls of his room were certificates, all of them for maths, including one for an A* pass at GCSE. I said something really stupid to him, “You like maths, do you?” to which he replied, “I love it, sir. I want to be a maths teacher when I get out”. I do not know what has happened to him since, but he would certainly have been able to obtain the qualifications to become a maths teacher. I asked him whether he had enjoyed maths when he was at school, and he replied, “I never went to school, sir”. That is an example of someone who, while he was in custody, through the work of the education part of that establishment, discovered a real aptitude which he could offer to others later. However, I know, because I was an MP for 14 years and I have seen these problems in constituency surgeries, that someone like that young man applying for a teaching job at 23 or 24 years of age would not have a chance of obtaining it because his criminal record would be deployed against him. His sentence had been one of medium length.
We really have to deal with this problem. We can do any analysis you like, one of which I would call a social benefit analysis. Taking the example I have given, what would the social benefit be of that young man becoming a maths teacher or using his skills in some other productive way in employment that he obtained because his record did not have to go before prospective employers? The other one we could do is a cost-benefit analysis for society, to which the answer is perfectly obvious.
I regard this Bill from the noble Lord, Lord Ramsbotham, as an important and necessary provision. I would expect further focus in Committee on the issues I have raised about the under-18s and I would happily undertake part of that role. I know that we have the broad support of the excellent successor to the noble Lord, Lord McNally, as chair of the Youth Justice Board—Charlie Taylor. I and many others have spoken to him about these issues on numerous occasions because he keeps an open door and is interested in our views. I know what recommendations he would make to Ministers both privately and more publicly. The time has come to get to grips with changing the law so that convictions, whether for children or adults, do not wreck or at least badly dog their lives as they continue.
After all, the purpose of justice—certainly the purpose of youth justice—should not include wrecking the later lives of the people who have been through the custodial system, sometimes only to small measure as a result of their own fault and often because of the circumstances in which they found themselves. Those of us who have spent long periods in and out of criminal court rooms know that there is an underlying truth to what I and others are saying in this debate. Society must not simply say that they are responsible for their own actions. Of course they bear responsibility for their actions, but we bear responsibility for what happens to them afterwards.
My noble friend Lord Ramsbotham referred to current litigation that remains unconcluded. Ongoing litigation has never been a justification for the Government doing nothing. If there is merit in doing something, the Government can do something and save us the costs of the litigation. That sounds like a pretty good litigation tactic.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, this is the first time in 14 years’ membership of the House that I have ever had the effrontery to speak in the gap and I hope not to abuse the privilege today. I would have put my name down to speak in this debate yesterday, but I was told that it might go beyond the time when I have to be away.
I recognised then and yet more clearly today, that, that said, there is little of substance that I can add to the impressive contributions made by the several seasoned warriors who have campaigned consistently on this issue over many years. I refer not only to the three who have already so tellingly and impressively spoken—special tribute is due to my noble friend Lord Ramsbotham for his tireless championing of this cause over recent years—but also to the noble Lord, Lord McNally, who is shortly to follow. All I want to add, for what it is worth, is an erstwhile judge’s name to the list of those who support this Bill. It is an attempt to drag this country a stage further towards a more enlightened future, where more ex-prisoners—not least young offenders, of whom my noble friend Lord Carlile has just spoken—may be allowed to shed the mark of Cain and thereby improve their prospects of shaking off, too, the temptation to reoffend and instead obtain gainful and confidence-building employment.
It is infinitely depressing to learn that, as with the age of criminal responsibility, this country’s position with regard to the disclosure of criminal records is more repressive and punitive than virtually any other civilised nation. Just as we criminalise children at 10, with the regrettable consequences that has for their self- image and prospects of a responsible, law-abiding future —a matter on which the noble Lord, Lord Dholakia, has worked so hard—so too in this country it takes longer than almost anywhere else, and longer than it should, for those convicted of crime to then live down their criminal records and so restore their prospects of resuming life in the community on level terms with others as to employment, insurance and so forth.
I hope that, at last, the Government will have the imagination now to welcome rather than to oppose this further attempt to improve the future, not just for ex-prisoners but for us all. I strongly support the Bill.
Lord McNally (LD)
My Lords, I do not think that the noble and learned Lord, Lord Brown, needs to apologise at all. It is extremely valuable to the case that we are trying to make to have a judge of his long experience expressing his views. As for the other speakers before me, each one was, in their different ways, a great influence on me when I had responsibilities in these areas. The country at large is grateful to them for the significant contribution that they have made to make our criminal justice system more civilised and more humane.
I await the response of the noble Lord, Lord Stevenson, on behalf of the Labour Party. I have always counted him as being on his party’s more liberal wing. However, the truth is that the Labour Government, as the noble Lord, Lord Ramsbotham, mentioned, did nothing after their 2002 review of the working of the 1974 Act. Indeed, during their period of office between 1997 and 2010, successive Labour Home Secretaries went out of their way to show that they were not woolly liberals and had a determination not to be outflanked by the Tories on being “tough on crime”. That is why nothing has been done: because the two major parties have been frozen by fear of the other exploiting any sign of a liberal move in this part of the criminal justice system. I look forward to the noble Lord’s contribution. I hope we can rely on him and the Labour Party for taking the Bill forward.
The case for a fundamental review of the workings of the criminal records system and subsequent legislation to implement its findings is ever more pressing and urgent. When I was at the Ministry of Justice between 2010 and 2017, first as a Minister and then as chairman of the Youth Justice Board, it was constantly impressed on me that policy must be research and evidence based. My experience in those seven years left me with a firm belief in three core directions of policy. The first was that early intervention works in preventing young people entering the criminal justice system. The second is that through-the-gate support works. I still remember talking to an ex-prisoner working on a Carillion building site—Carillion had a good reputation for employing ex-prisoners. He said to me, “You know sir, you cannot imagine how lonely you feel stood at a gate of a prison with your clothes in a bundle and £40 in your pocket and you don’t know where you’re going to live and you don’t know where you’re going to earn a living”. The attempts at through-the-gate support are entirely to be welcomed. The third is a mantra referred to earlier: a job, a home and a relationship work more than anything else in avoiding reoffending.
The proponents of the Bill argue that, far from it being woolly liberalism, it is overwhelmingly based on evidence from study after study, as the noble Lord, Lord Ramsbotham, pointed out. A criminal record is a major factor in preventing an ex-offender getting a job, and that inability to enter the world of work is a major factor in subsequent reoffending.
I was recently sent a booklet written by Sir John Timpson entitled How Prison Leavers can Find a Career. As the House will know, the Timpsons have a splendid record in employing ex-prisoners. The booklet lists some of the hurdles an ex-prisoner faces in housing, getting a bank account, a mortgage, credit cards or insurance and in finding a job. It gives the following statistics: 61% of prisoners reoffend after two years; 19% of prison leavers with a job reoffend after two years; and 3% of prison leavers who join Timpson reoffended. I would not claim that that is absolutely scientific, but it is interesting that one of the factors in the Timpson process is giving prison leavers not just a job but a range of other support as they get into the world of work. Let us be clear, measures that help offenders back into the world of work reduce crime and save the victims of crime from its trauma. There is hard-nosed, research-based evidence that a more intelligent use of criminal records can have a positive impact on levels of crime.
It would be a step forward if the Government carried out an independent, wide-ranging review of the 1974 Act. It would also be interesting to know whether the 2012 reforms I introduced through LASPO revealed any downsides: I know that the department has just conducted a post-legislative review of the LASPO Act. It was one of the fears of No. 10—it was not the Ministry of Justice, it was No. 10 that had cold feet about going further in 2012—but were there any adverse results of those modest reforms that we carried through, that small step towards liberalisation?
There are difficulties, of course. We have just finished our work in this House on the Data Protection Bill. There, we had to take account of the right to personal privacy and weigh that against the reality that modern technology has the capacity to track our every move and have instant recall of every incident and event from our dim and distant past. The right to be forgotten is difficult to deliver even for the most law-abiding citizen in our brave new world of artificial intelligence and data revolution. It is also true that reformers have to meet genuine public concerns that wiping the slate clean may result in the still-dangerous paedophile, the partner abuser, rapist or others who remain a danger to society disappearing into a maw of anonymity, only to offend again. That is why any management of criminal records includes the list of exclusions from its provisions set out in new subsection (1) in Clause 1.
Will the Minister clarify how protections provided by the domestic violence disclosure scheme—Clare’s law—would be affected by the measures proposed in the Bill? How would the Bill affect the other sexual and violent crimes which the tabloids always imply would be given anonymity by its passing? It is significant that all the major reports referred to by the noble Lord, Lord Ramsbotham, call for reform along the lines proposed by the Bill, particularly as it applies to offenders under the age of 18—children in the eyes of the law. During my three years as chair of the YJB there was ample evidence of the overhang from offences committed often when the offender was in early teens that could continue to blight prospects into adulthood. A key element of the Carlile report—I know it was funded by Sieff, but it is known as the Carlile report, and rightly so—into the treatment of young offenders by the criminal justice system was, as we have heard, that with suitable safeguards, an ability to wipe the slate clean at 18 should be provided. My successor as chair of the YJB, Charlie Taylor, wrote a report showing that a childhood criminal record, even for a relatively minor offence or misdemeanour, can have severe implications during childhood and beyond into adulthood; this can affect an individual’s education, employment and other prospects for years to come.
I am sure we all wish David Gauke well in his new responsibilities. He is our sixth Justice Secretary since 2010; I wonder whether there is a lesson to be learned there. I hope he will accept that there is an overwhelming case for an independent inquiry into an Act which is now 44 years old. We need to assess how the latest technologies impact on or undermine the workings of the Act, and to examine how the shadow of a criminal record can be lifted while retaining public confidence. Our aim must be to bring forward legislation fit for a 21st-century purpose and which avoids or minimises the unnecessary or disproportionate impact of criminal records on those who have genuinely put their criminal past behind them, while continuing to protect society from those who remain a danger and a threat.
On another Friday a few weeks ago, the noble Lord, Lord Snape, observed about this “last business on a Friday” slot that all that could be expected from the responding Minister would be for them to say “as little as possible” and not leave any hostages to fortune. I hope we will get more from the Minister today and that she will welcome the Bill as an overdue step in penal reform, which will help those trapped by the long shadow of a criminal conviction but also cut the reoffending rate, with benefits to victims and society as a whole, who bear the trauma and cost of reoffending. I wish the Bill well.
Lord Stevenson of Balmacara (Lab)
My Lords, like the noble Lord, Lord Carlile, and others, I pay tribute to the noble Lord, Lord Ramsbotham—a “seasoned warrior”, in the words of the noble and learned Lord, Lord Brown—for his commitment to this cause and for pressing this Bill once again. The sensibility that he expressed is still important today and needs to be pressed, and it is good that he will be putting pressure on the Government to try to take it further forward. We will support him on that. We should acknowledge the work of the noble Lord, Lord Dholakia, which has been mentioned, and the contribution made by the Youth Justice Board, particularly by the noble Lord, Lord McNally, who manages to be effective and make his case well at the same time as trying to knock down those who might otherwise rally to his standard. He must learn to be a bit more generous in his remarks. I am not very good at categorising where I stand on the political spectrum, but I think he will be satisfied by what I will say today.
I am standing in for my noble friend Lady Chakrabarti. I am afraid that I cannot in any sense match her experience and knowledge, or indeed speak for her on this occasion. But I declare an interest in that when I was director of the Smith Institute we worked on two projects which I think are relevant today. One was work done with the then chair of the Youth Justice Board on restorative justice, a programme which is still to be taken up wholeheartedly by the Government but I think should be. We also did a report on a study that was done in conjunction with Centrica at Reading jail on the impact that having a job, good housing and proper support—points made by the noble Lord, Lord McNally—made to the rehabilitation of prisoners coming out from there when Centrica took the big decision, a bit like the one already cited, to recruit its fitters from those who were in Reading jail. That solved its problems of finding appropriately qualified people to take on that work but also had a huge impact on those lives.
The Bill contains a detailed plan for the revision of the current situation affecting spent sentences, and we support it. In his opening remarks, the noble Lord made the point that the Bill is very specific and detailed but actually it conceals a much broader concern, and it would be a pity if we lost that. I hope that when the Minister responds she will engage with that. The Bill seems to be based on a feeling that the present system needs a fundamental overhaul and to map more closely changes in the criminal justice system, and also go wider than that because of the changes that are currently being made in the use of the disclosure system. It probably needs an independent, wide-ranging inquiry, and that inquiry is now long overdue.
It is really about what sort of society we want to live in and the Bill challenges us to live up to the ideals of fairness and proportionality that should be present in our criminal justice system, as they must in many other areas of society. It is also important to pick up what a number of speakers have mentioned, that it seems to be a particularly English and Welsh problem that we cannot sort this out in the way that has been suggested today. We have already made significant changes to the disclosure arrangements in Scotland and Northern Ireland. Why can these not be rolled out into England and Wales as quickly as possible?
As others have, I acknowledge the excellent report produced by the Library to prepare us for this debate, and I am also grateful to Unlock for its briefing; I will draw a little bit on that. In the speeches today and the material that has been circulated, the general view seems to be that the reforms made by the 2012 Act have not met the needs of either prisoners or the general public. We have heard today that rehabilitation periods remain too lengthy and in any case are not evidence based. Some convictions are never spent regardless of the progress made by the individual—an invisible punishment, it has been called—which will for ever shadow the individual and prevent full rehabilitation and re-engagement in society. Surely people must have the opportunity to have positive things they have done since leaving prison recognised in law, allowing them to be legally rehabilitated.
I was struck by the force of the argument made in one paper that the law should recognise a presumption that no one who is released from prison should face a lifetime of disclosure without the prospect of a review at some point. In the words of the noble Lord, Lord Carlile, we must not have a situation which wrecks lives; there must be some rehabilitation process available. As others have mentioned, something really must be wrong with a system that allows someone who has received an eight-month prison sentence for actual bodily harm to have their conviction spent before somebody who merely received a fine, for example, for speeding.
The noble Lord, Lord Ramsbotham, asked whether there was not a need to look critically at the way in which employers can get on to the list of excepted professions and cited the rise in the numbers of applications made for information about individuals under that provision. There are very few criteria in present law for how jobs are granted excepted status and the system seems to be too blunt, too unclear and too broad. We need to have much more detail about the thinking behind what rights prospective employees have in regard to employers asking for information about their offending history, and make sure that these are widely available.
A number of people mentioned the Taylor review, part of which was reproduced in the Library briefing that was circulated. It has some force, since it seems extraordinary to read that,
“a criminal record acquired in childhood can have far-reaching effects that go well beyond the original sentence or disposal. Certain sentences … never become spent … certain convictions or cautions will always be disclosed when an individual seeks employment … A key principle underpinning”,
the approach to the Taylor review was that,
“children who break the law should be dealt with differently from adults”.
That does not seem to happen, and I share the view that the current system needs to have a completely different approach for children, as opposed to adults.
In the previous debate on an earlier version of this Bill, my noble friend Lady Chakrabarti indicated support for it, describing the Rehabilitation of Offenders Act as “completely outdated” and the rehabilitation periods it enforces as,
“overlong and not based on any real evidence”.—[Official Report, 27/1/17; col. 939.]
This remains the position of the Labour Party. The Government’s response today, as the noble Lord, Lord Ramsbotham, hinted, is likely to be that the current disclosure arrangements, including rehabilitation periods, are proportionate and strike the right balance between protecting the public and the individual’s right to privacy. I think that is bonkers, and I hope they have been listening to this debate.
Baroness Vere of Norbiton (Con)
My Lords, I thank the noble Lord, Lord Ramsbotham, for bringing this matter back to the House for debate today. Noble Lords have powerfully raised a number of important and varied issues. Like the noble Lord, Lord McNally, I do not want to speak for too long or to create any hostages to fortune, so if I am not able to respond to all the issues I will of course write.
Rehabilitation is one of the most important objectives of our criminal justice system and the Government support all ex-offenders who wish to turn their lives around. Work can reduce the likelihood of re-offending, as we have heard today, and for many it is a central element in leading a rehabilitated life. This is why the Rehabilitation of Offenders Act—or ROA—provides that rehabilitated offenders will be treated as though they had not committed the offence and, subject to exceptions, will not be required to disclose spent cautions and convictions.
While this is familiar to many noble Lords, it may help if I briefly describe the ROA and how it supports ex-offenders. Under the Act, most convictions and all cautions will become spent following a certain period of time. That period varies according to the disposal or sentence imposed for the crime. Convictions resulting in non-custodial sentences and those resulting in custodial sentences of up to, and including, four years become spent. Where a caution or conviction has become spent, the offender is treated as rehabilitated in respect of that offence and is free to withhold the fact of that caution or conviction for most purposes. This includes when applying for most jobs, as well as when applying for insurance or a bank loan.
However, the protections afforded by the Act are excluded in respect of specified areas of employment. The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 lists areas of activity and proceedings that are exceptions to the Act. This means that an employer or other relevant body is entitled to ask for, and take into account, certain details of a person’s spent cautions and convictions, as well as any unspent cautions and convictions. These activities usually involve working with children or vulnerable adults, or where sensitive information is handled and there is a risk to the public of an abuse of trust.
I now come to the specific proposals that the noble Lord has included in his Bill. As I understand it, the intended effects of the main amendments include: bringing all determinate custodial sentences of any length, except extended sentences for certain sexual and violent offenders, within the scope of the ROA, whereas currently only custodial sentences of up to and including four years may become spent; reducing the rehabilitation periods that apply to a range of sentencing disposals for both adult and juvenile convictions, so that they become spent more quickly; removing the rehabilitation periods applicable to fines and some other sentences, including some non-custodial sentences and sentences under the Mental Health Act 1983; and commencing the amendments to the ROA that were made in 2014, in so far as they relate to road traffic endorsements. The intended effect is that rehabilitation periods for road traffic endorsements would be reduced. They are currently of five years.
The current rehabilitation periods were introduced almost four years ago, in March 2014, when reforms to the ROA were commenced through provisions in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. A conviction resulting in a custodial sentence of four years, or 48 months, or less may now become spent with the exception of offenders serving extended sentences. Previously, only convictions resulting in custodial sentences of 30 months or less could become spent. At the same time, most other rehabilitation periods were also reduced. Rehabilitation periods are substantially shorter for individuals who were under the age of 18 when they were convicted.
The Government believe that these reforms, which were approved relatively recently by Parliament, are proportionate and strike the right balance between protecting the public and helping ex-offenders to put their criminal pasts behind them. The Government are therefore not minded to support the Bill introduced by the noble Lord, Lord Ramsbotham, or the intentions behind it at this time. However, we give careful consideration to maintaining a policy which balances protecting the public and supporting rehabilitation, which is why the debate today is welcome.
I turn now to the nuances of the Government’s position, and I hope it will be helpful if I say something about the position and why we have taken it. Noble Lords will be aware, as it has been mentioned today, that aspects of the disclosure regime are currently being challenged in the courts. Several joined cases—P and others—are due to be heard this summer by the Supreme Court. These cases focus on the question of whether the current scheme, which sets out which cautions and convictions can be filtered from criminal record certificates in certain circumstances, is compatible with rights under Article 8 of the European Convention on Human Rights; that is, the right to respect for a private and family life.
Filtering provides that certain old and minor convictions and cautions are protected from disclosure and are no longer included on a standard or enhanced criminal record certificate. Filtering does not apply to convictions where an individual has committed a specified serious offence, has more than one conviction or has received a custodial sentence. Filtering also does not apply to any caution for a serious offence. For individuals who were convicted or cautioned below the age of 18, convictions and cautions are filtered more quickly in acknowledgement of the special importance of supporting those who get into trouble when they are young to put the past behind them. The filtering arrangements seek to strike a difficult balance between the rehabilitation of offenders, their right to privacy and the protection of the public.
Noble Lords may ask why we cannot take a view on this Bill now, given that the Supreme Court litigation does not directly challenge the 1974 Act. The Government believe that it is sensible to consider any proposals for change to the current disclosure arrangements in conjunction with an authoritative judgment of the Supreme Court on the requirements of Article 8 in this context. Although the litigation relates to the filtering rules, we think it is necessary to consider the disclosure regime in the round.
The disclosure system has also been considered in a number of recent reports—for example, David Lammy MP’s review into the treatment of and outcomes for black, Asian, and minority-ethnic individuals in the criminal justice system, and Charlie Taylor’s review of the youth justice system. David Lammy called for a discretionary process for criminal records to be sealed and we confirmed in our response at the end of last year that we would consider the recommendation, following the conclusion of the ongoing litigation. We also stated that we would also consider the recommendations made by Charlie Taylor in his report.
Most recently, on 31 January this year the Government published our response to the Justice Committee’s report on the disclosure of youth criminal records, a report that commended the earlier proposals by the noble Lord, Lord Ramsbotham, as representing a reforming consensus. This is a very important area, as noted by the noble Lords, Lord Carlile, Lord Dholakia and Lord McNally. Our response noted that the committee’s report was reflective of the long-running debate on how the disclosure regime should balance the objectives of securing public safety and respecting an individual’s right to privacy. As for the report’s recommendations on reform to the statute, the Government made the following statements, and it is worth reading them in full:
“The Committee makes a number of recommendations and conclusions relating to the legislation which governs the filtering of convictions and cautions from criminal records certificates. The Government notes these recommendations and the Committee’s concerns. However, against the backdrop of the litigation, the Government believes that it is appropriate to consider these recommendations in conjunction with an authoritative”,
statement from the Supreme Court. The Government’s response continues:
“The Committee has suggested that the rehabilitation periods set out in the Rehabilitation of Offenders Act 1974, which are not subject to challenge in P and Others, should be reconsidered. The Government considers that it is important to consider the Committee’s recommendations regarding different aspects of the disclosure system in the round, and will therefore consider this recommendation alongside the others”.
So we are not able to support the noble Lord’s Bill at this time, but we would welcome the opportunity to speak to him further in the interim about how we can increase the support available to ex-offenders. We are making continuing progress in a number of areas, and a wide range of initiatives are ensuring that offenders have the skills and experience that they need.
We are also looking at the reform of education. It remains at the heart of prison reform. Earlier this month, the MoJ launched the procurement process for the new education contracts that will underpin the delivery of learning and skills in prisons from April 2019.
Turning to employability, I note specifically the comments by the noble Lord, Lord Dholakia. We continue to work with Business in the Community on its Ban the Box campaign, calling on employers to give ex-offenders a fair chance to compete for jobs by removing the tick-box for unspent cautions and convictions. We also need to ensure that people with convictions, particularly children and young people, understand when and how they need to disclose their criminal record. The MoJ will work with stakeholders to improve government guidance and information available online to make sure that it is clear, consistent and easily accessible so that people understand their rights and responsibilities in respect of disclosing their criminal record. We will set up a stakeholder panel with a number of charities and voluntary sector organisations to make sure that the information we provide is consistent, up to date and accessible through online and offline channels.
I turn to a few of the points raised by noble Lords. The noble Lord, Lord Ramsbotham, raised the question of ineligible criminal record checks. The DBS publishes guidance on eligibility to support employers and registered bodies. Should an applicant feel that they have been asked to undertake a DBS check in relation to a role that is not eligible, they can contact the DBS to investigate. The DBS can suspend or cancel the registration of a registered body that fails to comply with the code. Knowingly carrying out an unlawful criminal record check is an offence under the Police Act 1997.
The noble Lord also asked about the Law Commission’s recommendations. In the summer of 2016 the Home Office Minister invited the commission to undertake a review of the list of offences that are always subject to disclosure—that is, those that are never filtered. The Home Office and the MoJ are considering the recommendations made in the report. These include the current list of offences that are never filtered, which was drafted by the Law Commission based on a strict interpretation of the existing SI.
The noble Lord, Lord Ramsbotham, along with many other Lords, asked why the Government are not considering these recommendations before the litigation. I think I have spoken sufficiently on this area, but I noticed that the noble Lord, Lord McNally, mentioned that policy-making and legislation must be evidence based, and I agree, and we must surely hear the views of the highest court in the land, which is why it is important that we hear from the Supreme Court before we consider the recommendations of the noble Lord and others such as David Lammy, Charlie Taylor and the Justice Select Committee.
Turning to comments made by the noble Lord, Lord Dholakia, about the article in the Times about the prison population, we want prisoner numbers to come down, but we will not set an arbitrary figure. The purpose of prison is of course twofold. It is for justice for victims and the wider public by holding those in prison to account, but it is also a place for rehabilitation, and we must do much better by offenders and ensure that where we are able more swiftly to rehabilitate them by using home detention curfew or release on temporary licence, we use them when appropriate.
The noble Lord, Lord Ramsbotham, mentioned the cost of reoffending, and I can confirm that the latest estimate based on figures from the National Audit Office is that the annual cost to society of reoffending is £15 billion.
In conclusion, I can only reiterate that we will consider the noble Lord’s proposals, among others, when we have the benefit of the Supreme Court’s judgment later this year. This means we are unable to support his Bill today but we welcome his continued involvement in the issue. I thank all noble Lords for their contributions to the debate.
Lord Ramsbotham
My Lords, I thank the Minister for that very disappointing response. I, of course, welcome any discussion with officials but I want to bring to them members of Unlock, the Committee for Youth Justice and the Law Commission, who know far more about the practicalities than any official who wrote either the Minister’s disappointing response or the very negative report sent to the Select Committee on Justice in the other place following its report.
I despair, because here we have evidence coming from the ground of people facing impossible conditions. It has been relentless and supported by all parties in this House. I am extremely grateful to all those who spoke, particularly the representatives of the two Opposition Front Benches, for their support for the Bill. I know that the Bishop for Prisons was widely behind it as well. All parts of this House are supporting it based on the evidence. As the noble Lord, Lord McNally, said, we must take action based on the evidence.
That evidence is overwhelming. It has now been 19 years since the Better Regulation Task Force reported, and 19 years of doing nothing is simply not good enough. I despair of a Government who say that the evidence is not strong enough. Once, I was a member of an independent commission set up to look at asylum. We described the attitude of officials in the Home Office as a culture of disbelief. The culture of disbelief is unfortunately spreading into the Ministry of Justice as far as any outside evidence of what needs to be done is concerned. I wish that the Ministry of Justice and Her Majesty’s Prison Service would set an example by using several ex-prisoners who have come up with imaginative ideas for rehabilitating people in prisons. They are often refused because they are ex-prisoners. This includes drugs counsellors and others with practical experience. If only the Ministry of Justice would wake up to the fact that these people are very often the right people to bring in—because the voice of experience is terribly strong. I wish that message could come across.
I am extremely grateful to those who have taken part, and look forward to having discussions with officials to try to persuade the Government that they must make progress, as they have heard today from all speakers. I despair of waiting until June for that to happen. Surely to goodness we can start the process before the June judgment. The judgment has gone against the Government twice, once in the High Court and once in the Court of Appeal, so I wonder whether there will be any change. I ask the House to give the Criminal Records Bill a Second Reading.