Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012

Wednesday 18th July 2012 Grand Committee

Considered in Grand Committee

16:25

Moved By

[Lord McNally]

That the Grand Committee do report to the House that it has considered the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012.

Relevant document: 2nd Report from the Joint Committee on Statutory Instruments

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, as noble Lords will be aware, the Rehabilitation of Offenders Act 1974 exists to support the resettlement of offenders into society where they have demonstrated that they have put their criminal behaviour behind them. After a specified period of time the Act declares most convictions spent and an ex-offender need no longer declare them. When they apply for most jobs, or seek insurance, they need not disclose this information and subsequently not suffer potential discrimination as a result of it.

The Committee will recall that we recently brought forward the first reforms to the Act for more than 40 years following a thorough and evidence-based review of the Act in the light of current sentencing practices. The amendments extend the scope of the ROA so that custodial sentences of up to and including four years can become spent, and in most cases reduce the time before which convictions can become spent. We will commence the reforms as soon as the necessary changes to procedures and processes have been put in place. This is likely to be spring 2013. The Government’s reforms restore the balance between the need for public protection and the freedom for an ex-offender to put their past behind them.

The exceptions order to the Act is a key part of maintaining this balance. The order lists certain activities that are exempt from the Act, such as work that involves significant contact with children or vulnerable adults. This means that where an individual is applying for a job within a specified activity, their full criminal record history is available to the employer. If an individual has a conviction that has been declared spent, the prospective employer can then see it.

We must be careful not to jeopardise the operation of the Rehabilitation of Offenders Act. The activities listed on the exceptions order are only those that present an opportunity for people involved to cause harm to the public where there is evidence that there is a real—rather than potential—risk to children, vulnerable individuals or some other particularly sensitive area of work. It is important to note that for the vast majority of purposes and employments, the Rehabilitation of Offenders Act still applies.

The careful balance between maintaining public protection and allowing offenders to lead law-abiding lives by removing barriers to employment needs to keep pace with the present. The exceptions order must therefore remain up to date with developments elsewhere. The order presented today is an illustration of the Government seeking to maintain this balance in line with recent changes to legislation and does not represent a significant extension to the scope of the order.

The first amendment adds the role of police and crime commissioner to the order, ahead of the first elections for this office in November. Police and crime commissioners will set the budget and priorities for the police force within their local area and will hold the local chief constable to account for performance and delivery. During the passage of the Police Reform and Social Responsibility Bill, now an Act, there was cross-party support in both Houses for the role of police and crime commissioner to be held to a higher standard in terms of disqualification on the grounds of previous convictions. Members of the police force are themselves held to a higher standard and it is crucial for a police and crime commissioner, who has oversight of the force in their local area, to be able to command public trust.

An individual is ineligible to hold the post of police and crime commissioner if they have any conviction for an imprisonable offence, whenever incurred and regardless of whether a sentence of imprisonment was actually imposed. The amendment to the exceptions order ensures that all candidates for the role of police and crime commissioner have to disclose all convictions when signing a declaration of eligibility to stand for election. Criminal records checks can then be made to verify this information. If a candidate is found to have given false information, they will be removed from post. Although this amendment extends the scope of the order to include police and crime commissioners, the numbers affected by the change are very small. The Electoral Commission will publish guidance to candidates and returning officers to include specific advice on disqualification and eligibility.

16:30

The second group of amendments are technical and ensure that the scope of the exceptions order remains largely unchanged following changes to the definition of “regulated activity” in the Protection of Freedoms Act 2012. The new, tighter definition of “regulated activity” is part of the Government’s programme to scale back the vetting and barring scheme. The Protection of Freedoms Act narrows the scope of “regulated activity”, which will only cover contact with vulnerable groups where there is a real opportunity to do harm—for example, with regular, unsupervised teaching of children and professional healthcare. Activities that are lower risk, such as those relating to supervised volunteers in schools and receptionists in hospitals, will no longer be covered by this definition.

The Protection of Freedoms Act also repeals provisions regarding “controlled activity” and the current definition of “vulnerable adult” in the Safeguarding Vulnerable Groups Act 2006. Currently, the exceptions order contains references to “controlled activity” and “vulnerable adult” as well as to “regulated activity”. If the order is not amended, the changes in the Protection of Freedoms Act will reduce the scope of people eligible for standard and enhanced criminal records checks once the provisions come into force in September.

The purpose of these amendments is to maintain the existing eligibility for criminal records checks for those activities that involve frequent contact with vulnerable groups but which do not come under the new, tighter definition of “regulated activity”. This ensures that employers and voluntary organisations will still be able to access criminal records checks from the Criminal Records Bureau to inform their employment decisions. Ministers gave assurances to this effect in both Houses during the passage of the Protection of Freedoms Bill.

This instrument also brings forward one reduction in the current coverage of the exceptions order. People who supervise 16 and 17 year-olds on unpaid work experience will be removed from the order so that they will no longer be asked to disclose their spent convictions by their employer. This change is part of the wider work that the Government are doing to encourage employers to offer work experience opportunities by reducing unnecessary bureaucracy and red tape. As people who supervise 16 and 17 year-olds in paid employment currently are not asked to disclose their spent convictions by their employer, we consider that this change brings unpaid work into line with established practice for paid employment without presenting additional risk.

The consolidation of the provisions regarding healthcare professionals simplifies the multiple references to health and social care occupations in the exceptions order. These changes will provide a unified definition of “health care professionals”, which will make the order more user-friendly. The amendments are technical and do not make any changes in eligibility for criminal records checks. They also reflect recent changes to the regulation of social work in England.

I hope all noble Lords agree that the exceptions order is an important means of protecting the public. The instrument presented today ensures that the legislation is up to date and effective in its aim, while maintaining the vital balance towards the resettlement of offenders that the Rehabilitation of Offenders Act seeks to achieve. I beg to move.

[Lord Thomas of Gresford]

My Lords, I only wish to raise one point, on guidance notes for police commissioner candidates. I want an assurance from the Minister that those guidance notes will be translated properly into Welsh. He may, or may not, know that there was considerable embarrassment following the elections to the Welsh Assembly last May when there was no proper translation into Welsh. As a result of that, one candidate did not divulge that he held a post that, between the previous election and that election, had disqualified a candidate from standing in those elections. He, being Welsh speaking, had only read the Welsh-language version and, accordingly, there was no problem. But another candidate, who did not speak Welsh, could only have read the English guidance notes, and he was disqualified by the Welsh Assembly although he was successful in the election.

[Lord McNally]

My Lords, I am assured that the Electoral Commission is responsible for publishing guidance, but I say to my noble friend that I will check with the commission on whether it plans such a Welsh-language edition. I cannot believe that it will not, given the normal practice in such elections, but I will make inquiries and write to my noble friend with, I hope, suitable assurances.

Motion agreed.