Draft Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2016
(7 years, 10 months ago)
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The Parliamentary Under-Secretary of State for Justice (Andrew Selous)
I beg to move,
That the Committee has considered the draft Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2016.
Good afternoon, Mr Wilson. May I say what a pleasure it is to serve under your chairmanship this afternoon? I hope this measure will not detain the Committee for too long.
The order is part of the Government’s ongoing commitment to keeping safeguarding measures in step with developments elsewhere. The amendments contained within it seek to maintain the balance between the rehabilitation of offenders and the need to protect the public.
The Rehabilitation of Offenders Act 1974 seeks to aid the reintegration into society of offenders who put their criminal past behind them. It does so by declaring certain cautions and convictions as spent after a specified period of time. Once a caution or conviction has become spent, an ex-offender is not required to declare it when entering most kinds of employment or applying for insurance, for example, and it cannot be taken into account; that is, ex-offenders are treated as if they had not been charged with or convicted of an offence at all.
Research has consistently shown that obtaining employment is an important factor in reducing the risk of offending. However, there must, of course, be a balance to ensure that members of the public are adequately protected. To that end, the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 creates exceptions to the 1974 Act so that in some circumstances all spent as well as unspent convictions and cautions must be disclosed and may be taken into account when assessing a person’s suitability for certain positions. When, for example, a person applies for a job listed in the exceptions order, the employer is entitled to ask about certain spent convictions and cautions as well as those that are unspent.
The areas of activity included in the exceptions order require a high degree of trust and often involve vulnerable persons. It is therefore right that an employer should know a person’s fuller criminal history before an offer of employment is made and that consideration can be given to any necessary safeguards to be put in place. It is the exceptions order that sets out the exceptions to the general protections under the 1974 Act.
The Police Act 1997 is the related legislation that sets out the process for the issue of criminal record certificates, otherwise known as standard disclosure, and of enhanced criminal record certificates. Standard disclosure contains details of a person’s unprotected spent cautions and convictions; enhanced disclosure includes, in addition, any information that the chief officer of police considers relevant to the particular application. Disclosure certificates are issued by the Disclosure and Barring Service.
The 2016 order will introduce three amendments to the exceptions order. The first is designed to align the exceptions order with the Police Act 1997 (Criminal Records) Regulations 2002 in relation to certain regulated activities with children; the second creates exceptions for certain roles in the Independent Police Complaints Commission; the third relates to judicial appointments, which are already covered by the exceptions order, to allow for wider disclosure of criminal conviction information.
There is an anomaly between the exceptions order and the connected Police Act 1997 (Criminal Records) Regulations 2002 that needs to be rectified. The 2002 regulations cover both regulated activity relating to children that is unsupervised and carried out on a frequent basis, such as teaching, and any activity that would be defined as a regulated activity relating to children if it were done frequently, such as the provision of health and palliative care to children who are sick or disabled, or childminding on a one-off basis during school holidays. Currently, however, only activity carried out frequently is covered by the exceptions order. The purpose of the amendment, therefore, is to align the order with the Police Act regulations so that positions involving unsupervised work with children on an infrequent basis are eligible for enhanced criminal records checks.
The Independent Police Complaints Commission was established by the Police Reform Act 2002 and became operational in April 2004. The IPCC’s primary statutory purpose is to secure and maintain public confidence in the police complaints system in England and Wales. It makes decisions independently of the police, Government and interest groups. It investigates the most serious complaints and incidents involving the police across England and Wales as well as handles certain appeals from people who are not satisfied with how the police have dealt with their complaints.
The IPCC is currently undertaking a three-year programme of change and expansion, which means that, by the end of 2017, it will independently investigate all serious and sensitive cases. That expansion has increased the number of cases and breadth of matters being investigated, which includes an increased number of allegations of child sexual abuse and exploitation and allegations concerning the abuse of vulnerable adults. The amendment to the exceptions order will commit the IPCC to ask for and take into account the unprotected spent convictions and cautions of those staff and commissioners who have contact with vulnerable adults or who have access to sensitive and personal information relating to children and vulnerable adults.
Contact with children by commissioners and other IPCC staff is already covered by other provisions in the exceptions order relating to regulated activity. Similarly, the IPCC will be able to ask for disclosure of such information when recruiting to those roles. It is important that IPCC staff and commissioners undertaking that work should be subject to disclosure of unprotected spent cautions and convictions to assess their suitability for those roles. The amendment to the exceptions order provides for that.
The Judicial Appointments Commission is an independent commission established under the Constitutional Reform Act 2005 to select candidates of good character for judicial office in courts and tribunals in England and Wales. Prior to the Act, appointments were made by the Lord Chancellor. Magistrates fall outside the remit of the JAC. They are appointed by the senior presiding judge, but they are assessed for suitability in the same way as judicial appointees. Judicial appointments are already covered by the exceptions order, which means that the JAC is currently entitled to ask candidates for details of their unspent convictions and those spent cautions and convictions that are not protected from disclosure, and it can take that information into account.
I need to explain what we mean by protected cautions and convictions. It used to be the case that where an occupation or activity was listed in the exceptions order, full disclosure of all spent cautions and convictions was required. In May 2013, however, following a Court of Appeal judgment that was upheld by the Supreme Court, the Government amended the exceptions order to provide that certain old and minor spent cautions and convictions were protected from routine disclosure and criminal record certificates—in other words, they are filtered from certificates and they do not have to be disclosed by individuals; nor can they be taken into account by employers.
Since the change in policy, the JAC has therefore been entitled to take into account only unprotected spent cautions and convictions. However, the Lord Chief Justice has asked for the commission to be added to the limited number of roles—for example, the police—for which it is considered necessary and proportionate to be allowed to request the disclosure of all cautions and convictions, including those that are protected. The JAC is clear that disclosure of old and minor cautions and convictions is required to mitigate the risk to the integrity of the judiciary, should details of an appointee’s previous caution or conviction subsequently emerge. That is because of the unique position of the judiciary and magistracy for which the significance of a caution or conviction is considered much greater. It is a requirement that judges be of good character, and were that good character not possessed, there would be potential damage to the public’s confidence in their constitutional function. The amendment will allow full disclosure of spent cautions and convictions by disapplying the provisions of the exceptions order that would otherwise protect certain such cautions and convictions from disclosure.
Before the Government agreed to support such a change, we asked the commission to put in place a clear and transparent recruitment policy for the treatment of old and minor cautions and convictions to ensure that all applications would be treated objectively and fairly. Proper and balanced consideration will be given to any old and minor spent convictions that are disclosed, and they will not automatically preclude an applicant from taking up a judicial appointment. The JAC good character guidance has been updated, and if Parliament approves the amendment, that guidance will be available to candidates once the order comes into force.
The instrument illustrates our commitment to update legislation when necessary to protect the public, in line with the latest analysis of risks. It is focused on maintaining the correct public protection balance. The amendments to the exceptions order are limited in scope but will ensure that employers can request and take into account the convictions and cautions of individuals who work closely with vulnerable people and those investigating child abuse, and will preserve the integrity of the judiciary.
Jo Stevens (Cardiff Central) (Lab)
It is a pleasure to serve under your chairmanship for the first time, Mr Wilson. I thank the Minister for outlining the order, which will make amendments to the Rehabilitation of Offenders Act 1974 in relation to current regulated activities under the Safeguarding Vulnerable Groups Act 2006, in that certain members of staff and commissioners of the IPCC, and candidates seeking appointment to judicial office, will have to have an enhanced criminal records check. The Minister outlined a further category in relation to the Police Act 1997.
I understand that there has been no public consultation on the Judicial Appointments Commission amendment but key stakeholders were consulted. I, too, have consulted key stakeholders. Will the Minister explain why there was no public consultation on that amendment and identify the key stakeholders that were consulted about the amendment?
The order extends the number of roles for which employers will be entitled to know about spent convictions. Will the Minister please outline what support and/or guidance the Government will give to employers to ensure that that change does not result in a blanket refusal to employ people with spent convictions who are legitimately seeking to lead law-abiding lives? There are many ways in which risk can be managed; the challenge is knowing about it and dealing with it rather than avoiding it altogether. I am concerned that employers may feel that the best approach is to eliminate risk completely by not employing people who have criminal records.
Although it is extremely important that we do all we can to facilitate the employment of ex-offenders, we know that public safety must always be paramount. Subject to the Minister’s clarification on those issues, the Opposition welcome the amendments, as they ensure that further checks will be carried out into the backgrounds of those who are working with vulnerable people and on extremely sensitive issues to assess their suitability for such roles.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
It is a pleasure to serve under your chairmanship, Mr Wilson. I support entirely the aims of the order and my Front-Bench colleague’s position, not least on the provisions about the protection of children, which I think we would all agree is crucial. However, I have become aware of an unusual case in my constituency that I want to share with the Minister, because it shows that some inconsistencies exist within the current system of sensitive occupations for which convictions may or may not have to be disclosed. If I might put that case to the Minister, perhaps he will come back to me in writing or express his views on it, because I think it is worth looking at.
The case concerns a constituent who has served extensively in the British armed forces, including as a Royal Military Police officer, and has also been on detachment to police forces in other countries around the world. He served with distinction and in fact has been commended for his work both with the RMP and when attached to an overseas police force, but unfortunately, he received a relatively minor conviction as a teenager, I believe involving the theft of a motor vehicle. From what I gather about the case, he is completely reformed and had served with distinction in the forces and in those roles. He wanted to serve in the police force in this country, not least given his experience, but he has been told at various points that that would not be possible because that would involve the disclosure of that relatively minor offence from his teenage years and because of the risk that that may pose.
There does seem to be an inconsistency, however, because although he was allowed to serve as an RMP officer and with a police force in another country, he appears to be barred from joining the police force in this country. Indeed, when I have spoken to police officers who know him, they argue he is exactly the sort of person they would want to recruit, not least given his extensive experience and commitment to the role, but they cannot do that because of those inconsistencies. Interestingly, he applied and got accepted for and now works as a prison officer, which one would argue is an important and sensitive role for which such matters should be disclosed.
I accept that such cases are extremely rare and often extremely unusual, but I would appreciate it if the Minister would look into that and the wider consistency of application. I think my constituent feels that there is at least an inconsistency if not an injustice which means he cannot apply to be a police officer. I say that while fully agreeing with the Minister that this is an important order and I entirely support the principles behind it.
Andrew Selous
I will do my best to respond to the various points made in the debate. The hon. Member for Cardiff South and Penarth raised a valid, real-life case from his constituency and I will ask the police Minister, my right hon. Friend the Member for Hemel Hempstead (Mike Penning), to respond because, as I am not the policing Minister, I am not qualified to speak about the police’s requirements. However, the point made about the gentleman serving as a Royal Military Police officer and currently being a prison officer is valid, so I will ask my right hon. Friend to write to the hon. Gentleman on that.
I want to reassure the hon. Member for Cardiff Central as strongly as I can that I am absolutely passionate about ex-offender employment and I am doing everything I possibly can to get employers to realise that there is a good business case for it. We have many successful examples of ex-offenders who have gone on to be extremely valuable members of staff. Indeed, what I hear by and large from employers is very high-quality feedback: people have really appreciated being given that second chance and taken full advantage of it. That tends to benefit employers in terms of the length of time employees stay and the commitment they show. I do not believe that anything in the order will put that in doubt in any way.
The hon. Lady made the valuable point that the order is about giving employers knowledge, but we ask them to assess intelligently the information provided to them. She made a good point about disclosure not automatically leading to a blanket ban. That is very much the case in terms of judicial appointments.
If I may, I will write to the hon. Lady about consultation on the JAC. I know informal consultations took place and that there was wide support. I also know concerns had been raised by the Lord Chief Justice on seeking the changes as far as the Judicial Appointments Commission is concerned. I hope that that has reassured the Committee. As I said, I commit to write back to the hon. Lady on that.
Question put and agreed to.
Draft Electoral Registration Pilot Scheme (England) Order 2016
(7 years, 10 months ago)
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The Parliamentary Secretary, Cabinet Office (John Penrose)
I beg to move,
That the Committee has considered the draft Electoral Registration Pilot Scheme (England) Order 2016.
It is a pleasure to have you in the Chair looking after us, Mr Percy, as always. The draft order establishes a pilot scheme in Birmingham, Ryedale and South Lakeland. The electoral registration officer in each of the specified areas will test new and innovative approaches to canvassing. The Electoral Commission will report on the pilot scheme and provide a copy of its evaluation to the Chancellor of the Duchy of Lancaster and the EROs by the end of June, and the order will cease to have effect in July 2017.
As some members of the Committee might already be aware, the process for household canvass is micromanaged in excruciating detail under the Representation of the People (England and Wales) Regulations 2001. Electoral registration officers are required to send an annual canvass form—household enquiry form or HEF—to every property in their area. The HEF asks residents to set out whether there has been any change in the composition of households since the previous year’s canvass, to identify whether any residents should be added to or removed from the register. When no response is received, as is more often than not the case, EROs have to issue up to two further forms and to carry out at least one home visit.
The aim of the canvass is obviously sensible, but many EROs and electors find the procedure frustrating and confusing. Electors who know themselves to be registered do not understand why, none the less, they might receive three letters and a visit from the local ERO. It is particularly baffling when it happens a matter of weeks after an election. This year, for example, many citizens will have voted in local, devolved, or police and crime commissioner elections in May, the European Union referendum in June, and perhaps even a by-election as well. When the annual canvass takes place between July and December, however, they will solemnly be sent fresh inquiries about their registration status. Only 20% of households will have changed over the course of a year, so the majority of canvass activity is entirely fruitless; 80% of the population will be “no change” on the electoral register.
That heavily bureaucratic process stifles innovation and throttles new and more digital approaches at birth. From knowing the local area or from having access to other local council data, EROs might already know that Mrs Smith, who has been living at Acacia Avenue in Little Dribbling for the past 50 years, has not pulled up sticks since the previous month’s election. Yet if Mrs Smith fails to respond to her first HEF, she will receive two more letters and a visit, because they are legally required. I think we can all agree that that is simply not a good use of EROs’ resources or taxpayers’ money.
In passing, given recent innovations in online registration, electoral events such as the recent EU referendum may drive registration sharply upwards to new heights. Electoral registration officers are therefore telling me that the existing system of canvassing in advance of a poll, or immediately after one in the summer, may not be the best approach for the modern world.
We clearly need to move from an old-fashioned, paper-based, process-driven system to one that is flexible and digital, makes use of local data, and is focused on outcomes rather than outputs. The solution proposed, the impetus for which has come from EROs themselves, is to test alternative methods for conducting the annual canvass that are digital, cost-effective, modern and capable of securing the same or higher results than the existing process.
The pilots will take place in Birmingham, Ryedale and South Lakeland, as I said. In each area the EROs will be operating control groups and pilot groups, so that the results of the approaches may be rigorously evaluated. In Ryedale, which can be characterised as a predominantly rural area with a largely static population, pilot groups will receive household notification letters, rather than the usual household enquiry form. The HNL, sent by post, will list the details of everyone registered to vote in that household and will advise residents to take action only when the details shown are no longer up to date. They may take action to correct them, if necessary, by informing the ERO of changes over the internet or by phone. New residents will be asked to register online or invited to register by their ERO. The issuing of HNLs will be supported by awareness-raising activities in the media, on the council website and on social media.
In Birmingham and South Lakeland, electors’ registration details will first be compared against local data resources. Council data will be checked and when the details are found to match, households will be sent a household notification letter—by email where possible—to which electors will be required to respond only if changes are needed. The same process as in Ryedale will be gone through after that.
We have of course consulted the Electoral Commission on the pilot proposals. It has been very supportive of the plans and has been involved in the early stages of their development. Consultation has also taken place with the Association of Electoral Administrators and Solace—the Society of Local Authority Chief Executives and Senior Managers. That is in addition to the work we have been doing directly with interested councils, which have proposed many of the ideas being trialled in the pilots.
As we have discussed with the Electoral Commission, subject to the outcome of these pilots the Government’s intention is to make permanent legislative changes to the annual canvass. It is likely that we will look to launch a second round of canvass pilots in 2017 to trial other ideas too. Although the purpose of the pilots is to give EROs the space to innovate and test alternative, more effective approaches, I underline that the integrity of the register will be maintained throughout the pilots. Electoral registration officers have always had, and will continue to have, a duty under the Representation of the People Act 1983 to maintain the registers, and nothing in the order changes that. With that in mind, the Government believe that this statutory instrument is a crucial step towards improving the annual canvass and wider registration process, and I therefore commend it to the Committee.
Cat Smith (Lancaster and Fleetwood) (Lab)
It is a pleasure to serve under your chairmanship, Mr Percy. I welcome this opportunity to discuss a pilot scheme that aims to improve the electoral registration process.
Sadly, the Government’s record on this area to date is poor. As a result of the Government’s rushed move to individual voter registration, 1.5 million people went missing from the electoral register from 2014. That is on top of an estimated 7.5 million people who were missing from the register prior to that date. The fact that so many of our citizens are disfranchised is a national scandal.
This debate is particularly timely, given the chaotic scenes we saw last month. In the hours leading up to the voter registration deadline for the EU referendum, so many people attempted to register that they crashed the Government’s website. There could not be a clearer indication of the need to improve the completeness of our electoral registers as a matter of routine. The Government must ensure that in future elections or referendums, individuals are not forced into a last-minute scramble to register.
I note that the Electoral Commission has given the pilot schemes a cautious welcome, with certain conditions. It states:
“The aims and objectives of the schemes must be well-defined and clearly stated, and include clear evaluation criteria to enable a proper assessment of their impact on the completeness and accuracy of the electoral register; the convenience of electoral registration for electors; and the costs of the electoral registration process.”
I am aware that Ministers do not always listen to the advice of the Electoral Commission, particularly when they want to push through individual voter registration ahead of the boundary review, but I hope that they will do so on this occasion. It would be useful if the Minister could provide further information on how he plans to evaluate the effectiveness of these schemes.
In particular, the proposal in article 5 to give electoral registration officers more discretion over how they contact households as part of the annual canvass is interesting. Will the Minister clarify how he will monitor whether the most appropriate method of canvassing a household is chosen by EROs over simply the cheapest? For example, an email or telephone call may end up being more cost-effective than a letter or a visit to an address. However, if the call is made while everyone in a household is at work, or if an email is sent to a defunct email address or simply ends up in a junk folder, some individuals may, in effect, receive no contact at all encouraging them to register.
In addition, how does the Minister plan to evaluate the effectiveness of the pilots in registering groups who we know are particularly poorly represented on the electoral register? Prior to the EU referendum, Bite the Ballot estimated that about 30% of young people aged 18 to 24 are not on the register. Certain black and minority ethnic groups are also woefully under-represented on it. According to the Electoral Commission, the registration rate for black people is only 76%, and for people of mixed ethnicity the rate is 73.4%. In 2014 the Political and Constitutional Reform Committee found that
“turnout for people from BME groups once they are registered to vote does not differ significantly from turnout for White British residents who are registered to vote.”
Although this is clearly a complex issue, that suggests that if we can find a way of improving registration rates among these BME groups, it would go a long way towards increasing the percentage of people who cast their vote at elections.
The Opposition look forward to monitoring the pilots and will work with the Government in supporting measures that are effective in improving the accuracy and completeness of the annual canvass.
John Penrose
I will endeavour to respond to the points raised by the hon. Member for Lancaster and Fleetwood. I start by saying that I completely agree that the so-called missing millions—people who have never been on the electoral register—is indeed a national scandal. There are some groups that are woefully under-registered and therefore woefully under-represented in our democracy. I hope that we can all agree, on a cross-party basis, that that needs to be put right. In fact, I think it is stronger and better if we can agree on that on a cross-party basis, because it will reassure people, whichever under-represented group they may be in, that this is not something in which one particular party has a party political axe to grind for its electoral advantage; it is something that is right for democracy, no matter what. If we can make common cause—I am pleased to hear that we are—we can make progress.
The hon. Lady is absolutely right to point out that some BME groups are woefully under-represented. She mentioned young black males in particular, but there are other groups as well. It is interesting to note that in some areas some BME groups are over-represented—not in terms of there being too many of them, but because their representation is above the national average. That is to be welcomed. There is nothing necessarily linked to being part of the BME community that means they must be under-represented or that they are necessarily hard to reach. Different approaches need to apply to different communities within the BME classification. A tailored approach is needed for each, because the problems are clearly not the same in every case.
The hon. Lady also mentioned other groups. Students are frequently cited, but they are actually an example of a much broader category of people who live in short-term rented accommodation, for which levels of registration are a great deal lower. That is not necessarily because people do not want to register, but because, as a practical matter, it is relatively difficult for the local electoral registration officer to keep up with people who move quite regularly. They may therefore lose track of those people, who will drop off the register at that point.
There is one other group that is by far the largest, in terms of numbers, and also the least well-represented on the register in terms of percentage registration: expatriate voters. We currently have a couple million ex-pats who have been living abroad for less than 15 years. They are legally entitled to vote but only something like 5% of them are currently registered. That is a huge scandal. It is actually far worse than any of the other groups we have been talking about, and in some cases worse than several of them put together. We need to ensure that they are included in any of our calculations.
The hon. Lady specifically asked how we will evaluate the success or failure of some of those canvass pilots. Clearly not all of them will be successful. I mentioned that local authorities will be running control groups as well as pilot groups, so these will be properly controlled experiments that can be used to compare those groups within the same area or within neighbouring areas where the new process has been applied. The outcomes and results will be independently evaluated by the Electoral Commission to ensure that an independent view is taken. It will want to be as rigorous and scientific in its approach as possible, and we will therefore learn a great deal about what does and does not work.
Another idea that we are considering is effectively to set up an online academy where the results of these pilots and others will be published in a transparent fashion, so that everyone can see which bits worked and which did not. That will be of interest not only to us as elected parliamentarians, but to electoral registration officers elsewhere in the country. They will be able to look at what has happened in Birmingham, Ryedale or wherever and see which techniques might be useful and they might want to copy. They will be able to see the detail, the methodology applied and the outcomes, and they will publish their results when they try it, too, therefore creating a virtuous circle of learning.
Jim Fitzpatrick (Poplar and Limehouse) (Lab)
The Minister and I have debated the anomalies in Tower Hamlets before, where there have been accusations of electoral fraud and so on. How will the Electoral Commission accommodate those anomalies into the overall scheme of things to make sure that the results are not skewed and that they provide a result that is of benefit to local authorities in understanding the best way to go forward?
John Penrose
The hon. Gentleman is absolutely right. We have debated this in the past, and the only point on which I disagree with his comments is that we are now talking not just about accusations of electoral fraud, but about actual convictions. The situation is a great deal worse than people might otherwise think.
John Penrose
I appreciate that the hon. Gentleman was not defending them at all; he is pursuing the need to improve things. The answer to his question is that, because we are trialling these different ideas with control groups—it is not quite a randomised control trial, but it is the closest we can get to a genuinely scientific method in these situations—we should be able to compare places in which they have and have not been tried. The differences will be readily apparent and will be auditable and accessible to those elsewhere in the country, if we go ahead with the idea of an online academy.
The hon. Member for Lancaster and Fleetwood asked what would happen if somebody’s email address was out of date, and whether they would get no contact from the local electoral registration officer as a result. I mentioned in my opening remarks that the initial household notification letter in these trials will be sent by post and will land on the doormat at a physical address. Follow-ups can then be done online or in some other way, but the initial contact will still happen by post.
In the two areas where the trials will be backed up by local council data, if there is no follow-up contact and the local electoral registration officer knows, for example, that someone is on the council tax database but is not responding in a particular area, they can then focus their resources and efforts on that address because there is likely to be somebody there who is not responding and is not registered. Incidentally, it may be that somebody is not responding because they are not a legitimate voter—they might be a foreign national and therefore ineligible to vote—but it is important for the electoral registration officer to pursue that point to a satisfactory resolution if they know from other records that somebody is there.
I hope that has answered the points we have been dealing with and reassured everybody, and that we can therefore approve the draft order forthwith.
Question put and agreed to.