Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2022

Thursday 3rd November 2022 Grand Committee

Considered in Grand Committee

13:34

Moved by

[Lord Bellamy]

That the Grand Committee do consider the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2022.

Relevant document: 13th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I beg to move that the Committee do consider this statutory instrument to amend the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. The effect would be to enable any current or potential sponsor on the Homes for Ukraine scheme in England and Wales to be eligible for the highest level of criminal record check undertaken by the Disclosure and Barring Service. This is known as an “enhanced criminal record certificate with barred list” check and would be carried out by local authorities responsible for approving sponsors. As your Lordships know, such a high-level check reveals any criminal convictions that would otherwise be spent under the 1974 Act and any barring order preventing the person concerned working with children or vulnerable persons.

Your Lordships will be aware that Homes for Ukraine is a sponsorship scheme in which individuals in the UK offer up their homes to Ukrainians fleeing the war. Since its launch in March, more than 100,000 Ukrainians have arrived in the UK as part of the scheme. I pay tribute to the families and individuals who have offered up their homes to those fleeing the war. However, it is right that we make sure that adequate safeguards are in place to ensure the safety of those arriving from Ukraine. Without this amendment, certain enhanced DBS checks would not be possible.

In practical terms, two scenarios are particularly relevant to the proposed amendment. The first is a process called domestic rematching, where the original match arranged by the sponsor and beneficiary breaks down, is deemed unsuitable or expires. When this happens, the local authority may rematch the beneficiary with a new sponsor. In these circumstances, the guests can find an alternative host who would be willing to take them in that further rematch, arranging it either themselves or through the council or a third party.

When arranging the original match when the refugee first arrived, the original sponsor would have gone through the equivalent of an enhanced DBS check as part of the visa process. But if there is a change of sponsor after the visa has been granted, when the refugee is already here, under the existing law all the local authority can do is carry out a basic DBS check on the new sponsor. That basic check would not reveal any spent convictions or any barring order. Given the vulnerability of many of these refugees, the Government consider that a power to carry out an enhanced DBS check is appropriate for all sponsors, particularly to deal with the rematch situation.

The second situation the Government have identified where higher-level DBS checks are necessary is for unaccompanied children who are not travelling with, or to join, a legal parent or guardian in the UK. In July the Government expanded the Homes for Ukraine scheme to enable children to come to the UK without a parent or legal guardian to stay with a sponsor who, except in exceptional circumstances, should be personally known to the parent or legal guardian. Under current regulations, the higher-level DBS checks can be carried out on most Homes for Ukraine sponsors for these children. However, at present only the basic DBS check can be carried out on the sponsor or members of the sponsor’s household if they have a family relationship with the child.

However, the concept of a family relationship is somewhat vague and sometimes these family ties can be quite loose. For example, a parent in Ukraine may be entrusting a child to an extended family member with whom they do not have any close or recent relationship. An aunt may have a partner in the house who is completely unknown to the parent or guardian in Ukraine. In the Government’s view, the vulnerability of these children, unaccompanied by their parents or a guardian, means that enhanced checks on all adults in the sponsor household, whether related to the child or not, are a sensible precaution.

I emphasise that this is a power to carry out the checks. A spent conviction revealed through an enhanced check will not necessarily prevent an individual becoming a sponsor, but it will give the local authority access to a fuller range of information, strengthen safeguarding arrangements and be a proportional response to the unique circumstances of the scheme.

On a more technical level, changes are necessary to two legislative regimes to bring about these enhancements. The first is the one we are considering today, this amendment to the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. The other is an amendment to the Police Act 1997 (Criminal Records) Regulations 2002 and 2009 to enable access to the records held by the police. The relevant changes to the Police Act requirements have already been made by a statutory instrument laid by negative resolution by the Home Office, which came into force on 13 October last. The order before your Lordships today requires an affirmative resolution of both Houses and was approved by the other place last Wednesday, 26 October. Similar changes were made in Northern Ireland on 3 October, and the Scottish Government have also amended their legislation. Your Lordships’ approval is, as it were, the last piece of the jigsaw.

[Lord Dholakia (LD)]

My Lords, I thank the Minister for explaining why this provision is necessary. This SI amends the Rehabilitation of Offenders Act 1974 to enable current or potential sponsors under the Homes for Ukraine scheme to undergo a full criminal background check undertaken by the DBS. In essence, the changes are designed to give local authorities more flexibility to undertake the highest level of DBS checks on sponsors who are related to children under 18 or to relations who require additional support due to age, disability or illness.

As someone who was responsible for promoting a Private Member’s Bill on the Rehabilitation of Offenders Act 1974, I see no reason why this legislation should not be supported. Any legislation to ensure that an applicant who is prepared to can host a refugee is welcome. Currently, the host can undergo an enhanced DBS check when they have an unrelated person under the age of 18 or in rare circumstances when the sponsor is providing additional support to a non-family guest who may have additional needs. If the host houses a related person under 18 or a related person with additional needs, they can currently undergo only a regular DBS check.

Enhanced DBS checks are higher than basic checks and should incur an increased cost for local authorities. At present they bear a heavy cost for looking after refugees and asylum seekers. What provision is available to assist local authorities if the present method of payment is not sufficient? The SI should theoretically grant flexibility for local authorities to process applications for sponsors who live in complicated circumstances where it is not immediately clear which DBS test they should be eligible for. Are there systems to ensure that DBS checks are available for refugees and asylum seekers when accommodation to house them is provided by local authorities? Of course, we have serious concerns about children who cannot be traced and who end up being exploited by those who use them for trafficking.

This SI provision applies in England and Wales only. The Minister mentioned discussions with the Scottish authorities on this provision. Have the Government consulted the Scottish authorities about how they deal with such issues? Finally, can we be assured that such checks are carried out on refugees in hotels and detention centres at present?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the Minister for introducing this statutory instrument, and of course we support it. The noble Lord, Lord Dholakia, very effectively set out the background to this. I will just set the scene and then ask a few questions of the Minister. First, I personally know a number of friends and colleagues who have welcomed Ukrainians into their homes. I am sure others in the Room have the same experience and, from what I have been told, it has been a positive experience for all concerned. However, there have been problems and we need to be realistic about them.

13:45

The other thing I want to say in setting the scene is that, in principle, we believe that people who have had a brush with the criminal justice system or who have been in prison for something have served their sentence and paid their dues. When they come out, they should be able to lead full lives, contributing to our society on as wide a basis as is practical. However, I understand the point that the Government seek to address: in some cases, particularly where children and some other examples are concerned, people should not be able to open their homes to refugees, who in many cases are very vulnerable. So we support the enhanced DBS check. As we have heard, some 100,000 Ukrainians have arrived on our shores in the last year or so.

I will dwell on some potential loopholes in the system. First, are hosts expected to inform the council when refugees arrive at their property? That is one side of the equation, but are they also expected to inform the council when people leave? That is a potential loophole, as the money being paid to the host may continue to be collected after refugees have left the property, for whatever reason.

I understand the points about the particular vulnerability of unaccompanied children, who may have a relatively loose relationship with the people acting as their hosts. My question is really about the level of discretion of local authorities to require DBS checks. In a house of multiple occupation, what level of discretion does the local authority have to check everybody in that house or only those living in the flat concerned? There would be an enhanced cost, which the noble Lord, Lord Dholakia, mentioned, but the Minister’s statement referred to this as only a power, not a requirement. In his view, should local authorities use that power on an appropriately wide basis to make sure that vulnerable people are kept safe?

As I tried to set out in my introduction, we approve of this statutory instrument and think the scheme has been a huge success overall. But our eyes need to be open to the pitfalls and loopholes that are available, so that they can be appropriately dealt with. We support this SI.

[Lord Bellamy (Con)]

My Lords, I thank noble Lords for their support for this amendment. In response to the noble Lord, Lord Dholakia, on his question about the cost of a DBS check, my information is that a basic check costs £18 and an enhanced check costs £38. The Government’s view is that that can be absorbed within the resources already made available to local authorities.

The points the noble Lord made on the comprehensiveness of the systems available to make sure that children are safe, do not disappear and can be traced are primarily for the Home Office. I venture to say that the Government have them well in mind and will do our very best to ensure that the points rightfully made by the noble Lord are fully taken into account in the administration of the Homes for Ukraine scheme. I thank the noble Lord for his comments.

The noble Lord, Lord Ponsonby, asked various questions. On his first point about spent convictions, there is of course always a tension as to where you draw the line between the rehabilitation of the offender and the protection of the vulnerable. When I said that this was a power, I meant to convey that, having carried out these checks, the local authority does not have to refuse the sponsor. It could say, “This was 15 years ago, it wasn’t very serious and he’s been a perfectly good citizen ever since, so we’re not going to take that into account”. This simply gives them the opportunity to have the information; that is the essential point.

On the various loopholes and questions, again, they are primarily for the Home Office, so I will make my response subject to further guidance from the Home Office and correct it if I get it wrong. My understanding is that hosts are expected to inform the local council when the refugees arrive and leave so that there is full information constantly available. Whether that always happens may be another question but, as far I know, the obligation is there; I will correct my statement if it turns out to be incomplete or wrong.

As far as the multi-occupancy of a house is concerned—this was another perfectly legitimate question—I am not in a position to answer on that, but I take it that the local authority should carry out these checks on an appropriately wide basis. If it is the case that the refugee or child in question is in the relevant household, everyone in that household must be checked. What the household is and who is in it is no doubt a question of fact to be addressed, but the Government certainly support the suggestion from the noble Lord that a check should be carried out on as wide a basis as is necessary to ensure the safeguarding of the refugees in question.

I hope that I have addressed at least the main questions that have been raised. I thank your Lordships for their support.

Motion agreed.