Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2019

Lord Dholakia Excerpts

Monday 20th May 2019 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, the razor-sharp Minister predicted my specific concern in her opening remarks. This instrument is overbroad—it is a sledge- hammer to crack a walnut. It quite rightly responds to a request from a chair of an inquiry, where the disclosure of spent convictions may be highly pertinent to the subject matter—the undercover policing inquiry. Based on that specific problem, we would legislate at one fell swoop so all future public inquiries are treated in the same way, so that the presumption is that spent convictions are no longer spent. These other inquiries could be into all sorts of matters and may not even be related to the criminal justice system, let alone relevant. This seems to lack the rigour that your Lordships’ House in particular tends to prefer for secondary legislation.

My concerns are echoed by the all-important Secondary Legislation Scrutiny Committee. It expressed concerns over the breadth of the power and the impact it might have on the lives that have been rehabilitated. The committee believes that the Government’s strong argument for the protection to be waived for the current undercover policing inquiry is persuasive, in contrast to that overbreadth that I am concerned about. In all other inquiries, present and future, spent convictions may be completely irrelevant. The Minister’s remedy is that an inquiry chair may rule them inadmissible. That may be after the horse has bolted if, for example, counsel representing different interests in a public inquiry decides to raise a spent conviction for any witness. Perhaps it is a firefighter in one inquiry, or a complainant or victim in another. It undermines credibility and is not pertinent to the subject matter in hand, in that public inquiry. This is an overbroad power. In my experience of your Lordships’ House—unfortunately, not of all parliamentarians—that kind of overbroad power, which undermines the principle of rehabilitation, must be of concern.

I completely take the Minister’s point about increasing concern over data protection and increasing understanding of the importance of respect for personal privacy and the guarantees we have in this country, for the first time, because of Article 8 of the European Convention on Human Rights; that of course is only enforceable in our law thanks to the much-maligned Human Rights Act 1998. I take all those points on board and am very glad that the Minister has put them on the record, but an additional challenge has arisen over the same period as that progress regarding the Human Rights Act, concern about data protection, with people perhaps caring more about data privacy than they did in the past. This is a counterchallenge in terms of a hardening, certainly during my adult lifetime, in attitudes towards those who have committed crimes in the past and an undermining of the culture of rehabilitation. In part, this is because the list of exemptions has grown under Governments of all stripes. Crucially, the rise of the internet has made it ever harder for past wrongdoing—even minor offences, spent convictions even in one’s childhood and youth—to be forgotten. That presents a very important practical challenge to the spirit as well as to the letter of the Rehabilitation of Offenders Act 1974.

To return to the central point, this is an understandable instrument: it came as the result of a specific request by one inquiry and one committee chair, but 23 inquiries have been established since the Inquiries Act 2005 and this is the first request of this kind. Does such a request—one versus 23—really justify passing this instrument? It would mean that spent convictions per se were up for grabs unless somebody thought to tell their representatives about a thing in their past, a minor conviction from their youth long ago, that they had not thought about but might be produced to challenge their credibility in the context not even of a civil or criminal adversarial proceedings but of a broader public inquiry. It is an overbroad power, not the sort of thing that your Lordships’ House is normally comfortable with. That is why I have reluctantly sought to express regret.

[Lord Dholakia (LD)]

My Lords, I declare an interest in this matter. In 2011, I promoted a Private Member’s Bill, the Rehabilitation of Offenders (Amendment) Bill. It had taken the Government nearly 40 years, despite many reviews, to finally consider what was right and proper in dealing with offenders and their rehabilitation process. The purpose of the Bill was that, after a specified rehabilitation period, ex-offenders should not have to declare spent convictions when applying for jobs, except in sensitive areas of work, such as criminal justice agencies, financial institutions and work with young people or vulnerable adults. Some parts of this Bill were accepted in the LASPO Act that was supported by my noble friend Lord McNally and supported by the then Secretary of State, the right honourable Kenneth Clarke. Since then, it has helped many offenders to leave the past behind.

We support the amendment of the noble Baroness, Lady Chakrabarti, which backs up observations about this order made by the Secondary Legislation Scrutiny Committee. The committee is right to draw our attention to this on the grounds that this order gives rise to issues of public policy. We accept that there is a strong argument for the protection to be waived in relation to the current undercover policing inquiry, and I do not oppose or object to that part of it—that can go ahead, as the Minister has said, in June this year. However, we object to the order taking the broader step of making this same provision for any future inquiry. We do not accept that the Secretary of State should be given blanket authority, which would in effect mean that spent convictions and cautions could be admitted into evidence for these inquiries. Each future inquiry will have its own terms of reference and will vary in contents on the matters under investigation. We need to examine in detail the implications of such decisions on the lives of the many people whose convictions are spent.

The inquiry’s terms of reference are set out by the Minister in consultation with the chairman of the inquiry. It is vital to preserve the anonymity of individuals and respect their privacy. Each inquiry will probe new grounds and each ground has to be examined carefully. We must never ignore the impact of disclosures on the lives of those who have been rehabilitated.