Protection of Freedoms Bill

Debate between Lord Goodhart and Baroness Stowell of Beeston

Tuesday 6th December 2011 Lords Chamber

[Lord Goodhart]

My Lords, we have just heard one of the most remarkable statements that has been made in your Lordships’ House that I can remember since being here. Now it is time to move to much more ordinary amendments.

The amendments in this group are concerned with rehabilitation of offenders. The Rehabilitation of Offenders Act was enacted back in 1974. I have had an interest in this subject because I am, and was in 1974, a member of JUSTICE, the law reform and human rights organisation. JUSTICE supported the Rehabilitation of Offenders Act, particularly through the work of Paul Sieghart, who was then its executive chairman. It managed, after a great deal of effort, to get the Act through the Houses of Parliament.

The Rehabilitation of Offenders Act gives a new chance to people who have been convicted of minor or moderate offences and have not repeated other offences during a reasonable period after their release. This gives them a better chance of getting a decent working job than if they were required to admit their offences to their prospective employers. The Rehabilitation of Offenders Act has been a very obvious success in the 37 years since it was enacted. It can benefit not only potential employers but also other people as well, because ex-prisoners who are unable to obtain a decent job are more likely to revert to crime than those who can get such a job.

Unfortunately, some employers have found a way of getting access to the past record of a rehabilitated person which is technically legal but plainly contrary to the purposes of the Act. The main way in which this happens is through Section 9(3) of the Act, which allows official documents containing full records of the offence to be provided to rehabilitated criminals and also to anyone else at the specific request of the rehabilitated offender. That means that any prospective employer can ask the prospective employee to authorise the official disclosure of his or her record. If the prospective employee authorises the disclosure of the criminal record, he or she is very unlikely to be appointed by the new employer. If the prospective employee refuses to disclose his or her record, then he or she is equally unlikely to be appointed.

This was plainly not what was intended when the Rehabilitation of Offenders Act was introduced, nor was it intended at any time since. The correction of this defect is the purpose of my Amendment 71A. In the course of drafting this amendment, I have consulted the Information Commissioner’s office; I have had a good deal of assistance from that office both in relation to Amendment 71A and to the other amendments in this group. I believe that an amendment to the Protection of Freedoms Bill with the aim of my Amendment 71A would help the Rehabilitation of Offenders Act to continue its work which has, as I said, been very successful.

Turning to the other amendments in my name, I can quickly get away from Amendment 76B, which turns out to be out of date. I believe its objective has already been dealt with and it would not, in any event, have furthered my objective. My aim in Amendment 84, as in Amendment 71A, is to protect rehabilitated offenders from other circumstances in which their criminal record might be disclosed in circumstances which do not require disclosure. The legislation involved in Amendment 84 involves not only this Bill and the Rehabilitation of Offenders Act but also significant amendments to the Police Act 1997 and the Data Protection Act 1998.

Clause 84, which accidentally has the same number as my Amendment 84, changes the numbering but not the operation of the Data Protection Act. It is fair to say that Chapter 2 of Part 5, which will improve Clause 84, improves the situation of rehabilitated persons. However, there is one matter in which further improvement should be made, which concerns Section 112 of the Police Act 1997. The Police Act contains provisions that might make possible delay in the commencement of Section 112 of that Act. This possibility continues under Clause 84 as it now stands. It would however be for the benefit of rehabilitation to bring Section 112 of the Police Act into action. This is made clear in a document published by the Information Commissioner’s Office on the same subject as that of Clause 84, which was circulated since the Bill has come to the House of Lords.

I should like to read a brief paragraph from the circulated document. It states:

“The commencement of section 112 of the Police Act 1997 would be welcome. The Commissioner would also continue to stress the importance of introducing an offence of Enforced Subject Access under section 56 of the Data Protection Act as a matter of urgency. The opportunity to introduce these important and long over due measures should not be missed”.

The form of Amendment 84 may need alteration. Certainly, it would require reconsideration because I had to deal with my amendments extremely quickly and they may not yet be correctly worded. But it is my belief that the desirability of the purpose of my amendments is plain. I hope that the Government will be able to consider including them in their amendments. I beg to move.

[Baroness Stowell of Beeston]

My Lords, I am grateful to my noble friend Lord Goodhart for providing the context and thinking behind his amendments. First, I will focus on Amendment 84, which would require that Section 56 of the Data Protection Act 1998 be commenced at most six months after this Bill becomes law, rather than, as now, no earlier than the commencement of various sections of the Police Act 1997.

As my noble friend has indicated, Section 56 of the Data Protection Act makes illegal what is referred to as “enforced subject access”; that is, when someone, in connection with employment or the provision of goods and services, requires a person or a third party to provide them with information about that person’s convictions, which they will have obtained through a subject access request. This means that if the subject of the request has convictions, they are able to obtain all the information that is held by the police themselves, thus making them the subject of the request. This would be made most likely to the police under Section 7 of the Data Protection Act. This loophole allows employers to circumvent the safeguards in the Rehabilitation of Offenders Act and in the criminal records regime to find out details of somebody’s spent convictions.

I agree with my noble friend that enforced subject access is wrong because it allows employers potentially to coerce employees and hinders the rehabilitation of offenders. Section 75 of the Data Protection Act provides that Section 56 of that Act is commenced only once certain sections of the Police Act, including Section 112, are in force. Section 112 of the Police Act makes provision for “basic” criminal record checks which provide details of any unspent convictions. If the section in the Data Protection Act, if it was commenced, would make it illegal for an employer to make an enforced subject access request, Section 112 of the Police Act makes provision for a basic criminal record check. An employer has another legal and legitimate route to find out information about unspent convictions only. He would be provided with information of unspent convictions and not full access to information which may not be relevant.

While Section 112 is in force in Scotland and Northern Ireland, it has not been commenced in England and Wales. The issue is when we introduce basic checks. Noble Lords may have seen the Written Ministerial Statement published this morning in relation to the Government’s response to Mrs Sunita Mason’s review of the criminal records regime. Mrs Mason recommended the introduction of basic checks by the Criminal Records Bureau in England and Wales. As our response to her makes clear, we accept the principle that basic checks should be introduced in England and Wales, but we do not plan to do so through the Criminal Records Bureau at the present time. We are, however, minded to introduce basic certificates in step with the establishment of the Disclosure and Barring Service, but further work is needed on the implications of doing so.

Meanwhile, some individuals already approach Disclosure Scotland for basic certificates and we are discussing the provision of a full service for all those working in England and Wales through Disclosure Scotland while the long-term position is considered. For these reasons it would not be feasible to introduce basic checks through the Criminal Records Bureau to the timetable set out in Amendment 84 in the name of my noble friend. That said, the question of enforced subject access and the commencement of Section 56 is one to which we will return in the context of our discussions with Disclosure Scotland flowing from Sunita Mason’s review. I hope that what I have said provides some reassurance to my noble friend and encourages him not to press his Amendment 84.

As my noble friend has explained, Amendment 71A would amend Section 9 of the Rehabilitation of Offenders Act. Section 9 makes it an offence for a public official to disclose information on spent convictions other than in the course of their public duties. They may do so only to the rehabilitated person or someone whom they reasonably believe to be the rehabilitated person, or to a third party to whom that person expressly requests them to make that disclosure. The noble Lord’s amendments would remove the capacity to disclose the information to a third party. From his explanation today, I understand that the intention behind the amendment is further to safeguard against enforced subject access. However, there are likely to be situations where a person may, quite legitimately and consensually, ask that details of their spent convictions be passed to a third party; for example, a minor requesting disclosure to their parent or guardian or an elderly person requesting disclosure to their carer. We therefore believe that the better approach is simply to commence Section 56 of the Data Protection Act at the appropriate time.

On the basis of that information, I hope that my noble friend has the assurance he is looking for and that he will feel able to withdraw the amendment.