Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020

Lord Marks of Henley-on-Thames Excerpts

Thursday 10th September 2020 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we welcome these orders and the comprehensive way in which the noble and learned Lord has opened this debate. As we have heard, the order under the Police Act changes the arrangements for disclosure by the Disclosure and Barring Service.

The first change removes youth cautions and reprimands and warnings given to persons under 18 from the disclosure requirement. This is obviously sensible and necessary. The whole point of youth cautions has been to enable the police to deal with children and young people informally, without criminal prosecution. The disclosure requirement is therefore an anomaly. Secondly, the removal of the multiple conviction rule eliminates another anomaly. The effect of a second conviction, of whatever nature, has hitherto been to open up disclosure of all previous convictions, again of whatever nature.

The order under the Rehabilitation of Offenders Act achieves the same two effects in respect of disclosure by applicants for employment to potential employers—again, obviously sensible and desirable. But these two orders are laid not because the Government suddenly realised that the existing provisions were unwise, unfair and unlawful but because of the Supreme Court’s decision last year in the four cases of P and others, as the noble and learned Lord acknowledged. The unfairness of the existing law is illustrated by the facts of those cases, which I hope I will be forgiven for summarising.

In 1996 Mrs G was fined £35 in all for seat-belt offences, then in 1998 a further £80 for similar offences. She has no other convictions. In 2014, 16 years later, now a qualified care worker, she applied for a job at a day centre for adults with learning disabilities, but her disclosure of her historical convictions was incomplete and her job offer was withdrawn after the enhanced criminal record certificate disclosed all her previous convictions.

In 1999 P was cautioned for stealing a sandwich from a shop and conditionally discharged for stealing a book worth 99p and failing to surrender to bail. She was then 28, homeless and suffering from mental illness. She has committed no further offences. Now a qualified teaching assistant, she has not been able to find employment, she believes as a result of her disclosure obligations.

In 1982 W, aged 16, received a conditional discharge for an assault during a fight with other boys. In 2013, aged 47, he began a course in teaching English to adults. He believed his chances of obtaining teaching employment would be prejudiced by the need to obtain a criminal record certificate.

Finally, in 2006 G, aged 13, was arrested for two trivial offences of sexual assault on two younger boys. The police accepted that the offences were consensual and in the form of dares. He was reprimanded by police and has not offended since. In 2011 he was required to apply for an enhanced criminal record check because his work as a library assistant involved contact with children. As a result, he withdrew the application and lost his job.

The Supreme Court judges decided unanimously, though their reasons differed slightly, that the existing provisions infringed the applicants’ Article 8 rights to privacy. This case has powerful support for two pillars of our liberty. The first is the European Convention on Human Rights, which in recent years has been frequently under attack. The second is the right of citizens to apply for judicial review in respect of claims that their human rights have been breached. That right too remains under attack.

The Government and their supporters are often heard to complain of judicial activism and lawyers whom some would describe as activist lawyers overruling the supremacy of Parliament, but we should not forget that the Police Act and the Rehabilitation of Offenders Act and the orders made under them were passed by our sovereign Parliament. Nor should we forget that these judicial review cases were pursued by the Government, opposing the applicants all the way through the courts to the Supreme Court of the United Kingdom, notwithstanding a decisive finding at a lower level that the existing provisions were incompatible with the applicants’ Article 8 rights.

In the context of discussions on legal aid, we should also note that P did not have a solicitor and was represented by Liberty; nor did G, who was represented by a non-profit organisation called Just for Kids Law.

This debate reminds us of the need for judicial and extraterritorial checks on parliamentary sovereignty and the importance of constant vigilance.