Criminal Records Bill [HL]

Lord Ramsbotham Excerpts

2nd reading (Hansard): House of Lords
Friday 23rd February 2018 Lords Chamber

Moved by

[Lord Ramsbotham]

That the Bill be now read a second time.

[Lord Ramsbotham (CB)]

My Lords, I declare an interest as president of Unlock, the charity for people with criminal convictions, which, for years, has taken a keen interest in the reform of the Rehabilitation of Offenders Act 1974, which I will refer to as the ROA from now on, and whose co-director has issued a most comprehensive brief to those who are speaking today. I also thank the Library for its usual excellent briefing, which excellence I am sure all noble Lords appreciate and admire.

I am pleased to note that the Bill is listed under my proposed title, Criminal Records Bill, rather than as a revision of the ROA, because that better describes its subject, which is only one ingredient of the rehabilitation of offenders. Just over a year ago, when my previous attempt to revise the ROA was read for the second time, the prisons part of the Prisons and Courts Bill had not started its progress through the other place. I mention that because, at the time, I had high hopes that the need to revise the ROA might be picked up by the Government, as the revision was clearly in line with other reforms envisaged in the Bill, including the holding of the Secretary of State for Justice to account for the rehabilitation of offenders. But those hopes were dashed when the prisons part was dropped from the Bill—hence yet another attempt to persuade the Government of the need for reform.

The Bill is short, consisting solely of a suggested amendment to the list of those sentences that are excluded from rehabilitation under the ROA, a table of suggested alterations to the length of rehabilitation periods for adults and children and a clause suggesting that the title of the Act be changed.

I begin by reminding noble Lords of a little of the history of previous attempts to reform the ROA. It explains why I feel so frustrated that, despite all the evidence from many different sources, a Private Member’s Bill, first by the noble Lord, Lord Dholakia, and then twice by me, should have to be used as a vehicle for trying to persuade the Government to take action on something that both their predecessors identified as a major inhibiting factor to the rehabilitation of offenders, which they profess to champion.

For many years, the main grounds for criticism of the ROA have included that it did not do enough to rehabilitate offenders, the length of its rehabilitation periods and the exclusion of prison sentences of over 30 months from its scope, the most trenchant criticism coming from the Better Regulation Task Force in 1999. Following this, the then Labour Government published a review entitled Breaking the Circle, in 2001, followed by a consultation, in response to which they said, in 2002, that they intended to publish a draft Bill containing their proposals for pre-legislative scrutiny. However, no such Bill emerged, which I have always regarded as a regrettably lost opportunity.

In 2010, the coalition Government that followed published a consultation document entitled Breaking the Cycle, in which they acknowledged that the Act was inconsistent with contemporary sentencing practice, as well as overly complex and confusing, resulting in many people not realising that it applied to them. The Government said that they were taking a fundamental look at the objectives of the Act, as part of their rehabilitation revolution, giving thought as to how it could be reformed, including broadening its scope so that it covered all offenders who received determinate sentences and reductions to the length of some rehabilitation periods. In the event, there was no mention of the Act in the Government’s response to the consultation. However, a clause was added to the Legal Aid, Sentencing and Punishment of Offenders Act 2012—LASPO—which reformed the Act in two ways. First, its scope was extended to cover custodial sentences of up to 48 months and, secondly, the length of some of the rehabilitation periods was reduced.

There are, currently, three types of criminal records check in England and Wales: basic, standard and advanced. All employers can carry out a basic check as part of their recruitment process, the length of time when convictions or cautions have to be disclosed being laid down in the ROA. However, employers have to apply to the Disclosure and Barring Service, set up following the LASPO amendments, for standard and advanced checks. Professions that are protected, and for which disclosure is compulsory, are listed in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, which is now seriously out of date because it does not mention the DBS.

I said last time that the Government should establish a system for identifying and stopping ineligible requests for checks, which too many of the 4 million each year currently are. That requires either the Ministry of Justice or the Home Office to lay down clear criteria regarding the eligibility of applications. The DBS should publish and maintain accurate guidance on its processes. Together, the Government and the DBS should take action against employers who do not take reasonable steps to ensure that they are eligible to apply for checks. Although carrying out an illegal check is a criminal offence under the Police Act 1997, there have, as yet, been no prosecutions and the DBS does not see itself as an enforcement body.

However, while government has been idle as far as revision of the Act is concerned, others have been very active. In July 2016, the Home Office asked the Law Commission to review and report on an aspect of the criminal records disclosure system known as filtering. Although outside the scope of my Bill, filtering, which has been in place since 2013, is important because it regulates those jobs that are exempt from the ROA, requiring an individual to disclose convictions and cautions even though they are spent. The Law Commission found that the legislation governing filtering was hard to understand and inaccessible to users, that there was uncertainty as to what was or was not on the list of non-filterable offences, as the content of lists, which were in two different parts of the legislation, was changed from time to time, and that, overall, there appeared to be a lack of a principled basis for the inclusion of individual offences in the list. It said that there was a compelling case for a wider review of the disclosure system as a whole.

In March 2016, the Standing Committee for Youth Justice published a report Growing Up, Moving On: The International Treatment of Childhood Criminal Records, which I mentioned at Second Reading of my previous Bill. In December 2016, Charlie Taylor, now chairman of the Youth Justice Board, said in his report on the youth justice system that, in his view, the current criminal records system lacked a distinct and considered approach to childhood offending. Both reports were picked up by the Justice Select Committee in the other place, whose first report during Session 2017-19 was entitled Disclosure of Youth Criminal Records. The committee said that the current system for disclosure undermined the principles of the youth justice system and may well fall short of the United Kingdom’s obligations under the UN Convention on the Rights of the Child. The Government, however, in their response dated January 2018, claimed that current disclosure arrangements, including rehabilitation periods and the filtering system, were proportionate and struck the right balance between protecting the public and an individual’s right to privacy.

The Government claim that they can do nothing about reforming the disclosure system until the Supreme Court has ruled, which it is due to do in June, on an appeal that it has mounted against the dismissal, by the Court of Appeal, of its appeal against a judgment of the High Court, in a case brought against the current system. The same excuse for doing nothing was used by the officials in the Ministry of Justice and the Home Office who I went to see last year in a vain attempt to get government to review the ROA on its own account. I have to admit that, to me, this smacks of procrastination, quite apart from being a waste of public money. It is now 19 years since the Better Regulation Task Force reported its concerns. The Minister will realise why it is hard to take a department seriously that takes so long to action something that successive Governments have agreed needs to be done.

Since then, another voice has been added to those calling for reform. In his review of the treatment of BAME offenders in the criminal justice system last September, David Lammy MP said that,

“it must be recognised that a job is the foundation for a law-abiding life for ex-offenders, but that our criminal records regime is making work harder to find for those who need it the most. The system is there to protect the public, but is having the opposite effect if it sees ex-offenders languishing without jobs and drawn back into criminality. A more flexible system is required, which is capable of recognising when people have changed and no longer pose a significant risk to others”.

The danger of being frustrated by such a long period of government inaction is that one is tempted to overstate one’s case, which I hope, sincerely, I have not done today. As the Minister knows, protecting the public is the responsibility of every Government, which, in the case of those sentenced by the courts, should include ensuring that active, rehabilitative measures, designed to help them to live useful and law-abiding lives on release, are provided. Unfortunately, currently, the Prison Service and probation service are failing to rehabilitate far too many of those sentenced by the courts, for reasons that need not concern us today. But, if the Government are to do everything in their power to redress that situation, the onus is on them to examine all the causes of failure. Part of the rehabilitation process must include giving all those convicted of an offence the opportunity to have the positive things that they have done, during and since finishing their sentence, recognised, in law, and allowing them to be legally rehabilitated, subject to certain clearly laid-down conditions.

The current criminal records system has been judged to be bad in practice by successive Governments and many outside observers and wrong in law by the High Court and the Court of Appeal. I hope therefore that the Minister will accept the urgency of the need for a fundamental review of the whole system, as recommended by the Law Commission, which can be initiated only by government and not by a series of Private Members’ Bills. If Scotland and Northern Ireland can do it, why cannot England and Wales? I beg to move.

--- Later in debate ---

[Lord Ramsbotham]

My Lords, I thank the Minister for that very disappointing response. I, of course, welcome any discussion with officials but I want to bring to them members of Unlock, the Committee for Youth Justice and the Law Commission, who know far more about the practicalities than any official who wrote either the Minister’s disappointing response or the very negative report sent to the Select Committee on Justice in the other place following its report.

I despair, because here we have evidence coming from the ground of people facing impossible conditions. It has been relentless and supported by all parties in this House. I am extremely grateful to all those who spoke, particularly the representatives of the two Opposition Front Benches, for their support for the Bill. I know that the Bishop for Prisons was widely behind it as well. All parts of this House are supporting it based on the evidence. As the noble Lord, Lord McNally, said, we must take action based on the evidence.

That evidence is overwhelming. It has now been 19 years since the Better Regulation Task Force reported, and 19 years of doing nothing is simply not good enough. I despair of a Government who say that the evidence is not strong enough. Once, I was a member of an independent commission set up to look at asylum. We described the attitude of officials in the Home Office as a culture of disbelief. The culture of disbelief is unfortunately spreading into the Ministry of Justice as far as any outside evidence of what needs to be done is concerned. I wish that the Ministry of Justice and Her Majesty’s Prison Service would set an example by using several ex-prisoners who have come up with imaginative ideas for rehabilitating people in prisons. They are often refused because they are ex-prisoners. This includes drugs counsellors and others with practical experience. If only the Ministry of Justice would wake up to the fact that these people are very often the right people to bring in—because the voice of experience is terribly strong. I wish that message could come across.

I am extremely grateful to those who have taken part, and look forward to having discussions with officials to try to persuade the Government that they must make progress, as they have heard today from all speakers. I despair of waiting until June for that to happen. Surely to goodness we can start the process before the June judgment. The judgment has gone against the Government twice, once in the High Court and once in the Court of Appeal, so I wonder whether there will be any change. I ask the House to give the Criminal Records Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.