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

Baroness Chakrabarti Excerpts

Monday 20th May 2019 Lords Chamber

Moved by

[Baroness Chakrabarti]

At the end insert “but that this House regrets that the Order introduces the provision for spent convictions and cautions to be disclosed to all future public inquiries, which risks undermining rehabilitation and a person’s private life, and calls on Her Majesty’s Government to respect protections afforded to offenders under the Rehabilitation of Offenders Act 1974.”

[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.

--- Later in debate ---

[Baroness Barran]

My Lords, I thank noble Lords for their contributions and for their unanimous—I think—support for the request in the instrument relating to the undercover policing inquiry. I will attempt to deal with the wider issues raised.

I am grateful to my noble and learned friend Lord Mackay of Clashfern for the simple and elegant way in which he explained a “matter of principle”. In this instrument, obviously that relates to the necessity of having information about spent convictions to fulfil the terms of reference—or remit, as my noble and learned friend described it—of the inquiry. That is one important part of our debate, but there is a second, which the noble Baroness, Lady Chakrabarti, and other noble Lords have mentioned: are the checks and balances—or filter, as the noble and learned Baroness, Lady Butler-Sloss, described it—sufficient to make sure that the principle is applied in a proportionate way? That is at the heart of the discussion.

Within that, there is the need to balance an individual’s Article 8 rights to privacy with the public interest and the necessity for the inquiry to be appraised of the accurate facts, where relevant. The noble Baroness, Lady Chakrabarti, talked about the risk of information coming into the public domain by accident or information that is not strictly relevant being used by the inquiry. That is hard to imagine in reality, with genuinely the greatest respect to the noble Baroness. If we think through the practicalities of somebody being asked to supply this information, we can imagine that, in all likelihood, it would result in an application for anonymity.

I hope that noble Lords will bear with me. This morning, together with officials, I tried to work out a flowchart of how this decision would be taken. The first question is: does the individual have spent convictions, yes or no? If the answer is yes, are they relevant? Will they be treated anonymously? If they apply for anonymity, will that be agreed to? Further, even if it is not anonymous, is the hearing held in private or in public? If it is held in private, could the information then be published?

I am trying to illustrate how there are a number of points in the process which make it highly unlikely that a disproportionate decision could be taken, but there are other points to cover here as well. My noble friend Lord Hodgson pointed out that although the intent of the instrument is not in relation to work, if the information was made public it could disadvantage someone in an employment application. I think that my noble friend makes a very fair point. I will undertake to take up with the department the question of the filter, a point raised by the noble and learned Lord, Lord Morris of Aberavon, the noble Lord, Lord Hogan-Howe, and the noble and learned Baroness, Lady Butler-Sloss, but the terms of reference, relevance and necessity are the key filters which exist already.

We feel that there are sufficient safeguards in place to ensure that individuals have their right to privacy respected as far as is necessary and proportionate. Although inquiries are made in public, inquiry chairs must preserve the anonymity of individuals as far as is necessary to respect their legal rights to privacy. As I stated earlier, the chairman has the power under Section 19 of the Inquiries Act to restrict the publication of information in the form of a restriction notice; for example, the undercover policing inquiry has invited applications for restriction orders, as have a number of other public inquiries. Individuals can use restriction orders to seek to maintain their anonymity, and where they are not satisfied that that has been done, they can make representations to the inquiry and, ultimately, for the decision to be judicially reviewed, although I hear the reservations of noble Lords about that.

I hope I have been able to reassure noble Lords not only that the point made by my noble and learned friend Lord Mackay about principle is a sound one but that the checks and balances that are required to ensure that the principle is applied in a way that upholds people’s rights are in place. I hope noble Lords will agree that this instrument ensures that inquiries that are of great public interest and concern are able to consider the evidence that is relevant and necessary to fulfil their purpose. I beg to move.

[Baroness Chakrabarti]

My Lords, I am grateful to the Minister and to all noble Lords who spoke in this debate. To be clear, I do not see how these so-called checks and balances work here; one could be attempting to shut the stable door after the horse has bolted. A restriction might not even have been considered before counsel to one or other interested party in an inquiry brought into the course of proceedings someone’s long-spent conviction.

It is never nice to be on the opposite side to the noble and learned Lord, Lord Mackay, but there are two principles in this context: the public interest in favour of the rehabilitation of offenders, and the public interest in the openness and fairness of any public inquiry. It seems that it would not be disproportionate to have a debate of this kind every time a committee chair said, “We really need to get at spent convictions in the context of this material”. This amount of parliamentary time in your Lordships’ House is not disproportionate to that public interest. If that is thought too cumbersome, surely either the Inquiries Act or relevant rules of procedure might instead have been amended to require a committee chair in any inquiry to state at the outset that this is the type of inquiry that will in principle require the use and admissibility of spent convictions. That has not been done; the filtered approach that the noble Lord, Lord Hogan-Howe, suggested has not been adopted in this case. Instead, we have this overbroad, unfiltered system.

In the light of this overbroad secondary legislation that might well undermine the principle of rehabilitation and personal privacy, I beg to test the mood of your Lordships’ House.