Baroness Stowell of Beeston
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Protection of Freedoms Bill
Baroness Stowell of Beeston Excerpts(13 years ago)
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Baroness Stowell of Beeston
My Lords, these government amendments are to remedy an anomaly in the definition of regulated activity for adults. The Bill provides that regulated activity relating to adults can be broadly split into six categories, one of which is the provision of personal care. The personal care definition currently includes “physical assistance” with the care of,
“skin, hair or nails (other than nail care provided by a chiropodist or podiatrist)”,
which is on page 64 of the Bill.
These amendments will remove the current exception,
“other than nail care provided by a chiropodist or podiatrist”,
as the exception creates an anomalous situation where chiropodists and podiatrists are in regulated activity because they are regulated healthcare professionals except when providing nail care. The amendments will achieve the Government’s policy aim that chiropodists and podiatrists are wholly within regulated activity and therefore within the scope of the revised vetting and barring scheme. I beg to move.
Baroness Hamwee
My Lords, I hope that we can dispose of this quickly. Clause 72 deals with information about barring decisions and my question is about the consent given by the object, if I can put it that way, of an inquiry who may consent to the provision of information when that consent, we are told in proposed new Section 30A(4) of the 2006 Act,
“also has effect in relation to any subsequent … application by”,
the same inquirer. I would be grateful if the Government can confirm that, in this context, consent can be withdrawn. I would read it that way and think that it is implied. However, there is certainly one example within the Bill: Clause 27, concerning biometric information of children in school, which deals with the consent of the parent and which says in terms that consent,
“may be withdrawn at any time”.
If it is necessary to spell that out in Clause 27, I would like to be quite certain that consent can be withdrawn effectively under the proposed new section contained in Clause 72. I beg to move.
Baroness Stowell of Beeston
My Lords, I am grateful to my noble friend Lady Hamwee for her explanation in moving her amendment. Clause 72 introduces proposed new Section 30A into the Safeguarding Vulnerable Groups Act 2006. That section will allow regulated activity providers and others with a specified connection to a person to ask the Secretary of State whether that person is on the relevant Independent Safeguarding Authority barred list, or lists. For this, the person must provide their consent to the release of information about them. Proposed new Section 30A specifies that consent given for one such check would serve as consent for subsequent checks about that person made by the same party, as my noble friend has already explained. The aim of that final provision is to reduce bureaucracy for employers and others. If a person has consented to the provision of information, it makes no sense for an employer to have to seek a new declaration from them every time that they need to do a new check. Clearly, however, the consent must be valid.
In moving her amendment, my noble friend seeks to specify that prior consent will not be valid for future checks if that consent has been withdrawn. Our view—this is where I hope to be able to give my noble friend the assurance that she seeks—is that the current drafting of the Bill achieves this policy intention. If consent has been withdrawn then, according to the terms of the clause, there is no consent and the employer would have no basis to proceed. Operationally, employers will need to confirm that they have valid consent, or they will not be entitled to carry out a check.
It is probably worth mentioning, while I have the opportunity, a wider point in the context of Clause 72. Consent could be freely given, given the potential detrimental consequences to an individual. This was something which the Information Commissioner raised in a letter that he sent quite widely to noble Lords between Second Reading and Committee. He was seeking some clarification on this. Importantly, there is only a certain degree to which the state can and should intervene in the relationship between employer and employee. Naturally, if an employer should do anything untoward, an employee has access to the appropriate legal remedies but we do not anticipate that most employers would seek to coerce their employees.
The alternatives in this case are a system where consent needs to be given or one where it need not be. We choose the former because while pressure by an employer can never entirely be ruled out, it is better than information about someone being given to a third party without their knowledge. As the Information Commissioner noted in the briefing that he provided, a barred list check under proposed new Section 30A is only one of various ways for an employer to discharge their duty to check barred status so, should consent ever be an issue, there are alternatives. However, it is worth pointing out that criminal records checks themselves require the person who is the subject of the check to make the application.
Overall, I hope that what I have been able to say provides reassurance to my noble friend that the policy intention of her amendment, with which we agree, is catered for in the current drafting and that she will therefore feel able to withdraw her amendment.
Baroness Hamwee
My Lords, the Minister read my mind. I had wondered whether to draw to the attention of the House the points made by the Information Commissioner, and I thank her for answering them without my asking. Her response on what is meant by “consent” is helpful, and I beg leave to withdraw the amendment.
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.
“Additional grounds for refusing an application to be registered
After subsection (3) of section 120AA of the Police Act 1997 (refusal, etc. of registration on grounds not related to disclosure) insert—“(4) Subsection (6) applies if an application is made under section 120 by an individual who—
(a) has previously been a registered person; and(b) has been removed from the register (otherwise than at that individual’s own request).(5) Subsection (6) also applies if an application is made under section 120 by a body corporate or unincorporate which—
(a) has previously been a registered person; and(b) has been removed from the register (otherwise than at its own request).(6) The Secretary of State may refuse the application.””
Baroness Stowell of Beeston
My Lords, government Amendment 76 inserts a new clause into the Bill that will strengthen the current powers of the Criminal Records Bureau to refuse to register an individual or organisation as a registered body. A registered body is a body or organisation registered by the bureau as being responsible for the countersignature of applications for criminal record certificates. Such a body will typically be a large employer or voluntary organisation—for example, the England and Wales Cricket Board or the Scout Association.
None the less, beyond the minimum requirements for a body currently to be registered by the Criminal Records Bureau, as set out at Sections 120 and 120ZA of the Police Act 1997, the bureau has the power to refuse registration only if it has concerns about an organisation’s ability to properly protect sensitive information that would be disclosed on a criminal record certificate.
Some 4,000 bodies are registered with the Criminal Records Bureau and all must adhere to their conditions of registration, which provide for a framework to ensure that registered bodies operate in a fit and proper manner. These conditions include requirements that application fees are paid within 15 days of invoice; that the organisation can demonstrate that it makes every effort to check that the position being applied for by an individual is eligible for a criminal record check; and that the registered body has verified the identity of the applicant before submitting the application.
The most common reason for the Criminal Records Bureau to be forced to cancel a registered body’s CRB registration is the non-payment of fees. This is usually where the organisation has continually failed to make the necessary payments to the bureau for the submission of applications to it and has repeatedly failed to pay its arrears or made any substantive offer to do so.
Of course, the Criminal Records Bureau will always seek to work with registered bodies as far as possible to address any short-term difficulties where there is an apparent breach of the conditions of registration and before considering any suspension or cancellation action. However, there is a gap in the powers available to the bureau. In practice, this means that an organisation that has previously failed to meet the conditions of registration, such as the non-payment of fees, and has had its registration cancelled can simply re-register, provided that it meets the basic criteria required under Sections 120 and 120ZA of the Police Act. Quite simply, this amendment will close that gap by extending the current powers to allow the Criminal Records Bureau to refuse to register a body that has previously been registered and subsequently removed—for example, due to a breach of the conditions of registration.
For any noble Lords who may be concerned that such organisations will therefore no longer be able to carry out criminal record checks, I assure them that the new clause will not impact on an organisation’s ability to apply for criminal record checks—that is, the original organisation that might use a registered body as an agent by which to apply for a check against it. In such circumstances, the organisation will be able to continue to access the Criminal Records Bureau service through another organisation that is registered satisfactorily with the bureau, typically referred to as an umbrella body. I beg to move.
Baroness Stowell of Beeston
My Lords, government Amendments 77, 78, 79, 80 and 81 make two technical changes to the provisions in Clauses 81 and 82. First, Amendments 79 and 80 provide that a request by the subject of a criminal record certificate, or a person on their behalf, to the Secretary of State or the independent monitor to challenge the accuracy of the information on such a certificate should be made in writing. This is to bring these processes in line with other provisions in Part 5 of the Police Act 1997.
Secondly, Amendments 79 to 81 will ensure that the updating service, which is being introduced by Clause 82, will continue to operate in a given case where a new criminal record certificate is issued following a successful challenge to the accuracy of the information contained on the original certificate. The updating service can be triggered by an application for a criminal record certificate. These amendments will ensure that the service is not unintentionally terminated following the issue of a fresh certificate. I beg to move.
“Inclusion of cautions etc. in national police records
After subsection (4) of section 27 of the Police and Criminal Evidence Act 1984 (recordable offences) insert—“(4A) In subsection (4) “conviction” includes—
(a) a caution within the meaning of Part 5 of the Police Act 1997; and(b) a reprimand or warning given under section 65 of the Crime and Disorder Act 1998.””
Baroness Stowell of Beeston
My Lords, Amendment 83 will provide parity with convictions for the recording of cautions, reprimands and warnings on the police national computer. The names database on the PNC contains the national police record of all convictions for recordable offences. It also contains details of cautions, warnings and reprimands. It is this database which is searched by the Criminal Records Bureau when it receives an application for a criminal record certificate. In the case of an application for an enhanced criminal record certificate, a separate search is also run against the police national database, which contains non-conviction information held by local forces.
Clearly, it is essential that the police national computer holds all relevant records. The current position is that cautions, reprimands and warnings are entered on to the PNC by the police using their common-law power to do so, whereas the recording of convictions is expressly provided for in Section 27 of the Police and Criminal Evidence Act 1984. The amendment will simply put the recording of cautions on the same statutory footing as that which applies to convictions. I hope that noble Lords will agree that this is a sensible tidying-up exercise, and I commend it to the Committee. I beg to move.