Disclosure of Youth Criminal Records

Edward Argar Excerpts

Thursday 28th March 2019 Westminster Hall

[The Parliamentary Under-Secretary of State for Justice (Edward Argar)]

It is a pleasure to serve under your chairmanship, as ever, Sir David. I thank my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), the Chairman of the Justice Committee, for securing a debate on an important report. I pay tribute to all the Members who have spoken today and, indeed, all members of his Committee for their work. It is a pleasure as always to serve opposite the shadow Minister, the hon. Member for Bolton South East (Yasmin Qureshi). I know and welcome her commitment to this area of work, and to working collaboratively and in a bipartisan way when we have a common goal to achieve.

The Chairman of the Select Committee and many others present today have worked hard to champion the potential of children who offend, and their capability to move on from their previous behaviour to live rich and fulfilled lives—and, indeed, to make our shared commitment to rehabilitation a reality. My hon. Friend is right to say that although the issue is technical and legal, it is about more than that. It affects real lives and, as hon. Members have said, continues to affect them for years after the offence is committed. We are grateful for the Committee’s recommendations.

My hon. Friend set out with his typical eloquence and polite forcefulness how the system operates and what he feels does not work well. As hon. Members have said, at the heart of the debate there is a question of balance—striking the appropriate balance, as the shadow Minister said, between protecting the public and giving young people the opportunity for rehabilitation and to have a second chance and a future.

My right hon. Friend the Secretary of State for Justice recently set out his vision for a criminal justice system and the principles that should be at its heart. I am clear that the criminal justice system must have multiple aims—to deter, to ensure that there is both punishment and rehabilitation, and to protect society from crime. That means the system must be proportionate and, in the case of disclosures, relevant to those objectives. My right hon. Friend set out the need to move away from debates about soft or hard justice, and to think instead about smart justice that achieves what we would all want for society. That means knowing that, alongside appropriate safeguarding measures for children and vulnerable people, employment for those who have previously offended can support public protection. There are, as the right hon. Member for Delyn (David Hanson) said, few better tools for reducing reoffending than a regular pay cheque. We have made it clear that we want more employers to look past someone’s offending history and see their future potential, and I believe that rehabilitating people and getting them into employment is the best outcome for us all.

On taking office in 2016, my right hon. Friend the Prime Minister made a pledge that the Government would fight against social injustice and give people back control of their lives. She set out a vision whereby all British citizens could go as far as their talents took them. Nothing should hinder that, and it should also apply to children who commit crimes or make an error. This must be reflected in the disclosure of criminal records.

I agree with the core position laid out by the Committee: employers should not regard the disclosure of a criminal record as an automatic barrier to employment. A balanced judgment should be exercised, having regard to factors such as a person’s age at the time of the offence, how long ago it was, and the relevance to the application or post in question. The Committee’s report goes beyond this and rightly highlights the need for proportionality, clarity and fairness, as well as seeking to ensure that the systems designed to protect the public and facilitate rehabilitation keep up to date with the reality of the modern world.

The Secretary of State for Justice has already identified that one of the best ways to help those who have offended to get meaningful employment is by working more closely with employers and expounding the benefits of hiring those with criminal convictions. That is why—to address one of the key themes in hon. Members’ speeches—I am happy to see the Government leading by example by rolling out Ban the Box across the civil service in 2016 and continuing to encourage its implementation across both the public and private sectors.

Whenever I see the right hon. Member for Delyn in a debate that I am speaking in, my heart both rises and sinks. It rises because he brings great expertise and knowledge of this subject; it sinks possibly for exactly the same reason, as I know he will ask me various challenging questions. He asked a number of questions, and I will try to answer some of them—if I do not answer them all, I will happily commit to write to him next week with detailed answers.

[David Hanson]

I am glad to see I serve some purpose, if there is anything wrong with the Minister’s heart—rise and/or sink, depending on his mood. He just mentioned the roll-out across Government, and it is important that he puts on record, either now or by letter, whether any Department is not operating Ban the Box.

[Edward Argar]

I take the right hon. Gentleman’s point. I am not aware of any Department not doing it. There may be some roles, perhaps in the policing or security aspects of Government, where there might be more complex considerations. I undertake to write to him with a clarification on that in due course, when I will answer a number of his other questions.

[Robert Neill]

Further to that point, will the Minister also commit to letting us know whether any of the Ministry of Justice’s contractors are not operating Ban the Box? The Ministry has considerable procurement leverage in these matters. Subject to the caveats about security, we would like to know that, too.

[Edward Argar]

I am happy to include that, if it is appropriate, when I write to the right hon. Member for Delyn—I will copy it to the Chairman of the Justice Committee, who makes a good point. I do not know whether that data exists, but I will endeavour to get it. The right hon. Member for Delyn also asked, I think, about the direct impact on the Ministry of Justice. My understanding is that of those people with a previous conviction who applied through the approach that has been taken in the civil service since 2016, 92% subsequently secured employment, which is a positive outcome.

Beyond the guidance for employers, I am proud of the rehabilitative support we have offered in the past. As I say, I will write to the right hon. Member for Delyn with some detailed answers to his questions about the specific list of activities undertaken to ensure that responses and commitments went beyond responses and commitments and followed through into actions. One thing that he mentioned, to which I can respond directly now, is about the education and employment strategy, which was published in 2018 and was explicit, as I understand it, in referring to this. I will give him the detailed action plan that sits beneath the strategy.

I am proud of the rehabilitative support we offer to people who have offended in the past. Our education and employment strategy, published in 2018, sets out how we will transform our approach to ensure that those in the adult custodial estate develop the skills they need to secure employment on release. We are giving governors the power to commission education provision and engage with employers to take on ex-prisoners—for example, via the New Futures Network.

A number of hon. Members have mentioned the debate about the age of maturity and its impact on criminal justice. There is a live debate on whether it should be 18, 25 or somewhere in the middle, reflecting different scientific papers that have been put forward. I think that even the Lord Chief Justice has commented on this ongoing debate. It is something of which I am very much aware. A degree of caution needs to be exercised, if only because the age of 18 is when we deem people mature enough to enjoy certain rights and benefits. If we were to look at whether it should be 18 or 25, would that lead to a wider debate? If we are saying that someone is not criminally mature, what other rights and benefits come with a particular age? I am not setting out a particular view on that, but it does lead to a wider debate. We should not be afraid to engage in that, but we should be conscious of the wider implications.

As hon. Members have mentioned, the Supreme Court recently handed down its judgment in the case of P and others, which considered the disclosure regime. On the most fundamental point, the Court found—for the Government—that it was proportionate and practicable to make disclosure decisions in accordance with a clearly defined and unambiguous system, through the operation of legislative rules agreed by Parliament. However, as has been set out, the Court went on to find that two key features of the filtering regime are disproportionate as framed: the multiple conviction rule and the disclosure of youth reprimands and warnings. I will not recount the detail of how they operate, because hon. Members have already done so.

My Department is working closely with the Home Office to give proper consideration to the judgment. The Justice Committee’s report touched on something that is relevant. It highlighted the fact that responsibility in this area is split between the Ministry of Justice and the Home Office. Indeed, in some of the issues we have touched on, which I will turn to later, other parts of Government also have a relevant interest, the Ministry of Housing, Communities and Local Government being an obvious example.

I saw the Committee’s suggestion that placing responsibility on a single Department could enhance coherence. We did not accept that recommendation for a simple reason: we come back to the balance at the heart of the system, that balance between a focus on rehabilitation—giving people a second chance—and an element of public protection. Part of that sits with the Home Office and part sits with the Ministry of Justice, which can lead to a creative and hopefully positive tension and balance. Where we must strive to avoid problems is when that balance and those counter-positions or counter-interests can lead to things taking a lot longer than they might do otherwise. In a few moments I will turn to the matter of timing, because the Chairman of the Justice Committee is a deeply patient man but does not have infinite patience.

We work closely with the Home Office to give these things proper consideration. Although that judgment has been handed down, the order behind it has not yet been sent over to us. We await that order. When it is received, it is important that we are speedy and timely in addressing it.

[Robert Neill]

One thing that might be able to speed these matters along is for the issue to be discussed by the Criminal Justice Board, a mechanism that is there precisely to give an overview across the whole criminal justice system, and which involves the two principally concerned Departments and others. Will the Minister undertake to have it raised on the board’s agenda?

[Edward Argar]

I will raise that very good point with the Secretary of State, who sits on that board. Although I cannot go into the details in advance of that order, I can say, and Members can read into this what they will, that I generally find justices to be wise and sensible in their opinions. They consider what they say extremely carefully and open-mindedly. I believe, from my experience in this role so far, that when one receives a judgment from the Supreme Court, there are often opportunities to look at it in broad, rather than narrow, terms. I will endeavour to reflect on that when the order comes through.

We previously committed to considering the Committee’s recommendations for reform of the criminal records system on receipt of that judgment, and we remain committed to that, because it is appropriate for us to consider any recommendations about the disclosure regime in the light of that authoritative ruling. The Committee’s recommendations sit neatly alongside it, so it makes sense to consider them in the round.

I now turn to a number of issues that came up in the debate. I am grateful to the Committee for highlighting such a wide range of issues in its report, particularly on access to housing, travel and insurance. I recognise the acute impact that lack of access to those things can have, as well as the cumulative impact on children who have offended. I will take each of the points in turn, but before I do so, I pay tribute to the speech made by the hon. Member for St Helens South and Whiston (Ms Rimmer), who rightly highlighted the need for us to understand not just the requirements of a regime but the context for each individual. She highlighted the impact on the behaviour of young people who have been looked-after children, who have had adverse childhood experiences and who may even have been victims of child sexual abuse or other forms of abuse. That should be a consideration, and she was absolutely right to raise the issue. Those individuals have a passionate advocate in her. She made her point forcefully and well, and I will certainly reflect carefully on what she said.

The Committee’s report concluded that the criminal record system undermines the principles of the youth justice system. Although we do not share that view, the Committee’s work highlights further opportunities not yet taken that can enhance the principles and the work of the criminal justice system if we reflect on how the disclosure regime operates more broadly. Children who come into contact with the police and youth offending teams are some of the most vulnerable children in our societies, as the hon. Lady highlighted. We all agree that rehabilitation is important in improving their life chances. Society has a right to expect that we will do everything possible to ensure that all people with convictions desist from crime. Those who offended as children are no different. We have a particular responsibility to children who fall into the categories that the hon. Lady highlighted.

We know how important employment, education and other factors raised by the Committee are in enabling rehabilitation. The hon. Member for Lewisham West and Penge (Ellie Reeves) highlighted that issue and touched on some powerful examples. We are committed to supporting children to turn their lives around. In 2013, the coalition Government changed the law so minor offences no longer needed to be disclosed. It takes significantly less time now for offences committed by children, as opposed to those committed by adults, to become spent, after which they no longer need to be disclosed for most purposes. Those features of the disclosure regime all relate to the fact that children who offend are often highly vulnerable and might not be as mature as adults who do so. There has been progress, and the hon. Lady would expect me to say that, but given her comments about pre-emptive action, I will not say, “That’s progress. That’s job done. We are in the right place,” because I believe that there is clearly more to do.

The Committee raised concerns about equality and disproportionality. I am committed to reducing disproportionate outcomes for BAME children in the youth justice system, and I share the concerns voiced by the right hon. Member for Tottenham (Mr Lammy) in his 2017 report. I reassure the shadow Minister that we take that report incredibly seriously. Since I was appointed to this role last summer, I have met the right hon. Gentleman a number of times. We announced last November via the Cabinet Office the cross-Government “one year on” update on the progress that has been made in that area. I have regular roundtables with those with an interest in this issue to chase up progress. We have a director general in the Department who is directly responsible for bringing officials from a range of parts of the Department together to drive forward progress on reducing disproportionality and implementing the recommendations in the right hon. Gentleman’s report. That reflects the fact that I recognise the need for systemic change. A key focus is on explaining or changing disproportionate outcomes for BAME children in the justice system.

I am also aware of the over-representation of vulnerable groups with multiple and complex needs—particularly looked-after children, excluded children and those with mental health issues. Again, it is a fundamental priority for the youth justice system to ensure that those children receive the support and intervention they need to fulfil their potential.

A number of Members touched on the disclosure of police evidence. In our response to the Committee’s report, we noted that disclosure of police intelligence can be an important aspect of the regime. That was a key finding of the Bichard report after the Soham murders. It plays a vital part in ensuring that children and vulnerable adults are protected. The police cannot automatically disclose all intelligence. Disclosure of non-conviction information is subject to a statutory relevance test, so the chief officer has to consider whether the information is relevant and ought to be disclosed. That includes consideration of the individual’s age at the time of the offence, its seriousness and how long ago it occurred, but once again, as hon. Members have emphasised, the key is proportionality and relevance.

My Friend the Member for Henley (John Howell) touched on housing. Social housing is a precious resource, so ensuring that it is allocated fairly, as he set out, is crucial. We recognise the need to understand better how the allocation system is playing out in local areas, so we know whether it is striking the right balance between fairness, support and aspiration. In the social housing Green Paper, the Government propose an evidence collection exercise to help us to understand how the allocations framework is working across the country in different areas. Following that exercise, we will consider whether changes to legislation, regulations or statutory or best practice guidance are necessary, but we believe that making changes prior to having a clear evidence base would be premature. My Department continues to work closely with MHCLG colleagues to ensure that the points that my hon. Friend and others made, which are directly relevant in this space, are considered in that broader piece of work.

[Robert Neill]

I am grateful to the Minister for the constructive dialogue that we can have. In carrying out that evidence exercise, will he particularly bear in mind the evidence that we received from the Standing Committee for Youth Justice? Like me, the Minister comes from a background in London local government, and that organisation’s findings were that some 13 of the 30 London local authorities it looked at had housing policies that tended to have an unreasonable impact on the allocation of housing to former offenders. If, as he said, a pay cheque is one way of stopping offending, secure accommodation is another.

[Edward Argar]

My hon. Friend alludes to our shared past in London local government, where I first met him many years ago, when I had a little more hair and it was not quite so grey. He is absolutely right: I meet with the Standing Committee on Youth Justice and consider its reports and input with great care. It is for local authorities to ensure that their allocation schemes are lawful, taking account of any relevant decisions made by the courts. No authority may breach section 4 of the Rehabilitation of Offenders Act, which requires that a person who has a spent conviction be treated as if the offence was not committed.

My hon. Friend the Member for Henley also touched on education. As we set out in our response to the report, most higher education institutions are autonomous, independent organisations, and as such admissions are a matter for each individual institution. They are best placed to decide which applicants are the most suited for their organisations and the courses that they offer. Similarly, further education providers, including colleges, are independent organisations that can set their own entry criteria for qualifications, in line with those published by the qualification owner.

That said, we expect providers to take account of the Committee’s recommendation as part of a transparent admissions process. On universities, I am happy to say that for the 2018-19 cycle, UCAS has dropped the automatic requirement for all applicants to declare unspent convictions, regardless of whether they are relevant to the course for which the applicant is applying. The eligibility for Disclosure and Barring Service standard or enhanced certificates applies to work placements in the same way as other paid or voluntary employment. If a course does not involve a work placement that is eligible for a check, the university can only ask about unspent convictions.

Hon. Members raised the matter of insurance, the Association of British Insurers and other matters. The ABI published a good practice guide in 2011—it was updated in 2014—that sets out high-level standards of how insurers should treat people with convictions or related offences. The guide makes it clear that insurers should not ask for spent convictions. When an insurer is unable to provide full or any cover because of a consumer’s unspent conviction history, the insurer should provide information about alternative sources of help.

The hon. Member for St Helens South and Whiston touched on the UN convention on the rights of the child and similar. As stated in our response, the Government consider that the disclosure regime is compatible with the convention. It treats convictions and cautions received by those under the age of 18 differently from those incurred by an adult and, although I hear that hon. Members feel that those people should be treated more differently, we believe that we are compliant with the convention. In the light of the Supreme Court judgment, any future changes to the regime will take the convention into account.

I want to touch on the passionate speech of my hon. Friend the Member for Banbury (Victoria Prentis), and her passionate campaigning work. I am very pleased that she was able to dash from the main Chamber to deliver her speech. I know that she is a passionate advocate for the Ban the Box campaign. She speaks with eloquence and with great knowledge and experience, having worked on this issue for some time. I would be very happy to meet her to discuss that campaign more broadly if she feels that that would be helpful. If the right hon. Member for Delyn and others wished to join us, I would be very happy for them to do so.

There is always a balance to be struck between giving the employers the information that they need to make informed recruitment decisions and having a criminal records system that enables rehabilitation. I look forward to our bringing forward proposals both in response to the Supreme Court judgment and to formally address the issues set out in the Committee’s report. As I said, my hon. Friend the Member for Bromley and Chislehurst is a patient man, but not infinitely patient—nor is his Committee. Hon. Members quite rightly highlighted that although words are important, and this place uses an awful lot of them, they must lead to action.

I am clear that we must, and will, act to address the issues raised and the Supreme Court judgment when the order comes forward. I hope that we can all believe and support a system that believes in redemption, rehabilitation and a second chance. More than ever, that should apply to children who, at a young age, make a simple mistake that should not blight the rest of their lives. I commit to working closely with the Committee in the coming months to respond to and address its points as well as those raised by the Supreme Court judgment. I am very grateful to have had the opportunity to speak on this subject.