Change of Name by Registered Sex Offenders

Joanna Cherry Excerpts

Thursday 2nd March 2023 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

I actually want to raise the point that has just been raised by the hon. Member for Telford (Lucy Allan). The debate is clearly centred on the law and practice in England and Wales, but similar problems exist in Scotland, and Disclosure Scotland operates the same model.

Let me preface my speech by saying that in a previous life I worked for many years as a specialist sex crimes prosecutor with the national sex crimes unit in the Crown Office and Procurator Fiscal Service in Scotland. I am therefore acutely aware of the importance of the effect of the prosecution of sex crimes, particularly for the protection of women and girls but also for the protection of children and some men. I am also very aware of the importance of safeguarding and of the way in which those who wish to abuse their power by sexually abusing women and children will seek out loopholes and opportunities to find new victims. Today I want to focus on the safe- guarding loophole created by the ability to change identity in a more fundamental way, by simultaneously changing both name and gender.

I should say that I have been assisted in the writing of my speech and my understanding of this issue by Dr Kate Coleman of the organisation Keep Prisons Single Sex, which campaigns for prisons in the United Kingdom to be single-sex but also campaigns for data on offending to be recorded by sex registered at birth through the criminal justice system.

The Disclosure and Barring Service plays a vital and unique role in safeguarding. By processing criminal record checks for individuals who have applied to work in roles where safeguarding considerations apply, it allows organisations access to key information that will assist them in making safer recruiting decisions. The ability of a DBS check to play this role in safe- guarding rests entirely on the relevance, completeness and accuracy of the information returned and displayed on the DBS certificate.

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[Mrs Pauline Latham (Mid Derbyshire) (Con)]

I apologise for being late, Madam Deputy Speaker. I would have liked to contribute to this debate, but the ticket machine broke and I missed my train. I apologise for coming into the Chamber just to make an intervention. This is such an important debate, and I pay tribute to the hon. Member for Rotherham (Sarah Champion) for securing it and for her work.

As the hon. and learned Member for Edinburgh South West (Joanna Cherry) has just said, the ability for people to apply for a DBS check to work with children after changing their name by deed poll entirely defeats the object of the sex offenders register. Does she agree that the requirement for sex offenders to notify the authorities themselves is entirely unfit for purpose and that there needs to be a much more robust and centralised mechanism through which sex offenders can apply to change their name?

[Joanna Cherry]

I could not agree more.

The hon. Lady reminds me that, at the outset of my speech, I should have congratulated the hon. Member for Rotherham (Sarah Champion) who, as always, is completely across the subject. She often raises important issues, both in this House and in the public domain, that others have not dared to raise. I pay tribute to her for that.

I am talking about the Huntley case because it is disgraceful that, 18 years later, safeguarding loopholes remain whereby applicants can submit identity documents for DBS checks that display a new identity, despite the efforts of various hon. Members. At least the Government have acknowledged the safeguarding loophole whereby registered sex offenders are able to change their name by deed poll, but I am afraid that the ability to change identity in a more fundamental way, about which the hon. Member for Telford spoke so powerfully, by simultaneously changing one’s name and one’s gender, remains unaddressed.

In our public life, across the United Kingdom, self-identification has become a de facto right without legislation. Any individual can easily, and for any reason, change their name and gender on documents commonly used to establish identity via a process of self-declaration. That includes documents such as passports and driving licences, which can be presented for the purposes of a DBS check and show the individual’s new name and acquired gender instead of, and as opposed to, their sex.

The DBS grants enhanced privacy rights to individuals who change their gender when changing their identity. Those are exceptional rights that are granted only to individuals in that group. The result is that identity verification is compromised, meaning that there is no guarantee that the information returned during the check and displayed on the certificate will be accurate or complete. Those exceptional privacy rights also allow an applicant who has changed gender to request that all their previous names are withheld from the DBS certificate that is issued. That right to conceal previous identities is not given to anyone else; disclosing previous identities is a key component of safeguarding, and DBS certificates issued to all other individuals display all other names the applicant has used.

No doubt there were good reasons for the privacy requirements set out in section 22 of the Gender Recognition Act. I hasten to add that I am completely in favour of equal rights for trans people, but I am not in favour of a system that allows sex offenders to exploit the principle of self-declaration to evade the safeguarding process. Applicants who change their gender are also permitted to conceal their sex, and the DBS certificate issued will display their acquired gender instead. That right is not granted to any other individual; the importance of sex to safeguarding means that for all other applicants, their sex is always displayed on the DBS certificate. These are all serious risks to safeguarding that compromise the validity and reliability of the DBS regime.

This is a particular problem as we roll out digital identities, including for DBS checks, because there is a risk that the existing loopholes will be perpetuated in the digital realm. In the drive for convenience and ease of use, digital identities risk creating a new safeguarding loophole. In-person identity verification acts as a safe- guarding protection in and of itself, yet digital identities can be shared remotely, meaning that that important step is removed. The current operation of the DBS regime means that identity verification is compromised and organisations requesting DBS checks cannot have confidence in the information that is disclosed.

There are steps we could take to close the loopholes: the mandatory use of national insurance numbers for DBS checks and identity changes; having DBS certificates that display the sex registered at birth; and having DBS certificates that display other names used for all applicants, including those who have changed gender as part of changing identity. We are talking about rules of safeguarding that apply to people who have been convicted of sex offences, so all of this should be a no-brainer. In order to be effective, the rules of safeguarding must apply equally to everyone.

[Tim Loughton]

I am pleased that the hon. and learned Lady has raised this issue. It is extraordinary that more than 20 years on from what happened at Soham, we are still addressing here today the issues that came up then. It seems absolutely a no-brainer, as she puts it, that for people who have committed heinous crimes and whose sex offending history shows that they still pose a potential to harm children, the full identity should be available to those who need to see the DBS checks as they are taking them into employment. I think there is a degree of agreement on that. The change of gender qualifications, which I fully understand and which are necessary, should not apply to sex offenders. A full change of name history must be automatically linked at the DBS, and a change of name must be automatically linked to a DBS check, to make sure that all that information is available in respect of those people who pose a risk to vulnerable children.

[Joanna Cherry]

I am very grateful to the hon. Gentleman for his intervention. He correctly encapsulates what it is that I am asking for: in order to be effective, the rules of safeguarding must apply equally to everyone and there must not be loopholes or get-outs. Whenever the members of one group are excused from the normal requirements of safeguarding, a loophole is created that is ripe for exploitation.

I wish to make one final point. I am sure that we will hear that abusing the process and failing to disclose previous names is an offence, but that is just not good enough. A minor matter of administrative fraud such as making a false declaration is nothing in comparison to the significant risk posed by sex offenders abusing this system, which is really ripped open by the loopholes that I have described. It is high time that the safeguarding loopholes, which result in a situation where people—sex offenders—can change their identity, are addressed.

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[Miss Dines]

I want to make a bit of progress, but I am very happy to talk about it. I have given way a few times, but I would be interested in taking up any further discussions outside the Chamber.

Serious issues have been raised in relation to name changes and changes of gender. An individual who is transgender and has a criminal history is subject to the same monitoring, rules and checks as any other offender. That is the case regardless of whether they have a gender recognition certificate. A change of name resulting from a change of gender does not relieve the registered sex offender from their notification requirements. Regardless of the route used, everyone applying for a DBS for a criminal record certificate must follow the same identity validation process to demonstrate their current identity. This includes the requirement to provide at least one document previously issued by the Government in the current identity, or consent to providing fingerprints. The DBS sensitive applications route allows transgender applicants, including those who self-identify, to provide their full previous identity information to the DBS, while not disclosing that to a prospective employer or having it printed on their DBS certificate.

There is more to do in this area. I am very interested in this area, with the competing rights of such individuals and those who need protection, and I am looking at this. For applications via this route, the DBS additionally seeks to see a name change deed poll or a separate signed self-declaration to formally record the link between the current name and the identity that is to be protected. An application will also be checked against both male and female genders within the system.

[Joanna Cherry]

The Minister is absolutely right that there are conflicting rights here, but when rights conflict we have to carry out a weighing exercise, and we are talking about sex offenders here—people with a proven track record of abusing children and vulnerable people—so there is really no competition in that situation.

[Miss Dines]

I am delighted to agree with the hon. and learned Lady, and that is part of my balancing exercise. Sometimes there is lazy government, where the Government think something is sorted out, we have granted a right or a legal right, and we do not need to do any more. However, we do need to look at how things change, at new legislative changes and at the competition between rights, and I am thoroughly interested in that point.

That is why, for example, a blanket ban—I know the hon. Member for Rotherham is not suggesting that today, although it was suggested yesterday—is perhaps a distinction without too much of a difference, because we all want the same thing. A blanket ban preventing sexual offenders from changing their name is at risk of a court finding it to be discriminatory, unreasonable or disproportionate by focusing on all past offending regardless of the level of danger posed by the individual to the public and ignoring their rights.

What is often cited is that there are good and proper reasons for offenders to change their name. It is often cited that there are implications under the Equality Act 2010 or the Gender Recognition Act 2004, and perhaps more importantly, the European convention on human rights, in relation to the right to a private life. This is where we get into the legal complexity of why successive Governments do not always grapple with that problem. I am determined to have a go at it, with the assistance of everybody in this Chamber.

[Joanna Cherry]

The Minister is being very generous in taking another intervention. The argument that preventing sex offenders from taking advantage of a process of self-identification of gender to hide their identity somehow breaches the European convention on human rights was put forward in the vexed debate over self-identification in Scotland, and I can tell her that it was widely rubbished by many legal commentators. Will she look into it more carefully, rather than just taking at face value what many of us think is the baseless assertion that such a measure would breach human rights?

[Miss Dines]

I was not putting these points forward as my views; I was saying that they are often cited as an issue. What we need is a thorough overhaul and to look at how, within a lawful existing framework, we can move forward. I am delighted to say that this is an area I am working on, but the hon. and learned Lady is absolutely right that more needs to be done. The present system, while one of the most robust regimes—if not the most robust regime—in the world, is in my view not quite going far enough, and we need to look at it again. We need to protect members of our society, and as the safeguarding Minister, I take that job very seriously.

In closing, I would like to thank hon. Members for the important points they made during their speeches. I hope I have provided some reassurance that we do have tools that assist in managing the risk of sex offenders, but I do accept and concede that there is always more work to be done. I look up at the Public Gallery as I say that, and I thank those who are there for coming to listen to this.

None the less, the Government can never be complacent. Along with the good things we do, we need to do more. I am shortly to meet the national policing lead for the management of sexual and violent offenders, Chief Constable Michelle Skeer, who has national policing responsibility for sex offender management. I want to look more at what ideas she has and what ideas we can all have together across Government, and indeed across the Opposition, to assist.

As I have made clear, public protection and safety is our No. 1 priority, and we are committed to ensuring that the police and other agencies have more and better tools to assist them to more effectively manage registered sex offenders. In a nutshell, a lot has been done, but there is more to do. We need more joined-up systems, and I am going to try to do my little bit in my short time to address these issues.