Draft Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2023

John Howell Excerpts

Wednesday 17th May 2023 General Committees

[The Minister of State, Ministry of Justice (Edward Argar)]

I beg to move,

That the Committee has considered the draft Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2023.

Before I set out the effect of the draft order, it may be helpful for hon. Members if I explain the legislation underpinning the change that the Government are bringing forward. The Rehabilitation of Offenders Act 1974 governs the disclosure of cautions and convictions for most employment purposes. More serious convictions remain disclosable for life, but under the ROA most convictions become spent after a specific period. Once a conviction is spent, it does not need to be disclosed by someone applying for most jobs. That approach supports the rehabilitation of the offender, helping them to put their past behind them when they have not reoffended over a significant period.

The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 lists activities or categories of jobs in respect of which those protections are lifted, so that individuals, are still required to disclose spent convictions if asked to do so. That enables greater disclosure of criminal records information for people in specified roles and activities. The primary rationale behind the exceptions order is that there are certain jobs for which more complete or relevant disclosure of an individual’s criminal record may well be appropriate.

Although it is generally desirable to facilitate getting ex-offenders into employment, the public must remain adequately protected. There are some areas in which an employer should be made aware of a person’s fuller criminal history before an offer of employment is made, so that consideration can be given to any necessary safeguards. The exceptions order is therefore a counterbalance to the ROA in favour of the protection of the public, providing a greater level of disclosure for individuals performing roles or activities that require additional safeguarding: working with children or vulnerable adults, for example, or in positions of public trust.

The draft order will amend the exceptions order by adding four roles to the exceptions order: chartered management accountants, fire and rescue authority employees, justice system intermediaries and notaries public of England and Wales. Each of those roles has been identified as meeting the criteria for inclusion in the exceptions order: either they are in line with the existing roles and activities reflected in the exceptions order, or there is a compelling case to justify requiring individuals to disclose all spent and unspent convictions. I will set out the rationale for adding each of those four roles to the exceptions order.

[John Howell (Henley) (Con)]

Is the Minister aware—this is an open question—whether, ahead of this legislation, other professional organisations are going further with respect to liberalisation?

[Edward Argar]

I am grateful for my hon. Friend’s intervention. This is a very narrowly defined set of professions, and the draft order will fulfil a request from some of those professions. As I will address in my closing remarks, there is always a difficult balance to be struck between liberalising the regime, to encourage and facilitate people who have offended but have a subsequent clean record getting into work and back into normal life, and protecting the public in particular circumstances. That does not necessarily mean that the individuals will not be given a job, but it does ensure that their employers have full disclosure so that they can make an informed decision.

The first profession to be added to the exceptions order is members of the Chartered Institute of Management Accountants. The reason is that the functions that they carry out are fundamentally based on trust, and they present a particular opportunity to cause harm to the public through abuse of that trust: they provide services including accounting, taxation and financial management services. The exceptions order already includes chartered accountants and certified accountants, but not members of CIMA, even though they carry out similar functions. I am persuaded that members of CIMA should be included in the exceptions order to enable the institute to discharge its regulatory functions properly and to ensure consistency with Scottish legislation, which already includes them.

The second profession is fire and rescue authority employees, for whom I also consider that there is a clear case for change. From the independent culture review of the London Fire Brigade, from media reporting on services across England and Wales and from recent reviews of fire and police culture, we have seen the importance of ensuring that we effectively vet and check the people we employ in our key public services; we have repeatedly debated those important issues in this House. Furthermore, the recent spotlight report on culture and values by the fire inspectorate, commissioned by the Government, specifically recommends such a change. The case for making it is also supported by considering the roles that individuals in our fire and rescue services undertake, which can include attending schools or vulnerable people’s homes, attending incidents as medical first responders, exercising statutory powers and helping to safeguard others. We hope that the change will help to protect the reputation of our fire and rescue services, which are deeply trusted and highly reliant on public trust and respect for the amazing job that they do to carry out their roles effectively.

The third profession is justice system intermediaries, whose role is to enable communication in police inquiries and in court and tribunal proceedings with those witnesses and parties whose ability to participate is diminished because they are under 18 or are suffering from a mental or physical impairment. It is common for some intermediaries to have unsupervised access to vulnerable adults for the duration of a communication assessment. In rarer cases, they have unsupervised access to children under the age of 18. The role can also involve discussions with vulnerable people concerning highly personal or sensitive matters such as domestic or sexual abuse. Those factors add to the safeguarding risk and place the intermediary in a position of increased responsibility for the welfare of the vulnerable person.

The fourth profession is notaries. “Notary” or “notary public” is a term for a specialist lawyer who has undertaken further legal education and examination and is appointed and regulated through the Faculty Office of the Archbishop of Canterbury. Notaries are authorised to attest the authenticity of documents, certify documents, take affidavits and swear oaths. Most notaries are solicitors, but they do not have to be. In the light of the Ukraine crisis, the then Deputy Prime Minister, my right hon. Friend the Member for Esher and Walton (Dominic Raab), wrote to legal services regulators to ask how the Government could support them to uphold the economic crime regime. In response, the Faculty Office recommended adding notaries to the exempted professions under the exceptions order. Adding notaries to the order will provide parity with other legal professionals such as barristers and solicitors, who are already subject to standard Disclosure and Barring Service checks, as opposed to the basic checks. Furthermore, given that notaries handle sensitive information and often work with vulnerable people, we consider that the role of a notary meets the criteria for inclusion in the order.

At present, employers can request only a basic DBS check for the aforementioned roles, unless specific activity being undertaken as part of the role makes them eligible for more than that. A basic check is the lowest level of check available and shows only those convictions and cautions that are not considered spent. Approving the draft order will enable employers to request standard DBS checks for prospective employees in those roles. It will also enable employers to assess the suitability of a person for any office or employment that the draft order adds to part 2 of schedule 1 to the exceptions order, such as in the case of the fire and rescue services. Standard DBS checks contain details of both unspent and spent convictions, as well as cautions held on the police national computer that are not subject to filtering, which is a process whereby old or minor convictions are filtered off a standard DBS check.

It is important to bear in mind that where an employer is aware of a conviction, it should not be an automatic bar to employment. The Government strongly urge employers to exercise a balanced judgment, taking into account factors such as the person’s age at the time of the offence, how long ago the offence took place, the nature of the offence and its relevance to the position in question. The Government are committed to the rehabilitation of those who have ceased offending and want to move on with their lives. I am proud to say that we have completed the roll-out of prison employment leads, who match prisoners to jobs, and employment advisory boards chaired by business leaders, which link prisons with local industry. We have delivered those in 92 prisons, including all resettlement prisons, ahead of schedule.

We want to ensure that employers use the new powers granted to them under the draft order fairly and proportionately. As a condition of these professions being added to the exceptions order, representatives of each profession have agreed to produce or update guidance, which is being developed with the support of policy officials. The guidance will help to ensure that employers are fair in their recruitment decisions.

In conclusion, adding justice system intermediaries, fire and rescue authority employees, chartered management accountants and notaries to the exceptions order is a necessary safeguarding measure. The criminal records disclosure regime is designed to protect the public, particularly children and vulnerable adults, while enabling those who have offended in the past to move on with their lives. We believe that the change that we propose appropriately strikes that balance.