DRAFT REHABILITATION OF OFFENDERS ACT 1974 (EXCEPTIONS) ORDER 1975 (AMENDMENT) (ENGLAND AND WALES) ORDER 2020 DRAFT POLICE ACT 1997 (CRIMINAL RECORD CERTIFICATES: RELEVANT MATTERS) (AMENDMENT) (ENGLAND AND WALES) ORDER 2020

Lord Spellar Excerpts

Monday 14th September 2020 General Committees

[Victoria Atkins]

What a pleasure it is to serve under your chairmanship, Ms Ghani. I suspect that you are the first of the 2015 intake to serve on the Panel of Chairs—that is a real and well-deserved privilege.

The orders, which were laid before Parliament on 9 July, are two very technical but important because they relate to the requirements for a person to self-disclose criminal records when applying for roles that are eligible for standard and enhanced criminal records checks, and to the rules for disclosure of criminal convictions and cautions on a standard or enhanced criminal record certificate issued by the Disclosure and Barring Service. As criminal record disclosure is a devolved matter, the orders apply only to England and Wales.

As hon. Members may be aware, in January 2019, the Supreme Court handed down its judgment in the case of P, G and W. Overall, the Court found that a rules-based disclosure regime for criminal record certificates is justifiable and in accordance with the law. However, that judgment also determined that certain aspects of the current disclosure rules are incompatible with article 8 of the European convention on human rights—namely, the right to a private life.

There were two areas of concern. First, the multiple conviction rule, under which all convictions, regardless of their nature, are disclosed when an individual has more than one, was found to be unnecessary and disproportionate in terms of indicating a propensity to offend. Secondly, the disclosure of out-of-court disposals administered to young offenders was found to be “an error of principle”, given the instructive purpose of the disposals, so the Court found against the automatic disclosure of youth reprimands and warnings.

[John Spellar (Warley) (Lab)]

Surely both propositions are absolutely self-evident. Why did we drag it all the way through the Court of Appeal and up to the Supreme Court—wasting years carrying on with it—when the Court actually applied a common-sense approach on both counts and said, “This is wrong”? Why could Ministers and civil servants not have done that years ago, rather than taking it all the way through that elongated process?

[Victoria Atkins]

I am so pleased that the right hon. Gentleman has raised that point. He has a particular interest in this matter, and I answer many of his parliamentary questions on it, so I know that it is an area in which he is an expert and to which he is very committed.

Although I do not want to go into the details of all the cases that were joined together, the reason that the Government took those cases to the Supreme Court was that there were many important principles of law to be tested. All along, we have reviewed those rules and done as we thought right. We cannot hide from the fact that the reason that the Disclosure and Barring Service regime and its predecessor were set up in the first place was to protect the most vulnerable in our society. It is right that the Supreme Court was asked to look at the regime as a whole. It found that the regime was satisfactory and within the bounds of article 8 and other measures within the convention, but it drew two points to our attention. We have gone into great detail to ensure that we can bring about a system to enact the observations in the ruling by the Supreme Court, but to do so in a way that keeps the purpose of the regime in place.

The orders before the Committee will not change the purpose of the disclosure regime. The disclosure rules will continue to ensure that children and vulnerable people are protected from dangerous offenders. However, the Supreme Court judgment made it clear that these two areas of concern are disproportionate as currently framed, so the orders will ensure that there is a balance between the safeguarding aims and supporting people who have offended in the past to move into employment and move on with their lives.

--- Later in debate ---

[John Spellar]

It is a pleasure to serve under your chairmanship, Ms Ghani. I thank the Minister not only for writing to me, but for an informal briefing on the subject under discussion today. The changes are welcome, but long overdue. I have just delved into my files and I have a letter from the Ministry of Justice, from the then Minister, dated 20 April 2013:

“I am writing further to Andrew Lansley’s”—

remember him?—

“response to your Business Question on 18 April, asking for an early debate to discuss the impact of including cautions and minor convictions in disclosures issued by the Disclosure and Barring Service.”

That was in response to a

“recent Court of Appeal judgment in the case of R.”

This has been going on and on.

The changes today are welcome, as my right hon. Friend the Member for Tottenham said, but they still do not go far enough. It is still the case that, if people commit slightly more serious offences in their teen years, that dogs them all through their life. Indeed, some of the Supreme Court cases demonstrate that. These anomalies and problems will emerge, and I would hope, without too much expectation, that the Department might respond much more quickly than it has. The situation has gone on far too long.

It has become clear in the exchanges we have had that the issue is not even one that divides the parties, uniting those on the right of the Conservative party and the left of the Labour party. That is not, by the way, unique to the United Kingdom. In the United States, right-wing Republicans and left-wing Democrats have united in working together to introduce schemes for the rehabilitation of offenders, recognising a major social problem and an economic issue.

It is only the Department, and the stubbornness of officials, that have held things back. I have had agreement in the past between the Secretary of State for Justice and the Home Secretary. The trouble was they got moved, and we had to start all over again. At the same time, the matter was dragged back by the officials, who would not move.

That is not unprecedented, by the way, in dealing with such issues. It took something like 10 or 15 years to get changes to wheel clamping, which had been abolished in Scotland by one legal decision. Yet again, after going all the way through the Home Office, the issue finally got transferred to the Department for Transport and we managed to get the changes and prevent wheel clamping on private land.

We cannot afford to behave like that, because the issue is extremely important. Everyone accepts that an essential condition for rehabilitation, which I think we all accept is desirable, just and necessary, enabling offenders to play their part in a law-abiding society, is to have a job and a stable relationship—the second of which is often dependent on the first—as well as being able to move into that job fairly rapidly.

I was interested in the intervention by the hon. Member for Eddisbury, and I pay tribute to the incredible work done by the company that he is associated with, precisely in recognising that. I only wish that more employers would follow through in the same way. He made an important point and asked that employers should look at the person.

Unfortunately, that is where I think the Minister was slightly naive. All that many employers look at is whether the boxes are ticked. Is the age box ticked? If someone is over a certain age, employers do not even look at them. There is a new way of doing that: employers ask for qualifications. For jobs where there is no reason to want A-levels, they want them. Alternatively, they require a degree-level person for a job. What does that say? It says that older people need not apply, because we look at the increase in the number of people taking A-levels and degrees, and we will see that there is a very definite age bias, so again they are excluded.

As for people with a disability, regardless of whether or not that disability prevents them from doing the job, too many employers—including some in the public sector, for all their pretensions—will not look at the person and think, “They can’t take this particular exam; they can’t do the job.” I once had a case of a constituent who had been doing a civil service job on a temporary basis for about four years. Their union reps tried everything to get them the job, but no, because the civil service rules said that they first had to take an exam, but because of their disability, which was a mental disability, they could not do that, but they had worked out a coping mechanism.

This behaviour is immoral, unjust and incredibly economically inefficient. However, there is another factor coming in. For quite a while now, we have had the issue that for too many employers the easy option has been not to look at the person but just to say, “Well, they have got some conviction.” They will then pick up the phone to the agency, which will pick up the phone to Warsaw, and all they will do is just import labour to do the work. Now, with the rapid increase in unemployment—we are already seeing that feeding through into reducing wage rates, indicating a surplus of supply over demand—we will be seeing the same thing, with employers taking the easy route. If somebody cannot tick the box, the employer does not even look at them. I think we will have to return to this issue, although this measure actually enables us to make decent progress.

I take issue with the Minister’s point about timeliness. The Lammy report, which my right hon. Friend the Member for Tottenham himself referred to very modestly, was a seminal report produced at the request of the then Conservative Prime Minister in 2017. The Minister referred to the Supreme Court’s judgment of January 2019. We are now in September 2020. Why has it taken the Department so long, given that they knew all the issues that were involved, because they had been dealt with by the Court of Appeal? All that was being asked for was some final validation by the Supreme Court.

I return to the issue I raised. Given the details of the cases involved, why did the Home Office not move? I have to say that I find it truly extraordinary, when we have a lot of complaints about judges trying to make law rather than interpreting the law and adjudicating on it. Actually, we seem to have abdicated that responsibility, leaving it to judges to make the law. I had thought that it was the job of Parliament, Ministers and the civil service to identify problems and see whether they can be resolved within existing law, and then—if the law needs changing—to bring that change to Parliament. Why abdicate that to judges?

Let us look at one or two of the cases that were part of the Supreme Court’s judgment. P received a caution on 26 July 1999 for the theft of a sandwich from a shop. Three months later, on 1 November 1999, she was convicted at Oxford magistrates court of the theft of a book worth 99p and failing to surrender to the bail granted to her after arrest for that offence. She received a conditional discharge for both offences. At the time of the offences, she was 28, homeless and suffering from undiagnosed schizophrenia, which is now under control. She has now qualified as a teaching assistant and has committed no further offences, but she has been unable to find employment. That is a scandal. Why would the Home Office not respond to that and say, “This cannot be and this should not be”?

W was convicted by Dewsbury magistrates court on 26 November 1982 of assault occasioning actual bodily harm. At the time of the offence, he was 16 and the assault occurred in the course of a fight between a number of boys on their way home from school. He received a conditional discharge and has not offended since. He is now 47 and has difficulty obtaining a teaching job.

In 1996, Lorraine Gallagher was convicted at Londonderry magistrates court of one count of driving without wearing a seatbelt and three counts of carrying a child under 14 years old without a seatbelt, and there was a subsequent case in 1998. She has no other convictions. She qualified as a social carer and was admitted to the Northern Ireland Social Care Council register, and then she was rejected for employment as a result of failing the test. There are many other cases—I am sure many Members of Parliament have had them.

Frankly, it is scandalous that this issue has not been dealt with up to now. I doubt that, had I not had the luck of getting a question to the Prime Minister three weeks in a row—no, I did not tip the winner of the St Leger—it would even have got here by now. Why was the Prime Minister, certainly on the second occasion, not able to trump me and say, “This has all been sorted out”? This has been a saga of dither and delay.

A further problem is that the system finds it very difficult to cope with so many cases. Anybody who has moved from one conurbation to another—I get people who have moved from London to the midlands—have to get DBS checks from two police forces, and the record of the Metropolitan police has not been glowing in that regard. Month after month goes by, and those people are not able to get into employment. They are denied the ability to provide for themselves. That is partly to do with the efficiency of those forces, and partly about why these things cannot be done in parallel, rather than in series. It is also because we are overloading the system with so many unnecessary cases.

The Security Industry Authority is another one that has considerable problems. Those who remember the first police and crime commissioner elections know that those who had very minor convictions or cautions in their teenage years—they were often in their 50s or 60s —were denied the right to run as police and crime commissioners even if they were major figures in their local societies. This mindset at the Home Office must change.

I think, therefore, that colleagues on both sides of the House need to consider, as we approach Brexit and this country needs to be firing on four, not two, cylinders, whether we can afford this dithering, delay and obstruction that goes on regularly in so many Departments. Is it not holding back our country, as well as individuals? There is a real economic price to pay, quite apart from the social justice case. If we keep people in enforced unemployment or working in jobs that are below their capability and potential, that is not just bad for them but significantly bad for the country. Therefore, there needs to be a reflection particularly about the Home Office but also about the civil service generally.

We have had too many cases of this in the Home Office. We had the Windrush scandal, in which year after year, decent, hard-working citizens were deprived of their rights, treated with contempt, pushed around and treated scandalously. Even after it was exposed, very few of them received compensation—although, I do not know what the appropriate compensation would be for having their lives ruined. Some have already died, including one who used to work in the House of Commons, yet they rejected her claim. We have more and more delay and obstruction. I do not know how many people are still stuck, but my right hon. Friend the Member for Tottenham might.

[Mr Lammy]

Five thousand.

[John Spellar]

Five thousand people are still stuck in the system, which will not give way. Frankly, it is that indifference—that contempt for ordinary people—that, bluntly, in previous eras of the civil service, led to the Irish and Bengal famines. This is a welcome change. It needs to go further, but there also needs to be a root-and-branch change in Government.

[Victoria Atkins]

We were getting on so well! Hon. Members in other parts of the Palace may be heatedly debating certain issues, but I was hoping, from the constructive speech of the right hon. Member for Tottenham, that we could find agreement. Indeed, I acknowledge that he kindly indicated that the orders will not be subject to a vote, for which I thank him.

I also thank the right hon. Gentleman for his work on the Lammy review, on which he continues to keep a laser-like focus. Only recently, in answer to an urgent question, the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham (Alex Chalk), updated the Chamber that, of the right hon. Gentleman’s recommendations, 16 have been completed, two have been rejected and 17 are in progress. I very much hope that he considers this measure to be one of the recommendations in progress that we hope to be finalised by the end of the year.

The hon. Member for Warley—

[John Spellar]

Right hon. Gentleman.

[Victoria Atkins]

Forgive me. The right hon. Gentleman took a slightly different approach in his advocacy, but we acknowledge the passion that he brings to the subject. I merely confirm and reassure him that his PMQs will have been considered carefully by the Prime Minister, and that the Government will of course continue to consider carefully the Supreme Court ruling. It is precisely because we have been careful to ensure that we are following the guidance in that ruling that we have arrived at these orders.

I will clarify a couple of points in relation to the case that was argued, because the right hon. Member for Warley put a great deal of emphasis on the fact that common sense would have dictated that the Government change the policy before the Supreme Court ruling on the four cases that were joined. In fact, in the case of P, her convictions stood to be disclosed under the multiple conviction rule. W wanted to teach English, but as actual bodily harm is on the specified offences list, it will always be disclosed, and indeed, that decision was upheld by the Supreme Court. The case of Gallagher was again a case of the multiple conviction rule, and will be corrected by virtue of these orders.

The fourth case, which I do not think the right hon. Gentleman mentioned, was that of G, who received two reprimands aged 13 for sexually assaulting two younger boys, both aged nine. G claimed that the acts were consensual. He would have had the reprimand disclosed under the serious offences rule. The Supreme Court was content with that course of action. I hope that shows that, although one may have an instinct as to how certain rules should be applied, the Government must none the less take each case and be clear as to the consequences, intended and unintended, of changing the safeguarding regime.

[John Spellar]

If we take the case of W, the Supreme Court would have said, “As we understand the law, as the law is, this is what you should do.” The Minister said that the Supreme Court gave approval for the way the Government acted in the case of W. It then falls back to the Minister to justify how a conditional discharge that a 16-year-old received after a fight between a number of boys on their way home from school in 1982, since when he has not offended, should blight his life in his 40s. That is not a job for the judge, who has to work on the basis of the law at that moment. Why did Ministers not take from that example that they should change the law?