Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2019

Lord Mackay of Clashfern Excerpts

Monday 20th May 2019 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I well understand the need for this order in respect of the application that has been made, but innovating the Rehabilitation of Offenders Act to any extent can be done only as a matter of principle. It cannot be done ad hoc for a particular inquiry. Therefore, what is the principle under which it would be allowable in respect of this inquiry? The answer is that it is required to fulfil the inquiry’s remit. Only that would justify it. The application says, “We cannot fulfil the remit we have been given unless we are allowed to examine this matter”.

In my submission, it is extremely difficult to have an ad hoc system. The system ought to be governed, as the Rehabilitation of Offenders Act is, by principle. It is very difficult not to agree with the principle where an inquiry has been set up by a responsible Minister under the Inquiries Act with terms of reference which require that a particular matter should be looked into for the inquiry’s remit to be fulfilled. That is the principle which enables the noble Baroness to agree that it should be granted in respect of the police inquiry but not in others. It seems to me that if it is justified in the police inquiry, the reason for that must be examined. The reason is that it is required to fulfil the remit of the inquiry.

I feel sad in a way that this instrument is necessary, because I thoroughly agree with the principles of the rehabilitation Act, which are extremely necessary and desirable. After all, people should have the benefit of forgiveness by society if they possibly can, and that is what this is about. On the other hand, once you have to justify an exception, the principle by which you justify it must be what you state as the basis of it. Therefore, while I understand the point that has been made, the way in which the instrument has been drafted makes it clear that this happens only in a case in which this exception to the Defamation Act is necessary to fulfil the inquiry’s remit.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I am a member of the Secondary Legislation Scrutiny Committee, which considered this order, under the chairmanship of the noble Lord, Lord Cunningham, who I am happy to see in his place. I understand clearly the reasons why the undercover policing inquiry—which, as it stretched back into history, had to look a long way back—needed to be able to consider early offences. However, as the committee inquired, and we were concerned about how this might be applied and how it might affect individuals, we began to see the extent to which this narrow point might affect individuals in the future in an unattractive way. Therefore, although it is dangerous to take on an ex-Lord Chancellor, I say to my noble and learned friend Lord Mackay that I do not reach his conclusion, which is that one change should justify a change across the piece.

A lot of the points that I wanted to make have already been made, so I shall be brief. However, first, these are public inquiries, so a person’s conviction, no matter how trivial or long ago, may well be revealed. We drew the attention of the MoJ to this, and its response to us, quoted in the third bullet point of our report, was quoted pretty extensively by my noble friend in her opening remarks. It is, perforce, fairly general, as it is bound to be, and somebody looking to it for protection might wonder how it will be interpreted in the event, given the wide powers the chairman has to interpret where the public interest and private interest overlap. The MoJ went on, in the fourth bullet point of our report, to say that of course a person had some redress in the sense that they could always apply for a judicial review of the decision. That appeared to be largely fanciful. The idea that an individual, swept up into an inquiry like this, would have the time, resource, energy and confidence to seek a judicial review is not realistic, particularly since it would have to happen quickly. Once the name is out, the point of the judicial review is completely lost.

This is not the only place in the regulations which shows a lack of realism. Paragraph 7.5 of the Explanatory Memorandum says:

“The disclosure and consideration of the spent convictions and cautions will not affect any ex-offender’s protection against disclosure when applying for work”.


However, once a person’s identity is revealed, inevitably their positioning in a job interview is worse, or at least affected. In real life, if a recruitment committee is looking at two people of equal skills, and one has a bit of a black mark—it may be a small one which happened a long time ago, but nevertheless it is a black mark—there will be an inevitable tendency for the recruitment committee to decide not to take a risk and choose the other candidate, to the detriment of the person who has been swept up by these regulations we are talking about today.

The Minister justified this by saying that there was a lack of parliamentary time and that there would be bureaucracy and inflexibility if we required individual SIs to allow for exceptions to the Inquiries Act. However, as has been pointed out, so far there have been 23 in 12 years, so one application is not a huge use of parliamentary time to allow for something which offers better protection to individual citizens, who may have done something quite stupid or silly when they were young—which of your Lordships could look in the mirror tomorrow morning and say, “I’ve never done anything silly”? In many cases, we just have not been caught doing it. We therefore need to think more clearly about this. The case for widening the remit, especially without offering better protection and anonymity to individuals whose offences may have been trivial and long ago, has not been effectively made.