Criminal Records Bill [HL]

Lord McNally Excerpts

2nd reading (Hansard): House of Lords
Friday 23rd February 2018 Lords Chamber

[Lord McNally (LD)]

My Lords, I do not think that the noble and learned Lord, Lord Brown, needs to apologise at all. It is extremely valuable to the case that we are trying to make to have a judge of his long experience expressing his views. As for the other speakers before me, each one was, in their different ways, a great influence on me when I had responsibilities in these areas. The country at large is grateful to them for the significant contribution that they have made to make our criminal justice system more civilised and more humane.

I await the response of the noble Lord, Lord Stevenson, on behalf of the Labour Party. I have always counted him as being on his party’s more liberal wing. However, the truth is that the Labour Government, as the noble Lord, Lord Ramsbotham, mentioned, did nothing after their 2002 review of the working of the 1974 Act. Indeed, during their period of office between 1997 and 2010, successive Labour Home Secretaries went out of their way to show that they were not woolly liberals and had a determination not to be outflanked by the Tories on being “tough on crime”. That is why nothing has been done: because the two major parties have been frozen by fear of the other exploiting any sign of a liberal move in this part of the criminal justice system. I look forward to the noble Lord’s contribution. I hope we can rely on him and the Labour Party for taking the Bill forward.

The case for a fundamental review of the workings of the criminal records system and subsequent legislation to implement its findings is ever more pressing and urgent. When I was at the Ministry of Justice between 2010 and 2017, first as a Minister and then as chairman of the Youth Justice Board, it was constantly impressed on me that policy must be research and evidence based. My experience in those seven years left me with a firm belief in three core directions of policy. The first was that early intervention works in preventing young people entering the criminal justice system. The second is that through-the-gate support works. I still remember talking to an ex-prisoner working on a Carillion building site—Carillion had a good reputation for employing ex-prisoners. He said to me, “You know sir, you cannot imagine how lonely you feel stood at a gate of a prison with your clothes in a bundle and £40 in your pocket and you don’t know where you’re going to live and you don’t know where you’re going to earn a living”. The attempts at through-the-gate support are entirely to be welcomed. The third is a mantra referred to earlier: a job, a home and a relationship work more than anything else in avoiding reoffending.

The proponents of the Bill argue that, far from it being woolly liberalism, it is overwhelmingly based on evidence from study after study, as the noble Lord, Lord Ramsbotham, pointed out. A criminal record is a major factor in preventing an ex-offender getting a job, and that inability to enter the world of work is a major factor in subsequent reoffending.

I was recently sent a booklet written by Sir John Timpson entitled How Prison Leavers can Find a Career. As the House will know, the Timpsons have a splendid record in employing ex-prisoners. The booklet lists some of the hurdles an ex-prisoner faces in housing, getting a bank account, a mortgage, credit cards or insurance and in finding a job. It gives the following statistics: 61% of prisoners reoffend after two years; 19% of prison leavers with a job reoffend after two years; and 3% of prison leavers who join Timpson reoffended. I would not claim that that is absolutely scientific, but it is interesting that one of the factors in the Timpson process is giving prison leavers not just a job but a range of other support as they get into the world of work. Let us be clear, measures that help offenders back into the world of work reduce crime and save the victims of crime from its trauma. There is hard-nosed, research-based evidence that a more intelligent use of criminal records can have a positive impact on levels of crime.

It would be a step forward if the Government carried out an independent, wide-ranging review of the 1974 Act. It would also be interesting to know whether the 2012 reforms I introduced through LASPO revealed any downsides: I know that the department has just conducted a post-legislative review of the LASPO Act. It was one of the fears of No. 10—it was not the Ministry of Justice, it was No. 10 that had cold feet about going further in 2012—but were there any adverse results of those modest reforms that we carried through, that small step towards liberalisation?

There are difficulties, of course. We have just finished our work in this House on the Data Protection Bill. There, we had to take account of the right to personal privacy and weigh that against the reality that modern technology has the capacity to track our every move and have instant recall of every incident and event from our dim and distant past. The right to be forgotten is difficult to deliver even for the most law-abiding citizen in our brave new world of artificial intelligence and data revolution. It is also true that reformers have to meet genuine public concerns that wiping the slate clean may result in the still-dangerous paedophile, the partner abuser, rapist or others who remain a danger to society disappearing into a maw of anonymity, only to offend again. That is why any management of criminal records includes the list of exclusions from its provisions set out in new subsection (1) in Clause 1.

Will the Minister clarify how protections provided by the domestic violence disclosure scheme—Clare’s law—would be affected by the measures proposed in the Bill? How would the Bill affect the other sexual and violent crimes which the tabloids always imply would be given anonymity by its passing? It is significant that all the major reports referred to by the noble Lord, Lord Ramsbotham, call for reform along the lines proposed by the Bill, particularly as it applies to offenders under the age of 18—children in the eyes of the law. During my three years as chair of the YJB there was ample evidence of the overhang from offences committed often when the offender was in early teens that could continue to blight prospects into adulthood. A key element of the Carlile report—I know it was funded by Sieff, but it is known as the Carlile report, and rightly so—into the treatment of young offenders by the criminal justice system was, as we have heard, that with suitable safeguards, an ability to wipe the slate clean at 18 should be provided. My successor as chair of the YJB, Charlie Taylor, wrote a report showing that a childhood criminal record, even for a relatively minor offence or misdemeanour, can have severe implications during childhood and beyond into adulthood; this can affect an individual’s education, employment and other prospects for years to come.

I am sure we all wish David Gauke well in his new responsibilities. He is our sixth Justice Secretary since 2010; I wonder whether there is a lesson to be learned there. I hope he will accept that there is an overwhelming case for an independent inquiry into an Act which is now 44 years old. We need to assess how the latest technologies impact on or undermine the workings of the Act, and to examine how the shadow of a criminal record can be lifted while retaining public confidence. Our aim must be to bring forward legislation fit for a 21st-century purpose and which avoids or minimises the unnecessary or disproportionate impact of criminal records on those who have genuinely put their criminal past behind them, while continuing to protect society from those who remain a danger and a threat.

On another Friday a few weeks ago, the noble Lord, Lord Snape, observed about this “last business on a Friday” slot that all that could be expected from the responding Minister would be for them to say “as little as possible” and not leave any hostages to fortune. I hope we will get more from the Minister today and that she will welcome the Bill as an overdue step in penal reform, which will help those trapped by the long shadow of a criminal conviction but also cut the reoffending rate, with benefits to victims and society as a whole, who bear the trauma and cost of reoffending. I wish the Bill well.