Rehabilitation of Offenders (Amendment) Bill [HL]

Lord Ramsbotham Excerpts

2nd reading (Hansard): House of Lords
Friday 27th January 2017 Lords Chamber

Moved by

[Lord Ramsbotham]

That the Bill be read a second time.

[Lord Ramsbotham (CB)]

My Lords, I ask noble Lords to note the date of the Rehabilitation of Offenders Act that my Bill seeks to amend. Much has happened in the criminal justice system during the 43 years since then which makes parts of it obsolescent, if not worse, and explains why both the recent Labour and coalition Governments proposed its review. The problem with Private Members’ Bills is that they can really tackle only one issue at a time and depend on being granted time by a Government, if they are to progress beyond Second Reading. So pressing is the need to reform a most important aid to the successful resettlement of prisoners into the community that, following the example of the noble Lord, Lord Dholakia, whom I salute for his tireless pursuit of reform over many years, and in anticipation of the reforms that Michael Gove, when he was Secretary of State for Justice, was expected to announce, I tabled my Bill last May, acknowledging that it was by no means complete in setting out what needs to be done.

Then, in November last year, Liz Truss, the present Justice Secretary, published Prison Safety and Reform, the first White Paper on prisons since 1991, which she described as,

“a blueprint for the biggest overhaul of our prisons in a generation”.

On reading this, particularly the part about rehabilitation, I noted these two aspirations:

“We need a fundamental shift in approach so we are focused on preparing offenders for future employment in modern jobs. We need to provide prisoners with skills for which there is a real demand from employers”.


If these aspirations are to have a hope of being realised it is important to ensure that those skills can be employed, which is precisely the purpose of the Act. In consequence, I have completely changed my approach, believing that an essential overhaul could be more speedily achieved if included in the White Paper implementation process, rather than being left to a private Member to tackle small parts separately.

My introduction to my Bill is therefore nothing other than a plea to the Minister to accept my contention, in the hope that amendment of the Act will henceforward be taken on by government. If he does not, I will continue to introduce my proposals in the form of successive Bills, which means years of undue delay. I must apologise to the House for, in my enthusiasm to seize what I saw as a possible opportunity for early achievement of my aim, failing to correct a number of factual errors, particularly in Table A accompanying Clause 1. I am also conscious that, because policy responsibility for criminal record disclosure legislation straddles the Home Office and the Ministry of Justice, reform will involve cross-departmental action, which it is beyond the pay grade of a private Member of this House to conduct.

The Act which my Bill seeks to amend was most ably described in 2015 by the noble Lord, Lord Faulks, then Minister of State in the Ministry of Justice, in his opening remarks in Grand Committee on a report from the Joint Committee on Statutory Instruments on the exceptions order to the 1975 Act. He said that,

“the primary legislation concerning the disclosure of criminal convictions and cautions … seeks to help the reintegration into society of offenders who have put their criminal past behind them. It does this by declaring certain convictions, after a specified period, as ‘spent’. Once a conviction has become spent, an individual is not required to declare it when, for example, entering most employment or applying for insurance”.—[Official Report, 9/2/15; col. GC 259.]

The Act was criticised for many years, on the grounds that the length of its rehabilitation periods and the exclusion of prison sentences of over 30 months from its scope did not do enough to rehabilitate offenders. Consequently, following particularly trenchant criticism from the Better Regulation Task Force in 1999, the Labour Government published a review entitled Breaking the Circle in 2002, following which they launched a consultation. In their response to that, published a year later, they said that they planned to publish a draft Bill containing their proposals for pre-legislative scrutiny. However, no draft Bill emerged, the Government claiming that, following the Soham murders, they could not set any timescale for changing the law, which I have always regarded as a lost opportunity.

In his foreword to Breaking the Circle, the noble and learned Lord, Lord Falconer, wrote:

“Removing the barriers to employment for ex-offenders must be a key element of any rehabilitation strategy”.


The report examined the,

“actions needed by Government, employers, and the public to support the resettlement efforts of those offenders who wanted to lead law-abiding lives, and to put their past behind them”.

Evidence proved that employment could reduce reoffending by between one-third and one half and that a criminal record seriously diminished employment opportunities.

The noble and learned Lord, Lord Falconer, had the importance of the Act to any rehabilitation strategy absolutely right, and in 2010 the coalition Government raised the hopes of those of us who sought its reform by including its revision in the consultation document Breaking the Cycle. The Government said that they would review the operation of the Act in line with their announced aim of putting more offenders “on the right path”, by enabling them to

“become law-abiding citizens and contribute to society”,

by finding a job and a home.

Acknowledging that the Act was overly complex and confusing, leading to many people not realising that it applied to them, Breaking the Cycle described it,

“as being inconsistent with contemporary sentencing practice”.

Therefore the Government said that they were taking a fundamental look at the objectives of the Act and at how it could be reformed, which included consideration of broadening its scope so that it covered all offenders who received determinate sentences and reductions to the length of rehabilitation periods.

In the event, there was no mention of the Act in the Government’s response to the consultation. To be fair, however, the Government tabled a new clause to their Legal Aid, Sentencing and Punishment of Offenders Act 2012, which reformed the Act in two key ways. First, its scope was extended to cover custodial sentences of up to 48 months and, secondly, the length of some of the rehabilitation periods was reduced. Surprisingly, although the remainder of the provisions in the Bill were enacted in March 2013, this clause was not brought into force until a year later.

Since I tabled my Bill, I have been in constant touch with two organisations which have been working on reform of the Act for years: Unlock, in which I should declare an interest as its president, and the Standing Committee for Youth Justice, which, in March last year, published an outstanding report, Growing Up, Moving On: International Treatment of Childhood Criminal Records. I have also spoken with the Minister for Prisons, Mr Sam Gyimah, and the Minister for Youth Justice, Dr Phillip Lee, encouraging both to adopt reform of the Act as part of the White Paper overhaul process. I have also spoken with the noble Earl, Lord Howe, and discussed the errors in table A, which I propose to correct by amendment in Committee.

That will not be the only amendment that I will be tabling. In the context of,

“the biggest overhaul of our prisons in a generation”’,

my first concern is with the current title of the Act. “Rehabilitation of Offenders” is misleading, because the Act does not say anything about how rehabilitation should be conducted but is all about criminal record disclosure. Why not call it the “Disclosure of Criminal Records Act”? By the same token, I also dislike the term “rehabilitation periods”, as they are better described as “disclosure periods”.

I now move on to the tone of the Bill, if Bills have a tone. The tone of the present legislation has been described as “a licence to lie” for people with convictions. Rather, I believe that it should be that no one released from prison should face a lifetime of disclosure, without the prospect of review. Asking an applicant, or employee, about spent criminal convictions, unless authorised to do so in excepted professions and occupations, should be made an offence. The 48-month spent limit should be removed, with determinate sentences of over four years becoming spent four years from the end of the sentence, as proposed by the Government in their 2003 response to Breaking the Circle. Those serving an indeterminate sentence should be given the opportunity to achieve rehabilitated status through a process of evidence submission to a criminal records tribunal administered by members of the judiciary. As an incentive to desist from crime, anyone recalled to prison would automatically have their disclosure period reset.

On the adult side, three other areas should be looked at. The first is motoring offences, which currently take five years to become spent, leading to such absurdities that an eight-month sentence, for actual bodily harm, will be spent before a fixed penalty notice for speeding. The Ministry of Justice and the Department of Transport say that they are working on this but, since the 2014 LASPO reforms, all has gone quiet. The second is court orders, which currently still have an impact when a conviction becomes spent. An ancillary order, such as a restraining or sexual offence order, can lengthen a rehabilitation period despite not forming part of a sentence. This results in some offences remaining unspent for many years, sometimes indefinitely. Finally, there are compensation orders, which, currently, have to be paid in full before the order is spent. The whole compensation order system is ineffective and riddled with mistakes, with neither courts nor the police maintaining proper records of payment, so why not the same fixed one-year period as fines?

I move on to childhood criminal records. Breaking the Circle contained the following:

“Consideration should be given to the development of criteria to identify young offenders convicted of minor and non-persistent crime so that their records may be wiped clean for the purposes of employment … at age 18”.


I have told the House before that, when inspecting the prisons in Barbados 16 years ago, I found just such a scheme in operation, with only the most serious offences carried forward, and have frequently asked, “If Barbados can, why can’t we?”.

The main change that is needed is to ensure that, at age 18, a child’s custodial sentence qualifies for a procedure leading to the possibility of it becoming spent, except of course life sentences and those for very serious offences. Youth rehabilitation orders should become spent as soon as an order is finished, bringing them in line with referral order periods. Detention and training orders should become spent six months after the order is finished rather than, as now, those of less than six months not being spent for 18 months, and those of over six months not for two years.

It has also been suggested that all under-18 custodial sentences greater than two years but less than four should become spent two years after the end of a sentence, and those greater than four years and less than life—which, currently, can never be spent—seven years after. There should also be consideration of whether it is appropriate that the same threshold for custodial sentences should apply to both children and adults.

Included in the overhaul of the Act should be a review of the accompanying Rehabilitation of Offenders Act (Exceptions) Order 1975. In particular, the Government should establish an effective system for identifying and stopping ineligible checks, which too many of the 4 million checks each year currently are.

The Ministry of Justice should lay down clear criteria regarding the eligibility of applications. The Disclosure and Barring Service should publish and maintain accurate guidance on its processes. Together, the Government and the DBS should then take action against employers that do not take reasonable steps to ensure that checks they apply for are eligible. Regrettably, although knowingly carrying out an illegal check is a criminal offence under the Police Act 1997, to date there have been no prosecutions as the DBS does not see itself as an enforcement body.

I hope I have made my case for an amendment, amounting to overhaul of the Rehabilitation of Offenders Act 1974, being adopted by the Government as part of the overhaul of our prisons, rather than apart from that process. Any rehabilitation programme worth its salt should include a disclosure scheme devised specifically to assist the employment process. The ineffectiveness of the existing Act has been compounded by the many changes since 1974, including sentence inflation, that have shifted the way in which offenders are treated by the criminal justice system in both sentencing and rehabilitation, rendering it unfit for purpose. Of course the protection of the public must remain the paramount driver of any assessment of risk, which is why certain types of employment should be excepted from some of the limitations on disclosure. But the scheme, which must be clearly explained to both employers and offenders so that they understand it, should apply retrospectively to all ex-offenders and be backed by a Criminal Records Tribunal. I beg to move.

--- Later in debate ---

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I thank the noble Lord, Lord Ramsbotham, for bringing this matter back for debate in the House today and congratulate the noble Baroness, Lady Chakrabarti, on what I think is her first contribution to a Bill before this House. The Government share the noble Lord’s support for individuals with criminal records who wish to turn their lives around, and securing a job is often the first step on that journey. The Rehabilitation of Offenders Act 1974 exists primarily to support the rehabilitation into employment of reformed offenders who have stayed on the right side of the law.

Perhaps I may provide a little background to the 1974 Act and how it can support ex-offenders. Under the Act, following a specified period of time which varies according to the disposal administered or sentence passed, most convictions resulting in custodial sentences of up to and including four years become spent. Where a conviction has become spent, the offender is treated as rehabilitated in respect of that offence and is not obliged to declare it for most purposes. This could include when applying for employment, but also when applying for insurance cover or a bank loan. However, the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 lists areas of activity and proceedings which are exceptions to the 1974 Act. This means that the employer or some other relevant body is entitled to ask for and take into account certain details of a person’s spent cautions and convictions. These activities are usually concerned with working with children or other people in vulnerable circumstances, or where sensitive information is handled and there is a risk to the public of an abuse of trust. For example, the exceptions order covers teachers, prison staff, healthcare professionals and employees of the Crown Prosecution Service.

Where an occupation is listed on the exceptions order, an employer is eligible for a standard or enhanced Disclosure and Barring Service check that will contain details of certain spent and unspent convictions for the individual in question. Such DBS checks, as they are known, fall under the responsibilities of the Home Office. However, I would like to respond to certain observations made by the noble Lord, Lord Ramsbotham. Thorough guidance on the DBS application process, eligibility for checks, and the disputes mechanism are available on the DBS website. It also includes a new electronic eligibility tool which can help individuals to check whether a particular role is eligible for a DBS check, so that information is publicly available. The DBS checks are submitted via a registered body which is responsible for confirming that a particular role is eligible for a DBS check, and a statutory code of practice is already in place setting out the obligations that apply to those registered bodies. Should an applicant feel that they have been asked to undertake a DBS check in relation to a role that is not eligible, they can ask the DBS to investigate it. The DBS provides support and guidance for registered bodies and will take steps to suspend, and where necessary cancel, registered bodies that do not comply with the code of practice. So the DBS seeks to assure people that registered bodies are compliant with the existing code of practice.

The noble Baroness, Lady Chakrabarti, referred to the 1974 Act as outdated but as the noble Lord, Lord McNally, pointed out, it was in fact reformed and amended by the rehabilitation provisions in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which came into force in March 2014. As a consequence, a conviction resulting in a custodial sentence of four years or less, unless it is a public protection sentence, may now become spent. Previously, only convictions resulting in custodial sentences of 13 months or less could become spent, so a material change has been made. At the same time the coalition Government also reduced most rehabilitation periods. The present Government believe that these reforms are proportionate and that we have struck the correct balance between protecting the public and helping ex-offenders to put their criminal pasts behind them.

I turn to the specific proposals the noble Lord included in the Bill. First, we do not consider the proposals to amend the rehabilitation periods for offences necessary. It does not appear that the proposed rehabilitation periods take account of the 2014 reforms I just mentioned. As such, the Bill attempts to amend repealed legislation.

The Government have also introduced additional reforms to help improve the opportunities available to those with criminal records. In response to a Court of Appeal judgment in May 2013 we amended the exceptions order to the Act to enable old and minor convictions, cautions, reprimands and warnings to be filtered so that they do not automatically appear on a criminal record certificate. It remains the case that cautions and convictions for specified sexual and violent offences, and certain other offences relating to safeguarding vulnerable people, continue to be subject to disclosure, as do the most serious convictions for any offence that resulted in custodial sentences.

For other non-specified offences, however, cautions received as an adult do not need to be disclosed after a period of six years; for a conviction it is 11 years. In other words they are “filtered” out from the relevant certificates. This is dependent on the offence being the only conviction on an individual’s record. This addresses a point made by the noble Baroness, Lady Bakewell, on someone committing an offence in their youth and then finding at the age of 60 that this is necessarily disclosed. There is a filtering policy and process in place that means that such a minor offence that she alluded to cannot be taken into account by an employer. These periods are halved when the individual concerned was aged under 18 years at the time of the relevant offence. Again, youth offending is addressed in that context.

The second area addressed by the noble Lord’s Bill is the specific rehabilitation periods. The Bill would allow community orders to become spent after 12 months or, in the case of young offenders, six months. Such orders may last for up to three years, so this could result in many such orders becoming spent before they have been served. I am sure that was the intention. It may be that the intention is to apply these periods after the relevant period of three years has expired. Again, there is an issue there. Community orders are available for almost all imprisonable offences—obviously in appropriate cases—and it may not always be appropriate for offences resulting in community disposals to become non-disclosable as quickly as the Bill suggests.

As I mentioned, the Government have recently reformed this legislation. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 introduced reforms that commenced in 2014. The Government recognised in the interim that certain forms of sentencing practice had become more severe, as suggested by the noble Baroness, Lady Chakrabarti, and that as a consequence fewer ex-offenders would benefit from the original provisions of the 1974 Act. That is why the revised rehabilitation periods take account of the punitive weight of the disposal, and hence the likely seriousness of the offending. They also take account of the reoffending data, which show the length of time for which people are most at risk of reoffending. We consider that those amendments, which were accepted by Parliament, bring about the necessary proportionality to the existing legislation.

Thirdly, the noble Lord’s Bill seeks to allow determinate custodial sentences of any length to become spent. I recognise that he would like the current legislation to go further by enabling determinate custodial sentences of any length to become spent, but the Government consider that the present amendments to the Act that came into force in 2014 achieve the correct balance between rehabilitation of offenders and public protection. This is a two-sided coin and these issues have to be balanced. We do not feel there is a case for the law to go further at this stage.

Reference is also made in the Bill to the service justice system. Officials in the Ministry of Defence have highlighted a number of inaccuracies in the draft Bill from an Armed Forces perspective. There are out-of-date references to the service justice system, in that the Bill refers to the Army Act 1955, the RAF Act 1955 and the Navy Discipline Act 1975.

[Lord Ramsbotham]

Before the Minister goes on, I mentioned that I had met with the noble Earl, Lord Howe, and discussed this, so I know that they are there. They were not corrected by me but I know what they are.

[Lord Keen of Elie]

I am obliged that the noble Lord knows what they are; I wanted to advise the rest of the House, since other noble Lords may not be as familiar with these matters as the noble Lord has become following his discussions with my noble friend Lord Howe. I am concerned with the underlying thrust of the noble Lord’s Bill, not with matters of minor detail, and I quite appreciate that in the context of a Private Member’s Bill it may often be of assistance to have discussions about how apparently repealed legislation can be removed from a Bill and the Bill improved. I appreciate that. I am not attempting to make some ad hominem observation or criticism of the noble Lord at all; I just want to underline that the proposals made regarding the Armed Forces are skewed.

The point I was coming to is that the Armed Forces Act 2006 removed many forms of disposal that were previously used by the Armed Forces. In fact, the reforms to the Rehabilitation of Offenders Act in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 have been adopted by the Armed Forces, so we have the same issues arising both for the Armed Forces and elsewhere.

In summary, the Government understand the noble Lord’s concerns and we are, of course, committed to helping ex-offenders who wish to make a fresh start and put their criminal history behind them. We are desperately anxious to ensure that people do not simply leave the prison gate one day and return another. Despite this, we do not support the noble Lord’s Bill, given the reasons I have already outlined. I note the noble Lord’s views, I understand them and I would welcome the opportunity to engage further with him about how we can increase the support that is available to ex-offenders. We have already made some progress in this area.

I acknowledge that these matters are all interconnected. Rehabilitation, disclosure, opportunity for education within prison, opportunity for employment as people go through the gate from prison—all these things are linked. Since 2016, we have been running a campaign to encourage more businesses to provide training and work opportunities for offenders and ex-offenders. This has been carried out in close collaboration with the Department for Work and Pensions See Potential campaign. The noble Lord, Lord McNally, cited a number of instances where employers have come forward. This underlines the point made by the noble Lord, Lord Berkeley, that our prison system has to provide hope and opportunity, not just punishment.

The present campaign emphasises the general advantage to society of securing employment for ex-offenders and thereby reducing reoffending and unemployment. I have other examples, further to those mentioned by the noble Lord, Lord McNally. Amey, the large engineering firm, is now expressly training offenders and then recruiting ex-offenders into its workforce. Bounce Back is a construction training organisation that employs people on release from prison and, indeed, is now training them in construction skills during their period of imprisonment—albeit some prison governors have become slightly concerned at the sight of prisoners erecting scaffolding in the prison yard. It is important that such skills are made available. I understand the challenges on the present prison estate, which is why that, too, is being addressed at the present time. It is also why we have sought to give further responsibility to individual prison governors to determine how they take forward issues of prison education and prison education funding within their own institutions in order to secure the best outcomes.

It is our hope, now that the matter of education has moved from the Department for Education to the Ministry of Justice, that it can be expanded and improved within the prison estate. But, of course, expanding opportunity within the prison estate can be done only on the foundations of an improved prison estate itself. That is why the Government have made such a commitment to improving the physical prison estate in order to achieve greater and better results so far as recidivism is concerned, so far as opportunity is concerned and so far as the future lives of former offenders are concerned.

We are concerned to turn lives around and we do not wish to see them turned around and back to prison. We wish to see people given the opportunity for employment, given the opportunity for education and given the opportunity to change their lives. At this time we do not consider that the proposals of the Bill are appropriate. Nevertheless, I thank the noble Lord, and indeed all noble Lords, for their contributions to this debate.

[Lord Ramsbotham]

My Lords, I thank all those who have taken part. In particular I thank the noble Baroness, Lady Chakrabarti, for her kind words, and welcome her to her first appearance on the Front Bench, which I should have done beforehand. Over the years I am sure that many of us came to welcome the briefs that were provided from Liberty when she was directing that organisation. We hope that that tradition will continue and we look forward to many contributions from her in her current position.

I have to say that I am extremely disappointed by the Minister’s response. When I represented the Bill as having been in close contact with a number of organisations—particularly Unlock, of which I am president, which is the national association of ex-offenders and therefore in touch with the difficulties that they are experiencing day after day—they did not put their concerns about the Bill lightly. As I said, these organisations and many of the ex-offenders do not understand all the conditions. The Minister may have mentioned that the DBS had a website, and so on. How many of them have access to that? I also said that employers did not understand, which was why there were so many ineligible requests for disclosure being made by employers. I made a particular plea for a mechanism to deal with that ineligibility, which the Minister did not answer.

[Lord Keen of Elie]

With great respect to the noble Lord, I pointed out that applications for DBS checks have to be made through a registered body, and that those registered bodies are subject to a published code of practice.

[Lord Ramsbotham]

But I remind the Minister that that is not happening. Even though there is the possibility of prosecuting people for making wrong approaches, it has never happened because the DBS says that it is not an enforcement body. Therefore, there is something missing.

I am very glad for the support for my proposal around the House. What I am suggesting is that in the context of the White Paper, it would be sensible for the Government to look at all aspects of resettlement, including this one. My offer to the Minister is that all those who have raised problems on the outside are more than willing to take part in that process. I hope that their evidence will not be taken lightly, because it has been drawn up over many years. As the noble Lord, Lord McNally, said, the list in Section 139 of the Legal Aid, Sentencing and Punishment of Offenders Act, in response to the two consultations, Breaking the Cycle and Breaking the Circle, was all that the coalition Government could get through. There were many others—and, indeed, are many others—and some of them have been lying dormant since 2002. It is time that they were brought forward.

As I gave notice, I intend to table amendments in Committee. In the interim, I hope that the Minister will reconsider his rejection of what is on offer, because the issue is far too serious to be let go with the prospect of annual Bills and annual making progress on small points.

Bill read a second time and committed to Committee of the Whole House.