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

Victoria Atkins Excerpts

Monday 14th September 2020 General Committees

[The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)]

I beg to move,

That the Committee has considered the draft Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020.

[The Chair]

With this it will be convenient to consider the draft Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020.

[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.

[Edward Timpson (Eddisbury) (Con)]

I very much welcome these orders—not least for people who had a difficult childhood, potentially in care, and who carried with them through to adulthood a criminal history that has followed them ever since, potentially disproportionately, for the reasons that we have heard. Can the Minister enlighten me about the impact on businesses? Have the Government considered whether the orders will give businesses more reasons to look harder at the potential of employing people who in the past would have had their criminal history disclosed?

[Victoria Atkins]

I thank my hon. Friend. He was the Minister of State with responsibility for children and families over many years—I think some six or seven years.

[Edward Timpson]

Five.

[Victoria Atkins]

Forgive me, five years. My Hon. Friend had an incredibly positive effect on the lives of many thousands of children across our country, including the most vulnerable. He is absolutely right to raise the issue of businesses, because the disclosure regime—both the order that we are dealing with, in terms of people having to disclose their convictions, and the Disclosure and Barring Service regime itself—is about putting the responsibility for making considered employment decisions on employers. With the exception of the barred list, it is not for the DBS to say, “This person shouldn’t be employed in this particular role.” It is for the employer to make that assessment.

Frankly, I hope that having this debate and the debates we have in the House and in the media really helps to highlight the vital role that employers play in giving young people a second chance, which we all know is so key to their rehabilitating and moving on with their lives. As I say, I am very pleased that the orders will have the effect that, unless affected by other disclosure rules, youth cautions and multiple convictions no longer have to be disclosed when a person is asked about them, and they will no longer be subject to automatic disclosure on standard and enhanced criminal record certificates.

I turn now to the technical parts of the orders. The draft Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020 amends articles 2(2) and (4) of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 to change the definition of a “protected caution” to include all those given where a person was under 18 at the time. The order also amends articles 2(5) and (6) to change the definition of a “protected conviction” by removing the multiple conviction rule exemption from the scope of the definition. The effect of the order is that an individual with a youth reprimand, warning or caution, or those with more than one conviction, will no longer have to self-disclose their criminal record when applying for a role that is eligible for a standard or enhanced DBS check, unless one of the other disclosure rules in engaged.

The draft Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020 amends the definition of “relevant matter” by excluding the multiple conviction rule and youth cautions, including reprimands and warnings, from the scope of that definition. A “relevant matter” is a matter that must be disclosed by the Disclosure and Barring Service in response to an application for a standard or enhanced criminal record certificate. The effect of the order is that, where not affected by any other rule, youth reprimands, warnings and cautions and multiple convictions will no longer be subject to automatic disclosure in criminal record certificates issued by the DBS.

I emphasise, however, that the Government are clear on their responsibilities to safeguard the public, particularly children and vulnerable adults. Where an offence has been committed, we will want to ensure that the public are adequately safeguarded by enabling employers to make informed recruitment decisions through the disclosure of appropriate and relevant information, particularly for roles that involve close contact with children and vulnerable adults or a high level of public trust.

Convictions and adult cautions will still be disclosed on DBS certificates if they are recent; if they were received for a specified violent or sexual offence; or if a custodial sentence was imposed. Furthermore, the statutory disclosure regime enables chief police officers to disclose any information they consider to be relevant to the purpose of the certificate and in the chief officer’s opinion ought to be included in the certificate. To that end, we intend to publish the associated Home Office statutory guidance for the police alongside this legislative change, to reflect that information about convictions and cautions not automatically disclosed under the rules can, in principle, be included in a certificate in the same way as other police information reasonably believed to be relevant for the purpose for which the certificate is sought.

We are confident that these changes, if agreed, will still enable employers to make informed recruitment decisions, but in a way that enables those who committed minor offences and who offended long ago to move away from their past and on with their lives. This will particularly benefit those with childhood cautions.

I hope the Committee will support the two orders to ensure compatibility with article 8 while continuing to support effective protection for children and vulnerable adults. I commend these orders to the Committee.

--- Later in debate ---

[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?

--- Later in debate ---

[Victoria Atkins]

I am so grateful to the right hon. Gentleman because, although I am not sure that he realises it, he is supporting my argument, which is that the national framework that applies across England and Wales has to be drafted in such a way that is compatible with the law, and indeed the Supreme Court upheld that element of the regime. Of course, the case-by-case application of the regime is a matter for employers—that is the point made by my hon. Friend the Member for Eddisbury. Under this regime, in very vulnerable cases, and with the exception of the barred list, it is a matter for employers.

I emphasise that this does not apply to every single job out there; it applies to those that fall under the criteria of the regime—namely, jobs that deal with the most vulnerable in our society and that require high levels of trust and responsibility, including the security industry, for example. The Supreme Court has done exactly as it should have by reviewing the regime and saying that the specified offences list is within the rule of the law and the ECHR, so it is for employers to apply it to the individual cases. As the right hon. Gentleman for Warley knows full well, we in this place—with the best will in the world—cannot possibly imagine every which way that people conduct their lives or what misfortunes and troubles they may have, so we have to provide a framework that employers can apply and apply well.

The right hon. Gentleman for Warley mentioned the delay. To reassure the Committee, part of the work that we have been doing since the Supreme Court judgment has been to understand the likely effects of those changes. Analysts in the Home Office undertook detailed analysis of how the rule changes, if applied retrospectively, would have affected applicants for DBS certificates. The year 2015-16 was chosen because that was the last year for which we had full records at the time that the report was researched.

A peer-reviewed analytical report, which was published on 9 September, summarises the main results of the work. It shows that the changes affected a higher proportion of applicants for DBS certificates who received convictions or cautions while under the age of 18 than of applicants who received convictions fully during their adult lives. Some 85% of applicants with youth convictions or cautions would see at least one offence removed from their list of disclosed offences, while 32% see all their convictions and cautions removed. I give those figures as an indication of the thought and care that has gone into bringing the orders forward.

The right hon. Member for Tottenham urged the Government to go further. He will know that we are publishing the sentencing White Paper, which will contain further proposals for reform of the Rehabilitation of Offenders Act 1974 where the rules apply to non-sensitive roles. We are supportive of reducing the number of people who have previously offended who are required to disclose their convictions as part of basic employment checks. Of course, we need to consider safeguarding concerns, but I very much look forward to contributions from him and others as the sentencing White Paper is analysed and discussed.

The right hon. Gentleman for Tottenham also raised childhood rehabilitation periods, which will be considered along with potential changes to adult rehabilitation periods under the 1974 Act, where the rules apply to non-sensitive roles. Ministry of Justice officials have met charities with an interest in supporting children and adults who have offended in the past, as well as employer representatives, to discuss our approach. Again, the sentencing White Paper is very much part of that landscape. We have of course taken into consideration recommendations on this issue from the Justice Committee and from other reports.

I hope that I have responded to the questions that have been posed this afternoon. We are confident that the regime will still help employers to make informed recruitment decisions, particularly for roles involving children and vulnerable adults, but in a way that now enables those with old and minor offences to move away from their pasts. I commend the draft instruments to the Committee.

Question put and agreed to.

Resolved,

That the Committee has considered the 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

Resolved,

That the Committee has considered the draft Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020.—(Victoria Atkins.)