Disclosure of Youth Criminal Records

Debate between Yasmin Qureshi and Robert Neill

Thursday 28th March 2019 Westminster Hall

[Yasmin Qureshi (Bolton South East) (Lab)]

It is a pleasure to serve under your chairmanship, Sir David. I thank the Justice Committee, its Chair and the hon. and right hon. Members who serve on it for the excellent report they have published. I also thank the Committee and House staff who do the painstaking work of writing the report and the recommendations. I was a member of the Committee from 2010 to 2015. I can honestly and sincerely say that today’s debate has been one of the best I have attended in the nine years that I have been in Parliament. Every Member of Parliament who has spoken today has spoken with real passion, conviction and sincerity and with a real desire to change a very important aspect of people’s lives. It will be a pleasure to be able to say that we were in the debate today.

Before I go into the details of my speech, I want to acknowledge all the Members who have contributed. The hon. Member for Bromley and Chislehurst (Robert Neill) eloquently went through the whole report and explained in detail for us, and those watching, what the report said. I thank my right hon. Friend the Member for Tottenham (Mr Lammy) for his review, which I will refer to later in my speech, and for the work that he has done. The report emphasises the high proportion of BAME children in the criminal justice system. The hon. Member for Henley (John Howell) talked about the impact of housing. Let’s face it: to have a decent life you need a decent home to live in. That is such an important factor.

My hon. Friend the Member for Lewisham West and Penge (Ellie Reeves) talked about the importance of employment and jobs, without which it is difficult to survive in life. I am so pleased that the hon. Member for Banbury (Victoria Prentis) was able to hotfoot it from the Chamber. Clearly, with the work that she does, she is in the thick of it, as they say. Her contribution was absolutely brilliant. She went through the whole system and what needs to change. Like my right hon. Friend the Member for Tottenham, she eloquently put the case for race and class and the effect that it has on whether people end up in the criminal justice system. The hon. Member for Cheltenham (Alex Chalk) alluded to the issue of class and he also made a succinct point. I understand that everybody has commitments and I want to acknowledge their contributions.

My right hon. Friend the Member for Delyn (David Hanson), a former Justice Minister, talked about education and employment, which are crucial. He touched on whether a conviction should be disclosed when someone applies for a job or whether it should be left to the end of the process, after someone has been considered on merit. That is an important point. Last but not least, my hon. Friend the Member for St Helens South and Whiston (Ms Rimmer) rightly talked about children in care. A lot of the children also have mental health issues and autism. We know that the child and adolescent mental health services in our local authorities have long waiting lists for children to be assessed. As she was speaking, I was reminded of a case that I had when I was a prosecutor many moons ago.

A young man of 14 or 15 was in a care home. He attended court to give evidence against his mother’s ex-boyfriend, who had been charged with indecent assault on his younger sister. He turned up at the court and, on seeing him, his mother went over to him and punched him in the stomach twice, and he burst into tears. He went back to the care home and set light to a curtain. He quickly realised what he had done and tried to put it out, but the fire brigade was called. That goes to exactly the point that my hon. Friend the Member for St Helens South and Whiston talked about. Because the young man was in a care home, the police and prosecuting authorities got involved. I wanted to recommend no further action on the grounds of public interest. Sadly, my boss overruled me and said that we must proceed, so we came to a compromise and she at least agreed to a caution. That illustrates the point that if that incident had happened at home, the outcome would have been different; sometimes when children do things in anger at home, nothing happens.

For me, listening to all the speeches today has been important, and I hope the Minister and the civil servants are paying attention. I will now return to my scripted speech.

At the heart of any proper youth justice system is an attempt to rehabilitate an offending young person while protecting their fellow members of society. Although those two aims do not need to be opposed to each other, a knotty issue they throw up is deciding what information those with convictions and cautions must disclose later in life. In many cases some disclosure is essential to ensure that offenders are not exposed to vulnerable people in dangerous circumstances. Unfortunately, it is increasingly clear that our balancing act between personal rehabilitation and societal protection is worryingly skewed in favour of the latter. In fact, our wrong-headed, punitive approach means that we might be shooting ourselves in the foot, as forcing people to disclose largely irrelevant information years after a crime often deepens pre-existing social divides, as we have heard.

As was noted in both the 2017 Justice Committee report and the Government’s response last year, forcing people to disclose their criminal record is a power that needs to be carefully applied. Past convictions can have an impact on a person’s capacity to find housing or to take up a place at an educational institution, and can have an impact on finding work. Sadly, by forcing people to reveal past convictions years after they have served their time, we throw up barriers and prevent them from becoming fully integrated members of society. For some, it leads to long periods on benefits, at significant cost to the state. Even worse, many return to the kinds of criminal activity that we should have provided every opportunity for them to escape, and end up in prison, at even greater cost to the national purse. Locking individuals into negative patterns is particularly foolish and cruel when they committed crimes as young people.

We are well out of line with other countries internationally. A 2016 report by the Standing Committee for Youth Justice compared the treatment of childhood criminal records across Europe and America and found that the system in England and Wales was distinctly more punitive. A criminal record acquired by a child in England affects them longer and in more restrictive ways than in any of the other jurisdictions studied. Not only do we criminalise an unusually high proportion of children, but the processes by which those criminal records can be hidden from employers are arcane and inflexible.

The 2017 Justice Committee review provided persuasive justification for wide-scale reform, listing 21 conclusions and recommendations. Although the Government’s response addressed each of the recommendations, I am afraid that in too many areas they chose to kick the can down the road. One justification for that was that they chose to take their case to the Supreme Court to defend our system of disclosures, but, as my right hon. Friend the Member for Tottenham said, the Government or the MOJ should have followed the Court of Appeal and dealt with the issue and not pursued it to the highest courts. It comes as no surprise to those of us who agreed with the findings of the original Select Committee report that a Supreme Court judgment this year found that our disclosure scheme is contrary to article 8 of the European convention on human rights on two key fronts: the rule that requires the automatic disclosure of all convictions where a person has more than one conviction, and the requirement that some childhood cautions be disclosed indefinitely. Importantly, we have a mechanism by which previous offences can be taken off DBS checks—a process termed “filtering”. However, that process also has major flaws. The current filtering will remove a spent childhood conviction from a DBS standard or enhanced certificate only when five and a half years has elapsed since the date of the conviction. It must also be the individual’s only offence and it must not appear on the list of exempt offences that will never be removed from a certificate.

I—and clearly, going by what they have said today, other right hon. and hon. Members—urge reform on all three counts. Although five and a half years is significantly less than would be required for an adult—there is an 11-year wait before filtering can take place—that is still an incredibly long and pretty much arbitrary period. It means that it is difficult for 19-year-olds to get jobs because of offences—often minor—committed at the age of 14. That makes no sense, especially when they have not committed other offences. During those years, most of us are growing, changing and maturing, and the law should be flexible and forgiving enough to recognise that.

The fact that convictions remain unfiltered if there has been more than one conviction or when the conviction is on the exempt offences list also holds back young people at a crucial time in their lives. The offences include those involving a degree of violence, drugs, and some sexual offences. That is a broad range of offence categories, and putting them on an unfilterable list prevents individual discretion and creates a single rule totally at odds with the need to achieve personalised restorative justice for young people. We need a child-specific system that recognises that the offences in the list are diverse and complex.

[Robert Neill]

I very much agree with the hon. Lady. Does she agree that her point about the need for a different approach for younger people is strongly reinforced by the conclusions in the February 2017 Law Commission report, which states precisely that the system bears disproportionately harshly on young offenders, and argues that some offences that might justifiably be non-filterable for adult offenders should be filterable for young offenders? She says that a different approach is needed, and the commission also said so.

[Yasmin Qureshi]

I entirely agree with the hon. Gentleman and with the Law Commission’s recommendation. I hope that the Minister and Ministry of Justice civil servants will also be listening, and will be reminded of what the Law Commission said. I hope they will take those things on board and that we will not find that, as my right hon. Friend the Member for Delyn said happened when he was a Minister, civil service-speak means we do not quite know what will happen.

My right hon. Friend the Member for Tottenham has spoken about the Lammy review, which he carried out. I will touch on it, because it is important. I am worried that its findings, which are relevant to the issue that we are discussing, are being ignored, as many other recommendations have been ignored. When we look at how unequal outcomes are for BAME children and for those in care when they pass through the criminal justice system at a young age, it is clear that there is something particularly wrong about tying them for the rest of their lives to crimes that they committed as children—worsening pre-existing inequalities. I hope that the Minister will be able to throw some light on that, and suggest what actions the Department is taking on issues set out in the Lammy review.

Another issue emphasised by the Select Committee was the need to recognise that young people mature at different rates up to their mid-20s—a point made by my right hon. Friend the Member for Tottenham. The right hon. Member for Chipping Barnet (Theresa Villiers), who is not in her place at the moment, concurred and reinforced the point. While I welcome the Government’s acceptance of that basic fact, will the Minister clarify what concrete steps are being taken to enshrine that recognition in law? Further, now that we have received confirmation that the Government’s disclosure rules are in breach of international law, can we have some clarity on the timescales on which the Government hope to bring their regulations up to date? Scrapping the current exempt list and the two-offence rule would be great first steps and I should like to know whether the Minister recognises that the Government need to make up their mind, make up for their inaction and move quickly. Finally, do the Government plan to take steps to introduce a review mechanism by which individuals can apply to have their convictions filtered? That would allow for a genuinely case-by-case approach to justice.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords]

Debate between Yasmin Qureshi and Robert Neill

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 12th December 2018 Commons Chamber

[Yasmin Qureshi]

I thank my hon. Friend, a former shadow Justice Minister, for his intervention, and I take his point.

We acknowledge that the relevant procedure rule committee will set out the procedural requirements for who can carry out the procedures, but we also know that these committees are predominantly made up of senior judges, so this will have implications for the independence of judicial decision making.

We also believe that such a shift will not match the expectations held by members of the public on the experience and independence of those making judicial decisions about their rights.

[Robert Neill (Bromley and Chislehurst) (Con)]

The hon. Lady referred to the independence of the judges. Is not the whole virtue of this proposal that the rules governing who should be delegated what functions will be made by judges, and should not be made by politicians in any circumstance? Lord Thomas of Cwmgiedd, the former Lord Chief Justice, observed:

“Experience has shown that detailed restrictions on procedure are a very real fetter on the administration of justice.”—[Official Report, House of Lords, 20 June 2018; Vol. 791, c. 2039.]

He counselled against too much restriction of the kind that is being proposed.

[Yasmin Qureshi]

The procedure rule committee obviously has a place in our judicial system, and we accept that judges and others are involved in it, but everyone knows that there are times when, because of financial pressures, services are cut to the bare minimum. We believe that, to protect our judicial system, the functions concerned should be clearly set out, and those that will have an effect on someone should be decided by an authorised person with a legal qualification.

[Yasmin Qureshi]

We are not suggesting that judges will somehow not be independent. As I have said, I have the highest regard for our judiciary in court, although from time to time we might disagree with the decisions that judges reach. In the real world, however, there are often targets to be met and financial constraints to be considered. We are saying that when the procedure rule committee is making rules, it should be guided by Parliament.

[Robert Neill]

rose—

Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords]

Debate between Yasmin Qureshi and Robert Neill

2nd reading: House of Commons
Tuesday 27th November 2018 Commons Chamber

[Yasmin Qureshi (Bolton South East) (Lab)]

Before I open my speech, I wish to tell the House that today is Lancashire Day. On 27 November 1295, Lancashire sent its first Member of Parliament to attend King Edward I’s model Parliament. The day is well marked and celebrated in Lancashire.

We have been waiting for the arrival of court reform legislation ever since the Government promised in the Queen’s Speech last June a Bill to modernise the court system. One can imagine that expectations were high, but instead we were left disappointed when this wafer-thin Bill, which is both narrowly constrained and obscurely drafted, was finally published. Indeed, most of its provisions were included in the Prisons and Courts Bill that was shelved more than a year ago. That Bill devoted 38 clauses and 13 schedules to the courts and judges, whereas this Bill has just three such clauses followed by a single schedule. As Lord Judge once said of another Government move, it is

“a little too late and…quite a lot too little”.

[Robert Neill]

I intervene only in fairness to the distinguished legal journalist Mr Joshua Rozenberg, for that was his phrase that the noble Lord Judge was quoting.

--- Later in debate ---

[Yasmin Qureshi]

I accept that the senior judiciary, some of whom are in the House of Lords, have said that the Bill is a good thing. However, practising lawyers, barristers, solicitors, the Bar Council and the Law Society have said that it is not right, and that the amendments that we will propose should be considered.

There is disagreement in the judicial community about the Bill. [Interruption.] I will just wait until the Lord Chancellor has dealt with his question. The Lord Chancellor and the practitioners here must be aware that, when judges are involved in delegated functions or non-court sitting judgments, they are making judgments on difficult issues and complex matters of law—for example, a case management hearing, or even something such as asking for an adjournment. We do not know, but, at the moment, the Bill suggests that such work could be done by delegated staff.

When someone asks for an adjournment, all kinds of complications could be involved; there could be issues relating to failure of disclosure and so on. According to the Bill as it stands, many issues would be given to a delegated person. That is one reason why we are asking for clarification about who those people will be, what powers they will be given, and, more specifically, what training they will be given. Although some senior members of the judiciary in the other place have said that the Bill is a positive development, the practitioners on the ground, at the moment, do not agree.

[Robert Neill]

I understand what the hon. Lady is saying, and I am not unsympathetic to her point, but, in fairness to the senior judiciary, is it not worth pointing out what was said by the two noble lords who spoke on this matter? Lord Neuberger of Abbotsbury, the recently retired President of the Supreme Court, counselled that it would be unsatisfactory to reduce the flexibility of these proposals, pointing out that there will be many decisions where requisite experience is required, but others where less experience is necessary. Lord Thomas of Cwmgiedd, the previous Lord Chief Justice, pointed out that the procedure rule committee had practitioners on it who acted independently. He said:

“Experience has shown that detailed restrictions on procedures are a very real fetter on the administration of justice.”—[Official Report, House of Lords, 20 June 2018; Vol. 791, c. 2039.]

Those are very serious counsels by two very distinguished recently retired judges.

[Yasmin Qureshi]

I have respect for the senior judiciary, of course, but Parliament should have control over what is being delegated. Taking away judges’ positions and powers is a matter that should be debated in this House. We do not think that it is a matter for the procedure rule committee. We would have a much better idea about what it should be looking at. I think that we will disagree on this issue.

Leaving the EU: Justice System

Debate between Yasmin Qureshi and Robert Neill

Thursday 29th March 2018 Westminster Hall

[Yasmin Qureshi (Bolton South East) (Lab)]

It is a pleasure to serve under your chairmanship, Ms Buck. I thank the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Robert Neill), and the other members of the Committee for their excellent report. I was a member of the Justice Committee from 2010 to 2015 and remember many such excellent reports.

The UK’s status as an international hub for legal and financial services and its attractiveness to businesses depend not only on access to the EU legal services market, but on its close and comprehensive cross-border and civil judicial co-operation. I will start by concentrating on three areas that most hon. Members have spoken about. First, in relation to civil justice, we are in a unique position where the judgments of our court are enforceable both in European Union member states and in many Commonwealth states. That is very important for the UK’s role as a hub for international litigation. Therefore, it is critical for British citizens, businesses and institutions that the Government maintain our position.

In civil and family law, European Union regulations provide certainty on what jurisdiction should hear disputes while allowing for the automatic recognition and enforcement of judgments throughout the EU. Does the Minister share our concern that cross-border divorce and child custody disputes could become much more difficult unless Britain can secure effective judicial co-operation arrangements with the European Union after Brexit?

Many hon. Members spoke about the criminal justice system. We must remember that crime, and especially more serious and organised crime, increasingly does not recognise national borders. Even the less serious crimes are increasingly likely to have a cross-border element. Foreign nationals who commit crime in the UK often flee abroad, and some crimes can be committed easily across national boundaries, such as child exploitation, fraud and identity theft. In the UK, there has been a massive increase in people trafficking offences. Police and the judicial authorities need to be able to co-operate internationally to combat crime and bring perpetrators to justice.

I hope the Minister agrees that co-operation through case-by-case contacts or even bilateral agreements is likely to be more cumbersome when we are out of the system, especially where several states are involved. Under our European Union framework, we have co-operated through mutual recognition of key elements of one another’s systems, with minimum standards applicable in all states for certain factors, together with mutual legal assistance measures that are understood and applied in all the member states.

As we withdraw from the European Union, can the Minister assure the House that her Government will secure the speedy arrests of suspects wanted by the British police with minimum bureaucracy via the use of the European arrest warrant? Does the Minister agree with the assessment of the EU Home Affairs Sub-Committee, which states:

“Any operational gap between the European Arrest Warrant ceasing to apply after Brexit and a suitable replacement coming into force would pose an unacceptable risk to the people of the UK”?

Given that it took Iceland and Norway 13 years to negotiate extradition agreements with the European Union, does the Minister believe that there will be a gap between the UK leaving the European arrest warrant and agreeing a replacement system?

What assessment has the Minister made of the impact on victims if there is no European arrest warrant agreement after the UK leaves the European Union? What are the Government’s proposals to deal with cross-border investigations into drug cartels, people trafficking networks and fraud? Will we be in a position to secure evidence from overseas using the mechanisms currently in use in the European Union? What mechanisms will be put in place so that we can rapidly access fingerprinting and other identification databases for overseas convictions, sentencing and other purposes, to which we currently have access? I am sure the Minister is aware of the growth in co-operation through Europol, Eurojust and the European Public Prosecutor, which has made it easier to deal with crime, especially when it crosses borders. What is the Government’s plan to replace those institutions or fill the gaps left by them?

The UK legal services market is worth £25.7 billion in total, employing 370,000 people and generating an estimated £3.3 billion of net export revenue in 2015. Central to that market is the ability of barristers, solicitors and other legal professionals to provide legal services in the EU. Equally important is the fact that, our exporters’ confidence in doing business abroad depends greatly on the ability of their lawyers to establish and provide services in the countries in which they seek to trade and invest. Numerous aspects of barristers’ and solicitors’ work will no longer be possible if we leave the European economic area, unless current cross-border rights are preserved.

Does the Minister agree that, in formulating their negotiating strategy, the Government should have regard to the nature of the legal work that comes to the UK as a consequence of the UK legal profession’s expertise, not least in European Union law? What measures are the Government taking to maintain cross-border legal practice rights and opportunities for the UK legal sector, given efforts by European Union law firms to use Brexit to win clients from UK competitors?

The European Union charter of fundamental rights sets out a range of civil, political and social rights enjoyed by European Union citizens. Why does this Government’s policy of incorporating EU law into UK law exclude the European Union charter of fundamental rights? Does the Minister agree that, in the light of everything said in the debate, there must be a continuing role for the European Court of Justice during this time?

Labour’s view is that, beyond a transitional phase, we would seek a shared court-like body to oversee disputes and enforce rights and protection. Obviously, the precise nature of this shared court is subject to negotiation. We are flexible about how that would be achieved. It is important that there is an independent court to oversee the close new agreement we reach with the EU. It is vital that that is done to ensure that individuals, institutions and countries can enforce and protect workplace rights, consumer rights, environmental rights and more.

[Robert Neill]

I have been listening with great care to the hon. Lady’s speech and I very much welcome the approach that she has adopted. She talks about a future court to enforce these matters, for which I have much sympathy, but does her party rule out participation in the EFTA court as being a potential solution to the problem she rightly highlights?

[Yasmin Qureshi]

I understand the hon. Gentleman’s question. Our position is that there should be a system. What that system entails and how it works is subject to negotiation, but we should have something that makes it easier to resolve issues.

In concluding, I want to summarise some of the things that hon. Members mentioned. My right hon. Friend the Member for Delyn (David Hanson) spoke about very important crime issues. My hon. Friend the Member for Enfield, Southgate (Bambos Charalambous) talked about the legal services sector and how we are ahead in it. My hon. Friend the Member for Stretford and Urmston (Kate Green) rightly spoke about the impact of our leaving the European Union on children and their rights. The hon. Member for Cheltenham (Alex Chalk) made the interesting point that crime, civil justice, children’s rights and legal services should not be bargaining chips, but should be placed on a separate track and taken out of the contentious political debate. That would be a helpful way forward. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) rightly raised the impact on Scotland.

Everyone is aware that numerous treaties will have to be made to cover each and every area of law we have talked about. We will need not one set of treaties but treaties with 27 or 28 countries, with some opting in and some opting out. It will be a lengthy and complex process. I reiterate the questions asked earlier. How far have the Ministry of Justice and the Government got with drafting the relevant legislation and treaties? Which have been written and which have not? How are they progressing? When will they come to Parliament for debate? When will we be able to feel that these things will happen? Real issues have been raised, and many Members feel that, when we leave, we may be without the systems we currently have that make the criminal and civil justice systems much easier to deal with.