Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2019 - Motion to Approve

– in the House of Lords at 3:39 pm on 20th May 2019.

Alert me about debates like this

Baroness Barran:

Moved by Baroness Barran

That the draft Order laid before the House on 1 April be approved.

Relevant document: 24th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee B)

Photo of Baroness Barran Baroness Barran Baroness in Waiting (HM Household) (Whip)

My Lords, the purpose of this draft instrument is to include inquiries established under the Inquiries Act 2005 as “excepted proceedings” in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, enabling them to consider the spent convictions of individuals. This legislative change was requested initially by Sir John Mitting, chair of the undercover policing inquiry, as information on individuals’ spent convictions is important for the purposes of the terms of reference of that inquiry.

The inquiry is examining undercover police operations conducted by English and Welsh police forces from 1968 onwards, including whether the police were justified in launching undercover operations against a group. To give full consideration to this, the inquiry needs to be able to consider the convictions of members of the groups. However, given the historical nature of the inquiry, many of these convictions will be spent, and therefore not disclosable under the ROA. This statutory instrument will give the undercover policing inquiry the ability to consider spent convictions. This change is vital for the inquiry to fulfil its remit successfully, and your Lordships will be aware that there is a high level of public interest in the inquiry’s success.

The Rehabilitation of Offenders Act 1974 affords offenders protection from having to disclose their convictions and cautions once those convictions and cautions have become spent under the Act—the point at which the offender has become rehabilitated. The exceptions order lists activities or categories of jobs where those protections are lifted, so offenders, if asked, need to disclose spent convictions. The primary rationale behind the exceptions order is that there are certain jobs—positions of public trust and those involving, for example, unsupervised work with children—where more complete and, crucially, relevant disclosure of an individual’s criminal record may be appropriate, to mitigate risks to public safety.

The exceptions order is not limited to employment purposes, although that is its primary use. The amendment proposed here is not employment-related, but related rather to the consideration of evidence of spent convictions and cautions in inquiries caused to be held under the Inquiries Act 2005. While a number of judicial proceedings are exempt from the protections of disclosure—meaning that the individual must disclose them—inquires made under the Inquiries Act 2005 are not currently exempt. To oblige an individual to divulge previous spent offending history, if asked in the course of such an inquiry, we must amend the exceptions order.

Although the inquiries are made in public, we would expect all inquiries to preserve the anonymity of individuals as far as is necessary to respect their rights to privacy. In particular, the chairman has the power under Section 19 of the Inquiries Act 2005, in the form of a restriction notice, and individuals can seek to retain their anonymity through a restriction order. Inquiries will take decisions on a case-by-case basis, taking into account particularly the need to balance openness with any competing public interest in restriction or private interest in privacy. Noble Lords may be aware that the protocols and guidelines for such applications in relation to a number of recent inquiries, including the Grenfell Tower inquiry, the Leveson inquiry and the infected blood inquiry, are all clearly available on the internet.

This draft instrument is necessary to amend the exceptions order to enable inquiries caused to be held under the Inquiries Act 2005 to admit and consider evidence of convictions and cautions that have become spent under the Rehabilitation of Offenders Act, where it is necessary to fulfil the terms of reference of that inquiry. Although UCPI is a particularly clear case of an inquiry where spent convictions are relevant, this amendment will allow any inquiry under the Inquiries Act 2005 to admit evidence of spent convictions and cautions, but limited only to where it is necessary to fulfil the inquiry’s terms of reference. It is likely that other inquiries may in future need to consider spent criminal records, as these can be key to determining whether authorities have acted reasonably in assessing and responding to risk.

I have noted the concerns raised by the noble Baroness, Lady Chakrabarti, in her amendment to the Motion about all inquiries being added to the exceptions order. Our view is that the duties of all inquiries are of sufficient seriousness to justify their taking spent criminal record evidence into consideration where, and only where, they believe it is necessary to fulfil their terms of reference. Any limited interference with an offender’s Article 8 right to private life under the ECHR would be a necessary and proportionate interference with that right for the purposes of the UK fulfilling its obligations to inquire into the acts of public authorities.

Under Section 1 of the Inquiries Act 2005, inquiries are caused to be held by a Minister where particular events have caused, or are capable of causing, public concern or where there is public concern that particular events have occurred. Public interest is at the centre of the purpose of all inquiries. However, it is possible that evidence central to an inquiry’s terms of reference may be excluded because of the provisions of the 1974 Act. The Rehabilitation of Offenders Act provides vital protections to rehabilitated offenders; this is why we reformed it in 2014 to reduce the amount of time that most people with convictions would have to wait before their convictions became spent. The amendment we propose here relates to the consideration of evidence of spent convictions and cautions in judicial proceedings —namely, before inquiries caused to be held under the Inquiries Act 2005. We are introducing it because is necessary to ensure that inquiries of high public interest and concern are able to consider the evidence relevant and necessary to fulfil their purpose.

While this is the first request that has been received, the development of data protection laws in recent years has prompted much greater awareness among public bodies of their potential responsibilities around personal data, including criminal records. As some inquiries will be obligated to have regard to the rights of those who hold criminal records and to the legitimacy of using such evidence in the course of their duties, our view is that the duties of all inquiries are of sufficient seriousness to justify clarifying that they may take spent criminal record evidence into consideration where they believe it is necessary.

While we do not think that considering spent convictions is likely to be necessary in the majority of inquiries, adding only the undercover policing inquiry to the exceptions order would set a precedent that may well to lead to further requests. Adding these inquiries to the exceptions order now will ensure that more efficient use is made of the parliamentary process, as further amendments will not be required for each specific inquiry as and when it arises.

Not proceeding with legislation would materially impact the timing for the undercover policing inquiry to begin hearing evidence in June 2019. The chairman of the inquiry cannot currently admit spent convictions in evidence. Delay to this legislation would cause expensive delay to the inquiry, while not legislating would prevent the inquiry admitting this evidence at all. For this and other inquiries, this would mean treating people with spent convictions as though they had never occurred. Inquiries would then have to accept distorted versions of the truth, which could lead to conclusions based on false premises, which would not be in the public interest. I beg to move.