Amendment to the Motion

Part of Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2019 - Motion to Approve – in the House of Lords at 4:15 pm on 20th May 2019.

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Photo of Baroness Barran Baroness Barran Baroness in Waiting (HM Household) (Whip) 4:15 pm, 20th May 2019

My Lords, I thank noble Lords for their contributions and for their unanimous—I think—support for the request in the instrument relating to the undercover policing inquiry. I will attempt to deal with the wider issues raised.

I am grateful to my noble and learned friend Lord Mackay of Clashfern for the simple and elegant way in which he explained a “matter of principle”. In this instrument, obviously that relates to the necessity of having information about spent convictions to fulfil the terms of reference—or remit, as my noble and learned friend described it—of the inquiry. That is one important part of our debate, but there is a second, which the noble Baroness, Lady Chakrabarti, and other noble Lords have mentioned: are the checks and balances—or filter, as the noble and learned Baroness, Lady Butler-Sloss, described it—sufficient to make sure that the principle is applied in a proportionate way? That is at the heart of the discussion.

Within that, there is the need to balance an individual’s Article 8 rights to privacy with the public interest and the necessity for the inquiry to be appraised of the accurate facts, where relevant. The noble Baroness, Lady Chakrabarti, talked about the risk of information coming into the public domain by accident or information that is not strictly relevant being used by the inquiry. That is hard to imagine in reality, with genuinely the greatest respect to the noble Baroness. If we think through the practicalities of somebody being asked to supply this information, we can imagine that, in all likelihood, it would result in an application for anonymity.

I hope that noble Lords will bear with me. This morning, together with officials, I tried to work out a flowchart of how this decision would be taken. The first question is: does the individual have spent convictions, yes or no? If the answer is yes, are they relevant? Will they be treated anonymously? If they apply for anonymity, will that be agreed to? Further, even if it is not anonymous, is the hearing held in private or in public? If it is held in private, could the information then be published?

I am trying to illustrate how there are a number of points in the process which make it highly unlikely that a disproportionate decision could be taken, but there are other points to cover here as well. My noble friend Lord Hodgson pointed out that although the intent of the instrument is not in relation to work, if the information was made public it could disadvantage someone in an employment application. I think that my noble friend makes a very fair point. I will undertake to take up with the department the question of the filter, a point raised by the noble and learned Lord, Lord Morris of Aberavon, the noble Lord, Lord Hogan-Howe, and the noble and learned Baroness, Lady Butler-Sloss, but the terms of reference, relevance and necessity are the key filters which exist already.

We feel that there are sufficient safeguards in place to ensure that individuals have their right to privacy respected as far as is necessary and proportionate. Although inquiries are made in public, inquiry chairs must preserve the anonymity of individuals as far as is necessary to respect their legal rights to privacy. As I stated earlier, the chairman has the power under Section 19 of the Inquiries Act to restrict the publication of information in the form of a restriction notice; for example, the undercover policing inquiry has invited applications for restriction orders, as have a number of other public inquiries. Individuals can use restriction orders to seek to maintain their anonymity, and where they are not satisfied that that has been done, they can make representations to the inquiry and, ultimately, for the decision to be judicially reviewed, although I hear the reservations of noble Lords about that.

I hope I have been able to reassure noble Lords not only that the point made by my noble and learned friend Lord Mackay about principle is a sound one but that the checks and balances that are required to ensure that the principle is applied in a way that upholds people’s rights are in place. I hope noble Lords will agree that this instrument ensures that inquiries that are of great public interest and concern are able to consider the evidence that is relevant and necessary to fulfil their purpose. I beg to move.