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Rehabilitation of Offenders Act 1974: Reform

Volume 687: debated on Wednesday 6 December 2006

rose to ask Her Majesty’s Government whether they will bring forward legislation to reform the Rehabilitation of Offenders Act 1974.

The noble Lord said: My Lords, first, I thank my noble friend Lord Addington and the noble Baroness, Lady Seccombe, for putting down their names to speak in this short debate. Dealing with matters affecting offenders is not a very popular cause. There are no thanks but, in a civilised society, we must never be afraid to raise our concerns.

There are some shocking statistics. More than 65 per cent of those released reoffend within two years. One of the most important factors in the rehabilitation process is the ability to hold on to a job. The question is: are we doing enough to achieve that objective? Look at our prisons. They are bursting at the seams. The statutory and voluntary organisations are trying hard to hold the tide. It is the duty of the Government to help in that task. Nowhere is that more important than in the ability of offenders to secure and hold a job.

In April 2003, the Government announced plans for reform of the Rehabilitation of Offenders Act, but since then there has been no sign of legislation coming before Parliament to implement that promised reform. The purpose of this debate is to reinforce the importance of reforming the Act and to press the Government to do so at the earliest practicable date. I do so because I have searched high and low for this subject to appear in the gracious Speech, but alas, despite the Government's emphasis on rehabilitation, nothing seems to have materialised.

The Rehabilitation of Offenders Act 1974 provided that, after specified rehabilitation periods, ex-offenders do not have to declare spent convictions when they are applying for jobs. Let me spell out exceptions, in case someone thinks that this is a blanket provision. Sensitive areas of work, such as criminal justice agencies, financial institutions and work with young people or vulnerable adults are excluded. Since it was enacted, the Act has helped many ex-offenders to live down their past.

What are the facts? More than 30 years after the Act was passed, what do we find? The rehabilitation periods laid down in the Act are lengthy and many genuinely reformed ex-offenders never benefit from it. That is the experience of many agencies involved in rehabilitation work—my organisation, the National Association for the Care and Resettlement of Offenders, is no exception. In fact, we find that it hinders our work in those areas. For example, if an offender is fined, the offence becomes spent after five years from the date of sentence. If an offender is given a three-month prison sentence, the offence takes seven years to become spent. If he or she gets a nine-month sentence, the offence does not become spent until 10 years later. Sentences of more than two and a half years never become spent. Those provisions are notably less generous than the rules that apply in other European nations. Those countries typically apply rehabilitation periods to sentences longer than two-and-a-half years and their rehabilitation periods are much shorter, often half the length of ours or, possibly, less.

Since the Act was implemented, sentence lengths have significantly increased. Many offenders who would have received sentences of two and a half years or less back in 1974 are receiving sentences of between three and four years today. That means that many offenders who would previously have been helped by the Act now find that their offences will never become spent during the whole of their lifetime. That is wrong. Many ex-offenders spend a purposeful life without recourse to crime. If they did not, we would not have enough prisons to hold them. Surely there must be a more constructive way of dealing with the issue.

In 2001, the then Home Secretary, Jack Straw, set up a review group to examine whether, three decades after the Act's implementation, there was a case for reform. The review group was chaired by a senior Home Office official and it included representatives of the police and probation services, the legal profession, the judiciary, employers, voluntary agencies and ex-offenders. My organisation, NACRO, gave evidence to the group.

In 2002, the review group published its conclusions in the report entitled Breaking the Circle. Following a consultation period, the Government published their conclusions in April 2003. The Government accepted a modified version of the review group's proposals. Under the modified version accepted by the Government, the current rehabilitation periods would be replaced by new buffer periods which would begin after the sentence—including any post-release supervision—was completed. The buffer periods would be four years for custodial sentences of four years or more; two years for custodial sentences of less than four years; and one year for non-custodial sentences.

Those periods would apply to all offences except those which resulted in a life sentence. Sentencing courts would have discretion to disapply these provisions in any case where the sentencer decided that there was a particular risk. Again, I stress that the new provision would not apply to jobs in sensitive occupations, for which applicants would still have to declare their full criminal record.

A reformed system on those lines would greatly reduce the scope for unfair discrimination against ex-offenders, especially in the job market. Regrettably, such discrimination is still widespread. Surveys of ex-offenders in some projects undertaken by NACRO have shown that 60 per cent have been explicitly refused jobs because of their criminal records. Of course, it is sometimes reasonable to refuse an ex-offender a job because of his record. For example, we must obviously bar offenders with a history of offences against children from working with children. We should bar offenders with a history of defrauding elderly people from working or caring for elderly people. In many cases, however, employers are turning down applications because of offences that are not relevant to the job, and there is no particular way of examining what precisely has happened in all these instances.

The unemployment rates among black and minority ethnic young people may be of interest to the Minister. Evidence points to the fact that black and minority ethnic young people are twice as likely to be unemployed than their white counterparts. Fifteen to 17 per cent of people in our penal institutions are black, while black people are only 7 per cent of the community. I am not here to argue about how we created this anomaly. Nor am I going to argue about whether the criminal justice system has treated them fairly. I simply want the Minister to reflect on the fact that many will come out of prisons, but their conviction record will not help them; indeed, it will put them at a great disadvantage. Surely this does not assist the process of rehabilitation, which is one of the objectives of our prison service.

The scope of discrimination is indeed very wide, because the decisions to employ or to refuse people jobs are taken not by people at the top of companies but by managers and personnel staff, many of whom have no specific training in how to deal with applications from people with criminal records. A large-scale research study by the Joseph Rowntree Foundation found that no private sector employers in its sample and only one in seven public sector employers provided specific training on this point to staff taking recruitment decisions.

When the review group was set up, there was a particular concern that discrimination could increase when Part 5 of the Police Act 1997 was fully implemented. So far, this legislation has not been fully implemented. If it were, it would enable employers to require any job applicant applying for any job, not only for one of the sensitive occupations, to produce a basic disclosure certificate from the Criminal Records Bureau listing his or her unspent criminal convictions. Government-commissioned research by the National Institute of Economic and Social Research has found that if this provision were implemented, employers would be likely to reject people with criminal records for half their vacancies and to reject those with more serious convictions for 90 per cent of their vacancies. The researchers concluded that the introduction of basic disclosure was likely severely to reduce employment opportunities for people with criminal records. It is unclear when or whether the Government will implement this part of the Police Act 1997. I must stress, however, that the case for reform of the Rehabilitation of Offenders Act remains powerful, whether or not the basic disclosure provisions of the Police Act are implemented. It is powerful because of the extent of discrimination that already exists.

Unfair discrimination against ex-offenders is wrong in principle because it imposes an additional illegitimate penalty of the refusal of employment on people who have already served the judicially ordered punishment for their crime. It also reduces public safety because an ex-offender’s risk of re-offending is reduced by between a third and a half if he or she gets and keeps a job. The whole community benefits when offending is reduced, but employers benefit in particular because crimes such as cheque and credit card fraud, shoplifting and the burglary of commercial premises have a particularly damaging impact on their businesses.

In conclusion, the reforms to which the Government committed themselves in 2003 would allow many more people with criminal records to start again with a clean slate. They would thereby reduce the risk of further offending by former offenders excluded from the job market. I urge the Minister to restate the Government’s commitment to implement these changes, and to do so urgently.

My Lords, I thank my noble friend for bringing this matter to the attention of the House. It is a few years since I worked for the Apex Trust, which tries to get ex-offenders into the job market. I am now vice-president of that organisation. The experience was basically this. When you spoke to the offenders, you generally spoke to a bunch of young men with very low educational attainment and an amazing combination of bluster and servility towards anyone in authority. This group had tremendous difficulty in dealing with the world even-temperedly. They really did not know how to deal with any form of authority other than by cowering or blustering in front of it. They had never passed an exam and, sometimes even in their mid-20s, felt that taking an exam was a sign of weakness. They were probably the worst group for having any idea of what they were capable of. We should remember that exams give marks that show that someone has achieved a certain level; they do not tell you what the full potential of that person will be.

This very odd group then has to go through a process under the law of telling someone that they also have convictions. All this means that you have someone who will probably try to avoid such an interview if they can see any other way out, which brings them back into a cycle of re-offending. Anyone who knows anything about this—I know the Minister will excuse me for teaching grandmothers to suck eggs—knows that it is the under-35s who constantly offend. By the time they are 35 or even 40, with a spent conviction and no history of work, they may be tottering towards being unemployable. There must be some cut-off point at which the person can at least say, “I don’t have to tell you what I have done wrong. Here is what I have done right”. The temptation to go into another diatribe here about the shortcomings of the prison education service is considerable. Then there is the joy of unidentified special needs in prisons—dyslexia is one—but I refer noble Lords to my numerous speeches on the matter, which are already on the record.

This group will be difficult to educate and train in prison because of social conditions, because of needs that are unmet if they are undiagnosed, and because of the process by which people are moved around and education is applied. It may be slightly better than a school education, but it is very difficult. There will be problems unless we adopt a more realistic approach than the current approach of bringing forward sentencing.

When I worked for the Apex Trust—a good few years ago now—I sat in on a series of interviews and helped in minor ways to tell prisoners how to make this disclosure and, indeed, why they should make it. Most people who come from lower social and economic groups tend not to be very mobile and tend to go back into their groups. What happens if someone gets a job but has not disclosed a conviction, and discovers that someone from up the road knows who they are and says, “Wait a minute. Didn’t you do X-amount of time?”? We heard a series of stories about people who ended up being blackmailed, having to steal to pay off the blackmailer to keep their job, being discovered, losing their job and going back to prison. That is the type of pressure. Although there should be safeguards in relation to certain groups—it is understandable that an employer would want time to make checks—if someone has had a period of unemployment but has taken some training, which is probably likely when they leave prison, they will probably be more attuned to keeping a job because they have established that they have broken the pattern. A disclosure made after a short period of time, not a long one, is then probably quite appropriate, or becomes irrelevant. When the Minister replies, will she say what work has been done and how close the Government are to changing this?

Under current sentencing practice, whether that is for good or ill, the length of time that is applied is utterly ridiculous, as my noble friend has said, because it means that people never get a chance to get themselves established in the workplace in that vital first job that they can hold and thus they have no incentive and no period in which to undertake training.

As I said, this is an odd group, but very few of these people will become the compulsive muggers and axe murderers of popular fiction. Certain tabloid press would have it that everyone who goes to prison is a threat to every part of one’s person, property and everything else, but most of them commit economic crime. What have the Government done about training the public to understand the level of risk from offenders and what they have done? In doing that, the Government would be taking a step forward. They should also try to explain to ordinary people who interview ex-offenders—let us face it, senior level management will not do most of the filtering of application forms or interviewing—that they can probably do these interviews in relative safety.

Many years ago, I spoke to someone who said, “Aren’t you frightened by being around all these prisoners”. I said, “Not really”. Neither were the two or three women who were independently making prisoners cups of tea or allowing prisoners to make them cups of tea. The idea that compulsive poisoners were doing a six-month sentence for burglary was interesting. What are the Government doing to get that information into the community? Unless that is done, people are being punished twice and are being given very little incentive to break their patterns of behaviour and even less incentive to undertake training.

My Lords, I congratulate the noble Lord, Lord Dholakia, on securing this important, if exclusive, debate. He has clearly and concisely set out the history and the concerns surrounding the Rehabilitation of Offenders Act, so I will try not to reiterate too much of what he has already said. I would however like to thank him for his kindness in allowing me to see his briefing on the subject before the debate. It is a timely debate as the Offender Management Bill is due its Second Reading in the other place next week. I am sure that the debates around it will touch on the issues raised today. I will watch, as I am sure your Lordships will, with interest its progress towards this Chamber.

A product of the Gardiner committee of 1972, the Rehabilitation of Offenders Act provided a much-needed system limiting disclosure requirements for many offenders who offended once or twice, served their sentence and then tried to settle down to a law-abiding life. The short debate secured in October by the noble Lord, Lord Ramsbotham, highlighted the significant difference that projects such as speech and language therapy in young offender institutions, among others, can have in rehabilitating offenders who are serving their sentence. The vital work that goes into preparing offenders for some form of employment goes hand in hand with the knowledge that the noble Lord shared that the risk of reoffending is reduced by between one-third and one-half if the offender can get and, more importantly, hold down a job. I am sure we all agree that a job can give a person a sense of purpose and self-esteem as well as the finance to help remove the temptation to offend again.

The Rehabilitation of Offenders Act is now more than 20 years old. In 1999—seven years ago—the Home Office admitted that it felt the legislation was,

“cumbersome, anachronistic, and ineffective in its primary aim of reducing offending by helping those with criminal convictions who stay ‘straight’ to leave their offending past behind”.

Yet, despite the announced plans for reform, we have yet to see anything implemented. While there can be no doubt that a careful balance needs to be struck between potential risks to the public and the criminal disclosure regime, checks on those working with vulnerable groups such as children, the disabled and elderly are vital. Issues such as sentence inflation and the introduction of the Criminal Records Bureau, as well as the ever-present factors surrounding Part 5 of the Police Act, have only made the system more complex and increasingly restrictive.

The noble Lord, Lord Dholakia, has put it to the House that these changes are enabling increasing unfair discrimination against ex-offenders in the job market, with many offenders who would previously have been helped by the Act now being unable to take advantage of the balance it was set up to strike. To state the obvious, this means that ex-offenders cannot get the jobs which are one of the keys in preventing their return to crime. In the current climate of crisis in our prison service, I would have thought that cutting the numbers that reoffend would make a significant difference to an already over-stretched system. I believe that the report Breaking the Circle made recommendations that merited further serious consideration. I conclude by again congratulating the noble Lord, Lord Dholakia, on this debate and join him in pressing the noble Baroness, Lady Scotland, on this issue.

My Lords, it was with considerable pleasure that I listened to the way in which this debate was opened by the noble Lord, Lord Dholakia. Perhaps I may respectfully say that it was with even greater pleasure that I listened to the noble Baroness, Lady Seccombe, who appears to agree with every jot and tittle from the noble Lord, Lord Dholakia. It makes me think that we may have unanimity which would send a Bill of this nature seamlessly through the House with great speed and I am much encouraged thereby.

I hope that I will be able to give the noble Lord, Lord Dholakia, the assurance that he seeks, because I agree with him without reservation that these issues need to be addressed. Of course, as the noble Baroness, Lady Seccombe, and the noble Lord, Lord Addington, have acknowledged, there is a tension between the need to increase the opportunity of those who have offended to reform, change and lead law-abiding lives, and the need to protect the public. We have done much in the past seven years, particularly in relation to trying to differentiate between those who are serious and dangerous who need to be dealt with robustly and those others who may have transgressed at a much lower level where reform and change can reasonably be anticipated, and must and should be supported.

We agree that reoffending is one of the most difficult problems facing us today and the Government are committed to putting its prevention at the core of our correctional services. Although punishment and imprisonment are necessary to protect the public and serve justice, we must do more. As well as requiring offenders to be punished, a healthy and safe society needs them to be given every opportunity to reform—to get back on the straight and narrow and to make positive contributions to their communities. This is not just because it is morally right to enable people to change their lives for the better and overcome their failures and mistakes; it is also a practical recognition that more than half of all crime is currently committed by people who have been through the criminal justice system and have not yet changed their behaviour. The annual cost to society of reoffending by ex-prisoners alone is probably around £11 billion.   Reducing reoffending will cut crime and make all our communities safer. I know that the noble Baroness said that this is an “exclusive” debate, but what a wonderful debate where we agree on so much.

A steady job can reduce the risk of reoffending by between 30 per cent and 50 per cent, which all speakers have indicated. There is already a significant amount of ongoing work to improve offenders’ employability and to help them to get and maintain jobs. But there is still much to be done. Approximately 70 per cent of prisoners leave prison without a job to go to and more than 40 per cent of offenders serving their sentences in the community are unemployed. The noble Lord, Lord Dholakia, will know that I am particularly exercised about disproportionality. The Government accept, therefore, the need for the Rehabilitation of Offenders Act 1974 to be reformed as part of the strategy to reduce reoffending.

As all noble Lords have said, the Home Office review of the Rehabilitation of Offenders Act 1974 recommended certain changes to the law governing criminal disclosure, and it remains the Government’s intention to introduce reform. However, since that review we have had to act on the recommendations of the Bichard review into those working with children and vulnerable adults. I endorse what has been said by all noble Lords about the need to protect those vulnerable groups.

Following the Bichard report we are considering what steps need to be taken to provide the most effective disclosure regime, both for the rehabilitation of offenders and for the protection of the public. We will legislate on this when parliamentary time allows us to do so. That is why I am so delighted to see that we might need less parliamentary time than some might have considered necessary. I hear what the noble Lord says about the fact that there are sometimes few who are willing to speak for offenders.

Perhaps we speak more clearly when we remind people that the line between victims and offenders can be very fine. One recent research report showed that 52 per cent of young people who offended had been victims themselves within the previous 12 months and that about 25 per cent of young people had also been victims. Women who are subjected to domestic violence and sexual abuse are over-represented in our prison populations later. We have to keep this line for ever in our minds. Collectively, the implementation programme will continue to underpin the strengthening of systems to reduce the risk to children and vulnerable adults.

The ongoing programme will also deliver business procedures to radically improve the use and sharing of information within policing and between the police and other agencies. We remain fully committed to seeing this important agenda through to full completion and to continuing to provide the resources necessary to ensure implementation of the programme. The difficulty, of course, is that we now have to do the two things at the same time and it has taken us a little longer to get it right.

The Home Office is working closely with the Department for Education and Skills, the Department of Health and the Criminal Records Bureau to amend the rehabilitation of offenders provisions. Following the exceptions order amendment made in July this year, a further statutory instrument is anticipated in spring 2007 to make amendments to the exceptions order to bring arrangements into line with the new vetting and barring scheme to be established under the new Safeguarding Vulnerable Groups Act 2006.

Alongside this, the Government are working constantly towards reducing reoffending rates and improving public protection. A key element of the Home Office five-year strategy for protecting the public and reducing reoffending focuses on further developing partnership working across government with local and regional agencies and, crucially, with employers, the voluntary community and faith sectors. The development of reducing reoffending alliances—which makes crime, if you like, everyone’s concern—is a vital part of that work.

In this context, the corporate alliance may be particularly important. It has been established as one of the three alliances in recognition of the fact that the connection needs to be made within the business community to find employment opportunities for ex-offenders. The alliance will bring together employers of all sizes from the public, private and voluntary sectors. This mix of business-world skills is finding ways of increasing the number of offenders going into jobs. It is also helping to educate employers that they need not be frightened of employing offenders if they are careful about the risk assessments they make; that it is not a total disqualification.

We know that sustained employment can make a significant contribution to reducing reoffending. Improving offenders’ employability and supporting their efforts to compete in the labour market are key components to a successful rehabilitation package. That is why the corporate alliance is working with small and medium businesses and larger organisations nationally, regionally and locally to improve offenders’ chances of getting jobs. There are companies out there who are already doing just that. Some companies have been set up specifically to employ only offenders and they are getting great value from those individuals. They are working well. Ninety-three per cent of those who have been on the National Grid programme, for instance, have successfully completed it and have not reoffended. It has had very good results. These are important contributions.

This is not philanthropy on behalf of the employers; it is also informed self-interest. Eighty-five per cent of employers are currently experiencing difficulties in recruiting staff and one in four men over the age of 25 has a criminal conviction. So this is not a narrow issue; it is important for business and it is important for rehabilitation. As the noble Baroness, Lady Seccombe, said, we shall be legislating through the Offender Management Bill, which was introduced in the other place on Wednesday, 22 November, to reduce reoffending and better protect the public by improving the way in which offenders are managed. We have made it clear that we want everyone to be in a position to help us to do that. We believe that that will lead to success.

We are also working across government to tackle the issue of employment through education. We issued a Green Paper at the end of last year setting out our strategy on how we will build upon what has already been achieved to improve offenders’ skills and job prospects. We want to build a modern correctional system focused on rehabilitation and working in partnership with employers and those able to provide high-quality training. The key proposals include: a stronger focus on jobs and more relevant skills training, led by employer needs; a new employability contract for offenders, with incentives for participation; and a campus model of learning to ensure continuity of education from prisons into the community. The Department for Education and Skills is taking this strategy forward and will be publishing a document outlining its next steps on 13 December. So to answer the question of the noble Lord, Lord Addington, about what we are doing to educate employers and enable them to become better engaged, I respectfully say “Quite a lot”.

I invite any noble Lord, even those who may not have had the joy of participating in this debate but who are here tonight or who read our discussions in Hansard, to take this opportunity to help us to reduce reoffending. It will need all of us.

It is a delight to say to the noble Lord, Lord Dholakia, that he is absolutely right. I, too, thank him for bringing forward the debate and I will note with pleasure in my diary that this is something about which there is unanimity in this House. Therefore, we can all go joyfully to the Whips who, I am sure, will find a space.

House adjourned at 8.39 pm