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Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2008

Volume 705: debated on Monday 17 November 2008

rose to move, That the Grand Committee do report to the House that it has considered the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2008.

The noble Lord said: The Rehabilitation of Offenders Act 1974 allows ex-offenders not to disclose spent convictions and thereby offers those who have criminal records but have turned away from crime a helping hand into employment. Research repeatedly shows that employment is key to reducing reoffending, and for this reason the Government are entirely committed to encouraging the rehabilitation of ex-offenders into employment. The Act also makes it unlawful to make an unauthorised disclosure of the details of such convictions.

However, hand in hand with this goes the need to protect the vulnerable and to assess a person’s suitability for work of a sensitive nature. The Act therefore grants power to the Secretary of State to exclude application of these general rules in relation to particular employers, bodies and proceedings. The rationale behind this is to ensure that employers and bodies offering positions, professions and licences of a more sensitive nature are able to assess an applicant’s full criminal history before making a decision. This power was exercised in 1975, when the Rehabilitation of Offenders Act 1974 (Exceptions) Order came into effect. That order has been amended periodically to ensure that the criminal disclosure regime keeps pace with changes in employment and public risk.

The exceptions order sets out the categories of work to which the Act does not apply, including working with vulnerable groups and in certain other sensitive positions. In the positions and categories of work listed on the exceptions order, prospective workers are not entitled to conceal convictions, irrespective of whether they are spent, and the Criminal Records Bureau is permitted to release information on convictions, also regardless of whether they are spent.

This amendment order serves three substantive purposes, each of which is important and necessary. First, it updates definitions relating to childcare; secondly, it extends the scope of the exceptions order to cover cautions, reprimands and final warnings; and, thirdly, it adds a new category to the exceptions order, that of non-lawyer managers. I should like to address each of these in turn.

First, this instrument updates definitions related to childcare to bring them into line with recent legislation and to ensure that legislation from across Whitehall is consistent in this very important area; namely, the order changes the definitions of childminding and day care to make them consistent with the Childcare Act 2006. From 1 September 2008, childcare provision in England is regulated under Part 3 of the Act, and regulations made under it require enhanced CRB disclosures of those caring for children and others who may have contact with children on childcare premises. The exceptions order already enables those working with children to be subject to CRB disclosures, so there is no change to the scope of those covered; rather, it enables an existing scheme to be continued. In essence, this provision does little more than update a reference to an old piece of legislation and insert a reference to its successor. As such, I hope that it is an uncontroversial, if crucial, technical amendment.

The second feature of this amendment is that it extends the definition of conviction to include cautions, reprimands and final warnings. This will enable us to implement the corresponding provisions in the Criminal Justice and Immigration Act 2008, which some of us had the pleasure of seeing through the House. I should clarify from the start that the order has no impact whatever on the legal status of a caution, reprimand or warning, and that reclassifying them as convictions for the purpose of this order in no way escalates the seriousness of this disposal. Actually, it works in favour of those who have been issued with a caution, reprimand or final warning. Until now, the group of people issued with a minor disposal of this kind could never benefit from the provisions of the Rehabilitation of Offenders Act because, as these disposals were not convictions, they were never spent. This was an obvious and serious inconsistency, and we hope that the provisions to amend the Criminal Justice and Immigration Act 2008, which we now seek to implement, have the support of the Committee. However, before these provisions are implemented, it is essential that the exceptions order is updated in tandem. The reason, which I am sure is clear, is to ensure that, where there is good cause, cautions, reprimands and final warnings can still be disclosed under a full criminal records check.

Thirdly, the provision expands the list of sensitive positions which qualify for disclosure of spent conviction information to include the newly created position of non-lawyer “approved legal services body manager”. The Legal Services Act 2007 introduces reforms that will bring great benefits to consumers and the legal profession. However, it is essential that we do not allow the level of probity and integrity of the legal profession and the protection of consumers to be undermined. I remind the Committee that the Act will enable alternative business structures, allowing lawyers and non-lawyers to work together in new forms of business structures to provide a range of services. Full alternative business structures cannot come into force until the Legal Services Board, the new oversight regulator, is operational, which is expected in 2010. In the mean time, the Act enables a limited form of alternative business structure to emerge. These legal disciplinary practices will, for the first time, allow the collaboration of lawyers and non-lawyers in the ownership and control of law firms. Traditionally, a partner in a law firm was required to be either a solicitor or his equivalent, such as a registered foreign lawyer. The Solicitors Regulation Authority, the regulatory arm of the Law Society, plans to regulate these new forms of practice from March next year. This will of course be subject to the approval of rule changes necessary to regulate legal disciplinary practices.

Permitting non-lawyers to manage legal services bodies will place them in a sensitive position. They will potentially have access to sensitive client information and assets and will manage others with such access. They may also have access to the vulnerable individuals whom legal practices frequently represent. For these reasons, they must be assessed as suitable for such a position by the SRA, which will carry out the same vetting procedures for non-lawyer managers as they currently do for their lawyer counterparts.

This provision serves a simple purpose: to protect consumers of legal services and ensure that the recent reforms leave no loophole through which to escape the high standards or erode the public trust which characterises the legal profession. I hope the Committee will accept that there is nothing in the order that has not already been debated and approved by both Houses. However, it is essential that public protection keeps pace with other legislation, and for that reason the instrument serves an important purpose. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2008. 30th Report from the Joint Committee on Statutory Instruments.—(Lord Bach.)

I do not intend to talk about the merits of this new exception order, which I presume is one of a whole series of exception orders that have been put before the House since the original Rehabilitation of Offenders Act 1974. However, as a former member of the Joint Committee on Statutory Instruments, I should ask the Minister to address the point in the Explanatory Memorandum about the vires of the orders. They are dealt with in paragraphs 3.1 to 3.7, where the department confesses that it got wrong the drafting of the original 1974 Act—I presume that it was a Labour Government who passed it, but it has been around for a long time. The Ministry of Justice suggests in paragraph 3.7 that,

“it regrets the error, and will seek to correct the primary legislation at an early opportunity”.

Well, 1974 to 2008 is quite a long time. Will the Minister explain to the Committee—it is important that it is on the record—exactly what went wrong with the original drafting of the Act, why it was not spotted earlier, whether the department thinks that it has the powers to make the order and whether there is any doubt about the technical validity of any of the previous exception orders, of which there have been a number? The Minister said that the first order was made in 1975. As I said, I am perfectly happy about the merits of the order, but it is important that the Ministry of Justice gets the drafting of the legislation right. Back in 1974, of course, it was done by the Home Office. We hope that the department will seek, as it states, to correct that error in primary legislation at an early opportunity.

I have listened carefully to the Minister. The amendments in Article 3, which bring cautions, reprimands and final warnings into the scope of the exceptions order, are consequential to Section 49 of the Criminal Justice and Immigration Act, which brought cautions within the scope of the Rehabilitation of Offenders Act 1974. We supported that, saw it coming down the road and welcomed it when the Act was going through. I broadly welcome what is being done here, because we on these Benches have always argued for allowing these disposals to be spent in the spirit of rehabilitation—you cannot carry them with you for the rest of your life.

While I have the Minister trapped in the Room, perhaps I may move him on a little and ask him whether the Government are likely to implement the recommendations of the report of the review of the Rehabilitation of Offenders Act, Breaking the Circle, which was published in 2002. This report recommended a new disclosure scheme, including—and this is why I raise the matter in this context—a clean sheet at the age of 18 to help young people to put behind them minor crimes committed in their youth. Can the Minister indicate whether that document is still alive and is being given consideration or whether it has gone by the wayside? We would wish to see many of its recommendations implemented.

Following my noble friend’s shrewdly judged introductory remarks on an order referring to convictions and concerning the processes of rehabilitation of offenders—that is, young people, men and women—in England and Wales, when will the justice department announce the location of new prisons? As to government plans for the north-west and Wales, where will the new prison or prisons be located? Will they be Titans or not, and how many will there be? How soon will Her Majesty’s Government’s decisions be announced—perhaps as part of an imminent capital building programme, perhaps next Monday? Can my noble friend deal with the queries I have raised?

I am grateful to the three noble Lords who have spoken. First, in answer to my noble friend Lord Jones, I cannot give a date when announcements will be made about the prisons. I pay tribute to his interest in this topic over many years and, when a decision is made, he will be the first to know. I am grateful for his interest in this order.

As to the comments of the noble Baroness, Lady Falkner, about the Act, we committed to reforming it following the recommendations set out in the document that she mentioned. We have since had to review the position in the light of the Safeguarding Vulnerable Groups Act 2006, which was based on the Bichard report recommendations. As she knows, that made significant changes to the disclosure landscape. We remain committed to reform but no time has been allocated to it in this Parliament and no timescale has yet been set. We agree that this legislation now needs to be brought up to date but I cannot give her any clue as to when that might be. The issue is alive, but whether or not it is kicking I am not sure.

The noble Lord, Lord Henley, used his lawyer’s skill to put me on the spot about the misuse of the words “paragraph 3(3)” instead of “paragraph 3(2)”—or was it “paragraph 3(2)” instead of “paragraph 3(3)”?—but he makes an important point. However, let me put him right about one thing which I am sure will comfort him: this paragraph had nothing whatever to do with the Rehabilitation of Offenders Act. It was first introduced in the 2008 Act and deals with the exception of cautions which, as the noble Lord knows, was not part of the Rehabilitation of Offenders Act until this year. This is the first order made in relation to cautions and so there is no danger of any other amendment orders being ultra vires.

The JCSI, to its credit, found a drafting error in the primary legislative provision. The reference in the second line of paragraph 4(a) to “paragraph 3(2)” should be to “paragraph 3(3)”. The erroneous cross-reference has arisen because paragraph 3(2) was inserted after the original draft clauses were drafted and the cross-reference has not been updated to reflect that. The JCSI is of the opinion, as is the department, that this is a clear case of a simple drafting error. The reference can be properly read as referring to paragraph 3(3) and thus provides the proper vires for this order. The noble Lord will be glad to hear that when the opportunity arises we will correct the drafting error. Parliamentary counsel are, as we speak, making inquiries as to whether the House authorities might be willing to issue a correction slip, given that the error is clearly a mere typographical error. I hope that it will not be necessary to debate the issue.

On Question, Motion agreed to.