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Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2009

Volume 712: debated on Monday 29 June 2009

Considered in Grand Committee

Moved By

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 2009.

Relevant Document: 17th Report from the Joint Committee on Statutory Instruments.

The purpose of this order is to maintain the crucial balance between the need to rehabilitate reformed ex-offenders into employment and the need to ensure that the public, particularly vulnerable groups, are adequately protected from those who pose a serious risk.

As noble Lords will be aware, the Rehabilitation of Offenders Act 1974 serves to help those who have a previous criminal conviction or caution but who wish to move on with their lives and put that behind them. If an ex-offender can demonstrate that they are staying on the right side of the law by remaining free from further convictions for a specified period of time, their original conviction or caution will become spent. Once spent under the Act, it no longer needs to be declared for most purposes. For instance, an employer is no longer entitled to ask, and such convictions no longer need to be declared when applying for insurance. The Act thereby enables ex-offenders to avoid discrimination. This in turn helps to rehabilitate ex-offenders into the workforce and to reduce reoffending.

In some cases, however, a need to protect the public outweighs this principle. In certain positions, it is appropriate for the employer or licensing body to know about spent convictions. For instance, when it comes to the protection of children, the vulnerable and national security, the need to safeguard the public comes first. This is the purpose of the exceptions order, which the current amendment order updates.

The exceptions order specifies the positions of sensitivity where the need to support the ex-offender is deemed to be outweighed by the need to protect the public, so the Rehabilitation of Offenders Act no longer applies. This instrument is one of a series that have been put before noble Lords for consideration over recent years. It is part of an ongoing commitment and a corresponding series of legislative updates to ensure that this important balance is maintained. It updates the order to ensure that it keeps pace with changes both to legislation and to known risk.

The order before us today makes a number of separate but important amendments to the exceptions order, which I will run through in turn. The first purpose of this instrument is to create an exception to the Act for those working, or seeking to work, in regulated activity as defined by the Safeguarding Vulnerable Groups Act 2006—the SVGA. This legislation, which was part of the Government’s response to the Bichard report following the Soham murders, introduces a vetting and barring scheme that will fundamentally strengthen safeguarding practice.

For the first time, it will be necessary for all those working in regular direct contact with vulnerable groups to be vetted by an independent body: the Independent Safeguarding Authority—the ISA. There will be an obligation on employers to check that their employees are registered with the ISA. Those who are registered will be subject to monitoring, which means that the employer will be informed if, as a result of any new convictions, the ISA de-registers that person.

Amending the exceptions order to include regulated activity is essential for the next stage of the scheme to be implemented. This amendment will authorise the Criminal Records Bureau to disclose information to the ISA that would otherwise be protected by the Rehabilitation of Offenders Act. The ISA can then decide whether to bar people based on factors that include spent convictions, cautions, reprimands and final warnings. This amendment will also enable employers to obtain disclosures informing them about criminal convictions, thereby enabling them to make employment decisions based on all relevant safeguarding information.

The Police Act regulations are also being updated in tandem to enable the relevant information from police records to be disclosed. This will ensure consistency across the entire disclosure regime, and that such crucial safeguarding decisions can be taken on the basis of all available evidence. Unsurprisingly, many of the areas covered by regulated activity are already listed in the exceptions order. However, the new category and the new scheme bring new levels of consistency and enhanced vetting by an independent expert body, and help to ensure that any safeguarding gaps are bridged.

Provisions on the Channel Islands are included in the current order. These are linked to the Safeguarding Vulnerable Groups Act and are part of the process leading to the extension of that Act to the islands. The inclusion of those measures was requested by Channel Island Ministers, who are keen to ensure that the islands are covered by the same vetting and barring regime as is being introduced in England and Wales. That will avoid the possibility of those who are barred from working here moving to the islands to avoid detection. However, if those working in the islands are to be subject to vetting by the Independent Safeguarding Authority, and their employers are to be able to obtain CRB disclosures, it is necessary that they are covered by the exceptions order. Hence the provisions in the current order.

Of course it is imperative when introducing measures such as this that due consideration is given to ensuring that our order ties in appropriately with local legislation. For this reason, the exemption from the ROA applies only where the purpose is already subject to an exemption under both England and Wales and Channel Islands legislation. Hence eligibility to disclosures, and the information which can be disclosed, will never exceed that which exists either in England and Wales or in the Channel Islands.

I am sure that the Committee will agree that the extension of the Safeguarding Vulnerable Groups Act to the Channel Islands is a sensible step for all concerned, and that this measure is a necessary step in implementing this.

I now turn to the other provisions in the instrument, starting with the Master Locksmiths Association. The instrument entitles the MLA to ask exempted questions when assessing membership applications. There has recently been concern that locksmiths, particularly those who are licensed, should be appropriately vetted. That is especially true of those given training in the skills of gaining entry to property or in possession of a badge of quality assurance which is looked for by those in greatest need of someone trustworthy. Under the current system, it would be possible for an individual with many spent convictions or cautions for theft to apply for membership of and training with the Master Locksmiths Association, and it would be unlawful for the MLA to see or consider that crucial information before awarding MLA member locksmith status.

Crime prevention is always a priority for the Government, hence the frequent publicity campaigns encouraging the public to take issues of home security seriously, fit reliable locks and install security systems. The MLA, as the principal trade body representing locksmiths and promoting standards within the industry, runs a licensing scheme which enables the public to be reassured that their locksmith has been vetted. Indeed, the Home Office and many police forces recommend using an MLA-approved locksmith for crucial security purposes.

It is therefore only logical for the Government to take a joined-up approach and enable the MLA to ensure that those who are accredited with MLA member status can be verified as being of sound character and unlikely to abuse their skills. Indeed, before giving someone access to your house keys, or, even more crucially, the keys to a hospital, school or old people’s home, it is not unreasonable to expect that person to have been checked and to have been assessed as trustworthy and honest. Similarly, it is not unreasonable to expect that anyone signing up to an accredited course on how to circumvent locks and security systems without keys should be similarly checked. The MLA is keen to ensure that adequate vetting is conducted in both those circumstances, ensuring that those who are given the trusted MLA member status are reliable, and that those who sign up to their courses also meet their membership criteria.

Vetting decisions for locksmiths will be taken centrally by the MLA, ensuring that there is consistency of vetting and that information on spent convictions is used only for its intended purpose: to see if an applicant for MLA membership is suitable to work as a locksmith. The Government believe that it is entirely appropriate for the MLA to be supported in this, and that it should be given the necessary information to make an informed vetting decision. Hence the relevant provision in the current order which addresses an area where public protection could and should be improved.

On which note, I move to the provisions relating to Home Office licences to handle controlled drugs and precursor chemicals. The need to regulate access to such materials and closely regulate the sector needs no introduction. The industry involved in the legitimate production of controlled substances—for instance for pharmaceutical purposes—is hugely important. However, the consequences of criminality entering that sector would be dire. Although we need responsible people to produce controlled drugs for their intended purpose, and to destroy those controlled drugs which should not be in circulation, it is vital that those substances do not get into the wrong hands. For this reason, there are a number of drugs which it is illegal to handle without an appropriate licence from the Home Office.

The Government also have important international obligations, under a number of UN conventions, to ensure that narcotics and psychotropic substances are subject to adequate controls. The Home Office is responsible for fulfilling these obligations, and has recently become aware that this is an area where our safeguards need to be strengthened. This is what the current order seeks to support.

Specifically, the order enables the Home Office Drugs Licensing and Compliance Unit to assess all convictions of relevant persons when deciding whether to grant a licence to handle controlled drugs and precursor chemicals. A full enhanced disclosure will be issued, enabling an informed decision to be made.

The measure will be used responsibly; only specified people who are in a unique position to subvert or circumvent existing safeguards will be vetted. It will apply to those responsible for witnessing the destruction of controlled drugs, and the vetting will be conducted by the Home Office as part of the licence application. The measure, which is designed to prevent criminals obtaining and abusing a licence to obtain, make or distribute controlled drugs is an essential step in ensuring that access to controlled drugs and precursor chemicals is just that: controlled.

I will now speak to the provisions relating to regulated immigration advisers. The Office of the Immigration Services Commissioner—the body responsible for regulating immigration advisers—has proposed that this amendment be made to the exceptions order to help to tighten its current regulatory regime. It is illegal for anyone who is not a solicitor, barrister or regulated immigration adviser to work in the sector. The first two categories are already listed in the exceptions order, and there are several reasons why it is appropriate for the third to be brought into line.

Those who use the services of immigration advisers are often extremely vulnerable. They include recent victims of persecution, violence or torture; minors who may be unaccompanied; and those with no knowledge of the UK legal system and potentially little or no knowledge of English. For these people, immigration advisers are in a position of significant power and trust. They can represent their clients before tribunals, advise them on legal matters, and submit forms and applications about their immigration status to the UK Border Agency on their behalf. Furthermore, they may charge substantial fees for their services, and misleading their clients could result in an application being refused or detained or, at worst, the client being deported. In other words, there is therefore significant scope for wrongdoing, and it is essential to prevent those who would willingly abuse the system to provide false documentation, wrong legal advice or illegal services from being able to practise.

Since its creation, the OISC has taken enormous steps in regulating the profession and in ensuring that those who practise as immigration advisers do so for the correct reasons. However, it has now identified areas of weakness in its current vetting system that could lead to highly vulnerable individuals being abused, and as such it is only correct that we should help it to resolve them. The provisions in the draft order therefore enable the OISC to obtain criminal record disclosures for those whom it regulates. This means that it will be able to vet those who seek to work in this sensitive profession on the basis of all available evidence. In turn, it will be able to prevent those with a background of abusing immigration law from being able to gain a foothold in the sector of immigration advice.

Finally, I move to the provisions relating to the Criminal Records Bureau—the CRB. This body was set up in 2002 and is responsible for providing disclosures, including criminal record information, for all the purposes specified in the exceptions order. The nature of its work and the data to which it has access are obviously sensitive. A recent review of CRB staff security measures has recommended that, in order to meet government best practice, it should enhance its internal staff vetting from the current baseline standard checks. This need is made even more pressing by the fact that some of the CRB’s work is changing, with CRB employees playing an ever more active and involved role in ensuring an effective safeguarding system. As well as the CRB’s role in matching the individual named on an application form with a record on the police national computer, the CRB is increasingly conducting data-matching work that was previously conducted by the police. This will involve the CRB undertaking an initial search of police local intelligence systems. With both these searches, clicking “no match” may result in a clear disclosure being issued to a person with a criminal record or relevant local police intelligence.

The CRB will also be processing future applications for ISA registration on behalf of the Independent Safeguarding Authority. Failure to pass on details of a conviction to the ISA could result in a person who would otherwise be barred being allowed to work with children. For this reason it is vital that those working in this role need to be checked and cleared as not having any criminal history which would give cause for concern.

Those in the ISA who will be interpreting criminal record information to make barring decisions are already listed in the exceptions order. It is only logical that those who gather relevant information from the police national computer and are responsible for providing it to the ISA should be vetted to the same level. Put simply, as the CRB’s business develops, it is vital that those who have access to the police national computer and those who can influence the outcome of disclosure and barring decisions do not themselves have criminal records that they would rather keep hidden. I trust that the Committee will agree that this is not only sensible but essential.

In conclusion, the order is a clear illustration of the Government’s commitment to updating safeguarding legislation to ensure that it does not get left behind by changes in legislation and risk analysis. The rehabilitation of ex-offenders remains a priority, but the protection of the vulnerable in society is an absolute necessity, as is reducing the risk of abuse of trust in the immigration, drug licensing, locksmiths and criminal record-handling regimes. I beg to move.

I thank the Minister for that extensive explanation of this order. We obviously welcome the principle behind the rehabilitation of offenders and it is right that offenders should have a chance to wipe the slate clean, as it were, and make it easier for them to seek employment thereafter. However, there have to be exceptions to that which need regular updating, as the Minister said, to make sure that the appropriate ones are put in.

I was amused by his explanation as to why those seeking membership of the Master Locksmiths Association should be included. It occurred to me that a successful burglar probably would not need to be a member of the Master Locksmiths Association, but a successful burglar is probably much less likely to be caught anyway and, therefore, to have convictions; but the unsuccessful burglar might in later years want to seek membership of the association to improve his further career chances in that profession.

I am grateful for the Minister’s explanation as regards all five classes. I have only one question on which I hope he can help me. It relates to paragraph 3 of the Explanatory Memorandum on:

“Matters of special interest to the Joint Committee on Statutory Instruments”.

As I understood it, the Joint Committee referred to some problems which were explained in terms of a drafting error in the primary legislation when the original Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 was amended. There is an explanation of this in paragraph 3.2 which seems to relate only to what the department now,

“construe the delegated power as intended to refer to paragraph 3(3) of the Schedule”.

That is merely a statement by the department of its view. Can the noble Lord tell me if that is correct and, if so, when will the department find an opportunity to seek a proper amendment? Will that require primary or secondary legislation? In the mean time, does the department think that it will be safe to rely on the assertion it seems to make in paragraph 3.2 of the Explanatory Notes?

I also welcome the explanation offered by the Minister on the order. We welcome what he has said. Obviously, the order is sensible enough, and a good case is made out for the five various exemptions that the Minister has specified.

I raise this matter because I have shown considerable patience since the Home Office first produced its consultation paper on the Rehabilitation of Offenders Act. Having cleared it with the Public Bill Office, I am now in a position to promote a Bill on the Rehabilitation of Offenders Act. I am delighted that the noble Lord, Lord Henley, has offered the support of his party and that the Minister said that this matter remains a priority for the Government. I look forward to their co-operation in the matter.

The Minister mentioned that the Office of Immigration Service Commissioners regulate immigration advisers as defined in Section 82. I think that we are talking of the solicitors who offer people advice. Now the Government want to bring in other people who may not necessarily be qualified in legal matters and yet do valuable work advising on immigration, asylum and so on. I hope that I am right on that. If I am, can the Minister explain whether that is limited simply to immigration advisers operating in this country? What happens to people who come from abroad and are attracted to work with solicitors who are qualified in immigration matters? Is there any way to determine their status through the CRB and others before they work with vulnerable groups? Does a similar system exist in other parts of the world from which immigrants or asylum seekers come to this country?

I am also delighted that the order provides for sensitive occupations, such as work with children and vulnerable adults, to remain exempt from the proposals. That exemption will, to a great extent, reduce the scope of discrimination against former offenders and, because employing offenders reduces reoffending, it will also increase public safety. It will be very helpful if the Minister can take the lesson from this exercise that, while we support the order, it would be in the interests of the Justice Secretary, Jack Straw, rather than tinkering again and again with the Rehabilitation of Offenders Act by making exemptions now and then, to look at the whole provision and see whether parliamentary time permits to either introduce legislation or at least support my Private Member’s Bill, which I hope to introduce soon after the Summer Recess.

Turning first to the drafting error, it is in the primary legislative provision located in Schedule 2, which is inserted by the Criminal Justice and Immigration Act 2008. The reference in the second line of paragraph 4(a) to “paragraph 3(2)” should be to “paragraph 3(3)”. That erroneous cross-reference has arisen because paragraph 3(2) was inserted after the original clauses were drafted, and the cross-reference has not been updated to reflect that. The Joint Committee on Statutory Instruments was of the opinion, as are we, that this is a clear case of a simple error of drafting, and that the reference can be properly read as referring to paragraph 3(3), therefore providing the proper vires for this order. I am pleased to report that we have just received notification from the House authorities that they are proceeding to issue a correction slip—actually, I now have a copy of the correction slip with me.

I turn to the questions of the noble Lord, Lord Dholakia. Speaking personally, I am impressed that the noble Lord, Lord Henley, was able to detect the humour in my reference to locksmiths; it was in the middle of a very long speech.

On the issue of immigration advisers, in order to practise in this country as an adviser a person must be subject to regulation by the OISC. I will look at Hansard to see whether that answers the noble Lord’s question completely as he was going into some more difficult areas. I will write to him on it if I feel that it remains unanswered.

On the essential point that the noble Lord was making about his view that reform of the Rehabilitation of Offenders Act was long overdue, I am well aware of his commitment to this subject and I reassure him that the Government are also mindful of the importance of rehabilitation. That does not mean, though, that we can lose sight of the importance of public protection. Therefore, whether or not the reform of the Act is progressing as he desires, I am sure that he will acknowledge the importance of the current order.

I confirm that the commitment to reform the Act remains in place; however, no timeframe for such a reform has yet been set, and the task will not be a simple one when it arises. The noble Lord is aware of the pressures on parliamentary time and the ever competing priorities for it. I look forward to the noble Lord’s promised Private Member’s Bill, and we will give it careful consideration in due course.

Motion agreed.