Motion to Consider
This order is part of the Government’s ongoing commitment to keep safeguarding measures in step with developments elsewhere. The amendments contained within this order seek to maintain the balance between the rehabilitation of offenders and the need to protect the public.
As noble Lords will be aware, the Rehabilitation of Offenders Act 1974 seeks to aid the reintegration into society of offenders who have put their criminal past behind them. It does this by declaring certain convictions, after a specified time, as spent. Once a conviction has become spent an ex-offender is not required to declare it when, for example, entering employment, or applying for insurance. Research has consistently shown that obtaining employment reduces the risk of offending. Noble Lords will recall that in March this year, the Government implemented the provisions in Section 139 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which mean that more convictions can become spent and, in most cases, sooner. This means that even more ex-offenders can benefit from the Rehabilitation of Offenders Act, which should help them reintegrate into society.
However, there must be a balance, of course, to ensure that members of the public are adequately protected. To this end, the exceptions order to the Act allows certain employers, bodies and proceedings to be excluded from the application of the Act. When, for example, a person applies for a job listed in the exceptions order, the employer is entitled to ask about certain spent cautions and convictions, as well as those which are unspent. The exceptions listed relate to activities where the individual is presented with a particular opportunity to cause harm to the public or has regular contact with particularly vulnerable groups such as children. In these circumstances, we consider that the need to protect the public outweighs the need to protect the ex-offender from disclosure of their criminal record.
It is, therefore, the exceptions order which sets out the exceptions to the general protections under the 1974 Act. The Police Act 1997 is the related legislation which sets out the process for the issue of criminal record certificates and enhanced criminal record certificates, otherwise known as standard and enhanced disclosure. Standard disclosure contains details of a person’s unprotected spent cautions and convictions. Enhanced disclosure includes, in addition, any information which the chief officer of police considers is relevant to the particular application. These disclosure certificates are issued by the Disclosure and Barring Service.
In this exceptions order, we introduce four amendments aimed at maintaining the balance between the rehabilitation of offenders and public protection. There is also an amendment to update the description of a probation officer.
Following changes made to the Childcare Act 2006 by the Children and Families Act 2014, a person wishing to provide childcare on domestic premises will be able to register with a childminder agency instead of registering with the Office for Standards in Education, Children’s Services and Skills—Ofsted. This is so that childminder agencies can support the training and development of childminders, thus improving the quality of childcare provision. In addition, anyone wishing to operate a childminder agency will be required to register with Ofsted.
The amendments to the exceptions order will permit Ofsted to ask a person seeking to register as a childminder agency about their spent convictions and cautions. The amendments will also permit childminder agencies to ask those it proposes to employ about their spent convictions and cautions.
Special guardians are appointed by a court under powers in the Children Act 1989. They share the parental responsibility of the child with their birth parent but can exercise that responsibility to the exclusion of the child’s birth parents or anyone else with parental responsibility. The child resides with the special guardian but the legal relationship with the parents is not severed, as is the case in adoption.
Under the Children Act 1989, local authorities are required to provide a report to the court on the suitability of an applicant to be a special guardian. Regulations set out what should be included in the report, such as family background and experience of caring for children. There is no specific requirement for the disclosure of spent caution or conviction information as part of the process. Many special guardians, however, are, in fact, former foster carers who will have been subject to enhanced criminal records checks. The number of special guardians is increasing, however, and a significant proportion may not have previously had to declare convictions which may have become spent under the Act. This amendment will bring special guardians within the exceptions order so that local authorities can take into account spent convictions and cautions of the special guardian.
The third amendment relates to administrative and auxiliary staff in organisations such as children’s homes, adoption and fostering agencies. These people neither run organisations nor engage in work that falls under the definition of regulated activity relating to children, which is included in the exceptions order. Even where individuals are not employed to carry out regulated activity, however, they may still have access to certain sensitive information or some access to children, albeit not on a regular basis.
Parliament has already determined under separate regulations relating to those working in children’s homes, fostering agencies, et cetera, that questions about spent convictions and cautions should be permitted to be asked of a wider group of staff than those who are employed in regulated activity. We therefore need to make sure that the exceptions order is up to date with these regulations.
Following recommendation from the Legal Services Board, the Lord Chancellor is preparing orders to extend the practice rights to members of the Chartered Institute of Legal Executives, or CILEx. These orders will come before Parliament shortly. They will enable ILEX Professional Standards, or IPS, which regulates CILEx members, to authorise qualified and experienced practitioners to provide reserved and regulated legal services.
Once the necessary legislation has been approved by Parliament, the IPS will be able to award probate and conveyancing rights, and regulate legal practices that are required to have an approved manager. Fellows of CILEx carrying out these activities are already included in the exceptions order. The exceptions order now needs to be amended to cover regulated members who will shortly also be authorised to carry out these legal activities in order that they can be asked about their unprotected cautions and convictions. This amendment will also allow CILEx to ask about convictions and cautions of those who intend to be CILEx-approved managers.
The final amendment seeks to update the definition of probation officers to officers of providers of probations services, to reflect the definition in Section 9 of the Offender Management Act 2007.
I hope that I will have the agreement of all noble Lords that this instrument is a valuable tool in ensuring public safety. It illustrates the Government’s commitment to update legislation regularly to protect the public, in line with the latest analysis of risks. This instrument is focused on maintaining the correct balance towards public protection. These amendments to the exceptions order are limited in scope but clarify which people working with children are covered, and keep up to date with developments in the legal services sector. These amendments are reacting to the continuing need for public protection while maintaining the balance towards the rehabilitation of offenders that the Act seeks to find.
My Lords, I commend the Government’s stressing the importance of offender rehabilitation and their sensible way of dealing with spent convictions. I certainly support the order before us. However, it is confined to cases in which children are involved.
By sheer coincidence, last week the Government tabled a number of amendments to the Criminal Justice and Courts Bill, which will reach your Lordships’ House in about three weeks’ time, creating a series of offences concerning the ill treatment or wilful neglect of a range of people—not just children but other vulnerable people as well. That raises a question in my mind as to whether the order goes wide enough in terms of covering other people who are subject to care in the same way that the children referred to in it will be subject to care or reports. A wide range of people may be in such a position—for example, people suffering from mental health disorders or learning disabilities and those in elder care.
An area about which I have some general concerns is that of the Court of Protection and the appointment of deputies for people subject to powers of attorney. It seems to me that the same principles that the noble Lord rightly outlined in moving the order apply to those cases. I confess that I have not been able to check whether regulations already exist placing those involved in care in exactly the same position as those involved with children under this order, thereby enabling a check to be made on what would otherwise be spent convictions affecting this group. If that is the case, it is entirely satisfactory. If it is not yet the case, perhaps the Government will look at that.
I wish to raise a further point about the Chartered Institute of Legal Executives. The order refers to defined duties, as it were, and regulated work. A number of areas are defined. Probate and conveyancing are very sensibly added to the list as in those areas temptation could well be placed in the way of those with a record of dishonesty. However, in my submission, the same would apply to those engaged in guardianship work. I have in mind particularly powers of attorney, the Court of Protection and the role of deputies. The whole purpose of that court is to vest in the hands of a deputy power over the assets of a person who has become a patient within the meaning of the legislation. If that has not yet been embraced by previous regulations or is not implicitly included in this order, I suggest that the Government take a look at it because it seems to me a field which is certainly analogous to those which are clearly prescribed for CILEx in the order.
With those questions rather than reservations I am happy to support the order as it stands. If further regulations are required to deal with some of the points I have raised, perhaps the Government will look at those. They can be assured of our support if they decide that it is necessary to bring forward further regulations to cover the areas to which I have referred.
My Lords, I am grateful to the noble Lord, Lord Beecham, for the various points that he made pertaining to these provisions. I cannot give a comprehensive answer to all the questions that he raised. However, I can say that the exceptions order covers all those who are engaged in regulated activity, which includes all those working unsupervised with vulnerable people—that is, those in care and, I would imagine, subject to confirmation, those vulnerable for one reason or another such as those he exemplified in his remarks. I would be surprised if they did not have this protection, but I undertake to write to him to confirm that that is the case.
The question of whether someone should be employed if they have any form of conviction and the degree of disclosure is difficult because, for example, as part of the community rehabilitation process recently begun as part of the transforming rehabilitation process, some of those who may be recruited by the CRCs may in fact be offenders themselves who will be provided as mentors to former offenders, so that one does not to have a hard-and-fast rule about these matters. Of course, safeguards need to be very much in place to ensure that the correct people are selected as mentors. It is always a difficult balance to achieve. The Government think that they have achieved it with these necessary changes which will, of course, arise from time to time with the development of particular bodies or services, as in the case of CILEx. This instrument is focused on maintaining the correct balance towards public protection, and the amendments, although limited in scope, clarify which people working with children are covered and keep up to date the legal services sector. They respond to the continuing need for public protection but at the same time maintain the balance towards rehabilitation acknowledged by the noble Lord as something we should be striving for in so far as is possible without jeopardising public safety.