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House of Lords Hansard
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Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2019
20 May 2019
Volume 797

Motion to Approve

Moved by

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That the draft Order laid before the House on 1 April be approved.

Relevant document: 24th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee B)

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My Lords, the purpose of this draft instrument is to include inquiries established under the Inquiries Act 2005 as “excepted proceedings” in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, enabling them to consider the spent convictions of individuals. This legislative change was requested initially by Sir John Mitting, chair of the undercover policing inquiry, as information on individuals’ spent convictions is important for the purposes of the terms of reference of that inquiry.

The inquiry is examining undercover police operations conducted by English and Welsh police forces from 1968 onwards, including whether the police were justified in launching undercover operations against a group. To give full consideration to this, the inquiry needs to be able to consider the convictions of members of the groups. However, given the historical nature of the inquiry, many of these convictions will be spent, and therefore not disclosable under the ROA. This statutory instrument will give the undercover policing inquiry the ability to consider spent convictions. This change is vital for the inquiry to fulfil its remit successfully, and your Lordships will be aware that there is a high level of public interest in the inquiry’s success.

The Rehabilitation of Offenders Act 1974 affords offenders protection from having to disclose their convictions and cautions once those convictions and cautions have become spent under the Act—the point at which the offender has become rehabilitated. The exceptions order lists activities or categories of jobs where those protections are lifted, so offenders, if asked, need to disclose spent convictions. The primary rationale behind the exceptions order is that there are certain jobs—positions of public trust and those involving, for example, unsupervised work with children—where more complete and, crucially, relevant disclosure of an individual’s criminal record may be appropriate, to mitigate risks to public safety.

The exceptions order is not limited to employment purposes, although that is its primary use. The amendment proposed here is not employment-related, but related rather to the consideration of evidence of spent convictions and cautions in inquiries caused to be held under the Inquiries Act 2005. While a number of judicial proceedings are exempt from the protections of disclosure—meaning that the individual must disclose them—inquires made under the Inquiries Act 2005 are not currently exempt. To oblige an individual to divulge previous spent offending history, if asked in the course of such an inquiry, we must amend the exceptions order.

Although the inquiries are made in public, we would expect all inquiries to preserve the anonymity of individuals as far as is necessary to respect their rights to privacy. In particular, the chairman has the power under Section 19 of the Inquiries Act 2005, in the form of a restriction notice, and individuals can seek to retain their anonymity through a restriction order. Inquiries will take decisions on a case-by-case basis, taking into account particularly the need to balance openness with any competing public interest in restriction or private interest in privacy. Noble Lords may be aware that the protocols and guidelines for such applications in relation to a number of recent inquiries, including the Grenfell Tower inquiry, the Leveson inquiry and the infected blood inquiry, are all clearly available on the internet.

This draft instrument is necessary to amend the exceptions order to enable inquiries caused to be held under the Inquiries Act 2005 to admit and consider evidence of convictions and cautions that have become spent under the Rehabilitation of Offenders Act, where it is necessary to fulfil the terms of reference of that inquiry. Although UCPI is a particularly clear case of an inquiry where spent convictions are relevant, this amendment will allow any inquiry under the Inquiries Act 2005 to admit evidence of spent convictions and cautions, but limited only to where it is necessary to fulfil the inquiry’s terms of reference. It is likely that other inquiries may in future need to consider spent criminal records, as these can be key to determining whether authorities have acted reasonably in assessing and responding to risk.

I have noted the concerns raised by the noble Baroness, Lady Chakrabarti, in her amendment to the Motion about all inquiries being added to the exceptions order. Our view is that the duties of all inquiries are of sufficient seriousness to justify their taking spent criminal record evidence into consideration where, and only where, they believe it is necessary to fulfil their terms of reference. Any limited interference with an offender’s Article 8 right to private life under the ECHR would be a necessary and proportionate interference with that right for the purposes of the UK fulfilling its obligations to inquire into the acts of public authorities.

Under Section 1 of the Inquiries Act 2005, inquiries are caused to be held by a Minister where particular events have caused, or are capable of causing, public concern or where there is public concern that particular events have occurred. Public interest is at the centre of the purpose of all inquiries. However, it is possible that evidence central to an inquiry’s terms of reference may be excluded because of the provisions of the 1974 Act. The Rehabilitation of Offenders Act provides vital protections to rehabilitated offenders; this is why we reformed it in 2014 to reduce the amount of time that most people with convictions would have to wait before their convictions became spent. The amendment we propose here relates to the consideration of evidence of spent convictions and cautions in judicial proceedings —namely, before inquiries caused to be held under the Inquiries Act 2005. We are introducing it because is necessary to ensure that inquiries of high public interest and concern are able to consider the evidence relevant and necessary to fulfil their purpose.

While this is the first request that has been received, the development of data protection laws in recent years has prompted much greater awareness among public bodies of their potential responsibilities around personal data, including criminal records. As some inquiries will be obligated to have regard to the rights of those who hold criminal records and to the legitimacy of using such evidence in the course of their duties, our view is that the duties of all inquiries are of sufficient seriousness to justify clarifying that they may take spent criminal record evidence into consideration where they believe it is necessary.

While we do not think that considering spent convictions is likely to be necessary in the majority of inquiries, adding only the undercover policing inquiry to the exceptions order would set a precedent that may well to lead to further requests. Adding these inquiries to the exceptions order now will ensure that more efficient use is made of the parliamentary process, as further amendments will not be required for each specific inquiry as and when it arises.

Not proceeding with legislation would materially impact the timing for the undercover policing inquiry to begin hearing evidence in June 2019. The chairman of the inquiry cannot currently admit spent convictions in evidence. Delay to this legislation would cause expensive delay to the inquiry, while not legislating would prevent the inquiry admitting this evidence at all. For this and other inquiries, this would mean treating people with spent convictions as though they had never occurred. Inquiries would then have to accept distorted versions of the truth, which could lead to conclusions based on false premises, which would not be in the public interest. I beg to move.

Amendment to the Motion

Moved by

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At the end insert “but that this House regrets that the Order introduces the provision for spent convictions and cautions to be disclosed to all future public inquiries, which risks undermining rehabilitation and a person’s private life, and calls on Her Majesty’s Government to respect protections afforded to offenders under the Rehabilitation of Offenders Act 1974.”

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My Lords, the razor-sharp Minister predicted my specific concern in her opening remarks. This instrument is overbroad—it is a sledge- hammer to crack a walnut. It quite rightly responds to a request from a chair of an inquiry, where the disclosure of spent convictions may be highly pertinent to the subject matter—the undercover policing inquiry. Based on that specific problem, we would legislate at one fell swoop so all future public inquiries are treated in the same way, so that the presumption is that spent convictions are no longer spent. These other inquiries could be into all sorts of matters and may not even be related to the criminal justice system, let alone relevant. This seems to lack the rigour that your Lordships’ House in particular tends to prefer for secondary legislation.

My concerns are echoed by the all-important Secondary Legislation Scrutiny Committee. It expressed concerns over the breadth of the power and the impact it might have on the lives that have been rehabilitated. The committee believes that the Government’s strong argument for the protection to be waived for the current undercover policing inquiry is persuasive, in contrast to that overbreadth that I am concerned about. In all other inquiries, present and future, spent convictions may be completely irrelevant. The Minister’s remedy is that an inquiry chair may rule them inadmissible. That may be after the horse has bolted if, for example, counsel representing different interests in a public inquiry decides to raise a spent conviction for any witness. Perhaps it is a firefighter in one inquiry, or a complainant or victim in another. It undermines credibility and is not pertinent to the subject matter in hand, in that public inquiry. This is an overbroad power. In my experience of your Lordships’ House—unfortunately, not of all parliamentarians—that kind of overbroad power, which undermines the principle of rehabilitation, must be of concern.

I completely take the Minister’s point about increasing concern over data protection and increasing understanding of the importance of respect for personal privacy and the guarantees we have in this country, for the first time, because of Article 8 of the European Convention on Human Rights; that of course is only enforceable in our law thanks to the much-maligned Human Rights Act 1998. I take all those points on board and am very glad that the Minister has put them on the record, but an additional challenge has arisen over the same period as that progress regarding the Human Rights Act, concern about data protection, with people perhaps caring more about data privacy than they did in the past. This is a counterchallenge in terms of a hardening, certainly during my adult lifetime, in attitudes towards those who have committed crimes in the past and an undermining of the culture of rehabilitation. In part, this is because the list of exemptions has grown under Governments of all stripes. Crucially, the rise of the internet has made it ever harder for past wrongdoing—even minor offences, spent convictions even in one’s childhood and youth—to be forgotten. That presents a very important practical challenge to the spirit as well as to the letter of the Rehabilitation of Offenders Act 1974.

To return to the central point, this is an understandable instrument: it came as the result of a specific request by one inquiry and one committee chair, but 23 inquiries have been established since the Inquiries Act 2005 and this is the first request of this kind. Does such a request—one versus 23—really justify passing this instrument? It would mean that spent convictions per se were up for grabs unless somebody thought to tell their representatives about a thing in their past, a minor conviction from their youth long ago, that they had not thought about but might be produced to challenge their credibility in the context not even of a civil or criminal adversarial proceedings but of a broader public inquiry. It is an overbroad power, not the sort of thing that your Lordships’ House is normally comfortable with. That is why I have reluctantly sought to express regret.

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My Lords, I declare an interest in this matter. In 2011, I promoted a Private Member’s Bill, the Rehabilitation of Offenders (Amendment) Bill. It had taken the Government nearly 40 years, despite many reviews, to finally consider what was right and proper in dealing with offenders and their rehabilitation process. The purpose of the Bill was that, after a specified rehabilitation period, ex-offenders should not have to declare spent convictions when applying for jobs, except in sensitive areas of work, such as criminal justice agencies, financial institutions and work with young people or vulnerable adults. Some parts of this Bill were accepted in the LASPO Act that was supported by my noble friend Lord McNally and supported by the then Secretary of State, the right honourable Kenneth Clarke. Since then, it has helped many offenders to leave the past behind.

We support the amendment of the noble Baroness, Lady Chakrabarti, which backs up observations about this order made by the Secondary Legislation Scrutiny Committee. The committee is right to draw our attention to this on the grounds that this order gives rise to issues of public policy. We accept that there is a strong argument for the protection to be waived in relation to the current undercover policing inquiry, and I do not oppose or object to that part of it—that can go ahead, as the Minister has said, in June this year. However, we object to the order taking the broader step of making this same provision for any future inquiry. We do not accept that the Secretary of State should be given blanket authority, which would in effect mean that spent convictions and cautions could be admitted into evidence for these inquiries. Each future inquiry will have its own terms of reference and will vary in contents on the matters under investigation. We need to examine in detail the implications of such decisions on the lives of the many people whose convictions are spent.

The inquiry’s terms of reference are set out by the Minister in consultation with the chairman of the inquiry. It is vital to preserve the anonymity of individuals and respect their privacy. Each inquiry will probe new grounds and each ground has to be examined carefully. We must never ignore the impact of disclosures on the lives of those who have been rehabilitated.

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My Lords, I well understand the need for this order in respect of the application that has been made, but innovating the Rehabilitation of Offenders Act to any extent can be done only as a matter of principle. It cannot be done ad hoc for a particular inquiry. Therefore, what is the principle under which it would be allowable in respect of this inquiry? The answer is that it is required to fulfil the inquiry’s remit. Only that would justify it. The application says, “We cannot fulfil the remit we have been given unless we are allowed to examine this matter”.

In my submission, it is extremely difficult to have an ad hoc system. The system ought to be governed, as the Rehabilitation of Offenders Act is, by principle. It is very difficult not to agree with the principle where an inquiry has been set up by a responsible Minister under the Inquiries Act with terms of reference which require that a particular matter should be looked into for the inquiry’s remit to be fulfilled. That is the principle which enables the noble Baroness to agree that it should be granted in respect of the police inquiry but not in others. It seems to me that if it is justified in the police inquiry, the reason for that must be examined. The reason is that it is required to fulfil the remit of the inquiry.

I feel sad in a way that this instrument is necessary, because I thoroughly agree with the principles of the rehabilitation Act, which are extremely necessary and desirable. After all, people should have the benefit of forgiveness by society if they possibly can, and that is what this is about. On the other hand, once you have to justify an exception, the principle by which you justify it must be what you state as the basis of it. Therefore, while I understand the point that has been made, the way in which the instrument has been drafted makes it clear that this happens only in a case in which this exception to the Defamation Act is necessary to fulfil the inquiry’s remit.

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My Lords, I am a member of the Secondary Legislation Scrutiny Committee, which considered this order, under the chairmanship of the noble Lord, Lord Cunningham, who I am happy to see in his place. I understand clearly the reasons why the undercover policing inquiry—which, as it stretched back into history, had to look a long way back—needed to be able to consider early offences. However, as the committee inquired, and we were concerned about how this might be applied and how it might affect individuals, we began to see the extent to which this narrow point might affect individuals in the future in an unattractive way. Therefore, although it is dangerous to take on an ex-Lord Chancellor, I say to my noble and learned friend Lord Mackay that I do not reach his conclusion, which is that one change should justify a change across the piece.

A lot of the points that I wanted to make have already been made, so I shall be brief. However, first, these are public inquiries, so a person’s conviction, no matter how trivial or long ago, may well be revealed. We drew the attention of the MoJ to this, and its response to us, quoted in the third bullet point of our report, was quoted pretty extensively by my noble friend in her opening remarks. It is, perforce, fairly general, as it is bound to be, and somebody looking to it for protection might wonder how it will be interpreted in the event, given the wide powers the chairman has to interpret where the public interest and private interest overlap. The MoJ went on, in the fourth bullet point of our report, to say that of course a person had some redress in the sense that they could always apply for a judicial review of the decision. That appeared to be largely fanciful. The idea that an individual, swept up into an inquiry like this, would have the time, resource, energy and confidence to seek a judicial review is not realistic, particularly since it would have to happen quickly. Once the name is out, the point of the judicial review is completely lost.

This is not the only place in the regulations which shows a lack of realism. Paragraph 7.5 of the Explanatory Memorandum says:

“The disclosure and consideration of the spent convictions and cautions will not affect any ex-offender’s protection against disclosure when applying for work”.

However, once a person’s identity is revealed, inevitably their positioning in a job interview is worse, or at least affected. In real life, if a recruitment committee is looking at two people of equal skills, and one has a bit of a black mark—it may be a small one which happened a long time ago, but nevertheless it is a black mark—there will be an inevitable tendency for the recruitment committee to decide not to take a risk and choose the other candidate, to the detriment of the person who has been swept up by these regulations we are talking about today.

The Minister justified this by saying that there was a lack of parliamentary time and that there would be bureaucracy and inflexibility if we required individual SIs to allow for exceptions to the Inquiries Act. However, as has been pointed out, so far there have been 23 in 12 years, so one application is not a huge use of parliamentary time to allow for something which offers better protection to individual citizens, who may have done something quite stupid or silly when they were young—which of your Lordships could look in the mirror tomorrow morning and say, “I’ve never done anything silly”? In many cases, we just have not been caught doing it. We therefore need to think more clearly about this. The case for widening the remit, especially without offering better protection and anonymity to individuals whose offences may have been trivial and long ago, has not been effectively made.

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My Lords, I am happy about the breadth of the instrument. I see very well the points that the noble and learned Lord, Lord Mackay of Clashfern, made, but I am also unhappy at the suggestion that if someone is told that their past is about to be disclosed, they can go to judicial review. That is a very unsatisfactory system. As I understood it, the Government were doing their best to reduce judicial review rather than increasing the opportunities for it. As the noble Lord, Lord Hodgson, said, that is indeed not a very satisfactory way to proceed.

Could there be some sort of filter, by which I mean: is it possible to keep the instrument as it is but require a chairman? I was chairman of various inquiries over the years, one of which was under a previous Act, the Cleveland child abuse inquiry, so I have some experience of the requirements of a chairman balancing public and private interests. I can see that it is highly desirable not to bring this back to the House again and again, but I wonder whether the Minister could go back to the Ministry of Justice to find out whether any chairman who wanted to invoke that would have to go through some procedure for it to be checked as to whether it was appropriate.

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I heard what the noble and learned Baroness said, but it seems to me that my noble friend’s concern is the sheer breadth of what is now proposed, and a filter of some kind. Chairmen of public inquiries are appointed after a great deal of consideration. I sat on the ad hoc committee of this House examining how the Inquiries Act worked. Perhaps the Minister should seriously consider whether a filter on whether a request should be allowed, as opposed to a general proposition.

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My Lords, I do not at the moment support the amendment but, from what I have just heard, I could be persuaded. It seems to me that the Rehabilitation of Offenders Act has two purposes: the first is that already discussed, which is about people’s occupation; the second is about the application for licences. For example, with a firearms licence, the person issuing the licence needs to be sure about the antecedents of the person involved.

For the reason that the noble Baroness, Lady Chakrabarti, said, you would expect that the inquiry chairman in any inquiry should know as much as possible about the subject matter. As she explained, because of the internet and many other reasons, the public may know more than the inquiry chairman. It would seem to me to be an odd conclusion if the inquiry chairman or woman were not in a position to have all the information available. Generally, we would expect that this person would be either a retired judge or someone very senior, who should be able to manage information in the most responsible way.

I could have supported the noble Baroness’s proposal if she had been able to say how she would have managed it instead. There needs to be a filter, which concerns the quality of the test which has to be applied: whether it is about necessity, which is what is proposed, or about who applies that test—a Minister or another mechanism. If not, people might think that it is an extension too far which may in future lead, if not to abuse, then certainly to people not being prepared to support public inquiries, which is the complete opposite of the intent that I think we all have.

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My Lords, it is as long ago as 1999 when the Better Regulation Taskforce examined the Rehabilitation of Offenders Act 1974 and questioned its relevance. That was followed by an inquiry by the then Labour Government, resulting in the promise of a Bill to amend the Act, which never happened. Then LASPO, mentioned by the noble Lord, Lord Dholakia, included some amendments, since when the Law Commission, the Standing Committee on Youth Justice and Unlock, the charity of which I have the honour to be president, have all raised objections to the application of the Act and the fact that it is hindering the rehabilitation of offenders.

At present, attempts at Private Members’ Bills, on which I took over from the noble Lord, Lord Dholakia, have twice had two readings in recent Parliaments. However, they have stalled while an order is awaited from the Supreme Court in judging on its hearing last July for an appeal by the Home Office and the Ministry of Justice against the rulings of the High Court and the Appeal Court, which were affecting the Rehabilitation of Offenders Act in general. I suggest that, rather than propose a statutory instrument like this one, everything should be postponed until the review of the Act that the Government presumably have in mind.

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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.

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My Lords, I am grateful to the Minister and to all noble Lords who spoke in this debate. To be clear, I do not see how these so-called checks and balances work here; one could be attempting to shut the stable door after the horse has bolted. A restriction might not even have been considered before counsel to one or other interested party in an inquiry brought into the course of proceedings someone’s long-spent conviction.

It is never nice to be on the opposite side to the noble and learned Lord, Lord Mackay, but there are two principles in this context: the public interest in favour of the rehabilitation of offenders, and the public interest in the openness and fairness of any public inquiry. It seems that it would not be disproportionate to have a debate of this kind every time a committee chair said, “We really need to get at spent convictions in the context of this material”. This amount of parliamentary time in your Lordships’ House is not disproportionate to that public interest. If that is thought too cumbersome, surely either the Inquiries Act or relevant rules of procedure might instead have been amended to require a committee chair in any inquiry to state at the outset that this is the type of inquiry that will in principle require the use and admissibility of spent convictions. That has not been done; the filtered approach that the noble Lord, Lord Hogan-Howe, suggested has not been adopted in this case. Instead, we have this overbroad, unfiltered system.

In the light of this overbroad secondary legislation that might well undermine the principle of rehabilitation and personal privacy, I beg to test the mood of your Lordships’ House.

Division 1

20 May 2019

Division on Baroness Chakrabarti’s amendment to the Motion

Content: 172
Not Content: 125

Baroness Chakrabarti's amendment to the Motion agreed.

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Motion, as amended, agreed.