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Rehabilitation of Offenders (Amendment) Bill [HL]

Volume 778: debated on Friday 27 January 2017

Second Reading

Moved by

My Lords, I ask noble Lords to note the date of the Rehabilitation of Offenders Act that my Bill seeks to amend. Much has happened in the criminal justice system during the 43 years since then which makes parts of it obsolescent, if not worse, and explains why both the recent Labour and coalition Governments proposed its review. The problem with Private Members’ Bills is that they can really tackle only one issue at a time and depend on being granted time by a Government, if they are to progress beyond Second Reading. So pressing is the need to reform a most important aid to the successful resettlement of prisoners into the community that, following the example of the noble Lord, Lord Dholakia, whom I salute for his tireless pursuit of reform over many years, and in anticipation of the reforms that Michael Gove, when he was Secretary of State for Justice, was expected to announce, I tabled my Bill last May, acknowledging that it was by no means complete in setting out what needs to be done.

Then, in November last year, Liz Truss, the present Justice Secretary, published Prison Safety and Reform, the first White Paper on prisons since 1991, which she described as,

“a blueprint for the biggest overhaul of our prisons in a generation”.

On reading this, particularly the part about rehabilitation, I noted these two aspirations:

“We need a fundamental shift in approach so we are focused on preparing offenders for future employment in modern jobs. We need to provide prisoners with skills for which there is a real demand from employers”.

If these aspirations are to have a hope of being realised it is important to ensure that those skills can be employed, which is precisely the purpose of the Act. In consequence, I have completely changed my approach, believing that an essential overhaul could be more speedily achieved if included in the White Paper implementation process, rather than being left to a private Member to tackle small parts separately.

My introduction to my Bill is therefore nothing other than a plea to the Minister to accept my contention, in the hope that amendment of the Act will henceforward be taken on by government. If he does not, I will continue to introduce my proposals in the form of successive Bills, which means years of undue delay. I must apologise to the House for, in my enthusiasm to seize what I saw as a possible opportunity for early achievement of my aim, failing to correct a number of factual errors, particularly in Table A accompanying Clause 1. I am also conscious that, because policy responsibility for criminal record disclosure legislation straddles the Home Office and the Ministry of Justice, reform will involve cross-departmental action, which it is beyond the pay grade of a private Member of this House to conduct.

The Act which my Bill seeks to amend was most ably described in 2015 by the noble Lord, Lord Faulks, then Minister of State in the Ministry of Justice, in his opening remarks in Grand Committee on a report from the Joint Committee on Statutory Instruments on the exceptions order to the 1975 Act. He said that,

“the primary legislation concerning the disclosure of criminal convictions and cautions … seeks to help the reintegration into society of offenders who have put their criminal past behind them. It does this by declaring certain convictions, after a specified period, as ‘spent’. Once a conviction has become spent, an individual is not required to declare it when, for example, entering most employment or applying for insurance”.—[Official Report, 9/2/15; col. GC 259.]

The Act was criticised for many years, on the grounds that the length of its rehabilitation periods and the exclusion of prison sentences of over 30 months from its scope did not do enough to rehabilitate offenders. Consequently, following particularly trenchant criticism from the Better Regulation Task Force in 1999, the Labour Government published a review entitled Breaking the Circle in 2002, following which they launched a consultation. In their response to that, published a year later, they said that they planned to publish a draft Bill containing their proposals for pre-legislative scrutiny. However, no draft Bill emerged, the Government claiming that, following the Soham murders, they could not set any timescale for changing the law, which I have always regarded as a lost opportunity.

In his foreword to Breaking the Circle, the noble and learned Lord, Lord Falconer, wrote:

“Removing the barriers to employment for ex-offenders must be a key element of any rehabilitation strategy”.

The report examined the,

“actions needed by Government, employers, and the public to support the resettlement efforts of those offenders who wanted to lead law-abiding lives, and to put their past behind them”.

Evidence proved that employment could reduce reoffending by between one-third and one half and that a criminal record seriously diminished employment opportunities.

The noble and learned Lord, Lord Falconer, had the importance of the Act to any rehabilitation strategy absolutely right, and in 2010 the coalition Government raised the hopes of those of us who sought its reform by including its revision in the consultation document Breaking the Cycle. The Government said that they would review the operation of the Act in line with their announced aim of putting more offenders “on the right path”, by enabling them to

“become law-abiding citizens and contribute to society”,

by finding a job and a home.

Acknowledging that the Act was overly complex and confusing, leading to many people not realising that it applied to them, Breaking the Cycle described it,

“as being inconsistent with contemporary sentencing practice”.

Therefore the Government said that they were taking a fundamental look at the objectives of the Act and at how it could be reformed, which included consideration of broadening its scope so that it covered all offenders who received determinate sentences and reductions to the length of rehabilitation periods.

In the event, there was no mention of the Act in the Government’s response to the consultation. To be fair, however, the Government tabled a new clause to their Legal Aid, Sentencing and Punishment of Offenders Act 2012, which reformed the Act in two key ways. First, its scope was extended to cover custodial sentences of up to 48 months and, secondly, the length of some of the rehabilitation periods was reduced. Surprisingly, although the remainder of the provisions in the Bill were enacted in March 2013, this clause was not brought into force until a year later.

Since I tabled my Bill, I have been in constant touch with two organisations which have been working on reform of the Act for years: Unlock, in which I should declare an interest as its president, and the Standing Committee for Youth Justice, which, in March last year, published an outstanding report, Growing Up, Moving On: International Treatment of Childhood Criminal Records. I have also spoken with the Minister for Prisons, Mr Sam Gyimah, and the Minister for Youth Justice, Dr Phillip Lee, encouraging both to adopt reform of the Act as part of the White Paper overhaul process. I have also spoken with the noble Earl, Lord Howe, and discussed the errors in table A, which I propose to correct by amendment in Committee.

That will not be the only amendment that I will be tabling. In the context of,

“the biggest overhaul of our prisons in a generation”’,

my first concern is with the current title of the Act. “Rehabilitation of Offenders” is misleading, because the Act does not say anything about how rehabilitation should be conducted but is all about criminal record disclosure. Why not call it the “Disclosure of Criminal Records Act”? By the same token, I also dislike the term “rehabilitation periods”, as they are better described as “disclosure periods”.

I now move on to the tone of the Bill, if Bills have a tone. The tone of the present legislation has been described as “a licence to lie” for people with convictions. Rather, I believe that it should be that no one released from prison should face a lifetime of disclosure, without the prospect of review. Asking an applicant, or employee, about spent criminal convictions, unless authorised to do so in excepted professions and occupations, should be made an offence. The 48-month spent limit should be removed, with determinate sentences of over four years becoming spent four years from the end of the sentence, as proposed by the Government in their 2003 response to Breaking the Circle. Those serving an indeterminate sentence should be given the opportunity to achieve rehabilitated status through a process of evidence submission to a criminal records tribunal administered by members of the judiciary. As an incentive to desist from crime, anyone recalled to prison would automatically have their disclosure period reset.

On the adult side, three other areas should be looked at. The first is motoring offences, which currently take five years to become spent, leading to such absurdities that an eight-month sentence, for actual bodily harm, will be spent before a fixed penalty notice for speeding. The Ministry of Justice and the Department of Transport say that they are working on this but, since the 2014 LASPO reforms, all has gone quiet. The second is court orders, which currently still have an impact when a conviction becomes spent. An ancillary order, such as a restraining or sexual offence order, can lengthen a rehabilitation period despite not forming part of a sentence. This results in some offences remaining unspent for many years, sometimes indefinitely. Finally, there are compensation orders, which, currently, have to be paid in full before the order is spent. The whole compensation order system is ineffective and riddled with mistakes, with neither courts nor the police maintaining proper records of payment, so why not the same fixed one-year period as fines?

I move on to childhood criminal records. Breaking the Circle contained the following:

“Consideration should be given to the development of criteria to identify young offenders convicted of minor and non-persistent crime so that their records may be wiped clean for the purposes of employment … at age 18”.

I have told the House before that, when inspecting the prisons in Barbados 16 years ago, I found just such a scheme in operation, with only the most serious offences carried forward, and have frequently asked, “If Barbados can, why can’t we?”.

The main change that is needed is to ensure that, at age 18, a child’s custodial sentence qualifies for a procedure leading to the possibility of it becoming spent, except of course life sentences and those for very serious offences. Youth rehabilitation orders should become spent as soon as an order is finished, bringing them in line with referral order periods. Detention and training orders should become spent six months after the order is finished rather than, as now, those of less than six months not being spent for 18 months, and those of over six months not for two years.

It has also been suggested that all under-18 custodial sentences greater than two years but less than four should become spent two years after the end of a sentence, and those greater than four years and less than life—which, currently, can never be spent—seven years after. There should also be consideration of whether it is appropriate that the same threshold for custodial sentences should apply to both children and adults.

Included in the overhaul of the Act should be a review of the accompanying Rehabilitation of Offenders Act (Exceptions) Order 1975. In particular, the Government should establish an effective system for identifying and stopping ineligible checks, which too many of the 4 million checks each year currently are.

The Ministry of Justice should lay down clear criteria regarding the eligibility of applications. The Disclosure and Barring Service should publish and maintain accurate guidance on its processes. Together, the Government and the DBS should then take action against employers that do not take reasonable steps to ensure that checks they apply for are eligible. Regrettably, although knowingly carrying out an illegal check is a criminal offence under the Police Act 1997, to date there have been no prosecutions as the DBS does not see itself as an enforcement body.

I hope I have made my case for an amendment, amounting to overhaul of the Rehabilitation of Offenders Act 1974, being adopted by the Government as part of the overhaul of our prisons, rather than apart from that process. Any rehabilitation programme worth its salt should include a disclosure scheme devised specifically to assist the employment process. The ineffectiveness of the existing Act has been compounded by the many changes since 1974, including sentence inflation, that have shifted the way in which offenders are treated by the criminal justice system in both sentencing and rehabilitation, rendering it unfit for purpose. Of course the protection of the public must remain the paramount driver of any assessment of risk, which is why certain types of employment should be excepted from some of the limitations on disclosure. But the scheme, which must be clearly explained to both employers and offenders so that they understand it, should apply retrospectively to all ex-offenders and be backed by a Criminal Records Tribunal. I beg to move.

My Lords, the noble Lord, Lord Ramsbotham, has explained the Bill in his usual thorough and clear way. It is my great pleasure to support the Bill and the noble Lord’s suggestion that the Government could envelop it in their wider programme of reform.

On 17 March I will stand down at the end of my term as chairman of the Youth Justice Board. That will bring to an end seven years of association with the Ministry of Justice, half of it with the MoJ as Minister here in the Lords and half as chairman of the Youth Justice Board. I say that because the two points I want to make are relevant to each of the jobs I have done.

Looking at the speakers list today, I see I am flanked by four speakers who have been extremely influential as mentors during my time at the MoJ: the noble Lord, Lord Ramsbotham, himself; the noble Lord, Lord Carlile of Berriew; the noble Earl, Lord Listowel; and the noble Lord, Lord Dholakia. I suppose I should add a fifth, the noble Baroness, Lady Chakrabarti, who is now on the Labour Front Bench, although I am not sure she was a mentor during that period; she was more of a menace—in the most constructive way.

One of the things I am most proud of is Section 139 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Unlock described it as positive but not perfect, and of course that is perfectly true. The fact is, though, that the reforms were as much as we could get our coalition partners to agree to. I was deeply influenced in my attempts by the noble Lord, Lord Dholakia, who had been pressing for more radical reforms. The truth is that my reforms were an exercise in the art of the possible. As the noble Lord, Lord Ramsbotham, explained in his introduction, the truth is that over the period both major parties lost enthusiasm for any more radical reform.

However, today gives us an opportunity to test the water to see if there is an appetite in government for further reform. We know the matter is in front of a number of bodies. At present, for instance, the Justice Committee is completing an inquiry into youth criminal records, and it is that particular area that I want to address in my remarks. Its activities follow the recommendation of the Carlile committee on court reform. I hope that my noble friend—I think I can still refer to him as that, although we now seem to be separated by quite a gulf; but not, I hope, in attitudes—will refer to that in his speech, because the Carlile report was an important help to government in charting their way for reform.

It was also a key recommendation in the review conducted by Charlie Taylor into the youth justice system. The Secretary of State is at present considering next steps for youth justice reform. I urge her to keep in mind that the youth justice system is not simply the junior branch of the adult criminal justice system. The Taylor review is clear that we should develop a distinct approach to treating childhood offending. “Children first, offenders second”, is the mantra that Charlie Taylor advocated. It has been the guiding light of the Youth Justice Board both in the community and in the secure estate over the board’s 17 years of existence.

There is a strong case for following the logic of the Taylor report and the Government accepting the Carlile recommendation for the expungement of criminal records at attaining the age of 18, excluding homicide, serial sexual offences and other violent crime. As the noble Lord, Lord Ramsbotham, explained, this is not woolly liberalism, but sound common sense, as is the continuation of anonymity for young offenders who come before the courts. All the evidence shows that resettlement into a job is the best way to avoid reoffending. I pay tribute to companies such as Timpson, National Grid and many others in the private sector who are willing to take on ex-offenders. The existence of a criminal conviction can undo years of successful rehabilitation work.

The Government are bound to say today that they are awaiting the outcome of a number of cases before the court regarding disclosure, and the findings of the Justice Committee inquiry, but I hope that the noble and learned Lord will acknowledge that the impact of the 1974 Act has been beneficial, but that it now suffers the problems of age and that we need the kind of widespread reform of criminal records advocated by Nacro, Unlock and the Standing Committee for Youth Justice.

About two years ago, I went to Bucharest for a conference on treatment of youth justice, and I was genuinely surprised and shocked—perhaps I should not have been—by the number of colleagues from other parts of Europe who said to me, not in a hostile but in an understanding way, “Of course, we know that yours is a punitive and penal policy towards young offenders, whereas ours is welfare based”.

I hope that we are moving in the direction of a welfare-based approach to young offending. Charlie Taylor is right: they are children first, offenders second. Of course victims have to be protected, but I remind colleagues of the key findings of the report to which the noble Lord, Lord Ramsbotham, referred. It stated:

“This report examines how childhood criminal records”—

those acquired under the age of 18—

“are treated in 16 jurisdictions. Of all the areas we looked at, the system in England and Wales is one of the most punitive. A criminal record acquired by a child in England and Wales can affect that person for longer, and more profoundly, than in any other jurisdiction under consideration … The overall environment is such that a childhood criminal record, even for a relatively minor offence or misdemeanour, can have severe implications during childhood and beyond into adulthood; this can affect an individual’s education, employment and other prospects for years to come”.

That is the wrong that I hope that the Bill moved by the noble Lord, Lord Ramsbotham, begins to right, and I look forward to a positive response from the Minister.

My Lords, I start by saying how strongly I support the Bill proposed by the noble Lord, Lord Ramsbotham, who has built up an enormous wealth of knowledge about the penal system since he first became involved in it as Chief Inspector of Prisons, and we listen to him with great respect.

Your Lordships will not be surprised to hear me say, after the speech that we have just heard, that it is a great pleasure to follow my noble friend Lord McNally, albeit from this distance, rather than sitting next to him these days. Both from the Government Front Bench during the coalition and in his very distinguished period as chair of the Youth Justice Board, he has made an immense contribution. The Youth Justice Board has done a remarkable job in recent years, particularly in helping to reduce the number of young people held in custody.

If I have a slightly adverse comment about the Bill it is that, for my taste, it goes nothing like far enough. I do not believe that there is any really convincing evidence that using criminal records to prevent people obtaining perfectly ordinary jobs after a conviction that comes somewhere in the middle of the criminal calendar does anything other than send them back to prison. My view is that we should be very radical about these matters. There is, of course, cross-party support for being very radical about these matters, and I respectfully remind the noble and learned Lord who will reply to this debate of the contribution made by Michael Gove on these matters. It may be dangerous to cite Michael Gove these days as an argument ad majorem on almost any issue, but it has to be said in a debate like this that Michael Gove showed remarkable commitment to reforming the youth justice system. I believe that Michael Gove and Charlie Taylor, who has already been mentioned, and who produced his excellent report, were committed at the very least to the kinds of proposals that we are hearing now. I hope that the new Lord Chancellor will, within a short time, see that she, too, should support this agenda.

I want to say a few words about youth justice. As has already been mentioned, I had the privilege of chairing an unofficial, all-party parliamentarians group that reported on the youth courts system in June 2014. The group had as one of its members a then Back-Bencher who is now the Solicitor-General, Robert Buckland. As a committed Conservative of long standing, he was as enthusiastic as anybody about the changes that we were suggesting. “Treating children as children” should be a mantra that we keep repeating; it means a great deal more than some similar mantras that we have been hearing in recent times in the political agenda.

I recall in particular one instance, when I was a Member of the other place between 1983 and 1997, a woman who was a teacher came to see me one day at a constituency surgery. She was having a successful career as a teacher, and it was really time for her to move on and look at becoming a head of department in another school. She had a conviction for possession of cannabis while at university for which she had been fined £25. I should say that I do not, but I would not mind betting that quite a few Members of your Lordships’ House of a certain age were fined £20 or £30 for possession of cannabis. I see a few nods around the House, but I shall not name the nodders. She was prevented from obtaining that new job because, when the choice came between her and another person of equal merit, it was that conviction that prevented her obtaining her promotion—she told me so because she had been told so. It seems to me ludicrous that that should still obtain today. She was a person who was not going to get into trouble again; the fact that she did not obtain the job as head of department meant that she would carry on working in her present job—but there are people who are prevented from obtaining employment who, because of a criminal record obtained when they were very young, do not obtain a new job and go on to commit crime and walk round and round and round in that terrible revolving door that is the entrance to a prison.

As we have, alarmingly, been hearing this week, we see in prisons all the worst aspects of a criminal justice system that is built on punishment. Of course there are people who should be locked up, but when I was a young barrister, nearly half a century ago, I was told never to use the word “punishment” in a court room. Now it is used all the time. We are losing integrity by that approach to the criminal justice system. The Bill makes proportionate provisions that would make a significant, if not complete, contribution to people whose lives have started badly but whose potential can be unlocked.

My Lords, it is a great privilege to follow my noble friend Lord Carlile. Thanks to the report of his important inquiry, we are now beginning to see solicitors and barristers in juvenile courts being trained to work with those clients. For many years now we have sought to ensure that professionals in courts understand child development and the vulnerability of their clients. I pay tribute to the noble Lord for his great achievement.

I warmly welcome this Bill, in the name of the noble Lord, Lord Ramsbotham, and particularly the attention it focuses on dealing with the criminal records of young people in a more sensitive way. I stress to the Minister that I hope the Government will look at the criteria for 18 year-olds, particularly as they affect young people from care, who are vastly overrepresented in the juvenile secure estate. The review by the noble Lord, Lord Laming, recognised that far too often in the past we failed to avoid criminalising these young people. In order that they may have a better go at life, and that we can do better for them, I hope the Minister will be prepared to look at these young people in particular.

Many of these young people will become mothers and fathers themselves. Many will have had a very poor start and I am sure we would all want them to have employment and a home to give stability to their children. I attended a National Grid Transco award ceremony where a father who had stuck in employment received an award. It was a moving moment to see his very young child and partner there to celebrate his achievement. I thank the noble Lord, Lord McNally, for his kind comments. His contribution was, as always, humane, pragmatic and moving. I hope the Minister will pay great attention to his final words in particular. I am grateful to him for his work in heading the Youth Justice Board. It has been particularly difficult because the board has been so successful at reducing the number of children in custody. We are now left with about 1,000 children who are often very troubled and very troubling. The noble Lord has a great and challenging portfolio and he has done a very good job in managing it.

The Bill is timely, at a time when the Prime Minister has recognised that so many people and families in this country have been left behind. Austerity highlights this, but it is a historic problem. We have seen the closure of children’s centres—which are vital for dealing with social disadvantage and for social mobility—and youth services, which are vital for reducing offending. There is a housing crisis; we are approaching the high levels of 2003, with many families staying longer in bed and breakfast than they should do. This affects the mental health of children in those families and their access to education and friends. Child and adolescent mental health services are struggling, having been the Cinderella for a long time, and many libraries have been closed.

Childhood in Britain today is a challenging experience for many young people. One in five will grow up without a father in the home. This is difficult for boys and particularly difficult for girls. They have access to social media. As they become adolescents, they become far more interested in their peers than adults, and they can find all the worst examples of behaviour very easily on the internet. Parents are often torn between their work and their family. There is a growing awareness of the difficulties of adolescence and of the impulsiveness that I think we all recognise. Now the doubting Thomases can look at a brain scan and see why young people can be so impulsive.

I have talked a little about the care experience. There are still many shortcomings in the care system, despite very welcome work by many Governments. Half of young people and children in custody have been in care, as have a quarter of adults. The specialist mental health services for looked-after children have been cut. Foster carers talk of the difficulty of accessing social workers for support. Children’s homes still have very low-qualified staff compared with those on the continent and care leavers receive patchy support.

I will end on a hopeful note. Thanks to the work of Minister Timpson and the noble Lord, Lord Nash, in this House, we are seeing progress. The latest Children and Social Work Bill introduces a new covenant to offer better support to care leavers. I mentioned the National Grid, and Timpson has been mentioned. The Technical and Further Education Bill will provide better vocational options for young people. Much good work is being done. This timely Bill will build on that good work and ensure that 18 year-olds who started life badly and have often had very poor support get a better chance in life so that they can get a job and a home and be good mothers and fathers to their own children. We can break the cycle that is behind this issue. I look forward to the Minister’s response.

My Lords, I add my support for this Bill introduced by the noble Lord, Lord Ramsbotham.

I have made two previous attempts to reform the Rehabilitation of Offenders Act that ultimately received the support of the coalition Government. It is for this reason that I want to put on record my thanks to the noble Lord, Lord McNally, who is now the chairman of the Youth Justice Board. I endorse what the noble Earl, Lord Listowel, said—namely, that this is probably one of the most successful agencies operating in the criminal justice field today. I also add my thanks to the former Justice Minister, Kenneth Clarke, who was the Secretary of State at the time, for the support that he gave to my measures.

The impact of these measures has helped to shape the lives of thousands of people by directing them away from the criminal justice process. The Bill seeks to extend the protection which the Rehabilitation of Offenders Act provides to former offenders who have served sentences of over four years but have left crime behind them and stayed out of trouble for periods of eight years or more—a long time.

The Rehabilitation of Offenders Act 1974 provided that, after specified rehabilitation periods, ex-offenders do not have to declare spent convictions when they apply for jobs. The Act does not apply to people applying for jobs in sensitive areas of work such as criminal justice agencies, financial institutions and work with young people or vulnerable adults.

Initially, the Act applied only to offenders serving sentences of up to two and a half years. However, following my introduction of a series of Private Members’ Bills to reform the Act, the coalition Government agreed to extend the Act to include offenders who have served sentences of four years or less. Even now, however, many genuinely reformed ex-offenders can never benefit from the Act. More than 7,000 people a year are given sentences of over four years. At present they can never be rehabilitated for the purposes of the Act, however much they do to change their ways and over however long a period. Our provisions are still notably less generous than the rules which apply in many European nations—a point well made by my noble friend Lord McNally. Most European countries typically apply rehabilitation periods to sentences that are longer than four years, and their rehabilitation periods are often significantly shorter than ours.

Since the Act was implemented, sentence lengths in this country have significantly increased. Many offenders who would have received sentences of four years or less in 1974 are receiving sentences of five, six or seven years today. This 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.

The buffer periods which are proposed in the noble Lord’s Bill would begin after the sentence was completed—including any post-release supervision. The offender would then have to remain crime-free for a buffer period of four years for custodial sentences of four years or more. This would mean that those benefiting from the Bill would have to avoid crime for at least eight years, and in some cases for a much longer period, before the provisions applied to them.

The new provisions would not apply to jobs in sensitive occupations, as I mentioned earlier. However, the provisions of the Bill would further reduce the scope for unfair discrimination against ex-offenders in the job market. Regrettably, such discrimination is still widespread. Surveys of ex-offenders in Nacro projects—I declare my interest as president of that organisation—have shown that 60% have been explicitly refused a job because of their criminal record.

Of course, it is sometimes reasonable to refuse an ex-offender a job because of his record. For example, obviously we must bar offenders with a history of offences against children from working with children. We should bar offenders with a history of offences against elderly people from work caring for elderly people. The Bill would not apply to cases such as these, which are covered by the exceptions to the Act. However, in many cases employers turn down applicants because of offences that have no relevance to the jobs for which they are applying. Unfortunately, the scope for discrimination against ex-offenders is wide, because decisions to employ or refuse people jobs are not made at the top of companies; they are made by a large number of individual managers and personnel staff who usually have had no specific training in how to deal with applications from people with criminal records.

Unfair discrimination against ex-offenders is wrong in principle, because it imposes an additional illegitimate penalty of 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 reoffending 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—and reformed offenders are also helped to avoid returning to wasting their lives in criminal activities.

I conclude by saying that the Bill would enable more people with criminal records to start again with a clean slate after a substantial number of years free of criminal activity. This is a worthy aim, and I am delighted to commend it and to support the Bill.

My Lords, as a past trustee for many years of the Koestler Trust, which puts the arts into prisons and encourages prisoners to take up music, painting and writing, I support my noble friend Lord Ramsbotham and his important Rehabilitation of Offenders (Amendment) Bill.

One of the most telling results of the work of the Koestler Trust is the bestowal of the gift of hope, the possibility of redemption and the extinguishing of stigma—so, too, with the effects of the “spent” system. We heard yesterday of the appalling rise in the number of suicides in our prisons and we constantly hear about overcrowding and understaffing leading to some prisoners spending 23 hours out of 24 in their cells, denied proper exercise and time in the open air and natural light. These are not statistics of which a civilised society can be proud.

Therefore, while a Conservative Government may well feel that they are pledged to send out a message of strict punishment for criminals, they are in a spot, because they are running out of places to put them. Far better, surely, to take a lead from Norway, where prison is avoided wherever possible and an enormous emphasis on creative rehabilitation has led to a 20% rate of reoffending, as opposed to 60% here, for those with short-term prison sentences, and 70% in America.

Hope can be achieved in a number of ways, but certainly the ability to feel that a debt to society has been paid, to wipe clean a slate and to be rewarded by having an offence and sentence regarded as spent is a vital part of rehabilitation, especially in the young, whose youthful indiscretions might otherwise permanently blight adulthood. I sense all round your Lordships’ House particular concern for this aspect of imprisonment and children.

Artistic endeavour and the prospect of earning respect through good behaviour are linked, and both lead to a more cohesive society inside and outside prison. Freud described creativity as an extension of fantasy, and fantasy as a way of transcending the travails of reality. Furthermore, psychologists such as Viktor Frankl have demonstrated how in, for example, the concentration camps in the Second World War inmates who were able to conjure up a future—that is the important point—through writing, composing or painting had a greater chance of survival. I am not, of course, comparing our prisons to terrible places such as Auschwitz but I think that some of the things that we have learned from—if I may put it this way—humanity in extremis about existential thought and about hope provide useful lessons from which we should and must learn.

Surely it is vital and an attractive prospect for the Government to reduce the pressure in prisons by rewarding those who demonstrate good behaviour and a desire to move on in life. It is not a soft option but common sense to seek to foster a more redemptive criminal justice system.

My Lords, I rise with some trepidation among the experts taking part in this debate. I thank the noble Lord, Lord Ramsbotham, for introducing this important Bill.

The process of the rehabilitation of offenders upon completion of a sentence has a dual purpose. The Rehabilitation of Offenders Act serves as an extension to custodial, monetary or community sentences by mandating ex-offenders to inform employers and voluntary organisations, when asked—usually during the application process for employment—whether they have any unspent convictions.

For many who have entered the criminal justice system, the Act also provides an opportunity to be relieved of the obligation to declare such information after fixed periods of time. This protection not only incentivises the ex-offender, as we have heard, to remain on the right side of the law; it also provides them with the certain knowledge that, at some point, they will no longer have to identify themselves as a criminal.

Notwithstanding the exceptions for very serious crimes, where offences are never spent, or environments where public safety is paramount and even spent convictions must be disclosed, the Rehabilitation of Offenders Act is a ray of hope for anyone seeking to make more productive life choices than those of their past. This is extremely important in helping them to reconnect with their families, where their term in imprisonment has caused rifts and stresses, especially where children are concerned. Knowing that they will not always have to carry the stigma but can move forward can be a life saver.

The existing Rehabilitation of Offenders Act provides no opportunity for an ex-offender’s sentence to be spent if a custodial sentence of four years or more is imposed. Although it is widely accepted that custodial sentences are reserved for more serious crimes, it must be said that many offenders in this category are left with little option when any hope of gaining employment is taken away from them.

The 2013 Ministry of Justice analysis of the impact of employment on reoffending following release from custody identified a marked reduction in reoffending when offenders entered employment. They had a job for which they were paid and were, therefore, able to support accommodation and a home—all essential to well-being and self-esteem. When able to maintain employment, the reoffending rate dropped dramatically. Reoffending rates for prisoners released after at least a year in prison dropped from almost 70% to 32% when they were able to maintain employment.

For low-level offenders, the existing Act serves merely as an extension to their sentence. Can you imagine that anyone sentenced to four years in custody for a serious assault at the age of 18 would still have to declare that conviction well into their 60s, even if this was their only custodial sentence? As the noble Lord, Lord Carlile of Berriew, mentioned, at 18, many of us were very different people from those sitting in the Chamber today. I am not suggesting that we were offenders, but we will have taken wrong turnings at some time. We have been lucky enough to move on.

Experience shows that the existing Act will not prevent the dishonest from lying to gain employment. However, it impedes the progress of those who could otherwise lead progressive and law-abiding lives, contributing to the economy through gainful employment. The reduction of the buffer period in the proposed Bill, during which convictions remain unspent, does not reduce the sentence or access to training and support services, neither does it provide an opportunity to wipe the slate clean. The reductions detailed in this Bill will give ex-offenders the opportunity to apply for jobs sooner, earn a wage earlier and pay their own way without the justifiable fear of rejection because of poor life choices.

The criminal justice system in the UK seeks to strike a balance at a time when budgets are increasingly tighter and it costs £37,000 to keep one person in prison for a year. The Government should be making use of all available tools to reduce reoffending and encourage ex-offenders to make better choices for themselves, their families and the wider community. Although I would never argue against the delivery of justice and the provision of security and protection from the most dangerous individuals, we must also recognise that the entire notion of modern, balanced, restorative justice is built on the belief that an individual has the capacity to rehabilitate, to learn to make positive life choices and to become a productive, contributing member of society. I welcome this Bill and sincerely hope that it will eventually pass all its stages and become law.

My Lords, my noble friends and colleagues are far too kind in giving me this opportunity to respond to a debate in which I think I have agreed with every word that has been spoken from across the House. The debate has been particularly pointed for both the humanity and logic in the contributions from all sides. It is always a particular privilege to listen to the noble Lord, Lord Ramsbotham, on any issue relating to prison reform and rehabilitation more generally. I must confess that when I was a child, the name Rambo conjured a rather different figure—a bloodthirsty cinema character played by Sylvester Stallone. Years later, when I entered the law, then the Home Office and finally a human rights NGO, the name Rambo was often whispered. I came to realise that it was the noble Lord, Lord Ramsbotham, to whom everyone referred. He has an incredible record of holding successive Governments to account on urgent issues—becoming increasingly urgent, I might add—in our penal system. It is in this knowledge that I completely support from this side his call for a Second Reading of this important Bill and everything he is trying to achieve by bringing it forward.

As we have heard, the Bill seeks to reduce rehabilitation periods and is one aspect of vital reform that is necessary to the now completely outdated 1974 Act. Despite commitments from successive Governments to push through reform in this area—we heard about the excellent Breaking the Circle report, produced by the Labour Government in 2002, to which the noble Lord referred in his introduction—we have seen only incremental changes over the years. That Act is now completely inconsistent with contemporary sentencing practice. The result is that, far from allowing reformed individuals the second chance that is promised in the Act, its shortcomings leave many excluded from any prospect of rehabilitation and meaningful employment after they have completed their sentences.

Under the current legislation, as we have heard, the rehabilitation periods—in truth the disclosure periods—are overlong and not based on any real evidence. For those serving sentences of over four years, convictions can never be spent. Individuals are therefore forced to live with the shadow of their convictions, through a lifetime of disclosure and without the prospect of review. In addition, the legal regime relating to criminal record exposure, as laid out in the 1974 Act, is inclusive of children. Children, who find themselves exempt under this Act from the presumption that their spent sentence will not be disclosed, face a very uncertain future of indefinite disclosure, alienated from opportunities in education, employment and housing. As we heard from the noble Lord, Lord Dholakia, sentencing inflation over the years has changed and weakened the efficacy of the original 1974 Act regime.

In terms of non-disclosure of convictions, rehabilitation is just one part of a system that is supposed to serve those individuals and the general public. It is an essential tool in reducing crime and ensuring public safety. For our criminal justice system to be effective, it must be reformed in the round. We face a crisis in our prisons. Cuts to public spending under this Government, I am sorry to say, have been at the expense of prison security and public safety. Currently, over 84,000 prisoners are held in just 118 prisons, 75 of which are overcrowded. These 118 prisons are underresourced, understaffed and increasingly, dangerous places of violence. The Secretary of State herself has admitted that rates of violence and self-harm have increased significantly over the past five years, with 6,000 assaults on staff and 105 self-inflicted deaths in the 12 months leading up to June 2016. Since then, we have seen riots in six prisons across the country. It is not surprising in this context that our prisons are failing to deliver rehabilitation and, alongside a privatised probation service, are failing to reduce reoffending.

Against that backdrop, I share the noble Lord’s frustration with the much-anticipated White Paper, Prison Safety and Reform, published in November. Far from being,

“a blueprint for the biggest overhaul of our prisons in a generation”,

as promised, it lays down only sketchy policy objectives, very little guidance on implementation and even less on cost. The debate today takes place in this wider context and I urge the Government to respond to this Bill. I understand that the noble Lord, Lord Ramsbotham, intends to initiate a more substantial, cross-departmental review, beginning with criminal records disclosure and ending with the criminal justice system as a whole.

Finally, I commend the noble Lord, Lord Ramsbotham, for his perseverance and courage in bringing this issue back again and again. Yes, ultimately, this is an issue of human rights, but it is also one of sound public policy. He has dedicated so much of his working life to this and I hope to continue to dedicate mine in the same way. I look forward to making contributions to this House and to his campaign.

My Lords, I thank the noble Lord, Lord Ramsbotham, for bringing this matter back for debate in the House today and congratulate the noble Baroness, Lady Chakrabarti, on what I think is her first contribution to a Bill before this House. The Government share the noble Lord’s support for individuals with criminal records who wish to turn their lives around, and securing a job is often the first step on that journey. The Rehabilitation of Offenders Act 1974 exists primarily to support the rehabilitation into employment of reformed offenders who have stayed on the right side of the law.

Perhaps I may provide a little background to the 1974 Act and how it can support ex-offenders. Under the Act, following a specified period of time which varies according to the disposal administered or sentence passed, most convictions resulting in custodial sentences of up to and including four years become spent. Where a conviction has become spent, the offender is treated as rehabilitated in respect of that offence and is not obliged to declare it for most purposes. This could include when applying for employment, but also when applying for insurance cover or a bank loan. However, the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 lists areas of activity and proceedings which are exceptions to the 1974 Act. This means that the employer or some other relevant body is entitled to ask for and take into account certain details of a person’s spent cautions and convictions. These activities are usually concerned with working with children or other people in vulnerable circumstances, or where sensitive information is handled and there is a risk to the public of an abuse of trust. For example, the exceptions order covers teachers, prison staff, healthcare professionals and employees of the Crown Prosecution Service.

Where an occupation is listed on the exceptions order, an employer is eligible for a standard or enhanced Disclosure and Barring Service check that will contain details of certain spent and unspent convictions for the individual in question. Such DBS checks, as they are known, fall under the responsibilities of the Home Office. However, I would like to respond to certain observations made by the noble Lord, Lord Ramsbotham. Thorough guidance on the DBS application process, eligibility for checks, and the disputes mechanism are available on the DBS website. It also includes a new electronic eligibility tool which can help individuals to check whether a particular role is eligible for a DBS check, so that information is publicly available. The DBS checks are submitted via a registered body which is responsible for confirming that a particular role is eligible for a DBS check, and a statutory code of practice is already in place setting out the obligations that apply to those registered bodies. Should an applicant feel that they have been asked to undertake a DBS check in relation to a role that is not eligible, they can ask the DBS to investigate it. The DBS provides support and guidance for registered bodies and will take steps to suspend, and where necessary cancel, registered bodies that do not comply with the code of practice. So the DBS seeks to assure people that registered bodies are compliant with the existing code of practice.

The noble Baroness, Lady Chakrabarti, referred to the 1974 Act as outdated but as the noble Lord, Lord McNally, pointed out, it was in fact reformed and amended by the rehabilitation provisions in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which came into force in March 2014. As a consequence, a conviction resulting in a custodial sentence of four years or less, unless it is a public protection sentence, may now become spent. Previously, only convictions resulting in custodial sentences of 13 months or less could become spent, so a material change has been made. At the same time the coalition Government also reduced most rehabilitation periods. The present Government believe that these reforms are proportionate and that we have struck the correct balance between protecting the public and helping ex-offenders to put their criminal pasts behind them.

I turn to the specific proposals the noble Lord included in the Bill. First, we do not consider the proposals to amend the rehabilitation periods for offences necessary. It does not appear that the proposed rehabilitation periods take account of the 2014 reforms I just mentioned. As such, the Bill attempts to amend repealed legislation.

The Government have also introduced additional reforms to help improve the opportunities available to those with criminal records. In response to a Court of Appeal judgment in May 2013 we amended the exceptions order to the Act to enable old and minor convictions, cautions, reprimands and warnings to be filtered so that they do not automatically appear on a criminal record certificate. It remains the case that cautions and convictions for specified sexual and violent offences, and certain other offences relating to safeguarding vulnerable people, continue to be subject to disclosure, as do the most serious convictions for any offence that resulted in custodial sentences.

For other non-specified offences, however, cautions received as an adult do not need to be disclosed after a period of six years; for a conviction it is 11 years. In other words they are “filtered” out from the relevant certificates. This is dependent on the offence being the only conviction on an individual’s record. This addresses a point made by the noble Baroness, Lady Bakewell, on someone committing an offence in their youth and then finding at the age of 60 that this is necessarily disclosed. There is a filtering policy and process in place that means that such a minor offence that she alluded to cannot be taken into account by an employer. These periods are halved when the individual concerned was aged under 18 years at the time of the relevant offence. Again, youth offending is addressed in that context.

The second area addressed by the noble Lord’s Bill is the specific rehabilitation periods. The Bill would allow community orders to become spent after 12 months or, in the case of young offenders, six months. Such orders may last for up to three years, so this could result in many such orders becoming spent before they have been served. I am sure that was the intention. It may be that the intention is to apply these periods after the relevant period of three years has expired. Again, there is an issue there. Community orders are available for almost all imprisonable offences—obviously in appropriate cases—and it may not always be appropriate for offences resulting in community disposals to become non-disclosable as quickly as the Bill suggests.

As I mentioned, the Government have recently reformed this legislation. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 introduced reforms that commenced in 2014. The Government recognised in the interim that certain forms of sentencing practice had become more severe, as suggested by the noble Baroness, Lady Chakrabarti, and that as a consequence fewer ex-offenders would benefit from the original provisions of the 1974 Act. That is why the revised rehabilitation periods take account of the punitive weight of the disposal, and hence the likely seriousness of the offending. They also take account of the reoffending data, which show the length of time for which people are most at risk of reoffending. We consider that those amendments, which were accepted by Parliament, bring about the necessary proportionality to the existing legislation.

Thirdly, the noble Lord’s Bill seeks to allow determinate custodial sentences of any length to become spent. I recognise that he would like the current legislation to go further by enabling determinate custodial sentences of any length to become spent, but the Government consider that the present amendments to the Act that came into force in 2014 achieve the correct balance between rehabilitation of offenders and public protection. This is a two-sided coin and these issues have to be balanced. We do not feel there is a case for the law to go further at this stage.

Reference is also made in the Bill to the service justice system. Officials in the Ministry of Defence have highlighted a number of inaccuracies in the draft Bill from an Armed Forces perspective. There are out-of-date references to the service justice system, in that the Bill refers to the Army Act 1955, the RAF Act 1955 and the Navy Discipline Act 1975.

Before the Minister goes on, I mentioned that I had met with the noble Earl, Lord Howe, and discussed this, so I know that they are there. They were not corrected by me but I know what they are.

I am obliged that the noble Lord knows what they are; I wanted to advise the rest of the House, since other noble Lords may not be as familiar with these matters as the noble Lord has become following his discussions with my noble friend Lord Howe. I am concerned with the underlying thrust of the noble Lord’s Bill, not with matters of minor detail, and I quite appreciate that in the context of a Private Member’s Bill it may often be of assistance to have discussions about how apparently repealed legislation can be removed from a Bill and the Bill improved. I appreciate that. I am not attempting to make some ad hominem observation or criticism of the noble Lord at all; I just want to underline that the proposals made regarding the Armed Forces are skewed.

The point I was coming to is that the Armed Forces Act 2006 removed many forms of disposal that were previously used by the Armed Forces. In fact, the reforms to the Rehabilitation of Offenders Act in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 have been adopted by the Armed Forces, so we have the same issues arising both for the Armed Forces and elsewhere.

In summary, the Government understand the noble Lord’s concerns and we are, of course, committed to helping ex-offenders who wish to make a fresh start and put their criminal history behind them. We are desperately anxious to ensure that people do not simply leave the prison gate one day and return another. Despite this, we do not support the noble Lord’s Bill, given the reasons I have already outlined. I note the noble Lord’s views, I understand them and I would welcome the opportunity to engage further with him about how we can increase the support that is available to ex-offenders. We have already made some progress in this area.

I acknowledge that these matters are all interconnected. Rehabilitation, disclosure, opportunity for education within prison, opportunity for employment as people go through the gate from prison—all these things are linked. Since 2016, we have been running a campaign to encourage more businesses to provide training and work opportunities for offenders and ex-offenders. This has been carried out in close collaboration with the Department for Work and Pensions See Potential campaign. The noble Lord, Lord McNally, cited a number of instances where employers have come forward. This underlines the point made by the noble Lord, Lord Berkeley, that our prison system has to provide hope and opportunity, not just punishment.

The present campaign emphasises the general advantage to society of securing employment for ex-offenders and thereby reducing reoffending and unemployment. I have other examples, further to those mentioned by the noble Lord, Lord McNally. Amey, the large engineering firm, is now expressly training offenders and then recruiting ex-offenders into its workforce. Bounce Back is a construction training organisation that employs people on release from prison and, indeed, is now training them in construction skills during their period of imprisonment—albeit some prison governors have become slightly concerned at the sight of prisoners erecting scaffolding in the prison yard. It is important that such skills are made available. I understand the challenges on the present prison estate, which is why that, too, is being addressed at the present time. It is also why we have sought to give further responsibility to individual prison governors to determine how they take forward issues of prison education and prison education funding within their own institutions in order to secure the best outcomes.

It is our hope, now that the matter of education has moved from the Department for Education to the Ministry of Justice, that it can be expanded and improved within the prison estate. But, of course, expanding opportunity within the prison estate can be done only on the foundations of an improved prison estate itself. That is why the Government have made such a commitment to improving the physical prison estate in order to achieve greater and better results so far as recidivism is concerned, so far as opportunity is concerned and so far as the future lives of former offenders are concerned.

We are concerned to turn lives around and we do not wish to see them turned around and back to prison. We wish to see people given the opportunity for employment, given the opportunity for education and given the opportunity to change their lives. At this time we do not consider that the proposals of the Bill are appropriate. Nevertheless, I thank the noble Lord, and indeed all noble Lords, for their contributions to this debate.

My Lords, I thank all those who have taken part. In particular I thank the noble Baroness, Lady Chakrabarti, for her kind words, and welcome her to her first appearance on the Front Bench, which I should have done beforehand. Over the years I am sure that many of us came to welcome the briefs that were provided from Liberty when she was directing that organisation. We hope that that tradition will continue and we look forward to many contributions from her in her current position.

I have to say that I am extremely disappointed by the Minister’s response. When I represented the Bill as having been in close contact with a number of organisations—particularly Unlock, of which I am president, which is the national association of ex-offenders and therefore in touch with the difficulties that they are experiencing day after day—they did not put their concerns about the Bill lightly. As I said, these organisations and many of the ex-offenders do not understand all the conditions. The Minister may have mentioned that the DBS had a website, and so on. How many of them have access to that? I also said that employers did not understand, which was why there were so many ineligible requests for disclosure being made by employers. I made a particular plea for a mechanism to deal with that ineligibility, which the Minister did not answer.

With great respect to the noble Lord, I pointed out that applications for DBS checks have to be made through a registered body, and that those registered bodies are subject to a published code of practice.

But I remind the Minister that that is not happening. Even though there is the possibility of prosecuting people for making wrong approaches, it has never happened because the DBS says that it is not an enforcement body. Therefore, there is something missing.

I am very glad for the support for my proposal around the House. What I am suggesting is that in the context of the White Paper, it would be sensible for the Government to look at all aspects of resettlement, including this one. My offer to the Minister is that all those who have raised problems on the outside are more than willing to take part in that process. I hope that their evidence will not be taken lightly, because it has been drawn up over many years. As the noble Lord, Lord McNally, said, the list in Section 139 of the Legal Aid, Sentencing and Punishment of Offenders Act, in response to the two consultations, Breaking the Cycle and Breaking the Circle, was all that the coalition Government could get through. There were many others—and, indeed, are many others—and some of them have been lying dormant since 2002. It is time that they were brought forward.

As I gave notice, I intend to table amendments in Committee. In the interim, I hope that the Minister will reconsider his rejection of what is on offer, because the issue is far too serious to be let go with the prospect of annual Bills and annual making progress on small points.

Bill read a second time and committed to Committee of the Whole House.