§ 10.25 p.m.
§ The Minister of State, Home Office (Mr. Alexander W. Lyon)
I beg to move,That the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, a draft of which was laid before this House on 9th June, be approved.It is now about 12 months since the House passed the Rehabilitation of Offenders Bill which subsequently became the 1974 Act. Implicit in the philosophy of that Act was that a man should be allowed to live down his past to the extent that, where he had been convicted of a criminal offence for which he had been sentenced to less than 30 months imprisonment, he could, after a period of having gone straight, expunge all the legal consequences of that conviction, with certain exceptions.
It was always recognised that in legislating in this way for a humane approach to the problems of the ex-offender there were certain areas where the public interest would outweigh the interest of allowing a man to live down his past. That was acknowledged by the Government and by the sponsors of the Bill, which was a Private Member's Bill. It was, therefore, written into the legislation that the Home Secretary could take powers to table exemptions from the Act. The order embodies our judgment about what is right to read into the exemptions to the provisions of the Act.
The House will recollect that the Act provided that the effects of a spent conviction shall carry no legal consequences in the following circumstances: in judicial proceedings other than criminal proceedings—that is the effect of Section 4(1)—in response to questions which are asked of the rehabilitated offender—that is the effect of Section 4(2)—where an obligation has been placed on him to disclose in law or by agreement—that is the effect of Section 4(3)(a)—and the effect of Section 4(3)(b) is that it is not permitted for the spent offence to be used to justify his dismissal from employment.
The effect of the exemptions in the order is to permit the spent convictions 170 to be used in those circumstances for the purpose of the excepted provisions, offices and employments, which are stated in Schedules 1 and 2.
It has not been an easy task to draw the line between what was required to protect the ex-offender and to justify the public interest. We recognised immediately in Committee that there would have to be an exemption in the case of a person who had to have close dealings with young people. That was an obvious area for exemption, and we have allowed for that.
We have also allowed exemption in occupations which have close contact with other people who would be vulnerable to someone who was evilly disposed. Therefore, most of the medical occupations are included within that principle in relation to the chronically sick, the mentally handicapped and the acute sick.
We recognised also that in the administration of justice, in the case both of the judiciary and of those who administer the law under the judiciary, and in relation to the treatment of offenders after conviction, the public are entitled to expect that there shall be no hint that any criminal behaviour in the past has not been brought to the attention of the authorities administering justice in this way. A good many of the exemptions, therefore, come within that category.
In addition, it was obvious that we should have to make exemptions in relation to national security. These also are written into the order.
There are then a number of other occupations of a somewhat mixed variety in respect of which the key question is that the public interest is so great that there must be no danger of an ex-offender getting into a position where he could damage the public interest unless the authorities which sanctioned that were fully aware of his previous convictions.
§ Mr. Bruce Douglas-Mann (Mitcham and Morden)
I am listening to my hon. Friend's explanation with great care. Will he explain why in relation to applications for employment we do not have in the order the discrimination between the nature of the employment and the nature of the offence which we have in Schedule 171 3? In Schedule 3 to the order we have provisions excepting specific proceedings in relation to specific offences, but that is not so in the rest of the order. For example, someone wishing to become a traffic warden can be required to disclose a conviction, no matter how long it has been spent, in order to be accepted. It may have been a sexual offence or a shoplifting offence. In relation to proceedings, on the other hand, we have a discrimination between the nature of the offence and the nature of the proceedings to which the disclosure relates. That is not so when it is an application for a job. Can my hon. Friend explain that?
§ Mr. Lyon
My hon. Friend is in error in thinking that Schedule 3 is drafted as he suggests. However, he has raised an important matter, and I shall come to it in due course, since it affects the whole of the order.
I was saying that there were a number of occupations of various kinds in respect of which we felt that the public interest outweighed the interests of the ex-offender, and I was about to give some examples. One is the case of a firearms dealer requiring a firearms certificate. We made exemptions also in relation to the Gaming Board because of the serious danger of criminal interests becoming involved in gaming—which was one of the reasons for the passing of the Gaming Act 1968 in the first place. We made exemptions also in relation to insurance companies because of the acute danger of the kind of conduct which has become only too familiar in recent years involving directors of insurance companies who have defrauded the public. That is, in effect, the justification for the exemptions in respect of a number of the various occupations which fall outside the classifications which I indicated previously.
I should add that, although the number of exemptions in the various schedules looks quite large, it is substantially less than the number of applications for exemption which we received. We were quite firm that we would not allow exemptions merely because a profession or employer believed that there would be personal danger to him if an ex-offender were employed. Therefore, we allowed no exemption for the banks or for the diamond bourse, nor in relation 172 to Hatton Garden or the Stock Exchange, the former of which applied for exemption on the basis that there might be serious danger in their public capacity if they employed ex-offenders.
I accept that there is a danger in having made that ruling, that sometimes a serious offence may be committed by an ex-offender who was allowed to be employed because his previous conviction did not come to the notice of his employer. That has always been the danger in the Act itself. However, the House took a clear decision last year—a decision which I suggested was right for it to take at that time and which I believe still to be right—that it was right to take that risk in the interests of a humanitarian move forward for the ex-offender. The House decided that it should bear the consequences of that risk. Therefore, we refused to exempt a large number of employers who applied.
In the cases where an exemption is specified under the order we decided to allow the notification of all previous convictions. That is the point that has been raised by my hon. Friend the Member for Mitcham and Morden (Mr. Douglas-Mann). It applies in the case of all the exemptions indicated in the order, and includes those under Schedule 3. I accept that it would have been desirable to specify in relation to each exemption the kind of offence which seemed to be germane to the consideration that we had in mind in making the exemption—for instance, in relation to the residential care of young children, to specify only sexual offences. However, we found that it was administratively impossible to draft the order in a way that would allow for all the exemptions with that degree of fine tuning.
Equally, I am not convinced, even at the end of what has been quite an exhaustive process, that we have drawn the line tightly enough. There are a number of occupations and employments which are specified in the order where I have some reservations still that we should have made an exemption. I think in particular of dentists, dental hygienists, dental auxiliaries, ophthalmic opticians and dispensing opticians. However, in some of those cases there was justification in the sense that there was access 173 to drugs. Others came under the general disciplinary body of their profession. For instance, it was difficult to make the exemption relate only to dentists and not to other parts of the occupation which come under the same disciplinary code.
I am not entirely happy, as the House can see, that it would have been impossible to have made the dividing line tighter. All I can say is that we shall keep both these considerations in mind—namely, the nature of the conviction that should be disclosed and the kind of occupation that should be exempted—as we monitor the effects of the Act. We hope that in due course it will be possible to introduce another order which will narrow down the exemptions.
It follows from what I have said about those two considerations that I do not believe that merely because a particular employer or a particular profession is allowed to inquire as to the previous spent conviction of a potential employee or member of the profession they should assume that Parliament is allowing them to use that conviction to the detriment of the employee.
We had a number of applications from people—most notably from the Ministry of Defence, which wanted to exempt all members of the Armed Forces—who said that they already took this factor into consideration in their recruitment policies and did not use previous convictions against a man in instances where it was unfair so to do. I do not see that there is anything wrong with those who now have an exemption under the order applying the same kind of refined policy to the information that will be disclosed to them.
For instance, it does not seem to be axiomatic that every previous conviction of a potential teacher should be said to be detrimental to his prospects of joining the teaching profession. There are obvious areas of criminal offences committed a long time ago of which it could be said that the man had lived down his past and that there was no danger to the children he would teach and that he should, therefore, be accepted into the profession.
Only a fortnight ago I received what in some ways was a rather heartwarming letter and in others a rather pathetic letter from a man who said that he had been looking forward to the implementation of 174 the Act for some time because he wanted to become a member of the Bar. He had had a conviction when he was 16 years of age when, with a group of other youths, he had been involved in a shop-breaking offence. He hoped that the Act would expunge the consequences of that when he applied to join the Bar.
He had written to the Senate and had received the reply that the matter would have to be disclosed under the existing law, and he was sorry that we had put in an exemption, as we have, for that offence to be disclosed. I have indicated that we have done so in order that those responsible for recruitment to the Bar should have the knowledge before them, but I do not take the view that in every single case a previous conviction would debar a man from practising in the legal profession. I think that in such circumstances the Bar could well take the view that the philosophy of the Act should be that a man's conviction at the age of 16 in such circumstances should be overlooked some 10 or 11 years later when he applied in wholly different circumstances to join the profession.
I want to stress that, because if we receive evidence that the exemptions are not being applied in the spirit I have indicated, it would be right for the Government to look again at the scope of the exemptions we have granted to see whether it is necessary for all these occupations to be excluded, and in particular to see whether the bodies concerned should receive every previous conviction however germane to their consideration.
Finally, as the House will know, the Act does not apply to criminal proceedings. That was a deliberate decision that we made during the discussions on the Bill. We found it too difficult to devise a dividing line between what was acceptable in criminal proceedings and what was not. We thought it better to leave it to the discretion of the court to apply the philosophy of the Act in the concrete situation that it faced in a criminal case.
In order to give some backing to that, we received an undertaking from the Lord Chief Justice that he would issue a practical direction spelling out the consequences of the Act for the criminal courts in relation to their sentencing. I am happy to tell the House that the Lord Chief Justice has approved a draft, 175 which I hope will be announced shortly, and which will set out for the courts the considerations they ought to apply in dealing with an offender when it comes to sentencing when that offender has a previous spent conviction. It was my hope that we would also be able to deal in this way with the question of the use of a spent conviction during the course of the trial in relation to the rules of evidence.
We found that it was not considered right to use a practice direction to amend the rules of evidence which had been established either by statute or by case law. In those circumstances the practice direction will not cover the use of spent convictions during the trial. Nevertheless, I hope that the courts and those who practice in them will observe the spirit of the Act in deciding what is relevant to put in relation to a witness or to the accused when they use previous convictions. I hope that it will be possible to avoid using a spent conviction either against a witness or against the accused save where it seems to be germane to the point being made which the court has to try.
I have no power to intervene. All that I can do is to express the hope that the courts will act in the way I have indicated. If it proves that practice does not follow the philosophy of the Act, it may be necessary to reconsider the law of evidence and see whether something can be done.
The upshot of the Act and the exceptions should be that over a wide range of activities in which the ex-offender wishes to engage he will now suffer no consequences whatever if when asked whether he has a previous conviction he denies it when the conviction has become spent. That will mean that considerable numbers of ex-offenders who made a mistake and have lived it down will be treated in future as if they had never made the error.
§ 10.48 p.m.
§ Mr. Percy Grieve (Solihull)
I welcome with some qualifications the order and the spirit in which the Minister moved it. All of us who approved of the original Act as an act of public mercy and as a useful tool in the rehabilitation of offenders in society recognised that in 176 practice it might give rise to considerable difficulties. I will not adumbrate all of those tonight. A great many are dealt with in the order. That is why I give the order qualified approval.
I share the Minister's hesitation about some of the inclusions and I regret some of the exclusions. I would have thought, for instance, that it was important to include the banking profession and perhaps the Stock Exchange. I regret that the Home Department has not acceded to the representations which I gather have been made by the banking profession. Since they have been excluded, I fail to see why dentists and dental hygienists have been included. I appreciate that there was a possible problem over access to drugs, but that pales into insignificance beside the access that some people have to enormous sums of money in the banks. If it was necessary, as I think it was, to include certain offices in insurance, it would have been useful to include banking.
This kind of point may sound carping, but this is a matter in which Parliament and society will have to proceed cautiously and slowly and judge the results as time goes on. I believe that the main result will be to enable large numbers of people to live down spent convictions. To that extent and for that reason, I applauded the original Act.
The Minister referred to the legal profession, particularly the Bar, of which he and I are members. I am sorry that he thought it necessary to sound a note of caution. It was plainly absolutely essential that the Inns of Court, in admitting people to the Bar, should be aware of anything that might have blotted the copybook of the would-be entrant. As a member of that profession, I have noticed over the years that the Inns of Court have been prepared to exercise mercy when people have applied to become members of the Bar who have had minor offences in their background. I should say that because at least one case came within my personal experience. There is no need to caution the Inns of Court or the Senate of the Bar in this regard. Their members are men of the world and they know how to look after the integrity of the profession which still resides in their hands.
With those words, I welcome the order.
§ 10.53 p.m.
§ Mr. Bruce Douglas-Mann (Mitcham and Morden)
The Minister is a man for whom I have the highest respect and admiration. I was pleased that he presented the order with some diffidence and clear evidence of apprehension and regret. That regret was fully justified. A good case could perhaps be made against the original Act. It may have been a bad Act: it may have been a good Act. What is not legitimate is what we are doing tonight, which is repealing its provisions in respect of the learned professions and leaving it in existence for the rest of society.
The order does not contain the kind of discriminating exceptions which have been proposed to the Minister by various local authorities. I have written to him expressing my own reservations about the type of detailed exceptions proposed by the Greater London Council. To be fair, they related to certain offences being disclosable in relation to certain jobs. I thought the council drew them a little too wide, but at least it had worked on the right lines. But to say that one could not become a traffic warden or hold one of these other professions because of a trivial offence in a wholly different field five, seven or ten years ago is ridiculous.
My hon. Friend said that the Ministry of Defence has argued that the Armed Forces should be exempted from the provisions of the Act. I can well imagine the pressures which are brought to beat on the Minister from the Civil Service, the local authorities, the nationalised industries, the bodies which are listed in the order, and the learned professions.
If an exemption is to be made, I want my bank manager to be accorded the same sort of treatment. It is not legitimate to repeal an Act by order which is presented quietly to a House which does not contain a large number of Members. We shall destroy the purpose of the Act if the order is approved in this form.
What I had expected from my hon. Friend was a proposal that specific exceptions should be made in relation to specific jobs for specific offences. For instance, it is right that somebody who is to have access to young children should have to disclose his convictions for sexual offences. Part II of Schedule 1 lists traffic wardens, probation officers, 178Any employment as a teacherProprietors of independent schoolsAny employment by a local authority in connection with the provision of social services or by any other body in connection with the provision by it of similar services, being employment which is of such a kind as to enable the holder to have access to any of the following classes of person in the course of his normal duties, namely—(a) persons under the age of 18 or over the age of 65".What person employed in local government work could avoid being in contact with persons under the age of 18 or over the age of 65? I should have thought that anybody employed by a local authority would have such dealings.
My hon. Friend said that, although the person concerned would have to disclose the information, the local authority or Government Department did not have to act on it. Of course it does not. But if not, why have the order at all?
What is proposed is the repeal of the Act as regards the entire public sector and the learned professions. I am glad to learn that my hon. Friend proposes this with reluctance, but I wish it was not proposed. I trust that my Friend will think again about the order. It is not the type of order that he, of all people, should have presented to the House.
§ 10.57 p.m.
§ Mr. Edward Gardner (South Fylde)
I do not take the view that the hon. Member for Mitcham and Morden (Mr. Douglas-Mann) has expressed, that this is a bad Act. I do not know whether it is a bad Act or a good one. I do not know whether I should be approving or disapproving of it. We simply do not know with any certainty—the Minister himself was frank enough to say this—exactly how the Act will work. One hopes that it will work well. Those of us who like the basic philosophy of the Act wish it well.
Before we can make any sensible or competent criticism, or, indeed, express any point of view about the order, it is necessary to reflect upon the philosophy of the Act. The main object of the 1974 Act was to protect the offender who has kept clear of crime for a qualifying period of years from an unauthorised disclosure of a previous offence. The length of the qualifying period depends upon the sentence which was imposed on the offender. 179 After five years for a non-custodial sentence, after seven years for a sentence of imprisonment not exceeding six months, and after 10 years for a sentence of imprisonment exceeding six months but not exceeding 30 months, a person will no longer be exposed to the necessity of disclosing his previous criminal offences. All that is aimed at making the rehabilitation of the offender who is determined to overcome his criminal past as easy as can be.
The Act is based on the report of a committee set up jointly by Justice, the Howard League and NACRO under the chairmanship of a former Lord Chancellor, Lord Gardiner. The committee, whose report the Government accepted and eventually acted upon, enlisted the help of the Home Office research unit, which examined a random sampling of the files of more than 4,000 male offenders convicted of indictable offences in the Metropolitan Police district in 1957. Using those figures, the committee worked on the assumption that there were approximately 1 million people in England and Wales with criminal records more than 10 years old and with no conviction since then. Even so, it is perhaps not surprising that many people on both sides of the House and outside were disturbed—and still are disturbed—by the provisions of the Act.
The proposals were laudable enough, but they were seen by the professions and those in certain occupations as a serious and unacceptable risk to the public at large. The Act did two things in an attempt to allay this anxiety. It made it possible for the Home Secretary by order to make appropriate exceptions to the provisions of the Act, and the order is such an instrument. Secondly, the Act was made not to apply to the criminal courts. As with the Act, so with the order. It is impossible to say just how either will work out in practice. There are, undoubtedly, dangers, some of which as yet have not been identified either by experience or by foresight.
It is sensible and right that the professions should be excepted by the order. For example, it would be wrong for a person who wishes to become a doctor, a chartered accountant or a member of the Bar to be allowed to omit any mention of a previous criminal conviction. As has been pointed out by the Minister and the 180 two previous speakers, it is difficult to see any justification for including among the exceptions in Schedule 1, Part I, the dispensing optician, the pharmaceutical chemist, the nurse and the midwife. It is difficult to see on what grounds these exceptions are made. I know not how strong are the facts, but I suspect that the representations made by professions with a statutory status have been so forceful and cogent that the Government have agreed to their exclusion.
Of course, teachers or any persons who have to work with children must be excluded, but why should hospital cleaners, cooks and porters, under the heading "Offices and employments" in Part II, paragraph 13, be excluded?
What is perhaps more remarkable than the inclusion of these exceptions is the omission of others. Why, for example, are architects, or those who wish to become architects, not excluded by criminal convictions if midwives and dispensing opticians have to make such a declaration? Why should bankers not be excluded?
I well see the difficulties that the Government have had in drawing the dividing line. I hope that the order is not the last of a series of orders which will undoubtedly have to be made at the dictate of experience under the Act. Are we as a House likely to have the opportunity of examining a further order—for example, in a year's time or at the end of some convenient period?
The Act does not apply to criminal courts. It was expressly excluded from doing so. I remind the hon. Gentleman that he told the House on 28th June last year, during the final stages of the Act, that he was going to invite the Lord Chief Justice to make a practice direction for the benefit of the Crown courts and, as I understand it, the Home Office was to produce a circular for the guidance of magistrates' courts. I am delighted and comforted to know that the practice direction is coming out shortly. The Act comes into force next week. Shall we have the practice direction before or at least on 1st July? Can the hon. Gentleman also tell us whether the Home Office circular will be published for the guidance of magistrates at about the same time?
Undoubtedly, the only test we can apply to the value of the Act and the 181 order is the empirical test of whether they will work in practice. We hope they will, and to that extent we give the order qualified approval, but we ask the hon. Gentleman to bear in mind that, if any defect becomes apparent during the application of the order to the Act, he will come back to the House and allow an early opportunity for amendment.
§ 11.9 p.m.
§ Mr. Emlyn Hooson (Montgomery)
This is the only order we have before the House, and, therefore, it is the best order we have and we ought to pass it. When we speak of the rehabilitation of offenders, we tend to think of offenders in every sphere of life bar ours. If dentists and dental hygienists are to be exempted, why not bankers? There is no possible answer to that.
As we would expect, the public sector and the professions are much more influential because they are better organised and in a position to bring more pressure on the Government. Why, for example, should we exempt the professions and yet provide no kind of exemption for people in commerce, where it is very important to know whether perhaps a person has a previous conviction?
The answer is simply that we are embarking on new ground. We took a major step last year in passing legislation on this subject. We can all point to situations or professions which should be on one side of the law rather than the other. We are making a start.
The exemptions should have been much more discriminatory than they are. The Minister gave an example of a man who at age 16 had a conviction for breaking and entering and then applied for the Bar. I think there is a good deal to be said for wiping the slate clean even for the Bar for certain foolish acts committed in youth.
§ Mr. Grieve
I see the force of what the hon. and learned Gentleman says, but does it not depend on the nature and gravity of the offence? Some breaking and entering offences involve the use of very great force. Are these matters not best left to the Bar?
§ Mr. Hooson
The legislation provides for a time limit and allows for an assessment of the nature of the offence. How can one years later judge the 182 seriousness of an offence when possibly one has only the applicant's word? I should like to have seen much more discriminatory exemptions, but this legislation at least makes a start. I am sure that the Minister is unhappy about the exemptions and perhaps about the way in which it is operated. However, it is necessary to educate the public in this respect.
I have never been happy with the argument that behind a piece of legislation is to be found a "spirit" or a "philosophy". If an Act of Parliament is passed, what is passed is what is intended in that Act, and nothing more. The same applies to an order. It is useless to ask a man who is defending at the Bar to remember the spirit or the philosophy behind a piece of legislation. If he thinks that there is the remotest chance that by putting in a previous conviction or a spent conviction in a case which is evenly balanced it will help his client, he will put it in. It is no use talking to him about the "philosophy" of legislation. He goes on the letter of an Act, not on its spirit.
§ Mr. Alexander W. Lyon
I deeply regret the fact that that is the attitude of my fellow brethren at the Bar. What they have to learn is whether a jury accepts the philosophy of an Act and reacts accordingly. If they followed the matter up, they would learn that it was just not worth putting in a spent conviction.
§ Mr. Hooson
As the Minister is a member of my Chambers, I know that when he was at the Bar he would have done what was necessary in the interests of his client. In gauging this interest, I accept that he would try to assess the reaction of the jury to anything he did. It is wrong for Ministers as a matter of principle to talk about the philosophy and spirit behind an Act of Parliament. Once an Act is passed into law, it is only what is enacted that applies, and nothing more. Judges are not interested in the spirit and philosophy of the thing. They look at the letter of what the House enacted, and the Minister knows that well.
§ 11.15 p.m.
§ Mr. Kenneth Marks (Manchester, Gorton)
In January of last year when I moved the Second Reading of the Rehabilitation of Offenders Bill, I did so as 183 a layman. In tonight's debate I am the only Member present who is not entitled to be called "honourable and learned" despite the fact that I belong to the teaching profession.
I was tremendously impressed by the report mentioned by the hon. and learned Member for South Fylde (Mr. Gardner) which was put out by the committee of Justice and called "Living it down". From reading that report and the many letters I have had afterwards, from people whose lives had been made a misery because of the thought that some minor offence in the past might be made public, it is clear that there was need for Parliament to step in. After the February election Mr. Piers Dixon, the former Member for Truro, took up the Bill and successfully carried it through the House, but both of us would say that that could not have been done without the support and help of my hon. Friend the Minister of State and his predecessor, the hon. and learned Member for Runcorn (Mr. Carlisle).
Having seen the order, I am disappointed. I had hoped that we would be given fewer exceptions and that we would have made this a much more serious attempt. As the hon. and learned Member for Montgomery (Mr. Hooson) has said, however, it is the only order we have, and we should pass it and see how things go.
It is a long list of exceptions, and I was glad to hear the Minister say that the Government would be having another look at it. I think that Parliament and the Government will need to look constantly at this brave effort to give people justice, which to me is more important than the law. Many of those who have tried to rehabilitate themselves and to show that they are endeavouring to do right by the people they may have wronged have entered public service, and they have entered office in the menial tasks which the hon. and learned Gentleman mentioned. They have worked in hospitals and elsewhere and in social work, and now they are included in the list of exceptions.
I hope that the Government will look seriously at the order again and bring in another one. I understand that the 184 Home Office is to publish a guide, not only to magistrates but to the rest of us, to explain how the Act and the order will work, and I hope that the Minister of State when he replies will be able to tell us something about this and when it will be published. We are all feeling our way in putting this into practice, but I am sure that the feeling of Parliament and people is that the Rehabilitation of Offenders Act should apply to as many people as possible.
§ Mr. Deputy Speaker (Mr. George Thomas)
There is roughly half an hour left for the debate, and it should be possible to call the four hon. Gentlemen who wish to speak if they are sympathetic to each other.
§ 11.18 p.m.
§ Mr. Ivor Stanbrook (Orpington)
I find myself in substantial agreement with the words of the hon. Member for Mitcham and Morden (Mr. Douglas-Mann) in that I think it is perfectly true to say that the order shows that the Government have had second thoughts about the scope of the Act. To see the reason for that one has only to look at the way in which the Act was originally brought before this House as a Bill.
It is perfectly true to say, as the hon. Member for Manchester, Gorton (Mr. Marks) has just said, that he introduced the Bill at one stage and that Mr. Piers Dixon introduced the one which eventually led to the Act, but when Mr. Piers Dixon's Bill came before the Standing Committee it had, like the Bill of the hon. Member for Gorton, received a great deal of informed criticism from experienced people and from those who would have to apply it if it became law.
However, when the Bill reached Standing Committee, albeit as a Private Member's Bill, it was taken over by the Government. Every clause was replaced by wholly different wording introduced as amendments by the Government—indeed, by the Minister of State himself—and as a result very little informed criticism went into the wording of the Act as we now have it before us. It is due to come into force on 1st July, and the Government, faced by the real practical objections to applying the Act as it is, have been forced to make many sweeping exemptions.
185 I say, as one who had great misgivings about the original Bill and the Act, that it would have been preferable if the Government had repealed the Act. But I suppose that the next best is to have sweeping exemptions. However, they make the legislation a bit of a nonsense, because what is left is very small in relation to the original intention. The original wording of the Act is obscure. It is a legal hotch-potch, and the effect of these many exemptions will be to make the application of the Act even more obscure and uncertain. There will be an even great burden on those who will have to apply it.
I am more concerned, however, about omissions from the list of exemptions. Some reference has been made to them already. One of the most important is that of the profession of architects. Like other institutions, the Royal Institute of British Architects applied for exemption last year. It was refused. The letter from the Home Office making the refusal said thatthe medical profession, whose members have unsupervised access to patients in vulnerable situations and to dangerous drugs; and…the legal professions, who have a special duty to fulfil the expectation of the public that the professional conduct and character of those responsible for administering the processes of justice should be subject to exceptionally demanding scrutiny and controlwere examples which were worthy of exemption under the Act.
If that is so, why should not the exemptions be restricted to the medical and legal professions? In fact accountants, veterinary surgeons, insurance officials and officials of finance houses are all included, yet there is public concern about the placing of building contracts involving public money and public works. A high standard of integrity is required from all architects. In 1973 no less than £2,000 million worth of building work passed under architects' certificates. Almost all of it was for architect-designed work where architects had advised on the tenders.
So far as I know, this is the only profession with regulatory disciplinary powers which is not given exemption. The Architects' Registration Council of the United Kingdom has in its time struck off many people for long periods—far longer than the 10 years which is the 186 appropriate limit under the Act. That surely is one case where there was an omission which should be included in preference to some of those which the Minister quoted.
There are one or two others. There are omissions under Part II of Schedule 1, for example. Reference is made to cadet organisations and training organisations such as the Army Cadets and so on. There are also the St. John Ambulance Brigade, which has a junior branch, and the Red Cross, which apparently are not included. Then again, for the staff of the Director of Public Prosecutions there is an exemption. But if the staff of the DPP merit exemption, why not the staff of every prosecuting authority? Why not the staff of the Solicitor to the Metropolitan Police here in London, which is perhaps a much greater prosecuting authority in terms of work and sometimes in terms of the severity of the charges with which its staff deal? They are entitled to be considered on a par with the staff of the DPP. The same applies to the staff in many county prosecuting authorities. Why should they not be exempted if the DPP and the appropriate Scottish institutions are exempted?
Although we are considering this order and can see its obvious defects, there are a number of detailed criticisms with regard to omissions. I hope that these matters will be borne in mind by the Government if they intend to bring forward further amending orders.
§ 11.25 p.m.
§ Mr. Patrick Mayhew (Royal Tunbridge Wells)
I begin by declaring what may be an interest. I occasionally sit on the panel of legal assessors of the General Medical Council disciplinary committee. I do not know whether that is an interest, but, if so, I declare it.
I hope that I shall not be thought to be against the principle of the order when I say that it contains or is blemished by two serious omissions. Its provisions will result in the Act seriously impeding the functions of disciplinary committees concerned with the professions, particularly the medical profession.
It does not need to be stated by anybody with experience of the profession that disciplinary committees acting on behalf of doctors need to know the whole history of doctors who come before them 187 charged with offences connected with alcohol or drugs. Obviously first offences will not, save in exceptional cases, be treated as meriting dismissal from the profession. On the other hand, if a doctor has been convicted on more than one occasion for the same kind of offence, it may be a very different type of case. I think that that is accepted by the Government. Indeed, on Report the Minister of State indicated as much, and it is implicit in the logic of the order. But a relevant conviction of this type will become spent after one year if, as often happens, it is made the subject of a conditional discharge, and if the doctor has been fined it will become spent after five years.
The GMC takes the view—it is only common sense—that it is not safe in the public interest that a five-year period of good conduct may exempt a doctor from having a conviction of this character disclosed to a disciplinary committee in these circumstances. The GMC will need to ask for information about this kind of thing and to rely on that information being given to it when it does.
The order goes some way in the right direction, but it does not go far enough. The relevant articles of the order, 3(a) and 4(a), relate to the medical profession, which comes at the top of the list of professions in Part I of Schedule 1.
Section 4(2) of the Act in its general effect stops any question of this kind having to be answered.otherwise than in proceedings before a judicial authority".A disciplinary committee is defined as a judicial authority. So far so good. But Article 3(a) of the order provides that Section 4(2) of the Act shall not apply in relation toany question asked by or on behalf of any person, in the course of the duties of his office or employment in order to assess the suitability(i) of the person to whom the question relates for admission"—that is the key word—to any of the professions".I should like to make two short points. First, inquiries often have to be made before proceedings are started before the disciplinary committee of the GMC. The order gives an exemption in the case of proceedings before a disciplinary com- 188 mittee, but inquiries often have to be made before proceedings are started. Section 4(2) of the Act does not exempt these from the provisions of the legislation.
The second point is that Article 3(a) of the order only exempts questions which are asked in order to assess the suitability of a person for admission to the profession. The Minister will know that there are many cases where questions of this kind have to be asked by a professional disciplinary body with a view to possible dismissal or exclusion from a profession, before any proceedings are set on foot. The order deals only with admission. That, on its own logic, is a bad omission in the order. The Act at present prevents this and the order leaves the position untouched. I hope that the Minister will look into that matter. It is a question not of going behind the principle of the legislation but of applying consistently the logic of the order as at present drafted.
Article 4 does relate tothe dismissal or exclusion of any person from any profession".It appears that Section 4(3)(b) does not apply to such a case. That is well and good. But Section 4(3)(a) is left untouched. I shall not read the whole of it, because we are pressed for time. The guts of subsection 3(a) is that any obligation that is imposed on anybody by any rule of law or by the provisions of any agreement or arrangement to disclose information shall not extend to disclosing spent convictions. But there are many cases where arrangements have been made by the Department concerning magistrates' clerks, whereby particulars of conviction are supplied to disciplinary committees on request. As the order stands, the Act bites on that kind of arrangement. It ought not to do so, because it is in the public interest that disciplinary committees should be able in proper cases to obtain this type of information.
§ Mr. Alexander W. Lyon
Has the hon. and learned Gentleman considered Article 5 of the order which exempts Section 4(1), which deals with judicial proceedings, which would include the GMC? Schedule 3, paragraph 1, refers to:Proceedings in respect of a person's admission to, or disciplinary proceedings against 189 a member of, any profession specified in Part I of Schedule 1 to this Order.Part I includes the medical profession.
§ Mr. Mayhew
Has the Minister made this clear to the GMC, which has had correspondence with him? I do not think that he has, because the GMC has expressed its grave concern about this matter. I do not think that it has understood from his reply, or from his Department, that the council's point in this regard has been accepted. If the Minister takes the view that Article 5, or any other article of the order, meets the point raised with him by the council, the council will be very relieved. But my points relate to Section 4(2) and (3) and not to Section 4(1).
If the Minister is prepared to give an assurance that these points are covered and that matters relating to admission, exclusion from, and dismissal, and also the information required, are exempt under the terms of the order, the council will be much relieved.
§ 11.31 p.m.
§ Mr. Hal Miller (Bromsgrove and Redditch)
I rise to make a very brief intervention. By a happy coincidence I had the pleasure earlier this evening of meeting Dr. Piers Dixon, the man to whom the hon. Member for Manchester, Gorton (Mr. Marks) paid tribute as pilot of the Bill.
Several hon. Members have referred to the verbal contortions in which we find ourselves. The hon. Member for Orpington (Mr. Stanbrook) referred to the extensive redrafting that occurred in this place—redrafting which lost a great deal of the felicity of the original drafting and particularly its simplicity. This is part of the trouble in which we find ourselves this evening. It is pleasant to see that so many of the Members who took part in the Committee proceedings are present tonight.
My main point—I hope that the Minister will emphasise what I am saying—is that although there are many more exemptions than those who supported the measure when it passed through the House would wish to see, those exemptions provide only that spent conviction shall he disclosed; it is not incumbent upon bodies not to employ the people concerned or to disbar them by one means or another. Therefore, to follow 190 the words of the hon. Member for Gorton, it is largely a matter of public education and it is necessary to give a strong lead.
I hope that when the Minister replies he will tell us that this lead is to be given by his Department, in terms of the practices which may be followed when such matters are decided. I appreciate the Minister's difficulties about the need to disclose such convictions, but I hope that in circulars and other directions that are issued he will make forcibly the point that it is not necessary, on those grounds, to disbar people. If he does not do so, we shall have to pay a great deal more attention than has been possible in the brief time this evening to the specific offences which will disqualify people.
This is a field which would lead to a much longer order than the one before us, but that is the only alternative unless a clear lead is given by the Minister.
I pay tribute to the spirit and enthusiasm with which the Minister assisted in the passage of the Act and I recognise the reluctance with which he has presented such an extensive order this evening.
§ 11.34 p.m.
§ Mr. Roger Sims (Chislehurst)
I assure the hon. Member for Manchester, Gorton (Mr. Marks) that he is not the only unlearned Member taking an interest in the order. As one who was involved in the Committee stage of the Act, and who voiced a number of reservations in the course of those proceedings. I am happy to welcome the order in its present form. I am glad that it is relatively broad, although I am as perplexed as are other hon. Members by certain inclusions and exclusions.
In view of your admonition, Mr. Deputy Speaker, I do not intend to deal at length with the exclusion from the exempt list of architects, but if there are any logical criteria to be applied to the list before us, and if we are dealing particularly with people who are concerned with the safety and well-being of the public—and if, today, there is concern for the quality of certain public and private architectural works; I could mention several cases in which architects have been involved—I would have thought that the architectural profession was one profession that was very concerned with the safety and well-being of 191 the public. I hope that before too long the Minister will consult—I suspect that he may not have done so—his right hon. Friend the Secretary of State for the Environment to ascertain his views on this matter, and perhaps bring forward a further order to cover the architectural profession.
The only other matter on which I should value enlightenment is paragraph 14 of Schedule 1, which refers toAny employment by a youth club, local authorityand so on. What is meant here by "employment"? I spoke several times in Committee about work dealing with children, and I am concerned to know whether voluntary organisations are covered. For example, in the Scouts and the Boys' Brigade one might say that the people involved are not necessarily employed by those organisations although they will be interviewed for the job and so on. I shall be glad to know whether that situation is covered by paragraph 14 or by some other provision of the order.
§ 11.34 p.m.
§ Mr. Ivan Lawrence (Burton)
The Minister regards it as necessary to exclude persons who are in a position of trust vis-à-vis the community, or, at least, he wishes to do so in so far as that is practicable. It is one of the difficulties of legislation of this sort that these things are difficult to define. However, given the Minister's view of the importance of so doing, I cannot understand why there is no specific exemption in relation to councillors and Members of Parliament. Perhaps Members of Parliament are of less importance here since, although we think that we have a great deal of power and responsibility, it is largely illusory, especially when Governments have substantial majorities. Councillors, on the other hand, exercise considerable power, notably over various aspects of planning and development, and it seems to me all the more important that there should be freedom to disclose whether a councillor has been involved in the past in acts which may be discreditable to the position of trust which he holds.
§ Mr. Mark Carlisle (Runcorn)
I cannot anticipate the Minister's reply, but I have had something to do with these matters. Does not my hon. Friend agree 192 that one of the objects of the Act was that if a person who had committed some small offence at any early stage in his life should 25 years later want to stand for the local council, he ought not by that alone to run the risk of its being dug up in the local paper that he was convicted and fined for some minor offence of a totally different nature when he was 18 or 19? With respect, if my hon. Friend says that the exemption should be as wide as that, he is going against the whole spirit and principle of the Act.
§ Mr. Lawrence
If it is a minor offence of a totally different nature, no one would spend his time and energy digging it up. The significance of it is that it should be brought to the attention of the public, who should be protected against elected representatives who have committed offences which have relevance to decisions which they take in the positions of power and influence which they hold. Therefore, although I am not against the spirit of the Act, I can only regard this as an example of legislation which, however first-class in theory it might be, shows in its practical application consequences which make nonsense of the whole thing.
However, I am heartened by the knowledge that the Minister has fairly and constructively said that if in course of time it is found that the situation has changed and it throws up new categories of persons in respect of whom there should be exemption, the matter will have his consideration and that of the Government. There is thereby some protection, although I should like to have his explanation now regarding councillors in particular and also, perhaps, Members of Parliament.
§ 11.40 p.m.
§ Mr. Alexander W. Lyon
When I finally approved the draft of the order the concern in my mind was that I might have raised a hornets' nest as regards those who have applied for exemption and have been refused. Apart from the application from the architects, none of them has chosen to brief Members of Parliament to voice concern. It is an interesting fact that almost everyone, with the exception of the hon. Member for Orpington (Mr. Stanbrook), has criticised me for allowing the exemptions to be so wide. That goes to show how wrong we can be in our judgment about public 193 opinion in politics. All I can say is that a substantial number of people who applied for exemption were refused—in fact, a number far in excess of those who have had their applications granted.
When the hon. and learned Member for Montgomery (Mr. Hooson) says that what has obviously happened is that the public sector and the professions—I think this point was made by my hon. Friend the Member for Mitcham and Morden (Mr. Douglas-Mann)—have obviously gained because they are well organised to influence the Government, I can tell him that there are many sore heads around Whitehall as a result of the applications which were vetoed by the Home Office in the course of the discussions that took place on exemptions. That applies not least to the example I mentioned earlier—namely, the Ministry of Defence, which wanted to exempt all members of the Armed Forces. Her Majesty's Customs and Excise applied for exemption. Superficially there might have been a good case for exemption, but none was made.
I say to my hon. Friend the Member for Mitcham and Morden, who made certain criticisms, that the Department of the Environment wanted us to exempt driving examiners, for example, on the basis that they are sometimes in a position to make advances towards young ladies with whom they are concerned. A whole host of people have applied for exemptions and have been refused. When people tell me that the exemptions are so wide that we have reversed what we did in the Act, all I can say is that they have not had the opportunity that I have had of listening to those who in the past have been using past convictions against people who apply for entry into their employment or profession and who will now be refused the right to use spent convictions. I think that the effect of the Act will be considerable in allowing people to gain access to employment where hitherto they have been refused.
§ Mr. Edward Gardner
Will the Minister deal with the Architects' Registration Council? It is clear that the council is the only statutory body whose profession has not been listed in the order.
§ Mr. Lyon
The hon. and learned Gentleman made that point in his speech 194 and I shall deal with it. In fact, he is wrong. The chartered surveyors also applied and were refused. The answer is that we considered the architects' point to be the same as the crime prevention applications from the banks, for example. We refused all applications based merely on crime prevention. It is true that an architect may be in a position to commit an offence. If he is so inclined from previous experience, there may be a greater danger. Equally, there may be a greater danger as regards a bank official who has previously been convicted. The same kind of argument can be used in relation to almost everybody and in relation to almost any employment.
Where we have drawn the line is that those occupations which were concerned with the administration of justice and, with the execution of the law have been exempted. Initially we intended not to exempt accountants. The only reason why they were subsequently exempted was that I was persuaded that they have a rôle to play in the administration of the law in the sense that their certificates are often the authority that is accepted under statute and under the administration of the law for certain kinds of auditing and vetting of other people's activities. It was on that basis alone that I decided to allow the accountants to be exempted.
We did not take the view that architects and surveyors should be included, although we recognised that they were in a position sometimes to influence contracts, and concern about that has been expressed. I make the point which I made in opening the debate that drawing the line in relation to these exemptions has been extremely difficult. I accept that there was a case for drawing it rather more tightly. What we have done is to proceed as far as we thought right at the moment, recognising that with experience it may be possible to draw the line more tightly.
§ Mr. Douglas-Mann
Why has it not proved practicable to distinguish between offences involving dishonesty and those involving drugs, or sexual offences, and particular classes of occupation that may be at risk? I regard that as crucial. I know that the Greater London Council put to the Minister proposals that drew that kind of distinction.
§ Mr. Lyon
Preparation of the Act and the exemptions has been extremely complex because of the necessity to draw lines at all kinds of stages in circumstances that it was difficult at the time to foresee. One of the reasons why the Act is so complex is that it has been difficult to make these judgments in advance. It may be possible in future to simplify the Act as well as the order. However, if to that we had added the burden of saying that the exemptions would apply only to specified convictions and specified occupations, the difficulty would have been even greater.
This point was brought home to me forcefully when I looked through the draft of the leaflet of guidance, which is now available and which we hope it will be possible to issue to the public on 1st July. It is extremely difficult to put it into simple language because of the number of exemptions and because of the difficulty of distinguishing between different parts of the Act for different purposes.
It was therefore partly for simplicity and partly because of the administrative difficulty that I decided that it was better to allow exemptions for all convictions, of whatever kind, even though I accept that for certain occupations it is necessary to exempt only certain kinds of convictions. We shall see how we get on and I certainly undertake to monitor the effect of the Act and to try to cut down the exemptions if that is possible.
I do not have time now to deal with them in detail, but I think that the points made by the hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew) were a misunderstanding of the order. I can put it best by saying baldly that the first sentence of the note that was passed to me after the hon. and learned Member's speech said "the GMC are all wrong". I shall try to explain more fully why we think that. All its anxieties are covered. It will be able not only to consider spent convictions but to have access to spent convictions when that is required for the purposes of disciplinary proceedings.
The hon. Member for Burton (Mr. Lawrence) wanted us to include councillors. The hon. and learned Member for Montgomery said that we were all in 196 favour of the Act except when it hit our own occupations. The authorities of the House of Commons suggested that we ought to make exemptions for servants of the House. We refused that too, and so we refused to allow ourselves the privilege. Somewhat similar considerations apply to councillors.
The crucial argument is the one put by the hon. and learned Member for Runcorn (Mr. Carlisle). If we allowed exceptions to go so wide that they covered all kinds of professions, there would be no point in having enacted the original legislation. I utterly reject the suggestion that we have undermined the spirit of the Act by making the exceptions. There are a number of cases where we may have gone too wide, but the overall effect of the measure will be beneficial.
I certainly would not accept that councillors or anyone entering into public life ought to have this kind of spent conviction thrown up against them. If in a particular case it became a matter of public concern and interest that a man had a spent conviction, Section 8 allows a newspaper or anyone else to disclose that in free public debate as long as it is done without malice. If it is done with malice, clearly it would be actionable in defamation. Subject to that, it could be raised in public discussion if the matter came to the notice of someone who thought it was in the public interest to ventilate it.
The purpose of this measure is to allow people to live down their past. That will mean that people who have previously been convicted will now be able to keep that secret and go into occupations and professions which have hitherto been barred to them. That is right. It is what Parliament intended. I entirely subscribe to the sentiments expressed from both sides praising those who first put forward the suggestion, from Lord Gardiner and the Justice committee to the various Members of this House who have supported the idea in Private Members' Bills. Now it is to be placed on the statute book. I hope that experience of its operation will show that our judgment was right.
§ Question put and agreed to.