HL Deb 19 June 1975 vol 361 cc1068-76

6.22 p.m.

Lord HARRIS of GREENWICH rose to move, That the Draft Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, laid before the House on 9th June be approved.

The noble Lord said: My Lords, as the House will recall, the Rehabilitation of Offenders Act empowers the Secretary of State with Parliament's approval to modify its application in various circumstances. That is what we have to consider today. The draft Order sets out the areas in which we feel, after fairly extensive consultations, and careful consideration of the many representations we have received, that the Act ought not to apply without modification. But I should like to make it clear at once that it is not an irrevocable or a "once for all" Order; it may be modified or revoked by subsequent Orders. If experience shows that it is not satisfactory in one respect or another, then of course we should have to change it and shall do so.

I would remind your Lordships of the broad principle of the Act, which is that a former offender who remains free of further convictions should at the end of a qualifying period become a "rehabilitated person ", and his conviction e" spent "conviction. But we all accepted when the Act was before your Lordships' House that there would be some situations in which information about spent convictions ought to remain available and usable. In particular, noble Lords expressed concern during our debates about the need to safeguard national security, and to protect the interests of particularly vulnerable members of society, such as children, the sick or handicapped and old people. We have taken account of this concern in the draft Order. The Order steers a reasonable middle course between the twin dangers of drawing the exceptions from the Act so widely that its aim would be nullified, and restricting them so narrowly that the risk of undesirable consequences would be too high.

Perhaps I may now run briefly through the Order and say a word or two about some of its provisions. Article 1 simply gives the title of the Order and its commencement date of 1st July, which is, of course, the same as that of the Act. Article 2 concerns the interpretation of various terms used in the Order. Perhaps I should pick out one point on paragraph (2), which says in effect that when the Order refers to spent convictions it means all spent convictions, and not just those that might be considered relevant to a particular situation. We considered very carefully whether we should frame exceptions from the Act in terms only of specified convictions. For example, a man applying for a job as a school teacher should be asked to disclose any spent convictions for sexual or violent offences, but not dishonesty. But when we came to draft the Order, we found that to do it in this way would have resulted in an immensely complicated and tangled scheme. Moreover, one cannot often define with any confidence which particular offences might be relevant. So, where there is an exception in the Order allowing questions to be asked about spent convictions, or action to be taken on the basis of such convictions, it relates to the whole of a man's record.

Article 3 goes together with Schedules 1 and 2. It has the effect of allowing questions to be asked about spent convictions when a job, the grant of a licence or membership of a profession is at stake. What the Act does is to provide protection from any adverse consequences that might otherwise follow from concealing a spent conviction, whether one's own or someone else's. What the Order does is to withdraw that protection in respect of the situations to which it relates. For example, someone applying to join the police will be expected, if asked, to disclose his spent convictions. He will have no redress if, having failed to disclose them, he is later dismissed. This applies only where the person questioned is told at the time that the question is an "exempted" one, and that the Act does not apply, so people will not be placed unknowingly in jeopardy.

Article 4 is complementary to Article 3. In setting aside the application of Section 4(3)(b) of the Act in specified circumstances, it makes it lawful to dismiss or refuse to employ someone on the basis of his spent convictions. If an employer has learned that an employee has a spent conviction which renders him unsuitable for a job, or for a particular post, that employer—or it might be the governing body of a profession—has the right to remove him from that job or profession where the Order provides a relevant exception.

I referred earlier to the concern expressed by some noble Lords during the debates on the Bill that some exceptions should be made in the interests of safeguarding national security. Articles 3(b) and 4(c) of the draft Order provide such exceptions, which will allow those responsible for judging the suitability of persons to be employed on secret work to inquire about spent convictions, and, where necessary, to take action on the grounds of a spent conviction.

Article 5 is again complementary to Articles 3 and 4. It sets aside, for the purposes of the various kinds of judicial proceedings listed in Schedule 3, the effect of Section 4(1) of the Act. The result is that evidence of spent convictions remains admissible; the proceedings in question relate in one way or another to the right to practise the professions or hold the employment in Schedule 1; or to obtain the licences and certificates in Schedule 2. The various exceptions in Articles 3, 4 and 5 hang together neatly so as to cover, first, access to information about spent convictions, and, second, the use that may be made of such information.

The contents of the Schedules really determine the scope of the various exceptions from the Act. A number of them were foreshadowed when the Act was before Parliament, and I have already touched on one or two of them earlier in my speech this evening. Apart from this, the main consideration we had in mind in formulating the exceptions was the protection of the public, and in particular of the more vulnerable members of the community. Thus, in Part I of Schedule 1, all the professions, with the exception of accountancy and the law, involve their practitioners in close and unsupervised contact with the young, the sick or the handicapped, or, in the cases of chemists and veterinary surgeons, they entail access to dangerous drugs in large quantities. As for the rest, accountants operate in areas where they are frequently placed in positions not merely of private, but also of public trust; and where they act as auditors, they have a quasi-law enforcement function, which in the Government's view justifies an exception. And the public has the right to expect only the highest standards of integrity from both sides of the legal profession, if the administration of justice is to continue to stand above reproach.

The way in which the Order works in respect of the listed professions is, generally speaking, to allow the properly constituted authorities of those professions to act as a filter; to ask about their members' spent convictions, and to dismiss or suspend them from the profession, if necessary. The Order does not enable, say, a private company to ask about the spent convictions of its secretary, who may be a lawyer or an accountant, nor to dismiss him if they happen to learn that he has such a conviction. But the company could, of course, report the matter to the relevant professional body, who could take any action that it considered appropriate. There are one or two exceptions to this filter principle; for example, Part II of Schedule 1 covers a number of judicial and related public appointments. of which the holders are necessarily lawyers, but in these cases the State, and not merely the profession's own disciplinary bodies, must bear the responsibility for ensuring fitness.

The employments in Parts II and III of Schedule 1 fall conveniently into two categories. One covers those people who work within the criminal justice system. This includes the police, the probation and prison services, justices' clerks and the staff of the Director of Public Prosecutions. The other category covers more groups of people with access to the vulnerable, including teachers and other school staff who come into regular contact with children, social workers, and people who work in the Health Services and have access to patients. Part III of the Schedule includes a number of other employments or occupations. No one would cavil at the need to check up on firearms dealers, or people who hold explosives licences. People who run nursing homes fall into the category I have already described.

We have done our best, as I said earlier, not to let the exceptions from the Act go too wide, while ensuring that the aims of the Act are not achieved at too great cost to public safety and welfare. I think that that aim has been achieved. Some noble Lords may not agree in all respects, but let me point out that nowhere in this Order will they find any exception based solely on the fact that a man's job gives him access to even the largest sums in cash or valuables. We received a large number of requests for exemption on those grounds, and some of them were pressed with great vigour. But we take the view that it would go too far to nullify the aims of the Act if it were not applied on the basis I have described. I commend this draft Order to your Lordships. My Lords, I beg to move.

Moved, That the Draft Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, laid before the House on 9th June be approved.—(Lord Harris of Greenwich.)

6.33 p.m.

The Earl of MANSFIELD

My Lords, I wish to thank the noble Lord, Lord Harris of Greenwich, for his brief yet comprehensive outline of this draft Order. I say at once that many of your Lordships, especially on this side of the House, perhaps, were anxious when the Rehabilitation of Offenders Act, as it now is, was going through your Lordships' House as to its possible effects both with regard to the protection of the public and, more especially perhaps, the protection of future employers. Speaking for myself, these three Schedules probably tread the difficult but nevertheless extremely important path which has to be trod when this kind of exception is framed. Bearing in mind that the Act is now an Act, one does not want to detract from the effects that it will have. Again speaking for myself, I think that some of those effects will be wholly beneficial, especially as applied to the public who, as in so many other instances, are totally unprotected against persons who may well be unscrupulous or have been thoroughly unscrupulous, and indeed wicked, in their past. That line has to provide the maximum protection in areas where protection is due.

My Lords, it is inconceivable that any of the professions mentioned in Part I should not be the subject of the closest scrutiny, although I had not realised that was necessary to include a veterinary rgeon until the noble Lord called into [...]estion the matter of drugs. I never [...]ard of a veterinary surgeon who dealt [...] drugs in an improper way, but I [...]ppose that such veterinary surgeons [...]ist. The only matter with which [...]ould crib concerns finance. Under part III, paragraph 3, of the draft Order, he director, controller or manager of an [...]nsurance company is brought in. I should declare an interest here as a director of an insurance company. I do so in these terms because one cannot envisage the impropriety which a director, controller or manager could get up to without it being rapidly found out. I should have thought that the public have perfectly good protection other than this.

But on the other hand, the banks, for instance, are excluded. There are many financial areas where one would have thought that there might well have been some protection, especially when it comes to figures of money as opposed to the dealing in accounts. A man is often his own worst enemy when presented with the opportunity of dealing in actual cash. Subject to these perhaps rather small points—which I hope will not be construed as carping points because they are not meant to be—we on this side of the House welcome this draft Order.

6.36 p.m.

Lord GARDINER

My Lords, I do not propose to ask the House to reject the Order, but I think it goes much too far. May I remind the House how this question arose? What now seems a long time ago I was appointed chairman of the committee appointed jointly by the Howard League for Penal Reform, Justice, and NACRO. AU three bodies had in their files a great many cases of men who, usually when adolescent, had committed offences and had then gone straight for 5, 10 or 20 years. Nevertheless, they suffered real injury from these offences having been brought up against them. This occurred mainly due to two circumstances. First, because under our law any party or any witness in any proceedings, civil or criminal, can be asked about any conviction he has ever had, however irrelevan and however long ago. While in the superior courts, where the prosecution are represented by counsel, the judges restrain the police from making these disclosures, in magistrates' courts in particular, where the police themselves prosecute, there were far too many cases in which previous convictions were disclosed.

I remember one case in which a man was convicted because while a learner driver he did not have "L" plates on his car. The police stated that 13 years ago he had been convicted for indecent exposure and of course that appeared in all the local papers. There were cases of this sort in which men had left home, changed their names and started life again. The certain main difficulty was that there appeared to be too easy access to the central criminal records. That matter comes under the Official Secrets Act, and a police officer in charge of criminal records is not at liberty to disclose those records to anybody other than a person authorised.

There were two difficulties under that heading. Some private detective agencies openly advertised that they could get anybody's record for £7. Many of these agencies are run by ex-police officers. It was not usually a case of bribery, but rather a case of the "old pals' act ". Sometimes it was fraud. An ex-policeman in charge of an agency would ring up the Central Criminal Record Office and say that he was speaking from a particular police station. He would say that a man had just been brought in, give the man's name and address and ask whether anything was known about him. Instead of telephoning back, the man in the CRO would tell the inquirer the details.

The basis of the Act was that after a certain period a conviction should be regarded as spent and not be able to be dragged up against people. But our Committee, which consisted of two stipendiary magistrates, the secretary of Justice, the director of the Howard League, a justice of the peace and others knowing what crime is and what harm it does to the community, were a long way through our consideration when we first asked ourselves: "How many people are we talking about?" The most diligent search of the criminal statistics did not enable us to give any answer. We told the Home Office of this and they were extremely helpful. They said: "What exactly do you want to know?" We said: "We want to know how many people there are who have, at some time in the past, committed an indictable offence and have then gone straight for five or ten years." They replied: "We don't know, but we shall set up a special study", which they did. They took 4,000 men in London—I think it was in 1957—which they said was a sufficiently representative number. They found that 9 out of 10 of those who went straight for five years went straight for 10 years.

Secondly, the number involved was about 1 million. One million people are walking about who were convicted of indictable offences in adolescence and who have then "gone straight ". The third thing, which I must say was a surprise to all of us was that the risk of a man who has been convicted of an indictable offence and who then goes straight for 10 years committing another indictable offence is slightly—not much, but slightly—less than the risk of a man committing an indictable offence who has never committed any offence before. These are the best citizens, because they have learned their lesson. While it is always difficult for people after a certain age to take in a new fact which surprises them, if we are to be logical the sensible employer who wants to employ somebody in a position of trust and responsibility and who is able to choose between a man who was convicted of dishonesty more than 10 years ago and who has since "gone straight" and the man with a blameless record will, if he is wise, choose the former and not the latter.

We have always said that of course there must be exceptions—in employment where conditions of national security obtain; in the employment of schoolmasters with a record of sexual offences against small boys. If they have that bent, it is probably in their own best interests not to go back into a media in which they may be particularly susceptible to temptation. In any case, we must protect children. I had always envisaged that there would be a number of exceptions; but I must say that I had not anticipated that it would be quite as long as it is. I am still not persuaded about the dental hygienist, and I do not know why nobody can be a traffic warden without exposing any convictions they may ever have had, however long ago. However, I do not wish to delay the passage of the Bill and its coming in[...] force on the 1st July. In understand that my right honourable friend the Home Secretary has repelled a number of applications from interested quarters. I am sure that he has done his best and I hop[...] that the Act, with this, will work satisfactory.

Lord HARRIS of GREENWICH

My Lords, I would reply briefly to the noble Earl and to my noble and learned friend without whose assiduity, in the face of formidable problems over a long period of time, this Bill would not have reached the Statute Book and we should not be discussing it this afternoon. I think it appropriate when replying, as I have indicated, to pay tribute to my noble and learned friend for having pursued this issue with such vigour over such a substantial period of time. Both the noble Earl who spoke from the Front Bench opposite and my noble and learned friend indicated in their two speeches the problems with which the Government were confronted when deciding how to frame the lists of exceptions. The noble Earl pointed out that there had been some feeling, as I am sure there had, that the banks should be excepted, given the very heavy responsibilities that bank employees face. On the other hand, my noble and learned friend felt that there had been too many exceptions from this Bill.

All that I would say in concluding this very short debate is to repeat the point I made at the beginning, which is that this Order is in no sense irrevocable. The Government will look at the matter and will note the degree of success with which the Act is implemented and how these exception arrangements are administered. If it is necessary, we will certainly not exclude the possibility of coming back again and making a further Order.