§ 3.7 p.m.
§ The Minister of State, Home Office (Baroness Blatch)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.—(Baroness Blatch.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The CHAIRMAN OF COMMITTEES in the Chair.]
§ Clause 100 [Criminal conviction certificates]:
Lord Weatherill moved Amendment No. 103:
Page 40, line 7, at end insert ("except that where the application is supported by a letter from a registered charity or appropriate body confirming that the application is made in connection with the appointment of the applicant to a voluntary position for which he will receive no remuneration other than his expenses, the fee shall be waived.").
§ The noble Lord said: The purpose of the amendment is to ensure that people who apply to be volunteers do not have to pay a fee to obtain a criminal conviction certificate, a criminal record certificate or an enhanced criminal record certificate, as set out in the Bill, where such application is made in connection with their voluntary work.
§ Every year in the United Kingdom over 20 million volunteers provide a service that is beyond price. That contribution should be nurtured and supported. As at present drafted, the Bill could have a potentially devastating effect on organisations that depend on the services of a large number of volunteers. Not all volunteers work for registered charities. Many work for small local charities such as church groups or play groups which are not registered charities. The amendment proposes that the prescribed fee should be waived where the applicant needs the check in order to be a volunteer in a registered charity or other appropriate body of the kind that I have mentioned.
§ The amendment is vital to ensure that the Bill does not place an intolerable financial burden on organisations which involve volunteers and, above all, does not create a disincentive to volunteering. The 470 amendment has the support of the Scout Association. I declare an interest as president of the scouts in Kent. It has also the support of numerous other splendid organisations with whom I am connected, notably St. John Ambulance, the British Red Cross, the YMCA, the National Trust and other organisations represented by the National Centre for Volunteering, the National Council for Voluntary Youth Services and the National Council for Voluntary Child Care Organisation. The latter represents over 100 of the main childcare organisations.
The Bill recognises that many organisations working with vulnerable groups, not just children, have for many years been seeking access to criminal record checks. The Bill clarifies the situation and should be welcomed for its good intentions. Nevertheless, broader access to criminal records will not in itself solve the problem. Organisations such as the Boys Brigade, for instance, fear that people could be lulled into a sense of security by a clean certificate. It has told me:
The danger is that a 'clean' certificate will be seen as 'the OK' to work with children and young people and other vulnerable members of society. As a consequence, less reliance may be placed on the careful recruitment and selection of volunteers, the provision of appropriate training, the supervision of volunteers, and the promotion of good practice".
§ Indeed, that view was borne out by the Home Office-funded research in 1992 which found criminal record checks encouraged a false sense of security within organisations. It is worth remembering that many offenders and potential offenders do not have a criminal record and have no contact with the police. That indeed was the fact in the case of Thomas Hamilton.
In summing up on Second Reading the Minister said:
Many individuals will pay for their own checks. There is no requirement on the voluntary sector to meet this cost".—[Official Report, 11/11/96; col. 835.]
§ That is not the considered view of the organisations upon whose behalf I am speaking. It is accepted good practice that volunteers should not be out of pocket as a result of their volunteering. The view of the National Centre for Volunteering, which represents over 500 volunteer-involving organisations, some large and some very small, is that charities will not feel able to ask the volunteers to pay for those checks. It fears that the fee will be another disincentive to volunteering.
§ On Second Reading the Minister also expressed the opinion that those costs would be minimal, but the Scout Association, with which I have a close connection, estimates that it would cost about £2.5 million to screen all its current and occasional volunteers who have direct access to children. The noble Lord, Lord Dubs, pointed out on Second Reading that, assuming a cost of £10 a check, it would cost the Scout Association £500,000 a year to screen its new scout leaders. In addition, there would be administrative costs which even waiving the fee will not address. The scouts estimate that those will be about £60,000 to £70,000 a year. Thus, the annual costs will be in the order of £570,000 every year for the scouts.
§ The Boys Brigade believes that it will cost it an extra £20,000 in administrative costs. The National Association of Boys Clubs for Young People says that it 471 would incur immediate costs of £200,000 if all existing volunteers were to be provided with an enhanced criminal record certificate. A further £40,000 annually would he needed to cover new volunteers.
§ For small locally based charities, for example, church play groups or even Sunday schools, those additional costs could seriously jeopardise their financial security. They will hit them disproportionately. They have limited fund-raising abilities. The Woodcraft Folk, for instance, runs children's clubs throughout the country. Checks for the London branch alone would cost £20,000 a year. That represents 22 per cent. of its current budget. It would have to fund-raise that additional 22 per cent. just to deliver the same service to the community.
I have had a letter from the Duke of Edinburgh's Award, which would need to find an additional £600,000 a year to cover its checks. It writes:
Any substantial increase in the cost of running and administering the Scheme would seriously threaten its existence … It is impossible to overestimate the devastating effect of the Bill".
§ She implied that organisations will not need to make a criminal record check unless they choose to do so. But the reality is that organisations will come under intense pressure to use those checks. It will become a de facto obligation because of the pressure of insurance, trustees, fund-raisers and those responsible for the protection of the vulnerable.
§ The Abbeyfield Society involves some 15,000 volunteers in the UK in its residential care for older people. It believes that it will come under pressure to screen, even if the checks are not mandatory, in order to avoid accusations that it has failed in its duty of care to beneficiaries. Organisations which do not carry out those checks could leave themselves open to a huge potential legal liability.
§ I have said that I am connected in my "alleged" retirement with numerous voluntary organisations. I spend a good deal of time encouraging people to volunteer. I am concerned also with the impact that these fees will have on volunteering—a fear shared by the organisations that I have already mentioned.
§ To their credit, the Government have sought actively to encourage volunteering through the make-a-difference initiative. They support the work of those who are trying to broaden the base from which volunteers are drawn; to encourage the unemployed, the young and disabled to volunteer. But the Scout Association, for instance, receives a grant of £125,000 a year from the DfEE to support scouting in urban and isolated rural areas and among minority ethnic groups. In its present form the Bill will seriously undermine that work.
§ We were all shocked by the shooting at Dunblane Primary School. Lord Cullen recommended in his report that the cost of his proposals for protecting children should be kept within the limits of what organisations can afford and should be subsidised by the Government, if necessary. My amendments echo that sentiment. It is 472 that volunteers and organisations that involve them should not be asked to bear costs which they cannot support. I beg to move.
§ Lord McIntosh of Haringey
In the absence of my noble friend Lord Dubs, who has put his name to the amendment but is not able to be here until later this afternoon, perhaps I may intervene to give my support and that of my noble friends to the amendment which has been so ably moved.
I wonder whether the Committee realises how modest and limited is the amendment. It refers only to volunteers who work without remuneration and have only their expenses refunded. It could, with justice, have gone a great deal further. It could have included those paid staff of voluntary organisations whose checks will have to be paid for even if the amendment is carried and who will therefore cause those voluntary organisations an additional financial burden. It could have applied to the many people who are low paid or part-time but who work with children or people who are otherwise vulnerable. We shall come later to the issue of vulnerable adults.
If Members of the Committee would think, for example, of child minders, lollipop ladies or part-timers working in schools, children's homes or old people's homes, all those people are paid (probably a pittance) and yet the amendment does not seem to cover them or extend to the protection which will be required under Clauses 101 and 102.
In contrast to the recommendations in the Cullen Report, which the noble Lord, Lord Weatherill, read out, the Government proposed in their financial memorandum that the cost of providing the criminal record information as proposed will be met through charges in registration fees. The implication appears to be that in public expenditure terms the provisions will be self-financing. But of course they will not be because all the fees which must be met by public bodies—education authorities, the health service, social service organisations and so forth which are financed out of public expenditure—will be an addition to public expenditure. Yet the financial memorandum gives no indication of what the additional public expenditure is likely to be, even if one were to exclude the cost to voluntary organisations for the searches to be made for their paid staff.
Therefore, if the Government are going to argue—I have no doubt that the Minister will do so—that an additional public expenditure is involved, it is incumbent upon them to come clean about the amount of public expenditure which is already involved and to recognise the extent to which, even with the amendment, the Bill will provide a very serious additional burden on our social and education services.
§ The Lord Bishop of Lincoln
I wish to speak on behalf of the Churches, which are perhaps the largest reservoir for volunteers in our society. In 1995 the Bishops of the Church of England adopted a child protection policy which is now being implemented in all 473 dioceses. I wish to pay tribute to the efficiency of the Department of Health's consultancy service in helping us with that policy.
The Churches welcome in principle the possibility of acquiring enhanced checks as affording additional protection for children. Access to enhanced checks would clearly provide credibility for all voluntary organisations with statutory agencies such as probation, education and social services. All of us who work with children need to do what we can to promote good practice which can restrict opportunities for any abuse of children. We have a duty to ensure that those placed in positions of trust do not abuse them.
I wish to add my concerns to those already expressed in the Committee and gathered together in the amendment about the burdens which the payments for enhanced checks will place on the voluntary sector. Surely, if the Government are committed to the principle enshrined in the Children Act 1989—namely, that the welfare of children is paramount—government funding should cover the cost of the enhanced checks. Charging for checks may well be appropriate for profit-making organisations. However, as the Committee has been reminded, the agencies and the groups of volunteers about which we are speaking do not fall within that category.
There is no doubt about the considerable financial burdens which will be placed on voluntary organisations and the Churches should they be forced to pay for checks on their office holders and volunteers. Society relies a great deal for its well-being and enrichment on the work of volunteers. We need to keep that willingness and service at full strength, as the Government have recognised. If charging for checks is insisted upon, there is a clear danger that some people will be deterred by the requirement to pay, particularly as trustees and insurers will rightly insist upon that. In consequence, voluntary organisations will suffer and decline. I hope that the Committee will support the amendment.
§ Lord Campbell of Alloway
With respect to the noble Viscount, I wonder whether it is inevitably right. If, as the noble Lord, Lord Weatherill, said, we are dealing with 20 million people a year who offer their voluntary services, are all of them involved, or is the 20 million those who receive no remuneration other than expenses? As the noble Lord, Lord McIntosh, raised the point, I should be interested to know what is the administrative position in terms of cost.
It is a little odd and unrealistic to suppose that those within that category who receive no remuneration other than expenses should have some form of waiver, whereas the others have none. It also seems a little odd that as part of their commitment, those who wish to offer their services should not be able or willing to pay and save the coffers of the charity. In that context, 474 I totally accept that if the charities had to pay for 20 million people—if that be the figure—or for those who receive no remuneration other than expenses it would not be right.
Perhaps the Minister or another Member of the Committee can confirm that there are three checks. One costs £3 to £5; another more important check costs £5 to £6; and an enhanced check, concerned with those who work with children, costs £8 to £10. I begin to wonder whether it is inevitably right and necessary that the amendment should be approved, although I should be the first to agree that it is vital to the country to maintain the voluntary services, which fill a gap that inevitably exists in any state-funded regime.
§ Lord Renton
Before my noble friend sits down, will he clarify one matter? He referred to a waiver. Is he aware that we are dealing here only with the waiver of a prescribed fee? We are not dealing with the waiver of the certificate.
§ Lord Murray of Epping Forest
The noble Lord, Lord Campbell of Alloway, suggested that volunteers could well put their hands in their pockets and pay these trifling amounts. The fact is that many charities and bodies such as the Retirement and Senior Volunteer Programme are aiming at people who have retired early, perhaps having been made redundant, and are living on very low salaries indeed. We are hoping to provide them with an opportunity to fill their time before they reach the age of 60, 65 or whatever. They cannot afford to pay £3, or £5.
I agree with the noble Lord, Lord Campbell, that it is vitally important to encourage voluntary organisations, as the Government have emphasised. However, the Government must make up their mind whether they want to encourage voluntary organisations or to put obstacles in the way of recruiting volunteers. I say that because voluntary organisations cannot function without volunteers.
The experience of charities with which I am involved would suggest that it is becoming more difficult to recruit volunteers. On the one hand, there are more women working who previously might have been available for such voluntary work—with children, at day centres, and so on. On the other hand, as has already been said, charities—especially children's charities—are much more sensitive about the problems of recruiting people who may subsequently turn out to be "wrong'uns". They are bending over backwards so as not to recruit such people.
The central point of the amendment is that, as the noble Lord, Lord Weatherill, said, it brings out the fact that we are not discussing an optional extra; indeed, it will become a requirement. It will become standard practice. Insurers and others will expect charities to recruit people and ensure that, in the increasing state of litigiousness with which we are faced—and we only 475 have to remember what has been happening in schools recently—they are protected against the dangers that are inherent in using volunteers.
Therefore, to impose any extra charge on volunteers or on their organisations in such a situation would be totally inconsistent with the Government's acceptable former policy. I hope that they will think again on the matter. However, if they will not, I hope that Members of the Committee will require them to do so.
§ 3.30 p.m.
§ Lord Dixon-Smith
My Lords, I think that all Members of the Committee are grateful to the noble Lord, Lord Weatherill, for introducing such an amendment. It gives us the opportunity to consider the broad aspects of the issue of voluntary service, which everyone in this Chamber wishes to encourage. It also gives us the chance to talk about the possible costs that Clause 100, as it presently stands, might impose in a situation where no one in this place would wish to put anything by way of disincentive on to voluntary service. In that general sense, we must all be highly sympathetic to what the noble Lord said.
However, in arguing his case, the noble Lord said that there was a danger that the existence of a certificate of a criminal record might make some of the voluntary organisations rather more casual about their selection and training procedures and that in fact such a certificate was not a guarantee of either the morality or the ethical standards of anyone who might enter into voluntary work. In that sense, the existence of such a scheme of criminal records could be a counter indicator. Indeed, if I dare say so to the noble Lord with his parliamentary experience, I believe that he produced an argument that I might have expected to hear from the Government Front Bench in response.
When one considers the question of cost as regards what the Government propose, I must admit that I do not quite know what to think. We know about the cost of the certificates and we know how many people undertake voluntary work. However, to multiply one by the other and say that that is the cost to the voluntary sector, which there is a great temptation to do, would be entirely erroneous.
If we just argue the case of the Scouts, it seems to me that many people who might in a voluntary capacity help them may well, in my experience, have been Scouts themselves. People who grow out of scouting very often volunteer to carry on in the organisation in the service side of the business after they cease to be Scouts. The same applies to cadet forces and to almost all organisations. Therefore, in the case of a young man who has been, so to speak, under your hands for five or 10 years, is it credible that you would then ask for a certificate of criminal record on his account? I find that unbelievable. If someone as distinguished as the noble Lord, Lord McIntosh, were to volunteer to work in the voluntary sector, I would find it equally unbelievable if such a certificate were required. Indeed, I find the idea preposterous. We must think most carefully about what the real financial burdens of this proposal would be as opposed to what the theoretical financial burdens seem to be. There is a clear distinction between the two.
476 Although I am sure that all Members of the Committee have sympathy with the thought behind the amendment, I do not believe that we should blind ourselves to the reality of the situation: the actual cost will not be anything like the theoretical cost. We must also be well aware of the argument put forward by the noble Lord, Lord Weatherill; namely, that even if such a scheme were to exist, it would do nothing to remove the obligation from the voluntary bodies to make the proper checks into the background of any individual whom they may wish to take on to work in a voluntary capacity.
§ Lord Northbourne
About a year ago the noble Baroness very courteously sent me details of a scheme to encourage volunteering. Indeed, I am not entirely sure that the Government did not set aside a substantial sum of money to support projects for volunteers. I follow the argument raised by the noble Lord, Lord Murray. The Government must make up their mind as to whether or not they want to encourage volunteers.
I am involved with the Stepney children's fund which runs camps during the summer. The camps cater for about 100 children and the cost is something under £150 per child. We have 40 youngsters, mostly university graduates or young people from universities, acting as volunteers for one week only. At a cost of £10, that would mean at least another £400—indeed, nearly 5 per cent.—on our total costs. That is a significant amount.
§ The Lord Bishop of Coventry
I want to dispel the notion that we can choose the volunteers for whom we require a certificate. That is simply not the case. Under the Children Act we have to provide certificates. Therefore, in such circumstances, we would have to get as much certification as we could; that would be required of us. As has already been said by the noble Lord, Lord Weatherill, there has been tremendous pressure upon us to do so. We need a degree of certification, so we would need to get as much certification as we could. This will bear very heavily on voluntary organisations. It could kill voluntary recruiting.
I do not believe that Members of the Committee who have spoken have sufficiently represented what a strong destructive effect this will have on voluntary effort. I should plead particularly for those areas where we are, at present, trying desperately to raise the number of volunteers to help with children and young people. I refer to inner cities and the housing estates of our land. I would say that the measure is one which could destroy such efforts if we do not pass an amendment like the one moved by the noble Lord, Lord Weatherill. We must ask the Government to think again on the matter. This cost must be covered. It cannot be covered by the voluntary organisations themselves and it cannot be covered by the volunteers; indeed, it would simply discourage them. It is simply not true to say that we would have choice in the matter as regards whom we certificated. Whatever we know about people beforehand, we must apply the process to everyone.
§ Lord Rodgers of Quarry Bank
I should like to add the support of this side of the Committee to the very 477 powerful expressions of opinion which we have heard from all Members of the Committee. As the noble Lord, Lord McIntosh said, this is a modest and limited measure, yet it is of the greatest importance to voluntary organisations of all sizes and identities.
I should merely like to say that I am sure that the Minister will spell out very clearly in her response what the cost of this measure might be. The Bill refers to a "turnover" of £18 million as regards its "financial effects". As far as I understand it, the only income of the agency is likely to come from fees. In working out the likely income and deciding what the fees should be, the Treasury and the department must have made some assumptions about what proportion of the total number of applications would come from the voluntary sector. Therefore, I am sure that the Minister will tell the House—indeed, she is nodding her head—the sort of sum of money that would be involved.
Given that the turnover is, in Exchequer terms, as small as £18 million, I cannot believe that the extra cost of granting such certificates free to voluntary organisations (given proper safeguards) is one which the Exchequer should not bear. I say that in anticipation of an argument which the Minister may very fairly put forward—namely, that if this were to be a self-financing organisation and no fees were charged to voluntary bodies, then the fees to others would be greatly increased.
As the Committee knows, at a later stage I intend to oppose the Question that Clause 100 stand part of the Bill. There are many objections to the clause as a whole which do not apply in any way to Clauses 101 and 102. One of the arguments which we shall bear in mind in our discussion today is the considerable sum of money which any applicant may have to pay, if that is not borne by the organisation to which he or she is applying. Were this amendment to be accepted, I hope there will be no argument about the additional costs falling on those who will have to pay for the certificates. It will be a relatively small sum. In view of the importance of the issue and the strength of feeling in this Chamber, I am sure it is a sum that the Treasury should bear.
§ Lord Craig of Radley
I wish to support the noble Lord, Lord Weatherill, in this amendment, and to follow what the noble Lord, Lord Rodgers, has just said. We are reminded in the Bill that the effect on public expenditure is expected to be broadly cost neutral. Although the figures which the noble Lord, Lord Weatherill, has mentioned are clearly of great importance to individual charities, it does not seem to me that they amount to a large sum of money regarding the overall effect on public expenditure. No doubt the Minister will be able to put us right on those figures, but the statement in the Bill that the overall effect on public expenditure is expected to be neutral would still stand. I very much support the noble Lord, Lord Weatherill.
§ Baroness Rawlings
I declare an interest as an honorary vice-president of the British Red Cross Society and as someone who has been a volunteer worker for many years. I speak on my own behalf.
478 I had every intention of supporting the noble Lord, Lord Weatherill, on what appeared to be an important amendment for which I had great sympathy. However, I realised that the point in the amendment which concerns the costs of the enhanced checks on voluntary workers does not cover every worker. Perhaps the Minister will reiterate this point. But, as I understand it, voluntary organisations do not have to check everyone through this system. Therefore the heavy costs that have been mentioned will not arise. Organisations will naturally follow their sensible recruitment procedures and follow up normal checks and references. Only if they are suspicious will they need to use the enhanced system. Will the Minister clarify what would happen if a person who was not checked through the enhanced system turned out to be a "wrong'un"? As few volunteers will need to be checked in this way, costs for any organisation should be minimal and should not amount to the vast sums that have been mentioned. Therefore I hope that the amendment will be withdrawn.
§ Lord Northbourne
On what basis does the noble Baroness state that only a small percentage of volunteers will need to be checked? Would she be prepared to take the responsibility of accepting unknown volunteers who offer their services to work with children without checking them?.
§ Baroness Rawlings
There would be checks because all organisations carry out minimal checks. However, if they know people who have worked for them for a long time and who have lived in the same area for a long time, they will not need to conduct a criminal check on those people.
§ 3.45 p.m.
§ Baroness Farrington of Ribbleton
I declare an interest as a vice-president of the scout movement in Lancashire. I am deeply troubled by the preceding contribution and exchange. When this legislation is enacted, the scout movement and other voluntary organisations will be placed under pressure, as my noble friend Lord Murray said. In the circumstances of our time voluntary organisations have to protect themselves through insurance. They have to protect themselves against any action that may be taken in the future. Insurers will demand that due care is taken. The situation that has been described is rather like someone insuring his house against burglary and then refusing to fit catches on the windows.
For many years my sons belonged to the scout movement. I believe it is difficult for a scout troop leader at local level to judge those individuals who will need to be checked and those who will not. That measure would place such people in an invidious position. I believe that even if such people were not required to take that decision they would still do so. They will be required to do so by insurance companies. It will be impossible for people organising volunteers within their local community to decide that one group of people must be checked but another must not.
It is precisely in some of the most deprived and transient communities in cities where the checks will be needed most as individuals in those kind of communities 479 will have little knowledge of people who volunteer their services. Those are the very sectors of our community which will have the greatest difficulty in bearing the costs we have been discussing. Some Members of the Committee on the Government Benches have said that the measure may not be as expensive as it seems, or that we cannot quantify the figures. I believe—I say this with the greatest respect—that they miss the point. Many people from different sides of the Chamber have expressed concern about this measure. If in two or three years' time it is discovered that the measure has damaged the volunteer movement, it will be too late to try to retrieve the situation. I support the amendment.
§ Lord Swinfen
I declare an interest as I work for a voluntary organisation which uses volunteers. However, I do not wish to use that organisation as an example because it employs few volunteers. However, I feel that the insurers of voluntary organisations which employ any volunteers will insist that these checks are undertaken. If they do not do so, the insurers are idiots. However, insurers are not idiots and they like to cover themselves from all angles.
Often social services departments place children with voluntary organisations. I am sure that the directors of social services will want to know that the voluntary organisations with which they place those children have undertaken these checks; otherwise, those children will be placed with other voluntary organisations, or somewhere where the local authority has to pay for them, in which case the costs to the community would be considerably greater. I am not a lawyer but I suspect that if the measure reaches the statute book trustees of a voluntary organisation who failed to insist that the checks were undertaken would be failing in their duties as trustees. Therefore there will inevitably be an increased cost to the voluntary organisation because of these checks.
I have some notes on one voluntary organisation which employs some 3,370 volunteers a year who give some 5,257 weeks of their time. Therefore that organisation employs volunteers who spend, on average, less than a fortnight with that organisation. Therefore that organisation will face a considerable administrative burden as well as the cost of carrying out the checks. With that number of volunteers, at a fee of £10, the cost to this organisation would be £33,700 a year. However, if as a result of the checks 5 per cent. of its volunteers were no longer to come forward, it would then cost that organisation an extra £115,000 a year to pay for the additional permanent staff whom it would be required to take on board.
There are additional costs to voluntary organisations for not carrying out the checks. However, when they use volunteers, the cost is so large that I believe we should support the amendment in the name of the noble Lord, Lord Weatherill.
§ Lord Rix
I identify myself with the remarks made by the noble Lord, Lord Swinfen. However, I wish that he would delete the word "idiot" and substitute the 480 word"naïve" with regard to insurance companies. I wish, too, that he would add "vulnerable adults" to the word "children". That is the subject of Amendment No. 111.
With those two provisos, I identify myself completely with the noble Lord's remarks. I must declare an interest as regards MENCAP and its leisure arm, Gateway. With 50,000 members, 700 clubs and over 20,000 volunteers, they will be subjected to an enormous cost if the Bill goes through as drafted. Without question, insurance companies and trustees will wish to ensure that those checks have been carried out in all instances, whether they involve children or vulnerable adults. I support the amendment in the name of my noble friend Lord Weatherill.
§ Baroness Carnegy of Lour
When the Statement on the Culham Report was made in this House, I asked the Minister whether the Government would consult organisations such as the Scouts, Guides and Boys Brigades. The Minister replied that they would be consulting such organisations. When the noble Baroness replies to the amendment, will she tell us whether the Government have consulted those organisations; and, if so, what they said.
I apologise to the Committee and to the noble Lord who moved the amendment that I did not hear the whole of his speech; the train was late. In discussing the amendment we are discussing many different types of organisations. For example, leaders of Scouts, Guides and Boys Brigades are not employed. They are simply members of the organisation who, as the noble Lord, Lord Dixon-Smith, said, may have grown up through the organisation. They undertake a leadership role. They are not employed; they are paid nothing. It costs the leaders quite a lot of money. The organisations are funded almost entirely out of the young people's membership subscriptions.
One has to be careful. The leaders of these organisations come and go. The organisations are taking on new people. At the same time those organisations are often the most vulnerable. The leaders go camping; they go on expeditions with the young people. Such an organisation must be absolutely certain that those leaders are reliable. That is very difficult to do as regards boys' organisations.
I hope that the Government are considering the issue carefully to see whether they have got the position right. It could be a very big problem. I can understand their desire to have a self-financing system; it will be quite an expensive business. But for the organisations to which I refer, it seems a large potential burden. I agree with those noble Lords who said that it will be difficult not to obtain a certificate. If you do not have one and something goes wrong, there will be trouble. Those of us who have worked in the organisations about which I speak have felt the responsibility very heavily upon us. I could describe a number of awkward moments when there were doubts about people. It is difficult to shed them. The certificate will be desirable for the 481 organisations. I shall be interested to hear what my noble friend tells us about the cost and whether the Government see a way of paying for it.
§ Lord Renton
Perhaps I may briefly follow up what my noble friend said. The only issue is whether the prescribed fee should be paid by the general body of taxpayers or by the various charities. With a small charity there would not be a great turnover requiring many new applicants to be considered each year. However, as the noble Lord, Lord Rix, said, with the large charities it could come to a considerable sum each year because inevitably there is a considerable turnover. It seems to me that it is more a matter of arithmetic than of any legal principle. When my noble friend Lady Blatch replies, it will be interesting if she can give us some indication of the arithmetic.
§ Viscount Brentford
The noble Lord, Lord Murray, rightly said that many volunteers are taking early retirement. The noble Lord, Lord Northbourne, touched upon the large number of undergraduates. They are unable to pay the fees. They have to do their utmost to meet the cost of fares to wherever the activity takes place, when they give one week of their time in a year. I hope that that point will be taken into account by the Government. I support the amendment.
§ Lord Clifford of Chudleigh
I declare an interest. I speak as a patron of SENSE. It is a charity which deals with the deaf-blind. Not too many people appreciate how many are born deaf-blind. It may be congenital and last through puberty, adolescence and adulthood to the end of their lives. They do not see or hear in full. Sometimes they are unable to walk. Since they cannot hear, they cannot talk. However, they have an animal sense. They were born male or female and they therefore have the ability to reproduce. Intimate and close attention has to be paid to these people to help them to understand—because they are totally unaware of the consequences of the talent with which they were blessed at birth.
The noble Lord, Lord Rix, has mentioned vulnerable adults. He and the noble Lord, Lord Swinfen, will raise the issue in Amendment No. 111. The vulnerable adult's impairment has an adverse effect on his or her ability to carry out normal day-to-day activities. The effect of his or her disability is substantial and long term. This same disability significantly impedes his or her ability to communicate. I refer to close and intimate contact as regards the volunteers and those people who are hired by SENSE to look after those vulnerable adults. As I said, the disability may be congenital; but it may result from the inevitable ageing process in the long term—what we call old age. Millions are affected and fall within that bracket. I disagree with the belief held by some that those working in close, unsupervised contact with those over 18 constitutes a relatively smaller class—with a growing number of people living longer it is fast becoming a marginally smaller class of employees.
482 As I said, I have the good fortune to be a patron of SENSE. In a conversation I had with the manager of a residential home, he raised the following points. This information comes, as it were, from the rock face. He said that, first, it is important that police intelligence is sought for all his contact employees. Secondly, it is vital that such intelligence is supplied speedily. He had found that to be a problem up to now and said it would be a greater problem in the future, if more and more bureaucracy is involved, speedily to avoid any staff shortages in such a sensitive area as duo-sensory caring. Thirdly, SENSE takes those in its care on holidays each year, and those holiday parties "survive" off volunteers. He said fourthly that he was finding it increasingly difficult to find volunteers who would attend on a regular basis. That is vital for those who are deaf-blind since they rely so much on the smell and touch of the person who is associated with their care. His fifth point was that, should a potential employee be made to pay for his or her police intelligence report and then not get the job, that was a disincentive when applying for a similar position elsewhere. His sixth point was that there must be a designated list of past crimes which will forbid certain volunteers from taking roles in certain charities dealing with vulnerable people.
We spoke about finances, and his seventh point was that the enhanced criminal certificate could be financed through the lottery fund—not the charities or volunteers. Despite the denials that we have heard from so many sources, it is recognised that the purchase of lottery tickets has affected the voluntary donation made to charities.
Perhaps the Committee will bear with me for a few seconds longer. If noble Lords would like me to sit down, I will; but I should like to make one final point. I am a Cross-Bencher, supporting a Cross-Bench amendment. With all the political parties trying to command the moral high ground, it would be immoral and unjust for the Government and Parliament to tax those who volunteer their time and their privacy to act in a moral and Christian way, to help those who cannot help themselves. I support the amendment.
§ 4 p.m.
§ Baroness Blatch
I understand why these amendments have been brought forward. There are many millions of people in this country who act as volunteers. The Government recognise the valuable part that volunteers play in the community. It is a role which this Government have sought to encourage and extend. We have no wish to discourage volunteering and we do not believe that the proposals in this part of the Bill would have that effect. Until fairly recently I was the Minister with principal responsibility for the voluntary sector. I know how much work is going on in that sector and the degree to which it impacts on all our communities throughout the land.
One of the main reasons why we introduced these proposals was in order to meet the widespread demand there has been within the voluntary sector for access to criminal record checks on prospective employees and volunteers on the same basis as already exists for the statutory sector. At the moment the police service 483 carries out over 1 million criminal record checks, mainly on those who work with children, free of charge. But the checks cost money and neither the police nor any agency could increase the number of checks which they undertake without extra resources. In the case of the police this would mean diverting them from core policing activities. The only way to increase the availability of checks was to find an alternative way of funding them. Rather than place an additional burden on employers and voluntary organisations, we decided that the fairest way of spreading the burden was for individuals to pay for their own checks.
We estimate that there are between 8 million and 20 million volunteers in this country. It is difficult to be more precise given the wide range and often informal nature of volunteering opportunities. But it is clear that there could potentially be a huge number of volunteers who might qualify for a free check if these amendments were adopted. Even so, when preparing the proposals in the Bill, we did give very careful consideration to the possibility of free or subsidised checks for volunteers. Both options having been carefully considered, they were rejected for reasons of equity and practicality.
It would only be possible to provide free checks on volunteers working for charities and voluntary organisations if, as my noble friend Lord Renton said, someone else met the costs. We do not believe that it would be right to require the taxpayer or voluntary organisations to pick up the bill. Costs should be met by those who wish to use the service. This means that the cost of providing free or subsidised checks for volunteers would have to be met by other users. We estimate that free checks for volunteers would at least double the cost of criminal record certificates and enhanced certificates for those who had to pay for their checks and who are left outside the scope of this amendment. In some circumstances that includes the unemployed.
The increase could be even higher if, for example, the fact that the checks were free meant that there was a significant stimulation of the demand for checks for volunteers. Subsidised checks would have a similar effect on charges depending on the level of subsidy. It is surely not right to expect those seeking checks for employment or other purposes, many of whom will be unemployed or low paid and so less able than many volunteers to pay the fee—not just the fee but double that amount or more—to meet these additional costs.
But the practical difficulties of free or subsidised checks are even more formidable. There would clearly be an incentive, all the greater if fees were higher, to obtain a check free of charge on the basis of being a volunteer. The voluntary sector in this country is large and diverse. A complex system of controls would be necessary to establish whether applicants claiming a free check were in fact entitled to do so. Without such safeguards, the whole system would be wide open to abuse and understandable public concern. Sophisticated, verifiable systems would need to be put in place. It would also produce a more expensive system to operate with the result that the fees for those who had to pay would be pushed even higher.
484 I believe that those are powerful arguments against providing free checks for volunteers as these amendments propose. We must not assume that checks provide a guarantee that volunteers are suitable for the post they are seeking.
The noble Lord, Lord Weatherill, said that the checks could create a false sense of security. We have made the point in the code of practice that we specifically do not wish that to happen. The checks must not be taken as the only guarantee that anybody being employed in the voluntary sector or anywhere with access to children is safe. They should not be the be-all and end-all. It will be no guarantee that such people are safe. It will certainly eliminate some of the worst effects of employing people, but there is no substitute whatsoever for proper systems being put in place. Much was said about the scout, brownie and guide movements and the Red Cross. From experience, I can tell the Committee that those organisations have some pretty good systems in place for checking on the people they recruit to work for them and who therefore have access to young people.
Voluntary agencies as much as others must ensure that they make other inquiries and are discriminating in their use of and reliance on checks. The existence of a fee for a check will encourage voluntary agencies to think properly about whether a check is needed—a point made by my noble friend Lady Rawlings—and, if so, what value it will add to the other recruitment procedures. Many volunteers will not require checks because the type of work they will perform does not justify it or because they are well known to the organisations for whom they seek to work.
Where a check is needed, many volunteers will be well able and willing to pay for the check. Many of us volunteer in the knowledge that we may incur additional costs; for example, for the purchase of uniforms, materials or travelling, as well as giving up our time. If a check is genuinely necessary for those undertaking voluntary work, I believe that the vast majority of volunteers will be happy to pay the fairly small level of fee which we envisage, provided that the costs are spread fairly across all users. I should also point out that, in the case of a criminal conviction certificate, once it has been obtained, the individual concerned may also be able to make use of it for other purposes such as job applications. It is not clear why such uses should also effectively be subsidised.
A point which I made at Second Reading and repeat now is that although there will be no requirement on the voluntary organisation to meet the cost of checks for individuals wishing to work for them, some have a very low turnover of staff—again a point made by my noble friend Lord Renton—and might be willing to meet the cost for those individuals who genuinely feel unable to pay the fee themselves. Alternatively, they might recover the cost from the individual over a period of time, particularly—as I mentioned—as the individual might be able to make use of the certificate for other purposes unconnected with volunteering.
Compared with the difficulties of principle and practice with providing free or subsidised checks for volunteers, we believe that the right approach is to 485 spread the costs across all users and so keep the fees as low as possible. On that basis, we expect that the fee for a criminal conviction certificate or a criminal record certificate will be about £5 or £6, with an enhanced criminal record certificate costing between £8 and £10. Those sums are considerably less than most people were expecting. I do not believe that they are unreasonable amounts for most volunteers to meet or that they will act as a serious disincentive to volunteering.
I was asked to give figures and I shall do so. However, perhaps I may preface the statistics with this remark. I personally have worked in the voluntary sector and can name a few of the organisations with which I have worked: the citizens advice bureaux; the Women's Royal Voluntary Service; youth clubs; I have been a Sunday school teacher and have worked with the Macmillan nurses. I am president of the National Benevolent Institution. All I can say is that my volunteering activities go back a long way. There are thousands and thousands of people in my position who would willingly have met this cost rather than have it fall on the voluntary organisation. If we accept that the amendment would cover my obligation to pay the fee, we all know that if something is free then very few people volunteer to pay for it. It is true that a substantial number of people are well able to meet the fee and it is my view that they will.
On the point made by my noble friend Lady Rawlings, large numbers of people work in the voluntary sector at a local level. They are well known, they have come through the organisations within which they volunteer, their antecedents are known, and whole families are known. The idea of carrying out enhanced checks on them is nonsense and is inconsistent with the code of practice. So that is another group of people who can be taken out of the equation. Of course, a small number of people who come into the voluntary sector and wish to give time and energy to it will not be able to pay. For them, it could be spread over a period and, especially where there is a low turnover, it is possible that the money could be found to help them. However, the amendments go all the way. They ask for the fee to be waived for all those people.
I finish with the figures. Everyone who has spoken in support of the amendments today, like the noble Lord, Lord Weather11, and others, argued strongly that there would be so much pressure that checks would have to be done on everyone. I take all the figures that have been used by Members of the Committee in the course of the debate as to what the checks will cost voluntary organisations. My range of figures is from 8 million to 20 million volunteers. If I take the most conservative of those figures—and this is not inconsistent with some given for individual organisations—with 8 million volunteers the enhanced check would cost anything between £64 million and £80 million, using the £8 or £10. With £8 it would be £64 million, and with £10 it would cost £80 million.
If we use the figure of 20 million volunteers, the costs become £160 million to £200 million. The figures will be somewhere between £64 million and £200 million on the enhanced check. However, I take an even more 486 conservative look at the figures. With the 8 million volunteers, if one does no enhanced checks, merely the full checks, at £5 per check we are talking of £40 million and at £6 per check £48 million. With the figure of 20 million volunteers, we are talking of £100 million to £120 million.
In anyone's language, those are substantial sums. Depending on the check that is done, at the lowest, the costs are between £40 million and £200 million, whether we take 8 million volunteers or 20 million volunteers. I say to noble Lords opposite that this is a real commitment to public spending. My noble friend Lord Renton made the point that it is incumbent on all of us not to say that these are trivial or, in the words of the noble Lord, Lord McIntosh, a "modest sum of money". The sums are substantial and it is particularly incumbent on this House to give another place an indication of where we believe the money will come from. I believe there are only two places: one is the taxpayer, the other is all those residual people who are not included in the amendment. I do not believe that that amount of money can be afforded and therefore we fall back on what we said at the outset. Having considered the matter carefully, we believe that an even spread and a modest fee for that important information which will enhance the effectiveness of the voluntary sector and make vulnerable groups safer in the community is the fairest way forward. Then it will not become an unreasonable burden on individuals and/or the taxpayers.
§ 4.15 p.m.
§ Lord McIntosh of Haringey
I know that the Committee does not wish the debate to be prolonged, but I must come back on the figures given by the Minister. They are completely in conflict with what is stated in the Explanatory and Financial Memorandum to the Bill. It states that:It is expected that up to 2.5 million checks will be carried out during the first year of operation with turnover estimated at about £18 million".The memorandum started by saying that:up to 8 million checks a year might be needed when the service is fully operational".Presumably the cost of that would be 18 times 8 divided by 2.5. In other words, it would be of the order of £40 million to £50 million at most, compared with the £200 million mentioned by the Minister. Does she seriously say that the Financial Memorandum did not consider the cost of checks on volunteers as part of the costing of the Bill? If so, it was grossly inadequate. Everyone, including the Minister, has agreed that checks on volunteers will be required.
Before the Minister answers, perhaps I may put one final point to her. When the Government responded to the Cullen Report on Dunblane, they quite rightly congratulated themselves on the number of Lord Cullen's recommendations that were accepted by the Government. The only change that they made—in my view quite rightly—was to be tougher about gun control than Cullen recommended. On everything else, the Government said, "We are accepting Lord Cullen's recommendations". Did not Lord Cullen recommend specifically that the vetting and supervision of adults 487 working with children and young people should be kept within the limits of what organisations could afford and therefore be subsidised by the Government, if necessary? If the Government were going to respond honestly to Cullen, should they not have said that they were not accepting that recommendation?.
§ Baroness Blatch
The noble Lord has graphically illustrated why I believe there is so much misunderstanding about the Bill. On his first point, the Financial Memorandum is written to be entirely consistent with the code of practice and the way in which we believe it would work. The amendments are very different, however. They include waiving the fee completely, which will inevitably stimulate demand, which is what the noble Lord has said, as have the noble Lords, Lord Rodgers and Lord Weatherill: these checks will become common practice and the voluntary organisations will wish to check everybody.
We refer to £18 million as being the turnover in the first year, when, because of phasing—and we considered phasing—only enhanced and full checks would be undertaken. We estimated that about 2.5 million people would require checks. The code of practice does not encourage wholesale checks on absolutely everybody. It does argue for, say, making judgments about whether they need to be done, how much is known about people, whether they have the ability to pay, and all that sort of thing.
There is nothing inconsistent with the Financial Memorandum here. It is consistent with our proposals, but the Committee is discussing an amendment which is asking us to waive the fees, when of course a considerably larger number would need the checks than is envisaged by the Bill.
I was remiss in not coming back to the point raised by my noble friend Lady Carnegy, which links with the point of the noble Lord, Lord McIntosh. We did accept the recommendation of the noble Lord, Lord Cullen, and we did agree that an accreditation agency would be set up. We have agreed to that. I am able to give my noble friend the assurance which she sought from me that we will, of course, consult in some depth with the affected bodies, which will include Scouts, Guides and Brownies and so forth. So, there is nothing inconsistent there.
The noble Lord also said in his report that he saw no reason why the fee should not fall on individuals. Our proposals include that the cost should be amortised across all individuals, rather than that a large body, something between 8 and 20 million people, should be remitted by the effect of this amendment.
§ Lord McIntosh of Haringey
May I pursue the specific point, because we are in Committee? The noble Lord, Lord Cullen, did say, did he not, that the costs should be kept within what such organisations can afford and that there should be government subsidy. That is the point that the Minister is failing to take into account. When the Minister talks about the numbers, surely at present checks are made by voluntary organisations and local authorities on the basis of an existing Home Office circular, and local authorities and voluntary organisations follow the terms of that circular 488 closely. Is the Minister actually saying that the result of the Government's proposals is going to be a reduction in the number of checks made? That is not the impression that the Government gave.
§ Baroness Blatch
No. I am pleased that the noble Lord recognised that this is important, because it is absolutely vital to the discussion we are having at the moment. We have taken the view that there will be more checks. We have also taken the view that it is reasonable to accept that individuals themselves should share the burden. I mean "share" the burden, because we are talking about somewhere between 5 million, on the lower end of the checks and 8 million to 10 million on the enhanced checks, and we have always argued that the enhanced checks would be used for a smaller number of people than the full checks, whereas all the arithmetic done by noble Lords opposite, and indeed by some of my own noble friends who support the amendment, has included the enhanced check for everybody. So there is a great deal of difference between us.
So, yes, we believe a number of things. This is important. Access to this information for the voluntary sector is absolutely crucial. We believe it would be fair to spread the cost across individuals. We accept the view of the noble Lord, Lord Cullen, that there is nothing wrong in levying this charge on individuals, but he quite rightly also said that the cost should be what the voluntary sector can afford. We believe that, if one applies the policy more sensibly and indulges in enhanced checks only where they are really needed, and full checks where the cost predominantly falls on the individual, and one bears in mind those people who, as my noble friend Lady Rawlings, said, are so well known to the local voluntary sector that it is considered that checks are not necessary at all, and if that is done consistently with the code of practice, the cost falling on the voluntary sector will be much reduced. Indeed, it will be more affordable.
There is nothing inconsistent in what I have said; there is nothing inconsistent with the Financial Memorandum; there is nothing inconsistent with our response to the Cullen Report and its recommendations. We believe that a balance has to be struck and I pose this question to Members opposite. They cannot argue with my arithmetic. There are between 8 million and 20 million people out there volunteering. If one takes the most conservative estimate, which is 8 million people, and multiplies that by £5 or £6 or £8 or £10, the sum of money is very substantial. If one takes 20 million and multiplies that by £5 or £6 or £8 or £10, the money involved is substantial indeed. It is incumbent upon Members opposite to say where that money will come from.
§ Lord Monson
Would my noble friend the Minister explain to me whether this fee will be subject to VAT, because if so it will increase by 17.5 per cent?.
§ Baroness Blatch
My understanding is that it will not. If I am wrong, I will let my noble friend know. It is predominantly charitable bodies that are involved.
The Minister has said that nobody can quarrel with her mathematics. I confess 489 I find them wholly unintelligible. I am sure I am being idiotic and not just naïve, but the noble Baroness has multiplied the fee by the total number of volunteers. There will not be checks on every volunteer every year. The noble Baroness then said that that was the yearly figure. After the first year there will presumably be checks only on new volunteers, so surely her figures are totally meaningless.
§ Baroness Blatch
The noble Viscount absolutely makes my point. It may have been unintentional but the noble Viscount makes my point. I have argued that it will not be necessary to do checks on everybody, and I have also said that it is quite wrong for this Committee to accept the argument that you take the number of volunteers and multiply it by the sum of money, but that is precisely what everybody who has spoken in favour of the amendment has done. It is what the noble Lord, Lord Weatherill, has done. He gave an example of a body that had 800 members and he said the cost would be £8,000. There was another one with 400 members, so the cost would be £4,000.
All I can say is that I have taken those components of these amendments and I have played the same game. Perhaps I can make this final point to the noble Viscount, Lord Bledisloe. One of the difficulties of this amendment is that it is not a scientific proposition. The trouble is that the worst financial scenario that I have given could, in fact, come about. It is, in effect, a blank cheque. It is a blank cheque on the taxpayer and it is a blank cheque on those, if we choose the other way, who would be required to pay, because the truth is that we do not know whether the voluntary sector will check everybody. We do not know whether they will do an enhanced check on everybody or a full check on everybody, but what we do know is that the number can range from the very conservative estimate I gave, which at the bottom end of those figures is £44 million, right to the top end of that estimate, which is £200 million.
The truth is that when we sign up to this amendment we virtually sign up to a blank cheque. It is as long as a piece of string.
§ Lord Weatherill
I have listened with interest and a good deal of sympathy to what the noble Baroness has said. This is another case of our old friend "the law of unexpected consequences". In the light of Dunblane the whole Committee and most charities would support the thrust of Lord Cullen's recommendations, but the unexpected consequences, as many noble Lords have stated, have been rather different. I accept what the noble Baroness has said about the Scouts or the Guides, who have codes of good practice. Indeed, as I mentioned, Thomas Hamilton was refused a certificate to be a Scout leader as a result of the Scouts' own checks, although he had no criminal record.
490 There is another point. Are these checks necessary every year because, in effect, as a noble Lord behind me has just whispered in my ear, they are rather like an MOT certificate which is only valid for a period, probably one year?.
§ Baroness Blatch
I promised that I would not come back to my Chief Whip unless the noble Lord said something which could be challenged. There is a provision that one cannot simply come back frequently. There will be a period specified, which will be very much longer than one year, for updating purposes.
§ Lord Weatherill
That may be so. I do not wish to stress the point any more; but although allegedly voluntary, these checks would, in effect, as both the right reverend Prelates said, become mandatory because of insurers, trustees and other people. Furthermore, some local government officers have already publicly stated that they would refuse to lease premises to youth organisations unless they had carried out the checks. So I am afraid that I remain unconvinced by what the Minister said. With some regret I must test the opinion of the Committee.
I should have confessed at the beginning that in moving Amendment No. 103—I have not moved an amendment since 1965 and I am rather out of practice—I spoke also to Amendments Nos. 106 and 109. As I said, I regret that I have to test the opinion of the Committee.
§ 4.31 p.m.
§ On Question, Whether the said amendment (No. 103) shall be agreed to?
§ Their Lordships divided: Contents, 137; Not-Contents, 135.492
|Division No. 1|
|Addington, L.||Dean of Thomson-le-Fylde, B.|
|Alderdice, L.||Desai, L.|
|Allenby of Megiddo, V.||Donaldson of Kingsbridge, L.|
|Archer of Sandwell, L.||Donoughue, L.|
|Ashley of Stoke, L.||Dormand of Easington, L.|
|Avebury, L.||Dubs, L.|
|Barnett, L.||Ewing of Kirkford, L.|
|Beaumont of Whitley, L.||Exmouth, V.|
|Blackstone, B.||Ezra, L.|
|Bledisloe, V.||Falkender, B.|
|Borne, L.||Farrington of Ribbleton, B.|
|Broadbridge, L.||Gallacher, L.|
|Brooks of Tremorfa, L.||Geraint, L.|
|Browne-Wilkinson, L.||Gladwin of Clee, L.|
|Bruce of Donington, L.||Gould of Potternewton, B.|
|Carew, L.||Graham of Edmonton, L.|
|Carmichael of Kelvingrove, L.||Gregson, L.|
|Carter, L.||Grey, E.|
|Castle of Blackburn, B.||Halsbury, E.|
|Cledwyn of Penrhos, L.||Hamwee, B.|
|Clifford of Chudleigh, L.||Harris of Greenwich, L.|
|Coventry, Bp.||Haskel, L.|
|Craig of Radley, L.||Hayman, B.|
|Dahrendorf, L.||Hayter, L.|
|David, B.||Hertford, M.|
|Dean of Beswick, L.||Hilton of Eggardon, B.|
|Hoflick, L.||Richard, L.|
|Hollis of Heigham, B.||Rix, L.|
|Hooson, L.||Robson of Kiddington, B.|
|Howie of Troon, L.||Rochester, L.|
|Hunt of Tanworth, L.||Rodgers of Quarry Bank, L.|
|Hylton, L.||Russell, E.|
|Hylton-Foster, B.||Sainsbury, L.|
|Irvine of Lairg, L.||Saltoun of Abernethy, Ly.|
|Jay of Paddington, B.||Scanlon, L.|
|Jeger, B.||Serota, B.|
|Jenkins of Hillhead, L.||Sewel, L.|
|Jenkins of Putney, L.||Shannon, E.|
|Judd, L.||Shepherd, L.|
|Kinloss, Ly.||Simon, V.|
|Kintore, E.||Simon of Glaisdale, L.|
|Kirkhill, L.||Stallard, L.|
|Lester of Herne Hill, L.||Stoddart of Swindon, L.|
|Lincoln, Bp.||Strabolgi, L.|
|Lloyd-George of Dwyfor, E.||Strafford, E.|
|Longford, E.||Symons of Vernham Dean, B.|
|McIntosh of Haringey, L.||Swinfen, L. [Teller.]|
|McNair, L.||Taverne, L.|
|McNally, L.||Taylor of Blackburn, L.|
|Masham of Ilton, B.||Taylor of Gryfe, L.|
|Mason of Barnsley, L.||Tenby, V.|
|Merlyn-Rees, L.||Terrington, L.|
|Meston, L.||Thomas of Gresford, L.|
|Methuen, L.||Thomas of Walliswood, B.|
|Molloy, L.||Thomson of Monifieth, L.|
|Monckton of Brenchley, V.||Tordoff, L.|
|Monkswell, L.||Turner of Camden, B.|
|Monson, L.||Varley, L.|
|Moms of Castle Morns, L.||Waverley, V.|
|Moyne, L||Weatherill, L. [Teller.]|
|Murray of Epping Forest, L.||Wharton, B.|
|Northbourne, L.||White, B.|
|Northfield, L.||Whitty, L.|
|Ogmore, L.||Wigoder, L.|
|Orr-Ewing, L.||Williams of Elvel, L.|
|Peston, L.||Williams of Mostyn, L.|
|Porter of Luddenham, L.||Winchilsea and Nottingham, E.|
|Ramsay of Cartvale, B.||Winston, L.|
|Aberdare, L.||Clark of Kempston, L.|
|Addison, V.||Cockfield, L.|
|Ailsa, M.||Coleraine, L.|
|Anelay of St. Johns, B.||Courtown, E.|
|Annan, L.||Cranborne, V. [Lord Privy Seat]|
|Ashboume, L.||Cuckney, L.|
|Astor of Hever, L.||Cumberlege, B.|
|Attlee, E.||De Freyne, L.|
|Balfour, E.||Dean of Harptree, L.|
|Barber, L.||Denbigh, E.|
|Belhaven and Stenton, L.||Denton of Wakefield, B.|
|Beloff, L.||Derwent, L.|
|Berners, B.||Dixon-Smith, L.|
|Blaker, L.||Dudley, E.|
|Blatch, B.||Eden of Winton, L.|
|Bowness, L.||Ellenborough, L.|
|Brain of Wheatley, L.||Elles, B.|
|Brougham and Vaux, L.||Elliott of Morpeth, L.|
|Bruntisfield, L.||Erne, E.|
|Burnham, L.||Feldman, L.|
|Butterworth, L.||Fevers, E.|
|Byford, B.||Rather, B.|
|Cadman, L.||Fraser of Carmyllie, L.|
|Campbell of Alloway, L.||Freyberg, L.|
|Campbell of Croy, L.||Gainford, L.|
|Carlisle of Bucklow, L.||Gardner of Parkes, B.|
|Charteris of Amisfield, L.||Geddes, L.|
|Chelmsford, V.||Gibson-Watt, L.|
|Chesham, L. [Teller.]||Goschen, V.|
|Clanwilliam, E.||Greenhill of Harrow, L|
|Griffiths of Fforestfach, L.||Northesk, E.|
|Hailsham of Saint Marylebone, L.||O'Cathain, B.|
|Harding of Petherton, L.||Onslow, E.|
|Harmsworth, L.||Oppenheim-Barnes, B.|
|Harris of Peckham, L.||Oxfuird, V.|
|Hayhoe, L.||Park of Monmouth, B.|
|HolmPatrick, L.||Peel, E.|
|Howe of Aberavon, L.||Pender, L.|
|Inchcape, E.||Perry of Southwark, B.|
|Inglewood, L.||Peyton of Yeovil, L.|
|Jenkin of Roding, L.||Pilkington of Oxenford, L.|
|Kenilworth, L.||Pym, L.|
|Laing of Dunphail, L.||Quinton, L.|
|Lauderdale, E.||Rankeillour, L.|
|Liverpool, E.||Rawlings, B.|
|Long, V.||Renton, L.|
|Lucas, L.||Renwick, L.|
|Lucas of Chilworth, L.||Rodney, L.|
|Luke, L.||St. Davids, V.|
|McColl of Dulwich, L.||Seccombe, B.|
|Mackay of Ardbrecknish, L.||Sharpies, B.|
|Mackay of Clashfern, L. [Lord Chancellor.]||Shaw of Northstead, L.|
|Mackay of Drumadoon, L.||Strange, B.|
|Macleod of Borve, B.||Strathclyde, L. [Teller.]|
|Melville, V.||Sudeley, L.|
|Merrivale, L.||Swansea, L.|
|Mersey, V.||Taylor of Warwick, L.|
|Miller of Hendon, B.||Tebbit, L.|
|Milverton, L.||Teynham, L.|
|Monk Bretton, L.||Thomas of Gwydir, L.|
|Mountevans, L.||Trumpington, B.|
|Mowbray and Stourton, L.||Ullswater, V.|
|Munster, E.||Vivian, L.|
|Murton of Lindisfarne, L.||Westbury, L.|
|Nelson, E.||Wolfson, L.|
|Norfolk, D.||Wynford, L.|
|Nonie, L.||Young, B.|
§ Resolved in the affirmative, and clause, as amended, agreed to accordingly.
§ 4.40 p.m.
Lord McIntosh of Haringey moved Amendment No. 104:
Page 40, line 10, after ("records") insert ("and which might be relevant to consideration of the applicant's suitability for a specified paid position").
§ The noble Lord said: In rising to move Amendment No. 104, I should like to speak also to Amendments Nos. 105, 112, 113, 114, 115 and 116. The purpose of all these amendments is to ensure that only information which might be relevant to the consideration of the applicant's suitability for a specified paid position is included in the certificate under Clause 100.
§ The significance of "specified paid position" comes to the fore only as a result of the decision which the Committee has just taken, as the Minister might well have been briefed to say that the use of the word "paid" would have been inappropriate if the Government had carried the day on the previous amendment. What we are trying to do is to make sure that we have a system which records only relevant information rather than all kinds of information which might be found on a criminal conviction certificate.
§ There is nothing new or extraordinary about this. The Netherlands and Greece both have a comparable provision for what is contained in a certificate. We quite understand that in Clauses 101 and 102, where the 493 sensitivity of the job is already predicated by the provisions of the clauses, there may have to be different provision. However, in Clause 100, with which Amendments Nos. 104 and 105 are concerned, it is clear to me that to have indiscriminate information on unspent convictions would be unnecessarily restrictive and would damage the operation of the Rehabilitation of Offenders Act 1974.
§ It is not as if we have a particularly strong Rehabilitation of Offenders Act compared with other jurisdictions. Under our 1974 Act, for a prison sentence of more than six months and up to 30 months a conviction is unspent for up to 10 years and for a prison sentence of more than 30 months a conviction is never spent. The law is tougher here than in any other country in the European Union except Ireland. A number of jurisdictions, notably the Netherlands and Greece, successfully restrict information on these certificates to those matters which are clearly relevant to the job in hand and are not simply a deterrent to an employer who employs someone who has had a conviction.
§ There is a genuine conflict of public interest here. There is no point in pretending that there is not always going to be a conflict of interest and that there is no one place in which that conflict of interest can be resolved. On the one hand, it is clearly desirable for offenders who have served their sentences and have taken their punishment to be readmitted on fair terms back into society. That is not just a moral consideration. Clearly, rehabilitation of offenders is desirable in itself. But it is also a practical consideration in the sense that former prisoners whose convictions are spent are much less likely to offend again. Therefore, in terms of prevention of crime, it is better if these people have jobs, provided—this is the other side of the equation—they are not doing any damage in doing so.
§ Throughout the consideration of the Bill we have supported the provisions for the protection of young people and the protection of the gaming business as proposed. In a few minutes we shall be supporting the extension of protection to vulnerable adults, as proposed in the amendment to be moved by the noble Lord, Lord Swinfen. So there can be no question that we want this provision to work. But it will work properly only if it is restricted to those areas which are relevant and recognises the need of society to have offenders whose offences are irrelevant to a particular job get that job and make a proper life for themselves in society again.
In addition to Amendments Nos. 104 and 105, which refer to the criminal conviction certificates in Clause 100, the remaining amendments in the group relate to Clause 102 and tighten up the definition of relevance. The Bill refers to information,
which … might be relevant".
We think it is better to say "is relevant". The Bill says "ought to be included". Instead of that we suggest it should say that the Secretary of State may, if in his opinion it is relevant, include this information on the certificate. Clause 102(5) refers to,
information which, in the chief officer's opinion … might be relevant".
§ Amendment No. 115 removes the words "might be" and inserts the word "is".
§ These are not fundamental changes to the Bill but they would shift the balance between the need for the rehabilitation of offenders and the need for the protection of the public and the protection of children slightly towards the scope for rehabilitation of offenders. We think this is a proper, although perhaps not a major, move. I beg to move.
§ Lord Renton
I have listened carefully and with some sympathy to the noble Lord's case. However, I do not think that his amendment adds enough to the Bill to make it worth having. Clause 101(3) states:A criminal record certificate is a certificate which—(a) gives the prescribed details of every relevant matter"—"relevant" is stated in a broad sense and without limitation—relating to the applicant which is recorded in central records".That is broader than the expression "might be relevant". It is also broader than,the applicant's suitability for a specified paid position".To say that it is relevant is putting it as generally as it can be put. It is in the applicant's favour that it should be put as generally as that.
Therefore, with great respect to the noble Lord, I do not believe that the amendment which he has moved and those which go with it, which are really consequential, are necessary. They would add a certain amount of verbiage to the Bill and make it a little more difficult to interpret. Therefore, I hope that he will reconsider whether his amendments should be pressed.
§ Lord McIntosh of Haringey
Perhaps it would be convenient if I respond to that question of fact. Clause 101, as the noble Lord, Lord Renton, said, deals with,the prescribed details of every relevant matter relating to the applicant".But if he looks at the top of page 41 of the Bill he will see that "relevant matter" is very precisely described as being,a conviction within the meaning of the Rehabilitation of Offenders Act 1974, including a spent conviction, and … a caution".But my amendment is wider, not narrower, because it refers to matters,which might be relevant to consideration of the applicant's suitability for a specified paid position".In other words, I am introducing a judgment, if one likes, about suitability; whereas what the noble Lord has referred to as "relevant" is used in a very much more restricted sense in Clause 101.
§ Lord Renton
The noble Lord has overlooked the fact that a criminal record inevitably records convictions and, quite frankly, nothing else.
§ Lord Lester of Herne Hill
I agree with the noble Lord, Lord Renton, that there is a safeguard in Clause 101 and that the rule of relevance applies. As I shall explain in a moment, it is for that reason that I shall be supporting Amendments Nos. 112 to 116 in Clause 102.
495 But before I do so, perhaps I may say how glad I am to see the noble and learned Lord, Lord Hailsham of Saint Marylebone, in his place for reasons which I shall explain in a few moments.
As I understand the Bill, the position is this: when one looks at Clause 101 dealing with criminal record certificates as distinct from enhanced criminal record certificates, subsection (3) of that clause, as the noble Lord, Lord Renton, rightly indicated, requires the criminal record certificate to be a certificate which,gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records".I believe that the first amendments of the noble Lord, Lord McIntosh, were about Clause 100, but that is another matter and I shall not deal with that.
Turning to Clause 102, there is a major difference because subsection (3) states,An enhanced criminal record certificate is a certificate which—(a) gives—(i) the prescribed details of every relevant matter relating to the applicant which is recorded in central records".If it stopped there, there would be no problem, but the subsection continues by saying,and (ii) any information"—that is to say, information other than relevant matter relating to the applicantprovided in accordance with subsection (4)".When one turns to subsection (4)—and this is the vice—it says,Before issuing an enhanced criminal record certificate the Secretary of State shall request the chief officer … to provide any information which, in the chief officer's opinion—
There is the same use of "might be relevant" in subsection (5).
- (a) might he relevant for the purpose described in the statement under subsection (2), and
- (b) ought to be included in the certificate".
Perhaps I may explain the net effect of all this and why I referred to the noble and learned Lord, Lord Hailsham of Saint Marylebone. I well remember one of his last cases at the Bar when he led me in a case called Regina v. The Gaming Board for Great Britain (ex parte Benaim v. Khaida). That was a famous case that came before the Court of Appeal about our clients' application for gaming licences, seeking licences at Crockfords, as I recall. The case established that persons like our clients refused a gaming licence could not get very full reasons as to the Gaming Board's decision. It perhaps blighted their livelihood and it might blight their reputation. But for reasons that I well understand, the Court of Appeal said, "You cannot expect chapter and verse". The noble and learned Lord, Lord Denning, the Master of the Rolls, presided.
If one applies that to Clause 102, enhanced criminal record certificates are of course to apply to licences under the Gaming Act. Unless the rule of relevance is put in, confining the information to what is relevant rather than to what a chief officer believes, in his subjective opinion, might be relevant, what will happen is that information about criminal records of dubious relevance or of no relevance or of a relevance that 496 cannot be tested, would be passed to a body such as the Gaming Board and there would be no effective remedy because the only remedy that I can see under the Bill would be way of judicial review. For reasons that the noble Lord, Lord Renton, will know as well as I do, a judicial review court will be most reluctant to compel the respondent to disclose the information, whether he be the Secretary of State, the agency or the Gaming Board.
So to make a long story shorter, the only safeguard that we can write into the Bill is contained in Amendments Nos. 112 to 116 because they have the important function of ensuring that an enhanced criminal record certificate is treated like such a certificate in requiring not that a chief officer believes that the information might be relevant for the legitimate purpose, but that it is relevant. Therefore, building on what the noble Lord, Lord Renton, said, it is very important that we make the rule of relevance apply with equal force to Clause 102 as well as to Clause 101. I am sorry that I have taken so long to explain the matter. There are consequential amendments that deal with the matter in relation to other subsections.
§ Lord Renton
So that I may understand the noble Lord, will he confirm that that means that he will not be supporting Amendment No. 104, but that he will be supporting Amendments Nos. 112 to 116?
§ Lord Lester of Herne Hill
I believe that is right based on a quick and, I hope, accurate reading. I hope that the noble Lord, Lord McIntosh, will forgive me for saying that Amendment No. 104 is misconceived for the reasons that the noble Lord, Lord Renton gave.
§ The Lord Bishop of Lincoln
Perhaps I may remind the Committee about the importance of the rehabilitation of offenders, which is a central concept to Christian theology and tradition. In a recent lecture to the Prison Reform Trust the most reverend Primate the Archbishop of Canterbury observed that restoring relationships requires positive attention to the relationships by which the offender can be rehabilitated and restored and helped to avoid the temptation of further crimes.
In the experience of numerous Christian agencies which have worked with ex-offenders, such relationships are fostered through settled employment and accommodation. A person should not deceive an employer. But there is a danger that, unless that is very carefully defined, we use the criminal conviction certificates to undermine the successful re-integration of offenders into society. There is a real danger that many employers will routinely ask for certificates and that they will decide to play safe and refuse to employ anyone with a criminal record. That would be unjust and amount to double punishment. If ex-offenders find it significantly harder to find jobs, that must increase the likelihood of re-offending. So I urge the Committee to be very careful in defining precisely the point that Members of the Committee have already discussed. It is important that we retain the possibility of a new beginning. Even in terms of moral philosophy, surely 497 once a person has "done their time" that fact should not necessarily be held on their record for all time, thus denying them the opportunity of a new beginning.
§ 5 p.m.
§ Baroness Blatch
It is an interesting irony that the effect of the previous amendment, which was lost by the Government, will be to increase substantially the number of certificates issued. That in turn will increase by a very large margin the work of those who carry out the sifting and who have to determine what matters are, rather than might be, relevant. The provisions would also increase substantially the opportunity to challenge such information because as the volume would increase, so the opportunities of and scope for challenges under Clause 104 would also increase. The costs continue to escalate as we consider other amendments.
Criminal conviction certificates are intended to be multi-purpose documents issued only to individuals. They are likely to be used for purposes other than employment where individuals are required to produce a certificate of good conduct; for example, in applying for visas or permits to reside in foreign countries. Unlike the other certificates for which provision is made in the Bill, they will disclose only information about convictions which are unspent under the Rehabilitation of Offenders Act. It is open to any employer or organisation to seek this information and the certificate will serve to confirm the accuracy of an individual's statement about his past.
We expect the availability of these certificates to curtail the practice of enforced subject access whereby individuals are required by prospective employers or embassies of foreign countries to apply, under the provisions of the Data Protection Act 1984, for details of information held about them on police computer systems. As the noble Lord, Lord Lester, knows, this results in the supply of details of all convictions, including those which are spent and which should not therefore be taken account of for most employment purposes.
The amendments could have the effect of requiring an individual to obtain several certificates as part of a job search. They would also require public servants to determine the relevance of conviction information to a job about which they knew little and an individual about whom the only information available to them was his or her criminal record. Only a prospective employer would be in a position to weigh the relative merits of the individual's qualifications and experience against the needs of the job and any potential relevance of previous convictions. It is not merely a question of having to have one certificate for one particular job. Somebody going for another job may need to gain a separate certificate, involving a separate sift to see what is relevant for that specific job description.
Turning to Amendments Nos. 112 to 116, these would, in effect, require chief officers only to disclose information from local records which was obviously relevant to the post in question rather than information which might be relevant. They would also require 498 officials acting for the Secretary of State to change decisions taken by chief officers of police about what information from local police records is relevant to an application for an enhanced criminal record certificate.
Decisions on the information which should be disclosed from local police records are never going to be easy, particularly when they involve the possible disclosure of information which has not been tested in court. However, similar decisions have had to be taken under the current arrangements for disclosing information from local records and this is a matter which has always been left to the discretion of chief officers of police. They have had years of experience of taking such decisions and they are far better placed than officials of the Secretary of State would be to decide what information from their local records might be relevant to an application and ought to be disclosed.
The right reverend Prelate the Bishop of Birmingham was rightly concerned about the needs of offenders trying to get back into the world of work. In my job at the Home Office I am embroiled in such work because I am responsible for the Probation Service—
§ Baroness Blatch
I stand rebuked. That is an unforgivable mistake, given that I come from a neighbouring diocese. I apologise most profusely.
Perhaps I may return to the important point. I have been much embroiled in the work of the training and enterprise councils and the various voluntary bodies and organisations which are doing a wonderful job in this respect. An important and material part of getting ex-offenders back to work is the openness with which they deal with employers. I am referring to their openness about their offending and the nature of their offending, which helps to promote an understanding with the employer and an atmosphere conducive to a fresh start. I am referring to the specific work that is being done to give people the opportunity to get back into work by giving them a fresh opportunity to work on trust with a company or employer, without risk.
I am reminded that the provisions would require volunteers to apply for more than one certificate. I stress that we are talking not only about employees and people looking for jobs. Somebody who wanted to undertake voluntary work with children would require one sort of certificate while somebody who wanted to work with the elderly would require a different sifting process to determine the relevance of the information contained on the certificate.
I have already referred to Clause 104 which raises a very real issue. The provisions of the previous amendment, which we lost but which was won by those noble Lords who promoted it, will have a substantial and material impact on the numbers of certificates applied for. We believe that that must, as night follows day, increase the amount of work undertaken in determining what is and what is not relevant with regard to the information on the certificate. The very volume of increased applications for certificates will increase 499 the scope for challenging (under Clause 104) the accuracy of the information held on a certificate. I assume that if these amendments are passed, it will not only be a question of accuracy but of relevance, because that is what is at stake here.
§ Lord Lester of Herne Hill
I am grateful to the Minister for allowing me to intervene because I am not following the argument. I agree with her that the chief officer is the best placed public officer to decide questions of relevance, but I do not understand the need for a difference of treatment between a Clause 101 certificate and a Clause 102 certificate.
My first question is: why is not the Clause 102 certificate confined only to relevant matters? Secondly, what is to be the effective remedy (whether under Clause 104 or anywhere else) for someone like Messrs. Benaim and Khaida who lose their licence (or do not get one) because certain information is transmitted and reaches the Gaming Board? As I understand the whole purpose of Clause 102, a licence may be lost but, as I have explained, the licence holder will not be given the reasons. What remedy would such a victim of an invasion of privacy have if irrelevant information had been transmitted? Is there another safeguard? Clause 104 does not deal with relevance; it deals with accuracy. I can quite understand that one has a remedy to correct an inaccuracy. I want to keep down unnecessary litigation and the need for officials to have to second-guess the decisions of chief officers. However, if the Bill requires the chief officer to do under Clause 102 what must be done under Clause 101—that is, to make sure that the information is really "relevant" to the matter—we should include a safeguard in the Bill, cut down avoidable disputes and provide an effective remedy. I should be grateful if the Minister could deal with those points which greatly concern me.
§ Baroness Blatch
As I understand it, the first two certificates, the criminal conviction certificate and the certificate under Clause 101, contain information which is a matter of fact. They relate to convictions and, as the noble Lord knows, under this Bill an individual has an opportunity to challenge the accuracy of such information.
An enhanced certificate is a rather different matter. In that case the chief officer makes a judgment about the information that the certificate should contain. The noble Lord says that he does not want officials to second guess. I believe that these amendments invite officials to second guess the relevance of the information. It is for the chief officer to determine what should go into the certificate. The information having been given, it will be for the employer to make a judgment, bearing in mind the particular job that is required to be done, about the import of the information contained in the certificate. Either it will have a bearing on the suitability of the person to be employed or it will not.
I return to the point that the noble Lord makes about the Gaming Board. Save in the most exceptional circumstances, we have made clear that the individual will receive the information. The noble Lord will be aware that exceptional circumstances may arise where a 500 person is under investigation and the information may be regarded as very sensitive. Save in those exceptional circumstances, the individual will receive the information. That is a very significant improvement on the present situation. We took this opportunity in the Bill to improve the situation. Referring to the Gaming Board, at the moment only the board will be in receipt of that information without the counter-balancing effect of the individual seeing it and being given the opportunity to challenge the information that is held.
§ Lord Renton
I should like briefly to reinforce the argument that my noble friend has just put. I do not know whether the noble Lord, Lord Lester of Herne Hill, whose legal arguments are always so interesting and well presented, has borne in mind that relevancy is in part a matter of undisputed fact and in part a matter of opinion. Therefore, there is no difference between saying "any information which in the chief officer's opinion might be relevant" and saying "any information which in the chief officer's opinion is relevant". The words "might be" indicate the "opinion" element. To change it to "is" makes very little difference. However, if it is a difference, it is to the applicant's disadvantage and not advantage, which I believe the noble Lord, Lord Lester, hopes to achieve.
§ Lord Lester of Herne Hill
With great respect to the noble Lord, Lord Renton, this debate is becoming a lawyer's plaything, which I had hoped could be avoided. Clause 102(5) refers first to the chief officer's opinion. I agree that it must be his opinion. But what is the opinion? The opinion is either that it is relevant—which is what I think it ought to be—or that it might be relevant. The reason why it does not provide a safeguard for the particular subject is that it allows in information which is only of doubtful relevance rather than information that is relevant.
I accept the Minister's point that this is an improvement on the existing situation, in that at least in normal cases the subject can see the information that goes to the Gaming Board. That is a powerful argument. I promise that if it is left as it is it will lead to a good deal of judicial review. As to those who have been refused licences, documents that have been relied upon by the Gaming Board which are not in the chief constable's opinion relevant, but which in his opinion might be relevant, will be accessible to them. It will simply increase the scope for legal argument in the courts because of the vague and elastic language. For that reason, I much prefer the language that is sought to be included by the amendment of the noble Lord, Lord McIntosh. It tightens it up to avoid pointless legal argument and judicial review proceedings in relation to a body like the Gaming Board where information that has contaminated its decision, as it were, is not information which a chief constable considers to be relevant but is something less than that.
§ 5.15 p.m.
§ Lord Thomas of Gresford
Perhaps I may tiptoe tentatively into the playground for a moment. Surely, in neither Clause 101(3)(a) nor Clause 102(3)(a)(i) do the 501 words "every relevant matter" refer to a matter of opinion, because a relevant matter is defined in Clause 101(5) as a conviction, including a spent conviction and a caution. If one substitutes for the words "relevant matter" the definition, surely in Clause 101(3)(a) one has the prescribed details of every conviction, including a spent conviction and a caution. No one's opinion comes into it. There does not appear to be a sifting to determine what is or is not relevant—or have I completely misunderstood the drafting?.
§ Lord McIntosh of Haringey
I do not believe that the noble Lord misunderstands it. If he had been here he would have heard me make exactly the same point to the noble Lord, Lord Renton. I shall beg leave to withdraw these amendments. Before I do so, I do not believe that the Minister should be allowed to get away with her continuing claim that the result of the amendment moved by the noble Lord, Lord Weatherill, will be a huge increase in the workload of the Criminal Records Agency. At present, local authorities and voluntary organisations work to a Home Office circular which, at the very least, encourages them to make searches which are carried out free of charge on volunteers as well as paid employees. That will not change.
If the Minister argues that the number of volunteers would change it would be marvellous, but I do not believe that that would be the case. Since the noble Baroness never provided the figures for the costs of the Criminal Records Agency, which will have to be paid by public authorities, we do not know the position. It may be that there will be some increase in expenditure as the price to be paid for not imposing new deterrents on volunteering. Unless the noble Baroness suggests that a very large number of volunteers would otherwise slip through the net, I do not think that she can argue that there will be a significant increase in the workload of the Criminal Records Agency. However, that is a backward-looking point and I do not believe it is one that we expect to raise again.
I accept that Amendments Nos. 104 and 105 are different from Amendments Nos. 112 to 116. It is probably prudent not to rely on Amendments Nos. 112 to 116 but on later amendments which relate to control of the accuracy of the information supplied. As for Amendments Nos. 104 and 105, I do not believe that any of the references to Clause 101 are relevant to this consideration. I shall have to think again about how to achieve my objective of making sure that irrelevant convictions are not communicated to employers. I speak as the trustee of a charity which in the past year has employed, in my view rightly, a murderer who has reached the end of his tariff as part of his life sentence and is doing a job for which that murder is quite irrelevant. I shall have to think again about how to ensure that people like that are not disadvantaged by the Bill as drafted.
§ Baroness Blatch
Before the noble Lord sits down, I rise merely to say that he accuses me of being over-inflationary in my predictions about what might 502 happen. The noble Lord cannot have it both ways. The noble Lord and his colleagues opposite supported, as the amendments are put to the Committee, a wider use of it. In fact, the mainspring of the argument put by noble Lords opposite is that there will be such pressure that more checks will need to be done on more of the volunteers, particularly for people working with children. As under the amendment the fee has been waived completely, the idea is that that will not be an inhibitor for the voluntary sector to respond to any of those pressures but merely to check whether it believes that the check is needed.
We took a view that more checks would need to be undertaken. We believed that the code of practice would be applied properly; there would be a much more modest number of checks done. Therefore our assumption of what impact that would have on the voluntary sector, given that the fee would fall on the individual, was very much more modest. The noble Lord cannot argue that there will be a substantial cost on the voluntary sector and then say, when that has been waived, that somehow the sum does not become substantial and the number of applicants does not increase.
In response to a point the noble Lord has just made to my noble friend Lord Renton, perhaps I may say that he is now looking at ways of determining which criminal conviction is relevant, as opposed to which information is relevant. The noble Lord has conceded by that remark that for each application for one job or another job, voluntary sector or employment, a different certificate will be needed because the conviction, and the relevance of a conviction, will need to be freshly thought through to provide the certificate. The noble Lord is making a case for a very much enlarged number of certificates that would have to be introduced under the amendment.
§ Lord McIntosh of Haringey
If that were the case, and I am by no means certain that it is, it could well be argued that it is a price worth paying to achieve the objective of the rehabilitation of offenders. I wish I thought, with the right reverend Prelate, that it was only a matter of moral philosophy. A balance between rehabilitation and protection has to be achieved. I do not believe that there is any right to protection. I want to think again about how to achieve that balance better than it is achieved in the Bill. That is why in a minute I shall beg leave to withdraw the amendment.
Before I do, it is probably unseemly for us to go on talking about the merits or demerits of a previous amendment rather than this one. I regret that I responded in that way to the Minister. The point I was trying to make was that at present voluntary organisations can obtain certificates on volunteers without charge. It is the Government who were proposing the change, not the amendment which has just been carried. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 105 not moved.]503
§ On Question, Whether Clause 100, as amended, shall stand part of the Bill?
§ Lord Rodgers of Quarry Bank
Perhaps I may first make a clear distinction in opposing the Question that Clause 100 stand part of the Bill between Clause 100, which I should clearly like to see deleted from the Bill, and Clauses 101 and 102, which we on these Benches wholly support and which are widely supported on all sides of the Committee.
I make it clear in relation to Clauses 101 and 102 that we support, without reservation, all the appropriate measures to protect children and other vulnerable groups. There may be a case for extending the definition of vulnerable groups in the Bill.
Clause 100 does not deal with those matters at all. If your Lordships have not previously focused on that, I would ask you to look at Clause 100 as being very different from the two clauses that follow it. Secondly—it is fair to say this, because these are arguments which the Minister may well bring forward—I recognise that widescale vetting would be a convenience for employers, and I choose that word carefully.
I recognise, too, that the clause as printed represents a tidying up of the present ad hoc arrangements. I hear the argument—I put it no stronger than that—that Clause 100 may possibly help those with spent convictions to maintain their privacy. I gladly concede those arguments in advance because they are relevant and must be taken into account.
However, in my view, those arguments are outweighed by the principle of routine intrusion into private lives, which Clause 100 embodies, and the practical problems of devising a system that is efficient, reliable and fair. Our previous debate on the amendment which was withdrawn by the noble Lord, Lord McIntosh of Haringey, illustrates that point. In my view, there is a real danger that Clause 100 will do more harm than good. Far from protecting society against crime, it might help to create circumstances in which criminal acts will persist.
The noble Lord, Lord McIntosh, referred to the Rehabilitation of Offenders Act 1974. I confess that I was surprised when I reminded myself of its provisions. Perhaps I may refer to them for the Committee's convenience. First, a prison sentence of more than two and a half years can never be spent. Therefore, under Clause 100, an offence committed at the age of 18 will show on a criminal conviction certificate when an applicant for employment is 28, 38 or 48. Indeed, it will show for ever. If he is sent to prison for more than six months it will show for 10 years; that is 10 years during which he may be seeking employment. A non-custodial sentence will show for five years.
Those offences of varying quality—if I may use that word—will be shown on a criminal conviction certificate. The consequence will be that a large number of men and women who are now law-abiding citizens, perhaps having committed an offence in their late teens, will have their conviction recorded on a certificate for between five years and a lifetime. That is the force of Clause 100.
504 The National Association of Citizens Advice Bureaux is not a campaigning organisation but it has made clear its view about Clause 100. I hope that the Committee will forgive me if I quote its comments because, given the high regard with which the view is held, they are important. It states:The Citizens Advice Bureaux service is deeply disturbed about the introduction of a 'voluntary' criminal record disclosure scheme as contained within Clause 100 of the Bill. We believe that such a system, particularly in the current climate of public concern generated by events such as the Dunblane tragedy, is over-reactive and ill defined. Rather than creating the basis for greater security, we are concerned that, in fact, it will lead to increased job insecurity and an environment in which crime levels may rise rather than be reduced".The National Association of Citizens Advice Bureaux goes on to state:Based on the evidence that we receive from local Citizens Advice Bureaux working throughout the country, we believe that the consequences of introducing such a measure may be to increase unlawful discrimination and to exclude applicants who are unable or unprepared to pay for this service to prospective employers".The amendments that we have debated and the amendments which follow—Nos. 119 to 124 and 128—are in one way or another an attempt to constrain the incidence of Clause 100 and to build in safeguards. They recognise its dangers. Although I wait to see whether the Minister accepts them, either way the Bill would be better without this clause.
I wish to put forward five points for the Committee to consider. First, as I said in relation to the National Association of Citizens Advice Bureaux, Clause 100 will lead to discrimination in employment against anyone with an unspent record who is trying to go straight. That point was made most forcefully by the right reverend Prelate the Bishop of Lincoln. A highly regarded organisation, the Penal Affairs Consortium, states:We have grave concerns about the introduction of criminal conviction certificates. We consider that this proposal is likely to undermine the successful reintegration of offenders into society. It would give employers extensive information about criminal convictions which in most cases will have no relevance to the job for which someone is applying. There is a real risk that many employers will decide to 'play safe' and refuse to employ anyone with a criminal record. If as a result ex-offenders find it significantly harder to find jobs, this must increase the likelihood of reoffending".That is the view of more than 30 highly reputable bodies which are deeply concerned about these matters. I believe what they say to be true.
Secondly, in practice there will be no even-handedness between an applicant for employment who, we anticipate, will be expected to show such a certificate and an employer or interviewer who may regard it as impudent to be asked for one. This is not some narrow and minor point. We know that it is very possible that from time to time employers—not necessarily those in reputable undertakings—will have a criminal record of a kind. It is wrong that the prospective employee should be required, although the certificates are voluntary, to show a certificate while the man or woman who is employing him or her will not be required to do so.
505 Thirdly, self-employed people will be exempt because in normal business relations they are unlikely to be asked for a certificate. On Second Reading I mentioned the issue of candidates for Parliament. I said that my tongue was half in my cheek. However, the more I think about it, the more I regard the point as serious. Candidates for Parliament and other elective public offices, where very important issues of trust are involved, will also be exempt because the Bill contains no requirement for such a certificate to be deposited with the returning officer at the time of nomination. I see no way under this clause that that can be done. I return to what I said about fairness; it is a very unfair clause if those are the automatic exemptions which appear to follow from the clause as written.
Fourthly, despite what the Minister said—and I thank her for her remarks on Second Reading on 11th November reported at col. 833—there are endless possibilities of forgery, fraud and even blackmail, whatever security measures may be properly taken by the Home Office to avoid that. If I were a betting man I would say now with absolute certainty that there will be examples of forgery and fraud and there may be examples of blackmail if the clause stands in the Bill.
Fifthly, as has been referred to in passing by others, including my noble friend Lord Lester, it is certain that certificates will contain errors. There is no redress nor compensation for anyone—applicant or employer—who may suffer. There is only Clause 104, which states baldly that if the Home Secretary is convinced of an error he will issue a new certificate.
In making those points, I leave aside the question of cost which was explored in an earlier amendment. However, it must be said that, whereas the voluntary sector has been deeply concerned about the cost of the certificates falling on it because it does not believe that they should fall on volunteers, it will be true that the cost of the certificates will fall on many men and women who may not have the resources to pay for them, although the sums may be small.
Clause 100 is not central to this part of the Bill. The priorities for this part of the Bill are in Clauses 101 and 102. We should be far better off if we concentrated on those clauses and dealt with the need for greater safeguards and certain refinements. We should let those clauses stand but delete Clause 100 from the Bill.
§ Lord McIntosh of Haringey
The noble Lord is proposing that Clause 100 as a whole be taken out of the Bill. I have a great deal of sympathy with his arguments about the undesirability of it becoming a general practice for employers to seek certificates of unspent convictions. Whether or not I wish to support him depends on only one question, which is a question of fact which the Minister will be able to answer.
I understand that the Data Protection Act allows an individual under "enforced subject access" to have access to what of his record is available on a police computer. That goes wider than the provisions of Clause 100. The fact that an individual can obtain that information is in close analogy to the provisions of 506 Clause 100. It is not compulsory but it can be enforced on him by an employer who wants him to make that check. The situation is exactly the same whether it is the criminal conviction certificate under Clause 100 or the enforced subject access under the Data Protection Act.
My question to the Minister is, if Clause 100 is carried, will enforced subject access under the Data Protection Act lapse? If that is the case, Clause 100 is an improvement on the present situation where enforced subject access gives an employer access to more than Clause 100 provides. If it is not the case, and enforced subject access will continue alongside the provisions of Clause 100, the situation is worse with Clause 100 and it should be omitted.
§ Lord Thomas of Gresford
In discussing an earlier amendment, the noble Lord, Lord McIntosh, rightly said that a balance must be struck between policies of public importance. On the one hand, there is the need to ensure that an offender may be rehabilitated and brought back into the community to play a useful part both in working and in participating. On the other hand, there must be the protection of an employer or of other persons who may be affected by the nature of the specific employment.
In striking that balance, Clause 100 introduces a general requirement for certificates of that nature. Clauses 101 and 102 set out what my noble friend Lord Rodgers referred to as the priorities; namely, the specific areas where public policy may demand knowledge of previous convictions. Clause 101 relates to "exempted questions" where the Secretary of State has made an order, and Clause 102 relates to specific issues.
Clause 100 weighs in against the offender for all time. It has been rightly said by the citizens advice bureaux, which is deeply disturbed by the proposals and refers to them as over-reactive and ill-defined, that crime levels may rise rather than be reduced. The reason for that is obvious. It so happens that last week we had a discussion about juvenile crime, which some Members of the Committee may remember. The startling figure produced by Home Office statistics was that the age at which peak offending now takes place is 18 years. If that is the age at which most people gain convictions, are they really to be carried against that person for the rest of his or her life?
Again, the noble Lord, Lord McIntosh, referred to his own personal experience of being involved with someone who had been convicted of murder. In most instances, murder is a one-off crime. It is committed in all sorts of circumstances—for example, through pressures which may be domestic, and so on. The vast majority of murders do not occur as a result of a person's deep set-character. He does not offend over and over again. Nothing could be more off-putting to a subsequent employer when that person is finally released from prison, having paid the proper penalty as determined both by the court and by the Home Secretary. Murder is not something that will ever be cleared from his record. He should not be debarred from ever working again.
507 If we are going to create a whole body of persons who have been offenders, who have served their time in prison but who are unable to obtain employment when they are released—not just immediately, but for many years—then, as the CAB rightly puts it, crime levels will rise because those people will not be brought back within the community.
The purpose of the argument put forward by my noble friend is rightly to say that in specific areas set out in the Bill let there be an order from the Secretary of State which permits people to know about someone's background. However, to introduce a coverall so that a person carries his record to the grave is something which places the balance, to which I referred at the beginning of my remarks, in the wrong direction; in other words, it weighs it down in the wrong way. We would be creating more problems than we would resolve.
§ Lord Lester of Herne Hill
When considering the proposal put forward by my noble friend Lord Rodgers of Quarry Bank, I wonder whether the Minister could help us with one important and relevant matter. What are the effective safeguards where the very wide information covered by Clause 100 is disclosed in circumstances where it is irrelevant, say, to a particular job, promotion or appointment? What is the safeguard where the information is accurate but irrelevant and gives rise to an infringement of the right to personal privacy? In particular, I suggest that we should be concerned once again about whether we shall find further breaches of the European human rights convention. Will the Minister confirm my understanding that a disclosure of information covered by Clause 100 is prima facie a breach of personal privacy within the meaning of Article 8 of the convention? I am sure that that is common ground. However, the real question is whether the disclosure is necessary in a democratic society in a particular case.
I confess to being ignorant on whether the safeguards in the Data Protection Act 1984 would avail a victim of a breach of privacy under Clause 100. If they would, my concern would be greatly allayed. I have not looked into the matter, but if there is a safeguard under that Act for an invasion of personal privacy by the operation of the provisions of Clause 100 it meets my concern—subject, of course, to checking. However, if the position is that there is to be no safeguard under that Act and no new safeguards, then it seems to me that that would be an authorisation by Parliament of a situation in which there could be breaches of the right to personal privacy guaranteed under international law. The Committee should ensure that adequate safeguards against abuse are written into the Bill. If such safeguards are not to be written into the legislation, then, for that reason as well as others, I would support the proposal put forward by my noble friend.
§ 5.45 p.m.
As the last speech has demonstrated, surely such eloquent arguments are directed towards a totally different matter—namely, the rehabilitation of offenders. As I understand Clause 100, the only person who can obtain a criminal conviction certificate is the person himself. I fail to see how even the ingenious arguments of the noble Lord, Lord Lester, could make an application by me for my criminal certificate an invasion of my privacy.
The main concern of most Members of the Committee is that employers may say to a man who is applying for a job, "Before I give you the job, I should like to see such a certificate; go off and get one". But as the Rehabilitation of Offenders Act 1974 stands at present, an employer is entitled to ask a prospective employee, "Do you have any convictions other than spent ones?" The prospective employee can, if he wishes, say, "That's nothing to do with you, I'm not going to tell you". Alternatively, he could answer. All that a certificate would do is demonstrate that such a person is answering truthfully.
Liberal Members of the Committee appear to want to give prospective employees licence to answer the question untruthfully. If they have a case—and they may well have—for saying that employers should not be entitled to know 20 years later about an offence which took place when the person was 18, then the right answer is to amend the Rehabilitation of Offenders Act. It is not to encourage prospective employees to lie by ensuring that employers are not able to demand that they go off and obtain such a certificate.
The noble Lord, Lord Rodgers of Quarry Bank, gave examples of other circumstances where a certificate may not be forthcoming. But, presumably—and I know nothing about politics, thank goodness!—any sensible selection committee could, if it wanted to, say to a prospective candidate, "Bring along with you a criminal conviction certificate before we consider whether we are going to appoint you". It cannot be an invasion of privacy to enable me to ask public records to produce details about myself.
§ Baroness Blatch
In response to the noble Lord's proposal, I am inclined to pray in aid everything that the noble Viscount, Lord Bledisloe, has just said. Indeed, he has put forward almost precisely some of the arguments that I will employ. I should also like to extend the point made by the Viscount about candidates. It is not only selection committees who could ask a candidate to produce a certificate to prove that he is telling the truth, but a group of electors or a single elector could do so. It would be a matter for the candidate whether he produced it. It is certainly something which can be done by people who are being asked for their vote.
However, it is incumbent upon me to respond more formally to the debate. As we all know, Clause 100 makes provision for the Secretary of State to issue a criminal conviction certificate to an individual who applies for one and who pays a fee. The criminal conviction certificate will either give details of convictions which the individual may have, which are recorded in central police records and which are not spent under the Rehabilitation of 509 Offenders Act, or will state that no such conviction is recorded. As the noble Viscount said, criminal conviction certificates will be issued only to individuals, but employers or others may ask individuals to obtain them if they wish to confirm details of the individual's criminal record. As I said earlier, we expect the cost of a criminal conviction certificate to be about £5 or £6.
I think the greatest worry which has been expressed is that this clause will seriously damage the employment prospects of ex-offenders. I have already said that the best way to help ex-offenders enter mainstream employment is to advise them to come clean with prospective employers. Our training and enterprise councils and the voluntary sector have been most effective in this area when they have advised job applicants to be open and honest as regards not only the offence but also the nature of the offence, and whether or not that will have any impact on the job to be carried out.
It has also been suggested that the clause could be in conflict with the Rehabilitation of Offenders Act 1974. That is not the case. Ex-offenders will retain the protection of the Rehabilitation of Offenders Act which, as many Members of the Committee know, provides that, after varying periods of time, ex-offenders who have received a sentence of fewer than two and a half years' imprisonment and have not re-offended become rehabilitated and their convictions become spent.
A spent conviction is treated for most purposes as if it never occurred and, in applying for employment in any occupation which is not an exception to the Act, an ex-offender need not declare a spent conviction. This safeguard will not be damaged by the introduction of criminal conviction certificates. This could in fact make it easier for some ex-offenders to find employment because we hope it will do away with the practice of enforced subject access. I shall return to the point the noble Lord, Lord McIntosh, made about that. As the noble Lord knows, this is a practice being adopted by an increasing number of employers—in the absence of criminal conviction certificates—whereby they require prospective employees to exercise their rights of subject access under the Data Protection Act 1984 to apply for a copy of information held about them on police computerised records. It greatly disadvantages ex-offenders because a check of a criminal conviction certificate will not show spent convictions.
Another concern expressed was about the rights of redress individuals have if a certificate gives inaccurate information about them. As I have said, Clause 104 of the Bill provides that an applicant for a certificate who believes that the information contained in a certificate is inaccurate may apply for a new certificate. If the Secretary of State is of the opinion that the information on a certificate is inaccurate—this is a simpler science in that we are talking about a matter of record—he is required to issue a new certificate at no cost to the individual. Therefore individuals need not worry about incorrect information on criminal conviction certificates as they 510 will be issued only to individuals and not to prospective employers. If an individual believes the information on a criminal conviction certificate is incorrect, he will apply for a new certificate before he makes it available to others. Therefore the incorrect information would not be handed to an employer until the individual had had it corrected. He could not therefore be disadvantaged. I should add that if an individual has been issued with an incorrect certificate, as I have said he will receive a fresh certificate at no cost to himself.
On the question of forgery and fraud, this is, of course, a problem with any official document issued to the public and will not be unique to criminal conviction certificates. However, I can assure the noble Lord, Lord Rodgers, that we are aware of this issue and of the problems that could be posed by forgery and fraud and we intend to take measures to ensure that opportunities for this are kept to a minimum. For example, we envisage using security paper which is more difficult to forge, and to ensure that any photocopy of a criminal conviction certificate is readily identifiable as such.
At the moment we cannot predict with certainty what sort of demand there will be for criminal conviction certificates. However, I point out that there is nothing in the Bill which requires individuals to apply for criminal conviction certificates; nor is there any requirement on employers to ask prospective employees to apply for a criminal conviction certificate. The criminal conviction certificate will simply provide a way for employers and others to check the accuracy of information which they may lawfully seek.
The noble Lord, Lord Thomas, referred to Clause 100. Clause 100 does not deal with convictions which are spent under the Rehabilitation of Offenders Act. It is therefore entirely consistent with the policy behind the Rehabilitation of Offenders Act. That point was made by the noble Viscount. Part of the rationale for this Bill is to make sure that people do not put employers and employment—and people who are served by the work—at risk. We believe an employer is entitled to ask whether an individual has unspent convictions. He is entitled to ask that at present and the criminal conviction certificate will be a means of checking that someone has told the truth.
I was asked about the risk of placing a large number of young men at a disadvantage. We do not believe that that will be the case as only unspent convictions will be included in a criminal conviction certificate, which is the certificate for which most people will be eligible to apply. That means that many ex-offenders will be issued with a clear criminal conviction certificate, unless of course their offence was committed comparatively recently, or was of a serious nature. Home Office figures show that while 30 per cent. of men born in 1953, and who are now in their 40s, have been convicted of a standard list offence—in broad terms, an indictable offence—only 6 per cent. have convictions which remain unspent, and which would therefore be listed on a criminal conviction certificate. Despite the fact that more recent 511 convictions may not yet have become spent, of men born in 1973, who are now in their 20s, only some 12 per cent. have unspent convictions.
The noble Lord, Lord McIntosh, referred to the Data Protection Act and enforced subject access, and asked whether Clause 100 prevented enforced subject access. The straight answer is no. We expected the introduction of the certificate to address the problem and to phase out the need to resort to enforced access. The noble Lord asked whether its use would be abolished. The answer is no. However, we shall continue to monitor it. If we believe we need to consider the disclosure rules as regards computer information held by an individual—if that is required rather than a criminal certificate—we will consider the possibility of looking again at that matter, and amending the rules of disclosure. We would certainly expect—with the introduction of the certificate—employers, and indeed foreign embassies, to use the provisions under Clause 100, if those provisions remain in the Bill.
An employee can ask an employer for a criminal conviction certificate. That satisfies one of the concerns raised with regard to employers. I do not accept that the self-employed are necessarily exempt. They, too, can be asked for a criminal conviction certificate. I believe that is a useful provision. For example, it is possible for a customer to insist that before he or she allows a self employed plumber on to his/her premises that plumber should produce a criminal conviction certificate. As I have already said, an elector could also ask a parliamentary candidate for a criminal conviction certificate. That would also apply to selection committees.
I thank the noble Lord, Lord Rodgers, for saying at the outset that the measure would provide protection for those with spent convictions. However, I suggest to him that the protection goes far wider than that. It protects employers from employing unsuitable people. It protects and preserves the right of the employer to consider the honesty of the information which has been presented by an applicant seeking work. It also protects those people who have no convictions, or who have completely spent convictions, and allows them the opportunity to prove that they are fit for employment, and that the convictions—which may have occurred a long time ago—no longer have any relevance.
§ Lord McIntosh of Haringey
I am sorry to return to this point but the Minister gave an uncertain reply to the definite question that I asked her. On one occasion she said that she hoped—and on another occasion she said that she expected—that the use of enforced subject access would decline if Clause 100 were accepted. That is not good enough. If Clause 100 is to achieve what it ought to achieve, it ought to replace enforced subject access under the Data Protection Act. Will the noble Baroness at least say that the Home Office will issue guidance to employers that they should be using the criminal conviction certificate rather than the Data Protection Act if they 512 wish to ask individuals to show their freedom from a relevant conviction? If she were to say that, I should support the inclusion of Clause 100 in the Bill.
§ 6 p.m.
§ Baroness Blatch
Between now and the next stage of the Bill, perhaps the noble Lord will allow me to read what has been said in the debate and to think about what he said. First, I gave a straight answer. I said that, no, we had not intended formally in legislation to rule out the use of enforced access to information held on computer. We shall continue, because we must under the law allow the individual to seek that information. The noble Lord looks vexed; I hope that he will hear me out on this point. The individual will be allowed to continue to seek information held about him on the computer. We believe that the absence of a criminal conviction certificate has probably given rise to an increasing use of enforced access. We believe that the criminal conviction certificate will take the place of enforced access.
I said to the noble Lord—he finds it unsatisfactory—that we would wait and see; and that only if it became an issue would we consider looking again at the rules of disclosure. The noble Lord invites me to say that simultaneously we should introduce Clause 100 and outlaw under the legislation the use of enforced access. I wish to think about what the noble Lord has said.
I come back to what the noble Lord, Lord Lester, said; I have had some advice. The noble Lord asked about disclosure being a breach of Article 8 of the European Convention on Human Rights. I understand that disclosure of the criminal conviction certificate will be a matter for the individual. Therefore, we do not believe that it is a breach of Article 8 of the convention. It is for the individual to decide to whom to disclose the information and on what terms.
Secondly, the protections of the Data Protection Act will apply to information contained in a criminal conviction certificate where held on a computer. Therefore, it could only be disclosed to a third party with the consent of an individual or where it falls within the provisions of that Act. Therefore the Data Protection Act applies only to data held on computer, although there are proposals to extend the provision to normal files. As we move towards the 21st century, the Data Protection Act and the disclosure rules would bite on this information, it being held on computer.
§ Lord McIntosh of Haringey
The Minister has answered my direct question in a direct way. The noble Baroness confirmed that Clause 100 does not repeal that part of the Data Protection Act. What I wanted her to say, and what I think she is saying, is that she understands the problem. She understands that the present situation is unsatisfactory and that we seek an improvement through the enactment of Clause 100. If that is the case, and if the noble Baroness is willing to talk between now and the next stage of the Bill about the possibility, for example, of issuing guidance 513 to employers that they prefer criminal conviction certificates, I should be prepared to urge the noble Lord, Lord Rodgers, not to put the issue to a vote.
§ Baroness Blatch
I should have been more forthcoming. I apologise to the noble Lord. I hope that he will understand if I reserve my position on what we do legislatively about enforced access. However, even without consulting with officials, I can say that we would consider putting the matter in guidance. I take the point that we should be discouraging employers from using this route to seek information and that the criminal conviction certificate should suffice. I can give him an absolute assurance that we would address that issue in guidance.
§ Lord McIntosh of Haringey
I am grateful. On that basis we could have a better position than now. I urge the noble Lord, Lord Rodgers, not to press this issue to a Division.
§ Lord Rodgers of Quarry Bank
I am grateful for the advice of the noble Lord. I listened with attention and wry amusement to the exchanges across the Chamber. I thought that the Minister was trying very hard to say yes to the noble Lord. In so far as she did not succeed, the noble Lord sought to put into her mouth the words which, if she spoke them, would enable him to say that he did not intend to oppose Clause 100. Although I should like to read the Official Report to gain the full flavour and excitement of the exchange, between the two of them I think they reached the conclusion that on Clause 100 they agree. As I understand it, the noble Lord asked whether Clause 100 would replace the Act. The answer was no. There was then a movement of opinion: perhaps it would lead to the phasing out of the Act. The answer was: not really. It was suggested that it might result in there being no need for access to the Act. The answer was that that might be a possibility. The Minister was asked to consider giving guidance to employers. The noble Baroness was not going to say whether she would or would not. I have never heard so many reserved opinions on both sides of the Chamber in the whole of my time here. I fully understand the difficulties of the Minister and the noble Lord. I believe that we shall remember that exchange for its entertainment value.
A number of interesting points were made during our short debate. I shall not dwell upon them too fully now. I say only that my reference to the position of parliamentary candidates was to illustrate what I believe to be the unfairness of Clause 100. I remind the Minister—she understands this even if the noble Viscount, Lord Bledisloe, pleads that he knows nothing about politics—that anyone can stand for Parliament; one does not have to be selected by a political party. I can guarantee that at the next election a large number of men and women will stand without a selection process. For the Minister to believe that within two or three days of polling day it is realistic for anyone to stand up at the back of a political 514 meeting and ask the candidate, "Will you produce your criminal conviction certificate?", and that that would have any bearing on the result, is Cloud-cuckoo-land.
The point I make is not a major one. I made it at Second Reading and shall not do so again. It is not compatible with the fairness of the Bill that those going for paid employment, often in jobs where there is no risk, should be expected to produce this certificate. If one stands for elective office, with all the trust that that entails, whether in local or central government, one will not be expected in the same way to produce a criminal conviction certificate.
I agree with the point made by the noble Viscount, Lord Bledisloe, about the practice today. It may not be unusual for employers to ask potential employees whether they have a criminal conviction. However, Clause 100 institutionalises a routine question. For that reason I find it unacceptable.
I shall not further discuss the meaning of Clause 104. However, my understanding of the word "redress" is different from that of the Minister. The Minister repeated what is palpably true: that if for any reason a criminal conviction certificate is inaccurate, a new certificate will be issued free of charge. But that does not deal with redress in the event of damage being done to an applicant as a result of the first certificate being inaccurate.
I agree with the Minister that perhaps what matters most is rehabilitation. However, she rested where I am not prepared to rest—on the argument (it is true so far as it goes) that those with spent convictions have no need to worry. I have argued, and will continue to argue in further stages of the Bill—I understood that it was the message of the right reverend Prelate the Bishop of Lincoln—that under the Rehabilitation of Offenders Act 1974 (and there is no proposal to amend the Bill; it is the basis for our decision today) many convictions are not spent in a lifetime and other convictions are not spent for many years.
I have no doubt that Clause 100 is prejudicial to such men and women gaining jobs. I regard that as serious, unfair and likely to lead to greater offending. I do not expect 137 noble Lords to follow me into the Lobby. But the issue is one of principle and it should be on the record that at least some of us believe that Clause 100 should be deleted from the Bill.
§ The Deputy Chairman of Committees (Baroness Serota)
The Question is, That Clause 100, as amended, stand part of the Bill. As many as are of that opinion will say "Content"; to the contrary "Not-Content". I think the "Contents" have it. The "Contents" have it.
§ Lord Rodgers of Quarry Bank
Forgive me, but there is some misunderstanding. The intention was to divide the House. I believe that the fault lies with what the Deputy Chairman said in putting the Question to the Committee.
§ 6.10 p.m.
§ On Question, Whether Clause 100, as amended, shall stand part of the Bill?
§ Their Lordships divided: Contents, 126; Not-Contents, 39.516
|Division No. 2|
|Addison, V.||Kintore, E.|
|Ailsa, M.||Laing of Dunphail, L.|
|Allenby of Megiddo, V.||Lauderdale, E.|
|Anelay of St. Johns, B.||Liverpool, E.|
|Ashbourne, L.||Long, V.|
|Astor of Hever, L.||Lucas, L.|
|Balfour, E.||McColl of Dulwich, L.|
|Berners, B.||Mackay of Ardbrecknish, L.|
|Birdwood, L.||Mackay of Clashfern, L. [Lord Chancellor.]|
|Blatch, B.||Mackay of Drumadoon, L.|
|Bledisloe, V.||Macleod of Borve, B.|
|Bowness, L.||Massereene and Ferrari, V.|
|Brentford, V.||Mersey, V.|
|Bridgman, V.||Miller of Hendon, B.|
|Brigstocke, B.||Milverton, L.|
|Butterworth, L.||Monckton of Brenchley, V.|
|Byford, B.||Monk Bretton, L.|
|Cadman, L.||Montagu of Beaulieu, L.|
|Caithness, E.||Mottistone, L.|
|Caldecote, V.||Mountevans, L.|
|Campbell of Alloway, L.||Mountgarret, V.|
|Carlisle of Bucklow, L.||Mowbray and Stourton, L.|
|Camegy of Lour, B.||Munster, E.|
|Chelmsford, V.||Murton of Lindisfarne, L.|
|Chesham, L. [Teller.]||Napier of Magdâla, L.|
|Clanwilliam, E.||Nelson, E.|
|Clark of Kempston, L.||Northesk, E.|
|Clitheroe, L.||O'Cathain, B.|
|Colwyn, L.||Onslow, E.|
|Courtown, E.||Orkney, E.|
|Craigavon, V.||Off-Ewing, L.|
|Cranbome, V. [Lord Privy Seal.]||Oxfuird, V.|
|Cumberlege, B.||Park of Monmouth, B.|
|Davidson, V.||Peel, E.|
|Dean of Harptree, L.||Pender, L.|
|Dixon-Smith, L.||Perry of Southwark, B.|
|Downshire, M.||Platt of Writtle, B.|
|Dundonald, E.||Rawlings, B.|
|Eccles of Moulton, B.||Rees, L.|
|Eden of Winton, L.||Renton, L.|
|Elles, B.||Renwick, L.|
|Elliott of Morpeth, L.||Saltoun of Abernethy, Ly.|
|Fevers, E.||Seccombe, B.|
|Rather, B.||Sharpies, B.|
|Fraser of Carmyllie, L.||Shaw of Northstead, L.|
|Gage, V.||Simon of Glaisdale, L.|
|Gibson-Watt, L.||Slim, V.|
|Goschen, V.||Stewartby, L.|
|Greenway, L.||Strange, B.|
|Griffiths of Fforestfach, L.||Strathclyde, L. [Teller.]|
|Halsbury, E.||Sudeley, L.|
|Hertford, M.||Swinfen, L.|
|Hesketh, L.||Thomas of Gwydir, L.|
|Holdemess, L.||Trumpington, B.|
|HolmPatrick, L.||Ullswater, V.|
|Hope of Craighead, L.||Vivian, L.|
|Howe of Aberavon, L.||Wharton, B.|
|Inchcape, E.||Whitelaw, V.|
|Inglewood, L.||Wilcox, B.|
|Jenkin of Roding, L.||Wise, L.|
|Johnston of Rockport, L.||Wynford, L.|
|Kingsland, L.||Young, B.|
|Kinnoull, E.||Young, B.|
|Addington, L.||Kirkhill, L.|
|Alderdice, L.||Lester of Heme Hill, L. [Teller.]|
|Beaumont of Whitley, L.||Lincoln, Bp.|
|Brooks of Tremorfa, L.||McNair, L.|
|Dahrendorf, L||McNally, L.|
|David, B.||Meston, L.|
|Desai, L.||Methuen, L.|
|Donaldson of Kingsbridge, L.||Perry of Walton, L.|
|Falkland, V. [Teller.]||Rea, L.|
|Robson of Kiddington, B.|
|Geraint, L.||Rochester, L.|
|Gladwin of Clee, L.||Rodgers of Quarry Bank, L.|
|Grey, E.||Taveme, L.|
|Hamwee, B.||Thomas of Gresford, L.|
|Harris of Greenwich, L.||Thomas of Walliswood, B.|
|Hooson, L.||Tope, L.|
|Howie of Troon, L.||Tordoff, L.|
|Jenkins of Hillhead, L.||Turner of Camden, B.|
|Jenkins of Putney, L.||Varley, L.|
|Kilbracken, L.||Winchilsea and Nottingham. E.|
§ Resolved in the affirmative, and clause, as amended, agreed to.
§ 6.18 p.m.
§ Clause 101 [Criminal record certificates]:
Lord Weatherill moved Amendment No. 106:
Page 40, line 25, at end insert ("except that where the application is supported by a letter from a registered charity or appropriate body confirming that the application is made in connection with the appointment of the applicant to a voluntary position for which he will receive no remuneration other than his expenses, the fee shall be waived.").
§ The noble Lord said: I spoke to this amendment with Amendment No. 103. I beg to move.
§ On Question, amendment agreed to.
Lord Lester of Herne Hill moved Amendment No. 107:
Page 40, line 36, leave out ("and cautions").
§ The noble Lord said: These amendments standing in the name of my noble friend Lord Rodgers of Quarry Bank seek to remove from the scope of information contained in a criminal record certificate the record of a caution.
Cautioning is an extra-statutory procedure, although it has received some statutory recognition. It was considered by the Court of Appeal in Collins v. Wilcock in 1984 in the context of the cautioning of women for loitering or soliciting for the purposes of prostitution. Lord Justice Robert Goff (as he then was), observed that the system of cautioning had been encouraged by the Home Office as a way of discouraging young women from becoming prostitutes. However, Section 2 of the Street Offences Act 1959 provides a procedure for applying to a court for an order that no entry be made on the central register in respect of a caution, and that any entry already made be expunged. That procedure, the Court of Appeal observed,
enables a respectable woman, who has been mistakenly identified by the police as a common prostitute, to have the records corrected".
§ No one in your Lordships' House would doubt that the system of cautioning is a sensible one because it avoids unnecessary arrests and prosecutions, while 517 serving as a deterrent against any repetition of the conduct cautioned against. But it is an official warning, not a criminal conviction, still less a punishment. It is sensible and convenient for central records to contain information about cautions. It is sensible so that the police can check before deciding whether to administer a second caution or to exercise the power of arrest.
§ However, it is a fact that no safeguard is contained, so far as I am aware, either in this Bill or anywhere else, equivalent to what is in Section 2 of the 1959 Act in relation to prostitutes. So we are dealing with a criminal record of information about cautions which has not been tested in the courts, which stains an individual's character and for which there is no statutory procedure to correct the record by applying to a court. I appreciate that there is a safeguard in Clause 104, but that is administrative and discretionary and does not provide, as does the 1959 Act, for an application to a court for an order to expunge the caution.
§ The question then is whether it is reasonably necessary to meet any pressing social need for information about cautions to be included in criminal record information given to employers under Clause 101(4). That is, for example, to those involved in the administration of justice or some professions such as health, pharmacy and law or senior managers in banking or financial services. I quote from page 10 of the White Paper.
§ I suppose there might be particular and highly exceptional cases in these areas in which there was a real need to communicate information about a caution. Speaking for myself, I cannot think of any and I should be very surprised if my colleagues in the Bar Council—although they often surprise me—had in any consultation considered that it was necessary for the recruitment of staff to the legal profession—or, I add, to my own chambers—that we should be given information about cautions.
§ In any event, in my view, the vice of Clause 101 is that it contains no statutory limitations at all on the disclosure of cautions, even where such disclosure is completely unnecessary. It seems to me that there is nothing to ensure that a sense of proportion is observed. Nor does the clause provide any effective remedy for the unnecessary or disproportionate interference with the disclosure of information which could lead to a breach of privacy.
§ I note with interest that the Rehabilitation of Offenders Act 1974 contains safeguards for something which is a bit more serious than a caution. I note, for example, that someone who has been absolutely discharged has a six-month rehabilitation period. Once that has been dealt with, there is no way in which an absolute discharge can form part of the criminal record. Similarly, the 1974 Act provides that if someone has been conditionally discharged or bound over to keep the peace, after a year the rehabilitation period will have been served and information about a conditional discharge or a bind over or, for that matter, a probation order, will not be permitted to be disclosed. It will be treated as spent.518
§ So, for the life of me, I cannot understand why there is no rehabilitation period for a caution, as I understand the Rehabilitation of Offenders Act 1974, and why the framers of this Bill have not thought fit to give protection against the unnecessary spreading of information about a caution which stains one's character and which ought to be protected at least as well as a probation order, absolute discharge or bind over. For those reasons, I hope that there will be support for the amendment from the framers of the Bill and from the Committee. I beg to move.
§ Baroness Blatch
It needs to be emphasised at the outset that cautions are admissions of guilt for imprisonable offences. They cannot therefore simply be disregarded as insignificant matters and may be relevant for occupations and licences for which criminal record certificates would be available.
The purpose of the criminal record certificate is to provide fuller information to those employing individuals in occupations which are exceptions to the Rehabilitation of Offenders Act 1974. Those covered by the provisions would, for example, include those working with children and vulnerable adults such as doctors, nurses and care assistants.
By virtue of making them exceptions to the Rehabilitation of Offenders Act, the Government have already indicated that full information about convictions for any offences can be requested. A caution is not, of course, a conviction. It is given at the discretion of the police; but an individual, in accepting a caution, is admitting that he or she is guilty of an offence.
If the offence is serious enough for the caution to have been recorded on the police national computer, which, broadly speaking, only contains information about offences which are imprisonable, that is a fact which in the Government's view should be made known to prospective employers and licensees. It could be both irresponsible and dangerous to deny access in all cases to that information which might cover offences such as dishonesty, violence or other behaviour which might be extremely relevant in considering someone's suitability for a position of trust.
The noble Lord, Lord Lester, referred to the situation where there was an absolute discharge. An absolute discharge is not a conviction. I take it upon me personally without consultation with anyone to say this about the other point which he made about a conditional discharge. I am not certain whether he implicitly accepts that there is either deemed guilt or admitted guilt, but nevertheless the sentence awarded in court is a conditional discharge. I believe that I should consider the point and reflect on it between now and the next stage of the Bill. However, that is not an argument for not including cautions. It might be an argument for including conditional discharges.
§ Lord McIntosh of Haringey
I am puzzled on a question of fact. The Minister mentioned the police national computer. I assume that she refers to Clause 101(3) and the phrase:which is recorded in central records".519 That must be what she means by "the police national computer". She said that offences which are not imprisonable offences are not normally included in the police national computer. In those circumstances, how can cautions be included on the police national computer?
§ Baroness Blatch
If the caution is not a matter of record, it would not be included. Cautions will only be included if they are a matter of record. I described the kinds of cases that go forward to the national computer. They are usually serious, are mostly for imprisonable offences and do so if it is deemed by the police that they should form part of the central records.
In response to the point about expunging and an application in court for an order to expunge a caution, I should say that if it is expunged, it is no longer a matter of record.
§ Lord McIntosh of Haringey
Will there be cautions in practice? Will there be cautions on the police national computer? Will there be cautions for imprisonable offences? I thought cautions were for much more minor offences than that.
§ Baroness Blatch
We are talking about formal cautions as opposed to informal cautions, and there are many informal ways of cautioning someone about their behaviour. My understanding is that the formal caution is a matter of record on the police records, and where it is recorded nationally it is usually a relatively serious and/or possibly an imprisonable offence.
§ Lord Lester of Herne Hill
I am not a criminal practitioner, and it is some years since I had the duty of sitting as a recorder and passing sentence, so anything I say now I hope your Lordships will listen to with tolerance in case I get it wrong. I am now more confused than I was to begin with.
Perhaps I may deal with what we are actually looking at. We are looking at the disclosure of information, not only in respect of the healthcare professions, but in a narrow sense, in a sense where, for example, paedophiles and sex offenders and matters of that kind are concerned, and we are looking at barristers, dentists, opticians and bankers. The question we are asking ourselves is whether, in respect of those categories, a caution, which serves a useful social purpose but does stain one's character, needs to be disclosed.
The position under the Rehabilitation of Offenders Act 1974 is that where, in respect of a conviction—in other words a case where there has been a trial and someone has been found guilty—a person was conditionally discharged, that being the sentence of the court, or bound over to keep the peace, that being the sentence of the court, or to be of good behaviour or placed on probation, that also being the sentence of the court, the rehabilitation period applicable to the sentence is one year from the date of conviction or for a period beginning at that date and ending when the order for conditional discharge or probation etc. ceases to have effect.
520 The Rehabilitation of Offenders Act says that where there are sentences far more serious than a caution, which is not a sentence at all, after a year they are treated as spent. They cannot be referred to. They cannot form any part of any record.
§ Lord Lester of Herne Hill
I follow the noble Viscount's point. It is the point I seek to make. By contrast to spent convictions, which cover these various matters, a caution is not subject to any rehabilitation period at all because a caution does not involve a conviction of any kind. It is not protected by the Rehabilitation of Offenders Act because there has been no conviction. The position is that there is no safeguard. There is not the Street Offences Act safeguard by which you can apply to the court to get it expunged because you are an honest woman and not a prostitute. There is not that safeguard. There is not the rehabilitation period safeguard.
What one has is a totally indiscriminate ability to circulate information about cautions. I do not know whether the Minister has it in mind that in future, before someone is cautioned, he (or she) will be warned by the police officer that if he admits his guilt, that will appear on his criminal record. That seems to me only fair, if that is where we are now going. But that would deter people from admitting their guilt and accepting the caution, and thus would give rise to a lot of unnecessary prosecutions, trials and all the rest. Also, it would not lead to the deterrent effect of a caution properly applied.
For those reasons I very much hope that the Minister and her advisers will think again about these matters. It seems to me, with great respect, that there is not sufficient clarity of argument for us to be able to resolve the matter this evening.
§ Lord McIntosh of Haringey
Before the noble Lord decides what to do, I believe that the position is more confused than he describes. A caution is an admission of guilt and that is why it is put out separately. An absolute discharge is not a conviction and being bound over to keep the peace is not a conviction; but a conditional discharge is. If they all have terms under the Rehabilitation of Offenders Act, there is something wrong with the Rehabilitation of Offenders Act, and that ought to be sorted out before we come to a final conclusion.
§ Baroness Blatch
Before this becomes even more complicated, I would like to correct something I said to the noble Lord, Lord Lester, about absolute discharge. Of course, if there is a conviction, it is a conviction. An absolute discharge is a conviction and, therefore, for the purposes of the Rehabilitation of Offenders Act it is spent after six months. I concur again with the point made by the noble Viscount about spent convictions. A caution, as I said earlier, is not a conviction and, therefore, never becomes spent under the Act, but will only be disclosed when there are full criminal record 521 certificates or enhanced certificates, which include spent convictions. Either way, even if it were spent, it would also be disclosed.
§ Lord Thomas of Gresford
I rise to make the point which the Minister made a moment ago, that an absolute discharge is a sentence following a conviction. I have known it given in the case of a lady who killed her husband with a hammer. It can relate to a very serious case. Being bound over does not involve a conviction at all. That is an administrative role which is normally undertaken by magistrates.
In recent times the practice has grown up for there to be two forms filled in in the Crown Court, whether it is to deal with witnesses or defendants. One form lists convictions and the other form lists cautions. So cautions are normally kept on computer and are now made available, not only to the sentencing judge but also, of course, to the advocates on either side. As I say, this is not simply in respect of an accused person, but in respect of witnesses as well. They are playing a more and more important part in the administration of justice. Consequently, I support my noble friend in drawing to the Committee's attention the difficulties and problems relating to cautions.
§ Lord Lester of Herne Hill
I confess that I am still bewildered and it is probably my fault. I clearly must read the debate carefully and then think again. The Minister has not dealt with my main points, unless I misheard her. She has not explained why there is any necessity for this to apply to cautions that are not even convictions, nor what remedy there is to be or safeguard against misuse, but I have made those points already.
§ At this stage I would like to reflect further and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 108 not moved.]
§ Clause 101, as amended, agreed to.
§ Clause 102 [Enhanced criminal record certificates]:
Lord Weatherill moved Amendment No. 109:
Page 41, line 9, at end insert ("except that where the application is supported by a letter from a registered charity or appropriate body confirming that the application is made in connection with the appointment of the applicant to a voluntary position for which he will receive no remuneration other than his expenses, the fee shall be waived.").
§ On Question, amendment agreed to.
§ The Deputy Chairman of Committees
In calling Amendment No. 110, I should point out to the Committee that if this amendment is agreed to I cannot call Amendment No. 111.
Lord Swinfen moved Amendment No. 110:
Page 41, leave out lines 13 to 15 and insert—
("(a) the applicant's suitability for—
(i) a position (whether paid or unpaid) in which he would regularly be involved in any relevant activity,
(ii) a position (whether paid or unpaid) in which he would regularly be involved in appointing, dismissing, managing or supervising a person or persons regularly involved in any relevant activity, or
(iii) his participation in a scheme operated by a registered body where as a result of such participation he would gain opportunities to be involved in any relevant activity,").
The noble Lord said: I beg to move Amendment No. 110 and at the same time speak to Amendment No. 117. This is an amendment that I tabled after my Amendment No. 111 at the request of the Law Society. I draw your attention to the words that I wish to insert in the Bill at paragraph (a):
(ii) a position (whether paid or unpaid) in which he would regularly be involved in appointing, dismissing, managing or supervising a person or persons regularly involved in any relevant activity".
§ The relevant activity is detailed in Amendment No. 117.
§ That covers the position where an individual is responsible for supervising others. There could be a paedophile who appoints paedophiles to work in children's homes. Therefore the person who is in the position of appointing undesirable people to work with children or indeed vulnerable adults should also have the same police checks undertaken on him.
§ The Law Society has written to me that on several occasions it has received representations from solicitors, social workers, doctors and other professionals as well as from carers and relatives to the effect that adults who are vulnerable because of age or disability are not accorded the same degree of protection from abuse, nor are they given equal access to justice, as other members of the public. It considers that those are serious matters which the law should address. I am sure that the Committee does also.
§ In particular, it is becoming increasingly recognised that vulnerable adults, particularly those with mental disabilities, are subject to abuse both physical and sexual. In its comprehensive inquiry into mentally incapacitated adults and decision-making, the Law Commission identified the protection of mentally vulnerable adults as a particular area of law in need of clarification and put forward proposals for reform in its draft Mental Incapacity Bill. A person under the age of 18 with a learning disability does not suddenly lose that disability when he becomes 18 and one day. He is still a vulnerable person.
§ The need to protect vulnerable members of society, particularly children, and bring their alleged abusers to justice has been recognised and acted upon through the development of child protection procedures and the implementation of the main recommendations of the Piggott Committee on video evidence. As currently drafted, the provisions in this Bill which enable criminal record checks to be made for employment and related purposes continue that imbalance and injustice. While criminal record certificates can be issued for most job applicants, the provisions for enhanced criminal record certificates are limited to those who will be in contact with children or in particular types of work connected with gambling and lotteries.523
§ The Law Society has written to me to say that it is concerned that any measures introduced to protect children from sexual or other abuse should also be extended to protect vulnerable adults, particularly those in residential or institutional care or attending day care services. The society has been involved in a number of initiatives aimed at improving the investigation and prosecution of cases involving abuse of mentally vulnerable victims and witnesses. The need for that has been demonstrated by a number of recent cases, where mentally vulnerable adults in residential care were found to have been seriously abused by their carers. It would, therefore, wish to ensure that measures are put in place to protect vulnerable people and prevent opportunities for abuse.
§ For criminal record checks to be effective, it is important that they include all information which may be relevant in order to protect people who may be at risk of abuse. Such information will be available only in enhanced criminal record certificates. The Law Society therefore believes that access to enhanced certificates should be available to registered bodies receiving applications for positions which involve contact with vulnerable adults as well as with children.
§ In moving this amendment, I declare an interest in that I work for a voluntary body that cares for vulnerable adults. I beg to move.
§ Baroness Hilton of Eggardon
I support the two amendments of the noble Lord, Lord Swinfen. Clearly, vulnerable old people and those with mental disabilities need protecting. It is also very important that the managers who hire the people who are in contact with children, old people or those with mental problems are subject to the provisions about enhanced criminal records because managers essentially set the tone and institute particular regimes which affect those who work with them.
It is just as important that children should not be subjected to the attentions of paedophiles as that old people should not be subjected to the attentions of people who may bully them or have convictions for assault. Regimes of the kind that used to exist in institutions—not so much nowadays but there is still the occasional case where old people are bullied—could be prevented by these amendments. I therefore support the amendments.
§ 6.45 p.m.
§ Lord Rix
In the Second Reading debate I highlighted my concerns and those of MENCAP to ensure that vulnerable adults were afforded the same protection as vulnerable children and elderly people. I was heartened by the Minister's response to those concerns.
If Amendments Nos. 110 and 117 are accepted, I understand that Amendment No. 111, to which my name is attached, cannot be moved. However, I am assured that vulnerable adults will be protected by those amendments. Therefore, I support them and hope that 524 the Minister will be able to accept them and give vulnerable people of whatever age the protection that they deserve.
§ Baroness Blatch
I am in some difficulty in responding to my noble friend's amendment. I should quite like to have had it grouped with Amendment No. 111. I understand that the advice is that, if this amendment were accepted, Amendment No. 111 could not be called, and I want to respond rather more warmly to Amendment No. 111, which I believe will have a direct impact on this amendment. I shall respond to this amendment in the way that I have prepared.
§ Baroness Blatch
Only disbarred if this amendment were carried. But let me refer first to this amendment.
The amendment would extend considerably, perhaps by as many as 1 million, I understand, the number of people eligible for enhanced checks. They would place a very significant extra burden on the police, who would then be required to undertake the local element of the check. In addition to those who have regular unsupervised contact with children for whom provision is already made in the Bill, these intrusive checks would be available on almost anyone who has contact with a child, an elderly person, a vulnerable adult or even an adult who is simply ill. They would also cover managers and supervisors who may never come into personal contact with the individuals that the amendment seeks to protect and who would never be in a position to abuse them.
The amendment would cover clerical and administrative staff in schools and hospitals who regularly work with children or patients but who, common sense suggests, are not necessarily, or certainly should not be, in a position to pose a risk. At a practical level, these proposals would mean that the police would have to take on extra staff in order to cope with the workload. Again, I remind the Committee that it is a workload which would be additional to that contained within Amendment No. 103.
Inevitably, enhanced checks will take longer than those which require only a check of central records, which will build delay into the recruitment of many staff and cause applicants additional expense. In my view, that would be quite unjustifiable, if they were not likely to be in a position where the job that they wished to do would not fulfil the criteria of contact, which are such where abuse could take place.
Annex A to the White Paper makes clear that it is our intention that all those to whom these amendments would apply would be eligible for a full criminal record certificate. It would provide details of centrally recorded convictions, including those which are spent under the Rehabilitation of Offenders Act, and centrally recorded cautions. That is considerably more information about criminal records than is presently available to those working with people other than children.
525 As I have referred to centrally recorded cautions, I think I ought to refer back to at least one definition. The noble Lord, Lord McIntosh, was concerned about very serious offences being dealt with only by a caution. The noble Lord will know how much we have done to reduce the incidence of cautioning before, if it is appropriate, people are eventually put into custody. An example is theft. It is a potentially serious offence. It can be dealt with in the early stages by caution. But it would indeed be relevant where someone, having had a caution and having admitted guilt to the theft, was seeking work in a position of trust.
It is important to remember that those making appointments will not normally be doing the job in isolation. There will be many other procedures to be followed and many other people to check that the wrong people are not being appointed to sensitive posts. It is necessary to strike a balance—we are here talking about a balance—between protecting the most vulnerable in our society and the rights of individuals to privacy. Finding the right balance will always be a question of judgment, but the Government believe that extending enhanced checks to this potentially enormous group of people would be difficult to justify. For those reasons, I hope my noble friend will not press his amendment.
§ Lord McIntosh of Haringey
The Minister indicated that she will respond rather more warmly to Amendment No. 111. Perhaps it would be better if we moved on to that. However, that is up to the noble Lord, Lord Swinfen.
When the Minister responds to Amendment No. 111 I ask her to recognise that her objections have, as I understand them, been entirely confined to questions of practicality. The Government say in their response to the White Paper that they expect there to be continual demand for checks on those working with vulnerable adults which it might be difficult to meet during the agency's early period of work. However, they say that they will be prepared to consider the possibility of extending enhanced checks to that group once experience has been obtained of the value of the new arrangements. If that is the force of the argument rather than an objection in principle or an objection about the definition of vulnerable adults, so be it. However, I put it to her that the extension to vulnerable adults should not require further legislation. In other words, in whatever form the Bill passes, it should allow the extension to vulnerable adults to be carried out by resolution or by administrative action rather than require new legislation.
§ Baroness Blatch
It is not just about practicalities. Of course I had to bring in the fact that we are increasing the number of people to whom this part of the Bill will apply. I have given some indication that the number will be approximately above 1 million and so it cannot be disregarded as an issue. I was also addressing priorities. We are looking at the most vulnerable and we are looking at that group of people who will have access to, and work in an unsupervised way with, young people.
526 They become the category of people on whom this part of the Bill must bite. Therefore, it is a question of priorities, practicalities and of course cost.
§ Lord McIntosh of Haringey
I thought that was roughly what I was saying. I understand the need for priorities. I understand the need for practicality. We must not let the Bill go through in such a way that there is no provision when resources permit for protecting vulnerable adults. If that has to be done by putting a provision into the Bill now and providing a different commencement date, that would be better than nothing. What we cannot do is have a Minister coming back afterwards and saying, "We can do it but only when legislative time permits".
§ Lord Swinfen
I should like to read what my noble friend said because she said a good deal on these two amendments. Between now and the next stage of the Bill I should be grateful if she would reflect seriously on the position of someone who would be regularly involved in appointing, dismissing, managing or supervising a person or persons regularly involved in any relevant activity. He would be in a position to cause a great deal of mischief. He could be the leader of a paedophile gang, for lack of a better example, or someone who was going into individual vulnerable elderly people's homes and stealing from them.
I shall not press the amendment today but will be happy to come back the issue at a later stage in the Bill. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Swinfen moved Amendment No. 111:
Page 41, line 15, at end insert ("or
(ii) of persons whom the Secretary of State may, by order, designate as vulnerable or otherwise requiring special protection,").
§ The noble Lord said: I may not be a good draftsman, as I am sure many members of the Committee would point out to me, but I realise that, with the difficulties that started with the Child Support Agency, there could well be difficulties in putting the Bill into effect. Therefore, I have worded this amendment in such a way that the Secretary of State may, by order, at some time in the future, bring in gradually, when practicable, different groups of vulnerable people who in my view need the same protection as vulnerable children. There is a danger that we could all sink back into childhood as we become elderly. In no way am I likely to be exempt from that.
I have had a number of letters of support on this amendment. I have before me one from a director of a voluntary organisation that runs a home for elderly people. It says:
We are extremely concerned that there could be substantial numbers of people moving from job to job who have histories of abusing people in their care but whose references do not necessarily show this. This situation is encouraged by the fact that it is often not in the employer's interest to carry through disciplinary procedures or indeed to report people to the relevant authorities since this is likely to create publicity that could be damaging to the employer's business".
The letter goes on:
I appreciate that the Bill is aimed mainly at carers for young people, but if it were possible to build in a further provision for old people and adult disabled people, this would be helpful".
The British Association of Social Workers has written to me, saying:
Your proposed amendment to the Police Bill to enable police checks to be made on care workers is supported by this association. We do believe that this measure can only be effective within a wider framework of social care regulation".
I have before me an article from the Guardian dated 17th August 1994 which reports:
A child sex attacker who left prison under an assumed name and began preying on elderly and psychiatrically disturbed women was given two life sentences for rape yesterday … Bannerman's past as Henry Walker was revealed through a fingerprint check at Scotland Yard. His identity was confirmed again when a warder at Strangeways Prison, Manchester, saw a police picture of him and found an almost identical shot in prison files recorded under the name of Walker and taken while he was serving eight years for the rape of a Manchester woman".
§ I do not know whether any noble Lord saw the programme on BBC Television North East on Thursday evening entitled "Close Up North". It detailed the rape of an elderly woman by a care worker. It also referred to an earlier case where a man was sentenced to six years' imprisonment for the rape of a female demented resident in a home. There are numerous examples that I can give to the Committee, but it is getting late and I shall not do so. I am very anxious to hear what my noble friend the Minister has to say on this particular amendment. I beg to move.
§ 7 p.m.
§ Lord Rix
What I have to say has already been said. I am obviously in support of this amendment because my name is attached to it. I spoke in support of Amendments Nos. 110 and 117 because of the possibility that Amendment No. 111 would fall if the others had been carried. The vulnerable people to whom I am referring, as I am sure the Minister knows and recognises, are those with a learning disability. The numbers are considerable—well in excess of 1 million people, of whom certainly over 50 per cent. are adults. I hope that this amendment, or a version which might be put forward by the Government and which will be acceptable, will be carried.
§ Baroness Blatch
We need to consider, first, the practical implications of extending checks to vulnerable adults, particularly for the police who will need to undertake the most complicated and time-consuming part of the check. How vulnerable adults are defined will be important. Depending on the definition, they could overwhelm the police with applications for enhanced checks when the new arrangements come into operation just at a time when they are in any event likely to be coping with an increase in enhanced checks on those working with children.
Nevertheless, I have sympathy with the amendment and with the arguments that have been put so persuasively by my noble friend, supported by the noble Lord, Lord Rix, and, I believe, probably by others in the Committee. Therefore, we are considering how best to 528 amend the Bill in order to extend the provision for enhanced criminal record checks to vulnerable adults. There are a number of options, but we intend to bring forward an amendment for this purpose at Report stage. On that basis, I hope that my noble friend will feel able to withdraw the amendment.
§ Lord Swinfen
That is very good news indeed. I am delighted that my noble friend proposes to bring forward an amendment of her own. However, I am rather a nasty character and I shall probably put down an amendment of my own if I do not see one fairly soon in the Printed Paper Office. I have given this warning often in the past and I have carried it out. I also hope that the remarks I made as regards the last amendment about the supervisors of people working in close contact with vulnerable people will also be borne in mind. With those words, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
The Earl of Courtown
I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before 8.5 p.m.
Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.