HL Deb 21 January 1997 vol 577 cc668-78

10.17 p.m.

Baroness Blatch

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Baroness Blatch.)

On Question, Motion agreed to.

Lord McIntosh of Haringey had given notice of his intention to move Amendment No. 157: After Clause 106, insert the following new clause—

CRIMINAL RECORDS TRIBUNAL

(".—(1) The Secretary of State shall establish a body to be known as the Criminal Records Tribunal ("the Tribunal") to hear an appeal from any individual applicant who disputes the accuracy or relevance of a new certificate which is issued to him under section 106 and which contains the same information as the original certificate.

(2) The Tribunal may examine any information held on the applicant and that contained on the certificate and assess the accuracy of the certificate.

(3) A person who appeals to the Tribunal may be represented by a person of his choice.

(4) The Tribunal shall give reasons for its decisions.

(5) An appeal shall lie from a decision of the Tribunal to the High Court.

(6) The Tribunal may award compensation to an individual applicant.").

The noble Lord said: My Lords, the amendment was debated much earlier this morning. It would be inappropriate of me to suggest that it be debated again. I do not move it.

Baroness Blatch

My Lords, my understanding is that this amendment was pressed to a Division last night. Therefore the amendment is still on the Table.

Lord McIntosh of Haringey

My Lords, it is still on the Table. I am grateful to the Minister for that correction. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 107 [Evidence of identity]:

Baroness Blatch moved Amendment No. 158: Page 43, line 33, at end insert— ("() Regulations dealing with the taking of Fingerprints may make provision requiring their destruction in specified circumstances and by specified persons.").

The noble Baroness said: My Lords, I hope that the amendment proves to be uncontentious. It permits regulations to be made to deal with the destruction of fingerprints which have been taken in order to provide evidence of identity, when those have served their purpose. The provisions we have in mind would be based on those in Section 64 of the Police and Criminal Evidence Act 1984, and the equivalents in Scotland and Northern Ireland, and would permit the individual to witness the destruction of the fingerprints. I beg to move.

Lord McIntosh of Haringey

My Lords, I believe that this is a worthwhile amendment. I am grateful to the Minister for moving it.

On Question, amendment agreed to.

Clause 109 [Registered bodies]:

Baroness Blatch moved Amendments Nos. 159 to 161: Page 44, line 11, leave out first ("body") and insert ("person"). Page 44, line 11, leave out ("body which") and insert ("person who"). Page 44, line 14, leave out ("body which") and insert ("person who").

The noble Baroness said: My Lords, these amendments were spoken to with Amendment No. 133. I beg to move.

On Question, amendments agreed to.

[Amendment No. 162 not moved.]

Baroness Blatch moved Amendments Nos. 163 to 167: Page 44, line 17, leave out ("subsection") and insert ("subsections (2A) and"). Page 44, line 17, at end insert— ("(2A) A person applying for registration under this section must be—

  1. (a) a body corporate or unincorporate, or
  2. (b) a person appointed to an office by virtue of any enactment.").
Page 44, line 18, leave out ("body") and insert ("person"). Page 44, line 20, leave out ("it") and insert ("he"). Page 44, line 21, leave out ("it") and insert ("he").

The noble Baroness said: My Lords, these amendments were discussed with Amendment No. 133. I beg to move.

On Question, amendments agreed to.

[Amendment No. 168 not moved.]

Baroness Blatch moved Amendment No. 169: Page 44, leave out line 24.

The noble Baroness said: My Lords, this amendment was spoken to with Amendment No. 133. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 170: After Clause 109, insert the following new clause—

PERFORMANCE BY CONSTABLES ON CENTRAL SERVICE IN SCOTLAND OF FUNCTIONS UNDER THIS PART

("In Scotland a constable engaged on central service (within the meaning of section 38 of the Police (Scotland) Act 1967) may perform functions under this Part (other than functions under section 104(2B) or (7), 110(1) or (2) or 112) on behalf of the Secretary of State; and without prejudice to the application of subsection (5) of section 108 in respect of any other person performing functions on behalf of the Secretary of State, that subsection shall apply in respect of any constable performing functions by virtue of this section as the subsection applies in respect of the Secretary of State.").

The noble Baroness said: My Lords, at our debate on Second Reading I mentioned that in Scotland the work on access to criminal records under Part V of the Bill will be undertaken by the Scottish Criminal Record Office. This new clause allows that office to do the work on behalf of the Secretary of State for Scotland.

The Scottish Criminal Record Office is well established as the central database for criminal records in Scotland. It already carries out, in a centralised way, the criminal record checks under the present non-statutory arrangements in Scotland. These arrangements are very satisfactory and my right honourable friend the Secretary of State for Scotland wishes to build on them, rather than setting up a new body in the way which is necessary in England and Wales.

The Scottish Criminal Record Office is staffed by constables on central service under the Crown, in accordance with Section 38 of the Police (Scotland) Act 1967. Although they are working under the Crown, these constables are not part of my right honourable friend's department and so cannot automatically carry out functions on his behalf. The new clause gives them that power.

However, certain functions of the Secretary of State are excluded. These are the Secretary of State's power to make regulations and to specify and lay before Parliament the Code of Practice. These functions will be carried out, as regards Scotland, by the Scottish Office.

The Scottish Criminal Record Office will, however, be responsible to the Secretary of State for Scotland for the normal operation of the disclosure system. I am confident that it will do so very well. Its reputation is high.

Finally, the amendment extends the Secretary of State's limited immunity from proceedings, which is conferred by Clause 108(5) of the Bill, to include constables at SCRO who are performing functions on his behalf.

The net effect of the new clause is to allow the Scottish Criminal Record Office to act in Scotland on behalf of the Secretary of State in exactly the same way as the Criminal Records Agency will in England and Wales on behalf of the Home Secretary. I beg to move.

On Question, amendment agreed to.

Clause 110 [Code of practice]:

Baroness Blatch moved Amendment No. 171: Page 44, line 26, leave out ("may publish, and") and insert ("shall publish, and may").

The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 173 to 176. Amendments Nos. 171, 173 and 176 fulfil the undertaking that I gave at the Committee stage that the Bill would be amended so as to make explicit our intention that the Secretary of State will publish a code of practice. I hope that that will be acceptable to noble Lords.

The understandable wish to ensure that ex-offenders are rehabilitated and not discriminated against is the motivation behind Amendment No. 174. This would place a duty on the Secretary of State to make arrangements for monitoring compliance with the code of practice by registered bodies.

As has been said many times during our consideration of this Bill, it is our intention to put in place an effective new system of criminal record checks which takes account of the rights of the individual but which is also straightforward and cost effective. The inspection and monitoring regime which is proposed by this amendment would add significantly to the cost and complexity of this scheme. It would also, let us not forget, be a most unwelcome burden on, for example, small businesses and local authorities.

There are safeguards in the Bill to ensure that wherever possible the code of practice is adhered to. The Secretary of State will be able to suspend registered bodies which he considers have failed to abide by the code. Sanctions also exist against individuals who breach the code by disclosing conviction information to those not entitled to it. Indeed, a criminal offence will be committed which could be punished by a prison sentence.

Finally, Amendment No. 175 proposes that the code of practice should be subject to affirmative resolution by both Houses of Parliament. The draft code has already been the subject of a lengthy consultation process where we have sought the views of employers, regulatory bodies and civil liberties and voluntary groups. Some 250 responses were received and many of the views expressed have been taken on board. The code of practice will require further consolidation and consultation and, given the detailed and extensive nature of this continuing process, we would expect the final code to meet the legitimate concerns raised by many interested parties. In light of that we do not consider it necessary for the code to be subject to affirmative resolution. It will, however, be published and laid before both Houses of Parliament.

In the light of what I have said, I hope that the House will support the amendments in my name. I ask the noble Lord, Lord McIntosh not to press his amendment but I understand that he was not going to in any event.

Lord McIntosh of Haringey

My Lords, I am grateful to the Minister for responding in advance to my Amendments Nos. 174 and 175. That was entirely proper since I had agreed that they should be grouped together. I am grateful also to the Government for accepting the important point that the code of practice should be mandatory and not permissive, which is contained in Amendment No. 171. It is important that codes of practice of this kind should be subject to as much scrutiny as possible, although I do not doubt for a moment the extent of the consultation which has taken place and the care which is being taken to take account of the responses to the consultation.

The Home Office memorandum to the Delegated Powers Scrutiny Committee said, in reference to the code of practice, that because it will deal with administrative matters it is not thought necessary for it to be subject to any further parliamentary procedure. Indeed, that is what is now proposed although the Minister has told us that the code will be laid before Parliament but the affirmative resolution will not be used. In fact, my Amendment No. 175 provides for the negative resolution procedure rather than the affirmative procedure to be used.

However, I must query whether the code of practice will be purely administrative. Other codes of practice of this kind, and certainly previous codes of practice on this subject, have gone well beyond administrative matters and have dealt with organisations' policies on employing offenders. Indeed, they may well affect employment law. Those matters are not administrative. I query seriously whether it is right for the code of practice only to be laid before Parliament and not to be subject, as we propose in Amendment No. 175, to the negative resolution procedure.

I recognise that the Delegated Powers Scrutiny Committee accepted the assurances of the Home Office. I am less willing to do so. I did not move my Amendment No. 162 which is concerned with employers' policies on recruiting offenders because I knew that the matter could be debated, as it is being debated now, with this group of amendments. But the requirement which was in my Amendment No. 162 for those responsible to be satisfied that employers have positive policies for the employment of offenders is still very much in the forefront of my mind.

I am encouraged by the words the Minister used in proposing this group of amendments when she talked about the necessity for fair and just policies to ensure that there is not unnecessary discrimination against previous offenders as regards employment. After all, those offenders have served whatever punishment was awarded to them by the courts. It is extremely important that their lives should not be blighted subsequently by discrimination against them in the employment field. I say that not only as a matter of justice to the individuals concerned but also for two other reasons. First, obviously employers will do better if they have access to a wider catchment area, so to speak, of potential employees and that must include previous offenders.

Secondly—and, perhaps, most importantly from the point of view of crime policy—it cannot be doubted that those previous offenders who find jobs and who are usefully employed are much less likely to offend again in the future. That is why it is necessary for there to be explicit recognition in the Bill of the need for positive policies for the employment of offenders. It is for that reason therefore that Amendment No. 174 requires the Secretary of State to, make arrangements for the monitoring and inspection of compliance by registered bodies with any code of practice published under this section". Of course, it should now read "the code of practice" rather than "any code of practice". Because of the defective wording, it will not be possible for me to take the amendment to a vote.

I also believe that Amendment No. 175—which calls for the code of practice laid before Parliament … [to] be subject to annulment pursuant to a resolution of either House of Parliament"— should be agreed to because of the importance of the code of practice. The Minister has not given any undertakings as to when the code of practice will be published. From what the Minister said, I can appreciate the care which has been taken to ensure that the representations that have been made to her are fully taken into account. I also recognise the validity of the Minister's point that a code of practice of this kind can, and should, be subject to change.

Therefore, I hasten to add that I do not propose that the code of practice should be put on the face of the Bill. But it would be extremely helpful if the Minister gave an indication that the code—or at least the latest draft if the process is not complete—will be available to Parliament well before the Bill completes its passage. Although it would be very nice, I can hardly expect it to be available before the Third Reading in this House in a week's time. Nevertheless, it would be helpful if the noble Baroness could give some indication that it will be available for consideration by the House of Commons at least in time for its Committee stage, so that we can ascertain the full extent of the provisions of the code of practice.

Baroness Blatch

I should like, first, to say how grateful I am that the noble Lord has been so constructive about the proposals, albeit that he was critical about them not going far enough. While I am seeking advice, I should say that I do not believe that I can be definitive about the timing of the publication at this moment. However, I understand the noble Lord's concern that we should have sight of the code of practice, at least in draft form, before the Bill makes much more progress through this House.

I should like to comment on a particular concern of the noble Lord; namely, the way in which the code will affect employment. We do not intend to make provision in the code on employment policies because it would in effect mean that we were legislating in order to give former offenders a right not to be unfairly discriminated against. This we cannot do in a code; nor would it be right for central government to dictate to employers in what circumstances they should disregard convictions.

We can of course advise employers, but it must be for them to decide the relevance of a particular conviction for the post in question. The code will therefore deal with administrative matters. That point was queried by the noble Lord, Lord McIntosh. Guidance will of course be issued on employment practices. We believe it is the guidance to employers that will be important. My understanding is that we shall make the code available in draft. I do not know when that will be, but I shall seek more information on that tomorrow and I shall write to the noble Lord.

Lord McIntosh of Haringey

I am grateful for those comments. Before the Minister sits down, and with the leave of the House, I hope she will understand that unless the code of practice is to be available in time for full consideration by another place there may be parliamentary activity—let me put it that way—to ensure that the matter is properly considered. She ought to understand also that I understand her assurances that the code of practice will cover only administrative matters, but if that is the case my honourable friends in another place will want to move a comparable amendment to my Amendment No. 162 to ensure that there are on the face of the Bill adequate protections for previous offenders in employment.

On Question, amendment agreed to.

[Amendment No. 172 not moved.]

Baroness Blatch moved Amendment No. 173: Page 44, line 29, leave out from ("Parliament") to end of line 30 and insert ("the code of practice under this section as soon as practicable after publication and after revision.").

On Question, amendment agreed to.

[Amendments Nos. 174 and 175 not moved.]

Baroness Blatch moved Amendment No. 176: Page 44, line 32, leave out ("a code of practice published") and insert ("the code of practice").

The noble Baroness said: My Lords, this was spoken to with Amendment No. 171. I beg to move.

On Question, amendment agreed to. Clause 112 [Regulations):

Baroness Blatch moved Amendments Nos. 177, 178 and 179: Page 45, line 24, leave out ("section or section 104(7)") and insert ("Part"). Page 45, line 25, after ("instrument") insert— ("(2A) A statutory instrument which contains (whether alone or with other provisions) regulations made by virtue of section 104(2B) shall not be made unless a draft has been laid before, and approved by resolution of, each House of Parliament. (2B) A statutory instrument to which subsection (2A) does not apply shall be"). Page 45, line 27, leave out ("section or section 104(7)") and insert ("Part").

The noble Baroness said: My Lords, these amendments were spoken to with Amendment No. 145. I beg to move Amendments Nos. 177, 178 and 179 en bloc.

On Question, amendments agreed to.

Clause 119 [Rehabilitation of Offenders]:

Baroness Blatch moved Amendment No. 180: Page 49, line 13, at end insert— ("() section 39 of the Osteopaths Act 1993;").

The noble Baroness said: My Lords, Clause 119 is concerned with repealing certain sections of previous legislation, which provide for exceptions to the Rehabilitation of Offenders Act 1974. These amendments complete that process by repealing provisions in the Osteopaths Act 1993 and the Chiropractors Act 1994. It is our intention that these exceptions will be re-applied as part of a consolidated order under the Rehabilitation of Offenders Act. I beg to move.

Lord McIntosh of Haringey

My Lords, I am sorry, but I do not understand those comments. I understand the difference between osteopaths and chiropractors because my wife has had occasion to use both of them, but I do not understand what is being taken out of the Osteopaths Act and the Chiropractors Act. Is it the case that at the moment there is a requirement on osteopaths and chiropractors to employ a significant number of previous offenders? If that is the case, it seems slightly odd as most osteopaths and chiropractors are in private practice and do not employ anyone. If that is the case, is the intention to take out that provision and bring it back in a consolidated order, or is it the case that it is not required to do that at the moment and the intention is to bring it in and then take it out? It is not very clear to me.

Baroness Blatch

My Lords, I understand that it is simply a consolidation measure. The amendment enables provisions in the Osteopaths Act 1993 and the Chiropractors Act 1994 to be re-enacted in a consolidated form in an exceptions order to the Rehabilitation of Offenders Act.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 181: Page 49, line 14, at end insert— ("() section 40 of the Chiropractors Act 1994.").

On Question, amendment agreed to.

Clause 121 [Commencement]:

Baroness Blatch moved Amendment No. 182: Page 49, line 28, leave out ("or II") and insert (", II or IV").

The noble Baroness said: My Lords, I hope that this will be a little more straightforward. The amendment simply applies the commencement provisions in Clause 121(3) to Part IV of the Bill as well as to Parts I and II. This is to allow for the fact that there may, for example, be a need to transfer some existing contractual rights and liabilities from the Home Office to the police information technology organisation. I beg to move.

On Question, amendment agreed to.

Schedule 9 [Minor and Consequential Amendments]:

Baroness Blatch moved Amendments Nos. 183 to 185: Page 74, line 37, at end insert— ("In section 39 (liability for wrongful acts of constables), in subsection (4), after "1996" there shall be inserted "or section 23 of the Police Act 1997"."). Page 75, line 19, at end insert— ("In section 14 of the Police Act (Northern Ireland) 1970 (liability for wrongful acts of members of the police force), in subsection (5), after "Police Act 1996" there shall be inserted "or section 23 of the Police Act 1997"."). Page 75, line 20, leave out ("the Police Act (Northern Ireland) 1970") and insert ("that Act").

The noble Baroness said: My Lords, these amendments were spoken to with Amendment No. 9. I beg to move.

On Question, amendments agreed to.

Baroness Blatch moved Amendment No. 186: Page 77, line 45, at end insert ("and (b) after "1967" there shall be inserted "or means relevant service within paragraph (ba) or (bb) of section 38A(1) of the said Act of 1967"").

The noble Baroness said: My Lords, this amendment was spoken to with Amendment No. 4. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 187: Page 86, line 22, at end insert— ("In section 88 (liability for wrongful acts of constables), in subsection (5)(b), after "or 98" there shall be inserted "of this Act or section 23 of the Police Act 1997".").

The noble Baroness said: My Lords, this amendment was spoken to with Amendment No. 9. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 188: Page 86, leave out lines 36 to 41.

The noble Baroness said: My Lords, this amendment was spoken to with Amendment No. 127. I beg to move.

On Question, amendment agreed to.

Schedule 10 [Repeals]:

Baroness Blatch moved Amendment No. 189:

Page 88, line 11, at end insert—
("1967 c. 77. Police (Scotland) Act 1967 In section 39(4), the word "or" in the third place where it occurs.")

The noble Baroness: My Lords, this amendment was spoken to with Amendment No. 9. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendments Nos. 190 and 191: Page 88, line 26, at end insert— ("1993 c. 21. Osteopaths Act 1993. Section 39.") Page 88, line 28, at end insert— ("1994 c. 17. Chiropractors Act 1994. Section 40.")

The noble Baroness said: My Lords, these amendments were spoken to with Amendment No. 180. I beg to move.

On Question, amendments agreed to.

House adjourned at seventeen minutes before eleven o'clock.