Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2015

Lord Faulks Excerpts

Monday 9th February 2015 Grand Committee

Moved by

[Lord Faulks]

That the Grand Committee do consider the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2015.

Relevant document: 19th Report from the Joint Committee on Statutory Instruments

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

Noble Lords will be aware that the Rehabilitation of Offenders Act 1974 is the primary legislation concerning the disclosure of criminal convictions and cautions. It seeks to help the reintegration into society of offenders who have put their criminal past behind them. It does this by declaring certain convictions, after a specified period, as “spent”. Once a conviction has become spent, an individual is not required to declare it when, for example, entering most employment or applying for insurance. The reforms we made to the Rehabilitation of Offenders Act, which allow many convictions to become spent sooner, were commenced in March last year and widely welcomed.

We are concerned today, however, with the exceptions order to the Act. This acts as a balance to the Act to maintain public protection. The exceptions order lists activities and posts which may present a particular risk of harm—for example, regular contact with particularly vulnerable groups, such as children—and exempts them from the protection of the primary legislation. This allows certain employers, bodies and proceedings to ask for the disclosure and to take into account certain spent cautions and convictions as well as any unspent convictions. In these sensitive areas, we consider that the need to protect the public outweighs the need to protect the ex-offender from disclosure of their fuller criminal record.

I should explain that the Police Act 1997 is the related legislation which sets out the process for the issue of criminal record certificates. Standard disclosures contain details of a person’s spent and unspent cautions and convictions, where there are any such convictions and cautions, with the exception of certain older and minor convictions which are protected from disclosure. Enhanced disclosures include, in addition, any locally held information which the chief officer of police considers is relevant to the purpose of the application. These criminal record certificates are issued by the Disclosure and Barring Service.

Having set out that background, I will now explain the two amendments which we propose to add to the exceptions order. The first deals with individuals seeking counterfraud, investigatory and security management posts in NHS Protect; the second concerns individuals seeking to engage in regulated activity relating to children and vulnerable adults.

As to counterfraud, investigation and security management in the NHS, staff in the NHS undertaking the investigation of fraud, bribery and corruption, and the safeguarding of patients, staff and NHS assets, will have access to confidential information and medicines. They may also have contact with vulnerable persons. In addition, those who are engaged in counterfraud investigations have responsibility for the preparation of prosecutions and can be called to give evidence in court proceedings. In these circumstances their character history is relevant to the issue of witness credibility, which can prove critical in obtaining successful prosecutions.

These activities clearly give rise to public protection considerations and justify the disclosure of certain spent cautions and convictions so as to determine the suitability of an individual applying to do this work. To date, this area of activity has been dealt with under a wider provision in the exceptions order, which covers working in health services more generally, including contact with patients. Investigations into fraud and other criminal activity in the health service may not involve patient contact but will nevertheless require access to sensitive material. Recent changes to counterfraud and security management in the health service mean that certain administrative staff may now assist in investigations. Consequently, they will have access to some sensitive material. In the light of these developments, we consider that there should be a distinct provision in the exceptions order which not only deals with the new administrative group of staff undertaking this work but covers the area of activity so that the exception is both precise and clear.

The second amendment in this order relates to regulated activity. While this area of work is, of course, already covered in the exceptions order, there have been changes made to the definitions of regulated activity relating to children and vulnerable adults. The Protection of Freedoms Act 2012 made changes to the definitions set out in the Safeguarding Vulnerable Groups Act 2006. We now need to reflect those changes in this instrument. The exceptions order currently covers all individuals engaged in regulated activity relating to children, and all individuals engaged in regulated activity relating to vulnerable adults as defined prior to the amendments made by the 2012 Act, which in the most part narrowed these definitions. The earlier definition of regulated activity was kept for the purposes of the exceptions order, as the Government had made a commitment to ensure that employers would still be able to obtain criminal record certificates for those individuals who no longer fell within the amended definition of regulated activity.

However, while the 2012 Act generally reduced the scope of regulated activity, its definition of relating to children was also expanded to a limited extent. This remains the case today. For example, a person who provides healthcare or personal care on an occasional basis now comes within the definition of regulated activity relating to children. These individuals would not previously have been covered because this activity would not have met the relevant frequency conditions for it to fall within the definition of regulated activity relating to children.

In addition, the Safeguarding Vulnerable Groups Act 2006 provides the Secretary of State with the power to amend the definitions of regulated activity in that Act by order, subject to the affirmative procedure. In the future, it is therefore possible that the definitions of regulated activity could be amended to cover new roles. These would not then be covered by the current provision in the exceptions order, which refers to the definitions of regulated activity as they were at a fixed point in the past.

This amendment will therefore ensure that all those engaged in regulated activity can be asked about unprotected cautions and convictions when their suitability for this work is being assessed and that that remains the case for any future changes to the definitions of regulated activity made by order under the Safeguarding Vulnerable Groups Act 2006.

I assure noble Lords that any such changes to the definition of regulated activity will be subject to debate in the House. I therefore believe it is unnecessary for an express amendment to made to the exceptions order for each new role added to that definition on the basis that any debate in respect of the order amending the definitions of regulated activity would provide the House in any event with the opportunity to consider the appropriateness of such changes, including the implication of those changes in respect of the ability of employers to seek information about certain spent convictions and cautions.

These amendments, while relatively minor in scope, are important for public protection purposes. They make sure that all those who are responsible for protecting the NHS and all those engaging in regulated activity are properly covered by the exceptions order. I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, I will not detain the Committee very long. As the Minister told the Grand Committee, this exceptions order makes amendments in relation to those concerned with counterfraud work, the investigation of offences and security management and to current regulated activities under the Safeguarding Vulnerable Groups Act 2006. I have read the order and the Explanatory Memorandum very carefully. I am content with this order which takes account of legislative changes and ensures that individuals in a position of trust, as defined in the order, can be asked about their unprotected spent convictions and cautions. This is a very good balance between helping individuals who have offended to return to meaningful work and the need to protect the public, as the Minister said. This is a very sensible move, and I am very happy to support the order before the Grand Committee today.

[Lord Faulks]

My Lords, I am grateful to the noble Lord, Lord Kennedy, for his constructive and helpful observations. As he said, this is not a party-political issue. These are necessary and proportionate amendments endeavouring to strike the balance in a difficult area, and they form part of this Government’s—I dare say any Government’s—ongoing commitment to keep safeguarding measures in step with developments elsewhere. I commend the draft order to the Committee.

Motion agreed.