Justice 1 Committee, 18 Mar 2003

Meeting date: Tuesday, March 18, 2003

Official Report 138KB pdf

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Subordinate Legislation

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Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2003 (Draft)

Agenda item 2 is subordinate legislation. I welcome the Deputy Minister for Justice, Hugh Henry, who is prompt and has caught us on the hop. I refer members to paper J1/03/7/1, on the draft Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2003, and to paper J1/03/7/24, which is correspondence from the Law Society. I invite the minister to speak to and move motion S1M-3931.

The purpose of the order is to provide greater protection to the public and the most vulnerable members of society in particular by updating the exceptions and exclusions that apply to certain provisions of the Rehabilitation of Offenders Act 1974.

The committee will be aware of the act's principles. The act sets out to make life easier for those who have been convicted of a criminal offence and, since that offence, have not erred against the law. If someone does not receive a further conviction by the end of their prescribed rehabilitation period, the conviction becomes spent. In general, that means that they cannot be asked about the conviction and do not have to declare it in any proceedings before a judicial authority. In addition, they cannot be dismissed or excluded from any office, profession, occupation or employment on the basis of a spent conviction.

Exemptions from those provisions must be made to ensure that there is adequate protection for the public. Sections 4(4) and 7(4) of the act allow subordinate legislation to be made that excludes or modifies the application of, or makes exceptions to, the regime for rehabilitation of offenders under the act. The exceptions order therefore provides that questions can be asked about spent convictions when a person is being considered for, or already holds, certain specified positions and types of work that involve a particular level of trust. Questions can also be asked about spent convictions in the course of certain specified proceedings.

The exceptions order in Scotland has not been updated since 1986. It is important that the provisions in the order are consistent with other pieces of legislation that the Scottish Parliament has considered fully. In particular, we are updating the list of exceptions and exclusions to the Rehabilitation of Offenders Act 1974 to ensure that the provisions in Scotland are consistent with the Regulation of Care (Scotland) Act 2001 and the Protection of Children (Scotland) Bill. Accordingly, all those who work in a child care position or who are concerned with the provision of a care service will be covered by the order. We are also adding some occupations that have recently been added to the existing exceptions order but that apply in England and Wales only—for example, taxi drivers and any employment that is concerned with the monitoring of the internet for the purposes of child protection. Other changes include specific provision in the order for social workers and social service workers and the updating of terminology to reflect the fact that this is the first order for Scotland only.

For members' information, we have given in notes to the press release that will be issued a fuller list of the occupations that will be considered for the first time. That list includes chartered psychologists, actuaries, social workers, precognition officers, curators ad litem, Her Majesty's inspectors of education and police custody and security officers. The list is extensive.

The inclusion of a type of work in the exceptions order does not necessarily debar ex-offenders from those jobs, but a prospective employer in the excepted areas of employment would be entitled to ask about spent convictions and to make an assessment of the relevance of the previous conviction. The new order will make it possible for a wider range of employers to be able to have the individual's conviction status confirmed through the criminal conviction certificates that are available under part V of the Police Act 1997.

It is important that we strike the right balance between supporting the rehabilitation of offenders and protecting the public. We are all clear that employment can reduce reoffending. That reduction in turn cuts the cost of crime and helps to close the opportunity gap. We are confident that the updated exceptions order strikes that balance. We consulted a wide range of employers, service providers and organisations that represent the interests of children, vulnerable adults and ex-offenders. We received 40 responses, which were overwhelmingly in favour of the proposal. A summary of the responses has been provided with the Executive note.

As the committee is aware, progress on the order has been linked to a transfer of functions under the Scotland Act 1998. The committee considered the section 63 order on 14 January and the Privy Council made that order following approval on 27 February. I am pleased to introduce an updated and consolidated exceptions order so soon after the transfer of powers that make it clear that Scottish ministers can update all aspects of the order. There had previously been doubt about whether provision could be made in areas of work, such as financial services, that are reserved under schedule 5 to the Scotland Act 1998. The section 63 order has removed any doubt about that.

The Executive will continue to liaise with the Home Office to ensure consistency on areas that United Kingdom legislation covers. However, the order will allow us to make a significant improvement to the exceptions provisions in Scotland, which had not offered the level of protection that was required in certain areas. By making the order consistent with recent legislation in Scotland, updating terminology and adding some new positions, we are assuring the public that, in cases where a position involves a particular level of trust, the employer or authorised body has the right to ask about spent convictions. Previous convictions can then be checked through Disclosure Scotland.

I move,

That the Justice 1 Committee, in consideration of the draft Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2003, recommends that the Order be approved.

The order seems altogether admirable and sensible. At a job interview, a convicted person obviously does not have to reveal convictions after the relevant period of time has elapsed. However, there are exceptions, which involve working with children and vulnerable adults and the administration of justice and national security, for example. Will all crimes of violence against women and children fit into that category? For example, if a man applied to be a janitor and he had been convicted of rape or attempted rape, would the order cover his circumstances in relation to his rehabilitation? Presumably, you would want the public to be protected.

Anyone who works with children would have to reveal such a sentence. There is also an issue about the length of sentences for certain categories. Any conviction that leads to a sentence of more than 30 months is never spent.

I am sorry, minister. A bit of etiquette was abused just now, and I am not prepared to have that. A member of the press came in and tapped a member of the committee on the shoulder while you were speaking. I am simply not having that. We are dealing with it.

Will the minister tell us in a letter—after due consideration with his civil servants—what categories of offences will be considered as hazardous to children and which social services organisations will have to be informed before an applicant with convictions for such offences is taken on, even if he has been rehabilitated?

All such offences against children come into that category, but I am more than happy to provide that assurance in writing.

I would like that information for clarity, as it would also be helpful to know whether severe assaults on women are included, which is perhaps not the case at present.

I believe that the order covers that, but we will clarify the matter.

I seek clarification on one point and wish to highlight a further issue. On rehabilitation following a period of no further convictions, the first paragraph of our note reads:

"The period varies from six to ten months".

I think that it should read "six to 10 years". Is that right?

It should say "six months to 10 years". Could you repeat what the committee's note says?

It is our internal note. It says:

"The period varies from six to ten months".

That is clarified now: it was a typographical error.

As an ex-schoolteacher, I point out—I am conscious that this is to go out as a public document—that the bottom two lines of the first page of the Executive note are repeated at the top of the second page. Perhaps that could be corrected.

Our version of the document appears to be slightly different. I am not sure what has happened.

That is all right. I was merely wanting to ensure that a document with a mistake was not put out.

Absolutely. We will double-check that to ensure that what goes into the public domain does not include that error.

Thank you.

I seek clarification about the criminal offences involved. Is any criminal offence covered? Would people still have to declare a road traffic offence or anything else that would not particularly impinge on whether they could deal with children and young people?

In relation to children, any offence would be covered.

Any offence of whatever nature? Even a road traffic offence?

Yes.

Is that for all cases? There are exceptions applying to various professions and occupations. Is every criminal offence covered?

Not if the person concerned was going to work in financial services, for example. If they were going to work with children, however, any offence would be taken into account.

I do not quite follow. Let us take someone who is working in one of the excepted professions—a chartered psychologist, for example. For them, offences are not spent. Is that correct?

Yes.

If that chartered psychologist had committed a road traffic offence, for which a criminal sentence had been imposed, that would still have to be declared.

I believe so. For absolute clarity, however, we will confirm that for the committee later.

One can see the connection with what the person may have done—the breach of trust that may have taken place—and the work that they then do. If the offence apparently has no connection whatever with what the person does later, I wonder whether that goes too far towards infringing their rights. It could be argued that they have spent their time and should be starting with a clean sheet. I simply seek clarity on that.

One problem in that respect may be posed by the 1974 act itself, rather than by the exceptions order. We will have to go back to the primary source.

We would be grateful for that clarification.

Motion agreed to.

That the Justice 1 Committee, in consideration of the draft Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2003, recommends that the Order be approved.

Thank you, minister. We will be back next week to hear your explanations and to receive a paper from you. Unfortunately, the committee meets again.

I take it that you will not have any more parties before that.

No, there will be no more parties. I assure you that we had a very light lunch today.