Protection of Freedoms Bill

My Lords, I am grateful to my noble friend Lord Goodhart for providing the context and thinking behind his amendments. First, I will focus on Amendment 84, which would require that Section 56 of the Data Protection Act 1998 be commenced at most six months after this Bill becomes law, rather than, as now, no earlier than the commencement of various sections of the Police Act 1997. As my noble friend has indicated, Section 56 of the Data Protection Act makes illegal what is referred to as ““enforced subject access””; that is, when someone, in connection with employment or the provision of goods and services, requires a person or a third party to provide them with information about that person’s convictions, which they will have obtained through a subject access request. This means that if the subject of the request has convictions, they are able to obtain all the information that is held by the police themselves, thus making them the subject of the request. This would be made most likely to the police under Section 7 of the Data Protection Act. This loophole allows employers to circumvent the safeguards in the Rehabilitation of Offenders Act and in the criminal records regime to find out details of somebody’s spent convictions. I agree with my noble friend that enforced subject access is wrong because it allows employers potentially to coerce employees and hinders the rehabilitation of offenders. Section 75 of the Data Protection Act provides that Section 56 of that Act is commenced only once certain sections of the Police Act, including Section 112, are in force. Section 112 of the Police Act makes provision for ““basic”” criminal record checks which provide details of any unspent convictions. If the section in the Data Protection Act, if it was commenced, would make it illegal for an employer to make an enforced subject access request, Section 112 of the Police Act makes provision for a basic criminal record check. An employer has another legal and legitimate route to find out information about unspent convictions only. He would be provided with information of unspent convictions and not full access to information which may not be relevant. While Section 112 is in force in Scotland and Northern Ireland, it has not been commenced in England and Wales. The issue is when we introduce basic checks. Noble Lords may have seen the Written Ministerial Statement published this morning in relation to the Government’s response to Mrs Sunita Mason’s review of the criminal records regime. Mrs Mason recommended the introduction of basic checks by the Criminal Records Bureau in England and Wales. As our response to her makes clear, we accept the principle that basic checks should be introduced in England and Wales, but we do not plan to do so through the Criminal Records Bureau at the present time. We are, however, minded to introduce basic certificates in step with the establishment of the Disclosure and Barring Service, but further work is needed on the implications of doing so. Meanwhile, some individuals already approach Disclosure Scotland for basic certificates and we are discussing the provision of a full service for all those working in England and Wales through Disclosure Scotland while the long-term position is considered. For these reasons it would not be feasible to introduce basic checks through the Criminal Records Bureau to the timetable set out in Amendment 84 in the name of my noble friend. That said, the question of enforced subject access and the commencement of Section 56 is one to which we will return in the context of our discussions with Disclosure Scotland flowing from Sunita Mason’s review. I hope that what I have said provides some reassurance to my noble friend and encourages him not to press his Amendment 84. As my noble friend has explained, Amendment 71A would amend Section 9 of the Rehabilitation of Offenders Act. Section 9 makes it an offence for a public official to disclose information on spent convictions other than in the course of their public duties. They may do so only to the rehabilitated person or someone whom they reasonably believe to be the rehabilitated person, or to a third party to whom that person expressly requests them to make that disclosure. The noble Lord’s amendments would remove the capacity to disclose the information to a third party. From his explanation today, I understand that the intention behind the amendment is further to safeguard against enforced subject access. However, there are likely to be situations where a person may, quite legitimately and consensually, ask that details of their spent convictions be passed to a third party; for example, a minor requesting disclosure to their parent or guardian or an elderly person requesting disclosure to their carer. We therefore believe that the better approach is simply to commence Section 56 of the Data Protection Act at the appropriate time. On the basis of that information, I hope that my noble friend has the assurance he is looking for and that he will feel able to withdraw the amendment.