Two documents were published on Friday 11 February which will have a significant impact on the chances of ex-offenders finding employment.

The Protection of Freedoms Bill includes proposals to reform vetting and barring (based on the Vetting and Barring Scheme Remodelling Review), while phase one of the review of the criminal records regime in England and Wales, A Common Sense Approach, includes proposals to reform the Criminal Records Bureau (CRB). (Some of these proposals are contained in the Protection of Freedoms Bill. The second part of the criminal records review will be published later in the year.)

A previous document, the Breaking the Cycle Green Paper, was published in December 2010 in which the Government committed itself to carrying out a consultation on reform of the Rehabilitation of Offenders Act (1974) (ROA).

All these documents should be considered together as they deal with tackling barriers ex-offenders face when they seek employment.

Nacro's Change the Record campaign welcomes many of these initiatives, but there are also questions and concerns about some of the changes, such as the proposal to introduce basic disclosures. These are discussed below.

The key proposed changes

Proposed reforms where further action is required

Scaling back checks

Nacro welcomes the proposals in the Protection of Freedoms Bill to reform vetting and barring. These include a commitment that ‘regulated activity’ – the posts subject to vetting and barring – will be scaled down. The Bill includes a recommendation made in A Common Sense Approach that children aged under 16 should not be checked and that regulated activity roles will cover only those people who may have regular or close contact with vulnerable groups

Although the Bill claims that the number of roles requiring vetting and barring will be greatly reduced, it is not easy to see how the changes proposed will achieve this. In addition, it is difficult to assess the combined impact of the changes on the various checks. For example, enhanced and standard checks could be reduced (although this is not certain) but basic checks may be introduced which would increase the total number of checks.

Action still required: Clear guidance must be given outlining the reduction in the number of posts subject to vetting and barring and CRB checks and how this will be achieved.

Lack of detail at this stage is to be expected. Legislation always requires guidance and it is often at this level that important changes in practice can be made to benefit the people the legislation affects; in this case, children and vulnerable people, employers and ex-offenders. Morever, the changes will have to knit together the proposals in A Common Sense Approach and the results of the consultation on the Rehabilitation of Offenders Act (1974).

Expanding checks

Nacro has real concerns about the proposals in A Common Sense Approach to introduce basic disclosures. These would be available for all jobs and would disclose unspent offences. Nacro believes that systems for checking job applicants should not be encouraged to grow. An inevitable, if unintended, consequence of the basic check would be to create a system of universal criminal records checks and the impact would be to increase the risk of excluding people with a record from all jobs.

Currently employers routinely take on applicants without access to criminal record checks and no evidence has emerged that this has damaged them in any way. Therefore it seems that the additional checks are not only undesirable but they will have no benefits to employers and will be another unnecessary barrier to ex-offenders seeking work.

If this proposal is accepted, it will mean that the Rehabilitation of Offenders Act (ROA) will be even more important, as many more people will be directly affected by whether or not their convictions are spent. The introduction of basic disclosures would require reform of the ROA to be as radical as is possible to offset the additional barrier that basic disclosures would place in the way of getting ex-offenders into work.

Action still required: Nacro is opposed the introduction of basic checks. If they are introduced, very careful consideration needs to be given so that the basic check does not become a further barrier to ex-offenders getting work.

Old and minor convictions

A Common Sense Approach recommends the removal of old and minor criminal offences from CRBs. However, there is nothing about this in the Protection of Freedoms Bill and there is no detail about how this is to be achieved in A Common Sense Approach, despite this being a central concern of Nacro’s and others who contributed to it. This is a matter of concern to Nacro.

Action still required: A clear process for removing old and minor convictions from CRBs needs to be established.

Merging the Independent Safeguarding Authority and the Criminal Records Bureau

Nacro supports this move. It makes financial and administrative sense, and should also iron out lapses in communication between the two bodies. For example, Nacro’s helpline recently had a call from someone whose name had been removed from the vetting and barring list but she continued to appear as a barred person on her CRB check.

Action still required: The new merged CRB needs to be developed in such a way that it builds on the strengths of the ISA and the old CRB. Employers, disclosure subjects, Nacro and other organisations working with ex-offenders have a wealth of experience of the operation of these two bodies which should be drawn on.

Appeals to the Criminal Records Bureau

A Common Sense Approach proposes an appeal system where there is a dispute over the accuracy of information. The proposal to issue the certificate only to the applicant will allow representations to be made before the information is presented to a third party. It also calls for a representation process to correct inaccurate information.

Under the recommendation, the CRB has the power to alter the disclosure on the criminal record certificate where it is found to be inaccurate. It calls on the CRB to develop an open and transparent representation process for individuals to challenge inaccurate or inappropriate disclosure and that the disclosure of police information is overseen by an independent expert.

The report also calls for the Government to apply strict compliance measures on employers to prevent unlawful checks. Nacro would like to see strong measures taken against employers who carry out unlawful CRB checks.

Action still required: Nacro firmly believes that employers need support to deal with the complex arrangements for checking applicants, in terms of which posts can be checked, how the process works and guidance on how to respond to disclosures containing details of past convictions. At the same time, we feel that employers should be accountable for their own practice and that strong sanctions should be available if they use sensitive and confidential information about individuals unlawfully.

Other proposed reforms

Alteration of test for barring decisions

There’s good news here. The proposal in the Bill is that the Independent Safeguarding Authority will now have to seek representation from offenders who commit ‘autobar with representations’ offences (ie ones which automatically bar people from applying for jobs with children or vulnerable adults) before making provisional barring decisions.

Police decision-making on enhanced checks

This is an important and highly sensitive issue. It focuses on the disclosure of allegations made to the police that do not normally lead to a caution or conviction.

We welcome measures to improve the quality of police decision-making when disclosing ‘other relevant information’ on enhanced disclosures.

Nacro also supports the proposal in A Common Sense Approach to put a timescale of 60 days for the police to make decisions on whether there is relevant information that should be disclosed on an enhanced disclosure.

In addition Sunita Mason’s report, A Common Sense Approach, makes three important recommendations:

• That the test used by chief officers to make disclosure decisions is to be amended from ‘might be relevant’ to ‘reasonably believes to be relevant.’
• That a code of practice for police is issued to help decide what information is disclosed.
• That a common template is issued to ensure a consistent level of information is disclosed with clearly set out reasons for the decision.

Abolition of ‘controlled activity’

This was widely expected. ‘Controlled activity’ was a category to complement regulated activity and applied to posts in which people had contact with children and vulnerable adults, but did not work directly with them. An example would be a car-park attendant in a hospital. Nacro welcomes its demise as it added further ambiguity to an unclear system.

Ownership and updating of CRB certificates

Criminal Record Disclosure certificates will now be issued to individuals only, who will then be responsible for forwarding them to employers, rather than to individuals and employers simultaneously. Nacro welcomes this as it gives the individual time to reflect and prepare for interview and, importantly, to query any inaccuracies with the CRB. In principle, too, it is right that they should receive the certificate as it contains such personal and sensitive information.

CRB checks will not have to be renewed at every application. Instead a computerised system will let an employer know if there have been any changes to the checks since the last certificate was issued. If there have been any changes, the employer can ask the employee to obtain a new certificate. This is a sensible reform which will reduce bureaucracy and costs without putting children or vulnerable adults at risk.

Incorporation of conditional cautions into criminal conviction certificates

Cautions (or simple cautions, as they are now known) are ‘spent’ instantly - in other words they wouldn't appear on basic checks (although they do appear on standard and enhanced disclosures). Conditional cautions, however, take three months to become spent so will appear as unspent convictions within that period.

Next steps

There are a number of issues in the Bill that will be clarified when guidance is issued. Nacro will be monitoring these points and contributing to improving guidance to help remove barriers for ex-offenders seeking work.

We also welcome the Government’s announcement that the public will be able to help write the final version of the law by contributing to a new ‘public reading stage’. We are encouraging people to go to the public reading stage website to contribute their views.

In addition, the consultation on the Rehabilitation of Offenders Act will be of great importance, especially if, as seems likely, the Government accepts proposals for introducing a basic check.