COMMISSIONERS MEETING 10 November 2016

Transcription

1 COMMISSIONERS MEETING 10 November 2016 Present: Chairman Item 1: DBS Professor Nicholas Hopkins Stephen Lewis Professor David Ormerod QC Nicholas Paines QC Chief Executive Jessica de Mounteney Jessica Uguccioni Justine Davidge Katie Jones Kat Shields Item 2: POD Jessica Uguccioni Karl Laird Alex Davidson Item 1: Approval of the Minutes of the Meeting on 18 October 2016 Minutes were approved. Item 2: Matters Arising No matters arising. Item 3: Disclosure and Barring Service Present with the Chair, Chief Executive and Commissioners were Jess de Mounteney, Jess Uguccioni, Justine Davidge, Katie Jones and Kat Shields. The SI issue DCO raised the difficulties we have faced with the Home Office officials responsible for the current filtering regime, especially more recent problems. At his meeting with Sarah Newton MP the officials were there and steered the discussion about the DBS project. The indication from that meeting, was that the Home Office would prefer us to draft an SI to accompany our report and our list. The Minister s view was that any recommendations would be more likely to lead to implementation if a draft SI was prepared. DCO expressed concern about committing to the preparation of an SI as any SI we could draft would not be an optimal solution to the problems with the current regime. There is a risk that a draft SI could be misunderstood, as being a complete solution to the problems faced. DCO proposed that we ask the Home Office to extend funding until February and no longer, and that during that time we perfect the list and produce an illustrative SI. We will also seek input from the Ministry of Justice (as they own the policy on Rehabilitation of Offenders). 1 Printed: 24/11/16 09:26

2 DB asked whether the possibility of a hearing in the CA in February, and a judgment around Easter, could risk inhibiting publication. JMD outlined what the litigation is centred around and said that it was not directly related to the technical fix we are proposing. It was agreed that publication should not be delayed pending the appeals due to be heard, however DB felt that the references in Chapter 5 with regard to cautions and the two convictions issues might need to be tweaked to ensure that they did not prejudice the issues being litigated. DB asked how an illustrative SI might be presented and how long its content might be. JdM explained that a description of what a draft SI might look like could form part of the report itself rather than being published as a model SI. Any draft SI would be likely to be short, but of course there may need to be two SIs depending on the view taken of how implementation should be achieved. It would need to refer to a schedule containing the revised list of non-filterable offences. NH asked whether producing a short illustrative SI would raise questions about the consistency of our presentation, given that the Charities report would have a draft SI as part of the recommendations. DCO indicated that the contrast between having a draft SI in the Charities report; compared to our watered-down approach in the DBS project (only referring to the possibility of an SI but not recommending it as such), would help highlight that we do not think an SI could provide the required solutions in the DBS project. Commissioners then discussed whether an illustrative SI should just be provided to the HO. DB was clear that we did not advise in secret. NP questioned how much assistance an illustrative SI would be to the HO in any event. JdM said an illustrative SI would offer more clarity than the current list, but it should ultimately be for the Home Office to make the key decisions on what to include. DCO said that, even with the extra funding, the crucial thing to focus on will be the compilation of the revised list of non-filterable offences. NH raised the possibility that the HO might be disappointed with the outcome of this approach. DCO agreed that this was possible, but that the HO should understand that we restricted by the parameters of the review as set by them. Commissioners agreed that in principle the idea of describing in the paper what a draft SI could look like, rather than producing an actual draft SI to be implemented seemed to be the best way forward. It was agreed that we should explain to officials our position on the SI, and see what they have to say. The sub-delegation point NP raised his concerns around this: is it a point about interpretation rather than vires? JdM said OPC has a particular view on s20(2) Interpretation Act, and that uncertainty around sub-delegation should not be perpetuated. NP said that our recommendation for a non-ambulatory list would resolve the problem for the future and suggested that we should recommend inclusion or non-inclusion of the post-2013 offences on their individual merits rather than forming a definite view on the issue of interpretation. 2 Printed: 24/11/16 09:26

3 NP asked specifically about post-2013 offences that would not be on the list if the legislation was read so as not to refer to ambulatory provisions. DCO said this is a problem (although JMD clarified that there are not yet many such offences), and a point which feeds into the argument for a wider review. NP then asked whether there was any case law on sub-delegation. JdM said not directly: the Willows case, on tax, takes OPC s view on the point but may be considered to be applicable only to tax. Other examples are narrow (e.g. about how a county or a public body is constituted). Each case is based on determining the intention of Parliament within the context of a particular set of facts. Foreign convictions DB said this was an issue that should be pushed harder in Chapter 5, as the law is so anomalous when its approach to domestic offenders is compared to those with foreign nationals. DCO mentioned the previous political pressure here in the wake of Alice Gross murder. DB asked whether we should in fact refer to a possible discretionary system where applications could be made to the police for convictions to be removed from central records, when rehabilitation of previous offenders could be proven through evidence of a clean lifestyle. SL drew a comparison with the current system in France. JMD said there were two different aspects to consider: whether an application could be made to expunge the record, at any point, if someone can show a clean lifestyle; and whether an application could be made for convictions/cautions not to be disclosed at the point of applying for a certificate. The latter may be simply concerned with errors of fact, or with wider issues of relevance. SL said that he considered the question of discretionary review not to be wholly out of scope. JMD explained that Northern Ireland currently has an independent review mechanism somewhere between these two types of review processes. This was introduced after a recent overhaul of the NI disclosure system. Questions of both factual error and of relevance can be reviewed and there is presumption that any conviction/caution acquired before the age of 18 should be subject to a review. JdM said that the Home Office is very resistant to a review system because of the potential numbers of people involved in England and Wales. DCO said that a review system for offenders could however gain traction after the Charlie Taylor review is published. The DBS team asked Commissioners whether our research on other jurisdictions should be included in an appendix to the report. There was enthusiasm for this, although DB stressed that content about Northern Ireland should also appear in the body of the report. 3 Printed: 24/11/16 09:26

4 Terms of Reference NP asked whether, given the changing nature of the project, we should agree new ToR with the Home Office. NH said that as these are not published online, changing the ToR may be seen as inappropriate. The change in ToR could however be discussed with the HO and then explained in the report, which could set out the initial ToR and detail how, as the work progressed, the direction of the project has shifted somewhat. DB asked for Commissioners to see a draft of such a paragraph via before it goes out. PNC codes NP asked whether the problems with the PNC codes would be exacerbated after an interim fix, and asked whether we should flag this in the report. JMD estimated that the number of offences which are non-filterable when committed to a child etc, but are not non-filterable otherwise, is in the tens. However most offences appear on the list in both a specific and a non-specific form so in practice it is less of a problem than it could be. JMD then mentioned LEDS, a system hoped to replace the PNC, which would be finished in 2020 at the earliest. It is unclear how LEDS will improve the current system however. NP pointed out that, in any event, new PNC codes do not apply to offences committed in the past. JMD agreed and stated that the PNC is incomplete anyway because of the issue with old microfiche records not being transferred onto the computer. DCO said that the inability of the PNC to reflect non-filterable offences accurately may be another reason for an discretionary review mechanism. DCO said that there was interest from MOJ officials in PNC reform. DB mentioned how anomalous it was to have offences abolished over 50 years ago on the list. DCO said he did propose a 50 year rule for old offences, but this was rejected by the Home Office. Other issues DCO proposed a stakeholder symposium, where Home Office officials (and perhaps the Minister) can hear from stakeholders directly about the current problems with the regime. NH suggested this should be invitation-only. DB said this would be a really valuable exercise. NH raised the issue (at paragraph 1.76 of the response memo) of offences which have become broader over time. This may lead to an individual being convicted of an offence today which captures a wider range of conduct than the conduct initially considered to be non-filterable. There is an argument to be made that no one has ever considered whether this newly included conduct should be included on the non-filterable list. JMD and DCO agree with this point and JMD will look for better examples to illustrate this. 4 Printed: 24/11/16 09:26

5 Item 4: Protection of Official Data Commissioners had before them the Protection of Official Data blackline copy and a response minute dated 8 November 2016, which replied to the following topics of discussion proposed by the Chairman: (1) The use of the term foreign power defined as in the report and the replacement of the term enemy (report to 2.114); (2) Whether the AG s consent to prosecution is judicially reviewable (3.116); (3) Whether the title of the proposed statute should be the Official Secrets Act, the Official Information Act, or whether we should say nothing on the subject (3.223); (4) Whether we should say that it is arguable that the criminal law should be expanded to include the unauthorised retention of personal data (4.86); (5) The new section dealing with Shayler (6.43 onwards); and (6) Whether members of the security and intelligence agencies can bring concerns to the attention of the Civil Service Commissioners. The use of the term foreign power Commissioners raised concern regarding the wide definition of foreign power. Concern was also raised regarding whether economic espionage ought to be encompassed within the scope of section 1(1)(c) of the Official Secrets Act The team agreed that the paragraphs identified will require redrafting. Commissioners also suggested that the team detail why each specific group ought to be included within the definition of foreign power. At this stage, it was agreed that correspondence regarding progress of the redrafting ought to be by . Whether the AG s consent to prosecution is judicially reviewable Commissioners suggested rephrasing the paragraph discussing whether the AG s consent to prosecution is judicially reviewable along the lines of stating that the courts, as far as we are aware, have never decided whether the AG s consent to prosecution is judicially reviewable. The proposed title of the legislation Regarding the proposed title of legislation, Commissioners suggested rephrasing the paragraph along the following lines: (7) The Commission are of the view that the title ought to be replaced; (8) Any new title would be a matter for Parliament; (9) We suggest that any new title should reflect that it is not simply secrets that the Official Secrets Act 1989 seeks to protect; and 5 Printed: 24/11/16 09:26

6 (10) Examples of title(s) that could replace the current title are X. Criminalisation of the unauthorised retention of personal data Commissioners discussed the criminalisation of the unauthorised retention of personal data. The Commissioners suggested adding the qualifications that an offence ought only to be committed where: (11) Information is received in the course of official activities; or (12) Information is received in any circumstance, however, there is a court order or requirement that such information is destroyed. Treatment of R v Shayler Commissioners were satisfied with the treatment of Shayler in Chapter 6 following revision of the chapter. Use of the Civil Service Commissioners Regarding whether members of the security and intelligence agencies can bring concerns to the attention of the Civil Service Commissioners, it was suggested that the paper ought to highlight that the Judicial Commissioner route would be the preferred avenue. Item 6: Any other business There was no any other business. 6 Printed: 24/11/16 09:26