East Devon Tories Call for Mandatory DBS Checks for Councillors: Why it’s probably illegal

Last month, John Humphreys, former Exmouth mayor and East Devon District councillor was jailed for serious sex offences between 1990 and 2001. In response, Tory councillors in the area have been calling for DBS Checks to be mandated for anyone wishing to become a councillor.  

DBS Checks are an essential tool for safeguarding vulnerable groups. Basic DBS Checks will show unspent convictions and conditional cautions. Standard DBS Checks also include warnings, reprimands and spent convictions. Enhanced DBS Checks include all the above, a search of relevant barred lists and any police notes.  

The information found is compiled on DBS Certificates which employers can view to be able to make safe recruitment decisions. Basic DBS Checks can be carried out on anyone, but Standard and Enhanced DBS Checks are reserved for specific roles. Generally, for work that involves dealing with children or vulnerable adults.  

The Conservative Party in East Devon now want all council candidates to have these checks carried out as standard procedure.

DBS Checks for Councillors  

Although DBS Checks are not currently mandatory for councillors, there are certain rules in place. Local Government Act 1972 states that people convicted of a crime who receive a prison sentence (or a suspended sentence) of three months or more in the five years before election day are unable to stand in the election.    

On top of this, all local election candidates must sign a declaration stating they are not disqualified from standing for election by virtue of the provisions of Section 80 of the Local Government Act 1972.  Relevant disqualifications are:  

• You have been sentenced to a term of imprisonment of three months of more (including a suspended sentence), without the option of a fine, during the five years before polling day.  

•  You have been disqualified under the Representation of the People Act 1983 (which covers corrupt or illegal electoral practices and offences relating to donations) or under the Audit Commission Act 1998.  

Many councils also ask elected representatives to complete a Basic DBS Check with results then published online. While this is not mandatory, in most cases councillors are more than happy to oblige. For example, all 60 of Devon County Council ‘s elected representatives' completed Basic DBS Checks in 2019, with the results being published on the council's website.  
 

Why Mandating DBS Checks Could be Illegal  

Under the Rehabilitation of Offenders Act 1974 (ROA), a person with a criminal record is not required to disclose any spent convictions unless the position they are applying for, or are currently undertaking, is listed as an exception under the Act.  

Making DBS Checks mandatory for councillors could potentially force someone to disclose information that they are not obligated to reveal and that the council have no right to know about. The only time a DBS Check could be considered mandatory is if the candidate was going to be performing ‘regulated activity’ as part of their role.  
 

Playing Politics  
 

Some have accused East Devon’s Tory councillors of using a call for mandatory DBS checks to achieve ‘political spin’. In this case, it certainly seems to be some kind of political tactic, considering the convicted did have an Enhanced DBS Check carried out.  

Mr Humpherys was a governor for Marpool Primary School in Exmouth. During his role there he was subject to an Enhanced DBS Check. As his offences were unknown at the time, having a DBS Check carried out would have had no impact on his ability to become a councillor. DBS Checks can only reveal information on an individual when it is already known by the police. 

Employment lawyer Terry Falcao, a partner at South West legal firm Stephens Scown, said that he didn't know how the council could justify the mandate of DBS Checks unless they had regular access to vulnerable demographics or children. Commenting, he stated:  
 

“If a councillor did not routinely have such access it is difficult to see how such an obligation can be justified other than to restrict the pool of whom might consider a political career or involvement in politics or alternatively for some political spin”  

As a background screening company, we’re the first to advocate for the use of DBS Checks. They are a vital tool for safeguarding the public. But they should only be used proportionately and appropriately.  

For more information about how Personnel Checks background screening solutions can aid your organisation, get in touch! You can give us a call on 01254 355688 or drop us an email at letstalk@personnelchecks.co.uk