Clause
11
Power
to take fingerprints and samples:
Scotland
Question
proposed, That the clause stand part of the
Bill.
Mr.
Grieve:
I just want to take the opportunity to tease from
the Minister the different regime that will apply in Scotland. As I
understand it, while it would be possible for a retained DNA sample
taken in such circumstances to be used for the purposes of terrorist
investigation or in the interests of national security, a different
limit will apply there from that which applies in England, Wales and
Northern Ireland. I should be grateful if the Minister could confirm
that. I simply make the point that the fact that the Minister has had
to accept a different regime in Scotland highlights differences, which
it is not suggested are about to bring the world to an end,
notwithstanding the fact that the Minister has to accept different
Scottish legal principles.
Mr.
McNulty:
In filling the omission in relation to the
control order regime, the thrust of clause 11 is to get matters on a
par with the jurisdiction within which they sit. An important point has
been overlooked, certainly in the amendments to clause 10, some of
which were also relevant to clause 12, but not to clause 11.
Samples secured in Scotland under the Terrorism Act 2000 are not
destroyed, as someone suggested earlier—in the normal context,
under the Criminal Procedure (Scotland) Act 1995, they are. We simply
seek to reflect that dimension in terms of Scottish jurisprudence,
which, as everyone knows, long outdates any notion of devolution. The
system has been significantly different for a considerable period of
time, and it is right and proper that we reflect
that.
As the Committee
will know, terrorism and security matters are not devolved. Routine
criminal law has clearly been long devolved in Scotland and we simply
seek to reflect that position. That is not to say that the Scottish
Executive cannot see the potential merits of the wider powers set out
in clauses 10 and 12 for England, Wales and Northern Ireland, but it is
quite properly for them to examine whether and how best to incorporate
the devolved elements of those provisions into existing Scottish
law.
The Committee
might know that the Scottish Executive has undertaken a review of other
aspects of DNA and fingerprint powers. Scottish police powers on the
use, storage and retention of fingerprints and non-intimate samples for
individuals subject to control orders could be brought into line with
those for the rest of the UK at the same time as any other legislative
changes resulting from that review. I cannot remember whether it is
confirmed, but some time in the immediate future I shall meet the
Scottish Justice Minister to discuss that and a range of other matters.
In seeking to fill the omission in clauses 10 and 12, clause 11
perfectly properly reflects the jurisprudence that prevails in
Scotland. In that context, I commend it to the Committee.
Question put and agreed
to.
Clause 11
ordered to stand part of the
Bill.
Clauses
12 and 13 ordered to stand part of the
Bill.
Clause
14
Material
subject to the Police and Criminal Evidence Act
1984
Mr.
Grieve:
I beg to move amendment No. 84,
page 10, line 8, leave out ‘or
samples’.
The
Chairman:
With this it will be convenient to discuss
amendment No. 86, in clause 15, page 11, line 7, leave out
‘or
samples’.
Mr.
Grieve:
These amendments were also tabled by my hon.
Friend the Member for Newark. They are simply probing amendments to
gain an understanding of what the word “samples”
encompassed in the two clauses. I think that I know the answer, but if
the Minister would like to explain the matter to the Committee, I am
sure that my hon. Friend would be pleased to hear his
response.
Mr.
McNulty:
Certainly, in the original amendment
paper—I am sure that it has been corrected—when amendment
No.86 was first tabled, it referred to clause 14 rather than 15. I am
not too
sure—
The
Chairman:
The two amendments refer to the identical phrase
in the two
clauses.
Mr.
McNulty:
Clause 14 makes amendments to the Police and
Criminal Evidence Act 1984 and Clause 15 makes amendments to the Police
and Criminal Evidence (Northern Ireland) Order 1989 to allow samples
obtained under PACE to be checked against samples that
are
“held by or on behalf
of the Security Service or the Secret Intelligence
Service.”.
In this case,
“samples” means DNA samples derived, for example, from
saliva, blood or swab. Most of what I read out as referring to samples
and swabs came from the definition in the explanatory
memorandum.
Mr.
Grieve:
Does that include intimate samples? I rather
assumed that it did, but the Minister can doubtless put me right on
that.
Mr.
McNulty:
I certainly assume that it does, unless someone
tells me otherwise, which they may during the course of my
deliberations. However, that was certainly my understanding. Having
said that, I have discovered in the past that inspiration does come if
one stands around for long enough.
By amending PACE and its
Northern Ireland equivalent, these clauses will allow such samples to
be checked against samples that
are
“held by or on behalf
of the Security Service or the Secret Intelligence
Service.”.
To facilitate
this cross-checking, the clauses change the purposes for which PACE
samples can be used, adding simply “national
security”.
For example,
if the police take a sample from an individual as part of an ordinary
criminal investigation, that sample will be retained on the national
DNA database, as we have just been discussing, where the uses to which
it can be put are regulated by PACE. If a sample is subsequently taken
covertly by the security services during a terrorism investigation, but
they are unable to identify to whom the sample belongs, the current law
would not permit the security services to check the national DNA
database. Whatever one’s view of the DNA database, with regard
to retention of data
and all the other issues that we have discussed, clearly that is a
position that should not prevail. The clauses
will rectify that situation and allow the security services to
undertake a cross-check to obtain the necessary personal information
that will enable them to continue their investigations. In terrorist
investigations, where it is vital to construct the network to those
involved with terrorist organisations, the ability to make such a
cross-check routinely will be invaluable.
The two amendments would amend
the two clauses by removing reference to “samples” in
PACE and its Northern Ireland equivalent. That would mean that there
will be no provision for checking of DNA samples obtained under PACE
against police records or databases, as is the case at present. It
would also mean that the checking of DNA samples obtained under PACE
against records held by the security agencies, which is the entire
purpose of the clauses, would not be provided for.
Clearly, it
would not be in the interests of effective investigations to remove
provision for the police to check DNA samples against their databases
or against the records held by the security services. That situation
would be particularly peculiar because the amendments would not remove
the provision for the police to cross-check fingerprints and footprints
against records held by the security agencies, but, because of the use
of the word “samples”, they would remove the ability of
the police to cross-check DNA
samples.
Mr.
Heath:
In a desperate attempt to stop the
Minister’s flow, I am intervening. Actually, I have a serious
question—well, I do not know if it is a serious question, but I
shall put it. Does the act of the police checking the evidence base
held by the security services against the police evidence database,
incorporate the evidence held by the security services into the body of
evidence that is subject to PACE? Does PACE apply to the evidence held
by the security
services?
Mr.
McNulty:
I do not think so because the security services
hold such evidence for entirely different reasons. PACE is very clearly
outlined in the regulatory framework within which an individual is
taken through the charge and subsequent process. It relates to the
level and quality of evidence in the evidential chain and other
elements. Unless somebody tells me otherwise, I struggle to see why
PACE should apply to that interchange in use from the security
services’ database, unless it is subsequently used in the courts
by the police. That would be unusual, but under such circumstances,
PACE would cover it. Perhaps the hon. and learned Member for
Beaconsfield has an
answer.
Mr.
Grieve:
A better point at which to debate this issue might
be when we come to material not subject to existing statutory
restrictions. The point raised by the hon. Member for Somerton and
Frome is whether material held by the security services may be adduced
in evidence in a criminal trial. That raises a host of interesting
issues, such as the possible disclosure of how such material was
obtained. We can deal with those issues in a moment, but I think that I
have understood his point, which is an important one. However, the
appropriate time at which to raise it is during our discussion of
clause 18.
Mr.
Heath:
I was just trying stop the Minister
reading.
Mr.
McNulty:
I am afraid that the hon. Gentleman will have to
do much more than that to stop me reading my notes. I think that I have
responded to his point, not least by saying that the utilisation of the
security services’ data in any public court would lend them to
coverage by the rules of evidence and PACE. That is why it is more
likely than not that such evidence would not be used, except in
exceptional cases and there have been such
cases.
Because I have
had inspiration, I can now confirm the point from the hon. and learned
Member for Beaconsfield that “sample” covers intimate and
non-intimate samples, as we had all assumed. However, unlike in our
previous discussions, the clause does nothing to add to the ability to
take samples. The measure is about sharing that data and information
and must, in the perfectly reasonable way that I put it, make sense to
everybody. Clearly, it will be greeted with acclamation and the
amendment will be
withdrawn.
Mr.
Grieve:
The amendment will indeed be withdrawn and we can
continue the debate under subsequent groups of amendments. I am
grateful to the Minister for answering my main question on the scope of
the word “sample”. I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Mr.
Grieve:
I beg to move amendment No. 62,
page 10, line 37, leave out paragraph
(a).
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 85,
page 10, line 37, leave out
‘national security’ and insert
‘preventing an offence
with a terrorist
connection’.
No.
63, in
clause 15, page 11, line 36, leave
out paragraph (a).
No.
87, in
clause 15, page 11, line 36, leave
out ‘national security’ and insert
‘preventing an offence with a
terrorist
connection’.
No.
64, in
clause 17, page 12, line 29, leave
out from beginning to
‘or’.
No.
65, in
clause 18, page 13, line 13, leave
out paragraph (a).
No.
88, in
clause 18, page 13, line 13, leave
out ‘national security’ and insert
‘preventing an offence with a
terrorist
connection’.
Mr.
Grieve:
We now come to the issue of national security,
which features in more than one of the subsequent clauses. As the
Minister is aware, I have sought to delete the words “national
security” from a number of places. I emphasise that this is a
probing amendment. It is, nevertheless, a rather important one for
reasons that I will explain
briefly.
The Bill is
about counter-terrorism, so it is ultimately about the prevention or
detection of crime, which, as the Minister will see when he looks at
clause 14, features clearly in the words in proposed new subsection
(1AB), which refers to
“purposes related to the
prevention or detection of crime, the investigation of an offence or
the conduct of a prosecution”.
That covers not just the investigation of
a crime after it has been committed, but the prevention of a crime
before it is
committed.
5
pm
I believe the
Minister will have little difficulty agreeing that, in the scope of
counter-terrorism work, it is not immediately obvious what difference
there might be between the interests of national security and the
prevention of crime, because one would have thought that the sort of
activity that takes place in the interests of national security is the
prevention of crime, quite apart from its detection afterwards. I do
not think that the Committee can simply gloss over the question of what
other than the prevention or detection of crime, or, for that matter,
the identification of a deceased person, is covered by the ambit of
national security.
The
term “national security” has a legal definition. It
covers the scope of the activities of the security services and the
Secret Intelligence Service. The Committee is entitled to ask the
question, because I suspect that activities that previously have been
conducted—I am mixing my metaphors—on the wrong side of
the blanket, if one talks about conception, are now being brought to
the right side of the blanket, and things that previously simply did
not have a statutory framework at all are now being given one. If they
are to be given a statutory framework, the Committee must ask exactly
what it will be.
For
example, is it being suggested that fingerprints, impressions of
footwear or samples, however they may be treated in the different
clauses—the amendments do not apply only to clause 14—can
be used to protect the economic interests of the United Kingdom? What
is the scope to which national security will apply for those purposes?
That is the nub of the question that I wanted to ask the
Minister.
Let us
consider some of the later clauses to which the amendments would make
deletions. Amendment No. 65 would amend clause 18, which deals with
material not subject to existing statutory restrictions. The clause
states:
“This
section applies to...DNA samples or profiles,
or...fingerprints, that are not held subject to existing statutory
restrictions.”
I must
assume that, in essence, that is security services and SIS material
collated by from time to time taking DNA samples from possible suspects
whom they have under surveillance in one form or
another.
The clause
goes on to
state:
“Material
to which this section applies that is held by a law enforcement
authority in England and Wales...may be retained by that authority
and used—
(a)
in the interests of national
security”.
That appears
simply to be putting on a statutory footing what I suspect has already
been happening, but perhaps the Minister would like to confirm that
that is indeed the case.
I will leave until
consideration of the detailed amendments to clause 18 itself the
discussion of the counter-relationship, which is using material from
the
SIS and the security services to bring a prosecution. We touched on
that, but the proper place to consider it will come
later. I hope that I
have made my main point clear to the Minister. The amendments centre
around the definition of national security. An understanding of that as
we start our consideration of the clauses would help the Committee to
understand what we are in fact making legal for the future that was not
previously covered by any legal framework
whatever.
Mr.
McNulty:
The provisions on the retention and use of
fingerprints and samples have three broad objectives: first, putting a
counter-terrorism DNA database on a firmer legal footing; secondly,
allowing fingerprints or samples taken under PACE or its Northern
Ireland equivalent to be used for national security, as the hon. and
learned Member for Beaconsfield implies; and thirdly, making it easier
to allow fingerprints or samples taken under the Terrorism Act 2000 to
be placed on the national DNA
database.
The
amendments concern the second of those objectives. As the hon. and
learned Gentleman said, they propose the removal of the provisions in
these clauses to add national security to the permitted uses of samples
obtained under PACE or PACE (Northern Ireland) and those covered by
clause 18. As he said, amendments Nos. 85, 87 and 88 propose an
alternative to including national security, which is to
include
“preventing an
offence with a terrorist
connection.”
As he
rightly said, “national security” is broadly defined in
section 1(2) of the Security Service Act 1989. When Lord Carlile was
before us last week, he
said:
“It is
very difficult to define exactly the concept of national security. The
security services certainly have a need to share information, as do
other control authorities, which is the generic term that I use for the
police, the security services, Revenue and Customs and so on...I
believe that any information that is potentially useful in the
prevention and detection of terrorism should be shared by appropriate
bodies. If that requires placing it on a statutory footing, again, I
have no possible objection. I would support
it.”——[Official Report, Counter-Terrorism
Public Bill Committee, 24 April 2008; c. 118,
Q313.]
That is what the
reference to national security in these clauses does.
As the hon. and learned
Gentleman said, the definition of national security is clear in the
1989 Act. It
includes
“threats from
espionage, terrorism and sabotage, from the activities of agents of
foreign powers and from actions intended to overthrow or undermine
parliamentary democracy by political, industrial or violent
means.”
That is the broad
definition of national security. We want an interplay between
information, data, samples and so on held by the security services and
those held by the police, and this and subsequent clauses are the best
way of achieving that outcome. A more narrowly drawn definition, as
given in amendments Nos. 85, 87 and 88, does not capture the statutory
reasons that afford the security services the right to collect their
databases in the first place, which are widely drawn in that definition
of national
security.
Clearly,
not all the activities in that definition are included in the current
purposes for which samples obtained in criminal or counter-terrorism
investigations can be used. Section 64(1A) of PACE currently allows
DNA to be used for the prevention or detection of crime, the
investigation of an offence, the conduct of a prosecution or the
identification of dead people. The same is true of PACE (Northern
Ireland). Clauses 15, 17 and 18, which are the targets of the
amendments, insert national security into the uses to which samples
obtained under those Acts or clause 18 can be
put. The hon. and
learned Gentleman said that the references to national security would
be expunged entirely by the amendments, and that is why we must resist
them. For example, if the security services took a sample covertly
during a terrorism investigation but were unable to identify to whom it
belonged, the law as it currently stands, and would remain if the
amendments were accepted, would not permit them to check the national
DNA database unless they considered the investigation to be related to
one of the purposes for which PACE allows DNA to be used. Intuitively,
that cannot be right. The law must afford our “control
agencies”, to use Lord Carlile’s term, the ability to
talk and interact with each other about the data and information that
they hold. However, in some terrorist investigations, perhaps
undertaken at an early stage, no crime has been committed and no
specific crime is envisaged. Samples may be obtained covertly to gather
intelligence on a group of individuals about whom there are concerns
but who are yet to commit a criminal act. It may then be difficult to
say that the investigation relates to the prevention of crime when the
focus, for example, is more on establishing links between the persons.
The establishment of networks in counter-terrorism is hugely
important.
Clauses
14, 15 and 18 will rectify the situation by allowing the use of PACE
samples for national security purposes and allowing the security
services to undertake a cross-check to obtain the necessary personal
information, which will enable them to carry on their investigations. I
repeat that, in terrorist investigations, where it is vital to disrupt
the networks of those involved in terrorist organisations, the ability
to make that cross-check will be invaluable. If the police obtain a
sample covertly as part of a terrorism investigation, it is more of a
national security matter, as defined by the principal Act, than a
simple focus on a particular crime. The sample will be checked against
an ordinary PACE sample, with the same benefits that apply when the
security services cross-check samples with PACE. For those reasons, we
resist the amendment. The hon. and learned Gentleman quite properly did
not refer to amendments Nos. 85, 87 and 88, but we can return to them
if the Committee wishes. Again, for the reasons that I have mentioned,
it is appropriate for the Committee to resist the
amendment.
Mr.
Grieve:
I hope that I made it clear to the Minister that I
did not table the amendments for the purposes of dividing the
Committee. I wanted some clarity, which the Minister has most helpfully
provided, about what the provision means in practice. The explanatory
notes were not helpful, therefore it seemed to me that we ought to know
what we were doing. As for not touching on the other amendments, they
were added later. They did not add much to the issues that we had to
debate, although they tried to tease out the difference between
national security and preventing an
offence with a terrorist connection, which the Minister has properly
dealt with anyway. I am grateful to the Minister for providing that
explanation, and I beg to ask leave to withdraw the
amendment.
Amendment, by leave,
withdrawn.
Clause 14 ordered to stand
part of the Bill.
Clauses 15 to 17 ordered to
stand part of the Bill.
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