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A Member of the House has raised the following matter on a number of occasions. When an elderly member of his family died in suspicious circumstances, the police took the DNA of all members of the family. The hon. Gentleman tried for months—it may be years now—to get an answer from the relevant chief constable and to have his DNA removed. He came to me, as
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Chairman of the Select Committee on Home Affairs, and the Committee wrote to the Home Secretary to ask what was happening about the hon. Gentleman’s DNA. I am not talking about the hon. Member for Ashford (Damian Green), although he too has a legitimate case for asking for his DNA back.

Why should the DNA of a Member who was not involved in any criminal activity be retained? He was not even at the scene of a crime, but happened to be related to a person who died in suspicious circumstances—although I understand that they are no longer suspicious.

Paul Holmes (Chesterfield) (LD): Does the right hon. Gentleman share my concern about the example I gave in Committee? Two boys had their DNA taken because they built a tree house in a cherry tree—many people probably built tree houses when they were young. Earlier, the right hon. Gentleman asked whether children’s DNA would be removed. If those boys were 15 or 16 when their DNA was taken, would their DNA be removed when they were over 18 and adults?

Keith Vaz: I absolutely share the hon. Gentleman’s concern. A particular incident could lead to DNA being retained. The House knows very well the circumstances relating to the hon. Member for Ashford, and the Select Committee recently published a report about them, although it did not mention the hon. Gentleman’s DNA. However, the fact is that his DNA was taken and there would be no prospect of its being removed for six years under the Government’s proposals, unless we were to make an exception for Members of the House, and in the current climate we should never be in a position to make exceptions for hon. Members. But why retain that DNA?

We know that the DNA of a disproportionate number of black and Asian people is held on the database, because if a disproportionate number of black and Asian people are stopped and searched under stop-and-search legislation there will be more DNA from people from the black and Asian community. Their DNA, too, is retained on the database. Why do the Government say that their DNA should be retained for six years or even longer because they were stopped under stop-and-search powers? There is a fundamental flaw in the Government’s argument: either it is okay for everybody or it is okay only for people who have committed criminal offences.

The hon. Member for Eastleigh did not deal with the possibility of loss of data, although I am sure he would have done so if he had had the time he sought under the programme motion. Although the situation is better, unfortunately the Government were afflicted by loss of data for a period last year. I do not just blame the present Government—any Government who sought to retain so much data would be affected. The more data the Government possess, the greater the likelihood that the data will be lost, so why hold information if nothing is being done with it?

Ministers must address those issues if we are being serious about the subject. It is not that those who say that a limit is needed are against catching criminals. Of course we want to catch criminals, and we want to use everything in our power—every piece of new technology—to achieve that.

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The professor of genetics who invented the way in which DNA is extracted and retained is Alec Jeffreys of the University of Leicester—one of our most eminent citizens, recently given the freedom of the city of Leicester—and he is on record as saying that he does not understand why the Government have made these proposals. He has talked about other ways in which such things can be used to aid the police and other authorities, without the retention. If our arguments are dismissed because we are not experts, I hope that the Government will listen to the expertise of none other than Sir Alec Jeffreys, who says that the Government are wrong on the issue. I know how fond Governments are of relying on experts, so the Government should take it from Alec Jeffreys, if not from us, that they need to think again.

As the Bill is going through Parliament, the view is, “Let’s just stick it in the Bill, because we don’t know when the next one is coming out.” We have had 66 such Bills, as the hon. Member for Eastleigh said—quite a lot of Bills—and we have had almost as many immigration Bills. We need to think carefully before we adopt something that is a knee-jerk reaction, and we should not have a knee-jerk reaction, because we have known about this for seven months, so there is every reason for people to have thought about it very carefully. I hope that Ministers will reflect on the proposal before they push it through the House. I have every sympathy for the Liberal Democrat suggestion, and I hope that the Minister can reassure us that sufficient safeguards are in place.

One of the best safeguards is that, when people write in, they receive replies. In the case of the hon. Gentleman whom I mentioned, he has not had the decency of a reply from the chief constable. At the very least, there should be a robust process of challenging. It should not be exceptional; there should be a reasonable way in which people can challenge the retention. I wrote about my constituent, and I received a very flimsy reply from the custody sergeant. I expect more and better from a Government who are keen to ensure that our liberties are protected.

James Brokenshire (Hornchurch) (Con): In Committee, I said that the Government’s proposal to deal with the retention of DNA data under an order-making power was utterly unacceptable and that we would oppose it vigorously. The Government have not changed their standpoint, and neither have we. The irony was that the Committee debate was held in a vacuum: we had absolutely no idea what the Government would propose. We were simply asked to provide a blank cheque. Now that we have some more details, we do not have the time to debate them sufficiently. Therefore, it is ironic that the most scrutiny allowed for any proposed order would last an hour and a half in Committee, although these very sensitive and controversial issues need to considered carefully.

Despite the Government’s promises of consultation outside the House—obviously, we hear what they say—we must wonder why the Government are seemingly prepared to debate this highly sensitive issue anywhere other than the House. The Constitution Committee of the other place recommended in its recent report, “Surveillance: Citizens and the State” that

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We agree. The use, retention and destruction of DNA records and the oversight that sits behind it require detailed primary legislation in their own right, with full and detailed debate and examination in Parliament.

There is little doubt about the importance of DNA as an evidential tool in prosecuting criminals and bringing them to justice. DNA can form an important part of the evidential case to prove guilt and ensure that serious criminals are brought to justice. The fight against crime—in particular, organised crime and terrorism—depends on the use of modern scientific techniques of investigation and identification. However, as the European Court of Human Rights noted in the case of S and Marper, basic freedoms

That frames this debate. The Government were well and truly on the wrong side of the line, and we would argue that they are still on the wrong side of the line.

5 pm

This country claims a pioneering role in the development of DNA technology, and consequently bears a special responsibility in striking the right balance between public protection and the protection of personal liberties and freedoms from intrusion by the state. At the heart of that—and, I believe, the basic starting point when considering what is appropriate in terms of the retention of DNA data—is the premise that a person is innocent until proven guilty. The indefinite retention on the national DNA database of the DNA of people who have never been changed with any crime, or who have been acquitted by a court, is unacceptable in a society founded on that principle. With regard to the national DNA database as currently constituted, that presumption is reversed: a person is always regarded as potentially guilty unless shown to be innocent. Everyone on the database is regarded as a potential suspect.

Until recently, the Government took the blanket, indiscriminate approach of simply growing the database, viewing that as a good in itself—and the number of profiles on the DNA database has certainly grown, from 2.1 million in 2003 to 5.6 million by the end of March this year. The full impact of that growth becomes clear only when we break the number down by the countries of the United Kingdom. We are talking about some 4 per cent. of the population of Northern Ireland, nearly 5 per cent. of the population in Scotland, and nearly 10 per cent. of the population of England and Wales. Under the Police and Criminal Evidence Act 1984 as amended by the Criminal Justice and Police Act 2001, fingerprints and samples, including DNA samples, can be taken from anyone arrested for a recordable offence and detained in a police station. However, the Home Office has confirmed that more than 1 million people on the database have never been convicted, cautioned, formally warned or reprimanded, as recorded by the police national computer. GeneWatch UK has calculated that there are records of more than 100,000 innocent children on the database. The database contains the records of about 40 per cent. of black men in the UK, as compared to 30 per cent. of Asian men and just 9 per cent. of white men.

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Despite the huge growth in profiles, the number of detected crimes in which a DNA match was available has actually fallen. Between 2002-03 and 2007-08, the number of detections fell from 21,098 to 17,614. The total number of detected crimes in which a DNA match was available or played a part, and the percentage of crimes detected in which a DNA match was available, as opposed to crimes where potential DNA material was collected, have remained static, despite the huge increase in the number of profiles. Simply growing the database has not resulted in a growth in detections. We therefore welcome the Government’s acceptance that the status quo is unsustainable. The problem is that it is simply unsupportable to think that such an important issue can be remedied by ministerial edict.

The Minister will no doubt say that the Government cannot act quickly enough to respond to the judgment of S and Marper, and that they need to go through a public consultation before they can do anything, but I just do not buy that line of argument. If the order-making power was some sort of legislative shortcut pending subsequent primary legislation, it could have included a sunset clause, but the Government have chosen not to include one. The approach is made even more perverse when one considers that the Home Office’s consultation document on DNA retention, released just a few weeks ago, envisages that primary legislation will be required to take samples post-conviction, or from UK residents convicted of violent or sexual offences abroad who are returning to the UK. If primary legislation is required for that, surely it is right that basic protections regarding samples, profiles and the DNA database and its oversight should be embodied in statute.

There are points on which we do agree with the Government. There should be different treatment for the young, in terms of the retention of DNA profiles. The DNA profiles of under-10s should not be retained. DNA samples should be destroyed as soon as practicable once a profile has been taken. Where an adult has been convicted of a recordable offence, DNA should be retained indefinitely. Where consent has been volunteered for DNA profiles to be put on the database, that consent should be capable of being withdrawn. Accordingly, we trust that the Government will support our new clause 31.

We have long argued for the need to ensure that the police can retrospectively take samples for a longer period after conviction and from those convicted overseas, so we are glad that the Government have responded positively to that call. However, we differ on the retention of profiles on the DNA database of people arrested but never charged with an offence, or of those acquitted of any wrongdoing. The Government argue that in these circumstances it is appropriate to keep the profile—to treat someone as a future potential suspect in a criminal investigation, even though they are supposed to be innocent in the eyes of the law—for between six and 12 years, depending on the nature of the offence for which they were arrested.

The Government seek to argue this on the basis of the hazard rates and purported patterns of future reoffending, as set out in their consultation document, yet these models are based on individuals convicted of having committed a crime and an assumption that they are relevant to those arrested but never convicted. This fundamental assumption is not fully substantiated. All
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the Government say is that their assumption is partially supported by analysis from the Jill Dando Institute, but this analysis has not been published and my understanding is that it has yet to be peer reviewed.

We believe it is appropriate to introduce an approach on DNA retention similar to that introduced in Scotland, where the DNA profiles of those convicted of an offence would be retained only in circumstances where charges relating to a crime of violence or a sexual offence had been brought. In these circumstances DNA profiles could be retained for a maximum period of five years, subject to judicial oversight after an initial period of three years. That is where we differ from the Liberal Democrats’ analysis and their proposal. It is interesting to note that the Scottish DNA database has a higher success rate in matching profiles with crime scene samples than the national DNA database.

We recognise that there may be circumstances in which a serious risk of harm has been identified by the police and where the power to retain DNA information may be appropriate as a means of mitigating that risk, if a court considers that there is sufficient evidence. New clause 32 reflects this approach, and with your permission, Mr. Deputy Speaker, we shall test the opinion of the House on it.

Our amendments may not be perfect, but they demonstrate that it is possible to write these important protections into primary legislation. Government suggestions that that is too hard or inflexible miss the fundamental point that such protections need to be spelled out in this way precisely because it will be harder to change them in the future. That is why we believe these freedoms should be put on a firm statutory footing, and why the House should treat with the utmost suspicion the Government’s approach of keeping the issue out of the House and out of sight.

The Parliamentary Under-Secretary of State for the Home Department (Mr. Alan Campbell): I shall respond to the amendments and new clauses tabled by Opposition Members and speak to those tabled by the Government.

I begin by saying to my right hon. Friend the Member for Leicester, East (Keith Vaz) that, in line with commitments given by the Home Secretary in her speech in December, I am pleased to confirm that the DNA of all under-10-year-olds has been removed from the database. My right hon. Friend also asked about the security of data on the DNA database. There has not been a single instance of the loss or misuse of data retained on the DNA database. I hope I have reassured him on those points.

I shall respond to the points raised by Opposition Members in the substance of my remarks. I welcome the aim of new clauses 1, 2 and 3 because they acknowledge that it is important to ensure that the biometric data of those suspected of violent or sexual offences are subject to a different regime of retention and destruction from the biometric data of a person arrested but not convicted. We would, however, have great difficulty supporting the amendments. I shall deal with the technical problems with them and then put them in the context of the wider argument.

First, the amendments do not clearly define the status of a person who has been released without charge. They could apply to a person released without charge and on
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bail, or to a person released without charge and informed that no further action would be taken. I can only assume that the latter is the intention of the amendment. The definition of an offence

may be too vague. It may be more appropriate to list the actual offences involved and, therefore, clarify what offence is and what offence is not subject to a specific period of retention for DNA and fingerprints. It is neither correct nor appropriate to amend section 113 of the Police and Criminal Evidence Act 1984, as proposed, because the section allows equivalent legislative provision in part 5 of the Act to be applied to the armed forces, subject to modifications that are considered necessary to cater for the different circumstances in which the armed forces operate. Any amendments in respect of part 5 of the 1984 Act would be reflected in the statutory instrument that applied those provisions to the armed forces.

Those are technical points. I now turn to the more substantive point about the need to engage the public in any new framework that we propose for the retention of biometric data that are taken during a criminal investigation. I shall also reply to the accusation that we are responding simply to the judgment, because, in fact, we seek to go further than that.

I recognise that some people who are currently on the national DNA and fingerprint databases who have been arrested but not convicted may well ask why, in the light of the European Court of Human Rights judgment, their samples are not being destroyed. The judgment did not hold that any retention of samples of unconvicted people is unlawful per se; rather, it held that we cannot maintain a blanket scheme of retention that applies to all samples. Moreover, as Members will be aware, the existing law stands until such time as Parliament changes or amends it.

The contents of the Government’s enabling clause will allow for a retention and destruction framework to be put in place to ensure compliance with the European Court judgment within a reasonable time, and for such regulations to be subject to the consideration of both Houses.

Hon. Members who tabled new clauses 31 and 32 may have done so in the absence of sight of the Government’s proposals that were published on 7 May in the consultation paper entitled, “Keeping the right people on the DNA database”. It sets out very clearly our proposals to implement the judgment of the European Court in the case of S and Marper, but it also shows that in some areas we have gone further than the judgment requires. One such area is samples.

It is important to get on the record the fact that we have announced our intention to destroy all samples, whether they were taken from a person who was arrested and not convicted, or arrested and convicted, amounting to about 4.5 million samples. That is in direct response to the level of public concern about the retention of living samples by the criminal justice system. In addition, we have indicated that in future all samples must be destroyed as soon as possible and held only up to a maximum of six months for the purposes of ensuring that an acceptable profile is placed on the DNA database. The proposals that hon. Members have set out in new clause 32 do not make the important distinction between
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samples and profiles, and they fail to take into account a key area of public concern and an issue that was raised in the S and Marper judgment.

Dr. Evan Harris: Does the Minister accept that it would be far better to introduce primary legislation following the—albeit welcome—consultation that he just mentioned? The House would be able, by amendment rather than by resolution after a one-and-a-half hour debate, to give its view on the response to those discussions. That would be the most effective and mature way of developing legislation on these complex topics.

Mr. Campbell: We had that debate at length in Committee, and there are several points to make in response to the Opposition’s call for a primary legislation route. First, we have to meet the time scale of responding to S and Marper, and our legal advice is that we have a 12-month period, so there would be absolutely no opportunity to introduce any primary legislation in that time. I must also say to the hon. Gentleman that to believe that such a rule has been applied to date is to misunderstand the way in which the current framework has evolved. Such a proposal would set an important precedent, because DNA guidelines and their operation move over time. If he is saying that every time the DNA guidelines change, we must have primary legislation, he misunderstands the way in which the DNA issue moves—and moves very quickly.

Mr. Gordon Prentice (Pendle) (Lab): Has my Friend consulted the Information Commissioner? If so, what is his view?

Mr. Campbell: Of course we consult and take advice. At present, I am not in a position to tell my hon. Friend exactly what that advice is, but I am sure that I will be able to find it and provide it to him in the foreseeable future.

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