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"The difficulty for the council here was that, as was submitted on behalf of the respondents, the case against these individuals was very thin on the facts. There is no reason why an ASBO should not be made against those against whom the evidence is
sufficient, which must be true in many cases. Moreover, there may be exceptional cases where it would be appropriate to grant an injunction. This is not such a case."
I highlight that only because the amendments put important mechanisms in place relating to the need for a review and for consultation and guidance. A range of measures might now be available to local authorities and the police in seeking to undermine gang-related violence and gang-related "nuisance"-I call it that for the purposes of the section 222 injunctions, but it has a much bigger impact on people's daily lives. There needs to be greater clarity on the use of these powers in respect of serious crime prevention orders and the range of other sanctions available, to ensure that we do not end up with an ever-widening toolkit, with potentially overlapping remits, and that it is clear which intervention is likely to be the most effective in dealing with a particular circumstance. Therefore, it is essential that we scrutinise closely the import of all the increased powers that various authorities will have and the impact that they will make.
Obviously, we welcome certain changes that have been made as these provisions have been refined-we discussed this in Committee. It came up late in the consideration of the Bill-certainly in this House-and I am pleased to note that certain points that we flagged up were picked up in the other place and that there has been some movement on them. I am thinking, for example, about restrictions such that these orders will last for two years-thus bringing them into line with certain other provisions-as opposed to making them indefinite, and the provision ensuring that reviews take place. Again, that reflects some of the antisocial behaviour order practices and procedures and the process of seeking to streamline those.
It would be helpful if the Minister clarified one outstanding issue: the potential application of the orders to the under-18s. The clear message that came out in this House and in the other place was that it was not intended that they should apply; the Government might come back and look at more orders dealing with the under-18s. The point at issue is that if the orders were applied to someone who was under- 18-this is my understanding, and I am sure that the Minister will correct me if I am in any way wrong-a breach of the injunction would continue to be dealt with by the High Court or a county court as a civil matter, despite the fact that the child could be under arrest and the penalty imposed for breaching the injunction could include imprisonment, rather than the youth court. That distinction needs to be reflected upon. I note the requirement for consultation with the Lord Chief Justice, and that point may well be reflected on in guidelines.
The provisions will be subject to formal review by the Secretary of State after three years. Will the Minister explain how he anticipates that being undertaken? Would it simply be done by the Secretary of State? Do Ministers anticipate the appointment of someone else to conduct that review on their behalf? There is a need for the continuing assessment of potential human rights issues and a need to deal with how that fits with the overall case law that applies in respect of similar orders, where the McCann standard of proof applies. We have raised that on many occasions in this House. These orders seek to differentiate themselves by applying the civil test-the balance of probabilities. How will all this fit together?
In conclusion, we welcome the changes that have been made to these provisions in the other place, but we will need to ensure that the powers are kept under scrutiny, that they will work as a matter of law and, most importantly, that they will have the desired effect of bringing relief to the communities that continue to suffer from gang-related violence and all the evils that many of these insidious gangs seek to perpetrate on the young people who live there-and, indeed, on the older people who live there too. Such behaviour has a serious impact on many people's quality of life and that is why it must remain a clear focus for all Governments in the future.
2.30 pm
Paul Holmes: Although we welcome amendments 30 to 39 as a partial step forward in the right direction, we need to remember the background. The courts rejected the experiment in Birmingham on the grounds that other measures, such as ASBOs, could be used instead, and that there was not enough evidence from police and councillors in Birmingham to justify the imposition of such injunctions.
Many people have said that, depending on how the injunctions are used, they could be like control orders, and we have seen the legal difficulties and controversy over control orders when applied to terrorist suspects. An injunction against a gang member to save them from themselves-to save them from harm-could require that they spend eight hours in one place, eight hours in another and eight hours in another. It could be a 24-hour control order, and as we know, the provision could last up to two years. This is a controversial and powerful measure. The courts rejected the Birmingham experiment, saying, "No, there is not the evidence and there are other measures that can be used." None the less, the Government felt that they should go ahead, and have made some compromises, as we see in amendments 30 to 39, which are welcome.
Another concern and point of debate that remains is the fact that we are not looking to impose an injunction against gang members in order to stop them carrying out criminal activity, which after much debate is the partial definition of a gang that has been arrived at. We are looking at imposing injunctions on gang members to save them from gang-related activity that might be aimed at them. It is quite a controversial initiative. We have legislation to protect people from themselves when they are judged not to have the mental capacity to do so or the ability to look after their own affairs properly. We are saying in this case that although someone has mental capacity we will none the less impose injunctions on them to stop them going into situations where they might be subject to gang violence, with all the spill-over and bad effects that that has on the rest of the community around them. We are considering quite controversial measures, hence the intense debate on the matter over the course of this year.
The fact that amendments 30 to 39 impose a two-year time limit and say that after three years there should be a review by the Secretary of State are welcome steps to meeting some of the concerns, but we still have to ask how that review will be carried out. Parliament will not automatically get the chance to debate the review. Baroness
Miller proposed a sunset clause so that the legislation would fall at some point-say at the end of three years-and said that if the Government of the day felt that the experiment had proved itself, they could reintroduce it. Parliament would then get its guaranteed chance to review the provision and how it had worked, to debate it and to discuss whether to continue or renew it in law. The amendments do not give us such an opportunity.
I am sure that the Minister will enlighten us on how the Secretary of State will carry out the review, but will it automatically be debated in Parliament and will notice have to be taken of that debate? We could have done more to reassure those who have doubts, but amendments 30 to 39 are a step in the right direction.
Mr. Hanson: I shall try to answer some of the points that have been mentioned during the debate. I welcome the welcome that the two Opposition Front Benchers gave to the steps that the Government have taken.
We have said that there will be a review, that it will be held in three years, that it will be undertaken by the Secretary of State and that the outcome of that review will be published to Parliament. I cannot yet tell either the hon. Member for Hornchurch (James Brokenshire) or the hon. Member for Chesterfield (Paul Holmes) what the format of the review will be. It is likely that it will be about 18 months before we initiate the review, and that will properly be a decision for whoever happens to be the Home Secretary at that time. That might be my right hon. Friend the Member for Kingston upon Hull, West and Hessle (Alan Johnson) or another Labour Member-who knows what will happen in these changing times? I am confident that whoever it is will take the right decision and will bring back to Parliament a report on these issues so that they are considered in due course.
The hon. Member for Hornchurch mentioned the aspect of the injunctions that concerns those aged under 18. Under-18s can be taken to the High Court or the county court for breach of an injunction but the key point is that the only disposal available for those issues at this stage is a fine, not imprisonment. He will know that we are actively considering a range of issues to do with under-18 injunctions. We may return to the matter very shortly, but we have to consider everything carefully and hon. Members will have opportunities to debate the issues in due course.
This is a key provision. A number of tools in the civil and criminal law deal with gangs and the cancer that they can spread. The hon. Member for Hornchurch mentioned criminal activity and the damage that gangs do, but a range of options exist to tackle them. We need to look at them and use them in an appropriate way.
As the hon. Member for Chesterfield said, this injunction tool is designed to be a preventive measure, to be used to help and support individuals who might be sucked into the gang culture or who are already in it. Getting such people out of gang culture will benefit both them and, ultimately, wider society. It is not about taking action to crack down on gangs' criminal activity, which is something that should, and will, be undertaken as a matter of course by police forces across the UK.
As the hon. Member for Hornchurch said, the proposal arose from the discussions in Birmingham on the Court of Appeal decision. We needed to reflect on that: I think
that we have, and I hope that the House agrees that we have listened to the concerns expressed in the other place. I hope too that the amendments on the time limit for the injunctions and on the review will give some comfort to those who felt that the proposals in the Bill were a step too far.
I believe that these are valuable amendments and that they give the proper assurances that were sought. I commend them to the House.
Lords amendments 31 to 39 agreed to.
Mr. Alan Campbell: I beg to move, That this House agrees with Lords amendment 40.
Madam Deputy Speaker: With this it will be convenient to take Lords amendments 41 and 42.
Mr. Campbell: The amendments were supported by the Government in the other place and are the result of listening to the debates that have taken place in this House and in Committees of both Houses, including the Joint Committee on Human Rights and the Delegated Powers and Regulatory Reform Committee. Over the summer, we considered those views carefully, and the responses received to the Home Office consultation document "Keeping the Right People on the DNA Database" that was issued in May. We accept the concerns raised by the Committees and other stakeholders about making the necessary changes to the law by means of an enabling power.
The issue of retaining DNA and fingerprints from those arrested but not convicted is an important topic that deserves the full attention of everyone involved in the legislative process. We judge that the approach taken in the Bill gave us a sensible opportunity to demonstrate that we were committed to implementing the S and Marper judgment, to consulting swiftly but thoroughly on the detail of the policy and to giving Parliament an opportunity to approve the policy through the affirmative resolution procedure.
Given the strength of feeling on this issue, and the importance of ensuring that we move forward with consensus, we accept the view that the issue would be dealt with more appropriately in primary legislation. We therefore decided to invite Parliament to remove clauses 96 to 98 from the Bill. As soon as parliamentary time allows, we will bring forward appropriate measures in primary legislation, as set out by my right hon. Friend the Home Secretary in his written ministerial statement yesterday. That approach will allow full debate and scrutiny of the proposals in both Houses. I therefore ask the House to agree with the Lords in their amendments.
James Brokenshire:
I admire the Minister's elegant attempt to stay on the front foot on this issue, but let us be clear: this is a retreat. The Government had wanted to grow the DNA database as a primary policy principle, but they cannot do that now. They wanted to retain profiles on people arrested but never charged with or
convicted of any offence, but they have now accepted that they can no longer do that, and hold such information for ever and a day. They also wanted to hide retention away in an order-making power that would have given huge discretion to Ministers, but they have been thwarted by the Lords amendments before us this afternoon.
Finally, they have had to move away from proposals they made only a few weeks ago to retain for 12 years DNA profiles on those arrested for certain offences. It is absolutely right, therefore, that the order-making power should be withdrawn from the Bill. Indeed, as we said clearly, it should never have been in the Bill. We can look, too, at how the provision was withdrawn-on almost the last day of the Bill's consideration in the House.
There is little doubt about the importance of DNA as an evidential tool in prosecuting and bringing crimes to justice. DNA data 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 certain serious crimes, depends on the use of modern scientific techniques, but a balance has to be struck between the interests of the community in preventing and detecting crime and the freedom of the individual. The Government have been on the wrong side of the line and their delay in responding to the S and Marper judgment raises a question about their commitment to deal with such a sensitive issue.
The Government are-belatedly-seeking to respond. To be fair to Ministers, the proposals announced by the Home Secretary are a slight improvement on their previous position, but his statement raises a number of issues. The changes do not go as far as we would like.
It is important to examine the statement to understand where the Government are moving now that they are withdrawing those clauses. The Home Secretary said that since the publication of the consultation document earlier this year the Home Office had sought to further the evidence base with additional research. Could the Minister explain what additional research has been undertaken? I am aware of the publication of the document on the Home Office website on DNA retention policy-the re-arrest hazard rate analysis-but as the Minister will be aware, it was discovered that the original scientific approach proposed in the consultation document had not been peer-reviewed, so it was premature to put it out in that form. Indeed, the document that has now been published accepts in part that line of argument. Can the Minister explain who prepared that work? What analysis was made? Was it peer-reviewed? What tests have been applied as to the robustness of the new document that was published alongside the Government's latest proposals?
It is important to understand that, because yesterday the Home Secretary suggested that we could reduce the retention periods and that we might look at what might be described as arrest to arrest analysis, rather than the arrest to conviction approach in the original proposals. Can the Minister explain the basis for that change of view and the change in approach?
The new analysis notes that there are still some important caveats. The document says that there is still some uncertainty about the line that has now been set-the six years-so it would be interesting to hear from the Minister on that point. In changing their view yet again, the Government have acknowledged that
even their revised proposals may not be compliant with the S and Marper judgment and the European convention on human rights. The Home Secretary said that although
"the ECHR suggested that the seriousness of the alleged offence should be a factor in determining what length of retention was proportionate"-[ Official Report, 11 November 2009; Vol. 499, c. 26WS.]-
he claims that the evidence indicates that such an approach should not be taken. Obviously, there is a risk that the new approach the Government have decided to adopt may not be compliant with the European convention on human rights, so it will be interesting to hear whether the Minister has obtained further legal advice in that regard.
We understand that the Government propose to introduce dilution and greater transparency in the existing discretion of chief police officers to destroy DNA records that they may hold. Can the Minister give any indication of the likely factors? Will there be a right of appeal in those circumstances?
We will consider the distinction that has been drawn in relation to terrorism and national security, but will the Minister explain whether there will be any judicial oversight on the initial assessment that will be undertaken in such cases? I understand from the statement that there is intended to be a two-year rolling review thereafter by a senior police officer, but will there be any oversight or appeal? What rank of officer will undertake that review? It is important to understand the approach that the Government are now seeking to take in moving away from their previous position. Equally, how quickly do the Government anticipate that the changes will be implemented? Obviously, it is now a year since the S and Marper judgment, so it would be interesting if the Minister gave some clarity on how quickly they anticipate the change happening. In the interim, does the Minister anticipate issuing any revised guidance to police forces? We understand that police forces have been told effectively to carry on with data collection as though the S and Marper judgment had not happened. Again, clarification on that would be helpful to inform the debate.
We believe that it is appropriate to introduce an approach to DNA retention similar to that introduced in Scotland, where the DNA profiles of those not 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 those more restricted circumstances, DNA profiles could be retained for a maximum period of five years, subject to judicial oversight during the last two years-in other words, after three years. It is interesting that the Government have sought to take a different view. We disagree with the revised view that they have come up with, but we agree that the use, retention and destruction of DNA records and the oversight that sits behind it requires primary legislation to enable the full, detailed debate and examination in Parliament to take place that would have been prevented if the order-making power had been followed as the Government had originally intended.
This is a significant issue. The number of profiles stored on the DNA database by police forces in England and Wales has reached more than 10 per cent. of the population of England and Wales. Yet, despite that growth, DNA detections have not grown in the same
exponential way. More refinement, more focus and more attention are therefore needed. That is why we look forward to holding the debate when we return in the next Session and to the Government finally setting out their views in detail, finally starting to address the underlying fundamental issues and changing the approach that previously existed that certainly appeared to treat us all as potential suspects.
Paul Holmes: Lords amendments 40, 41 and 42 are very welcome, because they remove the Government's attempt to give themselves a blank cheque to act on such a controversial issue, whereby in light of the European ruling on DNA, they would say, "We'll go away and come up with suggestions in private. We'll write them into law. We'll put them through a Statutory Instrument Committee. There'll be no debate in Parliament. There'll be no primary legislation," and we would have to leave it to the Government to do things on the quiet. That was obviously, from day one, utterly unacceptable on such a major controversial issue as the retention of innocent people's DNA in particular.
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