New
Clause
33Retention
and destruction of samples etc: England and
Wales (1) After section 64A
of the Police and Criminal Evidence Act 1984 (c. 60)
insert 64B
Retention and destruction of samples
etc (1) The Secretary of
State may by regulations make provision as to the retention, use and
destruction of material to which this section
applies. (2) This section
applies to the following material
(a) photographs falling within a description
specified in the
regulations, (b) fingerprints
taken from a person in connection with the investigation of an
offence, (c) impressions of
footwear so taken from a
person, (d) DNA and other
samples so taken from a
person, (e) information derived
from DNA samples so taken from a
person. (3) The regulations
may (a) make different
provision for different cases,
and (b) make provision subject
to such exceptions as the Secretary of State thinks
fit. (4) The regulations may
frame any provision or exception by reference to an approval or consent
given in accordance with the
regulations. (5) The
regulations may confer functions on persons specified or described in
the regulations. (6) The
functions which may be conferred by virtue of subsection (5) include
those of (a) providing
information about the operation of regulations made under this
section, (b) keeping their
operation under review, (c)
making reports to the Secretary of State about their operation,
and (d) making recommendations
to the Secretary of State about the retention, use and destruction of
material to which this section
applies. (7) The regulations
may make provision for and in connection with establishing a body to
discharge the functions mentioned in subsection (6)(b) to
(d). (8) The regulations may
make provision amending, repealing, revoking or otherwise modifying any
provision made by or under an Act (including this
Act). (9) The provision which
may be made by virtue of subsection (8) includes amending or otherwise
modifying any provision so as to impose a duty or confer a power to
make an order, regulations, a code of practice or any other
instrument. (10) For the
purposes of this
section (a)
photograph includes a moving image,
and (b) the reference to a DNA
sample is a reference to any material that has come from a human body
and consists of or includes human
cells. 64C
Retention and destruction of samples etc:
supplementary (1)
Regulations under section 64B may
make (a) supplementary,
incidental or consequential provision,
or (b) transitional, transitory
or saving provision. (2)
Regulations under that section are to be made by statutory
instrument. (3) An instrument
containing regulations under that section may not be made unless a
draft of the instrument has been laid before, and approved by
resolution of, each House of
Parliament. (2) The
amendment made by subsection (1) applies in relation to material
obtained before or after the commencement of this
section..(Mr.
Campbell.) This
amendment, responding to the ECtHR judgement in S and Marper v UK on 4
December 2008, would amend the Police and Criminal Evidence Act 1984,
creating a power to make regulations on the retention, use and
destruction of photographs, fingerprints, footwear impressions, DNA and
other samples and DNA
profiles. Brought
up, and read the First time.
The
Parliamentary Under-Secretary of State for the Home Department
(Mr. Alan Campbell): I beg to move, That the
clause be read a Second
time.
The
Chairman: With this it will be convenient to discuss the
following: Government new clause 34 Retention and
destruction of samples etc: service
offences. Government
new clause 35Retention and destruction of samples etc:
Northern
Ireland. Mr.
Campbell: The purpose of new clause 33 is to
provide for regulations to be made to enable the Government to respond
to the judgment of the European Court of Human Rights in the case of S
and Marper. The Court found that the existing policy under part V of
the Police and Criminal Evidence Act 1984 was in breach of the right to
respect for private life in article 8 of the European convention on
human rights. The Court held that the blanket nature of the powers to
retain DNA samples and fingerprints of people who were arrested but
have not been found guilty of an offence or against whom no further
action was taken, failed to strike a fair balance between the competing
public and private interests and therefore constituted a
disproportionate interference with the article 8
right.
We robustly
defended the S and Marper case at all stages of our domestic courts and
we were strongly of the belief that what we had introduced with the
consent of Parliament was an effective and proportionate approach to
help tackle crime and bring offenders to justice. We know from research
between May 2001 and 31 December 2005 that there were approximately
200,000 DNA profiles on the national DNA database, which would
previously have had to be removedbefore legislation was passed
in 2001because the person was acquitted or charges
dropped.
Of those
200,000 profiles, approximately 8,500 from some 6,290 individuals have
been linked with crime scene profiles, involving nearly 14,000
offences. These include 114 murders, 55 attempted murders, 116 rapes,
68 sexual offences, 119 aggravated burglaries and 127
offences of supplying controlled drugs. Therefore, as that approach was
a major contribution to the identification and detection of offenders,
we are understandably disappointed in the judgment of the European
Court of Human Rights.
Technological
developments and, in particular, the use of DNA in investigations has
been one of the breakthroughs for modern policing in which we have led
the world. It has led not only to convictions for serious crimes, but
to the exoneration of the innocent. Moreover, it is not unreasonable to
assume that many people whose DNA was on the database may have been
deterred from committing crimes because they knew that detection was
inevitable. We continue to believe that DNA and fingerprints play an
invaluable role in fighting crime, and will now carefully consider how
best to give effect to the Courts findings.
Part of that
process lies in informing the Council of Europes Committee of
Ministers of progress and of final proposals for implementing the
decision. A second and key part lies in ensuring that sufficient public
debate takes place on whatever we propose and how it is implemented.
The judgment recognised the level of public interest in and, indeed,
public disquiet with the
current retention policy. That is why we intend to publish a public
consultation paper before the summer with proposals on retention and
future governance in this important area.
We recognise
that some people who are currently on the DNA and fingerprint databases
and who have been arrested but not convicted may feel frustrated that
their samples are not being destroyed in the light of the European
Court judgment. As the Committee will be aware, the existing law stands
until such time as it is changed or amended by the United Kingdom
Parliament. The contents of this enabling clause are drafted to 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 consideration by both
Houses.
In her speech
to the Intellect Technology Association on 16 December 2008, my right
hon. Friend the Home Secretary said that the public expect us to make
use of technology to protect them, and that people instinctively
understand that these technologies, used properly, are vital tools
against crime, terrorism and illegal immigration. But she also
recognised the absolute necessity of getting the balance on privacy
right, and that there is more we can do to strengthen the dividing line
between guilt and innocence. For those who have committed a serious
offence, our retention policies need to be as tough as possible, but
for others, including children, there is scope to introduce a more
flexible approach.
We intend to
consult on bringing greater flexibility and fairness into the system by
stepping down some individuals over time by using a differentiated
approach, possibly based on age, or on risk, or on the nature of the
offences involved. We will also re-examine retention arrangements for
samples. We have informed the Committee of Ministers of our intention
to consult and of compliance to date with the judgment in respect of
the relevant samples of S and Marper, as well as the payment of costs
and expenses. The information will be considered by that Committee at
its next meeting on 19 March.
I hope Members
of this Committee will recognise that we are committed to implementing
the judgment. There are significant policing operational issues
involved in complying with the judgment, but at the core is the need to
ensure a proportionate level of public protection. This is an important
issue, which is why the approach that we are proposing focuses on open
public debate and parliamentary
consideration. The
purpose of new clause 34 is to ensure that regulations, which will be
equivalent to those provided for in new clause 33, can be made in
respect of material obtained by the service police in each of the armed
forces. Section 113 of the Police and Criminal Evidence Act 1984 allows
the Secretary of State to apply any of the provisions in part 5 of the
Act to the armed forces, subject to any modifications that he considers
necessary in order to cater for the different procedures under which
the armed forces operate.
Part 5 of the
Police and Criminal Evidence Act is already applied to the armed forces
by means of a statutory instrument made under section 113.
Section 113, therefore, needs to be amended to allow
regulations to be made for the armed forces which will be closely based
on the regulations provided for in new clause 33. Biometric data
obtained by the service police in each of the armed forces will
therefore be treated in the same
way as biometric data obtained by civilian police forces, subject to the
different circumstances in which the service police conduct
investigations. This will ensure that the UKs response to the S
and Marper judgment in the European Court of Human Rights is
comprehensive.
The purpose of
new clause 35 is to ensure that regulations, which will be equivalent
to those provided for in new clause 33, can be made in respect of
material obtained by the Police Service of Northern Ireland. The regime
governing the retention and destruction of samples in Northern Ireland
is contained within the Police and Criminal Evidence (Northern Ireland)
Order 1989 and the amendment makes provision for similar regulations to
those provided for in new clause 33. This will ensure that the
UKs response to the S and Marper judgment in the European Court
of Human Rights is
comprehensive.
James
Brokenshire: The Opposition have consistently called for a
full debate on the DNA database, so I welcome the opportunity to
consider some of the issues in the context of the new clauses proposed
by the Government. I regret that our consideration is necessarily so
partial and focused on whether we should give authority to the Home
Secretary to make regulations governing the retention and destruction
of DNA, fingerprint, photographic, CCTV and other records. If we grant
the proposal, it would prevent and frustrate the very parliamentary
debate that we have been seeking, allowing all MPs to contribute. The
Minister for Security, Counter-Terrorism, Crime and Policing said in
his letter to the Committee that the means would be the affirmative
resolution procedure.
Before I
develop the detail of the argument surrounding the proposals, I want to
start with one point of agreement with the Minister. We agree that the
use of DNA samples can be an important evidential tool in prosecuting
and bringing crimes to justice. We are all aware of cases where DNA
data have formed an important part of the case to prove guilt and
ensure that serious criminals have been put behind bars, where they
belong. The fight against crime, in particular organised crime and
terrorism, depends on the use of modern scientific techniques of
investigation and identification.
However, the
status of DNA needs to be considered carefully. As the European Court
of Human Rights noted:
The
retention of cellular samples is particularly intrusive given the
wealth of genetic and health information contained
therein.
The use of that
technology must strike the right balance between the promotion of the
wider public interest and public safety, and the protection of
important private life interests, which is central to the debate and
the Governments proposals.
2
pm The
UKs DNA database is the largest in the world, containing
approximately 4.3 million profiles, which accounts for around 5.2 per
cent. of the UK population. The Government argue, as did the Minister,
that this country claims a pioneering role in the utilisation of DNA
technology, but in doing so it bears a special responsibility to ensure
that it strikes the right balance on what is permissible in the
potential interference in private life.
The central
question that the new clause seeks to address, although without
spelling out the solution, is the extent to which the Government should
retain DNA and other data on people who have been suspected of
committing a criminal offence but who have never been charged or have
been acquitted. 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 1.1 million people on the database have never
been convicted, cautioned or even formally warned or reprimanded, as
recorded by the police national computer.
GeneWatch has
calculated that there are records of 100,000 innocent children on the
database, and the records of 521,901 under-16-year-olds have been added
to the database since 1996. The database contains the records of around
40 per cent. of black men in the UK, compared with 13 per cent. of
Asian men and just 9 per cent. of white men. As the Minister will be
aware, one of the issues that the Court highlighted was the potentially
disproportionate impact that the operation of the database has on young
children and people from minority ethnic communities, which needs to be
considered carefully in the context of the debate on what is
proportionate and
reasonable. I
shall move on to the details of the case of S and Marper shortly, but I
would like to read out a paragraph from the Courts judgment
that puts a disturbing gloss on the Governments view of DNA
data and, by extension, the potential use of the powers that they seek
under the new clauses. Paragraph 123 of the judgment
states: The
Government argue that the power of retention applies to all
fingerprints and samples taken from a person in connection with the
investigation of an offence and does not depend on innocence or guilt.
It is further submitted that the fingerprints and samples have been
lawfully taken and that their retention is not related to the fact that
they were originally suspected of committing a crime, the sole reason
for their retention being to increase the size and, therefore, the use
of the database in the identification of offenders in the
future. If
the Court has accurately stated the Governments policy
position, which is what we need to be clear about, it is in essence
saying that there is a simple primary policy intention to grow the
database, and that even suspicion of guilt is not regarded as a
triggering factor. That might not be reflected in the current law and
seems to have been a policy statement that the Court has highlighted
from the evidence that it was given in the course of its
considerations, but it is a significant point to consider when the
Government tell us that we should rely on their
assurances.
We need to
understand clearly the Governments stand on that, so will the
Minister confirm that they argued their case on that basis and that the
natural extension of that line of logic is that everyone is a potential
suspect? Is it now the case that one is innocent until proven guilty in
the eyes of the criminal law, but always potentially guilty in the eyes
of the DNA database? I base those points in all seriousness on that
paragraph in the Courts judgment and am not seeking to make a
pejorative or debating point. I am simple reading from the Court
judgment and interpreting from it what seems to be an intention that
was argued at the Court, because it is pretty fundamental in
understanding where the Government are coming from. If that is the
case, how
can we trust the Government to look after our liberties, as the measures
imply that we would seek to do, if their fundamental stating point is
that there do not necessarily need to be grounds of suspicion for
obtaining information in the first
place? In
that context, I wholeheartedly agree with recommendations I and J in
the first annual report of the ethics group on the national DNA
database, which was published on 21 July 2008. Recommendation I
states:
Consideration
should be given to further public clarification of the role of the
NDNAD and reinforcement of the message that it is intended only to be
used for criminal
intelligence. Recommendation
J
states: Consideration
should be given to formally announcing publicly that the NDNAD will
only be used for the currently described purposes (i.e. criminal
intelligence) and will never transform into a repository for the whole
nations DNA
characteristics. Will
the Minister indicate whether the Home Department agrees with those
recommendations so that we can gain a better understanding of the
Governments likely approach in the context of the order-making
powers that it seeks in the new
clause? The
ethics group also raised questions about DNA samples given by the
public voluntarily. Will the Minister confirm how many DNA samples on
the national DNA database have been given voluntarily? Will he also
confirm that the intended White Paper, which the order-making power
under the new clauses is intended to implement, will address the scope
of use of those samples, and the retention and process for destruction
of volunteered samples? The ethics committee suggested, in various
recommendations, that further clarification is needed. While I accept
that the law on obtaining samples suggests that there is an automatic
requirement of destruction, the fact that the ethics committee raises
such a number of recommendations about volunteered DNA data clearly
suggests that it has some concerns.
Will the
Minister also confirm whether the Government have any intention to
extend the authority required to take DNA samples in cases of
non-notifiable offences, as was suggested at one point? In other words,
will they extend the existing authority to take DNA samples when there
is a notifiable offence to non-notifiable offences as well, which could
lower the authority to minor offences?
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. Will the Minister confirm that that will also form part
of the White Paper, together with the removal of profiles for children
under 10?
The official
Opposition believe that there should be an established procedure to
allow a person to request a statement on what information, relating to
fingerprints and samples, is being held on either them or a dependant.
We think that there should be a procedure by which a person can request
that such information held on them or a dependant is destroyed, and
that the circumstances in which such a request might be refused should
be set out. Will the Minister indicate whether he envisages the White
Paper encompassing issues of that nature and, by extension, the
application to familial links? DNA might not necessarily simply
indicate one individual, as a siblings DNA might have similar
characteristics. Some
of the concerns attached to the debate relate to whether DNA can be
identified. It can, in part, be matched to ones own DNA, but it
is the familial link that applies, and a close relation might be
actually
indicated. In
his letter to the members of the Committee explaining why the
Government were bringing forward those new clauses, the Minister for
Security, Counter-Terrorism, Crime and Policing rightly said that their
actions had been necessitated by the judgment of the European Court of
Human Rights in the case of S and Marper. I welcome his statement, and
the comments of the Under-Secretary of State for the Home Department,
the hon. Member for Tynemouth, that the Government are committed to its
implementation as soon as possible. In that landmark judgment, the
Court held that there had been a violation of article 8 of the European
convention on human rights. The Lord Chancellor, in his response to the
Court ruling, was right to highlight paragraph 119 of that
judgment. That is importantI hope that you will allow me to put
it on record in the context of the debate, Mr.
Bayleyas it informs the framework that the Government need to
work to with regard to the power that they are now seeking under the
new
clause. On
the issue of proportionality and the fair balance between competing
public and private interests, the Court
said: In
this respect, the Court is struck by the blanket and indiscriminate
nature of the power of retention in England and Wales. The material may
be retained irrespective of the nature or gravity of the offence with
which the individual was originally suspected or of the age of the
suspected offender; fingerprints and samples may be takenand
retainedfrom a person of any age, arrested in connection with a
recordable offence, which includes minor or non-imprisonable offences.
The retention is not time-limited; the material is retained
indefinitely whatever the nature or seriousness of the offence of which
the person was suspected. Moreover, there exist only limited
possibilities for an acquitted individual to have the data removed from
the nationwide database or the materials destroyed ...; in particular,
there is no provision for independent review of the justification for
the retention according to defined criteria, including such factors as
the seriousness of the offence, previous arrests, the strength of the
suspicion against the person and any other special
circumstances. I
apologise for reading out that somewhat lengthy extract, but it really
goes to the heart of what we are considering. As I said, the Lord
Chancellor rightly drew attention to it, and it is important in
understanding where we are all coming from. That very paragraph sets
out some of the benchmarks and indicators that we would certainly
expect to see in the detailed proposals that the Government are yet to
publish in their formal response to the particular court
case.
However, given
what the Court said, I must say, with respect, that I think that the
Minister for Security, Counter-Terrorism, Crime and Policing may have
slightly missed the point in his letter to the Committeeindeed,
the Under-Secretary of State might have done so too in his opening
remarkswhen he suggested that the Court recognised that the
retention of biometric data could be
retained on
consideration of the individual
circumstances. The
Court judgment goes much deeper than saying, as that quote from the
Minister suggests, that it is a case of individual review of individual
circumstances. What the Court is saying goes to the
structurethe fundamental protections and reviewsthat
exists, rather than saying that, in some way, this could be dealt with
by means of case-by-case consideration.
The Court was
very clear, and in many ways it was very critical. Whatever the
Government or we may think about whether the Court was right, we have
the judgment. It highlighted very clearly that England and
Walestreated as one countryis the only country in
Europe adopting these procedures. Scotland has a different procedure,
and I note that an amendment tabled by the hon. Member for
Chesterfield, although not selected, alluded in some ways to the
Scottish situation. There is a different standard in Scotland than in
England and Wales. Effectively, DNA data are not retained when someone
has been acquitted. The data can be retained for three years if there
was a violent offence or a case involving a sexual offence, and that
period can be extended to five years, but in other circumstances, the
DNA data cannot be retained if there has been an acquittal or if no
charges were brought. Therefore, even in this countryI use that
word to mean the United Kingdom as a wholethe approaches in
England and Wales and in Scotland differ. Consequently, what the Court
said about the current system and situation that we have in this
country went quite deep.
That is why we
believe that it is right that the DNA database as a whole is put on a
formal statutory footing. That goes further than simply having a power
of regulation in respect of the Home Secretary saying what the
retention and destruction issues should be. In this context, we need a
more fundamental statement about the DNA database itself. In our view,
at this stage, it is not acceptable simply to give what amounts to
almost blank-cheque authorisation under the new clauses on the basis of
the White Paper that the Under-Secretary says will be forthcoming at
some stage before the
summer. I
agree with the Minister for Security, Counter-Terrorism, Crime and
Policing and the Under-Secretary about the importance of this debate. I
know that the Under-Secretary said that there was considerable public
interest and public concern, and that the Minister for Security,
Counter-Terrorism, Crime and Policing said in his
letter: This
is an area of significant importance which impacts on public protection
and
confidence. That
gains even more significance when we consider the potential ambit of
data sharing among parties. That is the subject of debate on the
Coroners and Justice Bill, in which a power is being sought to share
data among relevant bodies in an unspecified manner at the
authorisation of the Secretary of Statethe Secretary of State
for Justice in that case. Therefore, when setting the boundaries for
data retention, there should be consideration of whether, and to what
extent, those data will be shared in a wider format. I appreciate that
that is a debate for another Committee on another Bill, but it gives
context to discussions about the DNA database and the retention and
sharing of that information with third parties. Potentially, this goes
wider than the domestic
setting. 2.15
pm On
12 June 2007, UK Ministers attending the European Union Justice and
Home Affairs Council backed a plan to extend the Prum treaty to the
whole of the EU. Can the Minister confirm that that means that all EU
member states will have automatic access to Britains DNA
database? Is that the direction of travel? To better assess what is and
is not appropriate in the retention and destruction of data held on
that database, it is important
to understand the significance of the DNA database and what it may be
used for in a domestic and, potentially, pan-European setting. It is
fundamentally important to understand where we are going with this
measure. Given
the significance and importance of the topic, why is it being swept
under the affirmative resolution procedure? With that procedure, I
assume that it will not be possible to amend the regulations and we
will only have an hour and a half of debate in Committee on these
fundamental issues. There are serious issues of public confidence, as
Ministers have identified. The other place almost has a convention of
not rejecting secondary legislation. I have serious concerns about how
the issue is being approached. The irony is that we may have a longer
debate in this Committee on the order-making power than will
be permissible on the substantive issues of the retention of DNA and
the fundamentals that
apply. The
Minister has said that he wants a debate but the impression is that,
rather than promoting debate, the Government do not want it. Instead,
they want to deny the debate that would allow all hon. Members the
opportunity to consider the proposals in detail and to make amendments
if required. It will be interesting to see how the Government put
forward the changes that they propose in the light of the Court
judgment. I assure the Minister that we will work constructively with
him on this because we recognise its importance and significance, as he
does.
Simply to
present a set of regulations and, in essence, say, Take it or
leave it will not allow the necessary scrutiny, debate and
consideration that the issue rightfully demands. Even in seeking the
power, the Government cannot give us any indication of their
intentions. As the Minister
says: We
are not in a position at this stage to produce detailed
proposals. If
they make that admission, how can they expect the Committee or the
House to give an authorisation without any idea of how such authority
would be used?
I appreciate
that issues with the parliamentary timetable are often used as
justification for the argument, Well, we have a Bill before us
now and we should use this opportunity as it may be the only primary
legislation that we get. That does not wash. The issue demands
primary legislation that can be properly scrutinised and examined, in
detail, line by line to ensure that appropriate protections are
provided.
The
Constitution Committee in the other place, in its recent report,
Surveillance: Citizens and the State
recommended: The
Government should introduce a Bill to replace the existing regulatory
framework governing the NDNAD. This would provide an opportunity to
reassess the length of time DNA profiles are retained and the
regulatory oversight of the NDNAD.
We agree. The use,
retention and destruction of DNA records and the oversight that sits
behind that require detailed primary legislation in their own right,
with full and detailed debate and examination in Parliament of the
proposals that the Government bring forward by all Members of
Parliament. I can assure the Minister that if he does so Her
Majestys Opposition will work with the Government in a
constructive way in the public interest. The issues at stake are too
serious to do otherwise.
Trust
me was a phrase frequently used by the former Prime Minister
Tony Blair. That is precisely what the Minister and the Home Secretary
are asking us to do by virtue of this clauseto trust
themas we would be approving a significant and wide-ranging
authority applicable now and in the future on a promise of the White
Paper and a promise that the Government intend to address the issues
highlighted in the recent European Court of Human Rights case. But the
nature of this subject puts it beyond questions of simple trust of a
particular Minister or even a particular Government. Once the authority
is there it remains in place and can be used in the future by any
future Government too. I appreciate that we cannot bind future
Governments, but we can signpost them. If this is in place it makes a
fundamental departure.
In making
those comments I am not seeking to impugn the Minister, the Home
Secretary or the Governments intentions. We have to operate in
a vacuum in this context. We do not know the basic principles,
notwithstanding what may have been set up in the new clause and certain
statements that it could include this, that and the other. The
order-making power encompasses that; but we do not actually
know.
Surely it
would be more appropriate for us to consider what changes are
appropriate in legislation once we have an indication from the
Government of their intentions. Then we can have that public debate
that the Minister has rightly said is needed and that he wants. We can
have that detailed scrutiny. We can consider what strikes the right
balance between the public interests and the protection of the private
interests that is at the heart of our debate this afternoon.
That is why I
say to the Minister in clear and unambiguous terms that the proposal he
has set forward in these new clauses is utterly unacceptable and if the
Government are insistent on taking this approach we will oppose it
tooth and
nail.
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