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New Clause 33

Retention 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—
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 35—Retention 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 removed—before legislation was passed in 2001—because 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 Court’s findings.
Part of that process lies in informing the Council of Europe’s 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 UK’s 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 UK’s 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 Government’s proposals.
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The UK’s 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 Court’s judgment that puts a disturbing gloss on the Government’s 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 Government’s 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 Government’s 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 Court’s 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 nation’s DNA characteristics.”
Will the Minister indicate whether the Home Department agrees with those recommendations so that we can gain a better understanding of the Government’s 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 sibling’s 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 one’s 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 important—I hope that you will allow me to put it on record in the context of the debate, Mr. Bayley—as 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 taken—and retained—from 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 Committee—indeed, the Under-Secretary of State might have done so too in his opening remarks—when 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 structure—the fundamental protections and reviews—that 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 Wales—treated as one country—is 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 country—I use that word to mean the United Kingdom as a whole—the 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 State—the 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.
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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 Britain’s 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 Majesty’s 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 clause—to trust them—as 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 Government’s 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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