Paul
Holmes: When we discussed the late entry of the clauses on
gangs I made the point that it was a great shame that they were
introduced at a very late stage. They were not available to be debated
on Second Reading or at the start of our Committee proceedings. They
came in just at the start of the recess week. It has been difficult
therefore to do all the research and to have the full debate that we
need on them. Nevertheless we had a constructive debate and the
Minister said some reassuring things and we made some progress. Those
points have to be made a thousand times more on this
issue. These
new clauses are of crucial importance. They concern the DNA database
which has been a long-running and controversial issue in Parliament,
but they were introduced by the Government last Friday at the end of
recess week. They were made available publicly on Monday of this week.
A number of organisations that would normally respond on something like
this have not had time to get to grips with it. We looked at it and
tabled some amendments, but it was too late for the Tuesday midday
deadline for them to be considered here. On such a major issue that is
completely unacceptable.
I do not know
what the explanation will be for that very last-minute production of
these new clauses, but I do not think that it will be a very convincing
one. The Minister cannot say that the Government are surprised
about this being an issue and by the judgment in the S and
Marper case, or that they are surprised that anyone should regard the
DNA issue as controversial and that it came out of the blue. It has
been argued about a great deal both in and outside Parliament. My hon.
Friend the Member for Cardiff, Central (Jenny Willott) introduced a
ten-minute Bill on precisely that issue in June 2008, which referred to
adopting the model that the Scottish Executive—at that time a
joint Labour and Liberal Democrat one—went down the road of some
two and a half years ago. It is not exactly a new issue that has come
out of the blue. On 4 December we had the European Court of
Human Rights ruling that categorically stated that UK practice was out
of line with that of the rest of Europe, and that it breached the
European convention on human
rights. On
13 January I received the answer to a question that I had submitted to
the Minister about whether the Secretary of State was considering
introducing proposals on time limits for keeping various types of DNA
sample, and on removal from the national DNA database of profiles of
people who had never been convicted of an offence. According to the
Minister’s answer, much as he said in his opening statement, on
16 December the Secretary of State told the Intellect Technology
Association that the Government were looking at those issues, that
there would be a White Paper and a consultation, and that the
Government would eventually introduce some proposals, which we were
told today would happen by the summer. That is not acceptable, given
how long the argument has been raging, and the amount of time the
Government have known that the issue was coming
along. On
Friday 20 February the holding clauses were submitted, but we could see
them publicly only from Monday of this week. The Minister made a few
welcome hints about what proposals might arrive—on children, for
example—but they were no more than hints and suggestions. We
will not know what the Government will propose in the measures until
much later in the year. For us not to be able to debate the concrete
substance of what the Government will or will not propose to do is
absolutely unacceptable. It is entirely wrong and unsatisfactory to ask
us to simply give the Government advance permission to introduce
regulations that would not be subject to major debate, vote and
amendment in the House but rather to the affirmative resolution
procedure. That cannot be accepted on such an important and
long-running issue, which the Government have known for a long time to
be
controversial. The
Government have grown the biggest database in the world. It has 4
million entries, which is 5 per cent. of the English and Welsh
population, and the Government estimate that by 2010 there will be 4.5
million entries. There are 700,000 children aged under 18 on it, but
many people who were entered on to the database as children will have
now moved into adulthood. A question that I asked on 6 November 2008
produced the information that 98,017 people were under the age of 13,
442,375 were aged between 13 and 15 and 606,098 were between the ages
of 16 and 18 when they were first entered on to the database. Huge
numbers of young people are having personal information intrusively
accumulated, and the European Court has judged that to be unacceptable.
The database is bigger than the one in the USA, even though the USA has
five times our population. That seems remarkable.
A
quarter—1 million—of those on the database have no police
record. They were either arrested and never charged, or were charged
but not convicted. Twenty-five per cent. of the people on the database
are innocent in the eyes of the law. They are the people who everyone
has been so concerned about. Two or three years ago, Scotland went down
a different route and decided to remove the bulk of those people, with
some exceptions which we will come to.
What sort of
people go on to the database? Can we trust it? One example is three
children who built a tree-house in a cherry tree and were arrested.
Children building dens and tree-houses becomes a criminal offence that
gets them on the DNA database for the rest of their lives. That seems
remarkable. Another example is of a fight in a school. The teachers
reported to the police the two people they thought were involved and a
14-year-old boy was wrongly identified by the teachers. DNA was taken
and put on the database and although it was then explained that it was
a case of mistaken identity, the chief constable refused to remove the
DNA.
These are
examples of people having their DNA put on the database for life, in
the way the Government have accumulated it. What is the logic of that?
The Government argue that the DNA database is very important in
catching criminals and we heard the statistics at the start of the
debate on these clauses. That is true. DNA is a great new weapon in
helping to bring criminals to justice but it is never used as the sole
piece of evidence to convict someone. There has to be other
corroborative
evidence. 2.30
pm If
the Government say that DNA is so important that we should have all
this information—that we should grow the biggest DNA database in
the world—logic demands that it should include the whole
population. If that cannot be done logistically, as has been explained
to me by experts in the field, the next step would be to include every
baby who is born. We will have all that for the future and build a
database that way. The ethics group already mentioned said in its first
annual report that the Government should make a formal announcement,
and that they had failed to do so at that point. For various reasons
set out in its detailed notes, it
said: “A
universal database is both impractical and socially undesirable. It
would also be very expensive and of questionable value to improved
policing.” So,
above all, it would be “undesirable”, not just because of
practical difficulties but for all sorts of ethical reasons. The
Government fallback position might be to say that they just want to
cast the net as widely as possible. I have heard it argued that people
arrested in the vicinity of an incident, even though they are never
charged or convicted, are likely to be the sort who would be criminals.
The argument is that there is no smoke without fire, that they would
not be there unless they were prone to that sort of behaviour. It is an
appalling step for the state to imply that it is going back to a
presumption of guilt without evidence, rather than the presumption of
innocence unless proven guilty which is supposed to have underpinned
British law for the past 800 years. The ethics group addressed that
explicitly in light of the S and Marper
judgment: “The
ethics group remains convinced that the current policy for process and
removal puts innocent individuals at a severe disadvantage which is at
considerable variance with the principles of policing by
consent.”
Are the Government, by
logic of their argument, saying we want the whole population because
then we can catch all the
criminals?
Mr.
Campbell indicated
dissent.
Paul
Holmes: The Minister shakes his head. The Government may
say, let us throw out the widest net in the democratic world and get as
many people as possible, thanks to guilt by association, as there is no
smoke without fire: somebody may have been named as a possible suspect,
so we will keep their record. As for the 25 per cent. of people on the
database who are innocent—that is 1 million people and
growing—we will get them in the future because they are likely
to be criminals. Is that really acceptable? We certainly do not think
so, the Conservative party does not think so, and the ethics group does
not think so. In Scotland, they said some years ago that they did not
think so, and they have changed the law to take that into account. The
European Court has said it is not acceptable. Most people would say
that it is not acceptable. The Government ask what should be done about
serious crimes that are detected. In fact, only 0.35 per cent. of
serious crimes are detected as a result of information from the DNA
database, which is a tiny fraction. That was true in 2004-05, and it
was true in 2005-06, 2006-07 and 2007-08.
Myths have
been promulgated about the role that DNA has played in some famous
convictions. Maninder Pal Singh Kohli was convicted in November 2008 of
the rape and murder of 17-year-old Hannah Foster, and his case has been
cited as an example in which the DNA database led to conviction.
However, in fact, police investigations led to his van; Hannah’s
DNA was found in his van and DNA evidence corroborated evidence that
police collected in the normal pursuit of policing. That is true of
several other famous examples that keep being quoted in support of
Government policy, including the case of Mark Dixie, who was recently
convicted for the murder of Sally Ann Bowman. However, the DNA sample
that led to the conviction was taken when he was arrested for violent
affray in a pub nine months after the murder.
No one is
arguing that the DNA of people who are arrested for that sort of
offence should not be taken—of course it should. If the person
is not convicted, eventually their DNA sample should be removed.
According to Scottish law, in cases where people are arrested on
suspicion of a sex crime or a violent crime—the two issues that
people are always concerned about—there should be provision to
keep the DNA for three years and possibly to extend that by another two
years if the chief constable thinks it appropriate, and we support that
policy.
Mark
Dixie’s DNA swab was taken after he was arrested for violent
affray nine months after the murder for which he was eventually
convicted. Under the type of system that we suggest should be
introduced, which the Scottish Executive have enacted and the European
Court of Human Rights is talking about, that DNA sample would still
have been taken and would be run against the database. If nothing came
up and he was never convicted or charged for the affray in the pub, the
sample would be destroyed three or five years later, depending on the
view of the chief constable. There are several other examples, such as
Steve Wright and Peter
Tobin, where the DNA sample that was already on the database did not
lead directly to conviction but acted in a supporting or corroborative
role for DNA that was taken legitimately and kept for some other
incident, and that process would not be affected by our suggestions to
adopt the Scottish practice. The
Court’s ruling was clear. It accepted that the DNA profile and
sample constituted personal data and should be protected by data
protection laws. That was significant, because until now, the
Information Commissioner in the UK has argued that DNA samples do not
fall under UK data protection laws. However, the Court stated that a
sample does, and should. The Court emphasised the truly sensitive
nature of a DNA sample and described it as being of a “highly
personal nature”,
containing “substantial
amounts of unique personal data”,
so it was particularly intrusive to break
that privacy. If we are to take that intrusive step, it ought to be
because we have convicted someone of an offence, and not because they
were arrested as a possible witness and we are just going to keep it
forever because of a suspicion that one day it might come in handy, as
is the case with a quarter of the people on the database. The Court
stated that
“the mere
retention and storing of personal data by public authorities, however
obtained, are to be regarded as having direct impact on the
private-life interest of an individual concerned, irrespective of
whether subsequent use is made of the
data”. The
Court ruling was strong and clear about what is wrong with Government
policy.
The Scottish
Executive’s legislation is relevant, because the Court stated
that the practice in England and Wales, which allowed for the
indefinite retention of the DNA and fingerprints of unconvicted people,
breached the European convention on human rights. The Court also stated
that it considered the current retention policy in Scotland for samples
from those who are not convicted to be compliant with the convention.
Therefore, there is leeway with the Scottish case, which the Court has
stated fits in fine with the convention.
With regard to
people who have been arrested on suspicion of violent or sexual
offences but not convicted, their samples can be kept for three to five
years under various conditions, which fits with the Court’s
approach. Otherwise, the DNA of innocent people who are not charged, or
who are charged and not convicted, should be destroyed, and that is the
line of argument that most rational people outside the
Government’s line of argument have taken, and that is the line
or argument that western democracies take. It is the line of argument
that part of the UK, Scotland, has taken and implemented successfully
in law, and it is certainly the approach that we think should be
taken.
The Government
say that they will consult, issue a White Paper and come back later in
the year, possibly in the summer, but the arguments have been well
rehearsed. There has been much research and consultation in this
country, in Scotland and in other places, and it is pretty extensive
and satisfactory. In asking us to pass the new clauses, the Government
are asking us simply to trust them. They are saying, “We will
get it right and will come back with the detail later this year, which
you will not be able to amend, reject or throw out. You will have to
like it or lump it, so trust us.” Unfortunately, on this issue,
we cannot do that because, as I say, the arguments
have been very clearly put forward at great length by many people in
recent years, and it is unacceptable to have a DNA database—the
biggest DNA database in the world—that breaches European rights,
when a quarter of the people on it are innocent. It is simply
unacceptable to include them, on spec, on the basis that one day they
might be guilty, so we should create as big a database as possible. We
oppose that absolutely; it is simply
unacceptable. Mr.
Campbell: I begin by repeating the process that we are
involved in. The Government—I put this on the record
again—are committed to complying with the decision of the
European Court of Human Rights. To some extent, the clock is ticking,
in that we have a commitment to respond to that decision within
12 months. Whatever else may have been said, there is a
definitive time scale here, which affects the process on which we have
embarked.
We accept, as
the Court judgment accepts, that there is public disquiet about the
retention of DNA, but there is also, as the Court judgment also
accepts, a strong case for using DNA for public protection.
Furthermore, the Court judgment accepts that there should be a balance;
I accept that there should be a balance. The difficulty is where does
that balance lie? That is not an easy position to arrive at. We should
not simply rush to arrive at a position and we should try to involve as
many people in the process as possible.
The next stage
of the process is to consult the public, then to introduce proposals
later this year in legislation to allow Parliament, ultimately, to
decide. The Government can introduce proposals, which will be based on
that public consultation, but at the end of the day Parliament will
decide. In case anyone is thinking of the argument, “But of
course the Government will get their way”, I can assure that
person that, judging from the Home Office questions that are tabled,
the letters I receive and the opinions of colleagues who speak to me,
there is a wide range of opinions about DNA. They are not all on one
side of the House; they are on both sides of the House. Therefore, I
welcome the opportunity to have a constructive debate.
Let me try to respond to the
points made by the hon. Member for Hornchurch. I welcome his
contribution to the debate and the way in which he made his comments. I
do not agree with some of the things that he said, but I welcome his
commitment to engage constructively. He suggested that we were somehow
seeking to frustrate parliamentary consideration. I have just been
through the process that we are involved in, and a key part of it is
public consultation. I am quite sure that Members of Parliament will
want to play a full part in that process outside Parliament. We are
committed to introducing proposals in the autumn for Parliament to
decide, but there are lots of other ways in which Parliament can make
its views clear, not just in the public consultation but through the
business of the House. There must be ample opportunity for people to
watch this debate as it goes on and to be able to make the very points
that the hon. Gentleman is making, not just to influence the
consultation itself but the process. As for the parameters
of the consultation, we need to think about Parliament in its wider
sense, because this issue is one of the most important issues that we
face.
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