[back to previous text]

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.
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.
Previous Contents Continue
House of Commons 
home page Parliament home page House of 
Lords home page search page enquiries ordering index

©Parliamentary copyright 2009
Prepared 27 February 2009