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"We are sleepwalking through the lobbies of Parliament whilst Britain is slipping toward Authoritarian Rule."
That is pretty tough stuff from a deputy chief constable. I believe that the Bill in its present state will add fuel to the fire, and we might well see a further slip towards authoritarian rule. I hope that much of it is removed in Committee, but at this stage I will vote against it.
8.36 pm
Mr. Tony McNulty (Harrow, East) (Lab): I am pleased to follow the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), not least because I have a high regard for what he says on this matter. I do not always agree with him, but I know that he approaches it in a terribly thoughtful way. I must say, however, that I disagreed absolutely with his opening and closing remarks. The notion that we are anything other than a beacon for much of the rest of the world in our record on civil liberties and criminal justice is wrong. He bases his remarks on a flawed report by Amnesty International, which really should know better. It took what the House clearly and explicitly passed as extraordinary legislation, to be used very sparingly and only in specific circumstances, and judged us as though it were universal. That is profoundly flawed.
I disagreed also with the remarks by the deputy chief constable of Hampshire that the hon. Gentleman quoted. The House is not sleepwalking towards authoritarianism. I do not doubt that there are issues to consider in the Bill, which I will come on to describe, but hyperbole does not help. We have had a good debate thus far except, as is the case on these occasions, from the Opposition Front Bencher, for whom hyperbole was everything and substance was seriously lacking. That was a shame, because regardless of what happens over the next couple of months, we are considering profoundly serious issues for our country and our civil liberties.
I wish to touch on some matters on which I agree with the Government and some on which I do not. I shall start with those on which I do not, which is unusual for me. From my knowledge and expertise of the use of mobile phones in prisons, not least by convicted terrorist prisoners, I do not believe that simply putting a possession offence on the statute book is good enough. It is the Ministry of Justice, happily, not the Home Office-my right hon. Friend the Minister for Policing, Crime and Counter-Terrorism may wear two hats-that needs to get serious about that matter and, notwithstanding
resources, ban mobile phones and their use from prisons full stop, with all the resource implications that that entails for both staff and prisoners.
We have been up, down and sideways going through technically possible and cost-effective ways to dampen the signal so that calls cannot be received in prisons, as has been suggested. Everyone knows the stories, not least of assassinations and drug deals organised on contraband mobile phones in prisons. I would rather see the Prison Service bring in a total and absolute ban on mobile phones inside prisons, for staff and prisoners, and then see what that entails for their resources, than have the limitation on the possession of contraband phones set out in the Bill, although I welcome that as far as it goes.
I should like there to be a link between a contravention of the provisions against the possession of contraband phones and the early release scheme. I do not want the individuals concerned to get simply a couple of months or a fine, or whatever the Bill says-
Mr. McNulty: Nevertheless, we should start from the premise of a forfeiture of any participation in the early release scheme for someone who does anything as serious as possessing contraband, not least mobile phones. I still feel, somewhere in my water, if I may put it in those terms, that we are dealing with very serious matters through the resource nexus, rather than deciding what we should be doing and working backwards towards resources. If that sounds harsh, I do not apologise, because the use of mobile phones and other such things by terrorists are serious matters.
If I may say so, I think we have also wimped out on wheel-clamping. I have asked those who know far more than I whether there is anything under law, or unique to the English and Welsh system, that means we cannot say that wheel-clamping on private land, and the way it has been executed over the past number of years, is effectively licensed theft and extortion, as the Scottish law did some time ago. That is where we should start from. If we need to go back from that and allow some limited, albeit licensed, clamping for doctors' surgeries or other specific use, that is fine, but I do not think that a licensing regime will do what we want.
That was brought sharply into focus in the past couple of weeks. Quite rightly, people stopped and parked because of the snow and the impassability of roads, only to come back the next day to find their car clamped, because some little man from the wheel-clamping organisation decided, regardless of the snow, that there was another £140 or £200 to be made for the company. Rather than this sequential law or proper law by accretion, we should go where we want to go: we should ban it as the Scots have done and work back from that. I hope that that proposal will be explored in Committee. I should say right now that I am not in any profound sense offering myself to serve on that Committee. Having done three and a half years in the Home Office, I have had my fine share of Home Office Bills and legislation, and I will sadly have to let this one go and let others serve far better than I would.
This is why I do not like the tedium-it is repeated ad nauseam by the hon. Member for Eastleigh (Chris Huhne)-of saying how much new legislation there has
been, and how many new crimes and offences have been created: it does not help us at all. We live in a complex world. Something like three quarters of the Bill reviews, revises and updates legislation, albeit very recent legislation, because of externalities and other factors that go to the complexities of the world. Ten, 12 or 15 years ago, as someone already suggested, we would not have thought about the perniciousness of mobile phones in prison, because they did not exist. Twenty or 30 years ago, or when I was at university, e-mails and computers did not exist. Occasionally, we might see such things on "Tomorrow's World", but we all laughed. Given the pace of change, we must keep on top of such sensitive matters.
Chris Huhne: Surely the right hon. Gentleman recognises that the extraordinary spate of new offences is simply unnecessary. I have corresponded with the Justice Secretary on this matter, in which I gave him clear examples of offences that it was already perfectly possible to prosecute. The most ridiculous one is the new offence, which was created in 1997, of creating a nuclear explosion. What is wrong with murder and criminal damage? It seems to me that either would be quite likely to cover the bases.
Mr. McNulty: I was going to agree with the hon. Gentleman, but I do not agree with the example he used. I was very firmly in favour-my case has still not prevailed-of anything remotely attached to a terrorist cause having a proper terrorist statute associated with it. I did not want a terrorist tariff, which we found terribly cumbersome, and I did not want always to rely on the Explosives Act 1875 or whatever. I wanted to give a proper footing in terrorist legislation, as we did for DNA in the Counter-Terrorism Act 2008.
I am not saying, hand on heart, that since 1997, every statute and new offence passed by the Government has been absolutely necessary. I would be foolish if I did. In fact, I spent much of my three and half years in the Home Office telling people that if it is not absolutely necessary, we are not having it.
Chris Huhne: Not very successfully.
Mr. McNulty: No, the hon. Gentleman will find that over those three and a half years, I was relatively successful in that way, and terrorism and immigration took up the lion's share of my time.
It must be right and proper that legislation and revisions to legislation are debated in the Chamber, rather than dealt with up in the Committee corridor by statutory instrument, or simply by review.
That takes me neatly on to the issue of DNA. Everybody must agree at the very least that it is right to put the DNA database-and some of the elements around it, which have been much discussed-on to a statutory footing, rather than as part of code B, C or D of the Police and Criminal Evidence Act 1984, which was a wonderful piece of legislation by the way. Given the importance and sensitivity of the DNA database, putting it on to a proper statutory footing must be right. The Government are to be commended for that.
I do not accept, and never have done, the premise that somehow the national DNA database is an adjunct of the police national computer. It is not, and was never
meant to be, a database of the convicted or of those who will be convicted. That has never been its purpose since it came into existence in 2001. It is a device, a tool and an adaptation of science for our use today, and it is no more than that. The suggestion by some, although not all, that DNA is what the right hon. Member for Haltemprice and Howden (David Davis) called a golden bullet that is sufficient to make a jury convict on that sole basis just is not the case. Rarely, if ever, is someone convicted on DNA evidence alone. At best, it is an analytical device, a locational device and a corroborative device. In some cases, all that it has done is hastened the conviction of an individual who was in the frame already, with spectacular success. People will know the examples of those arrested for relatively minor offences, such as affray or car theft, who had their DNA taken-some hon. Members have suggested that it should be removed from the database if no conviction occurs-and it later put them in the frame for a more serious offence. DNA does not of itself lead to a conviction-it does not hang the person, if I may put it like that-but it puts them in the location of the crime or adds to the jigsaw of evidence that is available. It is confirmatory, corroborative and locational, but it is never enough alone to lock people away.
We need to take that aspect of DNA seriously. I do not agree that retention is antithetical to civil liberties. I got into trouble on the "Today" programme when the report came out recommending a national database. I told John Humphrys-I think that was the interviewer-that I had some sympathy with the report's logic. I have learned my lesson since, because for the next two or three days that ran in the papers as "Government edging towards national database". I was not saying that at all. However, there is a great distance between saying that we should retain the DNA only of those convicted and saying that we should have a national database. Wherever the line is drawn, it will be arbitrary.
The ECHR case on article 8 was probably right in one regard-that it was the blanket and indiscriminate nature of retention that was the difficulty. I firmly believe that the Government have gone far enough to show that the criteria for retention are no longer blanket or indiscriminate. However, the position should be kept under constant review, because things change-not least the technology involved in DNA. In some recent cases involving low copy number DNA, it would not have been possible to extract the DNA five or 10 years ago. But the criteria are definitely not a proxy for saying "We will keep the DNA of the guilty or those who are likely to be guilty one day." The database is purely an analytical device for the police. Whatever the algorithms, logarithms or other things that scientists and occasionally GeneWatch can throw up about the probability of solving cases, they do not change the fact that significant serious crimes-cold-case and more recent crimes-have been dealt with through DNA.
We will be profoundly worse off, in terms of the overall liberties of our people and the efficacy of the criminal justice system, if we lose the DNA database or went where the hon. Member for Eastleigh wants to go. It is not the case that, as the right hon. Member for Haltemprice and Howden said, some degree of criminality is a precursor or a useful factor-I am not sure whether it is an exogenous or endogenous factor-in determining who will commit crime later on. Would that it were that simple. In many low-level cases, that may be so-we
could all name the 10 or 12 individuals in our areas who cause a lot of the low-level difficulties-but he was profoundly wrong to say, "Keep the convicted on, because that then is the body of subsequent criminality." He said it far more eloquently, but that was the gist of it.
In one specific case the right hon. Gentleman was absolutely wrong. There are no predictive qualities in people's behaviour, criminal or otherwise, for murder-absolutely none. He might be right in the case of breaking and entering, burglary or certain other serious crimes, including some violent crimes, but he is not right in the case of murder. We know that, overwhelmingly, murderers have never committed crimes before-some have, of course, but overwhelmingly they have not. If there is some chance, on a cold-case basis or otherwise, of giving people final closure on some of those outrageous cases involving violent crime, rape and murder, then, in the balance of things, it is worth paying that price collectively as a society.
I understand the Liberals' position-it has always been their position-but it is a real shame that the Opposition have chosen to use their opposition to those provisions as a fig leaf for not voting for the Bill this evening. I hope that the hon. Member for Hornchurch (James Brokenshire) will give us more reasons for their not doing so than were given at the start of this debate by his hon. Friend-I suppose he might be right hon.-the shadow Home Secretary, who, for me, only showed clearly why, if tragedy happens and his side ever gets in, he should not be Home Secretary for long. I hope that that is the case for the sake of the country, because he is clearly not up to it, and he showed that again tonight.
I have a couple of other points to make. It takes too long for good ideas in government to come to fruition. I absolutely welcome the tail-end elements in the Bill on stop and search, which are rooted in what Flanagan said some 18 months ago. Everyone will remember Ronnie's point about "good cholesterol" and "bad cholesterol", which was a very good one. I do not accept the premise, parlayed about by someone on our side fairly recently, that somehow the only difference between good police forces and bad police forces on clear-up rates is not bureaucracy but the fact that some officers on some forces would rather stay in the canteen. For an ex-Home Secretary to say that was quite shocking, I thought. I know all 43 forces in this country intimately, and I do not know of any force in which people would rather stay in the canteen than be out on the streets doing their job.
The Police Federation and the Association of Chief Police Officers have sometimes-indeed, consistently-overplayed their hands on bureaucracy. Much has been done to get rid of bureaucracy, by previous Governments and certainly by this one. What Ronnie meant by "good cholesterol" and "bad cholesterol" was that, because of democratic accountability and the rights of the individual and for a host of other reasons, some of that "good cholesterol" bureaucracy is essential for fairness, the defence of liberty and the rights that the hon. Member for Eastleigh mentioned. However, even with all the advances that we have made on bureaucracy, I would not say that we had gone far enough. We always need to go further, not least because, rather like the law and society, policing does not stand still. The policing world was profoundly different two and a half years after I
was the Minister responsible for policing from the policing world two and a half years before, so Lord knows what the rate of change was five or 10 years ago.
We need to keep abreast of that, which is why the work that we have already done on stop and account and the work that will come out of the Bill on stop and search are all positive developments. However, I would say-someone raised this earlier-that there is no need for a review of section 44 of the Terrorism Act 2000 in the Bill in quite the terms suggested, because that is already being done. I said to the Metropolitan police time and again-happily, the Metropolitan Police Authority, the service and the commissioner all agree-that it cannot be right as we proceed beyond 2005 that all of London is still signed off every month as a section 44 area. Whether they have done this yet or not I do not know, but the sooner we create specific permanent section 44 areas-
Mr. McNulty: That is good. There will always be a section 44 area around Heathrow, and rightly so. Sussex always had one around Gatwick. The notion of making a blanket section 44 area of the 32 boroughs just for the hell of it-throw in the City of London and it is 33 -has changed, rightly. Much of that change is happening. We completed a consultation on how to use section 44 in terms of working with communities throughout London, which is all to the good as well.
Mr. Andrew Pelling (Croydon, Central) (Ind): I am grateful to the right hon. Gentleman for giving way, particularly bearing in mind what an effective Minister he was. I am sure it is a great loss that he is no longer one. Surely section 44 has been grossly abused. I was stopped and detained on suspicion of terrorism for taking a photograph of some roadworks near my local railway station. Perhaps I should have said that it was wrong to stop me, a Member of Parliament, from going about my parliamentary duties by using that law against me.
Mr. McNulty: I could make a joke about the hon. Gentleman looking shifty and all sorts of other things, but I shall not.
I think and have said, both as a Minister and subsequently, that the definition of photography in public places and how it rubs up against section 44 needs serious consideration, because most police forces throughout the country use the powers wrongly. Happily, when it is pointed out to them, they change, but I was slightly worried that in a recent court case involving a conspiracy that largely revolved around photographs taken by the individuals, some in the police family-but not all-tried to offer that up almost as justification for what police community support officers and police officers do to people going about their lawful business and taking photographs. I think the police understand that. If they do not, we need to say it louder.
Notwithstanding that, section 44 has, broadly, worked well. There has been no blanket application throughout the country. Most forces, bearing in mind the fact that I signed them off for two and a half years, were sparing in their use of the powers, unless they had a key facility such as an airport nearby, or used them and gave significant reasons why. However, none were as universal as London or areas with sensitive locations.
There is another important issue running through this debate and that on DNA, although it is not germane to the Bill: the nexus between race and the criminal justice system. I accept and have said publicly that there is a disparity in the number of young black men, especially, on the database-we heard the figures earlier-and in the criminal justice system. That is troublesome in the context not of the DNA database but of the criminal justice system.
The notion suggested recently that race is somehow no longer a factor in our politics-it is now class, apparently-is profound nonsense, especially in terms of the criminal justice system. It must matter to all of us that 77 per cent. of 15 to 35-year-old black men are on the DNA database, but not because of the database. The database, in its universal application thus far, simply reflects what is going on in the criminal justice system. My point is not that it is worrying that so many young black men are on the database; I find it worrying that so many young black men are being arrested and entering the criminal justice system that way. That is what needs to be tackled; the DNA database is purely a reflection of it. That is overcome by the measures proposed by my hon. Friends.
The same applies to stop and search. It is important to keep the ethnicity element, but although it is often said that section 44, 30 or 60 powers have been used wrongly and impinge on community relations, much of the evidence for that does not stack up, save for the relationship between where many of our communities live and the propensity for crime in those areas. I am not linking the two at all, however. This is simply about protecting those communities.
The Bill has got the provisions on DNA about right, but the matter needs to be kept under constant review. I welcome the provisions on bureaucracy, and many of the other elements that have already been put in place. I shall no doubt take further the matter of section 44 with colleagues, especially those in London-
Mr. Ellwood: And in Committee.
Mr. McNulty: Not in Committee. I have already made that very clear, and if I have to take another half an hour to make it even clearer, I shall do so. No, I shan't.
I understand the concerns expressed by the hon. Members for Woking (Mr. Malins) and for Meirionnydd Nant Conwy about the whole notion of orders. They have made the same points before. The hon. Member for Woking made some quite fair comments about the architecture-the nuts and bolts-required to achieve them. Much has been achieved on domestic violence in the past 10 years, however, in regard not only to the police interface with the victims and perpetrators, but to the proper response by our courts system and others. Where it works, it works very well, and the provisions in the Bill need to be seen in that broader context.
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