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That general proposition has to be subject to three important provisos. One is cost; another is practicality; and the third is public consent. The fact that I personally might have a particular view in the end cannot be determinative of what we as parliamentarians should decide. I am quite plain that at the moment cost and practicality argue against a national database embracing all citizens. It would be immensely costly and very difficult to achieve, and for those two reasons is probably not acceptable at present. In any event-this is the true argument against, which is decisive-there is no public consent for a national database embracing everybody.
One goes to the next question. Assuming that one is not going to have a national database embracing everybody, one has to determine in a pretty unclear way, by pretty unclear criteria, what classes of people who have not committed serious offences should have their DNA retained on the database. We are being asked to fix a time with reference to no very obvious criteria. However, there are some proper conclusions that one can ultimately arrive at. Here, in the end, I agree with my hon. Friend the Member for Hornchurch (James Brokenshire), and indeed the hon. Member for Eastleigh (Chris Huhne).
I am guided on this matter primarily by what I think that the public want, and not necessarily by what I think is the correct conclusion. The public probably want a lesser, rather than a greater, period. If one asked the public in general-if one could ever pose such a question-whether six or three years came within the framework of what they thought proper, in respect of people not convicted of serious offences, they would argue in favour of the shorter period, rather than the longer period.
The public would probably say that the DNA of people who have not been convicted should not be retained. I think that there would be real anxiety were the public fully to understand that, under the Bill, if one is reprimanded or cautioned, one's DNA will be retained; they might be somewhat surprised by that. Again, using the test of what I judge the public mood to be, and not my opinion, I think that the public would object to that.
I am quite sure that the public would demand much greater ability to remove DNA from the database, and would demand that that ability be national. In my constituency work, I am struck by the way in which it is sometimes easy for a citizen in one police force area to remove their DNA from the database, but not for a citizen in another police force area. I find that extremely difficult to justify.
To conclude, the issue is serious; I am conscious of how important a detective tool the database is, and if it is a detective tool, it is a deterrent-a point that I made to the hon. Member for Eastleigh. Then again, I have to recognise that the fact that I do not find the database intrusive into my privacy or deeply offensive is not determinative. The public have to have confidence in such instruments of policy, and they do not, I think, have confidence in the long-term retention of DNA of persons not convicted of serious offences. For those somewhat narrow reasons, I am driven to support the position of my hon. Friend the Member for Hornchurch, and that adopted by the Liberals.
I hope that this debate is not the end of the matter, in the sense that the subject is one on which the public should be engaged in continuing discussion. If one believes, as I do, that there is a case for longer retention-and
perhaps for a national database covering everybody-we should engage the public in that debate. If they will not have it, that is the end of the matter; but they might have it if the argument is fully debated over a period of time, so I hope that this discussion will not be regarded, for years to come, as wholly determinative of the issue.
Tony Baldry (Banbury) (Con): We are enjoined in both the Old and New Testaments to love justice, seek mercy and walk humbly with our God. An important part of the issue is justice and ensuring that justice is done. There is no doubt that DNA has enabled police forces across the country, through their cold case review teams, to bring to justice for serious offences of murder and rape people who would otherwise have escaped justice.
I was fortunate enough to spend 21 days with Thames Valley police as part of the police parliamentary scheme. I point out to Members of the House who ever have the opportunity of taking part in that scheme that I considered it very worth while. During that time, I spent a day with the Thames Valley police cold case review team, which, on the next day, was about to arrest a man for a rape that had allegedly been committed some considerable time before. I noted subsequently that that resulted in a conviction in the Oxford Crown court. If there had not been a DNA sample, that man would not have been brought to justice and, more importantly, the victim of that offence would not have had justice.
Although the total number of offences in which DNA leads to conviction may be statistically and comparatively small, it can lead to convictions in cases of considerable importance and can ensure that justice is done. I rather take the view of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). We all have a national insurance number that we are given when we are 16 or whenever we first apply to start work, which is a unique combination of letters and numbers that stays with us to the day we die. Our DNA profile, as opposed to a DNA sample, is, as I understand it, a unique collection of letters and numbers. I have no problem with the state's having my national insurance number-of course it must have it-and I do not personally see any problem with its having the letters and numbers of my DNA profile.
The difficulty with this debate, which has been brought forward very clearly by the Select Committee's report and by contributions made by colleagues from all parties this afternoon, is that there is not public consent to the proposal because there is an understandable feeling, as was evidenced by the rather tragic constituency case raised by the hon. Member for Hendon (Mr. Dismore), that having one's record on the DNA database means that a value judgment is being made that one either has committed an offence or has the propensity to commit an offence in the future.
There have been occasions when the police have given the impression that although they might not have managed to secure a conviction or a charge on that occasion, they think that the person involved did it and are going to keep their DNA on the database. That, coupled with the difficulties that people have had in having their DNA profile removed from the database, has tended to erode public consent in what the Government are trying to do
with this part of the Bill. Perhaps there is a message for police forces throughout the country that when they secure convictions through the use of DNA or when that use helps to lead to convictions, they ought to give that greater publicity. There might not be sufficient recognition of the contribution that DNA can make to solving crimes. There is no consent about the process.
There is an interesting point about the way in which the Bill has gone through the House. We have a Second Reading debate on the principles. We then have the Public Bill Committee, which now takes evidence from witnesses at the start of its proceedings. We took evidence from a number of people but we have now discovered that in parallel to our doing that work and the work of a Standing Committee, the Home Affairs Committee was engaged in carrying out an inquiry and taking evidence on this very specific point. For perfectly good reasons, which were explained by the right hon. Member for Leicester, East (Keith Vaz), the Chair of the Select Committee, it has only been possible for the Select Committee to publish its unanimous report today. I doubt whether Members of the House, other than those who have been in the Chamber this afternoon, will have had the opportunity to know what the Select Committee recommended.
Chris Huhne: It seems to me that it is crucial for the hon. Gentleman to recognise that on both sides of the House no one is against the national DNA database. The vast majority of crimes that are solved using the DNA database are those in which there is a match of DNA at the crime scene to somebody who is a suspect for other reasons. All that will continue. The real issue, which he is not addressing in his remarks, is that of proportionality and of adding random numbers of people to the DNA database, without that being based on their guilt or innocence. That is the issue. Does he disagree with the European Court of Human Rights that the policy that the Government have been pursuing-and, I believe, the policy that they are also proposing today-would be disproportionate?
Tony Baldry: May I come to that point in a second? I gave way, but I shall just finish my point about the Home Affairs Committee. I suspect that there are few Members of this House, other than those who are taking part in this debate, who will know that the Home Affairs Committee, in a unanimous report, has said-the right hon. Gentleman did not read out his conclusion, but I think that it is important that it is put into Hansard-that:
"Decisions on retention periods must balance public safety against individual privacy. We are not convinced that retaining for six years the DNA profiles of people not convicted of any crime would result in more cases being cleared up-let alone more convictions obtained-than retaining them for three years. We therefore recommend a three year limit, and a draft amendment to the Crime and Security Bill to this effect is in the Annex to this Report."
As everyone in the House would, I hope, agree, this is the sort of issue on which it is very sensible to try to get all-party consensus. It would be stupid to ignore the unanimous report of a Select Committee that is tasked with monitoring and scrutinising the work of the Home Office. It is a pity that, through no fault of the Committee's, only on the last day on which the Bill will be debated in this Chamber do we have the opportunity of reflecting
on what it has said. If the Government insist on using their majority to drive through a six-year period, I hope that when the Bill gets to the other place, our colleagues there will reflect on what the Home Affairs Committee has said so that we can try to get some consensus.
Mr. Hogg: In reality, of course, the Bill will not become law unless there is consent across all parties, because of the general election and the wash-up period. That being so, the Government would surely be well advised to consider the Select Committee's recommendations for the purposes of the wash-up.
Let me come back to the point that the hon. Member for Eastleigh (Chris Huhne) made. I approach this issue in a slightly different way. The whole raison d'être of the Bill was the European Court's judgment; that is why we are here. If it had not been for that, we would never have had a Crime and Security Bill, and all the other measures in it-from those on mobile telephones in prisons to those on wheel-clamping-some of which are very welcome, would never have been there. An important point that was made in Committee by me and others is that we have to be confident that whatever the Government do in the Bill will be judge-proof. I should have thought that, if anything, that would require the Government to err on the side of caution rather than go for a longer period that could mean that they end up back before the European Court.
Personally, I see no reason why anyone should be concerned about having their profile on the DNA database as long as the practice is applied broadly. I see that costs might discriminate against that, but if costs were not an issue I should not see any reason why we should not all have our DNA profiles on the database. I just do not see, from a human rights or a civil liberties point of view, why that should be a great issue. The state knows our national insurance numbers and many other details, and we now have biometric passports. In what way am I prejudiced by the state knowing that? It becomes an issue only if I think that I am being discriminated against because my data are being retained and my neighbour's are not. If I think that my information is being retained simply because I am thought to have a propensity to commit offences and because I am therefore thought less worthy than my neighbour or my colleague, of course that will encourage resentment. That point has come through in the Select Committee's report.
Chris Huhne: This is a fundamental issue. The hon. Gentleman says that it would not be prejudicial for all people's DNA to be on the database, but the key principle is surely that the state should not take unto itself powers to intrude on our personal activities unless there are very good and proportionate reasons for doing so, and that case has not been made.
I am not sure that the state's having my DNA profile would intrude on my personal activities. However, all this is otiose because I think we are of one mind on this point: whatever the Government do has to be judge-proof. The judges are against me on this,
because they have decided that there must be more constraints. I am simply making my views clear. The judges have made things clear and I think that it is in everyone's interest for the House to reach a conclusion that is judge-proof.
Let me summarise the arguments for reducing the period of retention. A unanimous report of the Home Affairs Committee urges the Government to adopt a three-year period. It must be common sense that the general principle of trying to find political consensus is in the best interests of us all. In any event, we are nearing the end of this Parliament and if we do not have general political consensus, the chances of the Bill getting through are limited, particularly because as we all know, the other place will almost certainly side with the Home Affairs Committee, rather than with the Government on the matter. Lastly, public opinion supports the Home Affairs Committee's position and a three-year limit.
For all those reasons, I hope that even at this late stage, and bearing in mind that the Home Affairs Committee's report came out only today, Ministers will contemplate accepting the amendments that reduce the period to three years. Sooner or later, they will probably have to do that if they want to get the Bill through, and it might be more sensible to do it now than wait until the wash-up period.
Mr. William Cash (Stone) (Con): I very much agree with my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), my hon. Friend the Member for Banbury (Tony Baldry) and our Front-Bench team. The new clause is extremely important. Its purpose is to ensure that a limit of three years is imposed, instead of the period prescribed in the Bill.
We are moving towards a general election and the wash-up period. If one were to make an assessment of the progress likely to be made by the Bill, one would conclude it is highly probable that because of the important issues at the heart of the new clause and amendments, the Government will have an opportunity to think again about getting some of their proposals through when the matter goes between the usual channels. The three-year period is something to hang on to. It would mitigate the difficulties that we face in what is increasingly called the surveillance society.
I listened, sometimes with a slight weariness, to the repetitious or at any rate the enlarged deliberations of the hon. Member for Hendon (Mr. Dismore) which were churned out of the Joint Committee on Human Rights. There are some distinguished members on that Committee, but I have the gravest reservations about our legislating simply because the Joint Committee on Human Rights is imbued with the idea that because it has the duty to monitor the Human Rights Act and the European convention on human rights, we should automatically pay special attention to that assumption.
The framework should be decided in Westminster. We are quite capable of deciding for ourselves what the right level is and what is proportionate. After all, most of the democracies in the world-many of the Commonwealth countries and the United States-have worked with us over many generations. We in this House are not so completely aberrant or so witless that
we cannot come up with legislation that is in favour of protecting the rights of the individual. In general, we are moving towards a surveillance society and it is extremely important that we do not allow the benefits made possible by DNA samples, which I certainly admit, to intrude on the rights of individuals.
Chris Huhne: In a very fine pamphlet recently, Peter Oborne and his co-author pointed out that the European convention on human rights was drafted substantially by British lawyers and came under enormous political pressure from this House, precisely because we wanted to establish that sort of British basis throughout the continent, so which of the human rights set out in the convention does the hon. Gentleman desire to remove?
Mr. Cash: I just do not believe in written constitutions or in the charter of fundamental rights. I believe in the rights of the people, but they should not be entrenched and then adjudicated, in respect of sensitive political matters, by judges who, by definition, are not elected. I had a debate only a few days ago with Richard Gordon QC, who has just written a book called "Repairing British Politics: A Blueprint for Constitutional Change". He calls for a written constitution, but his idea of constitutional supremacy is, unfortunately for him, dependent on the fact that all the matters in his constitution would be subjected to the European convention on human rights, the European Union and the judgments of the European Court of Justice.
I believe very strongly, and many others in this country would agree, that there are perfectly sound reasons, of which the new clause put forward by my party's Front Benchers takes account, for disagreeing with the hon. Member for Dismore- [ Interruption. ] "Dismal" came to mind, but I must not go down that route. The hon. Member for Hendon simply falls back on what the European convention on human rights and the Joint Committee on Human Rights say, but it is not the function of this House to refer continuously to those abstract principles when we are quite capable. Historically, to answer the hon. Member for Eastleigh (Chris Huhne), the fact that the convention happens to have been passed is not a justification for hanging on to it.
Mr. Richard Shepherd (Aldridge-Brownhills) (Con): I noticed how my hon. Friend let go by the contention of the hon. Member for Eastleigh (Chris Huhne) that everyone was for the convention. In point of fact, it was a highly contentious matter within Attlee's Government. It was indeed drafted by British lawyers, but there was contention, and it was about a foreign Court adjudicating on matters that had always been at the heart of the responsibility of this House.
Mr. Cash: As ever, I am extremely grateful to my hon. Friend. He and I think almost identically on these matters, and he always adds some value to the arguments that we put forward on a mutual footing.
I agree with my hon. Friend's views on proportionality in this case, but the fact is, as my hon. Friend the Member for Banbury (Tony Baldry) said, that we have to make these proposals judge-proof. Whatever my hon. Friend the Member for Stone (Mr. Cash)
may think about the European Court of Justice and so on, we have to represent its views so long as its views govern the law in this country on these matters.
Mr. Cash: Regretfully, that is correct. That is why, when I was shadow Attorney-General, I recommended, and my party accepted, that we repeal the Human Rights Act. For all the reasons under discussion, we must be quite clear about the European convention. Geoffrey Robertson QC, a very distinguished lawyer who, as he said himself, is not a known Eurosceptic, recently made it clear in a very important Standpoint article that we had to review the status of the European convention on human rights, and, as I understood his article, that we should legislate in Westminster to ensure that we strike the right balance in such matters.
This is a very important provision and a very important new clause. The hon. Member for Eastleigh prattles on-if I may be allowed to say so, somewhat pejoratively-about proportionality, but the essence of proportionality is derived from that European convention.
Chris Huhne: I am grateful to the hon. Gentleman for giving way, particularly as it allows me more time to prattle. He says that he is in favour of repealing the Human Rights Act, and we know that that is his party's position, but the burden of his remarks appears to be that we should withdraw from the European convention on human rights. Is that what he is advocating?
Mr. Cash: In the context of DNA and the potential invasion of privacy, while allowing for the benefits of the system as a whole, length of retention time, public consent and the other parameters that have already been amply discussed by my hon. Friends, there remains a very serious question: what limits should we impose? I strongly believe that we should impose only limits that are consistent with what people in this country want. If they decided in a general election, or as a result of public consultation, that they would prefer to have Westminster deciding these issues and the time limits involved, that would indicate the degree of public consent that we have in making decisions here in this House. Much as I like the hon. Member for Eastleigh, with whom I have debated these issues many times over, God knows, 20 years or so, I strongly believe that in DNA matters, or any other matters of this extremely sensitive character, we should not employ abstract principles that are decided in European Courts but could just as well have been decided by our own courts on the basis of our own legislation. This comes down to the whole question of who governs Britain and what is our role as a Member of Parliament.
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