I know that we are discussing my amendment to the programme motion, not new clause 1 itself, but it is worth saying that it is a very modest proposal that seeks only to change one line of legislation, would not cost the Government one penny, and would not affect anything in the manifesto or the coalition agreement. There would have been no harm in our having a civilised

10 Oct 2011 : Column 85

debate. Perfectly valid arguments could have been made on both sides of the issue, and the Government would have got their way in the end, so why not have a debate?

I do not want to be unfair to the Government, who have written to me and said that they are now going to have a review. That is strange. We have been campaigning on this for a whole year. For several months, we got the same letters from the Minister that we used to get from the previous Labour Minister, no doubt written by the same civil servant sitting in front of the same potted plants and serving out the same cups of tea. We made no progress whatsoever. Yet suddenly, hey presto, because 65 people are prepared to put their name to new clause 1 and because my amendment is selected for debate, we get this promise of a review. Why is it starting tomorrow or next week? Why did it not start six months ago, when the amendment was put on the Order Paper? Is this a very complex issue? I have not yet been consulted about the issue, and neither have the National Secular Society, which supports the amendment, or the Christian Institute. We are going to have a review, and the only people who will not be consulted formally are those of us in the House of Commons. What a strange situation. Is this not the home of democracy? Is it not beyond the wit of the Government and the programme managers to allow just three quarters of an hour for an important debate about freedom of speech? But no, the one body that will not be allowed to debate the issue is the House of Commons. We are told by the Government, “Oh, don’t worry, we’ll have this review”—although there can be no debate in the House of Commons—“and then the House of Lords will debate it.” However, they could have had such a review months ago. It is hardly rocket science: we are not talking about a technically complicated issue such as trying to reform the entire national health service or anything like that

I say this to hon. Members on both sides of the House: why do Governments—I am not talking about this Government; I mean all Governments—accept amendments only in the House of Lords? Why not here? Why can we not accept the revolutionary proposal that, in a grown-up way, a Member of Parliament might produce a cross-party amendment on a serious issue, the Government could consider it on its merits and it might actually be agreed to? Why do all Governments take the view that they are prepared to accept amendments only in the other place? Frankly, I have never been an enthusiast for House of Lords reform, but I am beginning to think that until the other place is reformed, the Government will never take this place seriously.

We are talking about an important issue that is too serious to delay. There are so many cases, affecting people from all walks of life: demonstrators threatened with seizure of property and arrest under section 5 of the Public Order Act 1986 for protesting against seal culling by using toy seals coloured with red food dye; the young man prosecuted for growling at two Labrador dogs; the countless street preachers harassed by police for daring to mention Bible passages that some people do not like. Just last month, a café owner in Blackpool was told by the police that displaying verses from the New Testament on a video screen was a breach of section 5. What are the police suggesting? That we should cut and paste things from the Bible but leave out things that people do not like? Many people do not like many things from the Bible, but the Bible is the Bible

10 Oct 2011 : Column 86

and if people want to quote from it, they should be allowed to do so without PC Plod tapping them on the shoulder and telling them that it is against some piece of legislation.

All those things are happening under section 5 of the 1986 Act. There is something fundamentally wrong with the way it is being used. That needs to be properly debated in the House of Commons and nowhere else. The fact that the Government have agreed—only today, as a result of all the pressure from colleagues—to discuss such matters with outside groups shows that they acknowledge that there is a problem. All I am asking for is a debate. Why are the Government so concerned about our new clause? What we are proposing is hardly radical. It would not leave the police powerless to prevent public disorder. As the former Director of Public Prosecutions, Ken Macdonald, says in his legal opinion on new clause 1, there are plenty of other powers in existence to prevent or prosecute behaviour that is abusive or risks a breach of the peace; indeed, we have always had breach of the peace powers. There are numerous other powers that could be used, but section 5 is being used as a kind of catch-all and is chilling debate.

This is an important issue and the arguments are strong. The Government might even make a concession on it in the Lords—they have as good as admitted it today—in which case why could they not make the same concession here, in the home of democracy? Why do they make concessions only in the other Chamber? I feel passionately about new clause 1 because it is what the Bill is all about. This Bill is called the Protection of Freedoms Bill, but we are not being allowed to debate free speech. I thought that the aim of the Bill was to reverse the widespread erosion of civil liberties in recent years. Well, there is no greater civil liberty than freedom of speech. It is the foundation of our civil freedoms and new clause 1, which is supported by people from all parties, is all about freedom of speech.

6.54 pm

Dr Julian Huppert (Cambridge) (LD): I shall be brief. I am not sure that the hon. Member for Gainsborough (Mr Leigh) and I necessarily agree on all things in this area, but on this we completely agree. I am a signatory to new clause 1, which I am delighted to support. It is essential that we look at this issue. We have heard, for example, that Liberty took up a case where somebody was threatened with prosecution under section 5 of the 1986 Act for peacefully holding a placard that said, “Scientology is not a religion, it is a dangerous cult”. That is a matter of opinion rather than a matter for prosecution.

Ben Gummer (Ipswich) (Con): It is also true.

Dr Huppert: So the hon. Gentleman says, from a sedentary position. I tend to agree with him, but that is a topic for another debate.

I entirely support the new clause tabled by the hon. Member for Gainsborough. However, I have concerns about his amendment to the programme motion. I would like the issue debated, but I am concerned because we need to discuss issues such as DNA and fingerprinting. DNA is a topic of particular interest to me, as someone who used to work on it, and we are at risk of reducing

10 Oct 2011 : Column 87

our debate on it to something like an hour. I am concerned about that, and for that reason I shall not be supporting his amendment to the programme motion, although I support his proposed amendment to the Bill. I very much welcome what the Minister said about how the Government are going to get on with it, and I hope that we will have an opportunity to discuss that in this House.

Mr Bone: The hon. Gentleman is making a fair point. Given what the Opposition spokesman said, does that mean that he will be voting against the programme motion in toto, so that we can have proper debate?

Dr Huppert: It might be tempting to vote against all these things. I would love to see a reform of our entire process, so that time is not taken up on things that the public simply do not understand. However, I will not vote against the programme motion. I have seen what happens in the other place when there are no programme motions, which is filibusters. I do not think that many right hon. or hon. Members in this Chamber could claim that they have not been aware of any filibusters in this House or any efforts to waste time simply to put things off—not necessarily on this occasion, but on a number of others. I would like to see better self-government by this House and the other place, and then we could move away from programme motions.

Mr Hanson: If the hon. Gentleman voted against the programme motion along with my hon. Friends and it was defeated, the Government could, if they wished to, call an Adjournment, negotiate and then draft a new programme motion that covered some of the points raised by Government Members and us. Nothing is finalised; such a programme motion could still be put in place.

Dr Huppert: I have not gone through the right hon. Gentleman’s previous speeches on such issues to see what he has said before, but such an Adjournment would take time and would be likely to result in even less time for the debate. We need to move on, and I personally would like to move on in my speech.

I very much welcome what the Minister said about the review. It is important and I look forward to it being introduced into the Bill. However, let me talk about one issue that I have with the programme motion, on which I would be grateful for the Minister’s comments. New clause 11, which stands in my name, would repeal provisions in the Digital Economy Act 2010 that the Government have already accepted do not work and which they have accepted they will not use. It would be helpful to debate that, so I would be grateful if the Minister could say whether there will be any opportunity for that to happen. Debating that issue would be helpful, partly because I and others are passionate about supporting the creative industries, and creators have problems with piracy. The 2010 Act’s approach to web blocking simply does not work. I would like a debate in this House on the alternatives. I should therefore be grateful if the Minister would comment on the Government’s intentions with regard to those provisions in the 2010 Act now, if he will be unable to do so later.

10 Oct 2011 : Column 88

6.58 pm

James Brokenshire: I am grateful for the contributions of a number of right hon. and hon. Members to our consideration of the programme motion. As I said in my opening remarks, we judge it right that the programme motion should be drafted so as to allow this House to scrutinise the key provisions that are actually in the Bill. I appreciate that a number of hon. Members would have wished to amend the Bill to include various other provisions—in particular, given the level of support for new clause 1, the amendment of section 5 of the Public Order Act 1986. My hon. Friend the Member for Gainsborough (Mr Leigh) sought to characterise that as simple or straightforward. However, I would say to him that there are complexities attached, which is why the Government would prefer to consider and reflect on the matter carefully, and to enable a public consultation to take place so as to ensure that all relevant issues are considered in the round and to inform the debate. It is worth mentioning that section 5 of the 1986 Act covers issues such as swearing at police officers and the case against the poppy burning on Remembrance day. It is therefore appropriate to ensure proper consultation before taking any action.

However, I reiterate that the intent is to move quickly to enable consideration of the results of the consultation in another place. Obviously, the consultation will provide an opportunity for hon. Members, the Christian Institute, the police and many others to set out their views, and I look forward to the debate and to meeting my hon. Friend the Member for Gainsborough to hear his views at first hand.

The hon. Member for Cambridge (Dr Huppert) mentioned the Digital Economy Act 2010. He will be aware that the Government announced in August that they did not intend to commence sections 17 and 18 of the Act. There might not be time to debate his new clause, but we are now working on a wide-scale review of the communications sector with a view to publishing a Green Paper by the spring of next year, and a draft Bill by mid-2013. Policy on tackling online copyright infringement, including site-blocking, is being considered as part of that review and, given our intention to conduct that wide-ranging review, it would be premature to act now to repeal sections 17 and 18 of the Act in isolation from any other legislative changes that might be needed.

We believe that the programme motion is right to focus on the provisions of the Bill to ensure that this House is able to apply appropriate scrutiny to the legislation before us. We have introduced important changes. I welcome the right hon. Member for Delyn (Mr Hanson) to his new position in the shadow home affairs team—he and I have had a number of debates on these issues, in relation to the Bill and elsewhere—but I think that some of his comments were a bit rich, because I can certainly remember previous occasions on which we have had less time than we have tonight to debate important legislation. This Government have made important changes that will allow us to debate these matters for two days, rather than rushing them through in one day, as would have happened in the past. I therefore commend the programme motion to the House.

Question put, That the amendment be made.

The House divided:

Ayes 62, Noes 243.

Division No. 354]

[7.1 pm

AYES

Afriyie, Adam

Aldous, Peter

Baker, Steve

Baron, Mr John

Bebb, Guto

Beith, rh Sir Alan

Binley, Mr Brian

Brady, Mr Graham

Bridgen, Andrew

Bruce, Fiona

Cairns, Alun

Campbell, Mr Ronnie

Chope, Mr Christopher

Connarty, Michael

Crouch, Tracey

Davies, Philip

Davis, rh Mr David

Dobbin, Jim

Donaldson, rh Mr Jeffrey M.

Drax, Richard

Durkan, Mark

Field, rh Mr Frank

Godsiff, Mr Roger

Gray, Mr James

Gummer, Ben

Hart, Simon

Heaton-Harris, Chris

Hemming, John

Henderson, Gordon

Hoey, Kate

Hosie, Stewart

Jenkin, Mr Bernard

Knight, rh Mr Greg

Lefroy, Jeremy

Leigh, Mr Edward

Lewis, Dr Julian

Llwyd, rh Mr Elfyn

Lucas, Caroline

MacNeil, Mr Angus Brendan

Main, Mrs Anne

McCabe, Steve

McCartney, Karl

McCrea, Dr William

McDonnell, John

Mills, Nigel

Nuttall, Mr David

Paisley, Ian

Raab, Mr Dominic

Redwood, rh Mr John

Robertson, Angus

Sandys, Laura

Soames, rh Nicholas

Turner, Mr Andrew

Vickers, Martin

Walker, Mr Charles

Walter, Mr Robert

Weir, Mr Mike

Wharton, James

Whittaker, Craig

Whittingdale, Mr John

Williams, Hywel

Wishart, Pete

Tellers for the Ayes:

Mr Philip Hollobone and

Mr Peter Bone

NOES

Amess, Mr David

Andrew, Stuart

Arbuthnot, rh Mr James

Bacon, Mr Richard

Baker, Norman

Barwell, Gavin

Bellingham, Mr Henry

Benyon, Richard

Beresford, Sir Paul

Berry, Jake

Bingham, Andrew

Birtwistle, Gordon

Blackwood, Nicola

Blunt, Mr Crispin

Boles, Nick

Bradley, Karen

Brake, rh Tom

Bray, Angie

Brazier, Mr Julian

Brokenshire, James

Brooke, Annette

Browne, Mr Jeremy

Bruce, rh Malcolm

Buckland, Mr Robert

Burley, Mr Aidan

Burns, Conor

Burns, rh Mr Simon

Burstow, Paul

Burt, Alistair

Burt, Lorely

Byles, Dan

Cable, rh Vince

Carmichael, rh Mr Alistair

Carmichael, Neil

Chishti, Rehman

Clappison, Mr James

Clark, rh Greg

Clarke, rh Mr Kenneth

Clifton-Brown, Geoffrey

Coffey, Dr Thérèse

Collins, Damian

Colvile, Oliver

Cox, Mr Geoffrey

Davey, Mr Edward

Davies, David T. C.

(Monmouth)

Davies, Glyn

de Bois, Nick

Djanogly, Mr Jonathan

Dorrell, rh Mr Stephen

Doyle-Price, Jackie

Drax, Richard

Duddridge, James

Duncan Smith, rh Mr Iain

Dunne, Mr Philip

Ellis, Michael

Ellison, Jane

Ellwood, Mr Tobias

Elphicke, Charlie

Eustice, George

Evans, Graham

Evans, Jonathan

Evennett, Mr David

Fabricant, Michael

Fallon, Michael

Farron, Tim

Featherstone, Lynne

Field, Mr Mark

Flynn, Paul

Foster, rh Mr Don

Fox, rh Dr Liam

Francois, rh Mr Mark

Freeman, George

Freer, Mike

Fullbrook, Lorraine

Fuller, Richard

Garnier, Mark

George, Andrew

Gibb, Mr Nick

Glen, John

Goodwill, Mr Robert

Graham, Richard

Grant, Mrs Helen

Grayling, rh Chris

Grieve, rh Mr Dominic

Griffiths, Andrew

Gyimah, Mr Sam

Halfon, Robert

Hammond, Stephen

Hancock, Mr Mike

Hands, Greg

Harper, Mr Mark

Harrington, Richard

Harris, Rebecca

Harvey, Nick

Haselhurst, rh Sir Alan

Heald, Oliver

Heath, Mr David

Herbert, rh Nick

Hinds, Damian

Hoban, Mr Mark

Hollingbery, George

Hopkins, Kris

Horwood, Martin

Howarth, Mr Gerald

Howell, John

Hunter, Mark

Huppert, Dr Julian

Hurd, Mr Nick

James, Margot

Javid, Sajid

Johnson, Gareth

Johnson, Joseph

Jones, Andrew

Jones, Mr David

Jones, Mr Marcus

Kelly, Chris

Kirby, Simon

Kwarteng, Kwasi

Laing, Mrs Eleanor

Lamb, Norman

Lancaster, Mark

Latham, Pauline

Laws, rh Mr David

Leadsom, Andrea

Lee, Jessica

Lee, Dr Phillip

Leech, Mr John

Leslie, Charlotte

Lewis, Brandon

Liddell-Grainger, Mr Ian

Lloyd, Stephen

Lopresti, Jack

Lord, Jonathan

Loughton, Tim

Macleod, Mary

Maude, rh Mr Francis

May, rh Mrs Theresa

Maynard, Paul

McIntosh, Miss Anne

McLoughlin, rh Mr Patrick

McPartland, Stephen

McVey, Esther

Mensch, Louise

Menzies, Mark

Mercer, Patrick

Metcalfe, Stephen

Miller, Maria

Milton, Anne

Moore, rh Michael

Morgan, Nicky

Morris, Anne Marie

Morris, David

Morris, James

Mosley, Stephen

Mowat, David

Mulholland, Greg

Munt, Tessa

Murray, Sheryll

Murrison, Dr Andrew

Neill, Robert

Newmark, Mr Brooks

Newton, Sarah

Nokes, Caroline

Norman, Jesse

Offord, Mr Matthew

Ollerenshaw, Eric

Opperman, Guy

Ottaway, Richard

Parish, Neil

Paterson, rh Mr Owen

Pawsey, Mark

Penning, Mike

Penrose, John

Perry, Claire

Phillips, Stephen

Pickles, rh Mr Eric

Pincher, Christopher

Poulter, Dr Daniel

Prisk, Mr Mark

Pugh, John

Rees-Mogg, Jacob

Reevell, Simon

Reid, Mr Alan

Rifkind, rh Sir Malcolm

Robathan, rh Mr Andrew

Robertson, Mr Laurence

Rogerson, Dan

Rosindell, Andrew

Rudd, Amber

Ruffley, Mr David

Russell, Bob

Rutley, David

Sanders, Mr Adrian

Scott, Mr Lee

Selous, Andrew

Shapps, rh Grant

Sharma, Alok

Shelbrooke, Alec

Simmonds, Mark

Simpson, Mr Keith

Skidmore, Chris

Smith, Miss Chloe

Smith, Henry

Smith, Julian

Smith, Sir Robert

Soubry, Anna

Spencer, Mr Mark

Stephenson, Andrew

Stevenson, John

Stewart, Bob

Stewart, Iain

Stewart, Rory

Stride, Mel

Stuart, Mr Graham

Stunell, Andrew

Sturdy, Julian

Swire, rh Mr Hugo

Syms, Mr Robert

Tapsell, rh Sir Peter

Teather, Sarah

Timpson, Mr Edward

Tomlinson, Justin

Tredinnick, David

Tyrie, Mr Andrew

Uppal, Paul

Vara, Mr Shailesh

Wallace, Mr Ben

Ward, Mr David

Watkinson, Angela

Weatherley, Mike

Webb, Steve

Wheeler, Heather

White, Chris

Williams, Mr Mark

Williams, Roger

Williams, Stephen

Williamson, Gavin

Wilson, Mr Rob

Wollaston, Dr Sarah

Wright, Jeremy

Wright, Simon

Young, rh Sir George

Zahawi, Nadhim

Tellers for the Noes:

Bill Wiggin and

Stephen Crabb

Question accordingly negatived.

10 Oct 2011 : Column 89

10 Oct 2011 : Column 90

10 Oct 2011 : Column 91

Main Question put .

The House divided:

Ayes 275, Noes 233.

Division No. 355]

[7.15 pm

AYES

Afriyie, Adam

Aldous, Peter

Amess, Mr David

Andrew, Stuart

Arbuthnot, rh Mr James

Bacon, Mr Richard

Baker, Norman

Barwell, Gavin

Bebb, Guto

Beith, rh Sir Alan

Bellingham, Mr Henry

Benyon, Richard

Beresford, Sir Paul

Berry, Jake

Bingham, Andrew

Birtwistle, Gordon

Blackwood, Nicola

Blunt, Mr Crispin

Boles, Nick

Bradley, Karen

Brake, rh Tom

Bray, Angie

Brazier, Mr Julian

Bridgen, Andrew

Brine, Mr Steve

Brokenshire, James

Brooke, Annette

Browne, Mr Jeremy

Bruce, Fiona

Bruce, rh Malcolm

Buckland, Mr Robert

Burley, Mr Aidan

Burns, Conor

Burns, rh Mr Simon

Burstow, Paul

Burt, Alistair

Burt, Lorely

Byles, Dan

Cable, rh Vince

Cairns, Alun

Carmichael, rh Mr Alistair

Carmichael, Neil

Chishti, Rehman

Clappison, Mr James

Clarke, rh Mr Kenneth

Clifton-Brown, Geoffrey

Coffey, Dr Thérèse

Collins, Damian

Colvile, Oliver

Cox, Mr Geoffrey

Crabb, Stephen

Crockart, Mike

Crouch, Tracey

Davey, Mr Edward

Davies, David T. C.

(Monmouth)

Davies, Glyn

de Bois, Nick

Djanogly, Mr Jonathan

Doyle-Price, Jackie

Drax, Richard

Duddridge, James

Duncan Smith, rh Mr Iain

Ellis, Michael

Ellison, Jane

Ellwood, Mr Tobias

Elphicke, Charlie

Eustice, George

Evans, Graham

Evans, Jonathan

Evennett, Mr David

Fabricant, Michael

Farron, Tim

Featherstone, Lynne

Field, Mr Mark

Foster, rh Mr Don

Fox, rh Dr Liam

Francois, rh Mr Mark

Freeman, George

Freer, Mike

Fullbrook, Lorraine

Fuller, Richard

Garnier, Mark

Gauke, Mr David

George, Andrew

Gibb, Mr Nick

Glen, John

Goodwill, Mr Robert

Graham, Richard

Grant, Mrs Helen

Gray, Mr James

Grieve, rh Mr Dominic

Griffiths, Andrew

Gummer, Ben

Gyimah, Mr Sam

Halfon, Robert

Hammond, Stephen

Hancock, Mr Mike

Hands, Greg

Harper, Mr Mark

Harrington, Richard

Harris, Rebecca

Hart, Simon

Harvey, Nick

Haselhurst, rh Sir Alan

Heald, Oliver

Heath, Mr David

Heaton-Harris, Chris

Hemming, John

Henderson, Gordon

Herbert, rh Nick

Hinds, Damian

Hoban, Mr Mark

Hollingbery, George

Hopkins, Kris

Horwood, Martin

Howarth, Mr Gerald

Howell, John

Huppert, Dr Julian

Hurd, Mr Nick

James, Margot

Javid, Sajid

Jenkin, Mr Bernard

Johnson, Gareth

Johnson, Joseph

Jones, Andrew

Jones, Mr David

Jones, Mr Marcus

Kelly, Chris

Kirby, Simon

Knight, rh Mr Greg

Kwarteng, Kwasi

Laing, Mrs Eleanor

Lamb, Norman

Lancaster, Mark

Latham, Pauline

Laws, rh Mr David

Leadsom, Andrea

Lee, Jessica

Lee, Dr Phillip

Leech, Mr John

Lefroy, Jeremy

Leslie, Charlotte

Lewis, Brandon

Lewis, Dr Julian

Liddell-Grainger, Mr Ian

Lilley, rh Mr Peter

Lloyd, Stephen

Lopresti, Jack

Lord, Jonathan

Loughton, Tim

Macleod, Mary

Maude, rh Mr Francis

May, rh Mrs Theresa

Maynard, Paul

McCartney, Karl

McIntosh, Miss Anne

McLoughlin, rh Mr Patrick

McPartland, Stephen

McVey, Esther

Mensch, Louise

Menzies, Mark

Mercer, Patrick

Metcalfe, Stephen

Miller, Maria

Mills, Nigel

Milton, Anne

Moore, rh Michael

Mordaunt, Penny

Morgan, Nicky

Morris, Anne Marie

Morris, David

Morris, James

Mosley, Stephen

Mulholland, Greg

Munt, Tessa

Murray, Sheryll

Murrison, Dr Andrew

Neill, Robert

Newmark, Mr Brooks

Newton, Sarah

Nokes, Caroline

Norman, Jesse

Offord, Mr Matthew

Ollerenshaw, Eric

Opperman, Guy

Ottaway, Richard

Parish, Neil

Paterson, rh Mr Owen

Pawsey, Mark

Penning, Mike

Penrose, John

Perry, Claire

Phillips, Stephen

Pickles, rh Mr Eric

Pincher, Christopher

Poulter, Dr Daniel

Prisk, Mr Mark

Pugh, John

Raab, Mr Dominic

Redwood, rh Mr John

Rees-Mogg, Jacob

Reevell, Simon

Reid, Mr Alan

Robathan, rh Mr Andrew

Robertson, Mr Laurence

Rogerson, Dan

Rosindell, Andrew

Rudd, Amber

Ruffley, Mr David

Russell, Bob

Rutley, David

Sanders, Mr Adrian

Sandys, Laura

Scott, Mr Lee

Selous, Andrew

Shapps, rh Grant

Sharma, Alok

Shelbrooke, Alec

Simmonds, Mark

Simpson, Mr Keith

Skidmore, Chris

Smith, Miss Chloe

Smith, Henry

Smith, Julian

Smith, Sir Robert

Soames, rh Nicholas

Soubry, Anna

Spencer, Mr Mark

Stephenson, Andrew

Stevenson, John

Stewart, Bob

Stewart, Iain

Stewart, Rory

Stride, Mel

Stuart, Mr Graham

Stunell, Andrew

Sturdy, Julian

Swayne, rh Mr Desmond

Swire, rh Mr Hugo

Syms, Mr Robert

Tapsell, rh Sir Peter

Teather, Sarah

Thurso, John

Timpson, Mr Edward

Tomlinson, Justin

Tredinnick, David

Tyrie, Mr Andrew

Uppal, Paul

Vara, Mr Shailesh

Vickers, Martin

Villiers, rh Mrs Theresa

Walker, Mr Charles

Wallace, Mr Ben

Walter, Mr Robert

Ward, Mr David

Watkinson, Angela

Weatherley, Mike

Webb, Steve

Wharton, James

Wheeler, Heather

White, Chris

Whittaker, Craig

Whittingdale, Mr John

Wiggin, Bill

Williams, Mr Mark

Williams, Roger

Williams, Stephen

Williamson, Gavin

Wilson, Mr Rob

Wollaston, Dr Sarah

Wright, Jeremy

Wright, Simon

Yeo, Mr Tim

Young, rh Sir George

Zahawi, Nadhim

Tellers for the Ayes:

Mark Hunter and

Mr Philip Dunne

NOES

Abbott, Ms Diane

Abrahams, Debbie

Ainsworth, rh Mr Bob

Alexander, rh Mr Douglas

Alexander, Heidi

Allen, Mr Graham

Anderson, Mr David

Ashworth, Jonathan

Austin, Ian

Bailey, Mr Adrian

Bain, Mr William

Baker, Steve

Balls, rh Ed

Banks, Gordon

Barron, rh Mr Kevin

Beckett, rh Margaret

Begg, Dame Anne

Bell, Sir Stuart

Benn, rh Hilary

Berger, Luciana

Betts, Mr Clive

Blackman-Woods, Roberta

Blenkinsop, Tom

Blomfield, Paul

Bone, Mr Peter

Bradshaw, rh Mr Ben

Brennan, Kevin

Brown, Lyn

Brown, rh Mr Nicholas

Brown, Mr Russell

Bryant, Chris

Buck, Ms Karen

Burden, Richard

Burnham, rh Andy

Byrne, rh Mr Liam

Campbell, Mr Alan

Campbell, Mr Ronnie

Chapman, Mrs Jenny

Clark, Katy

Clarke, rh Mr Tom

Clwyd, rh Ann

Coaker, Vernon

Coffey, Ann

Connarty, Michael

Cooper, Rosie

Cooper, rh Yvette

Corbyn, Jeremy

Creagh, Mary

Creasy, Stella

Cruddas, Jon

Cryer, John

Cunningham, Alex

Cunningham, Mr Jim

Cunningham, Tony

Curran, Margaret

Dakin, Nic

Danczuk, Simon

Darling, rh Mr Alistair

David, Mr Wayne

Davidson, Mr Ian

Davies, Geraint

Davies, Philip

De Piero, Gloria

Denham, rh Mr John

Dobbin, Jim

Dobson, rh Frank

Docherty, Thomas

Donaldson, rh Mr Jeffrey M.

Donohoe, Mr Brian H.

Dowd, Jim

Doyle, Gemma

Dromey, Jack

Dugher, Michael

Durkan, Mark

Eagle, Ms Angela

Eagle, Maria

Efford, Clive

Elliott, Julie

Ellman, Mrs Louise

Engel, Natascha

Esterson, Bill

Evans, Chris

Farrelly, Paul

Field, rh Mr Frank

Fitzpatrick, Jim

Flello, Robert

Flint, rh Caroline

Flynn, Paul

Fovargue, Yvonne

Francis, Dr Hywel

Gardiner, Barry

Gilmore, Sheila

Glass, Pat

Glindon, Mrs Mary

Godsiff, Mr Roger

Goggins, rh Paul

Goodman, Helen

Greatrex, Tom

Green, Kate

Greenwood, Lilian

Griffith, Nia

Gwynne, Andrew

Hain, rh Mr Peter

Hamilton, Mr David

Hamilton, Fabian

Hanson, rh Mr David

Harris, Mr Tom

Havard, Mr Dai

Healey, rh John

Hepburn, Mr Stephen

Hillier, Meg

Hilling, Julie

Hoey, Kate

Hollobone, Mr Philip

Hopkins, Kelvin

Hosie, Stewart

Hunt, Tristram

Irranca-Davies, Huw

Jackson, Glenda

James, Mrs Siân C.

Jamieson, Cathy

Jarvis, Dan

Johnson, rh Alan

Johnson, Diana

Jones, Helen

Jones, Susan Elan

Joyce, Eric

Kendall, Liz

Khan, rh Sadiq

Lazarowicz, Mark

Leigh, Mr Edward

Leslie, Chris

Lewis, Mr Ivan

Lloyd, Tony

Love, Mr Andrew

Lucas, Caroline

Lucas, Ian

MacNeil, Mr Angus Brendan

MacShane, rh Mr Denis

Mactaggart, Fiona

Mahmood, Shabana

Mann, John

Marsden, Mr Gordon

McCabe, Steve

McCann, Mr Michael

McCarthy, Kerry

McClymont, Gregg

McCrea, Dr William

McDonagh, Siobhain

McDonnell, John

McFadden, rh Mr Pat

McGovern, Alison

McGovern, Jim

McGuire, rh Mrs Anne

McKechin, Ann

McKenzie, Mr Iain

McKinnell, Catherine

Mearns, Ian

Michael, rh Alun

Miller, Andrew

Mitchell, Austin

Moon, Mrs Madeleine

Morden, Jessica

Morrice, Graeme

(Livingston)

Morris, Grahame M.

(Easington)

Munn, Meg

Murphy, rh Mr Jim

Murphy, rh Paul

Murray, Ian

Nandy, Lisa

Nash, Pamela

Nuttall, Mr David

O'Donnell, Fiona

Onwurah, Chi

Osborne, Sandra

Owen, Albert

Paisley, Ian

Pearce, Teresa

Perkins, Toby

Pound, Stephen

Qureshi, Yasmin

Reeves, Rachel

Reynolds, Emma

Reynolds, Jonathan

Riordan, Mrs Linda

Robertson, Angus

Robertson, John

Robinson, Mr Geoffrey

Rotheram, Steve

Roy, Mr Frank

Roy, Lindsay

Ruane, Chris

Sarwar, Anas

Seabeck, Alison

Sharma, Mr Virendra

Sheerman, Mr Barry

Shuker, Gavin

Skinner, Mr Dennis

Slaughter, Mr Andy

Smith, rh Mr Andrew

Smith, Angela

Smith, Nick

Smith, Owen

Spellar, rh Mr John

Stringer, Graham

Stuart, Ms Gisela

Sutcliffe, Mr Gerry

Tami, Mark

Thomas, Mr Gareth

Thornberry, Emily

Timms, rh Stephen

Trickett, Jon

Turner, Mr Andrew

Turner, Karl

Twigg, Derek

Twigg, Stephen

Umunna, Mr Chuka

Vaz, rh Keith

Vaz, Valerie

Walley, Joan

Watson, Mr Tom

Watts, Mr Dave

Weir, Mr Mike

Whitehead, Dr Alan

Williams, Hywel

Williamson, Chris

Wilson, Phil

Winnick, Mr David

Winterton, rh Ms Rosie

Wishart, Pete

Woodcock, John

Wright, David

Wright, Mr Iain

Tellers for the Noes:

Graham Jones and

Mark Hendrick

Question accordingly agreed to.

10 Oct 2011 : Column 92

10 Oct 2011 : Column 93

10 Oct 2011 : Column 94

10 Oct 2011 : Column 95

Protection of Freedoms Bill (Ways and Means)

Resolved,

That, for the purposes of any Act resulting from the Protection of Freedoms Bill, it is expedient to authorise—

(1) the making of provision under the Act in relation to income tax, corporation tax, capital gains tax, stamp duty, stamp duty reserve tax or stamp duty land tax in connection with the transfer of property, rights or liabilities to the Disclosure and Barring Service by a transfer scheme; and

(2) the charging of fees in connection with making datasets, or parts of datasets, available for re-use.—(Lynn Featherstone).

10 Oct 2011 : Column 96

Protection of Freedoms Bill

[1st Allocated day]

Consideration of Bill, as amend ed in the Public Bill Committee

Clause 3

Persons arrested for or charged with a qualifying offence

7.30 pm

Alan Johnson (Kingston upon Hull West and Hessle) (Lab): I beg to move amendment 89, page 3, line 43, leave out from ‘offence’ to end of line 44.

Madam Deputy Speaker (Dawn Primarolo): With this it will be convenient to discuss the following:

Government amendment 1.

Amendment 91, page 4, line 2, leave out ‘3’ and insert ‘6’.

Amendment 92, page 4, line 4, leave out ‘3’ and insert ‘6’.

Government amendments 2 to 5.

Amendment 94, in clause 4, page 5, line 32, at end insert

‘Otherwise the retention period is 6 years.’.

Amendment 83, page 5, line 34, at end add—

‘(4) If the person was under the age of 18 at the time of the offence the retention period is three years.’.

Government amendment 6.

Amendment 84, in clause 9,page 8, line 5, after ‘retained’, insert

‘for an initial period of six years, then’.

Government amendment 7.

Amendment 108, in clause 20, page 13, line 26, leave out from ‘must’ to end of line 28 and insert—

‘place a report in both Houses, after consultation with the Association of Chief Police Officers (ACPO), on the suitability of a Commissioner for the Retention and Use of Biometric Material (referred to in this section and sections 21 and 22 as “the Commissioner”.

‘(1A) Subject to the approval of a report laid under subsection (1) by resolution of both Houses of Parliament, the Secretary of State may appoint a Commissioner to be known as the Commissioner for the Retention and Use of Biometric Material.’.

Government amendments 8 to 15.

Amendment 109, in clause 25, page 16, line 27, at end insert—

‘(1A) The provisions of this Chapter may not come into force until the conditions of 20(1) have been met.’.

Amendment 85,  page 16, line 33, leave out ‘3’ and insert ‘6’.

Amendment 86,  page 16, line 39, leave out ‘3’ and insert ‘6’.

Amendment 87, page 17, line 1, leave out ‘3’ and insert ‘6’.

Amendment 88, page 17, line 4, after ‘derived’, insert ‘6 years or more’.

Amendment 82,  page 17, line 9, at end insert—

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‘(d) in the case of material taken or derived less than six years before the commencement day from a person who—

(i) was arrested for, or charged with, the offence and

(ii) has not been convicted of the offence,

the destruction of the material at the end of the period of six years beginning with the day on which the material was taken or derived.’

Government amendments 33 to 38, 65, 66, 72 and 73.

Alan Johnson: There are several amendments in this group that seek to maintain the current position on DNA retention, as agreed by this House in April 2010 under the Crime and Security Act 2010. We have debated this issue many times, so Members will know that the argument centres around for how long the DNA of those arrested or charged but not convicted should remain on the database. The Government say the period should be three years for those arrested but not convicted of a serious offence—the so-called Scottish model—whereas we say it should be six years if arrested but not convicted of any recordable offence, as agreed by this House 18 months ago.

I realise that I am susceptible to the charge of being an old, sad former Home Secretary revisiting the scene of previous debates, and I may well be guilty of that, but let me explain why I, and colleagues on both sides of the House, have proposed these amendments. When I was Home Secretary—and the newly appointed shadow Minister, my right hon. Friend the Member for Delyn (Mr Hanson), was the police Minister—we took a lot of time and trouble over this topic. We looked at all the available research before coming down in favour of a period of six years. I hope I can convince the House that we made the right decision in 2010 and that moving to the so-called Scottish model would be a terrible and potentially disastrous mistake.

This is a cross-party amendment. It is sponsored by the hon. Members for Kettering (Mr Hollobone) and for Bury North (Mr Nuttall) as well as the five supporters whose names appear, along with mine, on the amendment paper: my right hon. Friends the Members for Salford and Eccles (Hazel Blears) and for Delyn, my hon. Friend the Member for Mitcham and Morden (Siobhain McDonagh), and the hon. Members for Brigg and Goole (Andrew Percy) and for Shipley (Philip Davies).

That DNA is the most important breakthrough in modern policing, and a science in which Britain leads the world, is incontestable. It provides the police with 3,300 matches to crime scenes each month, which amount to almost 40,000 a year. It has led to forensics—the use of DNA and fingerprints—being the critical information in securing a quarter of primary detections in routine crimes such as burglary and car crime in England and Wales, as against only 6% in the mid-1990s. It has made a contribution to the huge decline in those crimes. It has also transformed the ability to detect the perpetrators of the most serious crimes: murder, manslaughter and rape. There were 832 positive matches in 2009. The European Court of Human Rights has accepted that the use of DNA evidence can make a valuable contribution to the prevention and detection of crime and the protection of the crucial rights to life, liberty and security. It said that any mechanism for the retention of biometric material must be justified as both necessary and proportionate to a legitimate aim.

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There is no question but that those convicted of a recordable offence should have their DNA stored indefinitely; that is not a point between us in this House. It is necessary but insufficient, as the Government apparently accept which is why they seek to go further. The European Court ruled that indiscriminately keeping the DNA of those arrested but not convicted of a recordable offence was not proportionate. It breached the famous article 8 on the right to privacy and family life, which after last week’s shenanigans may well be known from now on as “the cat’s clause”. [Interruption.] That sounded good in front of the bathroom mirror this morning! The issue therefore is for how long the DNA of those arrested but not charged or convicted should be retained, consistent with the principle of necessity and proportionality. The Government say three years, in accordance with the so-called Scottish model; we say six years, in accordance with all the evidence.

It is worth mentioning that the Crime and Security Act 2010 broke from the Scottish model in not retaining the physical material from which the DNA is derived. That must be destroyed within six months after it has been translated into a series of numbers known as a DNA profile. This meets an important criticism by the European Court and addresses the concerns of those who are rightly worried about the purposes to which such genomes could be put. The Scottish model retains the DNA of those arrested but not convicted of serious offences only for three years, with a provision for a two-year extension that is so complex, bureaucratic and time-consuming that it has never been used or even applied for.

The three-year retention period used in Scotland is not based on any evidence or analysis that I can find. The figure appears to have been plucked from the air. The Minister will tell us that a review of the Scottish system by a Professor Fraser a year after it was introduced proves that the system works, but that review did not assess whether a longer retention period would be beneficial or whether retention for three years was detrimental to solving serious crimes. The retention of the DNA of those arrested but not convicted can be justified as necessary and proportionate under the terms of the European Court’s decision if their risk of being re-arrested is higher than that of the general population. Analysis conducted by the Home Office suggests that that is indeed the case and that the risk falls to that of the level of the rest of the population gradually over a period of six years. It dips after three years, but it leaves a significant tail that is not eradicated until after six years.

This analysis also established that the propensity to be re-arrested is not determined at all by the nature of the original alleged offence; in other words, there is no case for maintaining the DNA of those arrested but not convicted of serious offences. For instance, Mark Dixie, the murderer of Sally Anne Bowman, had his DNA taken because he was involved in a pub brawl—a minor offence. The provisions in the 2010 Act which we seek to retain are therefore based on evidence, unlike the Scottish model which is based on no evidence whatever.

The coalition partners decided to adopt the Scottish model when they were in opposition, since when they have struggled to make the facts fit their policy, rather than their policy fit the facts. Therefore, every so often they ask for a new hazard curve—the research that was done when I was Home Secretary—the latest of which they have published and circulated, claiming, tendentiously, that it is broadly supportive of the approach taken by

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the Government. That is so in the way that health professionals broadly support the Government’s NHS reforms. This supposed new research comes up with an absolute minimum of three years, a wide variance and a health warning about the size of the data sample.

I have also today seen a piece of Home Office research that the Department sought to bury, and which was painfully extracted from it through freedom of information requests. My right hon. Friend the Member for Delyn will say more about this, but it shows that 23,000 people every year who would be on the DNA database under our proposals but not under the Bill as it currently stands will go on to commit further offences. That illustrates the scale of the crime and security problems that will be created if the House defeats this amendment and supports the Government policy.

Mrs Anne Main (St Albans) (Con): I am intrigued by the figures the right hon. Gentleman cites. Is he suggesting that being on the database for longer is a deterrent, and if so, why would people go on to offend?

Alan Johnson: Potential rapists, murderers, burglars and car thieves knowing about the science of DNA is certainly a deterrent. The argument here, which the Home Office shares both under its new management and its old management, is that we need to look at that hazard curve. The propensity of those arrested to be rearrested is much higher than for the general population. The crucial issue is how long it takes for that curve to even out. If we do not find that out and set this accurately, we will wipe the DNA of people who are likely to commit more crimes—some of them the most serious crimes—and not have the DNA to find and convict them.

The Government persist in seeking to apply the Scottish model in England and Wales, when all the evidence and the very strong police advice—from both sides of the border—is that Scotland should apply the model of England and Wales. Scotland’s rape conviction rate is less than half that of England and Wales. The DNA database in Scotland is far less effective in solving crime than that in England and Wales. In 2009-10, a DNA profile loaded on to the DNA database in England and Wales had an 18% higher chance of finding a match than was the case in Scotland. In 2008-09, 79 rape, murder or manslaughter cases were matched from DNA profiles belonging to individuals who had been arrested but not convicted, 36 of them for non-serious offences. The chief constable of the west midlands, who leads on this issue for the Association of Chief Police Officers, estimates a loss of about 1,000 matches per year if we use three rather than six years.

Let us, for a moment, turn those dry statistics into the actual facts about the people we are here to protect. Abdul Azad was arrested for violent disorder—a non-serious offence—in his Birmingham home in February 2005. A DNA sample was taken and he was released without charge. Five months later, a stranger rape occurred in Stafford, 25 miles away. There were no clues until skin from beneath the victim’s fingernails was profiled and was found to match the DNA taken from Azad. The senior investigating officer said:

“We would never have caught him had his DNA not already been on the database”.

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He continued:

“He didn’t even live locally so we had no intelligence leads either.”

Under the Government proposals before the House today, this rapist would have escaped justice.

Mr David Hanson (Delyn) (Lab): Does my right hon. Friend accept that not only would this person not have been caught, but he may well have committed further offences? That answers the point made by the hon. Member for St Albans (Mrs Main) about why it is important that we take action on this database.

Alan Johnson: Given that we know that the nature of rapists is to rape again if they get away with it, that is a very important point.

Mr Pat McFadden (Wolverhampton South East) (Lab): My right hon. Friend is making a powerful case. Will he speculate as to why the Government are doing this? Does he agree that it is based on the wrong-headed analysis that somehow the last Labour Government created a quasi-police state? If the Government start from that view, they will end up with legislation that does not protect the public, but puts them at greater risk. A few weeks ago, we saw that with the watering down of the protections against terrorism and now we see it with this proposal. Why are the Government so addicted to watering down the protection of the public?

Alan Johnson: It puzzles me. The Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup (James Brokenshire), is an honourable man. He was engaged in these debates in 2010 when the Labour Government were proposing what became the Crime and Security Act. I thought that things would have moved on since then. I read the record of the Committee stage of this Bill and saw the arguments put forward by my hon. Friend the Member for Eltham (Clive Efford), and I find the paucity of the Government’s case astounding. They latched on to something called the Scottish model. Incidentally, nobody has challenged me about there being no basis of any research for the three-year provision—Labour was in power, by the way, so I am not knocking other parties. This was a figure plucked out of the air. The Government are reluctant to examine this issue on the basis of the evidence, even to the extent of completely ignoring the police, who do have a bit of expertise in this area.

In 1995, a 17-year-old girl was walking home from a night out in Banbury when she was forced into a car by two men, taken to an isolated area and repeatedly raped. In 2003, Lee Ainsby was arrested for being drunk and disorderly, and a DNA sample was taken. Two years later, in 2005, the evidence from the rape case was re-analysed and the DNA profiles were loaded into the national database—one matched, that of Lee Ainsby. He had committed a non-serious offence and he would not have been on that database under the Government’s proposals. A sample taken from his brother matched the second sample and so both of those rapists were caught and convicted.

7.45 pm

The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire): I just wish to check on the point that the right hon. Gentleman made

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about that case. I believe he said that this individual had been convicted. As he knows, under the arrangements—I think that there is agreement on this point—where there is a conviction, the DNA would be retained indefinitely.

Alan Johnson: I did not say that this individual had been convicted. He had been arrested but not charged of a non-serious offence and his DNA remained on the database. The Minister has all these statistics—the Home Office provided me with them, so it can provide him with them too.

Gareth Johnson (Dartford) (Con): Will the right hon. Gentleman concede that unless we take the DNA of every man, woman and child in the country there will always be instances when DNA is found at the scene and not matched with any offender?

Alan Johnson: I will not concede that argument because, as I said at the beginning, our job, in accordance with the European Court of Human Rights judgment, was to come up with something that is necessary and proportionate. There has to be a logic to this; we cannot have blanket and indiscriminate retention of DNA. Because that is the requirement on us, we need to examine and research, as the Home Office and others have done, the hazard curve for those arrested but not convicted—that is the whole nature of this debate. The Government are not proposing to not keep the DNA of those arrested but not convicted, they are not proposing to take the DNA on conviction and they are not proposing to take the DNA when someone is charged. They are taking the DNA of those arrested but not convicted—innocent—for a reason; they think that it should be kept for three years, with various permutations and lots of complications. Labour Members say that six years is the correct level.

I shall give a final example, because it is important to translate all this into people rather than statistics. In June 2009, Gary Grubb attacked two women while working temporarily in Middlesbrough, indecently assaulting them both and then fleeing for South Africa. However, a DNA sample from the crime scene matched a sample placed on the national DNA database after he was arrested but not convicted for drink-driving—a non-serious offence—in 2006. He was arrested when he tried to re-enter the UK in 2010 and was sentenced to 10 years in prison. He would be free today if the proposals in this Bill had been in force at the time.

Let me say to Members on the Government Benches that lots of these cases will crop up in the future and this will come back to haunt them if they decide to support what is in this Bill today. The Government are ignoring these and the many other examples of the folly of their dogmatic approach. Their attempt to take the moral high ground consists of trotting out a mantra about these measures being consistent with the principle of innocent until proven guilty. That would be the case only if DNA were taken on conviction. Everybody is innocent when it is checked against previous crime scenes—there is nothing wrong with that, apparently—and the collective view is that DNA should be maintained to match against future crime scenes for a limited period. The Government do not even seek to return to the situation pre-2003, when DNA was taken upon someone’s being charged, not upon their being arrested. The

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Government will continue to take DNA upon arrest, when every person from whom a sample is taken will be innocent. They now propose, under amendment 5, to introduce a convoluted, bureaucratic system to retain the DNA of innocent people where

“the retention of the material is necessary to assist in the prevention or detection of crime.”

So someone is innocent until proven guilty, unless they are innocent of a serious offence, in which case they will have their DNA retained under a procedure that is bureaucratic, convoluted and complex, and that the police are unlikely to use, as with the Scottish extension.

We are now to have the gloriously named “biometric commissioner”. I remember when my son was small buying him a bionic man—Steve Austin was “the bionic man”—and we now have the biometric commissioner. At best, he will have to open a file for each of the 17,000 suspected rapists, and the police will have to put forward a case in respect of every one of those 17,000 suspected rapists that Rape Crisis says are likely to be wiped off the DNA database. At worst, as Rape Crisis fears, those 17,000 profiles, or a large proportion of them, will be wiped.

Although all the evidence points to the need to adopt this amendment, we all need to accept that much of the research is based on projection. We do not have the six years of actual evidence required to make a proper assessment, and if we carry the Bill unamended we never will. DNA profiles for those arrested but not charged or convicted that are more than three years old will be wiped, never to be retrieved. Let us accept the amendment so that the proper assessment of all the evidence, when we have six years’ worth of it, can take place in a few years’ time. We can go from six years down to three, but we will never be able to go from three years up to six, which is why my right hon. Friend the shadow Home Secretary has implored the Government—they might be right about the three-year limit, although we doubt it, and it might even be necessary to have a limit of four or five years—to wait until we have evidence rather than projections. Is that not eminently sensible, given that we are dealing with life and death and issues that are so pertinent to criminal justice and so important to our constituents?

The role of the Home Office for the past 229 years of its existence has been to weigh the rights of the individual against the needs of society as a whole. For the Government to pursue their retention policy against all the available evidence and in the teeth of fierce opposition from the police, who will be restricted in their ability to catch criminals, and in defiance of the sensible alternative of reviewing the situation when more reliable evidence is available, is a huge, avoidable and potentially catastrophic error that they will live to regret.

James Brokenshire: One point of agreement between me and the right hon. Member for Kingston upon Hull West and Hessle (Alan Johnson) is that I think that this is a question of balancing collective protection and individual freedom. We can agree on that much, but in some ways the right hon. Gentleman is looking through the other end of the telescope. Through the indefinite retention regime that was the hallmark of the previous Labour Government, he seeks to retain data and information for as long as possible in case it becomes useful. I think he was accusing us of being dogmatic on

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this point in some ways, but he and his right hon. and hon. Friends come at it from the perspective that they want indefinite retention of everyone’s DNA for as long as possible. Our starting point is different. Our concept is that of innocent until proven guilty, so we come at this from a different direction.

I shall address some of the right hon. Gentleman’s direct points, but, as this is a wide-ranging group of amendments, it might assist the House if I explain the Government’s amendments before responding to those tabled by the right hon. Gentleman and others.

Clive Efford (Eltham) (Lab): Will the Minister give way?

James Brokenshire: I will give way to the hon. Gentleman, who played a key part in Committee. I am sure that I will welcome his contribution to the debate.

Clive Efford: The Minister has just said that he has accepted the principle of innocent until proven guilty, but will he confirm that everyone who is arrested will, at the point at which they are arrested, have their DNA sample taken and checked against the national DNA database, so that principle does not hold? The Government accept the principle that innocent people will have their DNA retained for up to three years for various crimes, so does he accept that we are debating the principle of who should have their DNA retained for three years or for six years? On the question of people’s civil liberties, will the Minister take into consideration the civil liberties of those who might be the victims of crimes that will not be detected because of the position that the Government have taken?

James Brokenshire: I say to the hon. Gentleman—he and I had a fair and clear debate on this matter in Committee—that the Government take into consideration the position of the victim, which is why I said that that principle was our starting point. That is why we are adopting the provisions in the Bill. We recognise that more than 5.7 million people are on the national DNA database and about 70% of the profiles in the EU are on our national database, so it important—and our responsibility—to consider the issues extraordinarily carefully to ensure that we judge the balance correctly.

I shall go briefly through the Government’s amendments before returning to the important issues of principle and to do with the duration of retention. Government amendments 1 to 15, 33 to 38, 65, 66, 72 and 73 fine-tune the provisions governing the retention of DNA. In a number of cases, they pick up on points raised in Committee. The key amendments all touch on the role of the commissioner for the retention and use of biometric material and I shall detail those amendments first.

When we considered clause 3 in Committee, the hon. Member for Eltham (Clive Efford) and others expressed concern that much of the detail about the arrangements for retaining biometric material taken from those arrested for, but not charged with, a qualifying offence was left to subordinate legislation. I gave the hon. Gentleman an undertaking that the Government would take the issue away and consider it. The Joint Committee on Human Rights also raised concerns about the issue in

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their recent report on the Bill. We have considered the issue further and agree that it is appropriate to place such detail on the face of the Bill. Amendments 1 to 5 therefore remove from clause 3 the existing order-making power for the Secretary of State to prescribe circumstances in which such retention would be permitted and replace it with new section 63FA of the Police and Criminal Evidence Act 1984.

New section 63FA sets out the circumstances in which a chief officer of police may apply to the commissioner to retain DNA profiles and fingerprints of those arrested for, but not charged with, a serious offence. The first circumstance, in new section 63FA(2), is where the victim of the alleged offender is a minor, a vulnerable adult or is “associated” with the suspect. The second circumstance, in new section 63FA(3), is where none of the criteria in subsection (2) apply but the chief officer none the less considers it necessary to retain the material to prevent or detect crime. The chief officer must give the person to whom the biometric material relates a copy of the application made to the commissioner. It is then open to that person to make representations to the commissioner within 28 days and it will then fall to the commissioner to determine the application based on these papers. Amendment 15 to clause 24 enables the National DNA Database Strategy Board to provide guidance to the police in such cases, thus helping to ensure consistency in the making of applications to the commissioner. Amendment 9 to clause 20 ensures that the provisions dovetail with the Terrorism Prevention and Investigation Measures Bill.

In addition to the commissioner’s review function in individual cases, we believe that the commissioner should also have a more general oversight role. Amendment 11 therefore extends the role of the commissioner to provide him or her with a general function of keeping under review the retention and use of DNA and fingerprints by police and other law enforcement authorities.

I draw the House’s attention to amendment 7, which makes two further exemptions from the normal retention rules. First, new subsection (2A) of section 63T of PACE, inserted by clause 17, ensures that the police can retain hard copies of material on case files. That is in order to ensure that a copy of the material remains available for examination by defence experts, and potentially the Criminal Cases Review Commission, in accordance with the disclosure provisions of the Criminal Procedure and Investigations Act 1996. The changes are therefore intended to ensure that the provisions discharge CPIA compliance obligations. The CPIA exists to prevent miscarriages of justice and I am sure that we would all agree that nothing in the Bill can undermine that purpose.

In order to enable the police to meet their obligations, new section 63T(2A) provides for the police to retain the minimum amount of biometric material necessary. So the records on the DNA and fingerprint databases would be destroyed in accordance with the existing provisions of the Bill, leaving only hard copies on the police case file that could be examined by the defence or the Criminal Cases Review Commission as necessary.

The second part of amendment 7, which inserts new subsection (2B) of section 63T, arises from a concern raised with us by Forensic Science Northern Ireland. The service was concerned that, because of the way that PACE is drafted, all samples taken compulsorily from a suspect would be caught by the requirement to destroy

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them in clause 14 of the Bill. That would include material originating from another person that is evidence of contact between people and would often be key evidence in a trial examining that contact. An example may be where traces of a victim’s blood have been taken from a suspect’s hand. New subsection (2B) of new section 63T therefore provides that where material is taken from one person that originates from another it is not required to be destroyed within six months but can be retained for as long as is necessary in the same way as crime scene material can because it is, essentially, crime scene material.

8 pm

Let me address the amendments in the name of the right hon. Member for Kingston upon Hull West and Hessle and others. As we have heard, the amendments return to the question of how long we should retain the DNA and fingerprints of innocent people. They would replace the Government’s provisions, which meet our coalition commitment to adopt the protections of the Scottish model, with the core of the previous Government’s Crime and Security Act 2010.

Steve McCabe (Birmingham, Selly Oak) (Lab): Will the Minister give way?

James Brokenshire: I will, because I know that the hon. Gentleman has taken a close interest in these matters for some time.

Steve McCabe: The country’s police chiefs have rather helpfully told us that large numbers of those who were arrested following the summer riots were arrested because of matches against the existing DNA database. Has the Minister undertaken any work to ascertain how many of those would have escaped justice under his proposals?

James Brokenshire: The hon. Gentleman highlights a key issue—the retention of the DNA of those convicted of offences, with which I absolutely agree. Some 75% of those who were engaged in the rioting—or, at least, those who were brought before the courts—had committed prior offences. That clearly makes the point that there is a need to put the DNA of those who are guilty of crimes on the database, rather than keeping those who are innocent of any crime on it, which is the approach of the Opposition and was the approach of the previous Government. The Labour party persists in its approach of keeping the DNA and fingerprints of innocent people for many years, no matter what those people have been accused of and no matter how little evidence was ever uncovered in relation to them.

It is worth putting these issues into context. Of course, DNA is important. I fully recognise the scientific breakthrough of being able to take DNA to search against the database and, most importantly, to retain crime scene DNA evidence in a cold case database against which matches can be made. However, the collection of DNA is part of a process of investigation and is not a panacea in itself. I think that if the Labour party could have its way, it would continue with the previous approach of simply trying to put more and more data on the database regardless of people’s guilt or innocence. However, it is interesting to look at what has been the result of adding many more people on to the database. In 2004-05, 2.8 million people were on the national

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DNA database and in 2009-10, the figure was 4.8 million people. Now, let us look at the number of detections in those years. In 2004-05 there were 35,605 and in 2009-10 there were 32,552, so when there were 2 million more people on the database, there were 3,000 fewer detections. I therefore challenge the suggestion of the right hon. Member for Kingston upon Hull West and Hessle that the more people’s DNA is on the database, the more effective it is. The figures do not necessarily equate in that way, as the historic evidence shows.

Alan Johnson: The total number of detected crimes in which a DNA match was available fell by 11% between 2003-04 and 2008-09—that is what the Minister basically just told us—but over the same five-year period, police recorded crime fell by 17.1%. So there was an 11% reduction in DNA detections and a 17.1% reduction in recorded crime. Those are the figures that the Minister of State, Department for Work and Pensions, the right hon. Member for Epsom and Ewell (Chris Grayling) tried to fiddle in the previous Parliament. Burglary was down 29%, vehicle crime was down 40% and criminal damage was down 23%—so much for fewer cases being solved through DNA.

James Brokenshire: As a proportion of total detections, DNA detections have remained pretty static. If the right hon. Gentleman is right that the figures I gave were all down to there being less crime—I think that is his argument—what he said about DNA detections would not be the case. Some 2 million extra people have been put on to the database and if hon. Members are suggesting that that change has been positive and would generate many more detections, I am afraid to say that that is not borne out by the evidence.

Mr David Davis (Haltemprice and Howden) (Con): I think this is quite a good indicator of how much the Labour party played with the politics of this issue when they were in government rather than dealing with the reality. The biggest handicap to the use of DNA in evidence is collection at the crime site, which is very poor. Our police have been poor at that for a long time but Labour did nothing about that throughout the entire period being discussed.

James Brokenshire: My right hon. Friend makes a very important and powerful case about the effective use of DNA and the fact that crime scene issues can be very important in the detection of crimes and in ensuring that perpetrators are brought to justice.

Ms Diane Abbott (Hackney North and Stoke Newington) (Lab): Will the Minister give way?

James Brokenshire: I will give way because I know that the hon. Lady has focused closely on the disproportionate impact that the DNA database can have on some minority communities. I will be very interested to hear her thoughts.

Ms Abbott: I will of course be supporting the amendment in the Lobby tonight, but is the Minister aware that the professor who devised the use of DNA detection processes, Professor Jeffreys, is against keeping the DNA of innocent people? He argues that the amount of DNA that has to

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be held for that purpose and the intrusion of civil liberties that that brings is not justified by the marginal improvements in detection.

James Brokenshire: The hon. Lady, who has taken a close and personal interest in these issues for a number of years, makes an important point. I know that some people will say that we should take everybody’s DNA from birth and that this would solve all the problems, but neither party seeks to make that argument here, although some people may. The issue of disproportionality is very important when considering how to strike the right balance on what the retention period should be, on how DNA is used and on the protections that are afforded. That is why we have taken the approach we have in the Bill.

Mr Philip Hollobone (Kettering) (Con): Will the Minister give way?

James Brokenshire: I will, because I know that my hon. Friend has put his name to some of the amendments.

Mr Hollobone: On the gap between the fall in DNA detections and the fall in crime, my hon. Friend the Minister is ignoring the deterrent effect, which my hon. Friend the Member for St Albans (Mrs Main) mentioned earlier. If one’s name is on the database, one is less likely to commit crime and therefore will not be detected, so the matches will go down less than the crime rate is falling. I think that my constituents will be alarmed that there are 23,000 people on this database whose details will be wiped if we go along with the Government’s suggestions. The former Home Secretary has pointed out that on the hazard curve, they are likely to be rearrested within that missing three-year period.

James Brokenshire: That point was made by the right hon. Member for Kingston upon Hull West and Hessle, but I pray in aid Professor Fraser’s report. I appreciate that the right hon. Gentleman says that the terms of reference were not wide enough and that it is not appropriate to rely on the report, but those terms of reference took account of available information and experience elsewhere when the appropriateness of the Scottish system was considered. Indeed, it was the right hon. Gentleman’s colleague in the other place, Lord Bach, who said:

“In determining the appropriateness of the current legislation, Professor Fraser considered data on reoffending rates and conducted a wide consultation. He did not uncover any evidence to suggest that this approach to retention has caused any detriment to the detection of serious crime in Scotland.”

I therefore think it is appropriate to look to Professor Fraser’s investigation, as he is a learned expert on forensics, rather than simply trying to skate over and ignore it as the right hon. Gentleman appears to be doing.

Alan Johnson: According to the evidence that the hon. Gentleman’s Department gave to the Home Affairs Committee,

“It has been suggested that the research carried out into the Scottish system (by Professor Fraser) did not uncover any evidence to suggest that the Scottish approach to retention had caused any detriment to the detection of…crime…However, that is to

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misunderstand this research which did not assess whether alternative systems would have been more effective. It was also unable to review how many serious crimes went undetected as the relevant DNA profiles had been deleted and, therefore, was not in a position to conclude whether there was any detriment to the detection of serious crime.”

That is the hon. Gentleman’s Department’s evidence to the Select Committee—collapse of stout party.

James Brokenshire: Again, I would point to the right hon. Gentleman’s colleagues in the Ministry of Justice, who obviously wrote the letter saying that Professor Fraser’s report came to the conclusion that there was no detriment to the detection of serious crime. As I have highlighted, Professor Fraser’s report was wide-ranging in scope. Needless to say, we have a difference of view on this important point.

Dr Julian Lewis (New Forest East) (Con): In deciding whether to support the amendment or the Government tonight, I have to balance the loss of rights of those people who had crimes committed against them, or who may have crimes committed against them as a result of reducing the period of the retention of DNA from six years to three, against the injustice that might be visited on innocent people whose DNA is kept for three years longer than it otherwise would be. Can the Minister tell me, in words simple enough even for me to understand, what exactly the loss of human rights and the injustice will be to those innocent people who have their DNA kept for three years longer before it is wiped? Can he compare that with the suffering of victims who have crimes committed against them by people who will not be detected?

James Brokenshire: This is about getting the right people on the national DNA database. By that, I mean those who have been convicted of crimes. We should focus on those who have committed crimes; we should look at recidivism and getting persistent prolific offenders, those who have been in prison and those who have committed crimes on the national DNA database. Interestingly, that was not the approach of the previous Government; they were more fixated with keeping the innocent on the national DNA database. If we take the approach that I suggest, we can ensure that we focus attention where it is needed, and that we do our duty—this is something that I take very seriously—when it comes to protecting the public and ensuring that the police can do what is necessary. I certainly believe that the provisions before the House will enable the police to do that.

Dr Lewis: My hon. Friend is very generous in giving way, particularly as he knows that this will not be a supportive question. With the greatest respect, he did not answer my question, which was: in practical, simple terms, in what way will these innocent people—let us accept that they are innocent—who will have their DNA kept on record for an extra three years suffer, or have their rights infringed? Can we compare that with the suffering and infringed rights of people who will otherwise have crimes committed against them by criminals who go unpunished?

James Brokenshire: When I look at the Members of Parliament who contact me about the DNA database, there are not huge stacks of correspondence relating to the retention of DNA. The correspondence relates to

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the many people who complain about their DNA remaining on the national DNA database when they are innocent of any crime, and who say how that offends them. Let us look at some of the cases involved. GeneWatch UK has been quite helpful in highlighting the issues. There is the 12-year-old schoolboy arrested for allegedly stealing a pack of Pokémon cards; the grandmother arrested for failing to return a football that was kicked into her garden; the 10-year-old victim of bullying who had a false accusation made against her; and the 14-year-old girl arrested for allegedly pinging another girl’s bra. Those people have been arrested; their DNA would be retained under the arrangements that the previous Government seemed to laud. That issue of injustice is very much at the heart of the matter.

Mr Hanson: Will the hon. Gentleman place in the Library information on exactly how many letters he has received on the topic and how many complaints he has had, as compared with the number of innocent people who will be killed, raped, maimed or injured because of the proposals before the House?

8.15 pm

James Brokenshire: I am sorry that the right hon. Gentleman has chosen to try to take us down that path. I am speaking honestly and fairly about the correspondence that comes from hon. Members on both sides of the House on the injustice that some minority communities feel in particular. The hon. Member for Hackney North and Stoke Newington (Ms Abbott) has highlighted how acutely many communities feel about the issue.

Ultimately, it comes down to a question of judgment and balance. The Labour party, when in government, did not focus properly on putting the guilty on the database. We are focused on doing that, and on not retaining all the DNA of those innocent of any crime. The right hon. Member for Kingston upon Hull West and Hessle may perhaps suggest that privacy is in some way a science, but it is not. Liberty cannot be decided on by testing in that way. It is a question of judgment and looking at the evidence, and reaching a conclusion on how to strike the balance fairly between collective protection and individual liberty.

As for what has been said about the previous Government’s proposals, the right hon. Member for Kingston upon Hull West and Hessle may pray in aid all sorts of things, but there was very limited support for the idea that six years was appropriate. We believe that the protection given by the Scottish model means that that is the right approach, and it strikes the right balance, and I therefore commend it to the House.


Mr Hanson: I confirm to the Minister that this is a matter of judgment—a judgment as to whether one is on the side of victims and the prevention of crime. There are very difficult issues that the Minister knows we have wrestled with to do with balancing civil liberties with the protections that my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson) has so eloquently spoken about today. I pay tribute to him; he has made a compelling case that Government Members ignore at their peril. I do not say that to the Minister in a threatening way; I am simply

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saying that I suspect that there will be people who are victims of crime because he rejects my right hon. Friend’s amendment this evening.

The Minister will know that my right hon. Friend and I included the provisions that we are discussing in the Crime and Security Act 2010 after considerable thought and consideration of the European judgments that were brought against us. We tried to balance the civil liberties of the British people with their ability to secure their future, free of murder, rape and crime. The Minister will know that there are balances to be struck; ministerial life is about balances. I accept the point made by the hon. Members for New Forest East (Dr Lewis), for Dartford (Gareth Johnson), and for St Albans (Mrs Main): if the amendment tabled by my right hon. Friend is accepted, there will be people whose DNA is on the database for three years longer than the Government propose. Those people may not commit a further crime, and they may well feel aggrieved, but the purpose of the House is to protect the rights of citizens as far as we can.

When my right hon. Friend and I were in government, and were Ministers in the Department in which the Minister is now privileged to serve, we felt that, within European law and within the rights of protection of those liberties, we should try to extend the window of opportunity so as to protect as many people as possible, by ensuring that DNA was collected. We have to balance the aggrieved feelings that the hon. Member for New Forest East mentioned with the rights of citizens as a whole. There will undoubtedly be people who feel aggrieved, but we have to accept those consequences. Ministerial life is about making not just judgments, but the right judgments. On this occasion, the Minister has got that judgment wrong.

Britain is leading the world in DNA technology, which provides critical investigative leads. The DNA database provides the police with almost 3,300 DNA matches per month. There were 832 positive matches on the DNA database in cases of rape, murder, and manslaughter and other serious crimes in 2009. My hon. Friend the Member for Birmingham, Selly Oak (Steve McCabe) mentioned his concerns; Chris Sims, the chief constable of the West Midlands police, who leads on the issue not for the West Midlands but for the Association of Chief Police Officers, has said that much more detailed information is important to ensure that we protect the public from serious crime. There is no dispute about the fact that three years should be included in the Bill—both sides have accepted that. We are arguing for the maximum envelope that we introduced in 2010, which will protect future victims of crime.

Nicola Blackwood (Oxford West and Abingdon) (Con): In the oral evidence given to the Select Committee on Home Affairs by Chris Sims of ACPO on 5 January 2010, it was clear that while DNA evidence is an important tool used by the police, it is just one tool that is used in 0.67% of convictions.

Mr Hanson: Why make the police’s job harder? There are people who would be on the database because they have been caught—they have not been charged or convicted—whose DNA would be on record for between three and six years. My right hon. Friend eloquently described cases that led to people being arrested who would not otherwise be arrested. Those people have

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been arrested, and as a result they have not committed more crimes: they have not gone on to rape if they are serial rapists; they have not gone on to kill if they are serial killers; and they have not gone on to commit serious violence if they are individuals who commit serious violence. The public is safer, so I do not understand why the so-called party of law and order can sit back and watch a Minister roll back crime-fighting tools that would save people from becoming victims of crime in future.

Unpublished evidence, which freedom of information requests have dragged out of the Home Office—my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) mentioned this last week—shows that every year, 23,000 people, who under Labour’s system would be on a DNA database, will, under Government plans, go on to commit further offences. In the next eight minutes of this short debate, I urge the Minister to tell us which one of those 23,000 crimes he can explain to future victims of crime? Can he look them in the eye and say, “We could have stopped that and prevented it from happening, but we chose, for the sake of the civil liberties of the few”—and I accept those few do have civil liberties—“to allow 23,000 people to become victims of crime in future.”

Of those 23,000, some 6,000 a year will go on to commit serious crimes, including rape, sexual offences, murder and manslaughter. The Government’s so-called hazard curve supports Labour’s six-year retention plan, rather than three years. Members do not have to believe me or the Home Office: that is independently verified by the House of Commons Library. Changes to DNA evidence will make it harder, not easier, for the police to catch and convict criminals. The Government’s weakening of the DNA database goes against Home Office evidence, and 17,000 people arrested but not charged with rape will, amazingly, be removed from the database, thus putting more women at risk.

I hope that the Minister will reflect on that, and listen to my right hon. Friend the Member for Kingston upon Hull West and Hessle, who has served this country in high office, and who has looked at the issue seriously to protect the public, as we all have. We will not crow in triumph if the Minister supports my right hon. Friend’s amendment: we will cheer his common sense. If he does not support the measure, perhaps he can look at amendment 108, which was tabled by my hon. Friend the Member for Gedling (Vernon Coaker), whom I congratulate on his promotion to the shadow Cabinet, where he will serve with distinction. My right hon. Friend’s amendment, which I am pleased to support, suggests that perhaps we could delay the measure for a few years, so that we could consult ACPO on what is going to happen.

At the moment, the Bill allows police forces to apply to the so-called biometric commissioner for provisions on those who are arrested but not charged, which means that police forces can effectively say that they do not want to have someone deleted from the database. There could be an additional 17,000 cases, and how much police time will be devoted to that? The Minister is transferring risk from the Home Office to the chief constable of every force in the country, who will say, “I will not apply for that risk. I will not apply to ensure that that happens.” What will the work load be for the biometric commissioner? What resources will they have?

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Who is responsible if a chief constable applies for a waiver, it is not dealt with, and the person concerned commits a further offence?

The Minister has not thought through his proposals, and as my right hon. Friend said, this is about people. It is about John Warboys, the black-cab rapist, who was caught because his DNA was stored when he was arrested, but not charged, for a sex assault. [ Interruption. ] I would love to give way to the Minister, but his programme motion allows us four more minutes of discussion, and my right hon. Friend needs to reply. If he wishes to reconsider his position, I will certainly give way. The black-cab rapist was caught as a result of DNA evidence. [ Interruption. ] Well, Kensley Larrier, whom we discussed at length in Committee in 2010—officials presented good information then, so it must be correct, as it was the information supplied at the time—was arrested in May 2002 for the possession of an offensive weapon. His DNA would not be retained under Government plans, but he was jailed for five years, and his name added to the sex offenders register for life.

Mark Dixie murdered 18-year-old Sally Anne Bowman close to her home. DNA evidence was retrieved from the murder victim, and within five hours, he was under arrest, and sentenced to life imprisonment. I do not want to see other Mark Dixies wandering the streets in those three years; I do not want crimes to be committed by other individuals who could be caught and stopped. I accept that civil liberties issues are at stake, but our job is to balance those civil liberties, and make a judgment that protects the public. I urge my right hon. and hon. Friends to support the amendment tabled by my right hon. Friend, because this is about judgment. His judgment is right, and I believe that the judgment of Opposition spokespeople is right. I believe that, sadly, if the Minister does not change his mind, the Government’s judgment will be shown to be flawed in due course.

Alan Johnson: I have been a Member of the House for 14 years, and I have not heard such a feeble reply from a Minister, not because he is any way inadequate—he is a very good Minister—but because the paucity of the argument is unbelievable. We heard an argument from the Opposition that there was no research behind the three-year Scottish model—that argument was not refuted. The Opposition made the argument that there is no evidence whatsoever that suggests that if someone is arrested, but not convicted of a non-serious offence, that makes a difference to their propensity to go on and be arrested for a serious offence. We put forward evidence about the proportion of DNA evidence and forensics that are used increasing from 6% in the mid-1990s to 25% now, showing the importance of DNA evidence. We put forward evidence of individual cases where, if the Government’s policy became law, murderers and rapists would not be caught, because their DNA would not be on the database.

The arguments that we get back are that the Government originally wanted to keep DNA indefinitely, which is not pertinent to the argument today, or that we would have as many names on the DNA database as we could, as though we were evil repressionists, which may be what the Minister believes, whereas those on the Government Benches are civil libertarians to the core, despite the fact that most of them want to abolish the

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Human Rights Act. The Government need to engage in the argument. There is no evidence for what they are seeking to do—no evidence whatever about three years. The evidence that has emerged since the Scottish model was introduced in 2007 supports six years. All the projections made by the Department indicate that DNA should be kept for six years.

We are seeking to save the Government from themselves. Members on the Government Benches had better understand, as those who support the amendment understand, that the issue will come back to haunt the Government. The question put by the Leader of the Opposition to the Prime Minister about the number of rapists being wiped off the DNA database is only the start. Ignore the amendment and the Government make trouble for themselves, as well as making this country a less safe and secure place.

Question put, That the amendment be made.

The House divided:

Ayes 232, Noes 291.

Division No. 356]

[8.29 pm

AYES

Abbott, Ms Diane

Abrahams, Debbie

Ainsworth, rh Mr Bob

Alexander, rh Mr Douglas

Alexander, Heidi

Allen, Mr Graham

Anderson, Mr David

Ashworth, Jonathan

Austin, Ian

Bailey, Mr Adrian

Bain, Mr William

Banks, Gordon

Barron, rh Mr Kevin

Beckett, rh Margaret

Begg, Dame Anne

Bell, Sir Stuart

Benn, rh Hilary

Berger, Luciana

Betts, Mr Clive

Blackman-Woods, Roberta

Blenkinsop, Tom

Blomfield, Paul

Bradshaw, rh Mr Ben

Brennan, Kevin

Brown, Lyn

Brown, rh Mr Nicholas

Brown, Mr Russell

Bryant, Chris

Buck, Ms Karen

Burden, Richard

Burnham, rh Andy

Byrne, rh Mr Liam

Campbell, Mr Alan

Campbell, Mr Ronnie

Chapman, Mrs Jenny

Clark, Katy

Clarke, rh Mr Tom

Clwyd, rh Ann

Coaker, Vernon

Coffey, Ann

Connarty, Michael

Cooper, Rosie

Cooper, rh Yvette

Creagh, Mary

Creasy, Stella

Cruddas, Jon

Cryer, John

Cunningham, Alex

Cunningham, Mr Jim

Cunningham, Tony

Curran, Margaret

Dakin, Nic

Danczuk, Simon

Darling, rh Mr Alistair

David, Mr Wayne

Davidson, Mr Ian

Davies, Geraint

Davies, Philip

De Piero, Gloria

Denham, rh Mr John

Dobbin, Jim

Dobson, rh Frank

Docherty, Thomas

Dodds, rh Mr Nigel

Donaldson, rh Mr Jeffrey M.

Donohoe, Mr Brian H.

Dowd, Jim

Doyle, Gemma

Dromey, Jack

Dugher, Michael

Durkan, Mark

Eagle, Ms Angela

Eagle, Maria

Efford, Clive

Elliott, Julie

Ellman, Mrs Louise

Engel, Natascha

Esterson, Bill

Evans, Chris

Farrelly, Paul

Field, rh Mr Frank

Fitzpatrick, Jim

Flello, Robert

Flint, rh Caroline

Flynn, Paul

Fovargue, Yvonne

Francis, Dr Hywel

Gapes, Mike

Gardiner, Barry

Gilmore, Sheila

Glass, Pat

Glindon, Mrs Mary

Godsiff, Mr Roger

Goggins, rh Paul

Goodman, Helen

Greatrex, Tom

Green, Kate

Greenwood, Lilian

Griffith, Nia

Gwynne, Andrew

Hain, rh Mr Peter

Hamilton, Fabian

Hanson, rh Mr David

Harris, Mr Tom

Havard, Mr Dai

Healey, rh John

Hendrick, Mark

Hepburn, Mr Stephen

Hillier, Meg

Hilling, Julie

Hodge, rh Margaret

Hoey, Kate

Hollobone, Mr Philip

Hood, Mr Jim

Hopkins, Kelvin

Horwood, Martin

Hunt, Tristram

Irranca-Davies, Huw

Jackson, Glenda

James, Mrs Siân C.

Jamieson, Cathy

Jarvis, Dan

Johnson, rh Alan

Johnson, Diana

Jones, Helen

Jones, Mr Kevan

Jones, Susan Elan

Joyce, Eric

Kendall, Liz

Khan, rh Sadiq

Lammy, rh Mr David

Lazarowicz, Mark

Leslie, Chris

Lewis, Mr Ivan

Lewis, Dr Julian

Lloyd, Tony

Llwyd, rh Mr Elfyn

Love, Mr Andrew

Lucas, Caroline

Lucas, Ian

Mactaggart, Fiona

Mahmood, Shabana

Main, Mrs Anne

Mann, John

Marsden, Mr Gordon

McCabe, Steve

McCann, Mr Michael

McCarthy, Kerry

McClymont, Gregg

McCrea, Dr William

McDonagh, Siobhain

McFadden, rh Mr Pat

McGovern, Alison

McGovern, Jim

McGuire, rh Mrs Anne

McKechin, Ann

McKenzie, Mr Iain

McKinnell, Catherine

Meacher, rh Mr Michael

Mearns, Ian

Michael, rh Alun

Miliband, rh David

Miliband, rh Edward

Miller, Andrew

Mitchell, Austin

Moon, Mrs Madeleine

Morden, Jessica

Morrice, Graeme

(Livingston)

Morris, Grahame M.

(Easington)

Munn, Meg

Murphy, rh Mr Jim

Murphy, rh Paul

Murray, Ian

Nandy, Lisa

Nash, Pamela

Nuttall, Mr David

O'Donnell, Fiona

Onwurah, Chi

Osborne, Sandra

Owen, Albert

Paisley, Ian

Pearce, Teresa

Perkins, Toby

Pound, Stephen

Qureshi, Yasmin

Reed, Mr Jamie

Reeves, Rachel

Reynolds, Emma

Reynolds, Jonathan

Riordan, Mrs Linda

Robertson, John

Robinson, Mr Geoffrey

Rotheram, Steve

Roy, Mr Frank

Roy, Lindsay

Ruane, Chris

Sarwar, Anas

Seabeck, Alison

Sharma, Mr Virendra

Sheerman, Mr Barry

Shuker, Gavin

Skinner, Mr Dennis

Slaughter, Mr Andy

Smith, rh Mr Andrew

Smith, Angela

Smith, Nick

Smith, Owen

Spellar, rh Mr John

Stringer, Graham

Stuart, Ms Gisela

Sutcliffe, Mr Gerry

Tami, Mark

Thomas, Mr Gareth

Timms, rh Stephen

Trickett, Jon

Turner, Karl

Twigg, Derek

Twigg, Stephen

Umunna, Mr Chuka

Vaz, Valerie

Walley, Joan

Watson, Mr Tom

Watts, Mr Dave

Whitehead, Dr Alan

Williams, Hywel

Williamson, Chris

Wilson, Phil

Winnick, Mr David

Winterton, rh Ms Rosie

Woodcock, John

Wright, David

Wright, Mr Iain

Tellers for the Ayes:

Mr David Hamilton and

Graham Jones

NOES

Afriyie, Adam

Aldous, Peter

Amess, Mr David

Andrew, Stuart

Arbuthnot, rh Mr James

Bacon, Mr Richard

Baker, Norman

Baker, Steve

Barker, Gregory

Baron, Mr John

Barwell, Gavin

Bebb, Guto

Beith, rh Sir Alan

Bellingham, Mr Henry

Benyon, Richard

Beresford, Sir Paul

Berry, Jake

Bingham, Andrew

Binley, Mr Brian

Birtwistle, Gordon

Blackwood, Nicola

Blunt, Mr Crispin

Boles, Nick

Bone, Mr Peter

Bradley, Karen

Brady, Mr Graham

Brake, rh Tom

Bray, Angie

Brazier, Mr Julian

Bridgen, Andrew

Brine, Mr Steve

Brokenshire, James

Brooke, Annette

Browne, Mr Jeremy

Bruce, Fiona

Buckland, Mr Robert

Burley, Mr Aidan

Burns, Conor

Burns, rh Mr Simon

Burstow, Paul

Burt, Alistair

Burt, Lorely

Byles, Dan

Cable, rh Vince

Cairns, Alun

Carmichael, Neil

Carswell, Mr Douglas

Chishti, Rehman

Chope, Mr Christopher

Clappison, Mr James

Clark, rh Greg

Clarke, rh Mr Kenneth

Clifton-Brown, Geoffrey

Coffey, Dr Thérèse

Collins, Damian

Colvile, Oliver

Corbyn, Jeremy

Cox, Mr Geoffrey

Crabb, Stephen

Crockart, Mike

Crouch, Tracey

Davey, Mr Edward

Davies, David T. C.

(Monmouth)

Davies, Glyn

Davis, rh Mr David

de Bois, Nick

Djanogly, Mr Jonathan

Dorrell, rh Mr Stephen

Doyle-Price, Jackie

Drax, Richard

Duddridge, James

Duncan Smith, rh Mr Iain

Ellis, Michael

Ellison, Jane

Ellwood, Mr Tobias

Elphicke, Charlie

Eustice, George

Evans, Graham

Evans, Jonathan

Evennett, Mr David

Fabricant, Michael

Fallon, Michael

Farron, Tim

Featherstone, Lynne

Field, Mr Mark

Foster, rh Mr Don

Francois, rh Mr Mark

Freeman, George

Freer, Mike

Fullbrook, Lorraine

Fuller, Richard

Garnier, Mark

Gauke, Mr David

George, Andrew

Gibb, Mr Nick

Gilbert, Stephen

Gillan, rh Mrs Cheryl

Glen, John

Goodwill, Mr Robert

Graham, Richard

Grant, Mrs Helen

Gray, Mr James

Green, Damian

Grieve, rh Mr Dominic

Griffiths, Andrew

Gummer, Ben

Gyimah, Mr Sam

Halfon, Robert

Hames, Duncan

Hammond, Stephen

Hancock, Matthew

Hancock, Mr Mike

Harper, Mr Mark

Harrington, Richard

Harris, Rebecca

Hart, Simon

Harvey, Nick

Haselhurst, rh Sir Alan

Hayes, Mr John

Heald, Oliver

Heath, Mr David

Heaton-Harris, Chris

Hemming, John

Henderson, Gordon

Hinds, Damian

Hoban, Mr Mark

Hollingbery, George

Hopkins, Kris

Howarth, Mr Gerald

Howell, John

Hunter, Mark

Huppert, Dr Julian

Hurd, Mr Nick

Jackson, Mr Stewart

James, Margot

Javid, Sajid

Jenkin, Mr Bernard

Johnson, Gareth

Johnson, Joseph

Jones, Andrew

Jones, Mr David

Jones, Mr Marcus

Kawczynski, Daniel

Kelly, Chris

Kirby, Simon

Knight, rh Mr Greg

Kwarteng, Kwasi

Laing, Mrs Eleanor

Lancaster, Mark

Latham, Pauline

Laws, rh Mr David

Leadsom, Andrea

Lee, Jessica

Lee, Dr Phillip

Leech, Mr John

Lefroy, Jeremy

Leigh, Mr Edward

Leslie, Charlotte

Letwin, rh Mr Oliver

Lewis, Brandon

Liddell-Grainger, Mr Ian

Lloyd, Stephen

Lopresti, Jack

Lord, Jonathan

Loughton, Tim

Macleod, Mary

Maynard, Paul

McCartney, Jason

McCartney, Karl

McDonnell, John

McIntosh, Miss Anne

McLoughlin, rh Mr Patrick

McPartland, Stephen

McVey, Esther

Mensch, Louise

Menzies, Mark

Mercer, Patrick

Metcalfe, Stephen

Miller, Maria

Mills, Nigel

Milton, Anne

Mitchell, rh Mr Andrew

Moore, rh Michael

Mordaunt, Penny

Morgan, Nicky

Morris, Anne Marie

Morris, David

Morris, James

Mosley, Stephen

Mulholland, Greg

Munt, Tessa

Murray, Sheryll

Murrison, Dr Andrew

Neill, Robert

Newmark, Mr Brooks

Newton, Sarah

Nokes, Caroline

Norman, Jesse

Offord, Mr Matthew

Ollerenshaw, Eric

Opperman, Guy

Ottaway, Richard

Parish, Neil

Patel, Priti

Pawsey, Mark

Penning, Mike

Penrose, John

Perry, Claire

Phillips, Stephen

Pickles, rh Mr Eric

Pincher, Christopher

Poulter, Dr Daniel

Prisk, Mr Mark

Pugh, John

Raab, Mr Dominic

Redwood, rh Mr John

Rees-Mogg, Jacob

Reevell, Simon

Reid, Mr Alan

Robathan, rh Mr Andrew

Robertson, Hugh

Robertson, Mr Laurence

Rogerson, Dan

Rosindell, Andrew

Rudd, Amber

Ruffley, Mr David

Russell, Bob

Rutley, David

Sanders, Mr Adrian

Sandys, Laura

Scott, Mr Lee

Selous, Andrew

Shapps, rh Grant

Sharma, Alok

Shelbrooke, Alec

Simmonds, Mark

Simpson, Mr Keith

Skidmore, Chris

Smith, Miss Chloe

Smith, Henry

Smith, Julian

Smith, Sir Robert

Soubry, Anna

Spencer, Mr Mark

Stephenson, Andrew

Stevenson, John

Stewart, Bob

Stewart, Iain

Stewart, Rory

Stride, Mel

Stuart, Mr Graham

Stunell, Andrew

Sturdy, Julian

Swayne, rh Mr Desmond

Swinson, Jo

Swire, rh Mr Hugo

Syms, Mr Robert

Teather, Sarah

Thurso, John

Timpson, Mr Edward

Tomlinson, Justin

Tredinnick, David

Turner, Mr Andrew

Tyrie, Mr Andrew

Uppal, Paul

Vara, Mr Shailesh

Vickers, Martin

Villiers, rh Mrs Theresa

Walker, Mr Charles

Wallace, Mr Ben

Walter, Mr Robert

Ward, Mr David

Watkinson, Angela

Weatherley, Mike

Webb, Steve

Wharton, James

Wheeler, Heather

White, Chris

Whittaker, Craig

Willetts, rh Mr David

Williams, Mr Mark

Williams, Roger

Williams, Stephen

Williamson, Gavin

Willott, Jenny

Wilson, Mr Rob

Wollaston, Dr Sarah

Wright, Jeremy

Wright, Simon

Young, rh Sir George

Zahawi, Nadhim

Tellers for the Noes:

Mr Philip Dunne and

Bill Wiggin

Question accordingly negatived.

10 Oct 2011 : Column 114

10 Oct 2011 : Column 115

10 Oct 2011 : Column 116

10 Oct 2011 : Column 117

8.44 pm

Proceedings interrupted (Programme Order, this day).

The Deputy Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).

Clause 3

Persons arrested for or charged with a qualifying offence

Amendments made: 1, page 3, line 44, leave out ‘any prescribed circumstances apply’ and insert

‘the Commissioner for the Retention and Use of Biometric Material has consented under section 63FA to the retention of the material’.

Amendment 2,  page 4, leave out lines 24 to 31.

Amendment 3,  page 4, leave out lines 43 and 44.

Amendment 4,  page 5, leave out lines 6 to 11.

Amendment 5, page 5, line 11, at end insert—

‘63FA Retention of section 63D material by virtue of section 63F(5): consent of Commissioner

(1) The responsible chief officer of police may apply under subsection (2) or (3) to the Commissioner for the Retention and Use of Biometric Material for consent to the retention of section 63D material which falls within section 63F(5)(a) and (b).

(2) The responsible chief officer of police may make an application under this subsection if the responsible chief officer of police considers that the material was taken (or, in the case of a DNA profile, derived from a sample taken) in connection with the investigation of an offence where any alleged victim of the offence was, at the time of the offence—

(a) under the age of 18,

(b) a vulnerable adult, or

(c) associated with the person to whom the material relates.

(3) The responsible chief officer of police may make an application under this subsection if the responsible chief officer of police considers that—

(a) the material is not material to which subsection (2) relates, but

(b) the retention of the material is necessary to assist in the prevention or detection of crime.

(4) The Commissioner may, on an application under this section, consent to the retention of material to which the application relates if the Commissioner considers that it is appropriate to retain the material.

(5) But where notice is given under subsection (6) in relation to the application, the Commissioner must, before deciding whether or not to give consent, consider any representations by the person to whom the material relates which are made within the period of 28 days beginning with the day on which the notice is given.

(6) The responsible chief officer of police must give to the person to whom the material relates notice of—

(a) an application under this section, and

(b) the right to make representations.

(7) A notice under subsection (6) may, in particular, be given to a person by—

(a) leaving it at the person’s usual or last known address (whether residential or otherwise),

10 Oct 2011 : Column 118

(b) sending it to the person by post at that address, or

(c) sending it to the person by email or other electronic means.

(8) The requirement in subsection (6) does not apply if the whereabouts of the person to whom the material relates is not known and cannot, after reasonable inquiry, be ascertained by the responsible chief officer of police.

(9) An application or notice under this section must be in writing.

(10) In this section—

“victim” includes intended victim,

“vulnerable adult” has the meaning given by section 60(1) of the Safeguarding Vulnerable Groups Act 2006,

and the reference in subsection (2)(c) to a person being associated with another person is to be read in accordance with section 62(3) to (7) of the Family Law Act 1996.’.—(James Brokenshire.)

Clause 8

Persons given a penalty notice

Amendment made: 6, page 7, line 33, after ‘2001’ insert

‘and in respect of whom no proceedings are brought for the offence to which the notice relates’.—(James Brokenshire.)

Clause 17

Exclusions for certain regimes

Amendment made: 7, page 11, line 43, at end insert—

‘(2A) Sections 63D to 63P, 63R and 63S do not apply to material which is, or may become, disclosable under—

(a) the Criminal Procedure and Investigations Act 1996, or

(b) a code of practice prepared under section 23 of that Act and in operation by virtue of an order under section 25 of that Act.

(2B) Sections 63D to 63S do not apply to material which—

(a) is taken from a person, but

(b) relates to another person.’.—(James Brokenshire.)

Clause 20

National Security: Appointment of Commissioner

Amendment proposed: 108, page 13, line 26, leave out from ‘must’ to end of line 28 and insert—

‘place a report in both Houses, after consultation with the Association of Chief Police Officers (ACPO), on the suitability of a Commissioner for the Retention and Use of Biometric Material (referred to in this section and sections 21 and 22 as “the Commissioner”.

‘(1A) Subject to the approval of a report laid under subsection (1) by resolution of both Houses of Parliament, the Secretary of State may appoint a Commissioner to be known as the Commissioner for the Retention and Use of Biometric Material.’.—(Mr Hanson.)

Question put, That the amendment be made.

The House divided:

Ayes 227, Noes 291.

Division No. 357]

[8.45 pm

AYES

Abbott, Ms Diane

Abrahams, Debbie

Ainsworth, rh Mr Bob

Alexander, rh Mr Douglas

Alexander, Heidi

Allen, Mr Graham

Anderson, Mr David

Ashworth, Jonathan

Austin, Ian

Bailey, Mr Adrian

Bain, Mr William

Banks, Gordon

Barron, rh Mr Kevin

Beckett, rh Margaret

Begg, Dame Anne

Benn, rh Hilary

Berger, Luciana

Betts, Mr Clive

Blackman-Woods, Roberta

Blenkinsop, Tom

Blomfield, Paul

Bradshaw, rh Mr Ben

Brennan, Kevin

Brown, Lyn

Brown, rh Mr Nicholas

Brown, Mr Russell

Bryant, Chris

Buck, Ms Karen

Burden, Richard

Burnham, rh Andy

Byrne, rh Mr Liam

Campbell, Mr Alan

Campbell, Mr Ronnie

Chapman, Mrs Jenny

Clark, Katy

Clarke, rh Mr Tom

Clwyd, rh Ann

Coaker, Vernon

Coffey, Ann

Connarty, Michael

Cooper, Rosie

Cooper, rh Yvette

Corbyn, Jeremy

Creagh, Mary

Creasy, Stella

Cruddas, Jon

Cryer, John

Cunningham, Alex

Cunningham, Mr Jim

Cunningham, Tony

Curran, Margaret

Dakin, Nic

Danczuk, Simon

David, Mr Wayne

Davidson, Mr Ian

Davies, Geraint

Davies, Philip

De Piero, Gloria

Denham, rh Mr John

Dobbin, Jim

Dobson, rh Frank

Docherty, Thomas

Dodds, rh Mr Nigel

Donaldson, rh Mr Jeffrey M.

Donohoe, Mr Brian H.

Dowd, Jim

Doyle, Gemma

Dromey, Jack

Dugher, Michael

Durkan, Mark

Eagle, Ms Angela

Eagle, Maria

Efford, Clive

Elliott, Julie

Ellman, Mrs Louise

Engel, Natascha

Esterson, Bill

Evans, Chris

Farrelly, Paul

Field, rh Mr Frank

Fitzpatrick, Jim

Flello, Robert

Flint, rh Caroline

Flynn, Paul

Fovargue, Yvonne

Francis, Dr Hywel

Gapes, Mike

Gardiner, Barry

Gilmore, Sheila

Glass, Pat

Glindon, Mrs Mary

Godsiff, Mr Roger

Goggins, rh Paul

Goodman, Helen

Greatrex, Tom

Green, Kate

Greenwood, Lilian

Griffith, Nia

Gwynne, Andrew

Hain, rh Mr Peter

Hamilton, Fabian

Hanson, rh Mr David

Harris, Mr Tom

Havard, Mr Dai

Healey, rh John

Hendrick, Mark

Hepburn, Mr Stephen

Hillier, Meg

Hilling, Julie

Hodge, rh Margaret

Hoey, Kate

Hollobone, Mr Philip

Hood, Mr Jim

Hopkins, Kelvin

Hunt, Tristram

Irranca-Davies, Huw

Jackson, Glenda

James, Mrs Siân C.

Jamieson, Cathy

Jarvis, Dan

Johnson, rh Alan

Johnson, Diana

Jones, Helen

Jones, Mr Kevan

Jones, Susan Elan

Joyce, Eric

Kendall, Liz

Khan, rh Sadiq

Lazarowicz, Mark

Leslie, Chris

Lewis, Mr Ivan

Lloyd, Tony

Love, Mr Andrew

Lucas, Caroline

Lucas, Ian

Mactaggart, Fiona

Mahmood, Shabana

Mann, John

Marsden, Mr Gordon

McCabe, Steve

McCann, Mr Michael

McCarthy, Kerry

McClymont, Gregg

McCrea, Dr William

McDonagh, Siobhain

McDonnell, John

McFadden, rh Mr Pat

McGovern, Alison

McGovern, Jim

McGuire, rh Mrs Anne

McKechin, Ann

McKenzie, Mr Iain

McKinnell, Catherine

Meacher, rh Mr Michael

Mearns, Ian

Michael, rh Alun

Miliband, rh David

Miliband, rh Edward

Miller, Andrew

Mitchell, Austin

Moon, Mrs Madeleine

Morden, Jessica

Morrice, Graeme

(Livingston)

Morris, Grahame M.

(Easington)

Munn, Meg

Murphy, rh Mr Jim

Murphy, rh Paul

Murray, Ian

Nandy, Lisa

Nash, Pamela

O'Donnell, Fiona

Onwurah, Chi

Osborne, Sandra

Owen, Albert

Paisley, Ian

Pearce, Teresa

Perkins, Toby

Pound, Stephen

Qureshi, Yasmin

Reed, Mr Jamie

Reeves, Rachel

Reynolds, Emma

Reynolds, Jonathan

Riordan, Mrs Linda

Robertson, John

Robinson, Mr Geoffrey

Rotheram, Steve

Roy, Mr Frank

Roy, Lindsay

Ruane, Chris

Sarwar, Anas

Seabeck, Alison

Sharma, Mr Virendra

Sheerman, Mr Barry

Shuker, Gavin

Simpson, David

Skinner, Mr Dennis

Slaughter, Mr Andy

Smith, rh Mr Andrew

Smith, Angela

Smith, Nick

Smith, Owen

Spellar, rh Mr John

Stringer, Graham

Stuart, Ms Gisela

Sutcliffe, Mr Gerry

Tami, Mark

Thomas, Mr Gareth

Thornberry, Emily

Timms, rh Stephen

Trickett, Jon

Turner, Karl

Twigg, Derek

Twigg, Stephen

Umunna, Mr Chuka

Vaz, Valerie

Walley, Joan

Watson, Mr Tom

Watts, Mr Dave

Whitehead, Dr Alan

Williamson, Chris

Wilson, Phil

Winnick, Mr David

Winterton, rh Ms Rosie

Woodcock, John

Wright, David

Wright, Mr Iain

Tellers for the Ayes:

Mr David Hamilton and

Graham Jones

NOES

Afriyie, Adam

Aldous, Peter

Amess, Mr David

Andrew, Stuart

Arbuthnot, rh Mr James

Bacon, Mr Richard

Baker, Norman

Baker, Steve

Barker, Gregory

Baron, Mr John

Barwell, Gavin

Bebb, Guto

Beith, rh Sir Alan

Bellingham, Mr Henry

Benyon, Richard

Beresford, Sir Paul

Berry, Jake

Bingham, Andrew

Binley, Mr Brian

Birtwistle, Gordon

Blackwood, Nicola

Blunt, Mr Crispin

Boles, Nick

Bradley, Karen

Brady, Mr Graham

Brake, rh Tom

Bray, Angie

Brazier, Mr Julian

Bridgen, Andrew

Brine, Mr Steve

Brokenshire, James

Brooke, Annette

Browne, Mr Jeremy

Bruce, Fiona

Buckland, Mr Robert

Burley, Mr Aidan

Burns, Conor

Burns, rh Mr Simon

Burstow, Paul

Burt, Alistair

Burt, Lorely

Byles, Dan

Cable, rh Vince

Cairns, Alun

Carmichael, Neil

Carswell, Mr Douglas

Chishti, Rehman

Chope, Mr Christopher

Clappison, Mr James

Clark, rh Greg

Clarke, rh Mr Kenneth

Clifton-Brown, Geoffrey

Coffey, Dr Thérèse

Collins, Damian

Colvile, Oliver

Cox, Mr Geoffrey

Crabb, Stephen

Crockart, Mike

Crouch, Tracey

Davey, Mr Edward

Davies, David T. C.

(Monmouth)

Davies, Glyn

Davis, rh Mr David

de Bois, Nick

Djanogly, Mr Jonathan

Doyle-Price, Jackie

Drax, Richard

Duddridge, James

Duncan Smith, rh Mr Iain

Edwards, Jonathan

Ellis, Michael

Ellison, Jane

Ellwood, Mr Tobias

Elphicke, Charlie

Eustice, George

Evans, Graham

Evans, Jonathan

Evennett, Mr David

Fabricant, Michael

Fallon, Michael

Farron, Tim

Featherstone, Lynne

Field, Mr Mark

Foster, rh Mr Don

Francois, rh Mr Mark

Freeman, George

Freer, Mike

Fullbrook, Lorraine

Fuller, Richard

Garnier, Mark

Gauke, Mr David

George, Andrew

Gibb, Mr Nick

Gilbert, Stephen

Gillan, rh Mrs Cheryl

Glen, John

Goodwill, Mr Robert

Graham, Richard

Grant, Mrs Helen

Gray, Mr James

Green, Damian

Grieve, rh Mr Dominic

Griffiths, Andrew

Gummer, Ben

Gyimah, Mr Sam

Halfon, Robert

Hames, Duncan

Hammond, Stephen

Hancock, Matthew

Hancock, Mr Mike

Harper, Mr Mark

Harrington, Richard

Harris, Rebecca

Hart, Simon

Harvey, Nick

Haselhurst, rh Sir Alan

Hayes, Mr John

Heald, Oliver

Heath, Mr David

Heaton-Harris, Chris

Hemming, John

Henderson, Gordon

Hinds, Damian

Hoban, Mr Mark

Hollingbery, George

Hopkins, Kris

Howarth, Mr Gerald

Howell, John

Huppert, Dr Julian

Hurd, Mr Nick

Jackson, Mr Stewart

James, Margot

Javid, Sajid

Jenkin, Mr Bernard

Johnson, Gareth

Johnson, Joseph

Jones, Andrew

Jones, Mr David

Jones, Mr Marcus

Kawczynski, Daniel

Kelly, Chris

Kirby, Simon

Knight, rh Mr Greg

Kwarteng, Kwasi

Laing, Mrs Eleanor

Lancaster, Mark

Latham, Pauline

Leadsom, Andrea

Lee, Jessica

Lee, Dr Phillip

Leech, Mr John

Lefroy, Jeremy

Leigh, Mr Edward

Leslie, Charlotte

Letwin, rh Mr Oliver

Lewis, Brandon

Liddell-Grainger, Mr Ian

Lloyd, Stephen

Llwyd, rh Mr Elfyn

Lopresti, Jack

Lord, Jonathan

Loughton, Tim

Macleod, Mary

Main, Mrs Anne

Maynard, Paul

McCartney, Jason

McCartney, Karl

McIntosh, Miss Anne

McLoughlin, rh Mr Patrick

McPartland, Stephen

McVey, Esther

Mensch, Louise

Menzies, Mark

Mercer, Patrick

Metcalfe, Stephen

Miller, Maria

Mills, Nigel

Milton, Anne

Mitchell, rh Mr Andrew

Moore, rh Michael

Mordaunt, Penny

Morgan, Nicky

Morris, Anne Marie

Morris, David

Morris, James

Mosley, Stephen

Mulholland, Greg

Munt, Tessa

Murray, Sheryll

Murrison, Dr Andrew

Neill, Robert

Newmark, Mr Brooks

Newton, Sarah

Nokes, Caroline

Norman, Jesse

Nuttall, Mr David

Offord, Mr Matthew

Ollerenshaw, Eric

Opperman, Guy

Ottaway, Richard

Parish, Neil

Patel, Priti

Pawsey, Mark

Penning, Mike

Penrose, John

Perry, Claire

Phillips, Stephen

Pickles, rh Mr Eric

Pincher, Christopher

Poulter, Dr Daniel

Prisk, Mr Mark

Pugh, John

Raab, Mr Dominic

Redwood, rh Mr John

Rees-Mogg, Jacob

Reevell, Simon

Reid, Mr Alan

Robathan, rh Mr Andrew

Robertson, Hugh

Robertson, Mr Laurence

Rogerson, Dan

Rosindell, Andrew

Rudd, Amber

Ruffley, Mr David

Russell, Bob

Rutley, David

Sanders, Mr Adrian

Sandys, Laura

Scott, Mr Lee

Selous, Andrew

Shapps, rh Grant

Sharma, Alok

Shelbrooke, Alec

Simmonds, Mark

Simpson, Mr Keith

Skidmore, Chris

Smith, Miss Chloe

Smith, Henry

Smith, Julian

Smith, Sir Robert

Soubry, Anna

Spencer, Mr Mark

Stephenson, Andrew

Stevenson, John

Stewart, Bob

Stewart, Iain

Stewart, Rory

Stride, Mel

Stuart, Mr Graham

Stunell, Andrew

Sturdy, Julian

Swayne, rh Mr Desmond

Swinson, Jo

Swire, rh Mr Hugo

Syms, Mr Robert

Teather, Sarah

Thurso, John

Timpson, Mr Edward

Tomlinson, Justin

Tredinnick, David

Turner, Mr Andrew

Tyrie, Mr Andrew

Uppal, Paul

Vara, Mr Shailesh

Vickers, Martin

Villiers, rh Mrs Theresa

Walker, Mr Charles

Wallace, Mr Ben

Walter, Mr Robert

Ward, Mr David

Watkinson, Angela

Weatherley, Mike

Webb, Steve

Wharton, James

Wheeler, Heather

White, Chris

Whittaker, Craig

Wiggin, Bill

Willetts, rh Mr David

Williams, Hywel

Williams, Mr Mark

Williams, Roger

Williams, Stephen

Williamson, Gavin

Willott, Jenny

Wilson, Mr Rob

Wollaston, Dr Sarah

Wright, Jeremy

Wright, Simon

Young, rh Sir George

Zahawi, Nadhim

Tellers for the Noes:

Mark Hunter and

Mr Philip Dunne

Question accordingly negatived.

10 Oct 2011 : Column 119

10 Oct 2011 : Column 120

10 Oct 2011 : Column 121

10 Oct 2011 : Column 122

Amendments made: 8, page 13, line 28, leave out ‘sections 21 and 22’ and insert ‘section 21’.

Amendment 9, page 13, line 38, at end insert—

(iiia) paragraph 11 of Schedule 6 to the Terrorism Prevention and Investigation Measures Act 2011 (paragraph 6 material retained for purposes of national security),’.

Amendment 10, page 14, line 10, after ‘functions’ insert ‘under subsection (2)’.

Amendment 11, page 14, line 17, at end insert—

‘(5A) The Commissioner also has the function of keeping under review—

(a) the retention and use in accordance with sections 63A and 63D to 63S of the Police and Criminal Evidence Act 1984 of—

(i) any material to which section 63D or 63Q of that Act applies (fingerprints, DNA profiles and samples), and

(ii) any copies of any material to which section 63D of that Act applies (fingerprints and DNA profiles),

10 Oct 2011 : Column 123

(b) the retention and use in accordance with paragraphs 20A to 20I of Schedule 8 to the Terrorism Act 2000 of—

(i) any material to which paragraph 20A or 20G of that Schedule applies (fingerprints, relevant physical data, DNA profiles and samples), and

(ii) any copies of any material to which paragraph 20A of that Schedule applies (fingerprints, relevant physical data and DNA profiles),

(c) the retention and use in accordance with sections 18 to 18E of the Counter-Terrorism Act 2008 of—

(i) any material to which section 18 of that Act applies (fingerprints, DNA samples and DNA profiles), and

(ii) any copies of fingerprints or DNA profiles to which section 18 of that Act applies,

(d) the retention and use in accordance with paragraphs 5 to 14 of Schedule 6 to the Terrorism Prevention and Investigation Measures Act 2011 of—

(i) any material to which paragraph 6 or 12 of that Schedule applies (fingerprints, relevant physical data, DNA profiles and samples), and

(ii) any copies of any material to which paragraph 6 of that Schedule applies (fingerprints, relevant physical data and DNA profiles).

(5B) But subsection (5A) does not apply so far as the retention or use of the material falls to be reviewed by virtue of subsection (2).

(5C) In relation to Scotland—

(a) the reference in subsection (5A)(b) to use of material, or copies of material, in accordance with paragraphs 20A to 20I of Schedule 8 to the Terrorism Act 2000 includes a reference to use of material, or copies of material, in accordance with section 19C(2)(c) and (d) of the Criminal Procedure (Scotland) Act 1995, and

(b) the reference in subsection (5A)(d) to use of material, or copies of material, in accordance with paragraphs 5 to 14 of Schedule 6 to the Terrorism Prevention and Investigation Measures Act 2011 is to be read as a reference to use only for a purpose mentioned in paragraph 13(1)(a) or (b) of that Schedule to that Act.

(5D) The Commissioner also has functions under sections 63F(5)(c) and 63FA (giving of consent in relation to the retention of certain section 63D material).’.—(James Brokenshire.)

Clause 21

Reports by Commissioner

Amendments made: 12, page 14, line 36, leave out ‘carrying out of those’ and insert “Commissioner’s’.

Amendment 13, page 14, line 39, leave out from ‘the’ to end of line 40 and insert ‘Commissioner’s functions.’.—(James Brokenshire.)

Clause 22

Guidance on making a national security determination

Amendment made: 14, page 15, line 14, after ‘Commissioner’ insert

‘for the Retention and Use of Biometric Material’.—(James Brokenshire.)

10 Oct 2011 : Column 124

Clause 24

National DNA Database Strategy Board

Amendment made: 15, page 16, line 12, leave out ‘this section’ and insert ‘subsection (2).

‘(3A) The National DNA Database Strategy Board may issue guidance about the circumstances in which applications may be made to the Commissioner for the Retention and Use of Biometric Material under section 63FA.

(3B) Before issuing any such guidance, the National DNA Database Strategy Board must consult the Commissioner for the Retention and Use of Biometric Material.’.—(James Brokenshire.)

Schedule 1

Amendments of regimes other than PACE

Amendments made: 33, page 90, line 24, at end insert—

(da) any of the fingerprints, data or samples obtained under paragraph 1 or 4 of Schedule 6 to the Terrorism Prevention and Investigation Measures Act 2011, or information derived from such samples,’.

Amendment 34, page 95, line 31, at end insert—

‘(1A) Subject to sub-paragraph (1), a relevant search (within the meaning given by paragraph 20A(6)) may be carried out in relation to material to which paragraph 20A or 20G applies if the responsible chief officer of police considers the search to be desirable.’.

Amendment 35, page 96, line 10, after ‘(1)’ insert ‘, (1A)’.

Amendment 36, page 97, line 16, leave out ‘paragraph 20H’ and insert

‘a relevant search (within the meaning given by paragraph 20A(6)) or for the purposes of’.

Amendment 37, page 100, line 18, at end insert—

‘(1A) Subject to subsection (1), section 18 material may be checked against other fingerprints, DNA samples or DNA profiles held by a law enforcement authority or the Scottish Police Services Authority if the responsible officer considers the check to be desirable.’.

Amendment 38, page 103, line 6, at end insert—

Part 3A

Material subject to the Terrorism Prevention and Investigation Measures Act 2011

4A After paragraph 10(2) of Schedule 6 to the Terrorism Prevention and Investigation Measures Act 2011(fingerprints and samples) insert—

(2A) But a person is not to be treated as having been convicted of an offence if that conviction is a disregarded conviction or caution by virtue of section 88 of the Protection of Freedoms Act 2011.”’.—(James Brokenshire.)

New Clause 15

Offence of issuing excess parking charges

‘(1) A person commits an offence who, without lawful authority requires a driver or any person in possession of a vehicle to pay parking charges in relation to a contract to park that vehicle.

(2) The express or implied consent (whether or not legally binding) of a person otherwise entitled to enter into a contract regarding parking is not lawful authority for the purposes of subsection (1).

(3) Subsection (2) does not apply where—

(a) the person or body attempting to enforce the parking charges is a member of an Accredited Trade Association so accredited by the Secretary of State;

(b) the penalty charge can be appealed to an independent body;

10 Oct 2011 : Column 125

(c) the person or body attempting to enforce the parking charges takes reasonable steps to inform the driver or keeper of the vehicle about the right to appeal; and

(d) the person or body follows a prescribed parking enforcement process including clear signage and contact numbers.

(4) The Secretary of State can, by way of regulation, introduce a maximum charge, under which parking charges would not be subject to subsection (1).

(5) A person who is entitled to remove a vehicle cannot commit an offence under this section in relation to that vehicle.

(6) A person guilty of an offence under this section is liable—

(a) on conviction on indictment, to a fine,

(b) on summary conviction, to a fine not exceeding the statutory maximum which must be no higher than charges for an on-street parking offence.

(7) In this section “motor vehicle” means a mechanically propelled vehicle or a vehicle designed or adapted for towing by a mechanically propelled vehicle.’.—(Diana Johnson.)

Brought up, and read the First time.

Diana Johnson (Kingston upon Hull North) (Lab): I beg to move, That the clause be read a Second time.

Madam Deputy Speaker (Dawn Primarolo): With this it will be convenient to discuss Government amendments 21, 76, 39 to 54, 77, 55 to 61, and 78 and 62.

Diana Johnson: The Bill sets out in chapter 2 to outlaw wheel-clamping on private land and to introduce a ticketing regime. We had an extensive debate on this issue in Committee. The major concern that still arises from the way the Bill is drafted is that there is nothing to offer any regulation or protection for the motorist from the problems experienced so far with rogue wheel-clampers. We believe that the rogue wheel-clampers will now move on and become rogue ticketers, and we are not alone in this. We have the support of the RAC, the AA, and the British Parking Association—and I am very pleased to say that today a leader in The Times supports Labour’s amendment on this point.

Our new clause seeks to offer a level of sensible protection for those parking on private land equivalent to the protections offered to people who park on the highway and wish to appeal when they have received a parking fine. For many of our constituents, it is bewildering that the law in each situation is so different. If someone parks on the highway, there is a limit on the fines and an independent appeals process, but if they park in a small private car park, or even a large retail car park, they can face unlimited fines and there is no formal regulated appeals system.

The real reason we need to move this amendment and have this debate is that the coalition Government rushed into the decision to get rid of wheel-clamping, and they did not go through any meaningful consultation with key stakeholders to discuss what the effect of removing wheel-clamping as something that a private landowner could use to protect their land. When the previous Government considered how to deal with rogue wheel-clampers and set out provisions in the Crime and Security Act 2010, those provisions were widely consulted on. Issues that had to be addressed concerned signage, the level of fees that should be paid, the methods available for payment, the evidence required and a full appeals process. They were set out fully in the drafting of the

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2010 Act in order to deal with rogue wheel clampers, because it was recognised that regulation was required.

The Government have decided to introduce a ban on wheel clamping on private land, but they have failed to address the real issue now facing motorists, which is what happens when they are faced with rogue ticketers. In this regard, as in so many others, the Government have reacted in a knee-jerk fashion without really thinking through the consequences of the legislation they are bringing before the House.

9 pm

Jeremy Corbyn (Islington North) (Lab): Does my hon. Friend have any view on unadopted private roads in areas where there is a local authority parking scheme all around and where quite successful operations are currently run, with minimal levels of clamping? From now on clamping will be banned, so far more expensive systems will have to be introduced, which will cost residents a great deal of money—including council and social housing tenants in the area—but achieve nothing different from what exists now.

Diana Johnson: My hon. Friend makes an important point. That issue was debated in Committee, but unfortunately the Government set their face against dealing with it and recognising that there was a problem.

We believe that under the ticketing regime set out in the Bill, the motorist could still end up facing extortionate fees from rogue parking companies, which could be enforced by aggressive security staff against the driver and, if necessary, against the keeper of the vehicle. We also believe that it may still be possible to use a barrier or even a chain to block an exit to a car park, forcing individuals to pay extortionate ticket fees. We believe that rogue parking companies could threaten motorists with the bailiffs and that their credit ratings could be affected. Our amendments have wide-ranging support from the parking industry and motoring organisations. The Government’s impact assessment recognises the risk of rogue wheel-clampers becoming rogue ticketers, but the Bill is silent on what should happen in those circumstances.

Patrick Troy, the chief executive of the British Parking Association, made it clear in his evidence to the Committee that rogue clampers will just move into another form of criminality—rogue ticketing. He recognised that parking is complicated and that it is often difficult for members of the public to understand the difference between the highway and private land. In the main, motorists remain ignorant of their rights, and rogue ticketers will take advantage of this.

Edmund King of the AA said that the current arrangements for street ticketing—that is, on the highway, for which there is a good independent appeals system through the traffic penalty tribunal—are independent and accepted by motorists and the industry alike as fair and proportionate. Parking companies pay a 65p levy per penalty charge notice to pay for the system, which is fair. We should have the same ticketing provisions on appeal for those who receive tickets on private land, especially as the Government are introducing keeper liability provisions in the Bill. Without a proper, independent appeal, it is unfair and unjust that a keeper could be held liable for a ticket that he or she knows nothing about.

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In his evidence to the Committee, Edmund King talked about the following situation arising:

“A company, which seems to be incredibly profitable, is carrying out private ticketing. Its website says, ‘Welcome to the ultimate recession-proof business opportunity’ which has ‘limitless earnings potential’. All the company does is…suggest…that if you have a small piece of land and wanted to make some money, you could apply to my company, and I will send you some parking notices.

You will take your digital camera and take pictures of the cars of neighbours you do not like or of anyone who parks there, and send the pictures to”

that company, which will then

“apply to the Driver and Vehicle Licensing Agency for their details, send out tickets, and if 60% pay up, which they currently do,”

it will give £10 to the landowner for each ticket and pocket the rest. He continued:

“That company claims to have 1,200 agents who ticket in that way…even though that company claims to be a member of the British Parking Association, the 1,200 people are, as far as we know, just individuals. There is no control, and our worry is that the clampers who have been making money for nothing for the past 10 years are not going to give up”.––[Official Report, Protection of Freedoms Public Bill Committee, 24 March 2011; c. 145, Q419.]

Instead, they will become rogue ticketers.

Mr King also gave examples of problems in challenging the issue of a ticket, because there is at present no opportunity to do so. He cited the example of Mr B’s car, which incurred a private penalty in a Glasgow hospital car park even though Mr B and his car were in the south of France. The company involved commenced debt recovery procedures. A second case involved an AA member who had been issued with a parking charge notice by X. He had parked in the car park of a major DIY store and spent more than £1,000 in the store. It had taken him some time to choose the goods, and he received a parking charge notice from X, which stated that he had overstayed the maximum permitted time of three hours by 19 minutes. He had to pay £80, which would be reduced to £50 if he paid by a certain date.

A third example involved a Bristol driver whose car was spotted during two different visits to a fast-food outlet. The camera or operator took this to be one single visit and issued a penalty notice for 41 days’ parking. Two AA executives were also sent parking charge notices by post for infringing unclear bay marking rules in a local supermarket. Both of them challenged the parking charge notices, but they were threatened with damage to their credit rating and a visit from the bailiffs if they did not pay up.

Andrew Gwynne (Denton and Reddish) (Lab): May I give my hon. Friend another example? It involves the Peel centre, a retail park in the centre of Stockport where many of my constituents have received penalty fines for overstaying in the car park. One of my constituents challenged this in the courts and had the penalty overturned because the signage was so small that it was considered unreasonable to expect people to read the notices. Does my hon. Friend agree that it would be better to have a proper appeals system in place, rather than expecting our constituents to have to go through the courts in such cases?

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Diana Johnson: That is exactly right, and our new clause sets out clearly that anyone wishing to issue tickets should be a member of the British Parking Association or an accredited trade association, and should comply with the code of practice agreed with the DVLA on proper signage and a proper appeals system. We believe that that would solve the problem.

Guy Opperman (Hexham) (Con): I was retained counsel by the Automobile Association in 2000, in the case of Vine v. London borough of Waltham Forest, so I come to this matter with a degree of experience. Subsection (1) of new clause 15 attempts to create a criminal offence in certain circumstances. Does the hon. Lady agree, however, that those circumstances are already covered by the measures in the Theft Act 1968 relating to obtaining property by deception, or by consumer protection legislation?

Diana Johnson: It is quite clear that consumer protection legislation has not worked in the motorist’s favour in the past. Creating a criminal offence, as the amendment would do, would send a clear signal about how serious the matter is and how people who are going to issue tickets should be properly regulated. I am not sure that I agree with the hon. Gentleman.

I want to move on to the RAC, which gave evidence that the provisions in the Bill would not create a landscape for parking in which the motorist could be guaranteed a fair deal from the parking industry. I know that the Government have made much of the fact that they are on the side of the motorist, but when motoring organisations and members of the industry itself are saying that the system being proposed in the legislation is unfair, the Government need to think again.

As drafted, the right to challenge a ticket is very limited. It would apply only to cases in which liability could be enforced against a keeper. That means that if a person did not pay up to the parking company, the company could go after the keeper of the vehicle, whose information is held by the DVLA. The protection offered is that only a member of an accredited trade association—currently the British Parking Association—will be allowed access to DVLA information. However, the Government state in the impact assessment that they expect 74% of penalty tickets to be paid up front at the time the ticket is issued, rising to 82% when keeper liability is added in. The expectation is that people will just pay up and will not have the opportunity to lodge any kind of appeal. There is no independent appeal procedure. We understand that, under the Government amendments, members of the British Parking Association must have an internal disputes procedure, but we say that is not good enough: it is not fair and not independent. It is widely perceived that it must be independent.