Publications on the internet
Protection of Freedoms Bill
|©Parliamentary copyright||Prepared 6th April 2011|
Publications on the internet
Protection of Freedoms Bill
Protection of Freedoms Bill
The Committee consisted of the following Members:
Annette Toft, Rhiannon Hollis, Committee Clerks
† attended the Committee
The Chair: Before we continue our line-by-line consideration of the Bill, I remind Members of the deadlines for tabling amendments for the next three dates on which the Committee will sit. They are earlier than usual because of public holidays in April and early May. For each of the three days, amendments will have to be tabled one week beforehand at the latest. Amendments for Tuesday 26 April will need to be tabled by 4.30 pm on Tuesday 19 April at the latest. For Thursday 28 April, they must be tabled no later than 4.30 pm on Thursday 21 April, which is Maundy Thursday. For Tuesday 3 May, they must be tabled before the rise of the House on Tuesday 26 April.
Clive Efford (Eltham) (Lab): I have come to the end of my comments, but I seek clarification of the inclusion of new section 18D(1)(c) in the Counter-Terrorism Act 2008, which refers to the detection of crime. That is an area dealing with national security and, as I have said, I want an explanation of why it is necessary to include it. I have no intention to limit the capacity of the police to investigate matters of national security or crime, but my question is about why the reference to matters of national security is needed in the schedule.
The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire): The hon. Gentleman has been kind to me, but he can be quite a cheeky chappie at times; I say that in a friendly way. I was struck by his comment that something may have been snuck in at the back of the schedule for some sort of inadvertent purpose, although it may have been said humorously.
Clive Efford: I do not want to be misinterpreted or misquoted. I said that I am sure if what I pointed out is in any way accurate—it has been known—it is because there has been a mistake. I did not mean to suggest any Machiavellian plot on the part of the Government or anyone else.
James Brokenshire: I am delighted to have the hon. Gentleman’s reassurance. We heard his comments about the parliamentary draftsman on the first day, and I would not want to tempt him into saying anything similar.
There is a serious point in what the hon. Gentleman said. Some of the issues that we have confronted through the proposals in the Bill are about the inadvertent
Section 18 of the Counter-Terrorism Act 2008 currently provides for the retention and use by law enforcement authorities of fingerprints, DNA samples and profiles that are not subject to existing statutory restrictions, such as the Police and Criminal Evidence Act 1984 or the Terrorism Act 2000. New section 18D of the 2008 Act, which will be inserted by the Bill, sets out the uses to which material that is subject to section 18 of the 2008 Act can be put. Those uses are
“in the interests of national security,…for the purposes of a terrorist investigation,…for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution, or for purposes related to the identification of a deceased person”.
Amendment 76 would remove from the list of permitted uses purposes related to the prevention and detection of crime, the investigation of an offence or the conduct of a prosecution. Its effect would be to stop the police and other law enforcement authorities using such material to prevent and detect crimes, irrespective of their seriousness, or use in evidence during prosecutions. Without the ability to use material obtained under section 18 in this way, the police and other law enforcement authorities would be prevented from using information that was lawfully obtained and retained to carry out one of their core duties. That would significantly undermine their ability to protect the public. I must say that I am slightly bemused about the justification for the amendment.
The list of permitted uses in new section 18D of the Counter-Terrorism Act 2008 is precisely the same list as contained in the amendments to that Act by section 21 of the Crime and Security Act 2010. As the provisions in the Bill limiting the use to which such biometric material can be put are wholly consistent with those in the Crime and Security Act, I hope that the hon. Member for Eltham will feel able and minded to withdraw his amendment.
Clive Efford: Yes. I do not intend to press the amendment to a Division. I was aware that it was similar to a provision in the previous Act, which I may come back to in the stand part debate. I beg to ask leave to withdraw the amendment.
‘(c) has been found not guilty of the offence by reason of insanity, or
(d) has been found to be under a disability and to have done the act charged in respect of the offence’.—(James Brokenshire.)
8 (1) The Secretary of State may make an order under sub-paragraph (2) or (3) if the Secretary of State considers that the subject-matter in relation to Northern Ireland of any provision of an Act of the Northern Ireland Assembly made in 2011 or 2012 (whether before or after the passing of this Act) is the same as the subject-matter in relation to England and Wales of any provision made by any of sections 1 to 18 and 23 to 25 of this Act.
(2) The Secretary of State may by order make excepted or reserved provision in relation to Northern Ireland which is about the same subject-matter as any provision made in relation to England and Wales by any of sections 1 to 18 and 23 to 25 of this Act.
(3) The Secretary of State may by order make such provision as the Secretary of State considers appropriate in consequence of the Act of the Northern Ireland Assembly or an order under sub-paragraph (2).
(4) The power to make an order under this paragraph—
(a) is exercisable by statutory instrument,
(b) includes power to make incidental, supplementary, transitional, transitory or saving provision,
(c) may, in particular, be exercised by amending, repealing, revoking or otherwise modifying any provision made by or under an enactment (including this Act).
(5) An order under this paragraph may not make provision which—
(a) deals with a transferred matter and, if it were contained in an Act of the Northern Ireland Assembly, would be within the legislative competence of the Northern Ireland Assembly,
(b) if it were contained in an Act of the Scottish Parliament, would be within the legislative competence of the Scottish Parliament, or
(c) if it were contained in an Act of the National Assembly for Wales, would be within the legislative competence of the National Assembly for Wales.
(6) Subject to sub-paragraph (7), a statutory instrument containing an order under this paragraph is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(7) A statutory instrument containing an order under this paragraph which neither amends nor repeals any provision of primary legislation is subject to annulment in pursuance of a resolution of either House of Parliament.
(8) In this paragraph—
“enactment” includes an Act of the Scottish Parliament, a Measure or Act of the National Assembly for Wales and Northern Ireland legislation,
“excepted or reserved provision” means provision which—
(a) forms part of the law of Northern Ireland, but
(b) does not deal with a transferred matter,
“primary legislation” means—
(a) a public general Act,
(b) an Act of the Scottish Parliament,
(c) a Measure or Act of the National Assembly for Wales, and
(d) Northern Ireland legislation,
“transferred matter” has the meaning given by section 4(1) of the Northern Ireland Act 1998.’.
James Brokenshire: The legislation in Northern Ireland governing the retention of DNA and fingerprints closely mirrors the provisions in part 5 of the Police and Criminal Evidence Act 1984, which operates in England and Wales. As a result, the Northern Ireland Administration need to take similar steps to the UK Government to respond to the European Court of Human Rights judgment in the case of S. and Marper. David Ford, the Northern Ireland Minister of Justice, recently launched a consultation to that end, with a view to introducing legislation in the Northern Ireland Assembly later this year. That legislation can of course deal only with matters within the legislative competence of the Northern Ireland Assembly. National security is an excepted matter and accordingly it will fall to the UK Government to make appropriate amendments to the Police and Criminal Evidence (Northern Ireland) Order 1989 to make further provisions in respect of the retention and use of DNA and fingerprints on national security grounds.
We cannot sensibly draft such legislation until we see the form of the changes to the 1989 order to be made by the Northern Ireland legislation. In short, there is a sequencing problem. We propose to overcome the difficulty by taking two order-making powers, as set out in amendment 13, which will enable the 1989 order, as amended by the forthcoming Assembly legislation and other related legislation, to be further adapted to provide for the retention of DNA and fingerprints for excepted or reserved purposes.
The other amendments in the group—amendments 4 to 7 to clauses 37, 38, 45 and 47—are consequential upon amendment 13. In each case, they simply ensure consistency of drafting across the Bill in relation to references to the legislative competence of the Northern Ireland Assembly.
Clive Efford: I will be brief. The schedule appears to mirror the 2010 Act, so the matter has been subject to a considerable amount of debate over the past 18 months. Are there any significant differences from the 2010 Act that the Committee should be aware of? The wording is identical in places and appears to mirror what was done before. I assume it is a process of repeating the provisions, because we are all interested in ensuring that matters of national security can be dealt with. That is not a matter of party political difference. We all want to ensure it is achieved, but are the Government seeking to achieve anything in the schedule that was not in the 2010 Act and that the Committee should be aware of?
James Brokenshire: My understanding is that there are no material differences, but it would be entirely fair and appropriate for me to write to the Committee about the schedule. If there are any subtle differences, I would not wish in any way to mislead the Committee. The safest course of action in the circumstances is for me to consider the points and, if need be, write to the Committee to highlight any distinctions that may have been made between the 2010 Act and the drafting of the schedule, so that Members are made aware of any changes. If there are issues, they can be addressed on Report.
It is perfectly fair to note that there are a number of similarities in certain points of detail between the Bill and the 2010 Act. Equally, on that subject, it would be appropriate that if there are significant changes they are highlighted, because we would not want anything inadvertently to creep through or otherwise be subject to criticism as a consequence of something appearing in the schedule. I cannot imagine that could ever have happened previously, and if there are matters for proper consideration and scrutiny, either in this House or the other House, they can be put on record.
Clive Efford: The clause details the appointment of the commissioner responsible for national security, but there was initially some confusion about the role. Some of the organisations that provided written evidence questioned the commissioner’s role in relation to matters of national security, which is clear in the Bill. There was a reference in a previous clause to the commissioner dealing with requests for extensions from chief officers. We now know that is in relation to prescribed matters and will affect vulnerable individuals. We have not heard much beyond that from the Minister, so it would be useful to have some clarification of what “prescribed” means.
It is unclear where the commissioner will fit in. It is a completely new role and he will deal with matters of national security, but he will deal only with decisions on material referred to in the Bill; in a sense, that will be the management of biometric material to be retained under the Bill. If the commissioner is dealing with just those matters, is it necessary to have a completely new post or a new department? Subsection (7) is about setting up the office of the commissioner with staff, accommodation, equipment and other facilities. Is it necessary to have a completely stand-alone department for the commissioner? Could the post not be under the umbrella of the Information Commissioner? Would that not be a more suitable place for the person to sit?
The Secretary of State will appoint the biometric commissioner. What is the appointment process? What skills is that person likely to need? Will they be subject
Rehman Chishti (Gillingham and Rainham) (Con): On the clarity of the role and the necessity for the commissioner, does the hon. Gentleman accept that the database contains nearly 500,000 pieces of wrong data and errors? On that basis alone, we need to have in place a system to ensure that data are correct and proper. What we have at the moment is completely unacceptable and inappropriate.
Clive Efford: That makes my point about the confusion. My understanding is that the commissioner’s role is not to manage the database, but to deal with requests from the chief officer on extensions of DNA retention. It will be interesting to know exactly what the scope of the individual will be. Will he or she be a lawyer, or someone who will act in a role similar, for instance, to the Director of Public Prosecutions?
Rehman Chishti: My point is that there is more of a reason now than ever before to have such a person, because a request that is made in a short period needs someone who can deal with it as swiftly, efficiently, properly and thoroughly as possible, within that period. Diluting that with what the hon. Gentleman suggests, by putting the responsibility on to another commissioner, would not be quite right.
Clive Efford: The hon. Gentleman may be right, and I am interested to hear what the Minister has to say. Have the Government considered a different location for the responsibility? How onerous will the role be? What is the relationship between the commissioner and the national DNA strategy board? What is the scope of responsibility? Will the person have a role similar to that of the DPP, which is completely separate from the police, or will he or she work in partnership with the police? Perhaps the Minister has not discussed with the police the future scope of the commissioner’s role, even for matters that the police may want the Secretary of State to prescribe in the future. We are creating a post, and there does not seem to be enough detail to explain exactly what the future role of the person will be.
Clive Efford: Well, nothing might preclude that. The hon. Gentleman may well be right, and we will hear from the Minister whether that is, in fact, the case. It will be interesting to have the matter clarified, if the Government intend to roll the responsibility up into a new department or a new function. We shall see whether it will be a stand-alone department, or whether it will be subsumed and come under the umbrella of another organisation.
How independent will the person be? The Secretary of State will appoint someone to the role. If he or she were to transgress in any way and upset the Secretary of State, presumably that person can be summarily sacked by the Secretary of State. How important is it that the person is independent in the role of overseeing the retention of data? The person will certainly be dealing with matters of national security, which are extremely important.
Clive Efford: We need some clarification. As the hon. Member for Gillingham and Rainham has indicated, there is confusion about the scope of the commissioner’s responsibilities. Where will the commissioner sit? Are we setting up an independent organisation? Will it come under the umbrella of a existing organisation? There is no reference to that in the Bill. Is it an appointment of the Secretary of State? Will Parliament have oversight of that? Will the Secretary of State have powers to dismiss the person if he or she upsets the Secretary of State and is considered to have overstepped the mark? How independent will the person be? How much political interference in the role will there be? If the person is to be politically independent and to fulfil the role effectively, it is important that he or she can do so without day-to-day interference.
Will it be possible to interfere in the operation of the office of the commissioner? Why appoint the office if it cannot act independently and make its own decisions, once it is set up within the agreed guidance and, presumably, the parameters of the report that the commissioner presents to the Secretary of State and is approved by Parliament? What is the process for issuing guidance on how the commissioner will carry out his or her functions at the start in reporting to the Secretary of State? Presumably, the commissioner will be involved in matters of national security.
In no way am I suggesting what is right and wrong; I want to get some detail on the Government’s thinking about the post. They are setting up a new role of commissioner—a series of clauses assists in that—but there is very little detail about what the commissioner will do. In fact, under another clause, as I have indicated, the commissioner will write a report on how he or she intends to perform the function in the future. It would be helpful, therefore, if the Minister gave some indication of exactly where the person will sit.
Will the commissioner form an independent body or be part of another organisation? Will he or she have oversight of the day-to-day management of the national DNA database, as the hon. Member for Gillingham and Rainham suggested? My understanding is that he would not, because that responsibility would sit more with the national DNA strategy board. Can the Minister clarify exactly what the scope of the commissioner’s role will be and where he or she will sit in the hierarchy when dealing with the police, the Secretary of State and other relevant bodies?
Steve Baker (Wycombe) (Con): I am extremely reluctant to offer any succour to Labour Members, particularly as the hon. Member for Eltham accused me earlier of being pointy-headed, but I agree with some of his points. I am rather sceptical of the role of commissars. I mean commissioners of course, but we do seem to be hiring commissars for the executive roles, and that is generally a bad thing. Why can national security determinations not be made by the Minister in co-operation with, or under the supervision of, either the judiciary or the House? What quantity of national security determinations do the Government expect? How many staff might the commissioner have and at what cost?
James Brokenshire: I take on board the line of questioning that the hon. Member for Eltham has sought to proffer, but the previous Government saw no role for any oversight of national security determinations. Interestingly, they would have left the police entirely on their own to carry out the assessments on a two-yearly basis, and that is why I asked him whether he thought the concept of a commissioner was a good thing. He was unable to give us any indication, neither positive nor negative, so I can only assume that the Opposition retain their previous position of not having oversight and of leaving the situation as it was under the Crime and Security Act 2010. I understand that. They adopted that position about 12 months ago. I appreciate that they are in their transition phase, working out what they think and what their consideration is on the various issues, but I take it that they do not see the need for oversight. That is fair enough; it is their position and we understand it, and I have not received any indication to the contrary.
A commissioner is needed to provide oversight. The hon. Gentleman rightly asked how that fits in. The strategy board will deal with the technical database
Clause 20 requires the Secretary of State to appoint a commissioner for the retention and use of biometric material, and a key function of the new commissioner will be to provide independent oversight of the retention of such material on national security grounds. We have already discussed the commissioner’s other functions, so I will not go over old ground, but we believe that there is a strong case for additional safeguards when a person’s DNA and fingerprints are retained on national security grounds. The Bill does away with the current blanket and indiscriminate retention regime, but under the provisions in this part of the Bill and schedule 1, DNA profiles and fingerprints could still be retained on national security grounds for an extended period. Although a determination is for a limited period of two years, such determinations are renewable every two years. In such circumstances, although not required by the Marper judgment, we consider it appropriate that a national security determination should be subject to independent scrutiny, and that task will fall to the new commissioner.
Clive Efford: The hon. Gentleman realises that the Marper decision does not require the post to be set up. Can he say how many of these determinations the commissioner will be dealing with because I have no idea? Will the number be vast? Will a very large department be required to review the requests?
James Brokenshire: We are certainly not talking about thousands; we are talking about a number in the hundreds. However, as these are matters of national security, our approach must be quite careful. We would expect the commissioner to oversee each of the determinations. It is not intended that there will be a huge office and a huge new role, which were some of the concerns that the hon. Gentleman highlighted. A small, manageable office will be able to assess each of the determinations individually. Perhaps that gives him a feel for what we are talking about.
The commissioner’s appointment will be made by the Secretary of State in a similar manner to the appointment of the independent reviewer of counter-terrorism matters. The previous Government were very clear on the nature of that role and the function that could be carried out in relation to anti-terrorism legislation. There is a read-across with this person being able to carry out their functions independently. I am sure that the hon. Gentleman will not say that the independent reviewer of counter-terrorism
There is no obstacle in the Bill to the commissioner having another role, although that is not currently the Government’s intention. All public appointments are subject to requirements in respect of honesty and transparency, as well as the normal standards that apply. In suitable circumstances, the commissioner’s appointment could be terminated by the Secretary of State.
When a chief officer makes or renews a national security determination, he or she will be required to send to the commissioner a copy of the determination, together with a record of the reasons for making or renewing the determination. It will then be for the commissioner to review each and every determination on a case-by-case basis, as I have said. If the commissioner is not satisfied that the case for making or renewing the national security determination has been made out, he or she can quash the determination and order the destruction of the material. That important additional safeguard adds a further layer of protection.
Clive Efford: Will the Minister clarify where the commissioner will sit? He said that it was not the Government’s intention at this time to combine this role—presumably with an existing role—but that they have not come to a conclusion on that. Is anything under consideration at the moment? Are the Government considering the possibility of combining this role with another? The suggestion again is that the Government are not absolutely clear about where they are going with the role or position of the commissioner.
James Brokenshire: No, far from it. We see this as an independent office, but obviously there will be a need for co-ordination with the strategy board and other relevant parties. Indeed, when the Information Commissioner gave evidence to the Committee a couple of weeks ago, he made it clear that
In the examination of each of these determinations, a practical assessment must be made about the appropriateness of the retention of the relevant biometric material—the DNA profile—in the circumstances.
As I have set out, it is the role of the strategy board to look at the overall operation of the DNA database and to give guidance to chief officers of police—in many ways, as it does now—and we are ensuring that that is properly put on the statute book. This is a different role and function. The role is supported by appropriate members of staff and has the necessary expenses, remuneration and allowances as set by the Secretary of State.
We are putting in place an independent safeguard, whereas under the previous situation there was no check or balance and relevant senior police officers were able
Clive Efford: Will an individual who is subject to the request by the chief officer to retain material under national security grounds, or about whom the chief officer applies to extend the retention on a prescribed matter, be aware that the process is under way? Does the commissioner have any requirement to inform that individual about the process?
James Brokenshire: As per the arrangements in the Crime and Security Act 2010, the determination is made by the relevant senior police officer, and it will be subject to review by the commissioner at that stage. I am sure that the hon. Gentleman and the hon. Member for Gedling will appreciate some of the sensitivities that are attached to the examination of certain of these cases. A national security determination will be undertaken by the relevant police officer and that will be subject to review by the commissioner. The individual would not be notified, as the hon. Member for Gedling will perhaps understand, because that might undermine the national security aspects that the police are trying to protect.
To return to the question of the different roles, we reached the conclusion that the role of the commissioner on the retention and use of biometric material was sufficiently specialised that it would not fit comfortably with that of any existing commissioner or non-departmental public body. Moreover, although rolling various statutory office holders into one might be superficially attractive, we must be alive to the disadvantages of such an approach. The creation of an all-encompassing “privacy commissioner” would risk diluting one or more of the statutory responsibilities of the commissioners whose posts would be abolished. We envisage that the new biometrics commissioner will personally review all national security determinations, as I have said. It is inconceivable that a privacy commissioner would have the time to give each case his or her individual attention.
Having said that, we intend to keep the current landscape under review. If, in the light of experience, we can streamline any of the statutory bodies that operate in this area, we will do so. As I have indicated, we believe that this is an important step forward and an important further safeguard, so I hope that the Committee will be minded to support the proposals.
Clive Efford: I am afraid that the omens for the commissioner are not convincing. The argument that there will need to be an oversight function on decisions to retain material under national security measures, and those matters that the Secretary of State may see fit to prescribe in the future, is irrefutable—that function will have to be performed. However, the Minister has failed to convince the Committee that the position is necessary. Indeed, his hon. Friend the Member for Carshalton and Wallington was not clear about the commissioner’s role.
It is not clear what the function will be. The Minister said that it could be shared with another role but it might not, and that it could be subsumed into another department but it might not. We are not clear about the function of the new role. The oversight of this important area of national security—deciding against the evidence of the police who are requesting the retention of material for national security reasons—will be an extremely important role.
James Brokenshire: I agree with the hon. Gentleman that the role will be extremely important, but I repeat what I said: the role is sufficiently specialised that it does not fit comfortably with that of any existing commissioner or non-departmental public body. I have been quite clear about that, although the hon. Gentleman does not seem to have heard me.
Clive Efford: But the Minister did not give a clear response to the point raised by the hon. Member for Carshalton and Wallington about whether the commissioner could sit with another organisation or share a role.
Clive Efford: The Minister did indeed say, “I do not think,” but his initial response was not that there will be a stand-alone organisation that will not share any roles. He said that the matter was still under review.
James Brokenshire: I think that what I said was very clear. I specifically said that we keep all sorts of things under review in the light of experience. To be clear, however, we believe that this is a specialised role that needs to be treated as such.
Clive Efford: The Minister may believe that it is a specialised role, but he has not done enough to justify the creation of the post as set out in the clause, so we shall press the matter to a Division.
Clive Efford: I have a few questions for the Minister. The Bill provides that the commissioner will write a report on the scope of his activities for the following 12 months. If the Minister can supply it, I would like some idea of whether any guidance will be provided by the Government on how he should go about that and what oversight there will be. What will be the scope of Parliament’s involvement once the report is laid before it? For instance, will it have oversight of the salary in that report, or the number of officers? Will there be a report about the anticipated detailed workload? In other words, will Parliament have an oversight of this department that is being set up, and of the scope of the responsibilities that the position will have? What will the commissioner be able to comment on in that report—now and in the future, as it will provide an annual report? Could the Minister give us some idea of the commissioner’s responsibilities?
For instance, in addition to issues of national security, the commissioner will be reporting on areas where the Secretary of State has prescribed certain offences. Will the commissioner be able to suggest where the Secretary of State might want to alter those prescribed matters, after consultation with the police or other bodies? Will the commissioner’s remit allow comment on those matters?
In the light of experience of dealing with requests from the police or in negotiations with the police, do the Government envisage that the commissioner may have a role in shaping decisions on those matters? Could the Minister indicate what exactly he expects to be in this report that will come to the Secretary of State and be laid before Parliament? Presumably the Government envisage that the Select Committee will have oversight and detailed scrutiny of the report—would it be consulted by the commissioner on what would be appropriate matters to include? Could we have an idea of what these reports will cover, and what they will not?
James Brokenshire: The role of the commissioner—notwithstanding what the Opposition may think—is an important new safeguard in the proposed regime for retention on national security grounds and in prescribed circumstances. It is essential that its assessment of the operation of these powers is transparent. The commissioner will be independent and the contents of its reports will be for it to determine. It would be reasonable to expect its annual report to contain relevant statistics on the number of determinations and renewals and to include any recommendations for improving the operation of the provisions over which it has oversight.
However, the Secretary of State will have the power to exclude from publication any part of the commissioner's report which in its opinion would be contrary to the public interest or prejudicial to national security. These are the only grounds on which exclusion may be permitted. The commissioner can also produce ad hoc reports, either on his own initiative or at the request of the Secretary of State. The Secretary of State must publish and lay before Parliament any such report from the
The report would operate in respect of the commissioner’s functions as set out in the Bill. Other commissioners provide reports to Parliament in the same way, and I am sure that there are parallels that can be drawn.
Clive Efford: Briefly, I have one or two questions for the Secretary of State. The Bill refers to the Secretary of State making the guidance on national security and consulting with the commissioner and the Lord Advocate.
Perhaps I am reading something into the matter that I should not, but why are those two people mentioned specifically when there are a load of other people whom it would be extremely important to consult in relation to matters of national security? I would not expect to see the names of the security services themselves in the Bill, but why is there a reference to the commissioner and Lord Advocate and not other people who may be relevant to the process? For example, the Association of Chief Police Officers might have something to say on these matters as well. Will the Minister say something on how the Secretary of State has to consult on the guidance?
Where does the Director of Public Prosecutions fit into that relationship? In terms of legal proceedings as a result of possible challenges on retention decisions and how that might impact on cases, is there a role for a wider consultation on the legal implications of decisions that might be being made by the commissioner and on the guidance given to the Secretary of State on how that function is performed? I am curious about why those two posts are mentioned when I could come up with a list of people whom it would be very relevant to consult on the guidance that the Secretary of State is required to draw up. Will the Minister comment on that?
James Brokenshire: On the issue of the consultation with the Lord Advocate, obviously the hon. Gentleman will be aware that national security issues are a reserved matter. Therefore, there will be potential implications from a Scottish perspective, and that is why there is a specific reference to the Lord Advocate in this context. However, it would be open to the Secretary of State to consult other persons as she may see fit. As part of its preparation, the guidance would be subject to public consultation as well.
Clause 22 makes provision for the Secretary of State to issue statutory guidance on the making or renewal of national security determinations by chief officers of police or other law enforcement authorities. Those authorities will be required to have regard to the guidance when making or renewing a national security determination. The guidance will be brought into force by an order subject to the affirmative resolution procedure, so there
‘to include management and oversight of the processes involved in the destruction of physical samples’.
‘(2A) The National DNA Database Strategy Board must issue guidance on the ownership of DNA materials.
(2B) The National DNA Database Strategy Board must regularly review all DNA service providers, including the Forensic Science Service.
(2C) The National DNA Database Strategy Board shall issue guidance on procedures for redress and accountability should errors be made in respect of the retention or destruction of DNA materials.’.
Clive Efford: The amendment gives some oversight of the national DNA database strategy board for destroying existing profiles and data, and of the future management and direction of the forensic service industry and support to the police. We suggest that the national DNA database strategy board should give guidance to the Secretary of State about the future ownership of such material. Currently, the material is owned by the chief officer of the police force responsible for putting it on the system, but in the past, the system was simple to manage. Decisions will have to be made about the material currently held and whether it should be disposed of or retained.
Someone must take responsibility for oversight of that process, and it seems from the Bill that the logical people to do so are on the strategy board. They must also have some responsibility for monitoring service providers. I know that the Forensic Science Advisory Council oversees the industry, but the strategy board must have some oversight over individuals’ performance in terms of its strategy for the future of forensic sciences and biometric data.
Those organisations must be accountable. Who will be responsible for decisions about what will and will not be destroyed? Who will have responsibility for any errors resulting in the destruction or loss of data that should have been kept? We are dealing with an enormous number of items of DNA material, and some might well be retained or destroyed in error. Who will take overall responsibility in that regard for dealing with the process? I have spoken to representatives of the forensic science services, and they are not clear about those issues. If they are not clear, those are perfectly reasonable questions to ask. Who will have ultimate responsibility for making the decisions required by the Bill?
The Bill sets out hard and fast criteria in terms of time scale. We discussed that earlier, and the Minister made it clear that where necessary, information should
The commissioner will make decisions about data to be retained in prescribed circumstances, but will not have oversight of existing material. The clause requires the strategy board to give guidance on future management of data, but it is not clear how existing data will be handled. Currently, as I said, each police force owns its data, but the current system took a blanket approach to retention. We have had a lot of discussions in Committee about how we can alter that process to meet the requirements under the Bill. We have had a lot of discussions in Committee about how we can alter that process to meet the requirements under the Bill. However, as we know, some information cannot be destroyed, but only rendered inaccessible.
If the public are to have confidence in the system, they must be reassured that there is some oversight of it. The system has become complex. I accept that the regime introduced several different levels, but the different lengths of retention start with the speculative search on the taking of DNA profiles. We have indefinite retention for people convicted of crime. We have three-year retention for recordable crime, five-year lengths for under-18s and extensions for various periods. We have multiple retention on issues of national security. We have issues about time scales of the destruction of samples. It is becoming a detailed and complex system for the police to handle, and someone must have oversight of it. Someone has to have management of it, especially of the material that needs to be destroyed and the existing material that needs to be retained.
The police have said that such matters will require a great deal of management, and that effectively we are talking about a blanket three-year ban in most cases because, on an individual basis, they will not be able to monitor the situation and request extensions. The process of going through the existing data and ensuring that the requirements of the Bill are met under the different sets of criteria that I have set out will be an enormous task. The public will have a right to know who is in charge of that, and who has ultimate responsibility for it. Will it be the chief officer in each police area, or should a central body be responsible for oversight of the whole process?
As for cost, when Mr Chris Sims gave evidence, he mentioned the figure of £18 million. He said originally £80 million, but he wrote to us, revised it, and said that the figure would be £18 million to deal with the requirements under the Bill. When my hon. Friend the Member for Kingston upon Hull North asked the Minister about the forensic science laboratories and the cost of the removal of the DNA profiles from the national DNA database, he said that it would be £4.8 million. Will the Minister explain the difference? I am not clear, although I am sure that there is a reasonable explanation for those figures. ACPO has said that the cost will be £18 million, and the other cost is £4.8 million. Is that just referring to the removal of profiles from the DNA database, and does the other figure of roughly
The national strategy board will certainly require some expertise, which was one of the issues raised by the Information Commissioner and others in their evidence, who said that it is essential that the board has the necessary skills to perform its function. For example, will members of the Forensic Science Advisory Council be involved? Will the Information Commissioner attend in an advisory role? What do the Government envisage as membership of the national strategy board? I know that this clause is similar to one in the Crime and Security Act 2010, but I would like some indication of what expertise the Government believe that it needs to fulfil its function.
The amendment also refers to the future of the Forensic Science Service, giving some oversight of where it is going. It says that the strategy board should review the current position and what might be necessary in the future in terms of providers, and whether we should retain the Forensic Science Service, which the Government have decided that they want to abolish. Some of us feel that that would be a big mistake, and the Government might want to rethink that in light of the lobbying in its favour. That would give an opportunity for people to take breath, a natural break—we are into those—and reconsider whether the Forensic Science Service should form part of the forensic services in future. It already retains an enormous amount of information, and there is a big question mark over where that information will go. I do not know whether the Minister has already made up his mind on that, but a review of this kind would give him an opportunity to consider that, and whether there is a role for the FSS.
An article in The Guardian last week about the Criminal Cases Review Commission and the FSS raised the prospect that some of the material held by the FSS might go abroad, if it were sold to a private company. I think people would be concerned if private companies involved in providing forensic science services moved those materials abroad, because it would raise questions about the management of that material. If people’s material is processed by companies that are not UK-based, do the Government have any concerns over that prospect? Does it happen already? I realise that a large proportion of forensic science services does not go to the FSS and that there are a number of providers out there, so what exactly is the current practice?
Another issue is the research that the FSS would provide. The national strategic DNA database might want some oversight of research in this field, if it is to have a strategic role in the future of this area of operation. The FSS carries out a great deal of research, which I understand it is not funded for, and that is part of the problem with its funding. As was pointed out in the article in The Guardian, if that research were to be lost, it would be a great disappointment, because this is an organisation that is seen as a world leader in research in this field, so we could place ourselves at a disadvantage.
“For the sake of the future of the FSS and the livelihoods of the constituents of many hon. Members who have spoken, I trust that the Minister will be able to provide answers to the real questions that linger about the Home Office’s commitment to, and vision for, the future of forensic sciences in this country now and in the years to come.”—[Official Report, Westminster Hall, 30 June 2009; Vol. 495, c. 44WH.]
The Minister was speaking in an Adjournment debate secured by my hon. Friend the Member for Chorley (Mr Hoyle), who spoke glowingly about the FSS and discussed the need to have some clarity about its future. He also talked about the prospect of losing the skills of the FSS. Those were very wise words, and I commend them to the Minister.
I suggest that we should take a natural break to reconsider the decision to close down forensic science services in this country. We need to consider how to manage this process of destroying material that is currently held and decide who is to be responsible for that. It will be an enormous task, and if there are errors in that process, who will be accountable for them? Who can the public or Parliament hold to account for the process of destroying that material should any errors or problems occur?
The Chair: It may help the Committee at this stage if I indicate that as the hon. Gentleman has, quite rightly, introduced these amendments in a fairly comprehensive fashion, I do not anticipate a stand part debate on this clause later on.
James Brokenshire: I am grateful to the hon. Gentleman for highlighting the comments that I made about the FSS in that Westminster Hall debate. Those questions did not receive a suitable answer at that point, which is why this Government are having to sort out the mess that the previous Government made when they set up a forensics framework that was not sustainable. They invested millions of pounds of taxpayers’ money into a model that did not work. Sadly, we have to deal with that now, as we have to deal with so many other problems.
The Home Office is committed to ensuring the continued provision of an effective forensics service to the criminal justice system. The reality that the hon. Gentleman may not want to address is that the forensics market has been shrinking for some time. The FSS is in serious financial difficulty because of the previous Government’s lack of forethought, planning and structure. Operating losses stand at around £2 million a month, and the prospect is of further shrinkage in the demand for forensic services.
I appreciate that the hon. Gentleman has sought to crow bar in a debate on the FSS during our discussions on these amendments. I am sure that there will be other opportunities to debate such matters. None the less, I caution him to consider the statements that he makes about the FSS. He should look at why we have to make such difficult decisions about the service while at the same time trying to ensure the continued availability of high quality forensics for law enforcement in the UK.
The hon. Gentleman’s amendments would significantly extend the remit of the national DNA database strategy board into areas such as destroying samples, reviewing the operation of forensic science providers and redressing procedures in respect of material held in error. In all those areas, there are existing Government procedures that are better suited to the tasks.
The hon. Gentleman has suggested that the level of complexity necessitates his approach. However, the previous Government proposed this regime: conviction for adults would have led to indefinite retention; non-conviction for serious crime would have led to six-year retention; under-18 minor crime would have led to five-year retention on a first conviction and definite retention on a second conviction; non-conviction for a serious crime involving someone under 18—in other words, there was not a conviction and it was really an arrest—would have led to three-year retention; and renewable two-year periods would have been available on national security grounds. The point is that the arguments on complexity that he seeks to advance do not hold given the additional complexity that he is seeking to impose by virtue of his amendments. There are changes that would have had to have been made in respect of the previous arrangements under the 2010 Act. Equally, the approach that we have sought to adopt in the Bill is in many ways consistent with the approach that was taken in the 2010 Act.
If we look at amendment 77, it is difficult to see how the strategy board would be in a position to give guidance on the management of the process of sample destruction, which must be a task for the senior staff of each forensic service provider. In terms of the oversight of those processes, that task is properly for the forensic science regulator, Andrew Rennison, who gave evidence to the Committee.
Amendment 78 would give the strategy board responsibility in three additional areas. If we look first at the ownership of biometric material, it is the well-established position in data protection law that this material is owned by the chief officer of the police force that took the sample. The data owner is, in law, responsible for the safe and appropriate storage, use and destruction of the material in accordance with data protection principles. It is difficult to see how the strategy board, whose expertise is in other areas, could draft guidance in that area. Moreover, there is a danger that any such guidance could overlap with guidance provided by the Information Commissioner’s office.
The second limb of amendment 78 would require the strategy board to review the forensic science providers on a regular basis. As I said in response to the previous group of amendments, the board is a lean organisation. It has minimal support, and so any such function would require the provision of additional staff and therefore lead to additional cost. In any event, the oversight of the forensic science providers is properly for the forensic science regulator and his team, in conjunction with the United Kingdom Accreditation Service, which carries out periodic reviews of all providers’ ISO 17025 accreditation.
Turning finally to the third limb of amendment 78, namely guidance on procedures for redress in respect of material held in error, I suggest to the Committee that the valuable time of the members of the strategy board would be better spent ensuring, as far as they can, that there are appropriate procedures in place to eliminate
Clive Efford: I am grateful to the Minister. I will withdraw the amendment, although we may want to vote on the clause. We think that there is an issue with regard to the oversight and management of the process, which we may return to later in the consideration of the Bill. I do not think that the capacity exists within the police to carry out that function, because the process will be enormous and complex. I accept what the Minister has said about the strategy board being a lean organisation, but somebody has got to take a strategic role in the future of forensic science services. There is a great deal of unrest out there about the future of the FSS itself. The amendments would have given an opportunity for the Minister to reconsider that decision and review it in the light of what will be required as a consequence of what is in the Bill. Exactly how we will address that particular issue is something that the Minister might want to reconsider.
James Brokenshire: I have highlighted important issues in relation to the overall architecture of forensic provision. They are outside the scope of this particular clause, which is why it is not appropriate to debate them in detail at this point.
Clive Efford: I fully accept that we cannot debate those issues in detail at this point. We feel, however, that there is a need for some oversight of the strategy for forensic sciences, and think it appropriate that, if the DNA strategy board is to have oversight over this particular issue, it may want to comment on it before we lose something that we might regret in the future. That said, I beg to ask leave to withdraw the amendment.
Clive Efford: We have debated many of the issues relating to the material taken before commencement, so little can be added in relation to this clause. We have just discussed the oversight of the destruction of material taken before the commencement of the Bill, which is an important process that needs to be managed carefully in case we get into danger and lose material that we may want to retain in the future. We have been over the issues many times, and I would be grateful if the Minister
We are all experienced people who have been in public office, both in local and national Government, for many years, and we know that mistakes are made for which redress is needed. If there are mistakes, where is it set out that the public have recourse to make a complaint, get satisfaction for it and have it heard, and who will have overarching responsibility? Will it just be the Secretary of State and individual chief officers? Who will hold the ultimate responsibility for the information? It will be an enormous task, and I presume that the Minister has some idea how long it will take. The resources that have been quoted are enormous in terms of the millions of pounds needed to satisfy the Bill’s requirements. Some of those costs would have been inevitable under the 2010 Act. None the less, this process needs to be managed and overseen in some regard. It will be interesting to hear from the Minister what the Government’s intentions are.
James Brokenshire: The hon. Gentleman is critical of the costs, yet he is trying, seemingly at every opportunity, to overlay more bureaucracy, process and cost. It is worth highlighting again that, according to the impact assessment for the 2010 Act, the one-off costs were between £51.5 million and £53.5 million. Again, I underline how we have been very careful about the way in which we have introduced these proposals to ensure that they are effective, and we are keeping a keen eye on the costs and bureaucracy attached to them.
The hon. Gentleman asked how people will be able to confirm whether, for example, police forces are still holding relevant details and data. Again, a subject access request will clearly highlight whether a police force is continuing to hold information about a person.
We believe that the provisions set out in the Bill, which, again, are very similar to those in the 2010 Act, which preceded it, are perfectly workable and relevant, albeit we are working with ACPO and the Forensic Transition Board. Chief Constable Chris Sims, who gave evidence to the Committee, is chairing the Forensic Transition Board, co-ordinating the police, the National Policing Improvement Agency, forensic service providers and others and therefore the Forensic Transition Board is taking this process forward and going through all the relevant details to ensure that this clause is given effect properly.
As for complaints, a complaint would need to go to the relevant police force that took the original sample, as I have outlined. We believe that these provisions are workable and clear, and we trust that the Committee will approve their inclusion.
‘(2A) The relevant authority shall notify all parents if they are currently processing, or intend to process, biometric information—
(a) having received such a notification, a parent may write to the relevant authority requesting that their child’s biometric information not be processed, and
(b) the relevant authority must comply with all such requests.’.
Clive Efford: These amendments deal with the process of notifying parents of the intention of a school to take biometric information and to set out the process by which parents can notify the relevant authority that they do not want to comply with the request. We have been approached by the Association of School and College Leaders, who are concerned about this area of the Bill. It is a question of whether parents are opting out or opting in and the ability of schools to manage their affairs. If a relevant authority decides that it is in the interests of efficiency to set up a system of this kind, is it the intention of the Government that they should consult parents before they implement it? Or is it the intention of the Government that the relevant authority can make that decision, but must then consult parents as to whether they want to participate in that system? It is about the extent to which parents should be notified.
This probing amendment is to determine in what circumstances the Government envisage that that would not be possible. We are dealing with schools and places of education. When would it be the case that a school could not contact either a parent or responsible guardian for this decision? The amendment is designed to clarify what that means.
Amendment 80 would replace “each” with “one” parent of the child at the start of subsection (2)(a). The requirement in the clause suggests that, where there are two parents, both have to sign. My wife and I have had to sign requests for school journeys and such things, but the school has not required both of us to sign the consent form for one of our children to go on those journeys. This is a probing amendment to find out why the Bill specifies that “each” parent, rather than just one, needs to sign.
The Minister has just chastised me for being overbearing and bureaucratic, and for wanting to introduce new tiers of bureaucracy, but we do not want to do that in
It is important that we do not limit the capacity of schools to manage effectively, at the same time as they meet the requirements in the Bill. That will be significant if a school cannot allow a child on to its system until it has the signature of both parents. Does the school have to consult parents before it introduces such a system, and does that therefore have to be approved by a majority of parents? Can the relevant body—in this case, the governing body of a school—decide to introduce a biometric fingerprint or thumbprint system for taking library books out of the school, and then write to parents to inform them that it will do so and give them the option to say whether they do not want to participate? It is also important, and we will move on to this under the next set of amendments, to make sure that no child is disadvantaged.
What is the Government’s intention on how much influence parents will have over the decision of the governing body or the relevant body to introduce such systems? Will schools have to secure a majority of parents, or will they have to give parents the opportunity to opt out?
James Brokenshire: We move on to chapter 2 of part 1 of the Bill, which relates to the protection of biometric information of children in schools. The principle that the provisions seek to put in place is that parents must have the right to protect the biometric data of children by being able to withhold their consent, which is fundamental. There are reports of children as young as three having had their biometric data collected, and it is unacceptable that any child, but especially one so young, should have their data taken without parental permission. That is at the heart of the provisions in this and subsequent clauses, and that is why it is important that we have introduced them.
Diana Johnson (Kingston upon Hull North) (Lab): Will the Minister assist me? I have read the clause, which includes provision for children to withdraw their consent. Is he telling the Committee that a three-year-old could therefore override parental consent?
James Brokenshire: The hon. Lady raises an interesting point, and she no doubt knows that it was highlighted by the Information Commissioner in the guidance that he issued in August 2008. There is an issue about the potential ability of the pupil to object to, for example, school fingerprinting initiatives. It is quite difficult to set an age limit, so it is important in setting out the general principle that a child should be able to withhold their consent on whether to provide their thumbprint or a biometric in that way. Given that that is personal to the child, setting artificial age limits would not be appropriate. Is the hon. Lady suggesting that one age is more valuable in terms of biometrics than another? Perhaps that is the point that the Opposition are trying to advance.
Diana Johnson: The Minister is obviously a learned Member of the House, and will know that in law there have been several cases setting out the age at which children develop the ability to make decisions on their own behalf, including the famous Gillick case. Does the Minister recognise a difference between a three-year-old making a decision to withdraw consent, and a 14 or 15-year-old having the capacity to make that decision?
James Brokenshire: I would not seek to draw the distinction in this regard, because we are talking about such a personal issue. Opposition Members could table an amendment on Report to put in place an age limit that they believe is appropriate, but they have not chosen to do so in Committee.
James Brokenshire: I will, when I have finished my point. If there are other means of accessing services such as library services where a biometric does not have to be used, it should be open to be able to take those other means of accessing the same services.
Vernon Coaker: I have been following with interest all day what the Minister is saying, and I can follow most of it whether I agree with it or not, but there is utter incredulity that the Minister has not categorically ruled out a three-year-old being able to overrule a parent’s wishes regarding their biometric data. Parental consent is right, and we agree with the point, but the Minister will be in real trouble because people will not believe that he is not saying that there is an age at which parental rights override those of a child. Is he really saying that a three-year-old could say, “I don’t care. I’m not doing what my mum and dad want. I don’t want it.” Is that really what he is saying?
The Chair: Order. Before the Minister responds, I want the Committee to know that there are no specific amendments on this particular point. I am sure that it is relevant to mention it in passing, but perhaps we could then return to the amendments.
James Brokenshire: The point in passing is that much of the time we are talking about practical issues involving children talking to their parents and how the issues are managed. I suggest to Opposition Members that there are legal and practical challenges to setting an artificial age limit. Practical issues may arise, but if Opposition Members are suggesting that they value biometrics in one scenario or another, and setting a rigid cut-off point, it is better to leave it to parents and schools to deal with the matter practically.
Gareth Johnson (Dartford) (Con): Will the Minister concede that if we accept what Opposition Members are saying, and children had to go along with what their parents said, the practicalities would mean that if the
James Brokenshire: My hon. Friend makes an interesting point. The hon. Member for Gedling is obviously sensitive to the use of force, but he is suggesting that teachers would physically have to take the biometric in such a case, and I caution him in that regard. This may be a wider point of debate on the clause, but is he really saying that he wants to use force in such circumstances? I suspect that he is not. I can see that Mr Streeter is shifting in his seat, so I will return to the specific amendments, but no doubt we will return to the broader debate.
As we have heard, amendments 88, 80 and 86 deal with issues around parents’ consent to the use of their children’s biometric data. Clause 26 requires both parents of the child to consent before schools and colleges are able to process their children’s biometric information. This right to consent is one that many parents feel very strongly they should have. Amendment 80 seeks to amend clause 26, such that the consent of only one parent is required before the child’s biometric information can be processed by a school or college. I expect that the intention of the hon. Member for Eltham in proposing the amendment is to reduce the administrative burden on schools and colleges when complying with the requirements of clauses 26 to 28.
The clauses as drafted recognise that each parent should have the right to consent before their child’s biometric data are processed by a school or college. Given the sensitive nature of biometric information and the strong feeling that many parents have on this issue, it would be wrong for one parent to be able to consent to such processing and for the strongly held views of another parent to be potentially disregarded. In many cases, parents will obviously discuss the issues involved and are likely to reach some agreement on whether the biometric data of their child should be processed by a school or college.
However, members of the Committee will appreciate that circumstances will arise where parents may have very different views on such a complex and emotive issue. One can easily imagine a situation where parents are separated and where one parent is content for the biometric data of their child to be processed when the other parent is not. I hope that the hon. Gentleman will agree that for those reasons we should respect the rights of both parents to consent to the use of their child’s biometric data by a school or college.
Clive Efford: The Minister uses the example of parents living apart. In those circumstances, is it the parent with care who has the final decision on whether material is taken? In the case of parents disagreeing, are they not capable of making the school aware of the fact that one parent agrees and one does not? Is it right for the Government to interfere to ensure that both parents have to be in agreement before schools can go ahead in this way? Is that reasonable?
James Brokenshire: We believe that it is reasonable and proportionate, given that there will be strongly held views potentially by either parent. The consent of both parents should be required in such circumstances. I
Mark Tami: What sort of guidance will the Minister provide for schools? The more he goes on, the more complicated and confusing the whole thing becomes, whether it is the parents, the children or whoever.
James Brokenshire: That is what we are talking about in the provision. I am surprised if the hon. Gentleman finds it complicated to understand the consent of the parents and the ability of a child to withdraw the provision of their biometric data if they so choose. The concepts are pretty simple. I hope that members of the Committee will agree that it is important that each parent is given the right to consent to the use of their child’s biometric data by a school or college. The requirement for consent from each parent is proportionate, given the sensitive nature of the information and the strong feelings of many parents regarding the processing of this information in this way. Ultimately, Opposition Members need to decide whether they think this is a good or a bad thing. In a sense, they are quite content and relaxed about whether children’s biometrics should be retained. We certainly are not. I find their highlighting of the issues rather surprising.
Amendment 86 would remove the exception in subsection (1)(d), which provides that a school or college does not have to gain the consent of a parent where it is not reasonably practicable to do so. I expect that the intention behind the amendment is to ensure that schools and colleges do not attempt to use the exception to justify non-compliance with the requirement in clause 26 for parental consent to be obtained.
I would like to make it clear to the Committee that no processing of a child’s biometric information will take place unless at least one parent or other person who cares for or who has parental responsibility for the child consents. The exceptions in clause 27 do not alter that. At least one person will always need to consent to the processing of a child’s biometric information before any such action by a school or college may take place.
The hon. Member for Eltham was suggesting when speaking to amendment 86 that somehow paragraph (d) would be problematic. In fact, that will aid colleges where it may be impracticable or impossible to track down another parent, where there is only one parent and where it is known that there is no other parent. In terms of practicability, paragraph (d) intends to provide aid in that manner, ensuring that no unreasonable obstacles are placed on a school or college’s ability to implement biometric identification systems if they choose to do so.
I suppose that that is what we are talking about—a school or college deciding whether they wish to use biometric information to aid the processing of their library or school meals, which I know the hon. Gentleman is highlighting. These are not official estimates, but information that has been disclosed indicates that around 30% of secondary schools and probably only about 5% of primary schools use biometrics in that way. Ultimately, it comes down to the issue of consent.
I emphasise that where a parent can be located, is of sound mind and poses no risk of harm to a child, it is highly unlikely that a school or college can rely on paragraph (d) to dispense with the requirement to obtain that parent’s consent. The point comes back to getting the consent of both parents in the context of the importance and significance of what we are talking about.
Finally, amendment 88 proposes an approach to parental consent different from that provided for in the Bill. I imagine that the hon. Gentleman envisages that his opt-out approach would be less burdensome on schools and colleges, and I know that that approach is also favoured by the Association of School and College Leaders. However, I do not believe that such an approach would go far enough in protecting the use of sensitive biometric information in schools. A requirement that parents actively consent is, in my view, a proportionate measure and will ensure that the rights and wishes of parents are respected. That is particularly important given the sensitive nature of biometric information and the strong feeling about it that many parents have.
Clive Efford: Will the Minister confirm the following? I think he just said that the Bill will require schools to seek a majority among parents before they can implement the system. We are seeking to clarify whether the relevant body is free to introduce the system if they think it is in the interests of the efficient running of their school, and parents who object may opt out.
“The relevant authority must ensure that a child’s biometric information is not processed unless…each parent of the child consents to the information being processed, or…such consent is not required in one or more cases and is given in any other case.”
That talks about clause 27. If a school were to consider the introduction of such systems, they would no doubt wish to consult parents in advance. It would need the consent of each parent to be able to take the biometric details of their child. The Bill outlines the prior approval approach, which we think is the appropriate way to proceed, given the sensitive issue of biometrics and the understandably strongly held view about it.
Many parents have concerns about the exposure of their child to such factors and the security of their child’s sensitive data. They would be rightly upset if their child’s data had been taken before they had the chance to notify the school or college of their wishes; hence the Bill is framed as it is.
It is not clear whether the hon. Gentleman’s proposal would significantly reduce burdens on schools and colleges, if that is one of the intentions behind the amendment. His proposal still requires that all parents are notified
I hope that even if, for the hon. Gentleman’s Whip, I have not been able to provide complete clarity on those matters, the hon. Gentleman is minded to withdraw his amendment on the basis either that it is not effective or that it will not add to the Bill.
Clive Efford: I have listened carefully to what the Minister has said. The Association of School and College Leaders has made it clear that it is opposed to this chapter of the Bill. We want schools to be able to run their affairs without becoming too bureaucratic and interfering too much, while at the same time respecting the rights of children and parents.
I still have concerns about the requirement to ask each parent to give consent and whether that is reasonable given that the primary function of a school is to educate children. Placing an over-bureaucratic and burdensome system in the way of schools would be regrettable, but I accept the principle that it will be a requirement to seek the permission of the parent before taking any such information from a child.
We have to remember that every day we hand our children into the care of the people managing those systems. Those people have to have regard to the care of those children while they are in the school or education establishment. They are not people who would treat such information lightly, and we need to bear that in mind when we take a balanced judgment about the best way forward.
‘(6) The relevant authority must ensure—
(a) that reasonable alternative means are available by which the child may do, or be subject to, anything which the child would have been able to do, or be subject to, had the child’s biometric information been processed;
(b) that enrolment at the school is not conditional upon consent;
(c) that parents are informed by the school about—
(i) the purpose for which the biometric data will be used,
(ii) who has access to the biometric data,
(iii) how secure the data are, and
(iv) how long biometric data will be kept; and
(d) that no data are ever transmitted to third parties.’.
‘(7) A person who contravenes or fails to comply with any requirement imposed on him by this section is guilty of an offence and liable on summary conviction to a fine not exceeding level 1 on the standard scale.’.
‘In particular, a child on free school meals who does not give biometric information must still be afforded a protected way of receiving their meals.’.
Before I call Mr Steve Baker to introduce his amendment, it might be helpful to the Committee if I indicate that I do not intend to call a stand part debate on clause 26. Colleagues may want to take that into account when addressing the amendments.
Steve Baker: I welcome this chapter. For me this is a totemic subject. I remember well when I first learned that children’s biometrics were being taken and how horrified I was, but I will not dwell on that. I will move on to my specific amendment.
I welcome the provisions of subsection (6), but my probing amendment would provide three more measures. First, my amendment retains the existing provision, which ensures that children are not excluded if consent is withdrawn. But for me it is very important that enrolment in a school should not be conditional on consent to take biometrics. I offer that in paragraph (b).
In paragraph (c) I seek to ensure that there are additional safeguards to ensure that consent is not lightly given and that parents properly assess any request in light of all the information. Finally, paragraph (d) provides that no data are ever transmitted to third parties. If we are to avoid a panopticon state it is vital that children’s biometrics, when taken, are not transmitted.
Clive Efford: I rise to speak to amendment 79. It highlights the concern about some of the unforeseen consequences of introducing the measures. Schools seek to use biometric information to protect the privacy of some of their pupils, particularly disadvantaged pupils who receive free school meals and can be stigmatised if that is known. Daily they have to go through the public humiliation of receiving a token for their meal and they would welcome its being done discreetly using this system. While we are all in agreement with the principle that parental consent should be sought for young children, we do not want to prevent schools from protecting children in those circumstances. There may be other circumstances that are not covered by the amendment. We will not press it to the vote but it is an important area, which the Government should not overlook.
In view of your warning, Mr Streeter, that we will not have a stand part debate, I make a brief aside on the age of consent. I accept to some degree what the Minister says about children who decide that they do not want to have biometric information, a fingerprint or an iris photograph taken, and that there would be a very ugly scene to try to force them to do so in those circumstances. The Bill empowers a child; if a parent says yes and the child says no, the Bill says that the child’s word takes precedence. I wonder whether some parents in future will question the Government’s wisdom in interfering in family matters in that way. The example that was used was that of children as young as three being able to tell their parents that they would not give a thumb print for their library books. A parent, having looked into the matter, might say that it seems perfectly reasonable. The hon. Member for Wycombe highlighted some issues around security which are very important in these
In our earlier debates on DNA material, we accepted that some very personal information that cannot be destroyed will be retained by forensic science services. As long as that information is secure, we are happy for it to be there. The same principle applies here to the security of the system. I would not want the police to turn up at a school and say, “We believe you might have the fingerprint of this young person. Can we have access to that?” That clearly should be ruled out. That is not what this is for. It is purely to enable a school or education establishment to manage its library, school meals and other matters efficiently. We should not interfere too much with schools’ ability to do that.
Parental consent is right, but where we said that a child as young as three or four should be able to defy their parents—that they would be given that authority by the legislation—a wider issue is raised about how we empower young people. The image conjured up by the Minister is that of chopping off a child’s thumb to get their thumb print. I am being flippant. It would cause anyone concern if, for whatever reason, a child decided that they could not bear to have something done—they might not understand the mechanics of the process that they were being asked to go through, but because something had upset them they could become distressed—and I understand that might be difficult, but giving a child as young as three the authority to say “absolutely no way” to something, as in the example, seems extraordinary.
James Brokenshire: Does the hon. Gentleman feel that schools should force the taking of biometric data in those circumstances? We are trying to address the practical situation and it is a sensitive and difficult issue to deal with. There can be consent from the parents, but if the child is so upset that they do not want to give their consent, would the hon. Gentleman honestly want the school to force it?
Clive Efford: We have to reconsider the issue and remind ourselves of the institutions we are talking about. Schools are charged with the care and welfare of children, and they would not get into a situation where a child is upset about going through a process. We have such situations with vaccinations for children and we must work around the issue. [ Interruption. ] —My hon. Friend the Member for Gedling said that some children do not want to do PE and might get upset when they have to change. I used to hate country dancing in bare feet in halls. Could I have demanded that my civil liberties not be infringed and that I should be able to wear trainers? We did not have trainers in those days; we had Green Flash plimsolls—[ Interruption. ]
Clive Efford: The question is about where the process would stop. The Minister made an important point. We do not want to empower people to distress children in such situations. Nobody is suggesting that, and it is not fair of the Minister to say that they are. We are talking about a situation where parents have given permission, looked into the matter, understood the process and
The next question is about where the age limit should be set. The Minister has a good point; these things are not simple to legislate on. Do we set the limit at 10, or at secondary school? Do we put it at nursery age or when the child is 16? What age do we select for the point at which the decision of the parents cannot be challenged by the child? As the Minister said, that area is difficult to legislate, but there must be a limit and we must consider that point. If we are going to give children the right to refuse, we must consider at what age that is appropriate.
Steve Baker: This is a fascinating discussion. A straw man has been erected that we are attacking furiously; it is great sport. Does the hon. Gentleman not concede that certain rights are inherent for an individual of whatever age? We, on the Government Benches, happen to think that a person’s decision on whether to give their biometrics is an inherent right irrespective of age. I detect that he thinks otherwise.
Clive Efford: The hon. Gentleman is absolutely right. If he is talking about the ethical considerations of taking someone’s biometric details, surely the person who is making the decision has to have some understanding of that debate. Surely the parental decision has to be the one that takes precedence.
Tom Brake: The hon. Gentleman was asked a simple question earlier, which was, in a scenario where, yes, the parents have given consent but the child—whether they are three or 18—has said that they do not want this done to them: what is he suggesting should happen?
Clive Efford: I am suggesting that we leave it to the management of the school and the parents to come to a reasonable arrangement. I do not think anyone—the parent or the school—would drag a child screaming to a scanner to scan their thumbprint or take a photograph of their iris if they were distressed about it. We are talking about parents and people who run schools and who are charged with the care of young people. If the hon. Gentleman is saying on the basis of some principled position that a child of three can come to a decision about whether they want that information taken from them, as a parent, I disagree.
Mark Tami: I jokingly talked about the idea of the dentist and injections. We, as parents, make that choice because we think it is in the best interests of the child. I am sure we all know what the answer would be if we asked a child, “Do you want an injection? Do you want to go to the dentist?”
Clive Efford: I think if I go too far down that road, you will pull me up short, Mr Streeter. My hon. Friend has made the point. There are always situations where parents have to deal with such circumstances and this is one of them. We are talking about situations that are few and far between. I question the Government’s rationale in trying to legislate for such circumstances.
Clive Efford: The school does not have to do anything. It does not have to adopt a biometric system at all. Let us say that the relevant authority, for example, a governing body, decides that adopting such a system is the most efficient use of its resources and is the best way to keep track of its books and manage its library service or administer free school meals—as referred to in the clause, getting back to the amendments. It must be able to do that if it thinks it is in the best interests of the school. As much as anything else, such a body has to manage its resources efficiently. That is in the interests of the children. If such a decision is made, it is absolutely right—this is what the clause will achieve—to give parental say over whether the child should participate. Parents should be given that opportunity. Whether the school has to go through the whole bureaucracy of getting the permission of both parents is another matter, but parents should be given the right to have that say.
Once parents have had a say, I question the wisdom of the Government in legislating to allow a child of any age to determine whether they will participate. I suspect that there will be very few cases where that happens. If it does, the wise parent will convince the child because it may be a matter of convenience for the parents to participate; for example, it might make life much easier when taking out library books. I do not know whether parents will be able to take the books back if the child is off ill and they used a thumbprint, but those are issues for the people who want to introduce these systems.
Going back to the amendment and the clause stand part debate, we are concerned that whatever action we take, we do not diminish the ability of schools to avoid stigmatising children who are receiving free school meals or other benefits. That would be the wrong thing to do and we would not want to make that mistake. I am sure that the Government are in accordance with that.
James Brokenshire: We have had a lively and impassioned debate, underlining the sensitivities in the relative responsibilities of the parent, the child and the school on individual freedoms. As we are debating the Protection of Freedoms Bill, it is good that we have these debates, because we are considering some difficult issues.
In the provisions in clause 26, we are talking about ease of administration at the school. We are not talking about life or death or health, or about education per se; this is purely about administration. The system would necessitate alternative provisions such as swipe
Although I in no way wish to cast doubt on the passion or understandable beliefs that have been set out about the role of the parent, it is worth framing the debate in its context, rather than on some of the broader and more health-oriented issues that have been highlighted in the course of this helpful and interesting discussion. However, taking those factors into account, we believe that we are discussing something that is simply administrative, where alternatives will be provided. Biometric data do not have to be given in any circumstance, because there has to be an alternative option. It would not be appropriate to force a child to give their biometric data, because alternatives are available. That would put the school in a difficult position, when this is simply a system for the ease of administration.
The point that the hon. Member for Eltham made about free school meals is understood. That is why I said that alternatives have to be provided, such as swipe cards. Many systems already operate in that manner. The information I have from the Department for Education is that systems currently in place in schools allow for alternatives. There would not be a sudden shift. There are other ways in which services can be provided electronically, whether that be through specific cards, swipe cards, with chips in them or otherwise. There is no necessity to have biometrics.
We have to cover a situation where, for example, parental consent might not be forthcoming. We have to ensure that systems can operate in a way that did not put the child at a disadvantage in those circumstances. It is important that we frame the overarching debate in that way. The point that the hon. Gentleman made about free school meals is fair. It is why alternatives will be provided.
Amendment 51, on parental consent, both informed and free, for the processing of biometric data in schools and colleges, which was tabled by my hon. Friend the Member for Wycombe, makes a valid point. I hope that he will see that the provisions in clause 26 expressly require that a parent must consent before their child’s biometric data are processed. It is established in law that any consent must be both informed and freely given.
The first part of the amendment seeks to ensure that parents are not forced to give their consent to the processing of their child’s biometric data, because the school or college have made it a condition of enrolment to that establishment. As I have indicated, the provision on obtaining parental consent implies that such consent must be freely given. In seeking to impose such a condition, a school or college could be challenged on the basis that free consent as required by the provision had not been obtained, which would mean that any processing of a child’s biometric data by a school or college where the parent’s consent was a condition of the child’s admission would contravene the clause.
Should my hon. Friend need further reassurance, I point out that all maintained schools and academies must comply with the statutory admissions code, which expressly prohibits making admission to a school subject to any condition relating to the admission of a child to
The second part of the amendment seeks to ensure that parents are informed about the purpose for which their child’s biometric data will be used, who will have access to the data, how the data will be kept secure and how long the data will be retained. As I have explained, consent under the requirement must be informed. For a school or college to meet the requirements under clause 26, it must ensure that parents are aware of the nature of the biometric data collected and the purpose for which they will be used. It is worth highlighting the broader context of the Data Protection Act 1998 and the various principles underpinning the Act that are directly relevant.
James Brokenshire: The Data Protection Act makes it clear that data controllers must process personal data only for the use for which they were obtained. I point my hon. Friend to the specific provisions in the Act, which apply also to the disclosure of personal data to third parties and prevent schools and colleges from sharing personal data with other organisations. The only exceptions are when one of the narrow exemptions in the Act applies: for example, when the sharing of data is necessary for the purposes of preventing or detecting a crime. I point him to the specific provisions in the Act, which we would argue give assurance. It is important to consider the provisions in the Bill in that broader context. In light of my comments, I hope that my hon. Friend will be minded to withdraw the amendment.
‘(3A) When consent is withdrawn all biometric information shall be deleted/destroyed, and the relevant authority must confirm in writing that this has been done.’.
The end of the tunnel is in sight. We are nearly there. I can see light. I look forward to hearing the words of the hon. Member for Kenilworth and Southam. This is the second Bill Committee in a row that we have been on, and I have started to look forward to his voice
The clause deals with the process of granting and withdrawing consent, but does not place any responsibility on the school to inform people that the process has been completed or to sign it off. We do not want to be over-bureaucratic or too onerous in the responsibilities that we place on schools; if parents are concerned, they can satisfy themselves and go along to the school to ensure that the information is withdrawn, but there should be some requirement on the school to carry out that procedure and to notify parents that it has been done to their satisfaction. The amendment would simply provide that the information should be deleted or destroyed and that the “relevant authority” must confirm it in writing. The amendment is reasonable, and I am sure that the Minister will see its wisdom and be keen to adopt it. I have to win one of them, so I shall sit down and listen to his acceptance.
James Brokenshire: At this late hour in our consideration of the Bill, I am sorry to disappoint the hon. Gentleman by not being minded to accept the amendment, with its complexities and bureaucracy, and the practical challenges of notifications going out to both parents. However, I accept the broad principle that he rightly identified, that information should be destroyed and not retained beyond the period for which it is being used.
The requirements in chapter 2 of part 1 of the Bill deal with the processing of biometric data processing. Processing is defined in clause 28 by reference to section 1(1) of the Data Protection Act 1998, which includes storing or retaining personal data. Any such processing must be carried out in accordance with the data protection principles outlined in the Act.
The fifth data protection principle requires that personal data are not kept by a data controller when they are no longer required for the purposes for which they were obtained and for which they were being used. If a parent withdraws consent under clause 27, the school or
The amendment also seeks to introduce a requirement for schools and colleges to notify parents in writing that their child’s biometric data have been destroyed. Parents can of course request confirmation that a child’s biometric data have been destroyed, and I am confident that schools and colleges would, if requested, readily confirm to parents that it had been done. However, if the school or college refuses to do so, the parent could consider asking the Information Commissioner, on behalf of the child, to carry out an assessment as to whether the school or college in question had complied with the fifth data protection principle; or the parent could consider making a subject access request under section 7 of the 1998 Act, requesting all personal data held on the child, which answers the point raised by the hon. Gentleman.
The school or college is under a statutory duty to provide the information held, so there are already means for a parent to ascertain whether their child’s biometric information has been destroyed. In the spirit of not adding to bureaucracy, with letters flying around, I hope that the hon. Gentleman will be minded to withdraw the amendment. I hope that he feels sufficiently safeguarded that the provisions of the Data Protection Act clearly address the understandable concerns that he sought to highlight.
Clive Efford: I am very pleased with the Minister’s explanation. Full marks. Well done. Much though I am dashed that none of my amendments to part 1 of the Bill has been accepted, I beg to ask leave to withdraw the amendment.
|©Parliamentary copyright||Prepared 6th April 2011|