Draft Protection of Freedoms Act 2012 (Northern Ireland) (Biometric Data) Order 2015
The Committee consisted of the following Members:
Ainsworth, Mr Bob (Coventry North East) (Lab)
† Blenkinsop, Tom (Middlesbrough South and East Cleveland) (Lab)
† Djanogly, Mr Jonathan (Huntingdon) (Con)
† Fox, Dr Liam (North Somerset) (Con)
† Gapes, Mike (Ilford South) (Lab/Co-op)
Heath, Mr David (Somerton and Frome) (LD)
† Hendry, Charles (Wealden) (Con)
Jackson, Glenda (Hampstead and Kilburn) (Lab)
† Lopresti, Jack (Filton and Bradley Stoke) (Con)
† Milton, Anne (Lord Commissioner of Her Majesty's Treasury)
† Morris, Grahame M. (Easington) (Lab)
† Mosley, Stephen (City of Chester) (Con)
† Murrison, Dr Andrew (Parliamentary Under-Secretary of State for Northern Ireland)
Paisley, Ian (North Antrim) (DUP)
† Pound, Stephen (Ealing North) (Lab)
Sheerman, Mr Barry (Huddersfield) (Lab/Co-op)
† Simpson, Mr Keith (Broadland) (Con)
Katharine Gray, Fergus Reid, Committee Clerks
† attended the Committee
Fifth Delegated Legislation Committee
Tuesday 10 March 2015
[Mr Mike Weir in the Chair]
Draft Protection of Freedoms Act 2012 (Northern Ireland) (Biometric Data) Order 2015
8.55 am
The Parliamentary Under-Secretary of State for Northern Ireland (Dr Andrew Murrison): I beg to move,
That the Committee has considered the draft Protection of Freedoms Act 2012 (Northern Ireland) (Biometric Data) Order 2015.
May I start by saying what a pleasure it is to serve under your chairmanship on this beautiful spring morning, Mr Weir?
The main purpose of the order is to provide the Police Service of Northern Ireland with the ability to continue to use biometric data, including DNA, footprints and fingerprints, in the interests of national security and for the purposes of a terrorist investigation. The order makes a transitional provision that permits the Chief Constable of the PSNI additional time to consider whether material held by the PSNI should be retained for an extended period for the purposes of national security, and makes some amendments to the Terrorism Act 2000 and to the Protection of Freedoms Act 2012, which I shall refer to as the 2012 Act.
The 2012 Act made new provision for the retention, destruction and use of biometric data taken in the course of a criminal investigation in England and Wales. The new provisions, which are now in force in England and Wales, require the destruction of biometric data of individuals who have not been convicted of a criminal offence, subject to a number of statutory exemptions. Such new provisions were necessary in the wake of the judgment of the European Court of Human Rights in the case of S and Marper v . the United Kingdom. In that case, the Court ruled that the provisions in part 5 of the Police and Criminal Evidence Act 1984, which at that time permitted the “blanket and indiscriminate” retention of biometric data from individuals who had not been convicted of a criminal offence, violated article 8 of the European convention on human rights. The equivalent provisions relating to Northern Ireland, contained in the Police and Criminal Evidence (Northern Ireland) Order 1989 were thus similarly considered to violate article 8.
The 2012 Act did not provide for an equivalent new biometric retention framework for the police in Northern Ireland. Although the Northern Ireland Department of Justice sought a legislative consent motion from the Assembly for the inclusion of Northern Ireland specific clauses within the 2012 Act, it was not granted. That was largely because the majority of the provisions to be made had, by then, fallen into the devolved space following the devolution of policing and justice to the Northern Ireland Assembly in April 2010.
The devolved Administration therefore took forward separate but broadly similar provision to that contained in the 2012 Act. That was done under the cover of the Criminal Justice Act (Northern Ireland) 2013, which I shall refer to as the 2013 Act. It was recognised, however, that the Northern Ireland Assembly did not have the legislative competence to make provision in the excepted field, in particular to permit the biometric data obtained under the Police and Criminal Evidence (Northern Ireland) Order 1989 to continue to be used for national security purposes and in terrorist investigations.
An order-making power was therefore inserted into part 7 of schedule 1 to the 2012 Act to allow the Government to make excepted provision regarding biometric data in Northern Ireland. That power was consequential on the devolved Administration making similar provision to that contained in the 2012 Act by the end of 2012. In the event, it was the following year before the devolved Administration’s Bill containing the equivalent provision received Royal Assent, in the 2013 Act. It was therefore necessary to amend the order-making power in the 2012 Act via primary legislation. That was done in the Northern Ireland (Miscellaneous Provisions) Act 2014, which received Royal Assent in March 2014.
An amendment to the 2013 Act is currently being taken through the Northern Ireland Assembly via a separate Bill. The devolved Administration advises that the amendment is necessary to prevent the inadvertent requirement to destroy a large volume of material that was intended to be capable of retention. It is expected that that Bill will receive Royal Assent by summer, following which the provisions in the 2013 Act will be commenced. This order will be brought into force on the date that the provisions of the 2013 Act are commenced to avoid any gap arising in the powers of the PSNI to retain biometric data for national security purposes or in terrorist investigations.
Following the approach for England and Wales in the 2012 Act, paragraph 6 of schedule 1 to that Act provides for the making of a “national security determination” by the Chief Constable of the PSNI in respect of the biometric data of a given individual, allowing the material to be retained for up to two additional years for the purposes of national security. The order provides for a transitional period during which the new destruction regime will not take effect in respect of material identified as requiring consideration as to whether it should continue to be held for national security purposes. That is to allow the Chief Constable of the PSNI sufficient time to consider whether to make a national security determination in respect of such material. The provision permitting the Chief Constable of the PSNI to make the national security determination is not yet in force, but will be commenced by order later this year on the date identified for the commencement of the new destruction regime in Northern Ireland.
The biometrics commissioner, appointed under section 20 of the 2012 Act, will have an important oversight function in this connection. The commissioner will have the power to review every national security determination made by the Chief Constable, and to order the destruction of any material made the subject of such a determination if he concludes that it is not necessary for it to be held on the grounds of national security.
Finally, the order makes two minor consequential amendments. First, paragraph 15 of schedule 8 to the Terrorism Act 2000 is amended to ensure that the
correct definition of the term “sample” is adopted in relation to the use of police powers under that Act. Secondly, the order removes some remaining references in schedule 1 to the 2012 Act to samples and profiles that are redundant in consequence of the 2013 Act.Part 7 of schedule 1 to the 2012 Act provides my right hon. Friend, the Secretary of State for Northern Ireland, with an important order-making power. With this order, she duly exercises that power to ensure that the PSNI remains able to properly investigate terrorist offences and make use of biometric data in the interests of national security. Moreover, the provisions of the order are a vital part of the new legislative framework, which is necessary to secure the Government’s compliance with our obligations under the European convention. I commend the order to the Committee.
9.2 am
Stephen Pound (Ealing North) (Lab): May I underscore the Minister’s comments in welcoming you to your place, Mr Weir? It is a pleasure and a privilege to sit under your basilisk stare. If you will allow me, I think it would be appropriate to mention, at the commencement of the debate on this statutory instrument, the regret that I am sure is felt in all parts of the House at the passing of Lord Molyneaux. Jim Molyneaux, as he was known to us, was the leader of the Ulster Unionists at one of the most difficult times during the troubles. He never led his party with anything less than utter dignity, probity and honesty. He was widely respected right the way across the community and will be sadly missed. Thank you, Mr Weir, for allowing me to put that small comment on the record.
Let me say at the outset that Her Majesty’s Opposition support this order. We obviously support anything that equips the PSNI and the forces of the law to combat potential acts of terrorism. We need not spend any time on the two minor consequential amendments as they are straightforward and we completely support them. However, in the other place, a number of points were raised by Lord Empey and responded to by Baroness Randerson. Would the Minister flesh out the role of the biometrics commissioner? There is an important point that the biometrics commissioner is not a function that we are necessarily familiar with in Great Britain but the role is to make the determination on the retention of biometric data. There is a very different situation in Northern Ireland, where we often need to retain data for the historical inquiries team and various other agencies. I think it was Colm Tóibín who said that history in Northern Ireland repeats itself first as tragedy and then as tragedy, so sometimes we need to keep data for longer than we would in other circumstances.
The key point is the question of resources. Lord Empey and Lord McAvoy both raised the issue of the costs associated with the order. Lord Empey was particularly concerned about the cost of reconfiguring the computer systems and retraining. Baroness Randerson, in a spirit of great openness, which was slightly unusual although refreshing, said that the new legislative regime would entail a “significant resource burden”. She went on to say that that was the sadly inevitable result of the European Court ruling, to which the Minister referred. As she did not say more than that it would entail a “significant resource burden”, will the Minister assure us that the order will not come at the detriment of
front-line policing? I want to ask—and not for the first time—that the resources of the PSNI, which undertakes such important work, be examined by the Minister.Has the Minister had discussions with the Chief Constable of the PSNI about the implications of the ruling on the PSNI’s day-to-day practice and resource? Overall, this important legislation will strengthen the hand of the forces of law and order. I mention the issue of resources because we all know, and the Minister knows more than most, that there is an unfortunate situation in parts of Northern Ireland—in particular, north Belfast—and resources are stretched. The order is an essential tool, but it will not come without cost, and we have to consider the impact of that cost.
My final minor point pertains to the biometrics commissioner. As the biometrics commissioner will be making the decision about the retention of data, will they report back to either the Assembly or this House about the volume of retained data? That is an important issue. I may not be here in a year’s time—who knows who may be here then?—but the House is entitled to know what percentage of the data is ordered to be retained by the biometrics commissioner. It need not even be reported formally; it may be in an exchange of correspondence.
I congratulate the Minister on his comprehensive presentation, which was lucid, exact, thorough and forensic, which is what one would expect from a Minister with his reputation. The Opposition welcome and wholeheartedly support the order.
9.8 am
Dr Murrison: I thank the hon. Gentleman very much for his remarks and for his support on behalf of the Opposition. He is right to say that it is a largely uncontroversial measure that should do a great deal of good for national security and the prevention of terrorism in Northern Ireland. I will do my best to answer his questions, but first it is important to clarify that the retention of material is for a maximum of two years for people who have not been convicted.
Stephen Pound: Can the Minister confirm that the biometrics commissioner cannot override that rule? My reading of the order is that in certain circumstances the biometrics commissioner can override the two-year rule.
Dr Murrison: The order provides for two years, so more than that would be ultra vires. Let me deal with the biometrics commissioner. For the purposes of Northern Ireland, this relates to powers under the order—in other words, matters of national security and terrorism. The Northern Ireland Assembly is in the process of making a determination on a Northern Ireland biometrics commissioner, who will deal with the retention of material, under the Criminal Justice Act (Northern Ireland) 2013, in so far as it relates to offences and alleged offences that do not bear upon national security and terrorism. That is an important point. There will be two biometrics commissioners—one for Northern Ireland and one for the UK. However, the UK biometrics commissioner will be empowered to deal with terrorism and national security in Great Britain and Northern Ireland.
The volume of work that the biometrics commissioner anticipates is likely to be modest. Certainly, that is our expectation in relation to the excepted matters. We are acutely aware—I more than most, since I met the Chief
Constable yesterday—of the burdens on the Police Service of Northern Ireland in straitened economic circumstances. It is important to say that the powers under the order simply allow the Chief Constable to continue doing what he has been doing in any case, so the burdens placed by the order are very modest indeed if they exist at all.However, the 2013 Act goes beyond that, as it deals with matters that are not related to national security and terrorism. The hon. Gentleman is right to point out that there will be resource implications. I suspect that they will not be huge—administrative and data management—but they will certainly be there. So far, I have had no indication as to the extent of that burden, but he is right to point out that there will be a cost. The biometrics commissioner will produce a formal annual
report so we will know what he has been doing and the sorts of things that he has been dealing with in relation to matters under the order.Stephen Pound: I welcome the annual report. What form will it take? Will it be laid in the Library or made as a written order? Some of us rather look forward to reading it.
Dr Murrison: There will be a report in the public domain. I am unsighted on its precise format, but there will be something on an annual basis to entertain the hon. Gentleman, without doubt. I am confident that he will be here, notwithstanding his remarks, in a year’s time to read it.