Crime and Security Bill
We examined the human rights implications of three sets of provisions contained in this Bill.
The proposals relating to DNA and fingerprint retention are the Government's response to the decision of the Grand Chamber of the European Court of Human Rights in the Marper casethat the current blanket retention of DNA samples and profiles of innocent individuals and children on the National DNA Database is disproportionate and in breach of the right to respect for private life. We welcome the Government's decision to respond swiftly to the judgment in Marper. However, we have concerns about the Government's approach which is to "push the boundaries" of the Court's decision. In particular we are concerned that:
- the proposal for a six year blanket retention period of the DNA profiles of people who are arrested but not charged or convicted is disproportionate and potentially arbitrary;
- the stigmatising effect of the inclusion of the samples of innocent people on the National DNA Database has been discounted;
- the Government's approach to the assessment of proportionality fails to recognise that it must illustrate why the measures proposed are necessary in order to meet the legitimate aim of the prevention of crime and the protection of rights of others;
- the research that backs up the proposal for a blanket six year retention period does not illustrate that the Government's approach is a proportionate one;
- the Government has not provided justification for its proposal to take and retain DNA samples from children and has not published an analysis of the compatibility of the proposals with the UN Convention on the Rights of the Child;
- the Government has not drawn any distinction between arrest in connection with serious violent and sexual offences and less serious offences;
- the powers to retain DNA profiles and fingerprints for national security purposes, without independent oversight, are unnecessarily broad and should be circumscribed;
- the Bill should be amended to provide a statutory form of appeal;
- the Government should provide a timetable for compliance with the requirements to destroy legacy samples, profiles and fingerprints;
- the new powers to take DNA samples and profiles from individuals previously convicted are entirely open-ended.
The Bill also reduces the reporting requirement on stop and search forms in order to reduce police red tape. Given the growing concern about the inappropriate use of stop and search powers in relation to children, we regret the opportunity has not been taken to require the officer conducting stop and search to record the person's age when it appears the person is under 18. We recommend that specific guidance be introduced about the use of stop and search powers in relation to children. We also recommend that the Government abandon the proposal to remove the requirement to record whether any injury or damage was caused as a result of a stop and search.
We have previously reported on the apparent abuse of power in s. 44 of the Terrorism Act 2000 to stop and search without reasonable suspicion. On 12 January 2010, the ECHR held that the powers of stop and search under s. 44 violate the right to respect for private life We are disappointed that the Government intends to request that the case be referred to the Grand Chamber of the ECHR and we urge the Government accept that a successful challenge is unlikely. We therefore recommend that the opportunity be taken to amend s. 44 and 45 of the Terrorism Act 2000 to circumscribe the powers to stop and search.
The Bill provides for Domestic Violence Protection Notices (DVPNs) allowing police to bar a suspected perpetrator of domestic violence from their homes for up to 48 hours even if they are not charged. After 48 hours police may apply for a Domestic Violence Protection Order (DVPO) which may bar a suspect from their home for between 14 and 28 days. We commend the intention behind these proposals. Our two outstanding concerns are that more evidence is needed to make the case for DVPOs that could last for as long as a month, and that given the impact a DVPO will have on a suspect, it should be necessary for the violence or threat of violence to be proved beyond reasonable doubt to satisfy the right to a fair hearing.
Personal Care at Home Bill
This Bill permits the Secretary of State to require local authorities to provide personal care free of charge, at home, for an indefinite period. Overall we welcome the aim of this Bill as a human rights enhancing measure. The Government has confirmed that the duty would be enforceable as any other statutory duty on a local authority, both through individual complaints to the Local Government Ombudsman and by judicial review. We welcome this and consider that this approach of individual service entitlements is likely to improve the UK's compliance with human rights obligations.
Children, Schools and Families Bill
This is our second report on this Bill and we focus on the provisions dealing with home education and the new Government amendment on the teaching of sex and relationships education in faith schools. The Bill introduces a new registration and monitoring scheme for children who are electively home educated. Parents will have to apply for their children to be placed on a home education register kept by their local authority. Local authorities must monitor the education provided to children on the register and consult the child. Local authorities will have the power to revoke registration on certain grounds. Parents will have the right to appeal to an independent panel against a refusal or revocation of registration. We agree with the Government that the provisions will enhance a child's right not to be denied an education and the right of a child to have his or her views taken into account. We also agree with the Government that the Bill is compatible with the rights of the parent under the ECHR.
In our first report on this Bill we welcomed the Government's approach of making it an explicit statutory duty to secure that the teaching of PSHE, including sex and relationships education, complies with certain basic principles, including accuracy, balance, pluralism, equality and diversity. However, we expressed concern about the effect of the principle that PSHE be taught in a way that is appropriate to the religious and cultural backgrounds of the pupils. The Government has now tabled an amendment which provides that nothing in the Bill should "be read as preventing the governing body or head teacher
from causing or allowing PSHE to be taught in a way that reflects the school's religious character." In our view, a provision which expressly subjects the important principles set out above, to the right of faith schools to teach sex and relationships education in a way that reflects the school's religious character, is incompatible with the ECHR. We recommend that the Government amendment be withdrawn.