Legislative Scrutiny: Crime and Security Bill; Personal Care at Home Bill; Children, Schools and Families Bill - Human Rights Joint Committee Contents


Annex: Recommended Amendments


(a) DNA and fingerprint retention (Article 8 ECHR)

Retention of DNA and samples for 'national security' purposes

Page 36, Line 41, [Clause 14], at end insert-

"(4A) For the purposes of subsection (1), "for the purposes of national security" means for the purposes of investigating significant threats to the security of the United Kingdom arising from-

(a) terrorist activities;

(b) nuclear weapons and other weapons of mass destruction;

(c) trans-national organised crime;

(d) global instability and conflict;

(e) civil emergencies; or

(f) state-led threats to the United Kingdom."

This amendment would introduce a definition of "national security" based on the key threats to national security outlined in the UK national security strategy.[181] This is presented as an exhaustive list, and covers each of the threats outlined by the Minister in correspondence. It implements the recommendation in paragraph 1.53, that the Bill should more closely circumscribe the circumstances when retention for national security purposes will be possible. We also recommend that amendments with identical effects are tabled to Clause 15,[182], Clause 16,[183] and Clause 18[184]

Page 36, Line 41, [Clause 14], at end insert-

"64ZKA Approval required for retention for the purposes of national security

(1) This section applies where a chief officer determines that retention for the purposes of national security is necessary.

(2) Subject to subsection (3), the determination shall not take effect until such time (if any) as—

(a) the determination has been approved by the Information Commissioner; and

(b) written notice of the Commissioner's decision to approve the determination has been given, in accordance with subsection (3), to the chief officer who made the original determination.

(3) Where subsection (2) applies—

(a) the Information Commissioner shall give his approval under this section to the authorisation if, and only if, he is satisfied that there are reasonable grounds for believing that the requirements of section 64ZK(1) are satisfied in the case of the determination; and

(b) the Information Commissioner shall, as soon as reasonably practicable after making that decision, give written notice of his decision to the Chief Constable.

(4) Any determination under paragraph (1) includes a decision that a determination should be renewed pursuant to Section 64ZK(3)."

This amendment introduces a requirement for authorisation by the Information Commissioner of exceptional retention of DNA profiles and fingerprints for the purposes of national security. This follows the mechanism for approval by the Surveillance Commissioners of authorisations for intrusive surveillance by police and other security agencies under the Regulation of Investigatory Powers Act 1998 (See Section 36).

This amendment implements our recommendation in paragraph 1.53 that the powers related to national security in the Bill are not currently subject to adequate independent oversight. This amendment is proposes oversight by the Information Commissioner for the purposes of debate, given the determination involves the exceptional retention of personal information. We also recommend that amendments with identical effects are tabled to Clause 15,[185], Clause 16,[186] and Clause 18[187].

National DNA Database Reviewer

To move the following new clause-

"(1) Within 12 months of the coming into force of this Part, the Secretary of State shall appoint a Reviewer to be known as the National DNA Database Reviewer.

(2) Subject to subsection (4), the National DNA Database Reviewer shall keep under review—

(a)  the exercise and performance, of the powers and duties conferred or imposed by Section 64ZI(5) of the Police and Criminal Evidence Act 1984;

(b) the exercise and performance of the powers conferred by Section 64ZK of the Police and Criminal Evidence Act 1984;

(c)  the exercise and performance, of the powers and duties conferred or imposed by Section 64ZI(5) of the Police and Criminal Evidence (Northern Ireland) Order 1989;

(d) the exercise and performance of the powers conferred by Section 64ZK of the Police and Criminal Evidence (Northern Ireland) Order 1989;

(e)   the exercise and performance, of the powers and duties conferred or imposed by paragraph 14(F)(5), Schedule 8, Terrorism Act 2000;

(f)   the exercise and performance, of the powers and duties conferred or imposed by paragraph 14(G), Schedule 8, Terrorism Act 2000; and

(g)   the exercise and performance, of the powers and duties conferred or imposed by Section 18(3E) Counter-Terrorism Act 2008.

(3) Within 12 months of his appointment, and every 12 months thereafter, the National DNA Database Reviewer must lay a report of the findings of his review before both Houses of Parliament.

(4) Each report of the National DNA Database Reviewer must include consideration of:

(a) the number of decisions taken during the preceding 12 month period under each of the powers in subsection (2);

(b) the grounds for any decisions taken during any preceding 12 month period under each of the powers in subsection (2);

(c) an equality impact assessment of the exercise of the powers in subsection (2) over the preceding 12 month period; and

(d) an assessment of the operation of each of the powers in subsection (2)."

This amendment is based on the role played by the Reviewer of Terrorism Legislation. It provides that the exceptional powers granted to chief officers by the Bill - in relation to immediate destruction of material in individual cases and exceptional retention on the grounds of national security - will be subject to review. It requires annual statistics to be provided to Parliament, with an assessment of the operation of each of the relevant powers. This amendment relates to our recommendations in paragraphs 1.53 and 1. 56, which recommend respectively that each of the exceptional powers be subject to more independent oversight.

Legacy samples retained on the NDNAD

Page 60, Line 19, [Clause 19], at end insert-

"(6) A statutory instrument containing an order under this section must be laid before Parliament within 12 months of Royal Assent to this Act.".

This amendment is recommended for the purposes of debate and gives effect to our recommendation in paragraph 1.60 on the treatment of legacy samples on the National DNA Database. Although the Minister has explained that the Government expects all legacy samples which it intends to delete to be deleted within 2 years of an order pursuant to Clause 19, we recommend that the Government explain when it expects to lay such an order. This amendment would require an order to be laid within one year of Royal Assent.

Alternatives: the Scottish Approach

Amendment 26, moved in the Commons Public Bill Committee would replace the Government's proposals with provisions based upon the Scottish model for retention of DNA samples, and provides that DNA profiles may be retained from people who have been charged with serious violent or sexual offences but not convicted, for three years. This period can be extended by two years following judicial authorisation. We recommend that an amendment in the same terms is tabled at Report stage. This should be accompanied equivalent amendments to Clause 15 and consequential amendments to Clauses 14, 15, 16 and 18. The purpose of this group of amendments would be to remove each of the sections of the Bill which provide for the retention of samples taken from people arrested but not convicted of an offence, including children arrested but not convicted of any offence.

(b) Stop and search

Counter-terrorism power to stop and search without reasonable suspicion

Power to stop and search under Terrorism Act 2000

To move the following new clause-

(1) Section 44 of the Terrorism Act 2000 (authorisations) is amended as follows.

(2) In subsection (3), for "expedient" there is substituted "necessary".

(3) After subsection (3) there is inserted

"(3A) The area specified under subsection (2) shall not exceed one square kilometre"

(4) In subsection (4), for "the whole or part of a police area" (wherever occurring) there is substituted "in a police area".

(5) Section 45 of the Terrorism Act 2000 (exercise of power) is amended as follows.

(6) For subsection (1)(b) there is substituted

(b) may only be exercised where the constable has reasonable grounds for suspecting the presence of articles of that kind.

(7) Section 46 of the Terrorism Act 2000 (duration of authorisation) is amended as follows.

(8) In subsection (2) for "28" there is substituted "7".

(9) In subsection (7) after "is renewed" insert "but the same authorisation shall not remain in effect for more than 28 days".

This amendment gives effect to the recommendation in paragraph 1.92, that Sections 44-46 of the Terrorism Act 2000 are amended to circumscribe the power of stop and search more clearly and to introduce stronger safeguards against possible abuse.




181   Cm 7291, The National security Strategy of the United Kingdom, Cabinet Office, March 2008. Back

182   Page 46, Line 36 Back

183   Page 53, Line 27 Back

184   Page 58, Line 3 Back

185   Page 46, Line 36 Back

186   Page 53, Line 27 Back

187   Page 58, Line 3 Back


 
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