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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