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

Conclusions and recommendations

Crime and Security Bill

Explanatory Notes and Human Rights Memorandum

1.  It is unfortunate that the Home Office did not follow the positive example adopted by other departments during this legislative session, by providing us with a free-standing human rights memorandum designed to supplement the Explanatory Notes accompanying the Crime and Security Bill. In the future, we would encourage all Bill Teams to follow this practice, which we find reduces the need for further correspondence and enhances the transparency of the Government's approach to the Section 19 statement of the Bill's compatibility with the European Convention on Human Rights. (Paragraph 1.3)

Retention, use and destruction of samples (S & Marper v UK)

2.  The Government decision to provide for a full parliamentary debate on their reform of the regime for police retention, use and destruction of fingerprints and samples, including DNA samples is welcome. It is important that Government proposals designed to respond to adverse human rights judgments affecting Government policy are subject to proper parliamentary scrutiny, either through the introduction of a remedial order, where appropriate, or through a full debate on legislative proposals introduced promptly to remove the breach. (Paragraph 1.7)

3.  We consider that it is unacceptable that the Government appears to have taken a very narrow approach to the judgement by purposly "pushing the boundaries" of the Court's decision in order to maintain the main thrust of its original policy on the retention of DNA. (Paragraph 1.10)

4.  We welcome the Government's decision to respond swiftly to the judgment in Marper. The proposed statutory scheme for retention addresses some of the concerns of the Court and reduces the likelihood that DNA samples and profiles will be retained in a manner which is incompatible with individual rights. However, we are concerned that the proposal for retention of the DNA profiles of people who are arrested but not charged or convicted on the basis of a blanket retention period remains disproportionate and potentially arbitrary. We consider that there is a significant risk that these provisions will lead to a further breach of the right to respect for private life as guaranteed by Article 8 ECHR. (Paragraph 1.16)

The Government's approach to proportionality

5.  We welcome the Government's decision to require all biological samples to be destroyed within 6 months of their collection by the police. We agree with the Government that this measure reduces the impact of retention in relation to the category of personal information which the European Court of Human Rights indicated caused the most significant interference with the right to respect for private life. However, we are concerned by the Government's description of the remaining interference with private life caused by the retention of DNA profiles as 'modest'. There is inadequate support for the Government's assessment in the Grand Chamber decision in Marper and in the wider case law of the European Court of Human Rights. We are particularly concerned that the Government has discounted the stigmatising effect of the inclusion of the samples of innocent people on the National DNA Database, a factor which the Grand Chamber clearly considered relevant to the assessment of proportionality. The Council of Europe has made clear that the retention of DNA samples or information derived from those samples after a person is acquitted or no longer under suspicion of a criminal offence should only permitted in truly exceptional cases. Our assessment of the proportionality of the Government's proposals begins with the Court's conclusion that the retention of DNA profiles—as opposed to DNA samples— involves an interference with the right to respect for private life which requires justification by being demonstrated to be "necessary in a democratic society" for the prevention of crime or for the protection of the rights of others.. (Paragraph 1.23)

6.  We are concerned that the Government's approach to the assessment of proportionality in this case has been characterised by a degree of caution, which by underestimating the impact of its proposals on individual privacy, does not meet the standards required by the European Convention on Human Rights. In Committee in the House of Commons, the Minister consistently restated the Government position that the public protection offered by the retention of DNA profiles was key to the Government's analysis of the proportionality of the proposed measures. (Paragraph 1.27)

Evidence of risk of re-arrest

7.  We recommend that the Government publish the details of these cases, if necessary in a suitably redacted format, or it should stop referring to them as support for its proposals. (Paragraph 1.32)

8.  There is a significant number of legitimate concerns about the quality and substance of the research produced by the Government to support its proposals. In particular, we are concerned about the language used by the Minister which appears to equate risk of re-arrest with evidence of future criminality. This is particularly disturbing in the light of the attention paid by the Grand Chamber in Marper to the stigma which can be associated with inclusion on a database like the NDNAD and an individual's own perception of the way that he or she is viewed by the State. (Paragraph 1.35)

9.  In any event, we consider that the research in the Home Office paper, DNA Retention Policy, Re-Arrest Hazard Rate Analysis, lends little weight to the Government's arguments on proportionality. At most, it shows that the retention of the DNA profiles of persons arrested for six years following arrest will impact on the rights of a significant number of innocent people (up to two-thirds of the profiles retained will be "false positives" not connected to any further criminal activity) in order to address a potentially very small increase in the risk of re-arrest relative to the general population. (Paragraph 1.36)

10.  We are disappointed that the Government argues that it can rely on this evidence in order to depart entirely from the guidance of the Court in Marper and the Council of Europe in its Recommendation on the use of DNA in the criminal justice system. If cogent evidence were available to support the Government's position, we agree that this would be relevant to the analysis of the proportionality of the measures, in that it would lend weight to any Government argument that the measures were necessary and bore a rational connection to the legitimate aim of the prevention and detection of crime and the protection of the rights of others. However, it cannot be suggested that the Home Office research so completely undermines the analysis of the Grand Chamber as to suggest that it provides adequate justification for a single retention period without further scrutiny of the proportionality of the proposals. If the Government's reliance on the statistical value of the retention of DNA were carried to its logical conclusion, it would suggest that the retention of the DNA of all young men aged 16-24 (or any other group considered statistically more likely to be arrested) would be a proportionate interference with Article 8 ECHR. (Paragraph 1.37)

Retaining DNA and samples taken from children

11.  The Government has a particular responsibility to justify the taking and retention of DNA samples and profiles from children. In the absence of further evidence to support the Government's position, we consider that the proposed retention periods for the DNA profiles of children may be disproportionate and inconsistent with the requirements of the UN Convention on the Rights of the Child. We recommend that the Government should provide further information on its justification for taking DNA samples from people convicted of offences committed when they were children and the retention of DNA profiles obtained from children arrested but not subsequently in contact with the criminal justice system. In particular, we recommend that the Government provide justification for its proposed retention periods and publish its analysis of the compatibility of the proposals with the UN Convention on the Rights of the Child. (Paragraph 1.44)

Retaining DNA samples of innocent people arrested in connection

12.  It is disappointing that the Government has chosen not to draw any distinction between arrest in connection with serious violent and sexual offences and less serious offences. Under the proposals in the Bill, an individual arrested in connection with the investigation of a minor criminal damage or a public order offence will be treated in the same manner as an individual who is charged but not convicted in relation to a serious violent or sexual offence. We consider that this failure is likely to increase the likelihood that these proposals will be considered disproportionate and incompatible with the right to respect for private life as guaranteed by Article 8 ECHR. (Paragraph 1.48)

Retention of DNA and samples for national security reasons

13.  We consider that the breadth of the power to retain DNA profiles and fingerprints for the purposes of national security proposed in the Bill, combined with the lack of any effective or independent oversight of the decision making process, will mean that it could be exercised in a manner which would contravene the right to respect for private life, without any real opportunity for effective challenge. We recommend that this power is overly broad and should be more closely circumscribed by defining more precisely the circumstances in which it can be used and providing for some form of independent oversight. (Paragraph 1.53)

Oversight of retention decisions

14.  We recommend that the Bill is amended to provide a statutory form of appeal from decisions of Chief Officers under the exceptional procure to an independent tribunal. Given that the determination involves the retention of personal information by the State, we suggest that the Bill could provide for an appeal to the Information Commissioner with a further appeal to the Information Tribunal. (Paragraph 1.59)

Legacy samples retained in the NDNAD

15.  While we agree that the Government should be careful not to pre-empt Parliament's decision on its proposals, we are concerned that administrative difficulties may lead to some significant delay in dealing with the legacy profiles of innocent people and children on the National DNA Database. The Government should provide more details on how it intends to approach the duty in Clause 19 to require the destruction of legacy samples, profiles and fingerprints. In particular, a timetable for compliance with those requirements should be provided. We propose an amendment to the Bill to require an Order to be laid within 1 year of Royal Assent, for the purposes of securing a fuller debate on this issue. (Paragraph 1.63)

Alternatives: the Scottish approach

16.  In the light of each of our conclusions above, we remain concerned that the Government's proposals risk being indiscriminate and disproportionate. Without further concrete evidence to support the Government's argument for a blanket six year single retention period, there is a real risk that these provisions will lead to further judgments finding the United Kingdom in violation of the right to respect for private life. While the Government waits for a new case where the Court can consider whether it has "pushed" the boundaries in the Marper judgment or whether it has broken them, further violations of individual rights will accrue and further litigation will follow, with an associated cost to the taxpayer. (Paragraph 1.72)

17.  In our view, various approaches could comply with the Marper judgment—from no retention of DNA of those not ultimately convicted to the Scottish model, where DNA is retained for those charged but not convicted of serious offences. The Bill could be amended to adopt the Scottish model, which complies with the guidance of the Grand Chamber in Marper and the Council of Europe in its Recommendation on the use of DNA in the criminal justice system (R (92) 1). The Scottish Government does not consider that this approach has undermined the ability of Scottish police to investigate criminal offences. While the Government argues that its approach has greater value for the purposes of the investigation and prevention of crime, the Scottish model is more likely to strike a proportionate balance between this important public interest and the right to respect for private life of those individuals whose samples are taken on arrest but who are subsequently not charged or convicted. (Paragraph 1.73)

18.  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. (Paragraph 1.74)

New powers to take samples from convicted persons (Article 8 ECHR)

19.  We consider that there is stronger evidence to support the Government's case that new powers to take DNA samples are proportionate to the risk posed to the right to private life of previously convicted people. However, we are concerned that the power to take DNA samples from people previously convicted of a qualifying offence is entirely open-ended. The greater the period of time which has passed since the relevant conviction took place, the more significant the justification for returning to the convicted person for a DNA sample. Equally, we consider that the risk of disproportionality increases if this power is applicable to offences committed by children. We recognise that DNA may only be sampled in cases where it is necessary to assist in the prevention and detection of crime. However, we note that this important safeguard is not limited to circumstances where the sample is necessary for the prevention and detection of crime, but only where the relevant Inspector considers it necessary to assist in such prevention and detection. (Paragraph 1.80)

20.  We welcome the Government's acceptance that this test will require the assessment of individual risk in each case and that DNA cannot be sampled for the purposes of meeting the general aim of preventing and detecting crime. However, we are concerned by the Minister's explanation that this power might be exercised in circumstances where police "suspect" an individual of having committed similar offences, but have inadequate evidence to suspect him in an individual case. The police already have powers to arrest an individual suspected of a specific offence and then to take a sample of his DNA in connection with that arrest. We are concerned about the blurring of the degree of suspicion warranted in relation to offending behaviour, particularly in relation to individuals whose sentences have been served and any relevant prior convictions spent, and the implications which this may have for the presumption of innocence in these cases. We welcome the Government's acceptance that there will be guidance in the PACE Codes to make clear that these provisions should not be used in order to gather DNA in cases where the police suspects an individual in connection with a specific offence. However, we are concerned that guidance must also be given about the circumstances when it will be appropriate to seek a sample without such specific suspicion that an individual has committed an offence. We recommend that the Government also explain whether guidance will address the treatment of very old convictions and the treatment of convictions in relation to childhood offences, and, if so, how. (Paragraph 1.81)

Stop and search: reporting requirements

21.  The requirement to record and report, and the data which such requirements make available, are important safeguards against the arbitrary use of widely worded powers to interfere with the right to respect for private life and physical integrity (Article 8 ECHR), because they facilitate independent monitoring of the use of that power. The removal of such requirements therefore requires very careful scrutiny. (Paragraph 1.82)

22.  We welcome the Bill's strengthening of the reporting requirement in relation to ethnicity which will help to ensure proper monitoring of, and accountability for, the exercise of a power which has historically been exercised in a way which has a disproportionate impact on ethnic minorities. We regret, however, that the opportunity has not been taken at the same time to make it a statutory requirement that the officer conducting a stop and search of a person also record that person's age where it appears to the officer that the person is under the age of 18. In our view there is sufficient public concern about the inappropriate use of the power to stop and search in relation to children to justify the introduction of such a requirement, which would facilitate independent monitoring of the use of the power on children. We recommend that the Bill be amended to introduce such a requirement. (Paragraph 1.87)

23.  We also recommend that specific guidance be introduced on the use of stop and search powers in relation to children, after consulting children and their representatives on a draft, and making full reference to relevant human rights standards, including the UN Convention on the Rights of the Child. (Paragraph 1.88)

24.  We consider that the requirement to record whether any injury or damage was caused during the search is a valuable safeguard, both for the person being searched and for the officer conducting the search. Although clearly less serious, we consider that the same reasoning applies to the requirement to record whether any injury or damage was suffered during a stop and search. We regard it as a valuable safeguard for all concerned and recommend that it be retained. (Paragraph 1.90)

Counter-terrorism power to stop and search without reasonable suspicion

25.  We would urge the Government to accept that the Court's judgment reflects the longstanding concerns of many about the lack of adequate safeguards on the scope of the power to stop and search under s. 44 of the Terrorism Act 2000, and to act now to make the necessary amendments to the law. In our view of the merits, the prospects of the Government succeeding before the Grand Chamber are remote. It would be preferable to take the opportunity that presents itself in this Bill to introduce the necessary safeguards (Paragraph 1.96)

26.  The deficiency identified by the Court lies in the statutory provisions themselves. It is a finding of a violation which requires the law itself to be amended in order to remedy the breach, not mere changes in practice or policy. We therefore recommend that the opportunity be taken in this Bill to amend sections 44 to 46 TA 2000 to meet the criticisms of the European Court of Human Rights, both by circumscribing the power of stop and search more clearly and by introducing stronger safeguards against its possible abuse. (Paragraph 1.97)

Domestic violence notices and orders

27.  We commend the intention behind these proposals which, in so far as they are designed to protect victims of domestic violence and their children from the threat of further violence, are potentially human rights enhancing measures. We consider below whether the detail of the measures strike a proportionate balance with the interference posed to the right of individuals to respect for their home, private and family lives. However, we recommend that where Government proposals are designed to meet positive human rights obligations, or support those obligations, that the departments should be encouraged to acknowledge these obligations and the positive steps which they are taking to meet them in the Explanatory Notes or any freestanding Human Rights Memoranda. (Paragraph 1.101)

28.  It is clear that the facts of each case where a DVPN is considered—including the seriousness of violence or threat of violence involved and the evidence available to support the need for protection - will impact upon its proportionality. With this in mind, we consider that appropriate guidance to officers on the evidence required to support a DVPN and on the effects of a DVPN for both the suspect and the victim will be crucial. We welcome the Government's commitment to ensure that guidance is made available. We recommend that this should also cover guidance for those subject to DPVN on appropriate alternative accommodation, if necessary. However, in the light of the short time frame for these orders, and the justification for the orders in terms of providing "breathing space" for suspected victims of domestic violence, we consider that these proposals do not pose a significant risk of incompatibility with either the right to respect for home, family and private life or the right to respect for the peaceful enjoyment of possessions (Article 8 and Article 1, Protocol 1 ECHR). (Paragraph 1.110)

29.  We note that the Bill provides for a DVPN to remain in force during any adjournment of the hearing of an application for a DVPO. The longer that a DVPN remains in force without full consideration of the case by an independent and impartial tribunal, the greater the risk that the a longer eviction from the home coupled with a lack of judicial oversight could be disproportionate and in breach of the right to respect for private life and potentially, the right to a fair hearing by an independent and impartial tribunal (Article 6 and Article 8 ECHR). (Paragraph 1.111)

30.  We consider that the Government should be required to provide further evidence to support its case that an DVPO which lasts up to a month is appropriate, in the light of the availability of alternative civil law protection for victims of domestic violence. (Paragraph 1.112)

The right to a fair hearing

31.  We consider that the effects of a DVPO can be similar in certain respects to that of anti-social behaviour orders (ASBOs). The breach of a DVPO can lead to significant penalties, as we recognised in or earlier report on gangs injunctions (gangs injunctions are civil orders, which are similar in effect to an ASBO, where breach may result in civil contempt). Although an ASBO may last longer, it will not necessary do so. Equally, although the conditions which may apply in an ASBO may be wider, the conditions in a DVPO will have a significantly broad impact and could evict an individual from his or her home for a period of up to a month. The person will be required to make provision for alternative accommodation during that time, including incurring additional costs and is unlikely to be able to access social housing during this period. It is possible that an application for a DVPO will have at least as serious an impact as an application for an ASBO and whether characterised as the application of an enhanced civil standard indistinguishable from the criminal standard or otherwise, the requirement that the violence or threat of violence must be proved beyond reasonable doubt is in our view necessary in order to satisfy the right to a fair hearing and to ensure that these proceedings are considered proportionate. (Paragraph 1.121)

Personal Care at Home Bill

Explanatory Notes and Human Rights Memorandum

32.  We welcome the Government's decision to provide us with a separate Human Rights Memorandum in this case. The additional information which it provided about the Government's analysis helpfully reduced the number of questions which we decided to follow-up in our correspondence with the Minister. However, in the future, we encourage Government departments to follow the example of those, such as the DCSF, which have encompassed broader human rights considerations relating to a Bill than those relating to the ECHR (including in support of the Government's position) in their Human Rights Memoranda. (Paragraph 2.4)

A human rights enhancing measure?

33.  Although there may be a number of complex financial and policy debates around the cost of this Bill or its impact on other services, we consider that in so far as the aim of this Bill is to increase the number of people able to live independently, it is potentially a human rights enhancing measure. We recommend that where departments consider that a measure in a Bill has the potential to further the fulfilment of the UK's human rights obligations, that those positive considerations are described in the Explanatory Notes or any accompanying human rights memorandum. (Paragraph 2.13)

Enforceable entitlements and human rights obligations

34.  We welcome the Minister's clarification that the duty on local authorities to provide free personal care will enforceable by individuals. For the reasons we gave in our recent report on the Children, Schools and Families Bill, an approach based on individual service entitlements is likely to improve the UK's compliance with its human rights obligations under treaties, such as the ICESCR and the UNCRPD, which require the state to take positive steps in order to secure the rights the state has solemnly undertaken, in the treaty, to guarantee. (Paragraph 2.18)

Residence and discrimination (Article 8 ECHR)

35.  We consider that there is no significant risk that these proposals will be considered discriminatory and incompatible with the European Convention on Human Rights (Article 1, Protocol 1 ECHR). In light of the complex financial and political decisions surrounding the resources available for social care, we consider that domestic courts and the European Court of Human Rights are likely to give a broad margin of appreciation to the Government. In so far as the aim of the proposals is to prolong the period which an individual can live independently, that aim is a legitimate and seeks to promote the rights of others. In so far as the measures proposed appear to target those with critical needs who may be supported to live independently in the community for a longer period of time, we consider that the proposals are unlikely to be considered disproportionate. (Paragraph 2.25)

Children, Schools and Families Bill

Home education

36.  We agree that the provisions enhance children's human rights in the way the Government describes. We welcome the additional protection that the Bill provides for the right of children to have access to a suitable education and to have their views taken into account in decisions about whether home education is suitable for the child or harmful to his or her welfare (Paragraph 3.6)

37.  We agree with the Government's analysis that this part of the Bill is compatible with the rights of parents under the ECHR (Paragraph 3.8)

38.  We therefore welcome the home education provisions in the Bill as measures which positively enhance the human rights of children and are compatible with the rights of parents (Paragraph 3.11)

Sex and relationships education in faith schools

39.  We are disappointed not to have received from the Department any explanation of the Government's reasons for considering that its amendment is compatible with the UK's human rights obligations, notwithstanding the clear guidance in the Cabinet Office Guide to Making Legislation that Departments should prepare a further ECHR memorandum when the Government proposes to table an amendment to the Bill which would in any way change the position in relation to the ECHR or raise any new ECHR issues, and should write to the JCHR to take their view on the amendment; our clearly stated expectation that the Government will provide us with such an explanation when tabling amendments; and the fact that the Department has long been aware that the provision in question in this Bill raises significant human rights issues on which the JCHR has previously reported. An earlier indication of the Government's intention to amend the Bill in this way, and of its justification for doing so, would have enabled us to report on the human rights compatibility of the amendment in time for the Bill's report stage in the Commons. Such late and unreasoned amendments thwart attempts at serious parliamentary scrutiny of provisions with significant human rights implications. (Paragraph 3.15)

40.  In our view, a provision which expressly subjects principles of accuracy, balance, pluralism, equality and diversity to the right of faith schools to teach sex and relationships education in a way that reflects the school's religious character, in the context of a Bill which makes the teaching of sex and relationships education in schools mandatory, is incompatible on its face with the ECHR. It expressly denies children at faith schools their right to an accurate, balanced, pluralistic education under the first sentence of Article 2 Protocol 1. Given the views of some faiths on matters such as homosexuality, abortion, contraception, marriage, civil partnerships and family arrangements, it also makes it inevitable that some children will be subjected to teaching which violates their right to respect for their private and family life, their dignity, and their right not to be discriminated against in their enjoyment of those rights, and of their right to education, on grounds of sexual orientation, birth or other status. (Paragraph 3.19)

41.  We recommend that the Government amendment be withdrawn: it would put the UK in clear breach of its obligations under the ECHR. Had it been included in the Bill as introduced, it would have required a statement by the Secretary of State under s. 19(1)(b) Human Rights Act 1998. (Paragraph 3.20)

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