Letter to the Chair of the Committee from
Rt Hon Michael Wills MP, Minister of State, Ministry of Justice,
dated 22 January 2010
EVIDENCE SESSION
ON THE
WORK OF
THE HUMAN
RIGHTS MINISTER
At the recent evidence session I attended to
discuss my work as the Minister responsible for human rights,
your Committee raised a number of points to which I undertook
to provide a fuller response after further investigation. MoJ
officials have consulted other departments as appropriate on these
areas and I am now able to provide you with the following information.
Firstly, you requested feedback from the deliberative
events recently held on values, rights and responsibilities. We
expect to receive a report from the independent research
company delivering the public events shortly after the final
national event summarising their findings. Current plans are for
this event to take place towards the end of next month and I
intend to lay a copy of the final report in the library of both
Houses as soon after that as practicably possible. I will ensure
a copy of this is sent to your Committee.
I also undertook to study again your most recent
Bill on the meaning of public authority under the Human Rights
Act, and the issues it gives rise to. As you are aware, the Government
opposed the Bill at its Second Reading debate on 3 July 2009 as
we felt it would have an uncertain legal effect and had the potential
to encompass functions that were never envisaged would fall within
the scope of the HRA.
The Bill would require the interpretation of
section 6 to begin again from scratch and without any guarantee
that it would achieve the desired effect. The factors listed are
already taken into account by the courts. Without any guidance
as to the weight and effect that should be accorded to each factor,
the way they are balanced and extent to which each is taken into
consideration remains a matter of judicial discretion. Without
the confidence that a new legal framework such as this would work
at least as well as the current one, it would be irresponsible
to wipe out the detailed case law that has built up and the legal
certainty that goes with it.
In addition, I believe that the second clause
of the Bill, which specifies that: "For the avoidance of
doubt... a function of a public nature includes a function which
is required or enabled to be performed wholly or partially at
public expense" could have far-reaching and undesirable consequences.
There are potentially a large number of functions
that are publicly funded in this way, including those where the
Government believes that there was no intention they would fall
within the scope of the Human Right Act. One example might be
construction companies working on Government infrastructure projects.
You suggested in your evidence that Baroness Hale has "pointed
the way" towards approaching this issue. I would add that,
in her dissenting judgment in YL, she also stated that: "Not
everything for which the state pays is a public function."
I believe there is a balance to be struck and
where the observance of human rights is a key part of the performance
of a function that can reasonably be considered public, the legal
obligation under the Human Rights Act is non-negotiable. But where
it is not, and where a specific legal obligation under the Act
would add little or nothing in terms of the protection of human
rights, we have to be aware of the compliance costs.
For these reasons, I do not believe that the
Bill represents a workable legislative solution to this issue.
Moreover, I believe it is a good example of precisely why this
issue is a complex one and why it is necessary to ensure any action
does not have perverse consequences.
You also asked about two points concerning the
case of London and Quadrant Housing Trust v Weaver.
Firstly, you queried whether there were any
plans to issue new guidance to Registered Social Landlords (RSLs)
in light of the Court of Appeal's judgement in Weaver.
The Government currently has no plans to do so. Existing regulatory
guidance is already designed to ensure that tenants are treated
fairly by their landlords, and the Housing and Regeneration Act
2008 gives the Tenant Services Authority (the social housing regulator)
a statutory objective to ensure that actual or potential tenants
have an appropriate degree of protection.
In considering the need for new guidance, the
Government takes account of the fact that the judgment of the
Court of Appeal does not mean that every RSL providing social
housing will necessarily be in the same position as the RSL in
Weaver and that the determination of the public status of a body
for the purposes of the Human Rights Act will be fact sensitive.
In addition, the Government also notes the order issued by the
Supreme Court when refusing permission to appeal, which acknowledges
that the issues raised in Weaver are clearly ones the Court
wishes to consider if a suitable case can be identified.
Secondly, the Committee asked when and how the
Supreme Court indicated that it intended to look at the meaning
of public authority issue at the "earliest opportunity"
and requested a transcript of any hearing relating to this. On
19 November the Supreme Court issued an order, setting out the
reasons why, on 6 November, it had declined to hear a further
appeal in Weaver v London and Quadrant. The order noted
that: "The point is clearly one for the Supreme Court but
this is not a suitable case on its facts. If a suitable case can
be identified consideration should be given to applying for a
leap-frog appeal to the Supreme Court." Copies of the order
can be obtained on request from the Supreme Court Registry.
Turning to the issue of the Ministry of Justice's
role in the implementation of adverse human rights judgments,
I can confirm what Edward Adams and I understood to be the case
at the time of the hearing, that no new formal guidance has been
issued to Government departments on the Human Rights Act (including
on the issue of implementing adverse human rights judgments) since
the matter was last discussed with the Joint Committee. However,
I should stress that officials in Human Rights Division continue
to provide support and guidance to Government departments responsible
for implementing such judgments, and continue to monitor implementation
progress in relation to both domestic and European Court of Human
Rights judgments. However, we are considering whether and how
to develop further and formalise the guidance and support that
is given to departments.
S & Marper v UK (Marper)
You asked a number of specific questions on
the Government's proposals for implementing the judgment in this
case. Following consultation between MoJ officials and their counterparts
at the Home Office, who lead on this area, I am able to provide
the following information.
(i) Compatibility of the proposals with the
presumption of innocence and the right to respect for private
and family life
The Government considers that the retention
of an unconvicted individual's DNA profile on the National DNA
Database (NDNAD) is entirely compatible with the presumption of
innocence under Article 6 of the Convention. Given that the taking
of DNA is merely a consequence of a person being arrested, the
presence or absence of a profile on the NDNAD is not in any way
determinative of an individual's guilt or innocence and has no
overt impact on that individual beyond the profile being searched
against as part of a routine criminal investigation procedure.
The Government further considers that the judgment
of the European Court of Human Rights in Marper does not
say that any proposals which permit the retention of biometric
data of people not convicted of a criminal offence are incompatible
with the presumption of innocence under Article 6. Paragraph 122
of the judgment acknowledges that the retention of data "cannot
be equated with the voicing of suspicions". It is true that
that paragraph also indicates that a system which allowed the
data of innocent people to be retained "in the same way as
the data of convicted persons" would cause concern. However,
the Government believes the legislative proposals that we have
put forward do substantially differentiate between those two categories
of cases, and thus meet the court's concerns.
Following the decision in Marper, we
accept that the mere storage and retention of fingerprints and
DNA samples and profiles constitutes an interference with the
right to private life under ECHR Article 8.
For a number of reasons, therefore, the Government
considers that the retention regime which is established by the
Crime and Security Bill is proportionate and compatible with Article
8 and fully implements the Marper judgment. In balancing
the competing public and private interests, the Government notes
that the Strasbourg Court, in its apparent approval of the corresponding
Scottish legislation, seems to have accepted the principle that
retaining the DNA of unconvicted people is in some cases proportionate.
The Government further notes that Marper
held that the greatest interference with private life was caused
by the retention of DNA samples (ie the actual genetic material
taken rather than the profile derived from it, which is merely
a sequence of numbers). Since it is now proposed to delete all
samples as soon as a profile has been obtained, we consider that
this should go a long way to meeting concerns as to excessive
retention.
The Government's proposed six-year retention
period for adults arrested but not convicted of an offence is
based on the best available research, which suggests that a person
who has been arrested is at a higher risk of re-arrest than the
general population for a period of six years.[117]
This in turn suggests that the detection of some future suspects
would be lost if the data relating to arrested persons were not
retained for that period.
In proposing a single retention period, irrespective
of the seriousness of the offence for which an adult is arrested,
the Government is acting on research which points strongly to
the heterogeneity of criminality—in other words, the type
of offence a person is first arrested for or convicted of is not
a good indicator of the type or seriousness of offence he is likely
to be arrested for or convicted of in future. As the retention
of biometric data of innocent people is emphatically not a punishment
but rather a measure to facilitate the investigation of future
offences, it therefore seems appropriate to have a single retention
period. Although this approach runs counter to the steer in Marper
that the seriousness of the offence is material in determining
whether retention is proportionate, the Government considers that
this approach is supported by the best available evidence.
(ii) Access to an independent appeal process
The Government notes that, while the Strasbourg
Court in Marper did mention (at paragraph 119) the lack
of provision for an "independent review" of retention
decisions, this was in the context of a blanket and indefinite
retention policy where there were no defined statutory criteria
for early deletion of data. In addition to defined retention periods,
clause 14 of the Crime and Security Bill sets out (in a new section
64ZI to be inserted into the Police & Criminal Evidence Act
1984) a number of specific instances where the police will be
required to destroy DNA profiles, where:
— the arrest was unlawful (for example,
if the arresting officer did not have a reasonable suspicion at
the time of arrest, or if excessive force was used in making the
arrest);
— the taking of DNA was itself unlawful
(for example, because the individual was arrested for a non-recordable
offence);
— the arrest was lawful but is subsequently
shown to have been carried out on the basis of mistaken identity;
or
— some other exceptional circumstances
exist as a result of which the data should be destroyed (for example
if a person was arrested as a result of malicious or wholly false
allegations).
This introduces greater transparency by setting
out in legislation for the first time clearly defined criteria
where deletion would be appropriate, thereby bringing greater
clarity to the public and also the police.
In light of the proposed retention periods,
the fact that Parliament will have approved this regime for it
to be introduced, the duty on a chief officer to destroy the material
in specified circumstances and the ability of a person to judicially
review such a decision, the Government does not consider that
an independent appeals procedure is necessary for the DNA retention
regime as a whole to be compliant with the Convention.
(iii) Removal of children's records from the
DNA database
The DNA of all children under 10 years of age
has already been removed from the NDNAD.
In proposing generally shorter retention periods
for children, the Government has again acted on the basis of evidence
that shows the earlier a criminal career starts, the longer it
is likely to last, while having regard to the sensitive position
of children set out in the Strasbourg ruling and the results of
the consultation exercise, which supported a more liberal policy
for those aged under 18. The retention period for children aged
16 or 17 who are arrested for, but not convicted of, a serious
offence will, however, be the same as for adults (namely six years),
reflecting the fact that peak offending occurs at this age.
However, having put forward these proposals,
the Government does not consider it appropriate to pre-judge the
consideration by Parliament of these proposals, and as such has
determined that it would be inappropriate to remove from the NDNAD
a significant number of DNA profiles relating to individuals that
Parliament may subsequently decide should be retained.
Baiai v Secretary of State for the Home Department
In response to your request for a timetable
for the laying on a remedial order to remedying the incompatibility
identified in this case, the Home Office, who again lead on this
case, have begun preparations for the remedial order and intend
to lay it before Parliament as soon as possible. However, it is
unlikely that the order will come into effect before the end of
2010 due to the interruption of the forthcoming General Election
in the Parliamentary timetable.
I hope that you find this information helpful.
117 http://www.homeoffice.gov.uk/documents/cons-2009-dna-database/dna-retention-evidence-paper2835.pdf?view=Binary. Back
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