Legislative Scrutiny: Protection of Freedoms Bill - Human Rights Joint Committee Contents

Conclusions and recommendations

1 Introduction

1.  We welcome the Home Office's new practice of publishing a full Human Rights Memorandum on its website at the same time as a Bill is published, and based on the Memorandum prepared for the Parliamentary Business and Legislation Committee. We commend this approach to other departments as an example of best practice. (Paragraph 3)

2 Retention of fingerprints, DNA samples and profiles and the right to respect for private life (Article 8 ECHR)

2.  In so far as the proposals in the Bill are designed to introduce a more proportionate response to the judgment in Marper v UK, we welcome their introduction. (Paragraph 8)

3.  Our predecessor Committee accepted that the Scottish model for retention of DNA samples and profiles taken from innocent people and children is more likely to be proportionate than the measures in the Crime and Security Bill 2010. We agree. In so far as these measures are designed, in comparison, to create a less intrusive mechanism for the retention of biometric material, we welcome the Government's proposals. (Paragraph 10)

4.  Subject to a few specific concerns, which we outline below, there are a number of welcome measures in the Bill, which in our view make it more likely that the operation of the National DNA Database will be compatible with the right to respect for private information. (Paragraph 11)

5.  We welcome the proposal that DNA samples should be destroyed within six months or less. (Paragraph 12)

6.  We welcome the Government's decision that a narrower approach to retention is appropriate to show due respect to the right of innocent people to respect for the sensitive personal information associated with biometric material. We consider that this approach is more likely to be justifiable and compatible with Article 8 ECHR. (Paragraph 15)

7.  We welcome the decision of the Government to adopt a maximum 5 year limit on retention of biometric material taken from innocent people and children, other than for national security purposes. We consider that removing the possibility of rolling renewals leading to indefinite retention significantly reduces the potential for the disproportionate interference with individual rights in practice. While this policy intention is clear from the Explanatory Notes and the associated materials which accompany the Bill, including the Human Rights Memorandum, an ambiguity in the drafting may create some difficulties in interpretation. We propose a simple amendment to resolve this problem, below. If the Bill is not amended, we recommend that the Minister give assurances on the floor of either House to the effect that it is the Government's intention that only one renewal will be possible under Clause 3 of the Bill. (Paragraph 18)

8.  We are concerned that the proposal to continue the retention of biometric material taken on arrest in some cases may create a significant risk of incompatibility with the right to respect for private life (Article 8) ECHR. Without a clearer picture of the broad "prescribed circumstances" in which retention will be permitted, it is impossible for us to reach a conclusive view. However, on the material provided by the Government during earlier debates, we are not yet persuaded that these proposals will be capable of justification. (Paragraph 26)

9.  We welcome the decision of the Government to introduce a number of additional safeguards absent in the Crime and Security Act 2010, in connection with national security determinations, including provision for statutory guidance and oversight by the Biometrics Commissioner. We particularly welcome the decision to allow the Commissioner to overturn decisions on retention for national security purposes. Unfortunately, in the light of the proposed discretion being granted to Chief Officers in practice, we remain concerned about the limitations in these proposed new safeguards. (Paragraph 31)

10.  In the light of the various existing statutory provisions for the extraordinary retention of biometric information in connection with specific issues connected with national security threats, the need for an extremely broad residual power of the type set out in the Bill requires better justification. In our view, exceptional powers of this type should generally be circumscribed by reference to a specific aim and accompanied by tailored safeguards. A generic power of this type becomes more difficult to justify when such specific powers already exist. We are concerned that the Minister does not appear to have justified why this type of generic power is necessary or proportionate, beyond a Government desire to maintain flexibility for the police to address perceived threats to "national security". We recommend that the Minister should explain why these provisions are strictly necessary or these provisions should be removed from the Bill in their entirety. Subject to further justification being provided, we propose the following amendment which would remove the provisions in the Bill which relate to national security determinations. (Paragraph 34)

11.  We are concerned that without further definition on the face of the Bill to clarify the independence of the role of the Biometrics Commissioner, the value of this role as a safeguard in connection with national security determinations (and in connection with exceptional retention of DNA collected from people arrested but not charged) will be significantly undermined. We consider that the Bill should be amended to enhance the independence of the Biometrics Commissioner. We consider that the starting point for the protection of the independence of posts of this kind should be the appointments model used for the Information Commissioner, including statutory minimum terms for appointment and clear limitations on removal from office. In particular, we consider that the power of the Secretary of State to staff the office of the Commissioner and to direct the Commissioner to report on Specific matters should be removed. (Paragraph 37)

12.  We are concerned that the Minister has not yet explained how the Biometrics Commissioner will be able to scrutinise the assessment of the police that an individual's DNA must be retained for the purposes of national security without any information from that individual or elsewhere which might challenge the facts or judgment involved in the decision-making exercise. (Paragraph 38)

13.  We are not persuaded that the review of this type of decision could not legitimately be undertaken by a Court, subject to an application based on an initial assessment by the Government of the degree of risk to national security. Courts regularly review decisions about national security in the context of counter-terrorism decisions (for example, in the making of control orders or in the new TPIMs proposals) and in the making of public interest immunity decisions. The Secretary of State accepts that if the original decision maker does not accept the decision of the Commissioner on review that decision could be subject to judicial review. We are not therefore persuaded that there is any reason why national security determinations for the purposes of retention should not be subject to prior judicial authorisation or subsequent review. Similarly, there appears to be no reason why a determination should not be subject to prior authorisation by the Commissioner on application. We propose alternative amendments to the Bill with these effects for the purposes of debate. (Paragraph 40)

14.  We consider that, if the measures in the Bill are assessed as proportionate with the right to respect for private life, then the possibility of an additional final search before destruction is unlikely to pose such an additional interference to create a separate violation of Article 8 ECHR which could not be justified. However, we are particularly concerned about the scope of the provision in New Section 63D(5), particularly in connection with its application to material unlawfully gathered (New Section 63D(2)) or given voluntarily for a distinct purpose (New Section 63M). We consider that the introduction of a residual power for the Chief Officer to conduct speculative searches in connection with this material after it should otherwise be destroyed in accordance with the provisions in the Bill significantly undermines the safeguards in the Bill against the unlawful taking and retention of biometric material and to protect the private life interests of individuals who help the police by providing biometric material for a specific purpose. We recommend that the Bill should be amended to make clear, that in these circumstances, data should not be processed further, including for the purposes of any speculative search, once it has been ascertained that it was gathered unlawfully or, in the case of voluntarily given material, consent has been withdrawn or the material has already been used for the limited purpose for which consent was granted. (Paragraph 45)

15.  The Minister should be required to give further information on technical or other reasons for the approach which the Government proposes to take in connection with the destruction and deletion of DNA profiles. (Paragraph 52)

16.  We recommend that the Minister should be asked to explain why the indentifying bar code cannot be deleted from the records of the Forensic Science Laboratories and/or from the records held by local police. If DNA profiles cannot be truly anonymised, we consider that there remains an outstanding risk of a violation of the right to respect for private life (Article 8 ECHR). (Paragraph 53)

17.  We accept the Government's analysis that the European Court of Human Rights did not strictly require independent review in every case and that the proposals in the Bill are more clearly defined than the provisions for indefinite retention without review. Retention for three years without opportunity for review in individual cases is more likely to be justifiable. However, given the unusual circumstances of automatic retention based on the criteria set out in the Bill, we consider that the provision for review and destruction in exceptional cases would provide a valuable safeguard against arbitrary and disproportionate retention in some cases. (Paragraph 58)

18.  We regret the lack of detail provided on the provision for appeals against the decisions of the Biometrics Commissioner to consent to the retention of DNA taken from innocent people in prescribed circumstances. We consider that, in light of the breadth of these proposals, and the significant discretion being afforded to the Secretary of State to determine the circumstances in which the special mechanism will apply, the opportunity for independent review will be particularly significant to the assessment of proportionality in individual cases. We call on the Minister to provide further detail on the proposed scope of any appeal from the decision of the Biometrics Commissioner. (Paragraph 60)

19.  We recommend that the Minister provide a fuller explanation of the likely impact of retention for 3-5 years on people under 18; whether that impact is more or less detrimental than that faced by over 18s and whether there is evidence that the value of the inclusion of biometric material taken from children and young people on the National DNA Database is likely to have an enhanced impact on the prevention and detection of crime and the protection of the rights of others. (Paragraph 65)

20.  We recommend that the Government should provide further information for its justification for continuing to retain biometric material taken from people convicted of minor offences as children; the distinct impact of indefinite retention of that material on such offenders; and evidence of the contribution made to the prevention and detection of crime made by the inclusion of such material on the National DNA Database. Based on the evidence so far provided, we are concerned that indefinite retention of all child offenders biometric material (except those convicted of a first, minor offence) may be disproportionate, subject to challenge under Article 8 ECHR and inconsistent with the requirements of the UN Convention on the Rights of the Child. (Paragraph 68)

21.  We welcome the Minister's reassurance that where a Penalty Notice for Disorder (PND) is successfully challenged in criminal proceedings and set aside, the relevant material should be destroyed. However, we consider that the Bill should also be amended to provide that when a PND is issued which will engage Clause 8, officers should be under a duty to notify the accused of the implications of accepting a PND for the treatment of their biometric information. We propose a minor amendment to the Bill for this purpose. (Paragraph 74)

22.  We welcome the acceptance in the Explanatory Notes that where DNA retention is no longer justified, the removal of categories of profiles can be dealt with under guidance issued under Clause 24. However, we recommend that the Minister should be asked to provide further information on the Government's view that blanket retention remains appropriate at this time. We consider that there is a clear case for keeping the indefinite retention of biometric material gathered from people given PNDs or convicted of minor offences under review. (Paragraph 80)

23.  We regret that an interim solution was not actively sought by the Government in this case. We particularly regret that no steps were taken to stop the collection and retention of samples and profiles whose retention was unlikely to be justified (for example, samples and profiles taken from children arrested in connection with very minor offences and subsequently released without charge). We consider that, as a matter of good practice, the introduction of interim measures designed to minimise the risk of further, similar violations, while a permanent response to an adverse human rights judgment of the domestic courts or the European Court of Human Rights is being developed, should be encouraged. (Paragraph 82)

24.  We are disappointed that accurate statistical information about the operation of the National DNA Database does not appear to have been routinely gathered. ]We recommend that the Government should be required to gather information about the operation of the proposals in the Bill which should be published in a regular report to Parliament. We consider that the relevant information should include:

  • Information and statistics on the categories of biometric information retained and the demographics of the people whose information is retained (including the numbers of people convicted, charged but not convicted, voluntarily providing information, material retained pursuant to a national security determination and any material retained from persons arrested but not charged, in the prescribed circumstances identified in the Bill);
  • Information and statistics on the number of successful searches of the National DNA Database, including criteria for success (for example, excluding people from investigations, identifying suspects, leading to further information and the conviction of an individual). It would be particularly helpful to identify the number and type of cases where biometric material identified through a search of the database has played a role in a conviction (and particularly what role that material played).(Paragraph 85)

25.  While we consider that this research and record keeping will require careful coordination between the police and the Crown Prosecution Service, we consider that in light of the pioneering role played by the UK in the development of database technology in the prevention and detection of crime, the collation of information designed to allow for effective qualitative research on the effectiveness of the National DNA Database is important. The Bill should be amended to require the Secretary of State to produce such regular reports. We have produced the following amendment for discussion. It is designed to create a statutory duty to publish information on the operation of the NDNAD and to recognise that these functions could be performed by any combination of the Secretary of State, the Biometrics Commissioner or the Strategy Board. (Paragraph 86)

26.  We welcome these provisions: in our view they provide significant additional protection to the important right of the child to respect for their personal information, a right which has been too freely interfered with by the growing use of biometric identification systems in schools. (Paragraph 91)

27.  In our view, "reasonable practicability" is too low a threshold for dispensing with such an important safeguard for the right of a child to respect for their private life. We do not see the necessity for such a catch-all exception from the requirement for parental consent and recommend that it be deleted from the Bill. (Paragraph 93)

28.  We consider that this interference with older children's right to respect for private life under Article 8 ECHR is not justified as being necessary and proportionate. We recommend that the Bill be amended so as to enable children of sufficient maturity and understanding to decide for themselves whether their biometric information should be processed. (Paragraph 101)

29.  The following amendment would give effect to this recommendation:

Clause 27, page 18, line 18, before sub-clause (a) insert "aa) the child has sufficient maturity and understanding to give consent to the processing of their biometric information." (Paragraph 102)

30.  Alternatively, in order to give schools greater certainty about the circumstances in which parental consent is not required, the Bill could be amended to follow the approach taken in relation to attendance at religious worship, where statute expressly provides sixth-form pupils with the right to be excused from such attendance. The following amendment would give effect to this recommendation:

Clause 27, page 18, line 18, before sub-clause (a) insert (aa) the child is a sixth form pupil". (Paragraph 103)

31.  We consider our proposed amendment to the Bill to be more in keeping with the express recognition of the evolving capacities of the child with greater age and maturity in Articles 5 and 12 of the UNCRC. (Paragraph 105)

4 CCTV and the right to respect for private life (Article 8 ECHR)

32.  We welcome the decision to introduce new regulatory measures in connection with the operation of CCTV. Whether the Code will help strike a of a proportionate balance between the rights of individuals to respect for their private lives and the wider interest in the prevention and detection of crime is difficult to assess without seeing a final draft of its proposed content. We welcome the decision to subject the Code to the affirmative procedure for Parliamentary approval. However, we note that by limiting the application of the Code to the public sector, its impact may be restricted. Since the Code is self-regulatory, the Information Commissioner will continue to have a very important role in connection with the protection of personal information gathered by means of CCTV. The Information Commissioner and the proposed Surveillance Commissioner will need to have a close working relationship in order to ensure that the requirements of the Data Protection Act 1998 and the measures in the Code are consistent and complementary. We recommend that the Information Commissioner is closely consulted in the finalisation of the CCTV Code. (Paragraph 109)

33.  We welcome the recognition in the consultation on the proposed Code that specific guidance may be necessary in particular contexts. We recommend that the Code should include information on the use of CCTV technology in schools, residential care homes and healthcare settings, where risks to private lives of pupils, residents and patients may be heightened. (Paragraph 110)

5 Powers of entry and the right to respect for private life, home and correspondence (Article 8 ECHR)

34.  We are deeply concerned at the proposed breadth of these proposals in light of the Minister's indication that the Henry VIII power in Clause 41 may be used to extend powers of entry where Ministers consider enforcement action is appropriate. At its broadest, following the Minister's explanation, this power could be used to introduce a power for State agents or others to use force to affect an entry by way of delegated legislation. Alternatively, it could be used to create new powers of entry or to remove restrictions on existing powers. In our view, this is an inappropriately broad delegation of powers in connection with the individual right to privacy and the peaceful enjoyment of possessions in connection with residential or commercial premises. We are not satisfied that this ambiguous proposal is found in a Bill designed to reinstate protections for individual rights and liberties. (Paragraph 115)

35.  We welcome the recognition in the Bill that powers of entry should be strictly limited to those circumstances in which such a power is justified, necessary and accompanied by appropriate safeguards. The decision to review all existing powers of entry is a welcome one. Our predecessor Committee reported on the lack of safeguards accompanying these types of powers on a number of occasions. We consider that a review of existing powers of entry offers a clear opportunity to identify where powers of entry continue to be justified, proportionate and necessary. It also provides an opportunity to promote legal certainty by including clear, basic statutory safeguards in connection with each such power. In our view, at a minimum, each power of entry should be strictly defined, including clear limits on the circumstances when the power may be exercised and the identity of the person or body exercising the power. We regret that the review of existing powers was not completed before this legislation was introduced. (Paragraph 116)

36.  We are particularly concerned that, at this late stage in the Bill's progress, Parliament has not been provided with an accessible, conclusive list of each of the existing statutory powers of entry which may be subject to review. In our view this is testimony to the expansion of the use of powers of entry by the State and illustrative of the need for Parliament to examine the proportionality of these powers and their associated safeguards closely. We recommend that the Government publish a final list of existing statutory powers, accompanied by a clear indication of the scope of the relevant power and the person or persons entitled to exercise it, together with an outline of any relevant safeguards as a precursor to its review and preferably before the next stage of this Bill's progress in the House of Lords. (Paragraph 117)

37.  We are concerned that since this review has not yet been completed, the legislation proposed in this Bill is overly broad and creates a risk that delegated legislation may be used in future in a way which may create a risk to the right to respect for private life, without adequate opportunity for scrutiny by Parliament. We consider that, if a broad power to amend and replace existing powers of entry is approved, the Bill should be amended to limit this power to amendments which introduce new safeguards against inappropriate use of powers of entry or repeal existing powers. (Paragraph 118)

38.  While we welcome the wider review of the operation of enforcement measures and the work of bailiffs, we consider that there is a particular justification for the repeal of the power of the Secretary of State to authorise the use of force by private operators. While other powers of entry may also require reform or repeal, we consider that the risks posed by this power are particularly stark. (Paragraph 120)

39.  We reiterate our view that all-premises and multiple-entry warrants (civilian and military) create new and unique risks for the right to respect for privacy, as guaranteed by the common law and Article 8 ECHR. (Paragraph 124)

6 Pre-charge detention of terrorism suspects

40.  We welcome the provision in the Bill making permanent the recent reduction in the maximum period of pre-charge detention for terrorist suspects from 28 days to 14 days. (Paragraph 129)

41.  We also doubt whether it has been demonstrated, by evidence, that it is necessary to make provision now for a contingency power to extend the period of pre-charge detention beyond 14 days in the event of some future emergency. (Paragraph 130)

42.  We recommend that the Government reconsider its intention to bring forward an order-making power to increase the maximum limit when Parliament is dissolved. (Paragraph 131)

43.  We recommend that the Government bring forward amendments to the legal framework governing pre-charge detention of terrorist suspects as soon as possible following the decision of the Supreme Court in Duffy, in order to ensure that the legal regime operates in practice in a way which is fully compatible with the procedural requirements of Article 5 ECHR. (Paragraph 132)

7 Counter-terrorism stop and search powers

44.  In our view, the removal of the requirement takes away a significant safeguard against exercises of the power to search which may be incompatible with Convention rights. [...] In the absence of clearer evidence of operational difficulties caused by the existing requirement, we are not persuaded of the necessity for removing a safeguard which reduces the risk of an intrusive power to search being exercised in a way which infringes an individual's rights and liberties. (Paragraph 138)

8 Safeguarding vulnerable groups and vetting and barring

45.  We welcome the Government's aim of making the Vetting and Barring Scheme more targeted and proportionate, by taking a more explicitly risk-based approach. (Paragraph 140)

46.  We welcome the amendment which in our view remedies the incompatibility identified in the court's declaration of incompatibility in the Royal College of Nursing case. (Paragraph 143)

47.  In our view, Article 6 ECHR requires that an individual who is included on the barred list have the opportunity of a full merits hearing before an independent and impartial tribunal. We therefore consider that the restrictions on the jurisdiction of the Upper Tribunal in s. 4 (3) of the Safeguarding Vulnerable Groups Act 2006 are incompatible with the right of access to an independent court or tribunal in Article 6 ECHR. We recommend that the Bill be amended to repeal s. 4(3) and so provide for a full merits appeal against inclusion on the barred list. (Paragraph 147)

9 Criminal Records

48.  We welcome these changes to the system of criminal record disclosure which seem to us likely to achieve a more proportionate approach to the disclosure of sensitive personal information. (Paragraph 150)

49.  The introduction of basic level certificates, covering only unspent convictions, would be a further step towards a more proportionate approach to disclosure of criminal record information and we therefore recommend that section 112 Police Act 1997 be brought into force. (Paragraph 151)

50.  We welcome this provision for an independent review of the inclusion of non-conviction information on an enhanced criminal records check. (Paragraph 152)

10 Freedom of information and data protection (Article 8 ECHR)

51.  We consider that the proposed changes to the statutory duties and terms of appointment of the Information Commissioner in Clauses 101-104 are welcome and should enhance the independence of that role. (Paragraph 156)

11 Reform of the Public Order Act: Insulting words or behaviour and freedom of expression (Article 10 ECHR)

52.   We support the amendment of the Public Order Act 1986 to remove all references to offences based on insulting words or behaviour. We consider that this would be a human rights enhancing measure and would remove a risk that these provisions may be applied in a manner which is disproportionate and incompatible with the right to freedom of expression, as protected by Article 10 ECHR and the common law. (Paragraph 158)

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