32.Clause 18 and Schedule 2 amend existing powers to retain fingerprints and DNA samples for counter-terrorism purposes. Currently under the Police and Criminal Evidence Act 1984, a person who is arrested but not charged or convicted of a terrorist offence may have his or her data retained for three years for national security purposes with the consent of the Biometrics Commissioner. The Bill removes the requirement for consent of the Biometrics Commissioner.
33.The oversight of the Biometric Commissioner gives the public greater comfort that such powers are only used where necessary and proportionate. We have seen no evidence to suggest that the oversight by the Biometric Commissioner in any way impedes the ability of the police to undertake vital counterterrorism work.
34.The Government’s response states that they “do not agree that… it would be appropriate or responsible to reduce the powers available to the police” and that they are “not prepared to remove the three-year retention period currently provided following an arrest under the 2000 Act.”
35.We had not recommended the removal of the three-year retention period. On the contrary, we recognised the logic in harmonising retention periods for biometric data so that cases are treated in the same way irrespective of whether an individual is arrested under PACE 1984 or the Terrorism Act 2000. However, we expressed concern that in doing so the Government was removing the requirement of consent of the Biometrics Commissioner for retention of the data of individuals who had neither been charged nor convicted. The Government has not addressed this point in their response.
36.In the absence of any justification, we suggest the following amendment:
Page 29, line 5, leave out paragraph 2
Comment: this deletes the amendment to section 63F PACE.
37.Schedule 2 also amends the time period for national security determinations (NSD). An NSD allows a chief police officer to determine that is it necessary and proportionate to extend the retention period for biometric data, for the purpose of national security, for an extra two years where it would otherwise be destroyed. This allows the police to keep such information for as long as they could possibly need (with rolling determinations if necessary), but requires a review every two years for a fresh determination. Section 63M of PACE currently allows for renewable national security determinations (NSD) every two years - the Bill changes this to 5 years.
38.We recognise that retention of data for the purpose of national security is a legitimate aim, but we questioned whether five years is a proportionate period of time to retain the biometric data of persons who have never been convicted of a crime, particularly in the absence of any possibility of review.
39.In its response, the Government stated that “operational experience has shown that the current two-year length is too short in many cases, and that those of national security concern - such that it is necessary and proportionate for the police to retain their biometric data - will often pose a more enduring threat than this.”
40.We recognise that persons of national security concern may pose a threat for longer than two years. However, the police already have the power to renew national security determinations on an indefinite basis. We are concerned that five years is too long without any right of review.
41.We suggest the following amendments:
Page 29, line 29, leave out paragraph (4).
Page 32, line 3, leave out paragraph (4).
Page 33, line 4, leave out paragraph (4).
Page 34, line 33, leave out paragraph (4).
Page 36, line 4, leave out paragraph (4).
Page 37, line 28, leave out paragraph 19.
Comment: this group of amendments removes the proposed extension of national security determinations for the retention of biometric material to 5 years.
22 , para 59
23 , clause 17
24 , para 59
25 , para 63
Published: 12 October 2018