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Periodic recommendations from senior sources, including judges and police officers, that the database should be extended to every person in the United Kingdom show just how far the current method of legislation by salami-slicing could go. Government policies, such as the identity card database, show that the appetite for control could be increased. At the same time, the losses of financial and personal information that we have come to expect with depressing regularity from government departments show how little we can trust public bodies to hold such important information safely.
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A loss of information from the DNA database on the scale of the loss of child benefit information last year would be catastrophic. Unlike bank accounts, you cannot change your DNA. Once the information is lost or is in the wrong hands, it cannot be regained. The Minister might like to take this opportunity to lay out how widely the Government would like the DNA database to extend. Can he give us a categorical assurance that there is no intention to expand it deliberately to retain innocent people’s DNA?
Our amendments would require a clear assessment of where we are now. Having failed to provide for a proper debate on the matter, the legislation surrounding the DNA database is scattered over several Acts, orders and codes. The Bill will be a further Act. For example, Section 64 of the Police and Criminal Evidence Act 1984, concerning the destruction of fingerprints and samples, has been amended five times since then by legislation. It has been amended by, first, the Criminal Justice and Police Act 2001, secondly, by the Serious Organised Crime and Police Act 2005, thirdly, by the Criminal Justice and Public Order Act 1994, fourthly, by the Criminal Justice Act 1988 and, fifthly, by the Police Act 1996.
Somewhere in the Home Office, I am sure that there are officials who know all the information that Amendment No. 13 would require to be published. However, that grasp of a complex and ever-changing area is not widely shared. This country already has the largest DNA database in the world. How many people are currently on it; how many of those who have never been convicted of a crime are on it; and how many people will be added every year? The Government’s own Ethics Group appreciates this problem; its Recommendations I and J state that there should be further public clarification of the role of the database and that the possibility of a universal repository should be categorically denied.
There is inconsistency with Europe. The inclusion of innocent people on our database not only intrudes on their privacy at home. Police forces in Europe and around the world share information on suspects. This flow of information is likely to expand even further under EU law. On other EU databases, innocent people are not included. If you were to ask the Spanish force for information on a certain person and it responded positively, you could be sure that such a person had a criminal record. The same is not true in the other direction. Our police forces can pass over information on innocent people, the very existence of which indicates a criminal record in the minds of the foreign forces. The fact that these people are on the database automatically gives rise to the assumption of criminality. Have the Government taken steps to ensure that, when such information is handed over, the recipients are fully aware of the arbitrary nature of our database? Do they realise that the unfortunate subject may be guilty of nothing more than a desire to be helpful during the investigation of a crime?
On the right to destroy, the general confusion over the database extends to ignorance over the rights that an individual has in regard to it. How many people know that they can request to have their information destroyed if it has been voluntarily given during the
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The Ethics Group has made recommendations in this area. It has not only restated the principle set out in primary legislation that information will be destroyed by default when the investigation has ended but emphasised the need to clarify the exceptional circumstances in which this principle can be broken. Our amendment seeks clear national guidelines on this matter. This debate should be only the start of this. We need a well informed and widespread debate, which includes the public as well as Parliament, on resolving these matters. The proposed new clauses are just one more gesture in trying to resolve the problem of adding to the data that are already being taken. Fingerprints fall into the same category. People’s fingerprints are now being taken all over the place, and they do not know what they are being used for and whether that information is being passed on.
One understands that DNA may be helpful in counterterrorism, but it is seriously not helpful that this information should be kept indefinitely and can be used widely, passed on without consent and without the knowledge that it is being passed on. We already know that the EU has enhanced ideas about DNA transfer and that there are suggestions that children should have their DNA taken at birth. We are building up a database of the whole community that could be used against any members of that community if held in the wrong hands.
This legislation gives us a good opportunity to raise this matter. We want to know whether the powers taken here relate to information already on the general DNA database or to information that will be added to it, and what limitations there will be in maintaining and preserving it. I am sure the Minister will agree that liberty, apart from anything else, is an extremely important aspect and that we in Parliament need to be ever mindful of the fact that the legislation that we pass can be as embarrassing to innocent people as it is to the guilty. We must ensure that the innocent are not jeopardised. I beg to move.
Baroness Miller of Chilthorne Domer: I support the amendment moved by the noble Baroness, Lady Hanham. At the beginning of her introduction to this important amendment, she mentioned the misuse of this legislation. I draw the Minister’s attention to the report in the Financial Times today—he may already be aware of it—that the Treasury used anti-terror powers to freeze Landsbanki’s assets in the United Kingdom. I realise that the Committee will not want to get into a debate on the financial crisis at the moment, but that bit of it must be commented on today. Is it true that the freezing order was issued under the Anti-terrorism,
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I absolutely agree with the noble Baroness, Lady Hanham, that the matter of taking and using DNA must concern us all. I am sure that the Minister has the answer but, as far as I understand it, 1 million people, almost all of whom are innocent, are currently on the DNA database. Whether they can come off the database is entirely at the discretion of the chief constable. The Minister will know, because I have asked a number of Written Questions about this in the past few months, that there are very few examples of chief constables deciding to remove anyone from a database. Indeed, it is hard to imagine that that would ever be a priority for them, given all the other priorities that they have on their desk. They would have to review the whole file, and they are not going to be very fast at removing innocent people from the database. That includes people who gave their DNA voluntarily to help the police to solve cases. This is a disincentive for people to volunteer their DNA in the future, and is one reason why the Government may choose to review this whole situation. People who have been acquitted of a crime also remain on the database. One of the fundamental tenets of British justice is “innocent until proven guilty”. If someone is acquitted, they are deemed to be innocent. Nevertheless, they remain on the database.
The noble Baroness, Lady Hanham, mentioned all the implications there are now of sharing such databases in Europe, so I will not repeat what she said but will say simply that we on these Benches, too, have deep concerns. We will undoubtedly want to return to this subject on Report, because it has particularly deep implications for people who volunteer their DNA, as I have said. I am grateful to those on the Conservative Benches for tabling this amendment.
Lord Monson: As the noble Baroness, Lady Hanham, has said, Clauses 10 to 18 seem to cover a very much wider field than the specific matter of counterterrorism. This must be of great concern to nearly all of us, as most of us are disturbed by the massive extension of the fingerprint and DNA databases to include a vast number of totally innocent people. I was pleased to hear the noble Baroness, Lady Miller, talk about returning to this on Report. If they do not get a satisfactory answer from the Government today, I hope that both opposition parties will combine on Report and press the matter to a Division.
2.30 pm
The Earl of Onslow: I apologise for being late on this. This fingerprint business is something about which I feel very strongly; I have asked Questions in the House about it, especially about DNA samples. The Government’s collecting of everything in these vast databanks, particularly DNA databases, is a serious infringement on our liberties. DNA is disproportionately
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Lord Harris of Haringey: I have been concerned at the tone of this debate. I apologise to the noble Baroness that I did not hear her opening remarks, but I have listened to the responses, and there seems automatically to be an assumption that holding this material in databases is necessarily damaging to liberty. I should like to remind the Committee of the substantial number of instances in which cold cases have been solved because of data that can now be accessed through DNA databases and fingerprints.
As I understand it, the noble Baroness’s amendment simply seeks a clear statement of how the rules currently work. That would be helpful. I suspect that there is a lot of misinformation and confusion about how the current rules on fingerprints and DNA samples operate. Something which sets that out might be valuable in terms of the quality of public debate.
Lord West of Spithead: I thank the Committee for that input. It is clear that everyone in the Committee feels that this is a very complex area. There is a great deal of legislation involved. When this provision was discussed in the other place, it was accepted that there was a need for a much wider debate on the retention and use of fingerprints and DNA samples. Although I do not believe that this debate is the forum in which to do it, there is a need to have that wider debate.
Before I try to explain some of the detail in accordance with what my noble friend Lord Harris was saying—I may be able to expose some of the detail and show that it is not as worrying as some might think—perhaps I may just mention the issue of the Icelandic banks that the noble Baroness, Lady Miller, raised. The assets were frozen in a freezing order under Part 2 of the Anti-terrorism, Crime and Security Act 2001. That applies to all three of them. Freezing orders are not limited to terrorism, so it was not done under a purely terrorist measure. This measure came in because SOCA felt that it was needed for serious crime and things like that, as well as terrorism.
Baroness Miller of Chilthorne Domer: Let us be absolutely clear about it. Was there any debate during the passage of that Act to say that it would be used for anything other than crime and terrorism?
Lord West of Spithead: I was not here for that debate. That legislation does, however, include security. We can look in Hansard to find out exactly what was discussed, but the legislation covers anti-terrorism, crime and security. I will get back to the noble Baroness on her question.
Baroness Miller of Chilthorne Domer: I am sorry to press the Minister on this, but “security” here means personal safety and so on, not financial securities. The only possible link that I can see here is that the Metropolitan Police had, as I understand it, considerable assets in the bank.
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Lord West of Spithead: I do not think that I can comment on that. I will have to go back to Hansard and look at what was discussed during the course of that Bill. I was giving the noble Baroness a clear statement on where the authority came from and what it was. We can look up this separate matter and go into it if we wish.
Lord Lawson of Blaby: We have previously had a number of Questions in this House about the freezing of assets, and such questions also emerged when I was the Chancellor. Before the recess the noble Baroness, Lady Williams, asked a Question about freezing the UK assets of Mugabe and his cronies. I think that it would greatly assist the House if at some point we could have a clear statement on what powers there are to freeze the assets of anyone of a dubious nature, for whatever reason. It is a very murky area.
Lord West of Spithead: I agree with the noble Lord that it is. I would have to take advice on what can be said about it. We have diverted slightly from this amendment, but I will take the matter away to see whether anything can be done. We will be discussing asset freezing at a later date, so there will be an opportunity then.
The amendments would unintentionally suggest that the provisions would apply to all samples and fingerprints held by the police. As Members of the Committee will be aware, Part V of the Police and Criminal Evidence Act 1984 provides for the taking and retention of samples and fingerprints. The Act also clearly stipulates the purposes for which such samples may be used. The Committee may also be aware that an individual can request that samples or fingerprints held by the police should be destroyed. Such an application is made to the chief officer of the police area concerned and, while destruction is a matter for the chief officer, such a decision is subject to guidance issued by the Association of Chief Police Officers. The guidance, Retention Guidelines for Nominal Records on the Police National Computer, is available on the ACPO website.
I acknowledge the noble Baronesses’ sentiment in putting down these amendments but it is our view that the existing structure under PACE provides sufficient safeguards and protections for the individual. As Members of the Committee may be aware, the position on retention of fingerprints and samples is subject to consideration in a case, S and Marper, before the European Court of Human Rights. The Government have provided a robust defence in that case, and we await that decision from the Court.
However, in this amendment they unfortunately fail to take into account the key element that fingerprints and samples held on the counterterrorism databases are often obtained without the knowledge of the individual. That is the nature of investigating terrorism. It would be wholly inappropriate to compromise or indeed negate an investigation by giving any person a statutory power to require the police to disclose what information is or may be held by them. I will strongly resist these amendments as they will fundamentally change the system for the retention and use of fingerprints and samples, to the detriment of counterterrorist operations protecting our national security, as set out in this Bill.
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The primary purpose of Clauses 10 to 18 is to make sure that retained samples can be used as effectively as possible. Clauses 10 to 13 provide equivalent powers, procedures and safeguards for the collection and use of fingerprints and non-intimate samples collected from those on control orders with those collected after arrest under the relevant legislation for the jurisdiction involved, such as the Police and Criminal Evidence Act 1984. Clauses 14 to 18 have three specific aims: putting a counterterrorism DNA database on a firmer legal footing; allowing fingerprints or samples taken under the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence (Northern Ireland) Order 1989 to be used for national security; and making it easier to allow fingerprints or samples taken under the Terrorism Act 2000 to be placed on the national DNA database. In Clauses 14 to 18, we are not creating any new powers to take fingerprints and samples.
Amendment No. 13 sets out the contents for the proposed report on fingerprints and samples. I do not believe that it is necessary to require the Secretary of State to issue such a report as the issues raised in the amendment are already dealt with. First, the report would require the Secretary of State to set out the circumstances in which fingerprints and samples can be taken without consent. That is unnecessary, as the situations where this can arise are already clearly stated in primary legislation, or will be with the passing of this Bill regarding control orders.
Subsections (1) and (2) of Clause 10 insert provisions into the relevant sections of PACE setting out clearly when fingerprints and samples can be taken from individuals without their consent. Equivalent procedures and safeguards that would apply in those circumstances will apply in relation to fingerprints and non-intimate samples taken from controlled individuals. In Clause 18, it is clearly set out how the police can obtain fingerprints and samples during covert operations under Part III of the Police Act 1997 and under Part 2 of the Regulation of Investigatory Powers Act 2000. Given the clear presentation of the situations where fingerprints and samples can be taken without consent, I see the first requirement of this report as completely surplus to requirements.
Secondly, the amendment proposes that the report contain the circumstances in which and purposes for which fingerprints and samples taken with or without consent may be retained. As with the first proposal, this is unnecessary, as the Bill and other primary legislation set out the purposes for which samples can be used. We are using this Bill to standardise the purposes for which fingerprints and samples can be used so that they may be used in the most efficient way possible. These purposes are: in the interests of national security, for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution, or for the purposes related to the identification of a deceased person or of the person from whom the material came. So a report explaining the purposes for which fingerprints and samples may be retained is completely superfluous.
Thirdly, the amendment would require the report to cover the circumstances in which fingerprints and
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There are other safeguards against the abuse of samples held subject to Clause 18. In line with his existing powers, the Information Commissioner will provide independent oversight of the database with regard to data protection issues. Additionally, the MPS will liaise with the newly appointed Forensic Science Regulator to establish standards for DNA analysis, validation of the CT DNA database and protocols for international exchange of DNA data. Working with the custodian of the national DNA database, the MPS will ensure compliance to standards it has set, which are accepted and adhered to by forensic laboratories. Additionally, it will work with the custodian to develop new protocols for cross-searching between the national and CT databases, ensuring that public confidence, counterterrorist investigations and national security are not compromised.
Finally, the report would have to include the circumstances in which information relating to fingerprints and samples was destroyed. As I have already stated, I accept absolutely that there is a need for a wider debate outside this one to discuss DNA and I have no doubt that this will be included in that debate.
We do not intend to destroy the samples covered in this Bill. The retention of DNA is not an indication of innocence or guilt; it is an important investigative tool which enables the matching of samples from crime scenes with those held on the database. At the same time, it allows for the elimination of people where samples do not match. For example, an estimated 200,000 profiles on the national DNA database would have been removed prior to a legislative change in 2001 to allow samples to be retained indefinitely. From these, about 8,500 individuals have been matched with DNA taken from crime scenes, involving some 14,000 offences. They include 114 murders, 55 attempted murders, 116 rapes and 68 other sexual offences, and a number of other serious crimes.
In conclusion, I believe that the report requested in Amendment No. 13 is unnecessary. We have set out clearly in primary legislation the situations in which fingerprints and samples can be taken and how they may be used, including safeguards. What is more, we have established a robust framework for the oversight of the retention and use of fingerprints and samples to ensure that the legislation is followed. For these reasons, I must resist the amendment and I hope that it can be withdrawn.
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2.45 pm
Lord Monson: I have to say that the noble Lord has dealt pretty effectively with Amendment No. 13, but he has made out no sort of case against Amendment No. 14, which I think is even more desirable.
The Earl of Onslow: Can the noble Lord help me a little on this? If someone is detained for up to 28 days, presumably their fingerprints and a DNA sample will be taken. If they are released as completely innocent, will the fingerprints and sample be destroyed or will they be kept?
Lord West of Spithead: As I understand it, the material will be kept unless the person asks for it to be destroyed, at which point they would go through the process I described a few moments ago.
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