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I am sorry; I have only addressed Amendment No. 13 so far. Amendment No. 14 seeks to require the Secretary of State to issue an order containing national guidelines on the fingerprint and sample database. With specific reference to the clauses of this Bill which we are debating, I will resist this amendment. Once again I remind noble Lords that it is not appropriate to have a wider debate on the use of fingerprints and samples in the narrower context of the provisions in this Bill, but I understand the depth of feeling about the need for such a debate, which I agree must take place at some stage.

The amendment requires guidelines on requesting information about the fingerprints and samples held. Access to information held on an individual is regulated by the Data Protection Act. Under that Act, an individual can ask the police what information they hold on them. Information on how to make a subject access request can usually be obtained from the local police station or through the force’s website. The Information Commissioner provides independent oversight of data protection issues, including the retention and use of fingerprints and samples. Given this established system, it seems unnecessary to require an additional set of national guidelines to be published.

Equally, there is a system for requesting the destruction of fingerprints and samples held. People can request the destruction of their sample in the case of those taken under PACE. The policy for samples taken under PACE, in line with the Criminal Justice and Police Act 2001 and the Criminal Justice Act 2003, and adopted by chief officers, is to retain, save in exceptional circumstances, all samples from people acquitted of criminal offences or against whom proceedings have not been pursued. The aim of the policy is the prevention or detection of crime, the investigation of offences, and the facilitation of prosecutions and speedy exculpation of the innocent, as well as the correction of miscarriages of justice. The House of Lords supported this policy in 2004 in the Marper case.

There is no legal obligation to remove samples taken under the Terrorism Act. As with Amendment No. 13, I do not think that there is any need for the Secretary of State to issue national guidance, as robust and established processes are already in place. I have outlined why we believe the policy upon which these processes are based is appropriate; namely, that the retention and use of samples taken either covertly

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from those who are not subsequently arrested or from those under arrest who are not subsequently charged, has played a vital role in many criminal investigations. I am in no doubt that when these clauses become law and the ability to cross-reference fingerprints and samples becomes more efficient, this will be of considerable benefit in the protection of our national security and the prevention, detection or investigation of crime.

In a future debate there may well be considerable scope to debate these principles, but this is not that debate. I have made clear the benefits of Clauses 10 to 18 and outlined the safeguards against the misuse of fingerprints and samples. I therefore ask that the amendments be withdrawn.

The Earl of Onslow: How can someone whose fingerprints were taken covertly ask for them to be deleted? He probably does not know that they have been taken.

Lord West of Spithead: The noble Earl is quite right; that, in effect, is what we are saying: they will not be able to ask for them because they will never know. We are putting this on a statutory basis. For the moment, these data are held, but not in a proper database.

The Earl of Onslow: If the noble Lord and I found ourselves in chokey together, our fingerprints would be taken. If the police then found that they had made a terrible mistake and decided that we are upright and upstanding citizens of the highest rectitude, we would be released. We can then ask for our fingerprints and DNA samples to be destroyed. However, if the police think we might be up to something but do not arrest us and collect our fingerprints, we have no way of knowing that and no way of asking for them to be destroyed. They ought not to be able to keep fingerprints like that. The noble Lord says that it is part of the great debate, but it has been creeping on and on and ought to be dealt with as soon as possible.

Baroness Miller of Chilthorne Domer: I am worried that the more the Minister seeks to reassure us the less reassured I feel. He said that now is not the moment to debate this issue; that the Bill is not the right place to make a stand on it. I completely disagree. Clause 10 will allow a constable to take a person’s fingerprints without the appropriate consent if the person is subject to a control order. If you are subject to a control order, you have not even been through a process of law; you have not been through a criminal process. This widens out incredibly the ability of the police to take these samples and now is the point to make a stand.

If the Minister and the noble Lord, Lord Harris, want a national database to make it entirely fair, that would be a completely different argument. The Minister said that having these samples on a database has helped to solve many crimes, but that is a completely different argument. We are talking here about people who have not even been through a process of law.

We have three tiers of people at the moment: those who have been convicted and are on the database—and no one is arguing against that; those who have been picked up under the terrorism Acts and who are subject to a control order, or who have volunteered their DNA, who will stay on the database because no

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chief constable will remove them unless they write to him 20 times, and even then he probably will not; and those who are lucky enough not to be on a DNA database but among whom there may be many criminals. It is not a logical position and I am surprised that the Minister does not feel that this is the point to have the fight about it.

Lord Harris of Haringey: I was not arguing for a national database with everyone on it, although there is a debate to be had that that might be fairer and clearer for everyone. However, it is genuinely the case—I have detected this in the discussion that we have had in the Committee today—that there is a lack of clarity and understanding of what the current law says about different things. As I understand it, if you are arrested but not charged, your DNA can be taken and retained. As I understand it, that is the situation that exists. It is quite likely that I have got it wrong but I suspect that, with the exception of a handful of the noble Lords who are present today, none of us is clear about what all the different provisions and requirements on the DNA database are. Therefore, something which is set out in one place as an aide memoir for everyone—which would save having to plough through statutory law—would be extremely helpful.

I was not arguing that there should automatically be a database on which everyone was included, although there is a legitimate debate to be had on that on which you can come down on one side or the other.

Lord West of Spithead: I thank my noble friend for that interjection. There may be some merit in it which needs looking at. As regards the amendments to this part of the Bill, we have not yet got to the argument about people under control orders. The Bill does not add anything new. No new groups of people will have samples taken; nothing new is being added. This part of the Bill relates to information that is already taken and held by the security services, not the national database. It is intended to rationalise that information, hold it properly and deal with it in the same way.

That is why I do not believe this is the right time to open up the much broader debate—which we will need at some stage—because there is nothing new in the Bill. We will not be going out and taking any more samples than are being taken at the moment. Samples—the covert and other material—are already taken and already held on lots of files all blobbed up together. That is how the information is held and it is better to have that rationalised and able to be used. That is what this part of the Bill is about. It is not about anything new being taken and it does not relate directly to those under control orders, which we will come to with the next amendment.

Baroness Miller of Chilthorne Domer: I am sure that the noble Baroness, Lady Hanham, will be cheered to know that it sounds as though the Government and the noble Lord, Lord Harris, are agreeing with her Amendment No. 14. However, given the worries at the start of the debate about the definition of national security and what it encompasses, will the Minister write with a definition of what falls under national security before Report?

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Baroness Hanham: I am grateful to everyone who has taken part in the debate. It is interesting that we say we should have a debate on this issue on some occasion when it is very seldom—or, perhaps, more often than not—that we have a debate within legislation which would enable us to change a situation. We can sit in the Chamber and discuss DNA for three or four hours on a day when we have a debate on the subject, but nothing will result from it because it is not legislation and it is not amending legislation. So the opportunity presented by the proposed new clauses has been helpful because it has underscored the fact that most noble Lords who have spoken have considerable concerns about who is on a DNA/fingerprint database and how you get off it.

I am more worried by the Minister’s replies than I was at the outset of the amendments. Both the Minister and the noble Lord, Lord Harris, who intervened, have a general assumption that this collection of DNA—whether it is from those who are criminally involved or have had a case proved against them, or from those who are totally innocent but have come across a situation where there is a need for a DNA sample to be taken and filed—is completely inchoate. It is impossible for people to know or challenge what is there. It is all very well to say that a chief constable can be asked to provide information, but that will take a big effort—it is probably worse than trying to chase down your bank card and finding out whether or not there is a black list.

We cannot be light hearted about the collection and holding of information on people. There are perfectly reasonable grounds for taking samples and keeping them for a certain length of time while inquiries take place and, indeed, when they are to be used in evidence, but the whole question of more and more people finding themselves on a database—which, as the noble Lord, Lord Harris, said, can be scrutinised and interrogated to see whether they may or may not have been involved in a criminal offence—is extremely alarming.

I hear what the Minister has said and what other noble Lords have said. I am not prepared to not return to this; we will almost certainly return to it on Report. As I said, it has raised almost more anxiety in me than I had when I tabled the amendments. The fact that these provisions are splattered throughout legislation is one of the reasons why there should be a pulling-together of where all that information is. It is not a matter that only the security forces and the police should know where the information is; people should not have to scurry around trying to find out what legislation refers to which bit of something that belongs to them. My DNA is mine—it is me; it is what characterises me; it is what makes me. My fingerprints are unique, as far as I know, and my DNA is unique to within 14 million to one, or something similar, and so it is immediately identifiable. We cannot have the security services saying that they want to hold on to this information because it is so obvious to whom the DNA and fingerprints belong. We have to strike a balance between security and liberty. I believe that we are far outside the area of liberty. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 14 not moved.]

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3 pm

Clause 10 [Power to take fingerprints and samples: England and Wales]:

Baroness Harris of Richmond moved Amendment No. 15:

15: Clause 10, page 7, line 5, after “constable” insert “, with the authority of an officer of a rank no lower than inspector,”

The noble Baroness said: This group of amendments is intended to be probing. Clause 11 deals with the power to take fingerprints and samples in Scotland, and is explicit in requiring a constable to get the authority of an officer of a rank no lower than inspector—here we are again—whereas that is not the case for England and Wales. Clause 10 simply requires a constable’s authority to take fingerprints and samples. I am simply trying to understand a little better why the Government are not seeking the additional safeguards for England and Wales that are provided in Scotland. I beg to move.

Lord West of Spithead: The provisions in Clauses 10, 11 and 12 intend to regularise police powers across the UK to take routinely, use, store and retain fingerprints and non-intimate samples of individuals subject to control orders.

To demand authorisation from an inspector or above in England, Wales and Northern Ireland would create an unnecessary difference between the current framework under PACE and that for control orders. The public consultation exercise on the review of PACE has clearly shown that the current framework works effectively. To introduce a further tier to that framework would cause confusion and place unnecessary demands on operational resources. Consequently, we do not believe that there should be an exceptional level of authorisation for the collection or use of fingerprints and non-intimate samples for individuals subject to control orders.

In the other place, the Minister of State for Security, Counter-Terrorism, Crime and Policing accepted there was a wider debate to be had about PACE, although he disagreed with the argument that the levels of authorisation should be raised as a result of that debate. But he emphasised that it is not appropriate to debate the wider issue of the levels of authorisation contained in PACE and PACE Northern Ireland in this specific, narrow context.

In Scotland, as I have said, under the 1995 Act the taking of some but not all samples requires the authorisation of an inspector or above. So, again to avoid the confusion that would be caused by having two different regimes for the taking of fingerprints in Scotland, Clause 11 mirrors those standard requirements for the taking of fingerprints or samples of individuals subject to a control order in Scotland.

On a more technical level, it is worth noting that if the intention of these amendments was to mirror Scotland, they are, on that basis, flawed too. First, authorisation from an inspector is required in Scotland in relation to only some, but not all, samples. Fingerprints are one of the samples that do not require inspector-level authorisation in Scotland. These amendments propose inspector-level authorisation for taking all fingerprints in England, Wales and Northern Ireland. Secondly,

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authorisation from an inspector is not needed in Scotland for a constable to require an individual to attend a police station to have samples taken; these amendments propose that there should be such authorisation in England, Wales and Northern Ireland.

In two respects, therefore, the amendments go beyond the position in Scotland. There is also a third technical point to note: the amendments are inconsistent in their impact on the operation of the powers in England, Wales and Northern Ireland. The amendments raise the level of authorisation required for the taking of fingerprints, but not for the taking of non-intimate samples. Thus, while the intention may have been to mirror the position in Scotland, it is only a slight simplification to say that in practice these amendments would mean that the position in England, Wales and Northern Ireland would be opposite to the position in Scotland.

I hope that explains the reasoning. In conclusion, for both principled and practical reasons, I disagree with the amendment.

Baroness Harris of Richmond: I am grateful to the Minister for clarifying that position. If the clause was intended to regularise issues, perhaps we should all have been in the same boat and not had a different provision for Scotland. However, I understand the differences that he has explained for me. I will not pursue this any further, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 16 not moved.]

Baroness Harris of Richmond moved Amendment No. 17:

17: Clause 10, page 7, line 22, leave out subsection (4)

The noble Baroness said: I shall speak also to Amendment No. 20. Clauses 10 and 12 deal with the power to take fingerprints and samples. I have great difficulties with Clause 10(4) and Clause 12(5), which deal with the retention of those samples, particularly their retention for purposes other than that for which they were originally taken. This is an area that these Benches have always challenged and I make no apologies for doing so yet again.

Two principles are in play in English law at the moment. Fingerprints are not retained after the event in the case of people who are not accused of any offence, but DNA samples are. Many people, as we have heard, have been critical of the fact that, irrespective of whether they have been released without charge or acquitted in a court, a group of people have had samples taken that are retained in a database. The rest of us who have never been arrested, charged or put before a court are not subject to that requirement—we do not have to give samples. The database, therefore, is made up of a skewed sample. It is illogical to have a database of those who have been found guilty of a crime and those who have expressly not been found guilty of a crime but who have their samples retained.

The issue is compounded when we are dealing with control orders, which we will move on to. Control orders are exceptional as a class of punishment. They

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are a punishment without findings of guilt—effectively, punishment on suspicion. They are a way of ensuring that people are not a danger as a pre-emptive measure, rather than post-charge and post-finding of guilt. Therefore, to retain fingerprints and samples from such a person, against whom no charges have been made or put and against whom no case has been proven, seems to be, at the very least, dubious. To do so after these samples have fulfilled the purposes for which they were taken is dubious in the extreme. We need to take great care to examine whether this measure is proportionate and appropriate and to examine the value that it will have. I beg to move.

Lord West of Spithead: This amendment was debated extensively in the other place and the Government’s position has not changed. The purpose of Clause 10 is to put the power to routinely take fingerprints and non-intimate samples of controlled individuals in England and Wales on an equivalent basis to the existing police powers in relation to fingerprints and non-intimate samples taken after arrest. Clauses 11 and 12 do the same for Scotland and Northern Ireland respectively.

The current procedures in England, Wales and Northern Ireland normally allow the retention of fingerprints and non-intimate samples after they have fulfilled the purposes for which they were taken. This will be under the provisions of PACE or PACE Northern Ireland, or the equivalent provisions in Schedule 8 to the Terrorism Act 2000, which also apply in Scotland.

We do not believe that fingerprints or non-intimate samples taken from controlled individuals should be subject to different rules in relation to their retention. First, we consider it appropriate that fingerprints and samples of controlled individuals should be retained on the same basis as samples taken from other individuals under PACE, PACE Northern Ireland or the Terrorism Act 2000, since controlled individuals are by definition suspected terrorists. It is worth reminding noble Lords that, under those provisions, fingerprints and samples of individuals are kept even if the individual is not charged.

Secondly, and related to that, the same safeguards and provisions apply as for other fingerprints or samples taken under PACE, PACE Northern Ireland or the Terrorism Act 2000. For example, the samples may be used only for certain defined purposes.

Thirdly, on a practical level, the retention of these fingerprints and samples may help the police and agencies with future criminal and terrorism investigations. By retaining controlled individuals’ fingerprints and non-intimate samples, we strengthen the ability of the police to prevent, detect and investigate such crime and terrorism and we increase the chances of the individuals responsible being prosecuted.

I hope that noble Lords support this, given the preference of everyone, particularly the Government, that we prosecute suspected terrorists rather than use a control order on them. Noble Lords will be well aware that there have been many successful prosecutions of serious criminal offences as a result of retaining samples that would previously have been destroyed.

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Lastly, we do not in any case think it appropriate to debate the wider issue of retention of fingerprints and samples contained in PACE, PACE Northern Ireland or the Terrorism Act 2000 generally in this specific narrow context. That does not mean that there is not a case for a wider debate, as we discussed earlier.

The Earl of Onslow: The noble Lord has now said several times that there is a need for a proper debate on this. Those of us who take a very dim view of the Government’s creeping practice would like to know when this debate is going to take place and if, as a result, there will be a proper received view of what should be done. Is there any likelihood of the Government doing anything about it or is the Minister just using the need for a debate as a defence for the present clauses in the Bill? As the noble Baroness just said, it is difficult to pin the Government down. This is a serious and growing problem, which is a danger to our liberties.

Lord West of Spithead: I am not able to come up with a date. I will take away a remit to look at this and see whether there is an intention to have a debate and when that would be. I am afraid that that is the best I can do.

Baroness Harris of Richmond: I am grateful for the support from the Conservative Benches. I thank the Minister for his response, which has been of a general nature. Perhaps much more debate is needed around the area of taking fingerprints and samples that are kept even if a person is not charged. The Minister said that the retention may help in future. I am sure that that is so, but a great many individuals would be caught in this net rather than the specific people for whom I think this legislation, which is to counter terrorism, is designed. The Bill is aimed not at people who are committing general or even serious crime but specifically at counterterrorism. I am grateful but again disappointed to hear the Minister’s response. At this stage, I beg leave to withdraw the amendment.

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