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Amendment, by leave, withdrawn.
On Question, Whether Clause 10 shall stand part of the Bill?
Baroness Harris of Richmond: Clause 10 deals with the taking of fingerprints and non-intimate samples from those subject to control orders. As my noble friend Lady Miller of Chilthorne Domer said on Amendment No. 14, these are people who have not been through a process of law.
The need to legislate specifically to allow fingerprints and DNA to be taken from those on control orders underlines fundamental problems of process. One consequence of creating a quasi-judicial system outside criminal law is that the normal procedural and ancillary policing powers associated with the criminal process do not apply. Anyone arrested for recordable offences, which include offences as trivial as begging, can currently have their DNA taken and permanently retained, even if they are not convicted or even charged. The result is a policy anomaly where allegations of involvement in terrorism—criminality of the highest order, as has been pointed out—through the control order system mean that the police are unable to use powers that are available as a matter of course when investigating suspicion of much lower-level criminality.
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We do not have any concerns about the police having the power to take the DNA of those properly arrested on suspicion of committing terrorist offences; that power already exists. However, we are concerned about the proposal to allow DNA samples to be taken from those subject to civil law rather than criminal law proceedings. We hope that the Minister will seriously consider the suggestions that we have made in our previous two sets of amendments, which would go some way towards allaying our concerns. I recognise that the Minister has spoken at great length on this area. This is the last chance, at this stage, to deal with it.
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Lord West of Spithead: Currently PACE makes no specific provision for individuals subject to control orders, so such persons are not subject to the same powers and safeguards for the collection and use of fingerprints and non-intimate samples as those who are arrested in connection with a criminal offence. This clause will provide the same powers to the police as well as, importantly, the same level of safeguards to those subject to control orders.
The PACE framework of powers and safeguards is both well established and highly regarded. As such, it provides the most appropriate and obvious structure in which to include provision for the taking of fingerprints and non-intimate samples from controlled individuals.
Control orders are an important tool—just one of many—in our fight against terrorism. Since their introduction in the Prevention of Terrorism Act 2005, they have helped to manage the risk posed to the public by the small number of suspected terrorists whom we can neither prosecute nor deport. Without some disruption of their terrorism-related activity, I have no doubt that these individuals would be free to continue to facilitate or execute acts of terrorism. That is a risk that the Government are not prepared to take.
We are committed to introducing measures that increase our effectiveness in disrupting, preventing and restricting terrorism-related activity, including in relation to control orders, and assist in more general criminal investigations and prevention purposes. Clause 10 will help to deliver this. This clause applies in England and Wales only; similar powers for Scotland and Northern Ireland are in Clauses 11 and 12.
Fingerprints and non-intimate samples can already be taken from individuals subject to control orders if it is necessary and proportionate to do so by including an obligation to this effect in the control order. However, this will be for very limited purposes connected with monitoring compliance of the order. The purpose of the clause is to provide equivalent powers and safeguards in relation to individuals subject to control orders as currently apply when arrests are made under PACE.
By definition, individuals subject to control orders are suspected terrorists. Such individuals should be subject to equivalent powers and safeguards for the routine taking, use, storage and retention of fingerprints and samples as currently apply when arrests are made under PACE. This clause delivers that. It provides the police with a routine power to take fingerprints and samples from controlled individuals, allowing the police
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Crucially, the clause also ensures that the same safeguards apply; for example, the samples may be used only for certain defined purposes and a constable is required to inform the individual concerned of the reason for taking the fingerprints or sample without consent before they can be taken. Moreover, the measures set out in the clause will also help in the investigation of criminal activity. By taking and retaining criminals’ fingerprints and samples, we strengthen the ability of the police to prevent, detect and investigate crime and increase the chances of such individuals being prosecuted. As a result, these powers may help to get suspected terrorists off control orders and into the Government’s preferred route of prosecution, which I know this Chamber supports. Noble Lords will be well aware that, in general terms, there have been many successful prosecutions of serious criminal offences—I have mentioned the numbers—as a result of retaining samples that in the past would have been destroyed.
This is a minor, proportionate amendment to existing PACE powers that will better enable the Government to manage the risk posed to the public by suspected terrorists—we are talking about 16 at the moment. Without these powers, the police would not be able routinely to take, use, store or retain fingerprints and samples of individuals who are suspected of facilitating or executing acts of terrorism and are on a control order but whom we have not been able to arrest or charge. Putting the new powers on an equivalent basis and in the same legislation as existing police powers in relation to fingerprints and samples ensures that the same procedures and safeguards apply.
Baroness Harris of Richmond: I again thank the Minister for his considered response, which is exactly what I expected. As we have gone through Clause 10, it has felt as though we have been flogging a dead horse. Nevertheless, I have great concerns, which have been echoed across the Committee. The Minister referred to the powers as being “minor” and “proportionate”; they are anything but, and we may come back to them on Report.
Earl Ferrers: Perhaps the Minister will clarify something. I apologise for not having taken part in this debate previously, but I have followed the anxieties about the clause that have been expressed in newspapers. I cannot quite see what all the fuss is about. As I understand it, if a person is thought to have committed an offence, he can have his DNA and other samples taken. The argument is whether the police should be allowed to keep it. The Government interfere horribly and far too much with all our private lives and this is a very sensitive issue. However, if the police keep a person’s DNA, what does that matter unless they subsequently commit a crime? If they commit a crime, whether it is a terrorist crime or whatever, the DNA is available to help to find them. If they have not committed
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Lord West of Spithead: I am delighted that the noble Earl has made that point. When we have our wider debate about DNA, it will be absolutely valid. I am sure that the parents and loved ones of the many people who have been murdered and raped, with the perpetrators found only because of DNA, would argue exactly the same. However, I am equally aware of all the other arguments to do with civil liberties. We need a much broader debate, because there are many different perspectives. I accept exactly what the noble Earl has said, but there are other sides to the argument and we need that broader debate. However, I could not agree more with some of what he said.
Clause 12 [Power to take fingerprints and samples: Northern Ireland]:
[Amendments Nos. 18 to 20 not moved.]
Clause 18 [Material not subject to existing statutory restrictions]:
Baroness Miller of Chilthorne Domer moved Amendment No. 21:
The noble Baroness said: This subsection allows a law enforcement authority to use information not held subject to existing statutory restrictions in the prevention or the detection of a crime. It applies even if the act is not an offence under UK jurisdiction, if it is a criminal offence in another country. That would seem to allow for some odd investigations, for example, in the case of adultery or alcohol consumption, which are illegal in certain Middle Eastern states. Will the Minister help me by giving some examples of situations where information not held subject to existing statutory restrictions might be used in the investigation of an act that is a crime in another country, but not in the United Kingdom?
Why does this subsection not refer to criminal offences which correspond to a crime under the law of part of the UK, as the Bill does elsewhere? It deals with information that has been obtained and held by unusual means. It may often be sensitive information. We have tabled the amendment to ensure that the information can only be used in a responsible way which corresponds to laws passed in the UK. At this stage it is a probing amendment, but how probing it is depends rather on the Minister’s reply. I beg to move.
Baroness Hanham: This is another section of the Bill that causes a certain queasiness. It is only right that the amendment should have been moved. I very much support the fact that it has been. There is a recent case of somebody having been arrested under an EU warrant for a crime which is not a crime in this country.
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We are talking under this Bill, as far as I understand it, about counterterrorism. However, the wording of these clauses would throw this far wider than anything to do with counterterrorism. This would be a criminal offence far beyond counterterrorism. If we are not careful we jeopardise the safety of our own residents and our own people if we are going to help in the prosecution of a crime committed or potentially committed elsewhere that is not a crime in this country. It depends on the level, but it is a slippery slope. I support the inquiry within the amendment and look forward to the Minister’s reply.
Lord West of Spithead: The provisions on the retention and use of fingerprints and samples have three objectives: first, putting a counterterrorism DNA database on a firmer legal footing; secondly, allowing such samples taken under the Police and Criminal Evidence Act and the Police and Criminal Evidence (Northern Ireland) Order to be used for national security; and, thirdly, making it easier to allow fingerprints or samples taken under the Terrorism Act to be placed on the National DNA Database.
Clause 18 puts DNA and fingerprint material that is not currently subject to statutory restrictions on a statutory footing permitting law enforcement use for certain purposes. This material includes samples obtained covertly under Part III of the Police Act 1997 and Part II of the Regulation of Investigatory Powers Act 2000. For example, under the Police Act, a warrant may give the police the power to enter someone's home and take away some property in order to obtain a sample. RIPA authorises both covert surveillance and the use of covert human intelligence sources. Unlike the Police Act it does not allow the interference with property.
However, during surveillance, a DNA sample may be lawfully obtained from property without the type of warrant in the Police Act. A good example of this might be where a person under surveillance discards a cigarette or a drinks container. The discarded cigarette or drinks container can be collected covertly and a sample taken. Or, should a covert human intelligence source be used, the person under surveillance could visit the source’s house and the sample could be taken from a tea-cup. It also includes material supplied by another law enforcement authority which, by virtue of Clause 18(5), includes both domestic and foreign law enforcement authorities—for example, the French police.
Finally, the provision applies to samples otherwise lawfully obtained in the interests of national security for the prevention/detection of crime, the investigation of an offence, the conduct of a prosecution or for purposes related to the identification of a deceased. Such latter material might include material obtained during a criminal investigation other than through the exercise of covert powers—for example, during a search, from a crime scene or lawfully provided by a body other than another law enforcement authority, perhaps from the intelligence services of another state.
DNA and fingerprint material obtained in this way will form the material that is stored by the Met on the CT DNA database. The principal purpose of Clause 18 is therefore to provide a firm legal base for this database.
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These amendments to Clause 18 seek clarification on the samples against which DNA and fingerprint samples obtained through legal covert surveillance can be checked. The amendments seek to prevent DNA samples and/or prints lawfully held by a law enforcement authority being used for the purpose of preventing or detecting a criminal offence under the law of a country outside the UK.
The terrorist threat requires both national and transnational, multi-agency co-operation. It is important that we are able to share our data with national and international partners so that we can properly protect our national security.
3.30 pm
Clause 18(4), to which these amendments apply, defines “crime” as,
- “a criminal offence ... under the law of ... the United Kingdom or of a country or territory outside the United Kingdom”.
The effect is that covertly acquired samples can be checked against other samples for, among other things, the purposes of a criminal investigation in the United Kingdom. Additionally, our covertly obtained samples can be checked against other samples, including those held by a foreign Government or agency, for the purposes of, among other things, a criminal investigation in a foreign country—terrorist training, for example.
We are resisting these amendments because there is a real need to share this data internationally, especially where terrorism is concerned, and there are appropriate safeguards in place. For example, we may have obtained samples during a covert operation of a group of individuals we believe to be involved in terrorism. Some time later, a sample may be found overseas by a partner agency that arrests an individual at a terrorist training camp. Clause 18, unamended, allows us to check the samples we hold, which are not subject to statutory provisions, with samples held overseas. The clear benefit of such comparisons is that we can build up a much better picture of the dynamics within complex terrorist networks which span the globe. This is currently crucial to counter the threat that we face. Being able to build up this clear picture is of great and tangible benefit to our national security.
There are 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 Metropolitan Police Service 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.
Noble Lords will be reassured to know that this definition of crime is already included in
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Baroness Miller of Chilthorne Domer: The Minister’s detailed reply was a lot more reasonable, and sounded much better, than what is actually in the Bill. He consistently referred to terrorism and associated acts that might lead to terrorism, such as training camps. In fact, however, the subsection I seek to amend just refers to a “criminal offence”, which is of course much wider. My question in moving the amendment was why the subsection does not refer, as the Bill does elsewhere, to criminal offences which at least correspond to crime under UK law. Even if he cannot do so now, can the Minister give me some examples of situations where information might be held involving an individual committing a crime in a country where it was a crime—the consumption of alcohol, for example, which is certainly not a crime here?
However, the bigger issue is that the Bill refers to criminal offences and the Minister’s reply was to do with crimes of terrorism. If the subsection said that, we would have far fewer worries about it. There would then be an international understanding of what sort of crime we were talking about. The subsection is drafted very widely; perhaps we could have a discussion about that between now and Report to see if there is room for movement. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19 [Disclosure and the intelligence services]:
Baroness Miller of Chilthorne Domer moved Amendment No. 23:
23: Clause 19, page 15, line 4, at beginning insert “At the request of the intelligence services for specific information,”
The noble Baroness said: Clause 19 permits people to disclose information to the intelligence services to further the exercise of their functions. This probing amendment seeks to discover whether the Minister envisages that the intelligence services will request specific information in response to a particular threat, or whether they will request the systematic release of general information.
The clause seems to allow the routine release of information en masse on the understanding that it might be relevant to the functioning of the intelligence services. This information dumping is unreasonable. Therefore, the amendment suggests that targeted information only should be released, not broad swathes of data which the intelligence services may process just in case they might be relevant. I beg to move.
Baroness Hanham: This picks up the Chinese wall aspect that we discussed about whether information collected during a search, which may bear no relation to the offence being investigated, can be passed to other people. I suggest that the thrust of the amendment
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Lord West of Spithead: I think I understand where the noble Baroness is coming from. However, I do not think that the amendment would achieve her objective. It seeks to insert:
“At the request of the intelligence services for specific information”.
We believe that would remove the certainty of those individuals who think they know something that they should tell the intelligence services, to enable the latter to do their job, that they can do so in the knowledge that they are acting lawfully. While they could still do so, relying on common-law principles, it is illogical to create a disparity between those being asked by one of the services and those wishing to volunteer, without being asked, information to one of the services. I believe this amendment would create such a disparity. This could lead to the interesting game of someone telephoning the MI5 information number and saying, “I have some information that I want to tell you but I'd be most grateful if you could keep asking me for different specific pieces of information and I'll let you know when you've asked the right question”. The intelligence services would not know what to ask for.
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