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Counter-Terrorism Bill

3.19 pm

Report received.

Clause 1 [Power to remove documents for examination]:

The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead) moved Amendment No. 1:

1: Clause 1, page 2, line 19, leave out subsection (4) and insert—

“( ) A constable has the same powers of seizure in relation to a document removed under this section as the constable would have if it had not been removed (and if anything discovered on examination after removal had been discovered without it having been removed).”

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The noble Lord said: My Lords, before I speak on the detail of Amendment No. 1, I draw noble Lords’ attention to the amendments which I tabled yesterday. These amendments deal with financial restrictions in relation to countries where money laundering, terrorist finance and the proliferation of weapons of mass destruction are a cause for concern. I apologise for tabling these amendments so late in the parliamentary process, but I hope that there will be ample time to debate and scrutinise them on day two of Report next Tuesday. My noble friend Lord Myners will deal with the detail of this issue in the Chamber next week. He has written to all Members who have taken part in the debate on the Bill so far, and he and his officials are happy to provide any further information that noble Lords may require in advance of that debate.

My approach to the Bill from the start has been to try to reach a compromise where possible on the various proposals. I have tried where possible to meet concerns expressed and to incorporate, where appropriate, all the excellent points made about the Bill, because it is important to deal with matters of national security consensually where at all possible. I have made compromises and adjustments where I could, and I am sure that as a result some of the provisions in the Bill will be in better shape when they leave the Chamber than when they came to it.

When I stand at the Dispatch Box, other Members of the House often ask me to remember that, although they might oppose something that the Government are doing, they have the welfare and safety of this nation just as much at heart as we do. I have always been very fulsome in my regard for that because I believe it to be true, but I also ask the House to remember that the Government are very interested in human rights and in looking after the freedom of individuals. That should also be acknowledged. We are not doing this to try to bear down on those things, and we do not take lightly some of the measures that we sometimes have to introduce. That is important to remember.

Amendment No. 1 is a small example of what we have done to compromise. During the debate on the provisions in Clauses 1 to 9 on the power to remove documents, a number of your Lordships expressed concern that Clause 1(4), although essential to the functioning of the power, could be drafted to be more readily understandable. At that point in the debate, I agreed to take the clause away and work with the parliamentary counsel to redraft the clause if at all possible.

Clause 1 is vital to the functioning of the power to remove documents, as it sets out the powers of seizure available to an officer after a document has been removed, examined and found to pass the threshold for seizure. Once a document is removed following the search of premises, the original seizure powers no longer apply because they exist only while the constable is actually on the premises. We therefore need a provision in the Bill to spell out that, where the reasonable belief test is met following examination of the document after it has been removed from the premises, a constable may indeed seize that document. That is what Clause 1(4) does.

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Should an officer exercise one of the search powers in Clause 1(1) and find a document which he is not sure reaches the threshold for seizure, the power in Clause 1 enables him to remove the document to the police station or another place so that it may be examined further. Once back at the police station, the document is examined further and the officer realises that it is of interest. That is when Clause 1(4) kicks in. Were we not to have such a provision, the officer would not be able to seize the document. Instead, as a result of Clause 1(4), the officer has the same powers of seizure as he would if the seizure threshold were crossed when he exercised the initial search power.

We have not changed the functioning of this clause from the one that appeared in Committee. Rather, following the concerns that noble Lords expressed during that debate, we have tried to redraft it to be much more understandable. I beg to move.

Baroness Hanham: My Lords, I thank the Minister for his explanation. As far as I can see, a pair of brackets has been inserted in the clause. It still is not brilliantly worded, but, no doubt, someone will understand it. If they do not, they will have to ask, because the Minister’s explanation is now on the record.

I also listened to his explanation on the proposed amendments to Clause 62 and onwards on money laundering. That will be handled by the noble Lord, Lord Kingsland, and I suspect that someone has written to him with an explanation of those clauses.

Baroness Miller of Chilthorne Domer: My Lords, we appreciate the Minister’s comments on his wish to work consensually. On 13 October, we felt that our role as opposition parties was treated very badly in the Home Secretary’s announcement. Throughout the conduct of this Bill through this place, the Minister has not given rise to any of those feelings and we are grateful for that. The fact that further concessions still are being made to make the Bill more reasonable and more workable is meaningful.

The Minister has referred to the large amendment to be introduced by the noble Lord, Lord Myners, and his department. We are already grateful that the Treasury has seen fit to concede that reports should be made to Parliament and has included that in its report following discussions with us. There may be further useful amendments, which we will discuss at the time. However, I have to put on record that it was pushing procedure to the limits to introduce something so large at such a late date. It is lucky that it will be debated next week and not this week.

Lord Thomas of Gresford: My Lords, perhaps I may add to what my noble friend has said on the Minister’s preamble. I give notice that we are particularly concerned at the rather extraordinary extension of jurisdiction in paragraphs 32 and 34 of the proposed new schedule, and the extraordinary time limits to be imposed under paragraph 35. I say that because the Minister did not indicate that anyone with a legal background would deal with this when it comes before us next week.

Lord Mackay of Clashfern: My Lords, I should like to express my appreciation for this amendment. It is a considerable improvement. Certainly, it does not in

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any sense alter the underlying idea behind the clause as it was originally drafted. Clarity of this kind is always to be appreciated.

Lord West of Spithead: My Lords, I thank the noble and learned Lord for his input. In response to the noble Baroness, Lady Hanham, as I understand it a note will go to the noble Lord, Lord Kingsland, and to the noble Baroness. I will make sure that that will happen. A very large body of amendments came out yesterday, which we will leave for one week, as is required. They did not come out until yesterday because I wanted to be absolutely certain that there was no other way to do this. It seemed to be a rather bad way of doing things, but I believe that there is a requirement for this to be done and that there seems to be no other way to achieve it. It took some time to work that out—over a weekend—and to be absolutely certain, for which I apologise. It will be debated next week and I hope that all noble Lords will have a chance to look at it and see the detail.

The Earl of Onslow: My Lords, I thank the noble Lord for his first remarks, which were generous and in stark contrast to those of the noble Lord, Lord Myners, on the previous Question—perhaps that is a bit unfair. I do not know whether this is possible, but Amendment No. 61A goes on for pages. Normally with legislation of this length one would have a Second Reading, Committee and Report stages, and a Third Reading. Would it be possible to recommit this new clause either on the same day or possibly a day earlier so that it can be considered through all the stages? Technically I believe that one can recommit certain parts of a Bill, and that it has been done before. I do not know what others think about that suggestion, but this is a very long addition to the Bill.

Lord West of Spithead: My Lords, I do not think that I can say we would do that. We have now given more than seven days for the amendment to be looked at and there is an opportunity for considerable discussion. Moreover, my noble friend Lord Myners is available to discuss these issues with any noble Lord who wishes to talk them through, and he will write. I realise that this is not ideal, but, as I have said, it is an important point. I believe most noble Lords agree that it needs to be done; it is really a question of how it is done. I think, therefore, we need to move forward in this way. Again, I apologise for the lateness, but I wanted to be absolutely certain that there was no other way of doing it, and that is why it has arrived like that.

On Question, amendment agreed to.

3.30 pm

Baroness Hanham moved Amendment No. 2:

2: Before Clause 14, insert the following new Clause—

“National guidelines on fingerprint and sample database

(1) The Secretary of State shall by regulations publish national guidelines for governmental agencies establishing—

(a) a procedure by which a person can request a statement of what information relating to fingerprints and samples is held on them or on a dependent;

(b) a procedure by which a person can request that such information held on them or a dependent is destroyed

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(c) the circumstances in which a request under paragraph (b) may be refused.

(2) If a request made under paragraph (1)(b) is refused under paragraph (1)(c), the relevant agency shall write to the person setting out why such information will not be destroyed and when such circumstances as prevent it being destroyed may no longer apply.

(3) In drawing up guidelines under subsection (1), the Secretary of State shall consult such bodies as he thinks appropriate.

(4) Regulations under subsection (1) shall not be made until a draft copy is laid before, and approved by resolution of, both Houses of Parliament.”

The noble Baroness said: My Lords, we had an interesting debate in Committee on the retention of samples such as fingerprints and DNA. The Minister kindly followed that up with a comprehensive letter which included a fact-sheet compiled for the police on the retention and use of such samples. As I indicated in Committee, I was not particularly reassured by the Minister’s answers, and therefore I return today with the second of the two amendments I tabled at that stage. The aim of this amendment is to try to spark a national debate about the retention of samples and to inform the public about what information is being held on them.

This amendment would require the Secretary of State to draft and lay before Parliament regulations governing the procedures by which people can discover what information is held about them and under what circumstances a request can be made by them to have samples taken during an investigation by the police destroyed. As we will see, there is no transparency in the current situation and the dice are severely loaded against innocent people being able to ensure that their most personal details are not kept indefinitely following their exclusion, either by a court or following a decision that there is no reason for them to be involved further in any inquiry. No one disputes the value of DNA and fingerprint information in identifying criminals and possibly terrorists, and that it has and will continue to make a useful contribution in pursuit of identifying and bringing to justice perpetrators of crime and terrorism. However, there is wide concern about the retention by the police of information on samples taken from a wide range of people during their inquiries which is then retained indefinitely on the police national computer. The provisions in this Bill add to those already in PACE 1984 and, as we now know, this legislation can be used to justify action over a wider range than counterterrorism purposes.

Few innocent people will resent helping the police by giving samples whether they are innocent at the time or subsequently found to be, but they question, as we do, the justification for their personal identification material being held and for it to be difficult to find out how they can have it removed from the police national computer. There is an additional factor in that such information can now be transferred to other EU countries. The general assumption in those countries is that anyone whose details are held on the database is guilty or at least suspected of being associated with crime. Transparency is needed.

The Minister was kind enough to identify where the current guidelines on the retention of DNA are set out, but their title, “Retention guidelines for nominal

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records on the police national computer”, has clearly not been chosen with transparency in mind. However titled, they certainly did not pop up in a sample search of the internet; rather, they appeared on the website of the Association of Chief Police Officers and are, apparently, only for the guidance of the police. Members of the public would find it extraordinarily hard to make any headway through this maze.

The guidelines are deeply worrying and make clear just how high a barrier the Government have imposed on DNA and fingerprint information ever being destroyed. The initial response to a request for destruction is an automatic refusal. The guidelines state:

“In the first instance applicants should be sent a letter informing them that the samples and the associated PNC record are lawfully held and that their request for deletion/destruction is refused”.

But the chief police officer is then recommended to check with the DNA and Fingerprint Retention Project if the applicant persists.

Appendix 2 makes it clear that, while the chief police officers have the discretion to authorise deletion of any specific data, it is,

It then goes on to say:

“Exceptional cases will by definition be rare”.

Indeed they will be rare, for the case study given of when DNA information might be suitable for destruction is almost laughable. It is that if the police arrest every occupant of a building for murder following the discovery of a dead body and forcibly take DNA samples, but then discover that the dead body in fact died of natural causes and that no crime has been committed. That is then considered sufficiently a case where, possibly, DNA samples—taken from entirely innocent people—might be destroyed. The number of similar cases will not be enormous.

In responding to similar amendments in Committee on 9 October 2008, at col. 384 of Hansard, the Minister prayed in aid to his conclusion that the retention of all samples taken helped identification in other criminal inquiries that some 8,500 individuals had been matched—he did not say in what timescale—with DNA taken from crime scenes involving some 14,000 offences which, he said, included more than 100 murders and attempted murders, 116 rapes, 68 other sexual offences and a number of other serious crimes.

A briefing from GeneWatch in June this year drew attention to these or similar figures raised in a speech by the Prime Minister. It asked where the figures came from and pointed out that DNA matches are not successful prosecutions and that many matches occur with the DNA of individuals who are not perpetrators of crime. Only some matches, known as DNA detections, lead to someone being prosecuted for a crime and,

The first annual report in April of this year of the Ethics Group of the National DNA Database, a body set up by the Government, made 11 recommendations. They are all important but I shall not worry the House with them. However, for today’s purposes I shall draw attention to four of them as they are laid out in the report. Recommendation B states:

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“For those members of the public who are believed to be innocent at the time of sampling and voluntarily donate their DNA to help the police with their enquiries, the presumption should shift to an expectation that these samples will be used only for the case under investigation, that the profile will not be loaded onto the NDNAD, and that the samples and all data derived from them will be destroyed when the case has ended”.

Recommendation C says:

“There should be a specific consent form for competent adults who are not suspected of the crime under investigation when they agree to give a volunteer DNA sample”.

Recommendation G is:

“A clearer, simpler and less cumbersome process needs to be put in place to enable those who wish to appeal against the decision of a chief constable to retain their DNA profile on the NDNAD”,

the National DNA Database. Recommendation I states:

“Consideration should be given to further public clarification of the role of the NDNAD and reinforcement of the message that it is intended only to be used for criminal intelligence”.

The Minister agreed during Committee that a debate surrounding all this was needed. We believe that our amendments today would give that opportunity. Regulations laying out the guidelines on the whys, wherefores and means of DNA and other samples being either retained on or removed from the police national computer that are clear, explicit and user-friendly are long overdue. Changes to the whole system during the passage of the Criminal Justice Act in 2001, which turned the assumption of the destruction of DNA at the end of a case into the assumption of retention, upset the presumption of innocence. The balance at present is not in favour of the innocent.

Endless justifications may be put forward by those who believe that the current use of the database is too restricted and should be widened into one that is universal. However, it is perhaps now time to listen to the voices of those in favour of the current situation, and of those who are frankly appalled by the possibility of having their identifying materials held indefinitely by the police, and, with their aid, come to a balanced judgment. The Government’s justification for their current policy needs to be properly scrutinised. I beg to move.

Baroness Miller of Chilthorne Domer: My Lords, we supported this amendment in Committee when the noble Baroness, Lady Hanham, made an outstanding case for why the Government should listen seriously to the amendment. She has made an even stronger case today for this amendment, which we will support. It is a moderate amendment; it requires nothing other than national guidelines on the issue. That is why it is particularly surprising to us on these Benches that the Government have not felt able to move in the direction of issuing such guidelines and including this sensible amendment in the Bill.

The noble Baroness has laid out eloquently why it needs to be done. I simply add that the increase in fingerprints and DNA taken from innocent individuals, from people volunteering after a crime has been committed, has been extraordinary over the past decade. The Government must recognise that, to keep public confidence in the system, continue to protect the innocent and, as the noble Baroness said, work on the presumption of innocence, the very least they could do is accept this moderate amendment.

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Viscount Bledisloe: My Lords, I confess that I am puzzled by what the noble Baroness, Lady Hanham, said. I quite understand that if I give my DNA voluntarily to eliminate me because I was in the house, so that no one suspects me, I should be entitled to have it destroyed. As I read it, however, proposed new subsection (2) is an absolute obligation to destroy all DNA unless you give a reason to the contrary. The noble Baroness shakes her head, but the amendment states:

“If a request ... is refused ... the relevant agency shall write to the person setting out why such information will not be destroyed”.

As I understand it, that would apply to any request, including that made by a suspect who had not yet been charged because the police had not concluded their investigations—albeit that they had perhaps had to let them go to sleep until more information came out—and not by any means to the innocent or non-charged person to whom she referred. That seems very worrying.

3.45 pm

Lord West of Spithead: My Lords, the inclusion of DNA profiles on the National DNA Database and the retention of fingerprints do not indicate either innocence or guilt. These databases are used by the police to provide intelligence leads on the possible identity of the offender by matching the DNA taken from a person with the DNA at or collected from the scene of a crime.

We are legislating in Clauses 14 to 18, first, to put a counterterrorism DNA database on a firmer legal footing; secondly, to allow 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, thirdly, to make it easier to allow fingerprints or samples taken under the Terrorism Act 2000 to be placed on the National DNA Database.

The amendment would require the publication of national guidelines by the Secretary of State on the operation of the National DNA Database and ultimately the counterterrorism DNA database to which Clauses 14 to 18 refer. The guidance would include a procedure for requesting information held on the database and for requesting the destruction of any information held. I shall resist the amendment as such procedures already exist with regard to samples held on the National DNA Database. I shall set out my reasons for this first, before explaining why I resist the amendment, with reference to samples held on the counterterrorism sample database. I hope that it will illustrate some of the transparency referred to in the debate.

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