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Amendment 111

Moved by Lord Avebury

111: After Clause 48, insert the following new Clause—

“Fingerprints and samples taken under port and border controls powers

(1) The Terrorism Act 2000 (c. 11) is amended as follows.

(2) In paragraph 14(2) of Schedule 8, for “The fingerprints” substitute “Subject to sub-paragraph (2B), the fingerprints”.

(3) In paragraph 14 of Schedule 8, after sub-paragraph (2A) insert—

“(2B) Fingerprints or samples taken from a person detained under Schedule 7 must be destroyed within one month after the date on which the fingerprints or samples were taken, unless the person has given his or her written consent to retain the fingerprints or samples beyond this period.

(2C) Sub-paragraph (2B) does not apply to fingerprints or non-intimate samples taken under paragraph 10(4)(b).””

Lord Avebury: On Friday 31 October, I had a telephone call from Mr Yousif al-Khoei, the distinguished head of the al-Khoei Foundation, which is a Shia charitable and religious organisation in north London, about the detention of a British imam who had arrived earlier that day at Heathrow Terminal 1 on a flight from Damascus. I spoke to immigration officials at Terminal 1 three times—the third time, to the chief immigration officer—and was told on each occasion that no British citizen was being detained, although on the third occasion I was asked whether I might have been talking about somebody with a slightly different name.

Finally, the helpful immigration duty officer to whom I spoke at about 2030 told me that the imam had been arrested on the landed side of immigration control, and was under investigation by the Special Branch. She got the senior Special Branch officer on duty at Terminal 1 to ring me at my request, and he confirmed that the imam, Mr A, had indeed been detained for questioning, that he had been fingerprinted and had a saliva DNA sample taken, and that he had then been released after something like two hours. A minicab sent by his wife to fetch him from the airport was waiting all that time. The numerous questions asked during the interview, I subsequently discovered from Mr A, mainly concerned the reasons for his frequent visits to places such as Syria and Kuwait, and he answered that he attended religious conferences and meetings in those countries.

Later, Mr A sent me a copy of the notice that was served on him under the Terrorism Act 2000, a copy of which I have passed to the Minister, explaining that the requirement to be questioned did not necessarily mean that the examining officer suspected him of being concerned with acts of terrorism, but was in order to enable the officer to discover whether he was such a person. The notice required him to give the officer any documents of a kind specified and said that the officer had the power to examine his luggage and to detain anything, including a document which the search revealed. The notice said nothing at all about Mr A’s duty to give biometric samples; so, as my first question, is an examining officer supposed to notify the person separately of the intended taking of samples? If he is not, why is that not referred to in the main notice of examination served on a person at the airport under the 2000 Act?

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Following that incident, I looked up Schedule 7 to the Terrorism Act 2000, which quite properly gives the examining officer power to stop a person at a port in the border area, to question the passenger, to search him and his luggage and to detain any item of his property, while Schedule 8 provides that an “authorised person” may detain the passenger being examined. However, the taking of fingerprints and biometric samples is regulated by a different statute, the Police and Criminal Evidence Act 1984. It appears that the power to demand these samples does not even require that the examining officer suspects that the person has committed a criminal offence. In the case of Mr A, he was being examined not as a suspect but, as I explained, to determine whether he was a suspect. Nothing said in the course of the interview would have given the officer reason to suspect that he had committed any terrorist offence. Can the Minister confirm that the power to demand samples from a person being interviewed for this reason under the 2000 Act does not rely on any evidence that the person has committed such an offence?

It appears, further, that under Section 64 of the 1984 Act as amended, fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken. In the case of Mr A, the Special Branch told me that the samples were to be retained indefinitely. Although I got no elucidation of the purposes, I imagine that the idea is to build up a vast database of samples, which can be compared at later dates with biometric information obtained from crime scenes, whether terrorist or of any other kind. As of four months ago, I understand that there were 5 million samples on the National DNA Database, of which something like 850,000 related to persons either subsequently acquitted or not charged with any offence at all.

On December 4 the European Court of Human Rights, in the case of S and Marper, ruled that the indefinite retention of biometric samples from innocent persons was a violation of Article 8 of the ECHR, on the right to respect for personal and family life. I wrote to the Secretary of State the following day, referring to the case of Mr A, drawing attention to the judgment and asking her to make a statement that she intended to destroy the samples of persons who were acquitted or not charged with any offence. In a reply dated 14 January, Mr Vernon Coaker, the Minister of State, said that the Government were considering the implications of the judgment and would agree with the Council of Ministers on how to implement it. For the time being, the law on the taking and retention of DNA samples and fingerprints would remain in place. I noted from an Answer that the Secretary of State gave to my honourable friend Mr Chris Huhne on January 14 that among the profiles on the database were 137,000 relating to children under 16 and that she had taken steps to have removed those that related to children who were under 10.

6.30 pm

The Government have now had three months to consider the S and Marper judgment and consult the European Council of Ministers. Can they give us an update on the number of profiles now held and on

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how many of them are of people either acquitted or not subsequently charged? Or are they continuing to collect and retain samples, and how many have been taken since the date of the judgment, 4 December? Will they now say what consultation they have had with the Council of Ministers and issue a detailed statement on the steps that they are taking to bring us back into compliance with Article 8? Have they suggested any other means of achieving this than the destruction of innocent people’s samples?

Everybody accepts and recognises the importance of combating terrorism, but if the Government think that it is necessary to sacrifice human rights for this purpose, we have to disagree. It is our human rights and the rule of law that we are defending against the terrorists. A society in which everyone’s personal data are kept on record just in case they may commit a crime in the future is not our vision of the future of this country. I beg to move.

Baroness Hanham: The new clause gives us an opportunity to open up the question of the retention of biometric substances, fingerprinting falling within that, and I share the concerns of the noble Lord, Lord Avebury, about the fact that we have not yet responded to the European directive. I think that an order is coming up in the very near future, which I hope will indicate that we are about to take some suitable action.

This clause relates to the fingerprinting of foreign criminals liable to automatic deportation. I want to ask the Minister, first, the reason for taking those fingerprints. I presume that it has something to do with stopping them coming back in. Secondly, how long is automatic deportation taking? We all know that a number of criminals are waiting to go. We are foxed at every turn, it seems, by the legal system. If their fingerprints have been taken and are still within our purview and control, I am not sure about the relevance of the fingerprinting to which the clause refers. Perhaps the Minister would be kind enough to tell us what is going on.

Baroness Miller of Chilthorne Domer: I had the great privilege yesterday to visit the National DNA Database at Hendon and spent a very informative morning. I learnt that there are instances when it is extremely useful to have on file the DNA records of people convicted of a criminal offence. Some detail was gone into about exactly how they were used. However, in the instance that my noble friend talked about, where an innocent person’s records were taken and stored—it could apply to anybody coming through immigration—what provision have the Government made in the design of the database and the way that it operates for the deletion of innocent people’s material. We know that it is very difficult: you have to go to the chief constable and get special agreement from him, which almost never happens. Is the database in any way designed so that deletion can take place without it being an incredibly time-consuming and expensive process? In the light of the European ruling, should not the Government be thinking about that urgently?

Lord West of Spithead: While I appreciate the thrust of the inquiry of the noble Lord, Lord Avebury, about the status of Schedule 8 to the Terrorism Act following

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the judgment in the case of S and Marper, I should be clear that I believe that the amendment would compromise the UK’s security.

As the noble Lord noted, my honourable friend the Minister for Policing has written to him explaining the Government’s view on the case of Mr A. I believe that that reply still stands in this case. If it might be helpful to the noble Baroness, Lady Hanham, I would be very happy for her to see a copy of that letter, which explains the detail behind that case.

As noble Lords may be aware, in the light of the judgment of the European Court of Human Rights on 4 December 2008 in the case of S and Marper, we are now considering how to implement it in a way which recognises the value of fingerprints and DNA data in protecting the public. A key part of the implementation process will be to engage in a public consultation on how best to bring the judgment into effect. Progress on implementation of the judgment is subject to review by the Council of Europe’s Committee of Ministers, and the Government have submitted a report for the committee’s next meeting on 19 March. The judgment recognises that other jurisdictions do not apply a “blanket” destruction policy to biometric data of those arrested and not convicted, but indicates that there is a need for a retention policy to reflect the fact that they were not ultimately convicted.

As the Home Secretary explained in her speech to the Intellect trade association on 16 December, the Government will publish a forensics White Paper later this year. Included in it will be the Government’s proposed response to the S and Marper judgment. There are clauses in the Policing and Crime Bill which are intended to allow for regulations to be made which set out the detailed provisions on the retention of fingerprint and DNA data. The contents of the consultation paper and the outcome of that process will inform the content of the regulations to be submitted to Parliament.

The ability for police Special Branch officers to take fingerprints and samples at ports of entry has become an increasingly important tool in countering the activities of known or suspected terrorists. We would not wish to undermine the thrust of policy in relation to the strengthening of border controls—through, for example, biometric visas—by weakening this specifically counterterrorism measure. It would not send the right message to those who pose a threat to the UK or reassure the public at large.

In 2006, the independent reviewer of terrorism legislation, the noble Lord, Lord Carlile, wrote to the then Home Secretary following a meeting with operational counterterrorism police officers. The noble Lord endorsed the use of fingerprints taken at ports, under Schedules 7 and 8 to the Terrorism Act, and considered them to be of potentially considerable value in the investigation and intelligence-gathering work of the police at ports.

In the context of international travel, it is not unusual for individuals to enter or leave the United Kingdom for periods exceeding one month. It is obvious that the value of the police checking and capturing fingerprints at a port and holding them for a month in the context of a long-term visit or period of study is limited for counterterrorism purposes while the suspect

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remains in the UK beyond one month. Furthermore, should information be received from, for example, abroad, the police’s efforts to identify a suspect who may be involved in terrorism, or perhaps locate how he left and entered the country, would be undermined dramatically if fingerprints had to be removed from records.

Without wishing to prejudge the outcome of the Marper consultation, our view is that restricting the retention period to the extent that the amendment proposes would severely hinder the authorities’ efforts to counter and investigate terrorism and the movements of suspected terrorists, and, potentially, remove a hindrance on terrorist activity provided by the examination powers in Schedules 7 and 8. However, we will of course revisit all those issues as part of our consultation.

The noble Baroness, Lady Hanham, asked about the reasons for taking fingerprints. The proposed power to take fingerprints allows us to get fingerprints and fix the identity of the individual whom we have put in prison for crimes in the UK and whom we wish to remove from the UK. Then we have a record when he tries to come back into the country. That is the reason for the specific measure in the Bill. Those individuals whom we seek to remove are those who have been sentenced to up to 12 months in prison and are eligible for automatic deportation under the UK Borders Act 2007.

The amendment in Clause 48 is a very minor amendment to the UK Border Agency’s existing powers. I hope that that provides an answer to why we are taking fingerprints.

On the specific amendment—and bearing in mind that a consultation is ongoing—I hope the noble Lord will await the Government’s wider response to S and Marper, as committed to by the Home Secretary. I ask the noble Lord to withdraw his amendment.

Baroness Hanham: Consultations, consultations, consultations—but it depends who you consult. Will we at some stage be able to know who is being consulted? The people who tend to get left out of consultation are those who live in this country—the inhabitants. There is always consultation with lots of organisations, but it looks as though the ordinary man in the street, who at the moment, if you tested him, would think that the whole thing of DNA and fingerprints was totally alien, may not get consulted. Will the Minister assure us that he will be?

Lord West of Spithead: Perhaps I can get back in writing on exactly who will be consulted. I do not necessarily share the noble Baroness’s view; the average man in the street often sees DNA as rather important, particularly in a case such as the one the other day when someone was found guilty of rape and killing a girl some years ago. The matter is not as clear-cut as might be said. DNA is an extremely useful tool and I do not think that the average man in the street necessarily is against it. However, this is a highly complex area, which merits much further debate. I have been told by my Box that there will be public consultation.

Lord Avebury: We are not arguing here about whether it is right to take fingerprints or DNA samples; that is taken for granted nowadays, but people are concerned

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about the extent to which these samples are stored on the national database. I believe that our system has more personal profiles on it than any other country in Europe, but that may be effective in enabling us to catch criminals. It is not the principle of taking samples in the first instance that we are discussing here but the indefinite retention of samples from innocent persons. I am most grateful to the noble Baroness, Lady Hanham, and my noble friend Lady Miller for their support for that principle.

With respect, the letter from Vernon Coaker did not explain the detail. He went into the question only of how a person could be detained under Schedule 7 to the Terrorism Act; he did not explain how Section 64 of the 1984 Act allows the samples to be taken and retained indefinitely. That is the point of the amendment.

I am very glad to hear that the Government are considering how to implement the S and Marper judgment. Is there any time limit for that process in the ECHR? It was on 4 December last that the judgment was issued, and I am certain that the Council of Ministers would not be happy about an indefinite extension of the time within which the Government must comply with the judgment. They say that they are exploring this by means of a public consultation. I was not aware of that, to be quite honest, and I would be grateful if the Minister could place details of the public consultation either on the Home Office website or in the Library of your Lordships' House so that we can all engage in the discussion.

Lord West of Spithead: I shall certainly ensure that we put those details on the website. I hope that we can put some sensible timescales to it as well. I shall see if that can be done.

6.45 pm

Lord Avebury: I am most grateful for that. Could the report that was submitted to the Council of Ministers—this month, I think the Minister said—also be placed in the Library? We want to know what the Government’s interim thinking is. I take it that the consultation and the report to the Council of Ministers are not being undertaken in a vacuum and that Ministers have certain ideas on what should be done to implement the S and Marper judgment. I am just curious to know, if the Minister can tell us this afternoon, what conceivable way there can be of implementing the judgment other than by the destruction of the samples.

Obviously, one realises that in the first instance, when the samples are taken, you do not know whether the individual will be charged with an offence. But since the purpose of the Schedule 7 interrogation at the airport is to ascertain whether a person is a suspect or not, one would think that the information then obtained would enable the police—and, in particular, special branch—to determine that, and thereupon either to destroy the samples or to pass them to the prosecuting authorities, which will issue a summons for the offence in question. If neither of those things happens and, after two years, let us say, the samples have not been used to incriminate the person on any other offence that may have been committed in the mean time, by a

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comparison of the DNA or fingerprint samples, surely it would be time to destroy them. Could the Minister give some assurance at least that he is not intending to maintain the indefinite retention of the samples? That would be a step in the right direction.

Lord West of Spithead: The position on timing is that there will be a paper before the summer with draft regulations, which will go before Parliament by the end of this year, and this stuff will be put on the website. I see no reason why the response to the European court should not be seen as well. I will probably get into trouble for saying that, but I see no reason at all why it cannot be made available, so I shall ensure that that is done.

The issue is not as straightforward as one might think. The judgment was complex in some ways, and I do not think really that it would do much good for me to go into some of the detail of it now, although I have a huge page of speaking notes with all the complexities of it. We are looking at this matter, and there will be consultation. We are going back to the court about this. Clearly, we will have to recognise the judgment of the court, which we do, and implement its findings. It indicated that our blanket policy of retaining fingerprints and DNA of people who had been arrested but not convicted, or of those against whom there was no further action, was in breach of Article 8. However, then there are a lot of complexities. Clearly, we will absolutely take notice of that and not do that, but the complexities mean that we have to go into this in some detail.

Lord Avebury: The bottom line was that we cannot retain the samples indefinitely without being in breach of Article 8. I am very glad to note the Minister’s assurances that the public consultation documents will be placed in the Library and that we shall also see the submission to the Council of Ministers this month. On the basis of those assurances, I beg leave to withdraw the amendment.

Amendment 111 withdrawn.

Clause 49: Extension of sections 1 to 4 of the UK Borders Act 2007 to Scotland

Debate on whether Clause 49 should stand part of the Bill.

Lord Hylton: I do not oppose the principle of Clause 49, although the word “thinks” occurs in the drafting, which might well be replaced by “reasonably suspects” or “is satisfied”. However, I am greatly concerned about detention in England and in Scotland. Therefore, I tried to table a modest probing amendment as a new clause before or after Clause 51. The Public Bill Office told me that that had already been tabled by my noble friend Lord Ramsbotham. I therefore asked to add my name but, later, the amendment was disallowed and did not appear in the first Marshalled List. This was hard to understand, since other amendments containing new clauses were accepted.

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My noble friend’s amendment would have stated that,

and only—

Such words would enshrine the language of Chapter 38 of the Home Office operational enforcement manual. Will the Government produce their own amendment along these lines or, better still, set statutory time limits for detention prior to deportation or more generally? Such limits exist in several European Union states, often specifying six months or less. Can the Minister tell the Committee what use is being made of bail, tagging and reporting as alternatives to detention? Why were the automatic bail hearings, provided in 1999, abolished by the 2002 Act? The numbers involved are not large, yet the cost to taxpayers is high. It has cost £96 million this year and will cost £107 million next year. I am sure that your Lordships will agree that it is wrong in principle that people should be held indefinitely, often without legal advice and usually without any judicial hearing at all.

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