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There were occasions when we thought that we were, as the current in-phrase states, ahead of the curve, and others when we were running very hard to keep ahead of latest developments. It was difficult to agree a cut-off period but eventually we had to draw stumps. That is an indication that the issue will continue to hold our attentionand that it needs to continue to hold our attention, not only for the reasons that we give in our report but for the reasons given today by the noble Baroness, Lady Manningham-Buller, and all that she has revealed.
The headline-grabbing issues following the publication of the committee's report were always likely to major on the question of DNA databases, the proliferation of CCTV cameras and the effects of RIPA on what we believe is our right to privacy in every sphere of our lives. I am not convinced that our views on DNA databases are mirrored by the public at largenot that that should constrain a Select Committee from putting forward its views and presenting conclusions that are at odds with a lot of what one might call conventional wisdom.
DNA databases are a big topic of conversation, discussion and debate way outside the Westminster village. Their undoubted usefulness in solving crime, in identifying people who have been suddenly killed or injured and in dealing with sad cases of amnesia or dementia are all so positive; but of course there is also the persistent, and correct, emphasis on the right of privacy for everyone. The committee concluded in paragraph 200 that a universal DNA database would,
but thought that it would be undesirable,
Having left the committeetime-expired, I hasten to addI have thought long and hard, and I feel that a universal DNA database would be so much better than the current situation, which, as described in the report, does have some serious flaws. The conclusions of the report are well stated and well founded, but surely if many years ago we had knowledge of the amazing usefulness of DNA data, we would by now have a universal DNA database.
I fear that my view is mirrored by an ever growing number of people, and not just among the chattering classes nor in the newspaper-generated campaigns. A great deal of serious discussion and debate is devoted to the subject and I hope that minds might be changed. Of course the privacy issue is importantit is fundamentalbut there must be a case for agreeing that if everybody's DNA is on the database, that issue will lose its potency.
As well as the undoubted cost issue, we would have to be absolutely convinced that the systems were failsafe and that the data were encrypted to such an extent that they were secure. Recent experience makes all of us worry about thisactually, it probably terrifies usbut we cannot stop advances in technology and must be prepared to consider likely long-term benefits against convictions held as a result of short-term experience.
Of course the government response is ad idem with the committee's recommendation, and I accept that. I just wanted to use this opportunity to put a marker up and say: let us not ensure that this view is fixed in concrete for ever.
I turn now to the issue of CCTV surveillance. The proliferation of CCTV cameras and the oft-quoted statistic that there are more CCTV cameras in this country than in the whole of the rest of Europe engender dozens of differing viewsnot least among the population at large. At a dinner party last Saturday the subject came up. The hostess, who happens to be a chairman of the magistrates in our nearest city, almost went crazy at the very suggestion that there should perhaps be a reduction in the number of CCTV cameras. She said, They are the most valuable tool we have in nailing crime. They must be a deterrent because of the number of criminals who are convicted as a direct result of the evidence from CCTV cameras, and so on. One of the other guests was equally exercised about the subject. She bewailed, I hate the things. Whenever I catch sight of myself on them I realise just how old and fat I am. In her case, neither statement is true. What is true is that the cameras do have a propensity to show up bad posture and remind one that a hair appointment is long overdue.
I find the ubiquitous presence of CCTV cameras most comforting, and certainly not a threat to privacy. It is much more a security-enhancing issue, though I concede that this reaction is likely to be both gender- and age-related. The committees recommendation states:
We recommend that the Home Office commission an independent appraisal of the existing research evidence on the effectiveness of CCTV in preventing, detecting and investigating crime.
That was answered by the government response to the effect that they have already commissioned an independent appraisal of the evidence about the effectiveness of CCTV in preventing, detecting and investigating crime. When is this review likely to be completed? I think that we would all like to see it.
I also support the committee's response to that information which urges the Government to ensure that the review is made available more widely so that it can inform a genuine debate on the subjectnot just a dinner party argument.
The impact of RIPA on the citizens' privacy was a topic of much discussion and debate, and has already been alluded to. A lot of it was fairly torrid stuff. Whereas the mushrooming number of CCTV cameras is visible, the covert activities of public authorities in using surveillance to further their own aims could be, and has been, unacceptable, as the noble and learned Lord, Lord Morris, said. Sadly, in many cases the suspicion is created that public authority employees have been overzealous in using covert methods to obtain evidence of malpractices that are not exactly of a life-threatening nature. The committee recommended that the,
I am afraid that the government response is just not good enough. They rely on a code of practice. This is not the first occasionand, sadly, it will almost certainly not be the lastwhen I feel obliged to pour scorn in great measure on codes of practice. When will we all, and not just the Government, accept that codes of practice are only as effective as the level of integrity of those who are in a position to administer them? It has been for ever thus. Yes, I know that in many cases codes of practice are worth while and effective, but in many more cases they are regarded in somewhat the same light as hurdles which human ingenuity feels compelled to avoid by racing round them, or, even worse, as a challenge to demolish them, often in a blatant way.
We have just to cast our minds back about a year to see that codes of practice in the banking and financial sector generally did not stand up. Codes of practice need teeth. Too often they may have teeth, but the teeth are not in great condition and many of them fall out. The government response states that there will be consultation. My cynicism regarding codes of practice is almost identical to my cynicism about the promise of government consultation as the panacea for all. The noble Baroness, Lady Manningham-Buller, spoke about different levels of authorisation, which obviously has meritand almost certainly much more merit than codes of practice.
The work undertaken on this report was long and arduous but it was wonderfully interesting, so much so that Wednesday mornings took on a marvellous sense of exuberance for those of us involved. It was sad that it had to come to an end. The issue has of course not come to an end, and nor will it, ever bearing in mind
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Lord Peston: My Lords, I join others in congratulating our chairman on his chairmanship of the report. The noble Baroness, Lady OCathain, put it all absolutely admirably, except that I would go furtherI find it miraculous that we have produced an agreed report. That is entirely down to our chairman. I also echo her remarks that, since the whole subject of the Constitution Committee is a million miles from my interests, I foundand still findour Wednesday morning meetings absolutely fascinating. I really look forward to them.
To place this in context, I shall start by referring to two of the greatest thinkers of our country. Adam Smith saw it as the first task of government to protect the people of the country from an outside threat, and its second task to protect them from a threat from inside. He saw that as central to the role of government. Nearly as great a thinker was John Stuart Mill, 100 years later, who emphasised above all the role of privacy when he said that,
He said that the point to be determined is where the limits should be placed. Bearing both those ideas in mind, all Governments face the same quandary. If there is a terrorist outrage, they will always be blamed for not being tough enough. Equally, when an ordinary citizen is stopped by the police from going about their everyday business, they feel that they are being threatened and their fundamental liberties impairedbut, yet again, they blame the Government. In a sense, the Government cannot win either way.
What troubles me a little is that since the national impact of a terrorist attack is of an altogether larger order of magnitude, it is not surprising that Governments give it the greater priority. What worries me is that, instead of a rational analysis of the balance of advantage between the threat of the terrorist and the impairment of personal liberty, what appears to happen is that those who shout the loudest get their own way.
Having said that, I turn to the question of CCTV, which we deal with in chapter 3 of the report. I am currently totally at a loss as to what has happened to this independent inquiry. I thought that it had been published, but I am not sure whether it has or not. Perhaps we could be told. I am told that it has not been printed, but I gather that it may be available in some other form. There are certain fundamental questions that must be answered in connection with it. I am not at all clear that any of them are being dealt with by the independent inquiry. The first is the obvious one of whether CCTV is effective. The second is, even if it is effective, does it justify its cost? In connection with that, there is the standard economic question: are there not better ways of spending the money to improve security? The obvious one, which we heard in evidence, was better street lighting.
I ask my noble friend the Minister the question that others have raised: is it true that we have more CCTV cameras than the whole of the rest of Europe? Is it true that we have far more per capita than the USA? I gave him notice of these questions, so he may know the answer now. I look forward to it if he does.
Deputy Chief Constable Graeme Gerrard of the Cheshire constabulary put the point very well. In evidence, he said to us:
In terms of reducing crime there are mixed results ... there was some quite good indication that it reduces the public's fear of crime. If you look at where most of the pressure is for CCTV in the community, the vast majority of it comes from the public who actually want it ... It is certainly not being driven by the Police Service.
That leads us to this question: if the public want these CCTV camerasand my ad hoc experience is that that is truewhat is the correct response that those of us in public life, not least the Government, should give? Should we say, If it is what they want, then it is what they ought to have even though it is not backed by any evidence at all? Or is it our duty to educate them and tell them that they are wrong?
This does not apply just to the present Government. I keep using the word Government, but I do not necessarily mean just the present Government. Governments seem to be afraid of telling the public, We hear what you are saying, and you are mistaken. No one seems willing to do that at all, in any field. Well, as someone who has devoted his life to a mission to explain, I certainly believe that if all CCTV cameras do is reassure you when you should not regard them as doing so, then someone ought to say to you, Why dont you think about it a little bit and realise that you are mistaken?. However, I know that I am totally out of step with all sorts of people on that including, as the noble Baroness, Lady OCathain, points out, magistrates who ought to know better.
Briefly, on the privacy impact assessment, I have to say to the Minister that the Government seem to be slightly casual in their response. They said:
Departments are encouraged to consider undertaking a privacy impact assessment.
That does not seem to be strong support for privacy impact assessments, or to offer any confidence in the notion that they will occur. I would have thought that, for once, the Government might say to all the relevant bodies, You will do them, and you will publish them.
I conclude with a question which was, in a sense, always with us in the committee. Are we sleepwalking into the surveillance society? There will be a range of opinions and reasonable answers to that question, from those who would say possibly, to those at the other end who would say certainly. I am really at the extreme. We are already in the surveillance society. I very much hope that it is not irreversible.
Lord Pannick: My Lords, I joined your Lordships Constitution Committee after the work had been done on this report, and therefore feel no inhibition whatsoever in agreeing what a valuable and powerful report it is, under the wise chairmanship of the noble Lord, Lord Goodlad. For the committee to produce a report that
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The topic to which I wish to draw particular attention today is that addressed in paragraphs 197 and 464 of the report. The report there recommends that the Government should,
delivered on 4 December last year on the subject of the DNA database. That judgment held that this country is in breach of Article 8 of the European Convention on Human Rights because DNA profiles of persons arrested for, or charged with, a criminal offence but not subsequently convicted, are retained on the national DNA database for an unlimited period.
The Government, to their credit, have accepted the judgment unreservedly and have announced that they will change the law to ensure compliance. The question of what should happen now arises in the context of your Lordships committees recommendationwith which the Government agreenamely, that this country should not adopt a universal DNA database for reasons of principle, given the privacy concerns, and for the practical reasons of cost and guaranteeing the security of the information. The issue therefore arises of the circumstances in which the DNA of persons arrested but not convicted of a criminal offence should be retained. In relation to this important matter the Government are, of course, correct to point out at page 8 of their response to the report of your Lordships committee that this is a context, like so many others under the convention, in which it is necessary to strike a balance between the rights of the individual and the need to protect the public. However, that balance must be struck with due regard to the point made at paragraph 196 of the committees report that DNA profiles provide the state with large amounts of highly sensitive information about the individualinformation,
The European Court made the same point in concluding that the retention of DNA samples is a prima facie breach of the right to private life. Therefore, the Government need to justify very carefully the proposals set out in their consultation paper on how this country is to move forward in the light of the Marper judgment. I invite your Lordships consideration of three matters. First, I am puzzled about why the Government think that it is appropriate to retain for up to six yearsthis is now their proposalthe DNA profiles of adults who were arrested for, but not convicted of, an offence which was not serious, violent or terrorist related.
In Scotland, as the European Court explained, there is no power to retain DNA material when a person is arrested but not convicted unless the alleged offence is serious. Can the Minister please explain to the House whether there is any evidence to suggest that the practice in Scotland has caused any detriment to the fight against serious crime in that country? We
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Paragraph 6.5 of the Governments consultation paper suggests that an earlier arrest for an alleged drugs offenceeven if there is no convictionmay be linked to later offences of murder. If that is so, surely the proper response for the Government is to provide that an arrest for a drugs offence, even if there is no subsequent conviction, should mean that DNA samples may be retained for six years, rather than for them to propose that all DNA profiles may be retained for six years in relation to any case where a person is arrested but not convicted of a non-serious offence.
Secondly, the Government also propose that there should be a 12-year period for retention of the DNA profiles of those arrested but not convicted in relation to serious, violent or terrorist offences. Again, this is much longer that the three-year period, plus a possible two-year extension if a sheriff consents, which applies in Scotland, as noted in the European Court judgment. The evidence presented in the consultation paper to justify a 12-year period is to my mind very weak. Can the Minister help the House on whether there is any evidence at all to suggest that this three-year period, plus the possible two-year extension in Scotland, has in practice caused any detriment whatever to the fight against serious crime in Scotland? Has any senior police officer in Scotland so suggested?
The third and final point is that the consultation paper sensibly suggests that in exceptional circumstances the DNA profile that is retained should be destroyed before the expiry either of the six-year period or of the 12-year period if an application is made to that effect to an appropriate body. The Government propose that the application should be made to a chief constable. It is in my view very unsatisfactory indeed, given the important personal interests involved, that whether there are discretionary grounds for deletion of the DNA profile should be decided by a non-judicial body, the chief constable, subject only to judicial review. Will the Minister please consider recognising a right of appeal to an independent judicial body which would have power to require the deletion of the DNA profile?
If I have been arrested but not convicted, and I object to my DNA profile being retained by the state, giving it access to personal and intimate information, and I think I have a strong argument that the arrest was unjustifiedfor example, because of mistaken identitysurely I should have the opportunity to ask an independent court or tribunal to decide whether my DNA profile should be retained for the six or 12-year period, or whether I should be treated in this respect like any other person who has no criminal convictions.
Baroness D'Souza: My Lords, I am most grateful to your Lordships for this opportunity to pay tribute in the context of this debate to the passing of a truly
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The celebration in honour of Lord Dahrendorfs 80th birthday in May, held in St Antony's College, Oxford, where he was for several years the greatly respected warden, was the occasion for a gathering of the significant thinkers of our time. It was a magical two days where the theme of liberty or the lack of it was examined in great detail. What has been apparent for many decades was again abundantly in evidencethat individual liberty was the single passion that informed Lord Dahrendorf's life. It is the theme of the majority of his 55 books, the core of his life's work and the reason why he, together with his father, was imprisoned by the Nazis in pre-war Germany.
But Lord DahrendorfRalfwas also my hero, and he was my friend. He and his then wife, Lady Ellen Dahrendorf, together extended and went beyond the call of friendship some years ago when I was in need of their generosity. I regularly stayed with them in their farmhouse in the Black Forest, and there I got to know the man rather than the somewhat remote international figure he had by that time become. If you had not seen Lord Dahrendorf wearing a green felt trilby and conducting the local brass band in a bierkeller, you did not really know the man at all. I think that he is the first person to have been a Minister in Germany, as a member of the Free Democratic Party, and a Member of this legislature. His decision to take up citizenship in this country was due in large part to his love of and admiration for the British brand of liberty. He was pre-eminently a European. He loved good food and the best champagne; he was a swimmer and a jazz enthusiast. He was funny, endlessly courteous, extremely generous and perhaps the most profound thinker of the late 20th century.
In the past few years, as a Member of the same House, I had become even closer to him and his family. I shall miss him greatly, and know that his huge influence will continue to cast its light widely, long into the future.
The Earl of Erroll: My Lords, I shall speak briefly in the gap to make a couple of points on the importance of privacy. I should have put myself down to speak but forgot to do so; I am sorry.
I spend a lot of time discussing and speaking on these issues in the world of ICT, so I am quite familiar with them. It worries me that the acquisition, accumulation and analysis of the mass of surveillance material alters the relationship of trust between the citizen and the state. On the one hand we have privacy, and on the other identification. With the best of intentions in what Orwell accurately called our system of democratic socialism, the state tries to help people, protect them from other people, or catchI give the example referred to earlierrogue traders to help the trading standards people do good things.
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