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I turn to Amendment 152BK, which we are unable to accept for a number of reasons. This amendment is aimed at preventing employers from obtaining enhanced criminal records disclosures in cases where they are also required to verify the "subject to monitoring" status under the 2006 Act. First, we believe that this is flawed as a matter of policy. While a status check will tell the employers whether the applicant is registered with the ISA under the new vetting and barring scheme, it will not tell them details of the individual's criminal record. In the case of enhanced disclosures, the details may include any information considered relevant by the police, in addition to convictions and cautions. There will be cases where that is still relevant to a prospective employer with the decision on whether to employ. For example, when an individual first applies to register with the ISA, the employer should be able to consider and act on any police information as soon as that becomes available-in parallel with the ISA considering it-and not have to wait until the ISA decides whether it is minded to bar.

Secondly, the amendment would not, in our view, achieve its aim: an employer could apply for a disclosure through an authorised registered body-an umbrella body-or as an individual large employer, or could simply use another counter-signatory to an application. In addition, it would not be possible under the current scheme to verify whether an employer is also the registered body. On balance, therefore, the evidence is that we have got it about right. We think that the safeguards are there. If an individual is already registered and new information comes to light, that may not be enough to require a barring, but it may be enough to cause concern-and it would be right to take those concerns on board. For example, allegations of fraud-not

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a particular fraud, but one in several different circumstances-might set alarm bells ringing. We believe that the balance we have is about right.

We also want to resist Amendments 163 and 164, because they would remove much more than just relevant police information from the vetting and barring scheme legislation. The amendments would entirely remove a range of powers or duties to make an enhanced disclosure-not just police information, but all the conviction and caution information as well-without proposing any other kind of disclosure as a replacement. That would remove two CRB duties that are completely unrelated to police information: a duty to inform regulatory authorities, on request, when the CRB is working on a disclosure on a person, and a duty to include on a disclosure whether a person is barred, with related information.

Information on whether a person is barred is not just part of "relevant police information". It is the cornerstone of the new scheme to improve the safeguarding of vulnerable groups. While their proposers may wish to pursue elsewhere their general concern on police information, these amendments are specific to the vetting and barring scheme and, paradoxically, go much further than police information. For all these reasons, I believe that your Lordships should reject these amendments.

Baroness Walmsley: My Lords, I thank the Minister for his reply. I also thank the noble Lord, Lord Skelmersdale, but I would tell him that while the ISA may only be empowered to do this, and it is not a duty, given the sort of risk-averse atmosphere that we operate in it will undoubtedly do it. The noble Lord talked about the risk; if the risk was so great that the ISA would want to inform the employer straight away, the person would fall into the first or second categories that I referred to earlier-the people automatically barred, with or without the right to representation.

The Minister talked about a person having eight weeks to respond and try to refute any allegations. Yet if they have already lost their job, that is far too late. Employers are very risk-averse these days; somebody's career will be totally destroyed if the employer is told about allegations which turn out to be quite wrong. How will the Government ensure that people know what the police are passing on? What training is being given to the police on the material that should be put in those certificates being passed on to the ISA?

I accept that the ISA will not take notice of spurious allegations, but that misses the point. The point is that before it makes that determination, somebody's career will be damaged. We need much more work with the police to ensure that they do not pass on things that are totally irrelevant, in case it is passed on to employers. We need to educate employers so that they understand that just because the ISA is considering allegations does not mean that the relevant person is necessarily a danger to children and should not be employed at all. However, it would make sense for them to put certain safeguards in place to ensure that the person is not left unduly in charge of children or vulnerable people.

We on these Benches have always supported the cornerstone of this new scheme but we are very anxious that it should be fair to everybody, while, of course, properly safeguarding children and vulnerable groups.

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I will read very carefully what the noble Lord has said, but if he cannot answer now, will he write to me and answer some of the questions that I have asked about the police and providing information and education to employers?

Lord Brett: The question I can answer is to give an assurance that I will write. There is training and a balance here. There is, of course, a primary requirement to protect our children, but I agree that we should not unnecessarily damage people's careers. We have had a full discussion. I hope that the noble Baroness will withdraw the amendment. I will happily provide the information on training that she seeks.

Baroness Walmsley: I am grateful to the noble Lord and beg leave to withdraw the amendment.

Amendment 152BH withdrawn.

Clause 85 agreed.

Clauses 86 and 87 agreed.

Clause 88 : Notification of proposal to include person in barred list: Northern Ireland

Amendment 152BJ not moved.

Clause 88 agreed.

Clauses 89 to 91 agreed.

Amendment 152BK not moved.

Clauses 92 to 95 agreed.

Clause 96 : Retention and destruction of samples etc: England and Wales

Amendment 152BL

Moved by Baroness Neville-Jones

152BL: Clause 96, page 120, line 9, leave out subsections (1) and (2) and insert-

"(1) After section 64A of the Police and Criminal Evidence Act 1984 (c. 60) insert-

"64B Retention and destruction of samples etc

(1) Subject to subsection (2), where a sample has been taken from a person under this Part, unless such a person has given consent in accordance with section 64(3AC), all such samples and all information derived from such samples shall be destroyed as soon as possible following a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings otherwise than with a conviction.

(2) Subsection (1) above shall not apply-

(a) where the record, sample or information in question is of the same kind as a record, a sample or, as the case may be, information lawfully held in relation to the person; or

(b) where the person is cautioned for a recordable offence or given a warning or reprimand in accordance with the Crime and Disorder Act 1998 for a recordable offence in connection with the decision not to institute criminal proceedings or following the withdrawal or cessation of criminal proceedings; or

(c) where sections 64C or 64D apply.



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(3) For the purposes of this section, criminal proceedings shall not be deemed to have concluded until the earlier of either (1) the lapse of any applicable appeal period or (2) a decision is made not to appeal such proceedings.

64C Retention of samples etc (violent and sexual offences)

(1) This section applies where any sample has been taken from a person under this Part where criminal proceedings were instituted against such person in respect of a sexual offence or violent offence and such proceedings concluded otherwise than with a conviction or with the person being cautioned for a recordable offence or given a warning or reprimand in accordance with the Crime and Disorder Act 1998 for a recordable offence.

(2) Subject to subsections (6) and (7) below, the sample and any information derived therefrom shall be destroyed no later than-

(a) 3 years following the conclusion of the proceedings ("the initial retention date"); or

(b) such later date as may be ordered under subsection (3).

(3) On application made by a chief officer of police within the period of 3 months before the initial retention date, the Crown Court, if satisfied that there are reasonable grounds for doing so, may make an order amending, or further amending, the date of destruction of the relevant sample and any information derived therefrom.

(4) An order under subsection (3) shall not specify a date more than 2 years later than the initial retention date.

(5) Any decisions of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.

(6) Subsection (2) does not apply where-

(a) an application under subsection (3) has been made but has not been determined;

(b) the period within which an appeal may be brought under subsection (5) against a decision to refuse an application has not elapsed; or

(c) such an appeal has been brought but has not been withdrawn or finally determined.

(7) Where-

(a) the period within which an appeal referred to in subsection (5) has elapsed without such an appeal being brought; or

(b) such an appeal is brought and is withdrawn or finally determined without any extension of the time period referred to in subsection (2),

the sample and any information derived therefrom shall be destroyed as soon as possible thereafter.

(8) For the purposes of this Part a "sexual offence" or "violent offence" shall mean such offences of a violent or sexual nature as shall be set out in any order made by the Secretary of State with reference to this section.

64D Retention of Samples-Residual Power

(1) On application by a chief officer of police, the Crown Court may make an order requiring the retention of a sample taken from a person and any information derived therefrom, in circumstances where such a sample and any information derived therefrom would otherwise be required to be destroyed, if it has reasonable grounds to believe that-

(a) there is a serious risk of harm to the public or a section of the public; or

(b) such retention would prevent, inhibit, restrict or disrupt involvement by the person in the commission of a sexual offence or violent offence.

(2) An order under this section is not to be in force for more than 5 years beginning with the date of the commencement of the order.

(3) Any decision of the Crown Court may be appealed to the Court of Appeal within 21 days of such a decision.

(4) Where an application has been made for an order under this section, the relevant sample and any information derived therefrom shall not be destroyed until such application and any appeal thereof has been determined."



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(2) At the end of section 113(1) of that Act insert-

"provided always that the protections in Part 5 relating to the retention of samples and any information derived therefrom shall also be applicable to persons investigated or under arrest under such Acts"."

Baroness Neville-Jones: It seems that the Government have withdrawn their proposals for the retention of DNA samples. It would be nice to think that this was in response to the almost universal outcry against them. They could have replaced them with something better that would not have taken a great deal of parliamentary time.

We on these Benches were gratified when the European Court of Human Rights' judgment obliged the Government to take note of what we had been saying for such a long time; namely, that the approach that the Government were pursuing on DNA was wrong. Therefore, we were disappointed when the Bill appeared and the inadequacy of the Government's response became clear. Rather than accepting the judgment and the force of opposition arguments, combined with the weight of expert advice from a huge variety of experts and independent bodies, the Government have sought to kick the issue into the long grass in the hope that it will disappear from the front pages, which we doubt.

The problem was that we were presented with nothing more than a framework power, giving the Secretary of State the power to introduce whatever he wanted via secondary legislation. It is not surprising that this has come in for criticism from all sides. The Joint Committee on Human Rights and the Delegated Powers and Regulatory Reform Committee have both raised serious concerns about proceeding in this way. Not only would it have denied to both Houses of Parliament the chance to scrutinise the Government's proposals properly, it would have left the long-term development of the DNA database open to unacceptable levels of uncertainty.

The Government seem finally to have accepted that this is not a way to proceed and have withdrawn the proposals. Our problem is that the effect of withdrawal and no replacement in legislation results in yet further delay. The relevant judgment occurred in December last year; the consultation on the Government's recommendation closed at the beginning of August-more than two months ago-and the whole matter has been debated for several years. The Government could have acted administratively to change policy without waiting to change the law, but they have chosen not to.

We have a good template in the legislation passed in Scotland. It has an alternative system, there is available a wealth of expert advice and recommendations from a huge variety of bodies-including the Government's non-departmental public body, the National DNA Database Ethics Group-as well as some extremely experienced and capable NGOs. We have a body of experience and plenty of advice. On these Benches we do not see any reason for further delay. This concerns us, because it has been going on for a long time.

We certainly accept what the Government have chosen to do, but we intend to return at Report to seek the insertion of Conservative proposals for the future of the DNA database. Their key point is that DNA taken from innocent people will be retained only in certain cases involving sexual and violent offences-and then for only up to five years, rather than indefinitely. I beg to move.



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Baroness Miller of Chilthorne Domer: My Lords, we have Amendment 152BM in this group. We are delighted with the news that the Government intend to withdraw their incredibly inadequate proposals and bring back something far more complete later. Secondary legislation was certainly no way to deal with such a critical issue, when what we are talking about-the presumption of innocence-is a cornerstone of our justice system.

I am extremely pleased that the noble Baroness, Lady Neville-Jones, is equally taken with the Scottish system as of course we are. When we were in coalition on the Executive in Scotland, my Liberal Democrat colleagues led the charge to introduce a far more practical system, which is proving to be more effective than that in England. I should be interested to hear from the Minister on that. No doubt he is aware that despite the huge increase in the number of profiles on the database from 2.1 million in 2002 to 5.6 million last year-these are the most recent figures that I have-the number of detected crimes in which there was a DNA match has reduced from 21,000 to just 17,500. That suggests that the huge increase is producing its own problems and that the database is becoming unwieldy. That is a practical issue.

In the interests of time, I wish to concentrate on the principle issue, which is that innocent people should not have their DNA kept on the database and that those involved in a minor crime should not expect to be on the DNA database year after year. The Government have lost the ability to see where the point of rehabilitation and dues paid to society arrives. At that point there is no presumption of innocence. I am aware that if the noble Lord, Lord Mackenzie of Framwellgate, were here he would tell us, as the Minister did at Question Time the other day, of all the crimes that have been solved as a result of DNA. There is certainly an argument to be had.

Nevertheless, there has been no national debate on whether we should have a database. I am aware that the Government have a consultation out at the moment, and it will be very interesting to see the responses to it and to find out when the Government intend to bring back legislation to address what is now a very pressing issue. Almost a year has gone by since the European Court of Human Rights ruled on the retention of the DNA samples of S and Marper and it is very urgent that that happens. The Government have heard that both opposition Benches are very attracted to the Scottish model and, when they bring back this legislation in an acceptable form, I advise them to do so in a Bill that deals only with this issue. If they add it to a Bill containing many other issues, in a Session that will last 16 sitting weeks at most and probably less, there will be no chance of getting this legislation through and they will then be faced with deep problems so far as concerns the European court ruling. If they kept it simple and practical and along the lines of a model that already works in the United Kingdom-that in Scotland-they would have a very good chance of getting it through.

9.30 pm

Lord Brett: My Lords, I sense that sometimes we are damned if we do and damned if we don't. Returning the DNA and fingerprints of those arrested but not

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convicted is an important topic that deserves the full attention of all of us involved in the legislative process. Since the European Court of Human Rights reached its decision in the case of S and Marper v the United Kingdom last December, the Home Office and its criminal justice partners have been working hard to produce a proportionate and effective framework for the retention and disposal of DNA and fingerprints. As many noble Lords will be aware, and as the noble Baroness commented, the then Home Secretary, my right honourable friend the Member for Redditch, launched a public consultation in May this year.

The Government have always acknowledged that there is a case for saying that the detail of the retention periods should be set out in primary legislation. However, against that we have had to weigh the importance-we have just been chastised about it-of responding to the European Court of Human Rights judgment within a reasonable timeframe. We judged that the approach taken in the Bill provided a sensible opportunity for us to demonstrate our commitment to implementing the judgment, to consult swiftly but thoroughly on the detail of the policy and to give Parliament an opportunity to approve this through the affirmative resolution procedure.

Over the summer, we have carefully considered the views expressed by the Delegated Powers and Regulatory Reform Committee, of which I am a former member and for which I have great regard, the Constitution Committee-another committee of importance-the Joint Committee on Human Rights and Members of both Houses of Parliament. Those and the responses to the Home Office consultation document have all held our attention. Although we remain committed to implementing the judgment of the European Court of Human Rights at the earliest opportunity, we accept the concerns raised by the committee and other stakeholders and we accept the strength of feeling in your Lordships' House. Given that strength of feeling, we feel that it is important to move forward with consensus, if possible. We therefore accept the view that this issue is more appropriately dealt with in primary legislation and have decided to invite Parliament to remove Clauses 96 to 98. As soon as parliamentary time allows, we will bring forward appropriate measures which will place the detail of the retention periods in primary legislation, allowing full debate and scrutiny of the issue in both Houses.

I heard what the noble Baroness, Lady Neville-Jones, said about bringing forward proposals on Report. We took the view that if we did that, it would be seen as pre-empting the consultation-a measure that would be condemned in this House as not giving the other place the opportunity of considered discussion of a proposal that would be on the face of legislation. Therefore, we hope to allot an early parliamentary slot in which to take on board this important measure, among others. On that basis, I ask the noble Baroness to withdraw Amendment 152BL and other noble Lords not to press Amendment 152BM, and I will join the noble Lords and noble Baronesses whose names appear on the Marshalled List in opposing Clauses 96 to 98 standing part of the Bill. We could have a debate on amendments which will not survive our joint view that this clause do not stand part but I look forward to a

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more thorough discussion, in good time, with due consideration of proposals which can engage our attention in this House and in the other place. I believe that consultation will produce a better result than we would have had if we had gone on our original plan or tried to bring something forward on Report.

Baroness Neville-Jones: The Minister justifies the production of a framework Bill on the ground that speed is needed. It is difficult to talk about speed when the judgment was in December last year. The Government could have proceeded more speedily than they have. Given the Government's attitude to some of the legislation, they should have known that others would not be happy with them introducing a framework Bill and that there would have been a very lengthy debate and an attempt to amend. I can see why the Government have withdrawn the proposal.


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