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The Government have, if I might put it this way, avoided listening even to their own expert advisory bodies on this matter for some years. Ever since the Marper case they have being adding tens of thousands of samples to the database every month. There is no guarantee that any Bill introduced in the next Session will be able to complete its progress through both Houses before a general election. We on these Benches take the view that this House has a window of opportunity now and that we ought to seize it. The Government have kicked the matter of the database into the long grass again and again, and for long enough. We do not wish to see that happen again. This amendment would allow us to tackle crime more effectively and, at the same time, to restore the fundamental rights of individuals. I beg to move.

Lord Lester of Herne Hill: My Lords, I do not know whether the noble Baroness is aware that her amendment has the indirect support of the European

5 Nov 2009 : Column 488

Court of Human Rights. In paragraph 109 of the judgment on the Marper case, the court said:

"The current position of Scotland, as a part of the United Kingdom itself, is of particular significance in this regard. As noted above ... the Scottish Parliament voted to allow retention of the DNA of unconvicted persons only in the case of adults charged with violent or sexual offences and even then, for three years only, with the possibility of an extension to keep the DNA sample and data for a further two years with the consent of a sheriff.

This position"-

that is, the Scottish position-

which of course comprises 47 countries-

To the extent that Amendment 97 mirrors the Scottish legislation, there is strong indication from the Strasbourg court that something along those lines is required.

I am not going to make a long speech. I am a member of the Joint Committee on Human Rights, and we have drawn attention to our dissatisfaction with the lack of progress. On 29 October, our chairman wrote to the Home Secretary, and I hope that the noble Lord, Lord West, has been informed of this by his officials. I expect that, under his jurisdiction, the Home Office will become as efficient as the Queen's Navy; that is not a joke.

We asked four questions in that letter, to be answered by today. I do not believe that there has been any reply. I will now repeat those questions, in the hope that they can at least be answered orally, if not in accordance with the letter. I shall say slowly what Mr Dismore, MP, wrote, to give time. He wrote:

"Given the decision to remove the clauses from the Policing and Crime Bill, we are writing to request an update on the Government's proposals for implementing this important judgment. In addition to an update on the next steps that the Government proposes to take, we would be grateful if you could respond to the following questions:

1. Does the Government propose to use the Policing, Crime and Security Bill in the next Session to implement the judgment?2. Within what timescale does it anticipate implementation will take effect?".

Question number 3 is surely important:

"3. In the mean time, what guidance, if any, has the Government provided to police officers about how to exercise their discretion to remove data from police records?

4. Does the Government consider that the data of unconvicted children under the age of 18 should be treated differently to adults during this period? If so, how?".

The last point in the letter is our reference to the fact that,

"The Committee of Ministers of the Council of Europe are going to consider the UK's implementation of Marper at the December meeting. Can the Committee please have copies of the Government's submission to the Committee of Ministers for the meeting to ensure that it is regularly updated? In view of the forthcoming debates on the Policing and Crime Bill, I would be grateful for a response by 5 November, and if you could send a Word version to"-

the email address.

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That was copied to Mr Wills, but was sent to the Home Secretary on 29 October. It would be fair enough to get an oral explanation of the answers to those questions if it could not be done in writing. I am sure that it has been read by officials, because they are normally courteous and efficient in looking at statements. Given the importance of the issue, I can repeat the questions if necessary, but I would be very glad indeed if the Minister could deal with them now. I sympathise with him. He has the helpless look of a Minister who has not been briefed on it, but the officials ought to be able, if others will speak, to give at least an outline answer to those four questions by the time he replies.

6.15 pm

Baroness Miller of Chilthorne Domer: My Lords, we support this amendment. We believe that the Scottish model provides a good starting point and a good model. We share a great deal of the scepticism of the noble Baroness, Lady Neville-Jones, about whether the legislation, if it comes in during the next Session, will get on to the statute book before any election. It is very urgent to fulfil the terms of the European Court. We ought, in any case, to have a regime that we can be proud of.

We also believe that there should be a separate scheme for the retention of DNA taken from those under 18. If, having had the experience of the Scottish model, we were going to make any improvements at all to it, we would want to do something more about samples from people who are totally innocent-anyone who has been, for example, wrongfully arrested, and therefore not cautioned, and certainly not convicted. With those caveats, we support the amendment.

The Lord Bishop of Lincoln: My Lords, I wonder whether noble Lords would permit me to locate this debate within a wider debate. My sense is that in recent years there has been a significant erosion of confidence. Those who have had charges made against them, and where criminal proceedings have not been instituted, have nonetheless felt that they have not been thereby declared innocent. This has happened significantly in relation to Criminal Records Bureau matters. I speak as chair of the Church of England Board of Education, and in many schools there are those who have had accusations made against them. These remain on the record although no criminal proceedings were ever instituted.

These are sensitive matters. I understand that it may not always be appropriate for the record to be totally cleaned, as it were. However, if there is any opportunity that can be taken now to redress that incipient lack of trust and confidence in the fact that once a person has not had criminal proceedings instituted against them, they are therefore innocent and there is no retention of evidence, we should take it. They may still feel that they are held to be accountable even though they have never been convicted. I present this within that wider context. I hope that accepting this amendment would perhaps give a signal, which could be a very welcome one in a culture of growing mistrust.

Lord Brett: My Lords, I will try to be brief in addressing the issues, given that we have less than 45 minutes to complete Report stage. First, on the

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question of delay, the judgment in S and Marper came two weeks before the Policing and Crime Bill was introduced. It came as a surprise, not least because it overturned a unanimous decision of this House and the judiciary. It obviously did not leave enough time for detailed legislative proposals to be worked into the Bill.

We consulted the public over the summer and received over 500 responses. We considered the contents of those responses, as well as the report of the House of Lords Delegated Powers and Regulatory Reform Committee. We were severely criticised for seeking to provide a secondary legislative channel to deal with this matter urgently after the passage of the Bill. That criticism, which was widespread in the House and upheld in Committee, persuaded the Government to withdraw the proposal to use secondary legislation and to give a commitment that we would bring the issue back at the earliest possible opportunity in new legislation.

We have considered the merits of adopting a retention framework along the lines of that used in Scotland. If that framework is not mirrored, it is the formulation that arises in these amendments.

The initial evidence from the consultation document issued in May suggests that the seriousness of the initial offence for which a person is arrested is not a good indicator of the seriousness of subsequent offences with which that person may be associated. Often, profiles that are ultimately linked to murder cases were originally taken for drug cases. Therefore, if we were to adopt a policy of retaining profiles only where an individual was arrested for a serious or violent offence, as applies in Scotland, we would risk missing numerous, possibly vital, detections. We remain convinced that the biometrics of all those who have DNA and fingerprints taken on arrest should be retained for a finite period, which represents a proportionate response to the potential risk to public safety. We have done, and continue to do, considerable further work on what these periods might be and we will bring forward our substantive proposals very soon.

I have addressed the concerns expressed with regard to enabling powers. I say to the noble Lord, Lord Lester of Herne Hill, that the look of bewilderment on my countenance and that of my noble friend Lord West was due to the fact that no formal letter has yet been received at the Home Office. Therefore, we have no answers, because no questions have been put to us formally. I cannot add anything to that.

However, given the criticism that was made of an attempt to introduce this measure via secondary legislation, when the government proposals are available a very full discussion will be held on them in both Houses, as this is a very serious issue. We have no intention of avoiding our responsibility in S and Marper. We wish to address that at the earliest possible opportunity. In essence, that is probably the answer to the first of the questions that the noble Lord, Lord Lester, posed. However, this amendment would not provide the platform that we believe we need to have. Given that explanation, I hope that the noble Baroness will withdraw the amendment.

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Lord Lester of Herne Hill: Before the noble Lord sits down, on the last point, could he at least undertake to provide the committee with the submission that the Government will make to the Committee of Ministers of the Council of Europe for their December DH meeting in order that the committee can see the nature of the defence that is being made by the Government for their failure so far to abide by the judgment in the Marper case? That would not require any extra work, simply disclosure to our committee, which is responsible for monitoring the execution of judgments against the United Kingdom.

Lord Brett: I undertake to take that request back to my colleagues in the Home Office. We are not in a position to anticipate the Queen's Speech. However, as I said, we are committed to bringing forward legislation as soon as possible. We have continued the relevant work. I hope that that response will engender sufficient confidence in the noble Baroness to enable her to withdraw the amendment.

Baroness Neville-Jones: My Lords, the Government should not have been surprised by the Marper judgment. The system prevailing in England, Wales and Northern Ireland has been subject to extraordinarily widespread and sustained criticism for a long time and does not accord with the civil liberties of individuals. I am grateful for the support of the right reverend Prelate, who said that the system undermined confidence and trust in government.

It is good to hear that the Government are serious in their intention to bring forward legislation. However, I think that there are likely to be fundamental differences between what we on this side of the House consider constitutes an appropriate size and function of database and what the Minister is saying it should comprise. We believe that Scotland has a tried and tested functioning system. It is therefore not the case that there is no system working in this country which is available for early adoption. In fact, we would say that it is available for immediate adoption. That system has demonstrated its worth and has a higher rate of matching than the much bigger database in this country, which contains the names of people who should not be on it.

There are real difficulties about continuing as we are. Every month, some 40,000 names are added. Approximately one in 10 people in this country now have their data on that database. That seems to be quite wrong. I accept what the Minister said about the seriousness of the Government's intentions. We are grateful for the support of the Benches next door. However, we believe that this situation, which is a very unsatisfactory system which contravenes the long-standing view of the balance between security, crime and individual rights, should not persist, because we can replace it with something that is immeasurably better. Therefore, I should like to test the opinion of the House.

6.25 pm

Division on Amendment 97

Contents 45; Not-Contents 57.

Amendment 97 disagreed.

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Division No. 4


Addington, L.
Anelay of St Johns, B. [Teller]
Astor of Hever, L.
Barker, B.
Bridgeman, V.
Burnett, L.
Cope of Berkeley, L.
Craigavon, V.
D'Souza, B.
Elton, L.
Falkland, V.
Falkner of Margravine, B.
Hamwee, B.
Harris of Richmond, B.
Howe, E.
Jones of Cheltenham, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lincoln, Bp.
Luke, L.
Lyell, L.
Marlesford, L.
Masham of Ilton, B.
Mawson, L.
Miller of Chilthorne Domer, B.
Monson, L.
Morris of Bolton, B.
Neuberger, B.
Neville-Jones, B.
Nicholson of Winterbourne, B.
Norton of Louth, L.
Patel, L.
Roberts of Llandudno, L.
Seccombe, B. [Teller]
Selsdon, L.
Sharp of Guildford, B.
Skelmersdale, L.
Smith of Clifton, L.
Stair, E.
Steel of Aikwood, L.
Thomas of Winchester, B.
Tordoff, L.
Wallace of Saltaire, L.
Warnock, B.
Williams of Crosby, B.


Acton, L.
Alli, L.
Archer of Sandwell, L.
Bassam of Brighton, L. [Teller]
Berkeley, L.
Birt, L.
Blackstone, B.
Bragg, L.
Brennan, L.
Brett, L.
Campbell-Savours, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Drayson, L.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Gale, B.
Goldsmith, L.
Harris of Haringey, L.
Hart of Chilton, L.
Haworth, L.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Lea of Crondall, L.
McDonagh, B.
McIntosh of Haringey, L.
McKenzie of Luton, L.
Massey of Darwen, B.
Morgan of Drefelin, B.
Morris of Yardley, B.
Pitkeathley, B.
Plant of Highfield, L.
Rosser, L.
Royall of Blaisdon, B.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Snape, L.
Symons of Vernham Dean, B.
Thornton, B.
Tomlinson, L.
Tunnicliffe, L.
Turner of Camden, B.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Young of Norwood Green, L.
6.36 pm

Amendment 97ZA

Moved by Baroness Miller of Chilthorne Domer

97ZA: After Clause 96, insert the following new Clause-

"Police retention of photographs

"(1) The Secretary of State must, as soon as possible, issue a code of practice to police authorities and chief constables relating to-

(a) the taking of photographs by the police of individuals who have not been arrested and those who have not been charged with or found guilty of a crime;

5 Nov 2009 : Column 493

(b) the retention of such photographs by the police;

(c) the circumstances in which such photographs may be shared;

(d) the uses to which such photographs may be put; and

(e) the destruction of such photographs at the earliest possible opportunity, in the absence of a reasonable basis for suspecting that the individual might commit an offence.

(2) Among other things, the code of practice must make reference to-

(a) Article 8(1) right to privacy, set out in the Human Rights Act 1998 (c. 42); and

(b) the data protection principles in section 4 of the Data Protection Act 1998 (c. 29).

(3) The Secretary of State may from time to time revise the whole or part of any code of practice issued under this section."

Baroness Miller of Chilthorne Domer: My Lords, a moment ago the right reverend Prelate the Bishop of Lincoln referred to the erosion of privacy. This amendment takes us back to the same theme and concerns the retention of photos of innocent people-people who have not been charged with, or found guilty of, anything. When I tabled a similar amendment during consideration of a different Bill, the Minister said that the PACE codes were not the appropriate place to put any guidance for the police on how long they should keep photos of innocent people, or on any other matters pertaining to them taking photos of people attending meetings, demonstrations and so on. This amendment requires the Secretary of State to draw up a code of practice. Given that the PACE code is not the appropriate place for such guidance, I hope that the Government will see this as a constructive way forward. I beg to move.

Lord Brett: My Lords, I fully understand the noble Baroness's concern about the retention of photographs and I wholly appreciate that the newspaper headlines last week probably steeled her resolve to ensure that that issue is properly addressed. I hope I can reassure her today. Through this amendment she seeks a code of practice. Although the Government do not support the issue of a separate code of practice on photographs, we will look at the issue of codes of practice in the round in the light of the forthcoming review of Her Majesty's Inspectorate of Constabulary. In the forthcoming policing White Paper, we shall make our position clear. We certainly support the idea of proper guidance and training on the taking and use of photographs. There are already powers in the Police Act 1996, which allow the Secretary of State to issue codes of practice for the police service. It is not appropriate to compel the Secretary of State to issue codes through primary legislation. For those reasons, I ask the noble Baroness to withdraw her amendment. I hope that my reply has given her sufficient comfort.

Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for his reply and look forward to further guidance on the taking and retention of photographs, which is critical. In the mean time, I beg leave to withdraw the amendment.

Amendment 97ZA withdrawn.

5 Nov 2009 : Column 494

Clause 97 : General information powers in relation to persons entering or leaving the UK

Amendment 97A

Moved by Baroness Harris of Richmond

97A: Clause 97, page 122, line 26, at end insert-

"( ) The requirement to produce a passport under subsection (1)(a) does not extend to a person on a local journey within the common travel area as defined under section 1(3) of the Immigration Act 1971."

Baroness Harris of Richmond: My Lords, I am most grateful to the Minister and his Bill team for the meeting which they organised to address our concerns on this part of the Bill and for the subsequent and very full letter in which he further elaborates on Clause 97. I fully understand what the Government are doing; I just do not agree with it. It will be quite important for some of the contents of his letter to be on the record in Hansard, so I hope he will forgive me for referring to it in some detail. One sentence gave me some cause for concern, notably when he says:

"I think we all recognise that UKBA officers have a very difficult job to do but that they carry out their functions to a high standard and in a professional manner. There is no question of these officers routinely disregarding the clear statutory and non-statutory limits imposed upon them and deliberately misusing their customs powers for immigration purposes".

I emphasise "routinely disregarding" because I am concerned that United Kingdom Border Agency officers should never even think of disregarding, never mind routinely disregarding, parliamentary legislation. Therein lies the rub. In another part of the letter we are told that monitoring of these officers will be done by the chief inspector of the UKBA. I would be amazed if he routinely disregarded what his officers were doing. Will his report on their performance be made public?

If we are to satisfy ourselves that all is well with this dual-category organisation, which has enormous powers, we will need to assure ourselves that they are performing their functions in a legal and proper way. Who is to know whether they are using their powers under Schedule 7 to the Terrorism Act 2000 or these powers? That Act already gives them power to demand passports or identity documents, including on common travel area routes, presumably on intelligence gained from somewhere. So why these extra powers? Is the Minister able to tell me how things have got so much worse recently in the CTA between the Republic of Ireland, Northern Ireland and the Crown dependencies? Are there suddenly hordes of people coming into this country from these areas in which the intelligence community has an interest? Are there any statistics the Minister can give me to back this up? In his letter, he talks about the mix of people in arrivals and writes:

"Officers may be targeting other higher risk flights but might inadvertently breach the restriction on asking for passports from CTA travellers".

I thought these highly trained officers were acting on intelligence to target certain people, not inadvertently breaching the restriction on asking for passports from CTA travellers.

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