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House of Lords

Tuesday, 29 November 2011.

2.30 pm

Prayers-read by the Lord Bishop of Liverpool.

Arab Spring


2.36 pm

Asked by Baroness Cox

The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, it is hard to generalise, given the differing circumstances in each country, but, that said, religious minorities have clearly suffered grievous oppression, often predating the so-called Arab spring, in Egypt, Iran, Iraq and, indeed, elsewhere. Egypt, in particular, has witnessed an upsurge in vicious sectarian violence and we continue to urge the Egyptian authorities to establish conditions in which all discrimination on the basis of religion is prevented. We deplore all discrimination against religious minorities and all constraints on their freedom to practise their faiths.

Baroness Cox: My Lords, I thank the Minister for that reply. Does he agree that in these early days of the so-called Arab spring, the impact on religious minorities has so far been favourable for the Jewish and Christian communities in Tunisia, but, as he has already indicated, cause for deep concern in Egypt? Although the Baha'i community has so far been spared violence there, attacks against Coptic Christians have numbered more than 44 since 25 January, and a recent report by Amnesty International claims that discrimination and attacks against the Copts have actually increased since the Supreme Council of the Armed Forces took power. In addition to encouraging the Egyptian leadership to ensure religious freedom for all its religious minorities, will the Government call to account those who are perpetrating the violence?

Lord Howell of Guildford: The noble Baroness is absolutely right in pointing to the violence in Egypt, a matter that must concern all those who believe in freedom of religious worship. We continue to urge the Egyptian authorities on the prime importance of pluralist and non-sectarian policies. The Egyptians are moving towards bringing in a new unified law that will be even-handed between Copts and Muslims, or so we understand. They are also talking about an anti-discrimination law. Those who can be established as being guilty of some of these nastier events should certainly be brought before the courts, but that is a matter for the Egyptian legal authorities.

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Lord Anderson of Swansea: How does the Minister respond to critics such as Ann Widdecombe, who say that there are double standards on the part of the Prime Minister in that, quite properly, we withdraw aid from Uganda because it discriminates against homosexuals but do not use our aid policy against countries that manifestly discriminate against Christians and other religious minorities?

Lord Howell of Guildford: It is not quite correct that the withdrawal of aid is geared to particular attitudes on policies in the way that the noble Lord describes. Support for Governments through aid is brought into question where they are upholding policies that we clearly regard as highly undesirable and objectionable. It does not mean to say that aid does not continue through non-governmental agencies and, as directly as we can organise it, to good development causes and projects-indeed, even in support of private sector operations. These things can be done without having to uphold the views of Governments. The noble Lord says that that is double standards, but in the real world one has to talk about selectivity and to make selections and choices. Some Governments are clearly ones whom we want to support; some are ones whom we would have great reluctance to do anything to enhance or entrench.

The Lord Bishop of Exeter: My Lords, I am grateful to the Minister for his insistence on the importance of constitutional guarantees and anti-discrimination measures, but does he recognise the importance-I think he has begun to go there-of remedying some of the institutional shortcomings that limit human development and social cohesion? I am aware of the high levels of economic disfranchisement among some of the religious minorities throughout the Middle East that risk inflaming and adding to the fuel of a volatile social mix in some of the poorest areas, particularly where religious communities live in close proximity to one another. How are such considerations informing government policy towards the region?

Lord Howell of Guildford: The right reverend Prelate is correct that a whole nexus of undesirable social customs and pressures creates the bad conditions in which this kind of discrimination can occur. Our policies, such as our Arab partnership policy, contain specific modules or elements that are designed, for instance, to support the rights and position of women, to promote family law in every possible way and to challenge some of the highly coercive and illiberal practices of the past. There are difficulties, as the right reverend Prelate will appreciate, but we must not go around intruding heavily on the practices of other countries. Why should we do that? However, we must certainly support and encourage the kinds of practices that bring equality and decent values to countries where, in the past, darker customs have prevailed.

Baroness Falkner of Margravine: My Lords, have the Government had any consultations with these Middle East Governments about reforming personal status laws so that the 14 million Christians who live in

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the Middle East might have access to divorce in civil courts if they wish to do so, rather than having to convert to Islam or other religions?

Lord Howell of Guildford: Those issues come into our fairly constant dialogue and exchanges with the countries of the Middle East as they go through reform processes at varying speeds and to varying degrees. That is the content of our exchanges in seeking to support and encourage the peaceful, democratic, liberalised development and opening up of these countries, which is directly in our own interest as a great trading nation as well.

Lord Alton of Liverpool: My Lords-

Lord Ryder of Wensum: My Lords-

Noble Lords: Cross Bench!

Lord Alton of Liverpool: My Lords, I am grateful. Does the Minister agree that there are worrying parallels with the situation in Iraq and Palestine, where large numbers of Christian minorities from the ancient churches have had to flee? Has he seen the figures published by the Egyptian Union of Human Rights Organisations showing that over 100,000 Coptic Christians have left the country since March this year-I declare a non-financial interest as president of the UK Coptic Association-and in particular the quotation from its director that:

"Copts are not emigrating voluntarily, they are coerced into that by threats and intimidation of hard-line Salafists, and the lack of protection they are getting from the Egyptian regime"?

Lord Howell of Guildford: I have seen a range of figures, although whether I have seen the specific reports that the noble Lord refers to, I am not so sure. I am the first to agree that these are large and worrying figures. The noble Lord mentioned Iraq. Although I do not think the Arab spring has operated to the particular detriment of religious minorities there, there have been a number of targeted attacks on minority communities-Christian, Yazidi, Shabak and others. These are worrying matters and we are constantly raising them with the Baghdad Government. As for the Egyptian situation, I have already indicated our extreme concern and our continuing dialogue, and that will certainly continue.

Police: Custody


2.44 pm

Asked by Lord Sheldon

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The Minister of State, Home Office (Lord Henley): My Lords, the Government hold data only on those taken into police custody at the point of arrest. According to the latest statistics from the Home Office Statistical Bulletin, of the nearly 1.4 million people arrested in 2009-10, 8 per cent identified themselves as black and 6 per cent identified themselves as Asian.

Lord Sheldon: The Guardian's analysis of 1 million court records shows that black offenders are 44 per cent more likely than white offenders to be sent to prison for driving offences and Asian offenders are 41 per cent more likely than white offenders to be sent to prison for drug offences. Why should black and Asian offenders be so much more frequently imprisoned than white offenders?

Lord Henley: My Lords, one has to accept that the figures are not exactly proportionate; neither are the figures cited by the noble Lord. They are not proportionate to the population as a whole. Similarly, they would not be proportionate by age profile, gender or any other measure. Having said that, we are very keen that the criminal justice system should be neutral in these matters as far as possible, and I hope that it is. However, there is scope for others to undertake more in-depth analysis of why that should be. I cannot comment on the figures that the noble Lord has given me but, as I said, arrests are broadly, although not quite, proportionate. They are disproportionate in many other ways, depending on how one looks at them.

Baroness Hussein-Ece: My Lords, at last week's excellent Scarman lecture, the Deputy Prime Minister highlighted that there are more than 400 more young black British men in prison than at the Russell group universities. Does the Minister share my concern that, with the vast majority of young black people unemployed, this is an indictment of years of failure to tackle poor education, employment and opportunities for young black men in our society? What action is being taken to address this?

Lord Henley: My Lords, I accept my noble friend's point and share her concerns on these matters. On policing, for which the Home Office is responsible, we are committed to delivering a police service that promotes equality, does not discriminate against anyone because of their race and is effective in rooting out and tackling racism. Where there are disproportionate numbers in one group as opposed to another, that invites further research. That is something we should do. However, at this stage I would not want to comment on why there are, as my noble friend puts it, more black people in prison than there are at the Russell group universities.

Lord Clinton-Davis: Would the Minister say that racism of any kind is unacceptable in our society, especially as far as the police are concerned? Would he distance the Government from the racism practised by certain sections of the police today?

Lord Henley: My Lords, I do not accept that the police act in a racist manner. I do accept that where one group is disproportionately involved in crime it

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deserves some degree of analysis and is something that we need to look at. However, I totally reject the noble Lord's complaint about racism in the police force. That allegation has been made in the past. It is something that the police have addressed over the years and something that they have dealt with themselves.

Baroness Knight of Collingtree: My Lords, does my noble friend agree that it is just as wrong to apprehend or arrest a person because of the colour of his skin as it is to exonerate somebody who is quite clearly guilty for the same reason?

Lord Henley: My Lords, as I made clear, I do not believe that the police are guilty of racism. The police should, quite rightly, arrest those they think are committing offences and the criminal justice system should prosecute those people, irrespective of the colour of their skin, their gender or anything else.

Baroness Howells of St Davids: My Lords, since the closure of the CRE, what steps have been taken to assist the police in dealing with the institutional racism that was clearly declared in the Scarman report?

Lord Henley: My Lords, I think the noble Baroness is referring to the Macpherson report, not the Scarman report. Allegations were made about institutional racism at that time. The police have addressed that matter and I do not believe that there is racism within the police service as a whole.

Lord Marks of Henley-on-Thames: My Lords, does my noble friend the Minister agree that confidence among ethnic minorities in the even-handedness of the police in keeping people in police custody would be greatly enhanced if we could improve our record of recruiting more black and Asian police officers?

Lord Henley: My Lords, again, that is something that I believe the police are managing to do in the 43 police forces up and down the country so that they better reflect the communities they serve. With the introduction of police commissioners, that, again, will be a matter that police forces will be able to continue to address in years to come.

Lord Hunt of Kings Heath: My Lords, the noble Lord will be aware that there is particular concern about deaths in police custody among members of black and minority ethnic communities. Often investigations fall to the IPCC to undertake. Can he tell me why, despite months of notice that a new chairman was required, the Government have yet to appoint a new chairman of the IPCC?

Lord Henley: My Lords, again, I note the concerns expressed by the noble Lord. I join him in agreeing that every death in police custody is a tragedy. If he looks at the figures that the IPCC published, he will find that the deaths in custody-sad though every single one of them was-are generally proportionate to the ethnic make-up of the detainees as a whole.

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As regards the appointment of a new chairman to the IPCC, I hope that we will be able to make an announcement shortly.

Lord Morgan: My Lords, the Minister has frequently referred to the need for more in-depth analysis and more research. However, we have had masses of it. The Runnymede Trust in the 1980s spelt out precisely this issue-the disproportionate amount of sentencing of people of Afro-Caribbean background. When on earth will the authorities take any action?

Lord Henley: My Lords, a great deal of research has been done. The noble Lord refers to research that was done as long ago as the 1980s. We are talking about the figures we have at the moment, which deserve further in-depth analysis. However, I do not think that the mere fact that there are disproportionate numbers being either arrested or charged necessarily amounts to racism. That is wrong. They are disproportionate in a whole host of other ways, whether by age, gender, socio-economic factors or whatever.

EU: Member States' Budgets


2.52 pm

Asked by Lord Willoughby de Broke

The Commercial Secretary to the Treasury (Lord Sassoon): My Lords, the Government strongly support the recently agreed economic governance legislation to strengthen the stability and growth pact. This provides for stronger and more responsible economic governance across the European Union. Under the new legislation, a range of financial sanctions can be imposed by the Council within the euro area where member states are deemed not to have taken adequate action. Sanctions are set out under Article 136, which applies to the euro area only.

Lord Willoughby de Broke: My Lords, I am grateful to the Minister for that reply. However, the statement by Commissioner Olli Rehn applies not just to the eurozone but to the whole of the EU, including this country. Therefore, will the Minister confirm that today's Autumn Statement by the Chancellor is nothing more than an aspiration-a wish list? Will he confirm to the House that this will have to be ticked off and agreed by the European Commission before it can take any effect?

Lord Sassoon: My Lords, this country has always been party to the stability and growth pact, but as I am sure the noble Lord knows, under Protocol 15 the

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UK has an opt-out, which means that we have to endeavour to avoid excessive deficits but are not subject to any sanctions such as members of the euro area are. Furthermore, the UK secured particular treatment that ensures-has ensured and will ensure-that Parliament will always be allowed to scrutinise the UK's budget ahead of the European Commission.

Lord Lea of Crondall: Is it not remarkable that the very same people in all parties who are always criticising the European Union for failing-lamentably, they would say-to ensure that people such as the Greeks, Portuguese, Irish and anybody you would like to mention are not meeting their commitments should now complain when we are tightening up the very scrutiny that they have been demanding? As the noble Lord, Lord Sassoon, has said, this is not just the 17 but the 27.

Lord Sassoon: My Lords, I am not going to say who should be complaining about what. All I would say is that the eurozone has got itself into a position where it really needs to get on and strengthen its own governance arrangements. We will do everything to encourage it to do that but we, as the UK, have a particular position that we will also protect to make sure that Parliament is able to scrutinise our budget first.

Lord Higgins: My Lords, given the UK opt-out, is it the case that the final part of the noble Lord's initial Question is not correct as far as UK is concerned?

Lord Sassoon: No, my Lords. I believe that the whole of my Answer was completely correct.

Noble Lords: Oh!

Lord Sassoon: I beg my noble friend's pardon. I think that a number of false premises were used to back up that supplementary question.

Lord Barnett: My Lords, if the eurozone decides to strengthen its fiscal rules, which many press upon it as being vital if they are to work, but there is no question of a change in the treaty, what would the Government do, because we clearly would not be involved?

Lord Sassoon: My Lords, this is a fast-evolving set of proposals. Indeed, the euro area's Finance Ministers are meeting later this afternoon. One of the issues on the table is that the Commission and the euro group are exploring the possibility of limited treaty changes, and Mr Van Rompuy is due to present the outcome of that work to the December European Council. When we see any proposals-if there are any-we will consider what we should do about them.

Lord Forsyth of Drumlean: My Lords, when looking at what is happening in Italy and Greece, is my noble friend not concerned that adding to a fiscal deficit problem a democratic deficit problem could result in considerable difficulties?

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Lord Sassoon: Yes, my Lords, I very much share my noble friend's concerns.

Lord Davies of Stamford: My Lords, a few years ago was there not a proposal that the Commission be given a duty of auditing the national accounts of member states? That proposal was turned down at the time by the Council. Is it not the case that if it had not been turned down and had been accepted, we would have had an earlier insight into the problems of Greece, the Greeks would have been unable to falsify their accounts, and the grave problems we all now face might have been significantly reduced?

Lord Sassoon: My Lords, I very much doubt it. We are looking at the proposals for strengthening governance as they have been put on the table, and that is clearly what needs to be done. We should not rely on the auditors to sort out all our problems.

Lord Newby: My Lords, if the eurozone's Finance Ministers decide that they want limited treaty changes, will the Minister be prepared to go slightly beyond his earlier answer and confirm that the UK Government will not stand in the way of any treaty changes to bring greater discipline within the eurozone, because it is clearly in our national interest as much as theirs that new rules are put in place?

Lord Sassoon: I am of course prepared to go a bit further in answer to my noble friend's question. If such treaty changes are put forward, the Government will look to advance the UK's national interest at that point, as appropriate. Above all, that means protecting and safeguarding our essential economic interests, and we will seek to do that.

Lord Pearson of Rannoch: My Lords, is it not grotesque that an organisation that has not had its accounts signed off by its own internal auditors for 17 years-there being no external auditor-should be handed these powers, given that if it had been a private company in this country the directors would have been in prison every year for the past 17 years?

Lord Sassoon: My Lords, I certainly agree that it is very unsatisfactory that for the 17th year in a row the Court of Auditors has not been able to give an unqualified statement of assurance.

Young People: NEET


2.59 pm

Asked by Baroness Jones of Whitchurch

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The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud): My Lords, we have a coherent strategy to reduce the number of 16 to 24 year-olds not in education, employment or training. This includes measures to increase the participation age and a new youth contract worth nearly £1 billion. The contract will provide more intensive support for all 18 to 24-year-olds, and builds on support that is already available through Jobcentre Plus and the work programme.

Baroness Jones of Whitchurch: I thank the Minister for that reply, but with a record 1.16 million young people not in education, employment or training, do the Government now acknowledge the folly of scrapping the future jobs fund, axing the educational maintenance allowance and trebling tuition fees at a time when the economy, through their own policies, was already slowing down? Despite the measures being announced today, is it not the truth that a generation of young people has been badly let down by a Government that is so out of touch that it did nothing for 18 months while youth unemployment continued to rise?

Lord Freud: I should like to pick up one aspect of that question, which is the nostalgia displayed for the future jobs fund. When you look at the results of the future jobs fund, you find that, two months after the period ended for a major cohort early on, about half of the people who took part were back on benefit. If you look at what happened under work experience, two months after the first cohort went through, roughly half of the people were off benefit-the same. The difference was that the future jobs fund cost £6,500 whereas the work experience cost £325-20 times cheaper. That is the difference of our activity in looking after youth. We are just as effective, but we are doing it cost-effectively.

Baroness Brinton: My Lords, I welcome the Government's expansion of apprenticeships, but it is wrong to assume that this on its own will lower unemployment. Currently, most apprenticeships go to young people already in jobs. Only if a job with an apprenticeship is offered to a young person currently on jobseeker's allowance will unemployment fall. What steps are being taken to develop closer work between DWP and BIS to ensure that apprenticeships indeed go to unemployed young people?

Lord Freud: We are very concerned to have apprenticeships going to the people who need them most. Last week, we announced incentives for employers effectively to take an extra 20,000 people off JSA by giving incentives of £1,500 to do that. We are having a massive increase in apprenticeships. The starts have gone up to about 440,000 this year, which is up 50 per cent on the previous year.

Lord Touhig: My Lords, for many young people in this country, the only experience they have of full-time employment is looking for a job in the first place. When the Government's new unemployment scheme for young people is up and running, how many weeks will it take to place an unemployed youngster in work?

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Lord Freud: We have a very elaborate structure to help youngsters back into the workplace. The most important element of that is the work programme, which is our new structural programme to help everyone back into work. Youngsters go into that after either nine months or, if they are regarded as particularly vulnerable, three months. That programme is designed to offer them individual support.

Lord Roberts of Llandudno: My Lords, does the Minister agree that the situation we are in with young people out of work is far too serious for traditional remedies and that we need some way to acknowledge the structural unemployment? In the past seven years, youth unemployment has been at double the rate of the rest of the unemployment figure. Is it not possible that we need new ways-I mentioned yesterday a Minister solely responsible for youth unemployment, or even a cross-party grouping which could tackle this in a serious way?

Lord Freud: My Lords, we are tackling this in a serious way. It is a very complicated issue, but the trick is to understand what has to be done to help youngsters. Only four things help youngsters: educational qualifications, apprenticeships, a job or work experience. We are trying to boost those elements massively in our youth contract.

Baroness Symons of Vernham Dean: My Lords, the Minister will have heard it said this morning that applications from young people to be students at university next year have fallen by 16 per cent. He has just mentioned the importance of qualifications for young people. Can he tell us why he thinks those applications have fallen by 16 per cent?

Lord Freud: My Lords, one effect of increased fees at universities is that youngsters realise the relative attraction of apprenticeships.

Noble Lords: Oh!

Lord Freud: There has been a substantial increase in the number of apprenticeships with, as I said, 442,000 starting in 2010-11. We are putting a lot of money towards supporting them, and this is something that other advanced economies such as Germany have concentrated on. I, for one, welcome the rebalancing of our education and support systems in this country.

Lord Boswell of Aynho: My Lords, given that I used to employ people, I think that I would feel more comfortable, as I hope the Minister would, about employing a person with a decent apprenticeship which has captured their imagination and given them educational attainments than somebody with a questionable degree from a less good and less vocationally related university, which may well be an inappropriate direction for their talents.

Lord Freud: My Lords, we have a real problem in our education system which we are aiming to correct. One of the most shocking things in the report on vocational qualifications from Professor Wolf was the

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number of youngsters whom we are failing with regard to vocational qualifications-350,000 16 to 18 year-olds a year. If we can get that sorted out and get those young people into good apprenticeships, we will have done a lot to solve the problem that we are all worried about.

London Olympic Games and Paralympic Games (Advertising and Trading) (England) Regulations 2011

Link to the Grand Committee debate

Motion to Approve

3.07 pm

Moved by Baroness Garden of Frognal

Motion agreed.

Protection of Freedoms Bill

Bill Main Page
Copy of the Report

Committee (1st Day)

3.07 pm

Amendment 1

Moved by Baroness Royall of Blaisdon

1: Before Clause 1, insert the following new Clause-

"Evidence base for the destruction, retention and use of fingerprints and DNA profiles

(1) Chapter 1 of Part 1 of this Act shall take effect following the completion of a report on the impact of its provisions by the Secretary of State.

(2) A report commissioned under subsection (1) shall include an evidence-based assessment of the risk of offending following an arrest which did not lead to a conviction.

(3) Evidence assessed under subsection (2) shall cover a period of at least 6 years.

(4) The Secretary of State must make the report, and the Government's response to any recommendations made in that report, available to the Leaders of the Opposition in both Houses of Parliament."

Baroness Royall of Blaisdon: My Lords, I shall speak also to Amendments 7 and 8 standing in my name and those of my noble friends Lord Rosser and Lord Tunnicliffe.

As all noble Lords will be aware, Chapter 1 of the Bill relates to the destruction, retention and use of fingerprints. For me, this is one of the most important parts of the Bill. As we agreed at Second Reading, there is a difficult balance to be struck between protecting people's freedoms from police or government interference and protecting their freedom not to become victims of interference or violence from criminals or terrorists.

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These balances should be guided by evidence and by an assessment of risk and not by liberal or libertarian ideology. The changes proposed by the Government go too far in restricting the use of fingerprints and DNA profiles, and will make it harder for the police to solve and prevent serious crimes. It will also make their work more bureaucratic.

Amendment 1 would ensure that Chapter 1 took effect only after an evidence-based study had been completed analysing the risk of offending following an arrest which did not lead to a conviction of at least six years. The Minister may well tell me that such an evidence-based study would take too long. However, if such a study leads to saving lives, I for one strongly suggest that the time will be well spent. Why is this so important? It is important because the evidence base used by the Government to inform their decision to reduce the period of retention of DNA and fingerprint profiles is extremely weak. If we get this wrong, the implications for victims will be huge. There are countless examples of people who were arrested and not convicted but whose DNA retention was critical in catching them and convicting them of rape or murder at a later date. This is particularly important in relation to rape cases.

As the Minister will know, rape cases have not only a notoriously low conviction rate but a notoriously low charge rate. That is because the trauma for the victim is so great and because of problems with evidence. Many perpetrators of serious sexual crimes are not brought to justice for their first offence. In about 70 per cent of cases in which a rape suspect is arrested, there is no charge. According to Home Office papers, in cases where there is no charge, DNA will be kept in only very limited circumstances so that in many cases the DNA will be destroyed even though it might be critical in catching a repeat offender for a nasty and violent sexual offence.

The Minister will know that a considerable number of cases have been solved because of DNA. Kensley Larrier was arrested in 2002 for the possession of an offensive weapon. The case never reached court, but two years later he raped someone and was found because of a DNA match. Lee and Stephen Ainsby raped and kidnapped a 17 year-old girl in Barnsley. Lee Ainsby's DNA was found years later in a case review. It had been taken because he had been arrested for being drunk and disorderly. Under the proposed system the DNA would not have been kept. Without that DNA those two men would still be free and justice for that young girl would not have been done. Abdul Azad was arrested for violent disorder in Birmingham in February 2005 but released without charge. In July 2005 he raped someone in Stafford and was identified only because the police had his DNA. The senior investigating officer for the case said:

"We would never have caught him had his DNA not already been on the database-he didn't even live locally so we had no intelligence leads either".

Case after case would have been much harder for the police to solve under the new rules. The Minister may well cite the S and Marper decision by the ECHR that blanket retention and storage of DNA and fingerprints contravenes Article 8 of ECHR. My Government responded with an extensive evidence-led consultation. However, the ECHR decision also recognised

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the importance of the retention of DNA in fingerprint profiles for individuals who have been arrested and/or charged but not convicted. It is the state's primary duty to protect citizens' fundamental rights to life, liberty and security under Articles 2 and 5. The ECHR objection was based on the blanket and indiscriminate approach to retention. Therefore, the argument is about minimising risk to the public of individuals committing an offence in the future and balancing that risk management against considerations of privacy. Evidence-led risk analysis was done two years ago by the Home Office which concluded that the effective length of the retention of DNA profiles was six years for both those arrested and/or charged for a serious offence, and for a minor offence. Conservatives were so convinced by this evidence that they voted in favour of its conclusions on a six-year retention limit contained in the Crime and Security Act 2010 when the noble Lord and his party were in opposition.

The Minister of State, Home Office (Lord Henley): Was that not part of the wash-up process, and was it not an improvement on the existing regime when it could be kept indefinitely? We were bringing it down to six years.

Baroness Royall of Blaisdon: My Lords, as I explained, because we looked at the evidence we did indeed bring it down to six years. If the noble Lord looked at that evidence it would show that six years is the appropriate amount of time for DNA evidence to be kept.

Following the election, based on no new evidence, the Government announced that they would legislate to adopt the protections of the Scottish model. It was based on no evidence but was simply a judgment of the appropriate balance. A review of the Scottish system by Professor Fraser one year after it was introduced assessed the success only of the current system and did not compare whether a longer retention period would be beneficial or whether retention for three years was detrimental to solving serious crimes. The Government persist in seeking to apply the Scottish model in England and Wales when all the evidence and strong police advice from both sides of the border is that Scotland should instead apply the model of England and Wales. Scotland's rape conviction rate is less than half that of England and Wales. The DNA database in Scotland is far less effective in solving crime than that in England and Wales. In 2009-10 a DNA profile loaded on to the DNA database in England and Wales had an 18 per cent higher chance of finding a match than was the case in Scotland. That is evidence that our system in England and Wales is far preferable and much more efficient and effective than the system in Scotland.

3.15 pm

The Home Office hazard assessment shows that the risk of an individual who has been arrested and/or charged with a serious offence being rearrested remains above the national average well beyond three years. I am sure that the Government will argue that the Home Office hazard curve dips after three years and that the majority of risk reduction occurs within that time. However, there is a significant tail beyond three years. The Home Affairs Committee was concerned that the Home Office report looked at the risk of

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rearrest rather than reoffending after an original arrest, but accepted the data for want of better. The Home Office only had usable data for a maximum period of three years from the police national computer and thus had to extrapolate beyond that period. The Home Affairs Committee questioned the evidence base beyond three years and stated that,

The committee concluded that,

Rather than destroy a vital bank of data that can never be retrieved on the basis of no new evidence, will the Government not agree to undertake a proper assessment to ascertain the right limits and the true risks to public safety? Evidence shows that the effect of destroying the database and reducing retention would be that 23,000 criminals a year who will no longer be on the database could commit 6,000 further crimes. This research was not published by the Government when the Bill was produced. In its evidence to the Public Bill Committee, ACPO estimated that the proposed changes would lead to a loss of about 1,000 successful-

Lord Phillips of Sudbury: I am sorry to interrupt the noble Baroness. She mentioned 23,000 offences. Do they include minor offences?

Baroness Royall of Blaisdon: My Lords, I would like to be able to answer the noble Lord but I regret that I cannot. I will come back to him in writing.

The statistics and the lack of evidence for the Government's proposals mean that Amendment 1 is essential.

I turn to Amendments 7 and 8, in my name and those of my noble friends Lord Tunnicliffe and Lord Rosser. Persons arrested for or charged with a qualifying serious offence should have their DNA and fingerprints stored for six years. This replicates the provisions of the Crime and Security Act 2010, which was passed by Parliament but never brought into force. The six-year limit is based on Home Office analysis and reflects a proportionate response to the ECHR decision. As I mentioned earlier, the three-year figure comes from the Scottish model, which was based on no analysis of risk to public security. That is why Amendments 2 and 3 are essential. They will ensure a six-year rather than a three-year limit for the retention of DNA and fingerprints. I beg to move.

Lord Goldsmith: My Lords, I strongly support the amendment moved by my noble friend. As noble Lords will know, I have some experience in dealing with crime from the years when I held office in government. Two things became very clear during that period. The first was the enormous value of DNA in solving serious crime. Time and time again, cases came before me involving DNA, including a number

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of cases that came from the so-called cold cases review, which involved investigating crimes from a number of years before. There were some remarkable discoveries-for example, the so-called Sheffield shoe rapist who was discovered, some 20 years after he had committed, I think, four rapes, two attempted rapes and probably many more, as a result of a match to DNA from his sister who had been arrested, I think, for a driving offence. That would never have come to light but for the cold cases review and if that DNA had not been retained. It is not simply a case of bringing those who deserve it to justice; it is also a question of protecting others from that person. Those who have been convicted, particularly of such serious offences, as a result of DNA are at least off the streets and therefore less likely to cause harm to women, in particular. That is the second point I want to underline.

My noble friend rightly made the point that there is no more important series of cases for DNA evidence than serious sexual crimes, rape and other offences against women. That is the second thing that I discovered in my time. These are difficult cases to deal with and to convict on, but they cause huge anxiety, shame and sorrow. The great tragedy is when they do not result in a satisfactory result. I am therefore extremely worried about the Government's proposal to remove without a proper evidential base evidence that could be used in just such cases. In the light of what my noble friend said, this change should not take place until and unless there is clear, convincing evidence that it is not going to put more people at risk or leave more criminals on the streets. For that reason, I strongly support this amendment and the other two amendments in this group.

Lord Campbell-Savours: I want briefly to intervene because I feel quite strongly about this subject. I am not a lawyer, but I think I have my finger on the pulse of the people who were my constituents in Workington. The criminal justice system, even under my own Government, was often felt to be completely out of control in the sense that, as far as many people on the street are concerned, the legal system simply does not work in the United Kingdom. There is a total disconnect between the people who stand behind this initiative and the wider public in the United Kingdom. If you were to do an honest poll of people on the streets of Britain, not a poll simply of libertarian opinion, and ask them their view of DNA and its retention, particularly in the context of their lack of confidence in the criminal justice system, you would find overwhelming support for the retention of this material.

The Government have got the balance wrong. They have taken the libertarian position too far and, in the event that this becomes law, they are going to end up with a number of cases surfacing in the national media, particularly in the tabloids, that reveal that people had committed offences and had not been tracked down simply because DNA had not been retained as a result of this legislation. I object very strongly because I believe that the Government are making a major mistake.

From a Conservative position, the Government would do well to look among their own supporters. Among many of the Conservatives who I know and

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mix with, there is overwhelming support for DNA retention. Many Conservative supporters simply do not understand why the Government are going down this route. I do not know whether they are being driven by the libertarian agenda that is being pushed by the Liberal Democrats in the coalition-they may well be-but if they are, they should take stock of what they are doing because they are making a mistake and they are upsetting their own supporters, who feel as strongly as I do. The Minister will mix with people in the county of Cumbria, where he lives. If he discusses this with his colleagues in the county of Cumbria, he will find the same view: that we should retain this material as it is a way of safeguarding the future of the criminal justice system and making it more operationally effective.

Finally, this is only one of a number of initiatives that the Government are taking in this Bill. They are introducing what some believe to be a more liberal regime in the use of cameras and CCTV. Again, the public support those cameras. I understand that the Government were involved in a consultation exercise earlier this year. I have not seen the result of that consultation exercise, but what interests me is who was consulted. Was it the people on the street, who have strong attitudes on these matters and who invariably fail to respond to consultations, or was it again this libertarian opinion, which worries me when it manages to secure changes in legislation in the form that we see today?

Let me just say where I stand on DNA. I believe that there should be a national DNA bank, established initially on a voluntary basis, whereby we no longer stigmatise the retention of DNA. I believe that millions of people would provide their DNA if only to prove that that is the route we should be going down. Only at the end of a process of introducing voluntary DNA will we be prepared at some stage in the future to take the necessary initiative to store all people's DNA compulsorily-but let us start with a voluntary basis. There might be some entrepreneur who is prepared to fund that kind of approach to the retention of DNA, but it is only by taking away the stigma that we release ourselves from the arguments that have led to this legislative change that we are confronted with today.

Lord Condon: My Lords, I also support Amendment 1, for the reasons set out so eloquently by the noble Baroness, Lady Royall. I respect entirely the Government's wish to revisit the balance and to ensure that there is public confidence in the retention of DNA. I have not been an overstrident defender of police powers or police databases for their own sake. However, this is one area where the Government are in danger of getting it wrong and coming down on the side of a change that will not be in the interests of the public.

It is now 12 years since I retired as Metropolitan Police Commissioner, and there have been more advances in DNA science in those 12 years than in the whole history before that period. More and more cases can be reviewed in a cold case way, particularly in the area of sexual offences and violence, where the database has been invaluable in bringing to justice people who have been vicious assailants of both men and women.

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If, as I suspect, the Government are not of a mind to give much way on this amendment, I hope the Minister will at least give us some reassurance on how the advances in science and DNA will not be neutralised by shedding DNA databases, which will be so valuable in looking back as well as forward.

Lord Phillips of Sudbury: My Lords, I rise with diffidence to support my Government, because I think that the issues are extremely difficult and that one has to balance very unalike aspects of our society and culture. I was going to say, until the noble Lord, Lord Campbell-Savours, said it for me, that the logical conclusion to question of the retention of DNA, fingerprints and so on would be for the whole population to be required to give its DNA, fingerprints and so on. That has a simplistic appeal to it. The argument against it, however, is rather the same as the argument against there being surveillance cameras on every corner, in every street and in every lane-the same as the argument against intrusive surveillance through telecommunications. After all, if one could tap any and every conversation all the time, one would no doubt have another huge reservoir of information wherewith to convict criminals.

3.30 pm

I am also alive to the fact that if you stop 100 people in the street at random and ask them the Question on the Order Paper, I suspect that most of them would side with the Opposition on this, although I am not sure that dealing with such a complex issue is susceptible of that sort of polling. Let me emphasise that I do not for a second undervalue or underrate the pain, suffering, grief, sense of injustice and so on of a person who is the subject of a serious crime that is never resolved.

However, one has to think, I believe, of the whole ethos and culture of our society and how far it defends privacy. This is a privacy issue, just as phone tapping is. Weighing the balance of one with the other, one also has to feed into the mix the psychology of what we are talking about, which is extremely difficult. Is a society that is at one extreme, which is subject to the full panoply of surveillance and the rest of it as a matter of compulsion, likely to be a different society from the one that we have? I would say that everyone in this Chamber would say yes. I suspect that few of us would be able to articulate quite why we would say that.

At the end of this murky debate, I am afraid that I come down more on the side of the preservation of freedom and privacy than perhaps some who would come down more on the side of detection and bringing to trial. I can get no further than that, but it leaves me in support of what the Government are seeking to do in this Bill in this respect.

Lord Soley: Perhaps I may intervene briefly in support of this proposed new clause and to add to what my noble and learned friend Lord Goldsmith and my noble friend Lord Campbell-Savours have said. There is an additional argument. I agree entirely about the cold case and about a voluntary database. Indeed, in this House and prior to being in this House, I have said that we should have a voluntary database and that I should be delighted to be on it.

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In a sense, my answer to the noble Lord, Lord Phillips, is that the difference between this and cameras is that it is much harder to come up with ways in which a DNA database could be misused by the authorities or anyone else. There is a deterrent factor. The final and only different point that I want to make to those that have already been made is that we should not rule out the deterrent effect of a DNA database. If a person on that database has raped or killed, or has carried out a violent attack, their DNA will be on that database and they know it.

Put yourself in the mind of the victim for a while and think of their rights. Victims have rights, which it is important to respect. As a deterrent factor, a database of DNA is very useful. It also enables the person who is not guilty of an offence-there have been a number of those recently-to be ruled out at a much earlier stage. The gentleman in Bristol who was wrongly accused initially of a murder in Bristol last year would have been ruled out much more quickly had the DNA database with his DNA on it been available. It is important both as a deterrent to further violent crime and as a protection for those who are wrongly accused. Quite simply, never ever rule out the rights of the victims, which we are very fond of doing at times. In the House of Lords where we do not deal with these things directly on a constituency basis, as my noble friend Lord Campbell-Savours said, you do not see the victim quite as starkly as you might. Those victims have rights, which we should defend and protect.

Baroness O'Neill of Bengarve: My Lords, I should like to ask the Minister whether the Government considered an alternative way of reducing recourse to the DNA database that would, on the one hand, have restricted the police from searching the database except where there was a proposal to press charges for serious violence or a serious sexual offence, and on the other hand where the person arrested requests that the database should be searched for the purposes of exoneration.

Baroness Hamwee: My Lords, I am so glad that I prompted my noble friend Lord Phillips to speak before me because he put into words much better than I could have done things that I was trying to articulate in my own mind. He mentioned the possibility of a 100 per cent compulsory database, and I too had been working towards that as a question. I cannot, however, follow the suggestion of a voluntary database. I am not a psychologist and I cannot put myself into the mindset of an offender, but it is difficult to believe that a voluntary database would be any sort of deterrent at all.

Lord Campbell-Savours: My Lords, I thank the noble Baroness. It would dilute the stigma.

Baroness Hamwee: The noble Lord, Lord Soley, talked about deterrence in the context of a voluntary database. I take the point about stigma, but only a little bit.

On the requirement for further evidence sought in the amendment, as the noble Lord, Lord Condon, has said, the science and the technology are both galloping forward very fast, and logically one could make an argument for continually looking for further evidence

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as the science goes forward and never coming to a conclusion. It is always possible to ask for more evidence, and we will hear from the Minister what evidence the Home Office has looked for. However, I would like to ask him in this context about the post-implementation review mentioned in the impact assessment. There are a number of boxes under that heading that are not completed. Perhaps he can tell the Committee something about the establishment of the criteria for the assessment under a post-implementation review, because that would be helpful.

I am not sure that the amendments in this group that seek to extend the period are entirely consistent. We are in Committee, so I understand that, but to seek to decide whether to increase or decrease the time period while at the same time calling for further evidence before implementing this part of the Bill does not quite seem to hang together. However, that is probably a picky and unworthy argument because, as my noble friend said, the noble Baroness has raised matters that are extremely important.

Lord Dear: My Lords, we have discussed the rapid advances in DNA technology, but a fact that noble Lords may wish to take note of is that we are literally on the brink of a breakthrough in DNA analysis whereby, although the same sample being tested in the laboratory does not produce a hit on the database, it will nevertheless produce a pretty good description of the person who has given the sample. That will move the debate into a whole new area. I say that to put the record straight on just how fast databases are moving forward.

There is no doubt that if legislated for as we are considering, DNA technology will undoubtedly bring some convictions from cold case reviews. Indeed, that has already been mentioned from the Cross Benches. However, I have to say that, as a proportion of the total number of cases dealt with and convictions brought each year, the number will be relatively very small. Undoubtedly these reviews will frequently focus on serious cases involving rape or violence where the victim has suffered enormous trauma.

Having concluded my brief opening remarks, I have little else to say other than that I support the stance taken by the noble Lord, Lord Phillips of Sudbury. There has been far too much intervention in the privacy of the individual. We are currently reading in the newspapers about the conduct of the Leveson inquiry, which is yet another example of possible intervention in another sphere. That thrust of the interventionist state into our lives is something that this Bill seeks to reverse. Although this is an emotional issue, it raises great interest in the criminal justice system and in my former service, the police service. I shall make very few new friends in the service when I say that I believe that the safeguards proposed by the Government in trying to search for this balance are appropriate. I therefore support what the noble Lord, Lord Phillips, has said as well as the general thrust of this Bill.

The Earl of Erroll: My Lords, I associate myself with the comments of my noble friend Lord Dear and the noble Lord, Lord Phillips of Sudbury. Certain

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things can go wrong all too easily. DNA is not a straight yes/no; at the end of the day, if something is done in a laboratory, you are talking about an analogue match that is reduced to certain points. We have seen sometimes the misinterpretation of fingerprints. When a computer has reduced it to X points, it is not necessarily a true match. There have been miscarriages of justice as a result. People have refused to admit mistakes later because of the tendency of the system to try to cover up its mistakes for the greater good, in order not to discredit something that is widely accepted as evidence.

I am also worried that, if DNA exists and is associated with a case, you use it to try to prove some guilt. You do not know how it got there. I might have tried on a jersey in a department store and left a couple of hairs on it. It might later have been bought by someone else and the knife that went into the person might have carried one of my hairs inside the wound. With our DNA techniques, it could be deduced that I was the person who was at the place in question-you do not know

The trouble is that, because we have an adversarial system, we do not seek to find the truth in our courts; we see who has got the best lawyers to discredit the evidence on the other side. That can be dangerous sometimes with things such as DNA, which is fairly new. We have widely different quoted figures for what an exact match is and for the probability of a match that do not take into account laboratory accuracy. We need to think about exactly how accurate it really is. You also get criminal seeding of sites, which has been going on for a long time-taking ashtrays from pubs and leaving DNA evidence elsewhere to sow false things.

What worries me, finally, is what we saw happen with RIPA-that is, function creep. This will start off in the serious crime arena and then get extended, because it is an easy way to find who was where when or who handled what. We have to be very careful about making sure that that does not happen if we are going to retain DNA as evidence. That is why I approve of the Government's stand and of what the noble Lord, Lord Phillips, said.

We seem to treat very lightly the fact that someone should be arrested. Actually, that goes on your record and it stays there even if you are never then prosecuted or a charge is not laid properly. The fact that you have been arrested will disbar you from all sorts of things. A simple example is the American visa waiver scheme. I am fairly certain that you cannot get a US visa waiver if you have been arrested. For some people, there is no smoke without fire. We have to be very careful before thinking that just an arrest is okay and that it is all forgotten in the wash-it is not.

Lord Macdonald of River Glaven: My Lords, this is a difficult and sensitive issue, and I have great sympathy with what the noble and learned Lord, Lord Goldsmith, said a moment ago. When he was Attorney-General and I was Director of Public Prosecutions, we often saw the result of DNA evidence in successful prosecutions. Nobody for one moment would underestimate, in spite of what has been said recently, the importance and the potency of that evidence, particularly in cold-case reviews.

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Nevertheless, I am driven to support the Government's position on this amendment, largely because of the sentiment that was expressed by the noble Lord, Lord Campbell-Savours. The rational and honest conclusion of the previous Government's policy was a national DNA database. The policy was discriminatory in a sense that has not been addressed so far in this debate. Everybody knows that more young black men than young white men are arrested on the streets of our cities by proportion of population, and therefore more are swabbed. Therefore, a database that was growing as that one was, uncontrolled by any process of anti-discrimination, was inherently dangerous.

The safe process, if the Government had wanted to go down that road, as was once explained very eloquently by Lord Justice Sedley on the "Today" programme, was to institute a national DNA database. That was the logical and only fair extension of the previous Government's policy. I cannot support the concept of a national DNA database. It seems an inherently totalitarian concept. The idea that newborn babies would be separated from their mothers in our hospitals to be swabbed before being returned for suckling, or however the process is conducted, seems deeply totalitarian and unacceptable.

The Scots have got it about right. These are questions of balance. Of course the position of victims is critical, but we also have to develop a system which achieves a balance between justice for victims and justice for defendants in a free society in which the Government play an appropriate and not overly intrusive role in people's lives.

3.45 pm

Baroness O'Neill of Bengarve: My Lords, before we go further with the fantasy of newborn babies being separated from their mothers to be swabbed, let us remember that all newborn babies have a pinprick test of their heels in order to get a blood sample for a Guthrie test to be sure that they do not suffer from a serious metabolic disorder-namely, PKU-and that these samples are retained. So a database, in that sense, exists. We should discuss the uses of databases rather than what exists or how samples are taken.

The Minister of State, Home Office (Lord Henley): My Lords, I start by picking up on the point made by my noble friend Lady Hamwee about Amendments 1, 7 and 8 not being consequential. I do not know what are the ultimate intentions of the noble Baroness, Lady Royall, but I agree with my noble friend that Amendments 7 and 8 are not consequential on Amendment 1. Certainly if the noble Baroness was minded to divide the House on Amendment 1, I would not accept the consequences of the House's decision as being binding on Amendments 7 and 8. However, I shall leave that to the noble Baroness when she gets to them.

As the noble Baroness, Lady Royall, made clear, Amendment 1 would delay the implementation of these provisions by several months. I remind the House that the provisions in Part 1, Chapter 1 of the Bill represent the response of the Government to the European Court of Human Rights judgment in the S and Marper

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case, to which the noble Baroness referred, which is already three years old. If the previous Government had implemented compliance legislation when they had the chance in 2009-10, we would not now have more than 1 million innocent people recorded on the DNA and fingerprint databases and we would not have had to legislate again on this subject in this Bill.

The previous Government's proposals, to which the noble Baroness referred and which she obviously still supports, received at that time virtually no support at all beyond her own Front Bench. She has obviously since then dragged up a bit more support from her Back Benches. Our proposals, which very much adopt the Scottish model, have been welcomed by a wide variety of organisations such as Liberty, Justice, the Law Society, the Criminal Bar Association and GeneWatch. They all gave evidence to the Public Bill Committee in another place and welcomed the Government's general approach in this area. The Scottish model has also found favour with the Joint Committee on Human Rights and with the Constitution Committee, which have both referred to it.

The noble Baroness referred to evidence from the 2009 analysis, which was based on only three years of evidence, as I understand it, extrapolated to a point where it was essentially of, it could be argued, no real value. I refer the noble Baroness to our analysis, which was published in September and used five years of evidence, looking crucially at the likelihood of conviction. Therefore, further analysis is unnecessary.

However, I can tell my noble friend Lady Hamwee that there will be a post-implementation review, as there always is, and if we failed to include something in our impact assessment again I can only say that Homer nodded on this occasion and that we will make sure that that does not happen in future. I believe that further analysis is unnecessary and our proposals to retain unconvicted persons' DNA for only three years are correct, and then only in respect of serious offences.

The analysis has been looked at by many independent experts, who have considered it closely. For example, as my honourable friend the Minister for Crime and Security, James Brokenshire, said in Committee in the other place,

We have consistently supported the adoption of the protections of the Scottish model, and that was a central plank of our programme for government announced last May. We believe that our proposals represent an appropriate balance-and I was very grateful to the noble Lord, Lord Dear, for using the word balance-between the rights of those who have not been convicted by a court and the need to protect the public in some of the most difficult cases.

If the noble Baroness would like a little support from her own Back Benches, I can also refer her to the widely respected independent website Straight Statistics, whose board of directors is chaired by her noble friend Lord Lipsey. It has examined the research and reached the conclusion that:

"Despite the limitations of the analysis, acknowledged by its authors, it does suggest that the retention periods allowed under

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the 2001 and 2003 Acts were unduly long, as were those proposed in the 2010 Bill. The present bill, which is broadly similar to the law in Scotland, gets the balance more nearly right".

The noble Baroness seemed to imply that we offered full support to the 2010 Bill. Again, I remind her, as I did in my intervention, that that Bill went through in the wash-up, very rapidly. Obviously, we offered it support in that six years was considered an improvement on the situation in the past, but we have not yet brought those provisions into effect and we have no intention of doing so. We think it better to bring forward these proposals, which are more likely to comply with the European Court of Human Rights judgment.

Again, I refer the noble Baroness to comments made by the then Policing Minister, when the noble Baroness's party was in government, who said to the Public Bill Committee on the Crime and Security Bill that,

that is, the judgment of the European Court of Human Rights-

In our judgment, we should be seeking a balance, rather than riding roughshod over the rights of the million or more innocent people whose DNA profile is on the database despite them never having been convicted of any crime.

I turn to Amendments 7 and 8, which deal with the period for which we seek to retain the DNA and fingerprints of innocent people, which was discussed at some length in another place. These amendments would replace the Government's provisions, which meet our coalition commitment to adopt the protections of the Scottish model, with the core of the last Government's Crime and Security Act, which was rushed through in the run-up to the election. The party opposite persists in its approach to keep the DNA and fingerprints of innocent people for many years, no matter what those people have been accused of and no matter how little evidence was ever uncovered.

The noble Baroness referred to some 23,000 offenders. I was never quite sure where they had come from and whether they were alleged rapists, alleged something else or just people who had been arrested. Similarly, at the Labour Party conference in September, the shadow Home Secretary said that this Government will,

the DNA database, which,

Of course, we all believe that increasing the conviction rate for rape and other serious offences is important. But are those on the Front Bench really saying that, in order to increase that conviction rate, we need to keep the details of thousands of innocent people on the DNA database because some of them in the future may go on to commit serious crimes?

I say to the noble Baroness that the conclusions of the report from the noble Baroness, Lady Stern, last year are far more important. She looked at the handling of rape by the police and by criminal justice and made some 23 recommendations in that area. While her

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terms of reference did not include the criminal law, her report recommended reassessing the essential elements of investigating rape cases, supporting victims to improve the handling of investigations and improving victim support, which would build stronger cases. Her recommendations on that occasion included ensuring that all police officers adopt ACPO's Guidance on Investigating and Prosecuting Rape and adopting the protocol between the Crown Prosecution Service, the police and local authorities on exchange of information. I say to the Committee that these issues are more likely to be of assistance in increasing the conviction rate for rape than keeping 1 million-or whatever number we think it is-innocent people's DNA on the national database.

In any event, the contention that every individual suspected of rape will instantly come off the database is just not true. Those charged with a qualifying offence, including rape, will have their DNA held for three years, and the police will be able to apply to the courts to extend that by a further two years. Those arrested for but not charged with a qualifying offence where the victim is vulnerable will also have their DNA held for three years, subject to the approval of the new independent commissioner. We have consistently taken the view, both during the passage of the Crime and Security Act and in advancing our proposals in this Bill, that the correct approach is to ensure that those convicted in the past of serious offences have their DNA added to the database, while those arrested for, but not convicted of, more minor offences should not have their biometrics held beyond the end of the investigation.

Lord Campbell-Savours: I wonder if the noble Lord would answer a question that was asked of me, and which came up in discussion when we were arguing about this the other evening. What is the difference between holding personal information in the form of a photograph-a simple photograph, such as a passport photograph-in a national database, as against holding DNA?

Lord Henley: I am trying to remember who it was, but I think the noble Lord, Lord Macdonald, made the point that he found somewhat scary the idea that we should have a national database with everyone's DNA on it, which was being promoted by the noble Lord and others of his colleagues. I feel exactly the same as my noble friend and I hope that that is a suitable response to the noble Lord. As I said, the idea that you could hold all that information in the form of DNA is very different from holding photographs. The noble Lord is speaking from a sedentary position but, if I could continue to try to answer him, that is a great distinction from keeping a photograph. I find the idea scary; obviously, the noble Lord does not.

Lord Soley: If I might intervene, my noble friend is right. The database is holding our photographs from driving licences and passports. The noble Lord's blood group, and mine, will be on the database too. It will virtually be a national one for the National Health Service. What we do with the data and how we control their use is what matters, but I ask the noble Lord to remember that he is talking about something here that

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may well prevent many people being killed or raped, or suffering serious abuse. There is not enough thinking here going on about the victims and potential victims.

4 pm

Lord Henley: As I said, my Lords, there is a balance. What the noble Lord is advocating could also lead to a great many miscarriages of justice, as the noble Earl, Lord Erroll, pointed out. I appreciate that noble Lords opposite would like to bring in identity cards and a national database of the DNA of every person in the country. We do not go down that route; we feel that there should be an appropriate balance between what is kept and what is not. That is why I would reject the amendments.

Baroness O'Neill of Bengarve: I would like to return to the question asked by my noble friend Lord Campbell-Savours, which is a serious one. The information that is retained from a genetic profile for the purposes of the forensic database is not revealing information, such as susceptibility to disease or other genetic factors. It is a selection of the DNA evidence that used to be referred to as "junk DNA", which is not known to code for any personally sensitive feature of persons. In that respect it is what in other aspects of privacy legislation is called an identifier. That suggests that in some ways it is less personal than a photograph of someone's face.

Lord Henley: Sorry, but I do not accept that. I refer the noble Baroness to the comments made by the noble Lord, Lord Dear, that we are in the early days of knowing what DNA can and might achieve in the future. We are offering a very large amount of information to be stored in that DNA. I find that idea scary. Obviously some noble Lords, such as the noble Lord, Lord Campbell-Savours, do not; indeed, they positively welcome it. On this, there will have to be a philosophical divide between the noble Lord and myself.

For the reasons that I have given, I would certainly not support the amendment and I hope that the noble Baroness, Lady Royall, will feel able to withdraw it because I do not think it would command the support of the House.

Baroness Royall of Blaisdon: My Lords, I am grateful to the Minister for his response and to all noble Lords who have participated in this short but excellent debate. I do not really understand what the Minister is saying about the wash-up. He seems to imply that if a Bill is agreed to in the wash-up, it does not have as much authority as other Bills.

Lord Henley: My Lords, I was not saying that at all, though sometimes Bills are rushed through without quite the same scrutiny that they normally deserve. The noble Baroness was trying to imply that that Act had the full support of the Official Opposition. My point was that, yes, we signed up to it because it was an improvement on what was there before, but we still felt that it did not go far enough in that it left the term at six years. We are proposing something different: three years, with the possible extension of another two years.

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Baroness Royall of Blaisdon: I am grateful to the Minister.

The noble Lord, Lord Phillips of Sudbury, talked about the culture of society. He is right to do so. From our discussion today, it is clear that there is a fine line between the preservation of the freedom and privacy of individuals and the protection of citizens from crime and the delivery of justice, and there is a clear discrepancy in that balance. My Benches believe in protecting the freedom of citizens to be protected from crime and the freedom of victims of crime to see their assailants brought to justice. That is the side of that fine line that we fall on. That is the culture in which I wish to live. I wish people to be protected from crime and I wish assailants to be brought to justice so that the victims of crime have proper justice.

The noble Lords, Lord Dear and Lord Condon, spoke of advances in science, which are very important. I respectfully suggest to the noble Lord, Lord Condon, that the very fact that there are such fantastic advances in science, and the fact that our country leads in DNA technology, should perhaps make us think that now is not a good time to reduce the length of time for which our DNA is kept precisely because science may enable us to make better use of those samples in the future.

My noble and learned friend Lord Goldsmith and the noble Lord, Lord Condon, talked about the value of DNA in solving serious crimes, including in the review of cold cases. I agree with them. The Minister spoke of the excellent report of the noble Baroness, Lady Stern. I certainly welcome all the recommendations that she made, which will make a difference to convictions for rape if they are implemented. However, those convictions will be added to if we are able to retain DNA; even more perpetrators will be brought to justice.

My noble friend Lord Campbell-Savours and others are absolutely right when they talk about having their finger on the pulse. That is not to say that we as legislators should follow our citizens in every way; we have a duty to lead. However, in this instance the citizens of our country who believe that they gain better protection from the longer retention of DNA are absolutely right. That is certainly the case in the Forest of Dean, where I come from.

Yes, the Government certainly have an obligation to ensure that individuals are protected from unjustified interference, but they also have an obligation to protect people from crime and to deliver justice for the victims of horrific crimes. With their proposals in Chapter 1, the Government are abrogating their responsibility in these areas. The balance that we have all been talking about this afternoon is important and, in this instance, the Government have got the balance wrong.

I will withdraw my amendment but I will read the debate thoroughly in Hansard. I have to say that it is my intention to bring something back on Report. The noble Lord assumes that, were I to do so, I would not have the votes of the House behind me but we shall see. It is extremely important that the citizens of our country see that we take this issue seriously. With that, I beg leave to withdraw my amendment.

Amendment 1 withdrawn.

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Clause 1 : Destruction of fingerprints and DNA profiles

Amendment 2

Moved by Baroness Hamwee

2: Clause 1, page 2, line 7, at end insert-

"(c) any biographical information relating to the material referred to in paragraphs (a) and (b)."

Baroness Hamwee: My Lords, I shall speak also to Amendment 3. These are among a number of probing amendments that I tabled following receipt of a briefing from the Information Commissioner, which I am aware has been sent quite widely to your Lordships. Therefore, I hope I do not need to spend too long on any of the individual items. It seems that I need not consider with too much suspicion or cynicism whether the Information Commissioner might have got hold of the wrong end of the stick. I am very happy to rely on a briefing from him.

Amendments 2 and 3 would add references to biographical information relating to the material dealt with by Clause 1. The commissioner is concerned that, although there is provision to delete fingerprints and DNA profiles, allied biographical information that is held on the police national computer or the police national database is not referred to. Perhaps the Minister can help me with the basis of these amendments. Is the PNC record also deleted when the DNA profile is removed? At present, records held on the PNC are readily accessible. The noble Lord, Lord Dear, may tell me that I am wrong, but it has been suggested that because that information is there access is frequently used to run a name check on individuals who come into contact with the police. Noble Lords will understand the inaccurate assumptions that may be made as a result of this.

The fifth principle of data protection states:

"Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes".

It seems to me that we should be looking at biographical information alongside the technical information. I beg to move.

Lord Henley: As my noble friend has explained, these amendments were tabled following receipt of a letter from the Information Commissioner, which I think a large number of us have seen. They seek to amend Clause 1 by extending the scope of the provisions for deleting fingerprints and DNA of those arrested but not charged or subsequently not convicted to all police records held on that individual. For ease, I shall refer to these records as "arrest-only records". In our view there is no need to extend the scope of the clause to cover arrest-only records. What is retained on police records should continue to be an operational matter for chief police officers to decide.

As your Lordships may be aware, the Association of Chief Police Officers has already issued guidance to forces in the light of the Supreme Court judgment earlier this year in the case of GC & C v the Commissioner of Police of the Metropolis. ACPO issued a letter on 16 June to chief officers which said that,

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Therefore, in effect, ACPO has already put a deletion process into effect for arrest-only records held on the PNC. To go further and then delete all records from every other police database, whether national or local, would, in our view, be a step too far. On balance we think that the approach taken in the ACPO letter is the correct and appropriate one. It creates the correct balance-I apologise again for using the word "balance"-between civil liberties and public protection. It also creates consistency between the retention of arrest-only records on the PNC and the treatment of fingerprints and DNA profiles in the Bill.

We have to appreciate that, once the details are removed from the PNC, front-line operational officers will not be able to tell whether an individual has previously been arrested and not subsequently cautioned or convicted. They will not have access at that point to the police national database nor will they necessarily be able to check local records. That, we believe, provides the necessary safeguards for individuals. The fact that a person was arrested or went to trial is a matter of fact and keeping those details on databases that are not readily available to all police officers means that that information will not be visible to the officer making the stop.

Going further and deleting all arrest-only records from all databases means that the police would have no way of knowing that an individual had come to their attention before. It would also mean that the enhanced criminal record checks could not show details of those arrests where they are relevant to a particular application. Such an approach would significantly weaken the public protection afforded by the criminal record regime. I hesitate to refer to it, but it could result in another Huntley-type case where relevant information about previous suspicious behaviour is not disclosed. I accept that in that particular case the records were not effective in preventing what subsequently happened, but that does not alter the fact that the records were there to show a history of arrest linked to a certain type of offending.

I appreciate that at this stage they are probing amendments, but their effect would be that all police databases would be reduced simply to holding details of cautions and convictions. All other intelligence would be removed. In our view, that would hamper the ability of the police properly to protect the public, and for that reason I cannot support the amendments. I therefore hope that my noble friend will be prepared to withdraw the amendment.

4.15 pm

The Earl of Erroll: I am quite intrigued by this. The police have a policy in some cases of arrest first and ask questions later, particularly when householders are defending their property, and so on. These people will therefore effectively be regarded in perpetuity-or at least for as long as they live-as having behaved undesirably, even though they have never been in front of a judge or the courts and we should therefore deem

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them to be innocent. I am worried by the attitude that that should stay on file. I fully realise that we must watch out for cases such as that of Huntley, but they are surely dealt with by the other provisions, whereby you are allowed to retain the records in certain circumstances.

Lord Henley: My Lords, again I repeat the word "balance". It is a question of balance as to what is appropriate. Again I stress that it is a matter of fact, referring to the noble Earl's example, that that person has been arrested. He might not have been appropriately arrested and the noble Earl might feel that that should not have happened. However, the simple fact is that he was arrested and there are occasions when keeping that information may be of some use.

Baroness Hamwee: My Lords, like the noble Earl, I blinked at the words "a step too far" and I appreciate that the Minister went on to try to explain that. It would be only right to read his explanation in order to seek to understand it. However, I have more questions now than when I introduced these amendments.

I should also say that I have a little difficulty in relying on ACPO guidance, if I have correctly understood its status. There is no question about whether it is proper. However, it is one thing for a statute to allow something and for ACPO then to withdraw a little from it, but that is not as good as the statute being clear. I was also not sure how that lay with the Minister's comment about this being an operational matter for the police. Having added to the list of questions in my head, I will of course withdraw the amendment. This issue may be something that I can discuss with the Minister between this stage and the next. A lot of complications and procedures are not evident in the Bill, which of course deals with just one aspect of the way that the police organise themselves. I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Amendment 3 not moved.

Amendment 4

Moved by Baroness Hamwee

4: Clause 1, page 2, line 27, leave out "desirable" and insert "necessary for the prevention or detection of crime, or the investigation of an offence"

Baroness Hamwee: My Lords, I shall speak also to Amendment 22. These amendments deal with two provisions about speculative searches. Clause 1, on the destruction of fingerprints and the DNA profile, and Clause 22, on the destruction of samples, state that they do not prevent a speculative search,

My amendments relate to the term "desirable" and propose wording taken from Clause 15, whereby, instead of when it is "desirable", fingerprints and DNA can be kept when,

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Without wanting unduly to hinder the police's discretion, it seems to me that those two provisions are very wide. The Explanatory Notes states that the material could be retained for a "short period". I do not read that into the two clauses. Perhaps the Minister can help me with that and about what limitations there might be on this apparently wide provision. I beg to move.

Lord Henley: My Lords, I have some sympathy with what I think the noble Baroness is trying to get at with the amendments, certainly from my understanding of the letter from the Information Commissioner, but we believe that her amendments would both seriously undermine the effectiveness of the national DNA database and significantly increase the cost of the administration of the system at a time when police budgets are under significant pressure.

In terms of effectiveness, we are advised by the police service that the key point in the taking and retention cycle for DNA and fingerprints is the carrying out of a speculative search immediately following arrest and sampling. For those of your Lordships who are not familiar with this process, it involves the comparison of the newly-taken DNA and fingerprints with material from previous crime scenes and with those whose biometrics are retained following conviction or, in the limited circumstances that we will be discussing shortly, from those suspected but not convicted of serious offences.

It is that speculative searching process which results in the identification of those who have already committed crimes, which I would hope that all of your Lordships would agree is a vital public protection measure. To give an example, a speculative search was undertaken on the DNA profile of Mark Dixie in June 2006, when he was arrested following a fight at the pub where he worked. He was not charged with that offence, but his DNA was matched to biological material left at the scene of the murder of Sally Anne Bowman the previous September. As a result, he was subsequently convicted and sentenced to life imprisonment.

The Government consider that carrying out a speculative search in each case where DNA and fingerprints have been taken on arrest is vital to the effectiveness of the database in identifying such crimes and far outweighs any additional intrusion in Article 8 terms. Indeed, in its recent report on the Bill, the Joint Committee on Human Rights commented at paragraph 45 of its report that,

I appreciate that my noble friend does not want to stop such searches, merely to require the circumstances to be considered before a search is carried out. As I said at the beginning of my remarks, it would add to the delay and cost of each arrest for such consideration to be given. There were nearly 1.4 million arrests for recordable offences in 2009-10, a figure I gave to the House earlier today at Question Time. Thus, the additional time required for police officers to consider whether searches were necessary would run to many thousands of hours and could well result in many thousands of additional hours spent in detention by those being investigated.

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I can assure my noble friend that we considered this issue carefully in bringing forward our proposals and we consider that carrying out a speculative search in every case is an appropriate use of the DNA and fingerprints taken on arrest. For those reasons, I cannot support Amendments 4 and 22 and I therefore hope that my noble friend will be prepared to withdraw the amendment.

Baroness Hamwee: My Lords, indeed I shall do so. When the Minister said "cost", I wrote the word "balance" because, as he said, it has come up in every line of every clause and on every page. I think I am left with understanding that the short period to which the Explanatory Notes refer-I appreciate that they are not binding-is the period for which the material is retained. The Minister is nodding at that. Having clarified that, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Clause 1 agreed.

Clause 2 : Material retained pending investigation or proceedings

Amendment 5

Moved by Baroness Hamwee

5: Clause 2, page 2, line 41, at end insert-

"( ) For the purpose of this section, an investigation is concluded when it is so certified by the responsible chief of police."

Baroness Hamwee: My Lords, Clause 2(2) provides for the retention of certain material,

as the case may be, the conclusion of proceedings, where proceedings are taken. My amendment seeks to define what is meant by the conclusion of an investigation for the purposes of this clause.

"Conclusion of proceedings" seems to be relatively clear. Presumably one gets to the end of a case or the end of an appeal. Alternatively, when an appeal is not possible, I suppose there is always the possibility of a case being reopened by the Criminal Cases Review Commission, but I shall not try to go there. However, we also ought to be clear about when an investigation is regarded as concluded. There has already been a good deal of reference today to cold cases. How cold does a case have to be before it is concluded? If it is cold but not solved, is it still unconcluded? I simply suggest, partly as a way of exploring this matter, that an investigation should be regarded as concluded when it is certified by the responsible chief of police. I beg to move.

Lord Dear: My Lords, I have the greatest respect for the noble Baroness, Lady Hamwee, but I have to say from practical experience of commanding the largest force in the British Isles other than the Metropolitan Police-having previously headed the operations department of the Metropolitan Police-that in practical terms, forgetting the philosophical benefits or disbenefits of the amendment, it does not stack up.

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There are thousands of offences on police books and well over half of them remain undetected. Therefore, seeking a certificate for every single one of them when one believed that an investigation was concluded would frankly be a bureaucratic nightmare. Quite apart from that, at the very serious end of offences it is not uncommon to have 50, 80 or 100 detectives and others working on an investigation. As the case winds on, that number will be run down until, months or even years later, you finish with perhaps five or six. There will come a point when everyone will know that the investigation has stopped because they will simply have run out of avenues to explore, but in my experience no chief officer would wish to say categorically, "It is finished", because that would be slamming a door in the face of victims. We have already spoken in your Lordships' House about the need to balance the rights and feelings of victims among other things, and that is absolutely right. I do not think that any chief officer of police would wish to say, "We have now certified that this is finished and as far as you, the victim, are concerned-or you, the general public, are concerned-we have now closed our books", and I do not believe that the public would wish to hear it.

Therefore, with the greatest respect and although I understand where the noble Baroness, Lady Hamwee, is coming from, on practical and philosophical grounds-and, if those fail, then certainly on grounds of sensibility to feelings-the amendment does not have my support.

4.30 pm

Baroness Royall of Blaisdon: My Lords, I am grateful to the noble Baroness, Lady Hamwee, for tabling this amendment, and for the explanation from the noble Lord, Lord Dear. I think that it demonstrates that there is potential confusion in this part of the Bill. The noble Baroness asked about cold cases. I understand the difficulty described by the noble Lord, Lord Dear, in saying whether or not a case has been concluded. However, if in subsection (2) we are saying that,

we need to be a little more specific. The noble Lord talked about the practicalities but also the philosophical nature of these issues. Philosophy is a great thing but when it comes to legislation perhaps it needs to be a little more specific.

Baroness Stowell of Beeston: My Lords, I thank my noble friend Lady Hamwee for moving her amendment. It relates to the briefing from the Information Commissioner that was circulated prior to the Committee stage. He expressed some concern that the reference in Clause 2 to the conclusion of the investigation was too open-ended.

I am sure that we would all wish the police to be able to conclude every investigation swiftly with either a conviction or conclusion that no crime has been committed. But, we would all acknowledge that in reality that is not the case, as the noble Lord, Lord Dear, has explained. There will often be cases when it is impossible to identify a suspect immediately and when evidence must be retained for a significant period in the hope of identifying a suspect in the future. My noble friend Lady Hamwee and the noble Baroness,

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Lady Royall, referred to cold cases. The case that comes to my mind is the one that has recently been reopened on the murder of Stephen Lawrence.

Evidence, including biometric material, must be retained in these circumstances to enable comparison with the suspect and, for example, to ensure that the suspect's legal team can examine and probe all the previous police lines of inquiry. If all evidence is not retained in such circumstances, the suspect identified later will be able to argue to the court that the destruction of such material would render it impossible for him to receive a fair trial. In such circumstances, even if Amendment 5 were to be made to the Bill, a chief officer would be unable to certify an investigation as complete, which is I think what the noble Lord, Lord Dear, was referring to. In addition, where it is possible for the police to conclude an investigation the introduction of such a certification requirement for all investigations would impose a new bureaucratic process on the police that would be both unnecessary and, when aggregated across the number of investigations conducted, costly. The illustration given by the noble Lord, Lord Dear, makes that quite clear.

For the reasons I have given, we are unable to accept Amendment 5, and I therefore ask my noble friend to consider withdrawing it.

Baroness Berridge: My Lords, I presume that the amendment relates to the previous paragraph in relation,

On my reading, there is an enormous safeguard in that once the police become convinced that the person has not been involved, the negative applies. The person's DNA material is taken but if it is then established that that person was not connected to the offence at all, surely the ability to retain the material in those circumstances fails. Therefore you do not have an enormous amount of material being retained until the conclusion of the proceedings. Will the Minister clarify whether I am correct in my understanding that the police can retain that material until the conclusion of the proceedings but only if they remain convinced that that person is still suspected of being involved in the commission of the offence?

Lord Newton of Braintree: My Lords, perhaps I might intervene briefly. The noble Lord, Lord Dear, made some effective practical points against the amendment. However, I am afraid that I am one of those simple souls who find it easier to look at these matters in relation to an example rather than in a general academic sense. There is a clear-cut case in which some of these issues might have arisen: namely, that of the gentleman in Bristol who was arrested-I forget whether he was charged-for the murder of Miss Yeates. It is now universally agreed that this was a mistake. Somebody else has been convicted and sentenced.

I do not expect my noble friend to be able to answer this because it is a bit of a bouncer, and it applies to all the amendments that we have so far discussed. How would the Government's proposals for retention apply

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to that case, and what difference would the amendments that have so far been discussed make to the case? I do not know the answer and would have to speculate. I suggest that it might be sensible if the Minister wrote to me about this rather than attempting an answer off the cuff.

Baroness Stowell of Beeston: My Lords, I am very grateful to my noble friend Lady Berridge for her intervention. I am pleased to confirm that her analysis of the subsection preceding the one we are discussing is correct. I am also grateful to my noble friend Lord Newton. I will take his advice, consider his points and be sure to write to him. I have been given some comfort on the way in which we may be able to respond to his query by the intervention of my noble friend concerning the subsection preceding the one my noble friend Lady Hamwee seeks to amend.

Baroness Hamwee: My Lords, one always knows about one-third of the way into a sentence that a "but" is coming. I anticipated it when the noble Lord, Lord Dear, started to make his comments. I entirely agree with the noble Baroness, Lady Berridge, about the application of these provisions. That is a safeguard, but it seems to me that it is more of an answer to the noble Lord, Lord Dear, than it is to me.

Of course I understand the practical problems. I said a few minutes ago that all the amendments are probing. The problem often is that when one tables an amendment to probe, it is taken as if one means every word. I am looking for an answer to my underlying question and I am not sure that I have yet heard it. What worries me is that even on the fairly narrow track that the noble Baroness, Lady Berridge, identified, there is the possibility of driving a coach and horses through what we all think we are agreeing this afternoon. I do not seek to apply more bureaucracy, but I do seek clarity. I am not yet clear, but there are more stages and I will not make more of a nuisance of myself at this stage. I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

Clause 2 agreed.

Clause 3 : Persons arrested for or charged with a qualifying offence

Amendment 6

Moved by Lord Rosser

6: Clause 3, page 3, leave out lines 28 to 30

Lord Rosser: My Lords, this group of amendments would remove, following a government amendment in the other place, the requirement to gain approval from the biometric commissioner to retain DNA and fingerprint profiles for three years for those arrested for, but not charged with, qualifying offences; remove the provision to allow the police to apply for a two-year extension in the case of persons arrested for, or charged with, a qualifying offence; and provide for persons over 18 arrested for or charged with a minor offence to have

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their DNA and fingerprints stored for six years, replicating the evidence-led provisions of the Crime and Security Act 2010.

On the retention of DNA for qualifying offences-serious offences-research by the Jill Dando Institute of Crime Science, which was assessed in a Home Office report in 2009, showed that the seriousness of the initial offence for which the person was arrested does not necessarily predict the seriousness of subsequent offences with which they may be associated. As a result of the Government's proposal on qualifying offences-I make no apology for returning to the figure-17,000 people arrested but not charged with rape will be removed from the database. It would be helpful to know the Government's assessment of the impact of this development. In addition, as my noble friend Lady Royall of Blaisdon said, rape has a low charge rate as well as a low conviction rate. Approximately 70 per cent of individuals arrested for rape are not charged, and we know the reasons why. It is often because of the impact of the trauma suffered by victims and problems over securing conclusive evidence.

As an example of the point that I am making, I repeat that Kensley Larrier was arrested in May 2002 for possession of an offensive weapon, which is not classified as a qualifying offence under this Bill. His DNA was taken at the time and retained, although the case never reached court. In July 2004, a rape was committed in the north of England, and DNA from that investigation was speculatively searched against the National DNA Database and matched against the acquittal sample. Larrier was convicted and jailed for five years and was entered on the sex offenders register for life, and that would not happen under this Bill. I repeat that the evidence from the Jill Dando institute shows that the seriousness of the initial offence for which the person was arrested does not necessarily predict the seriousness of subsequent offences.

The Government's proposals in this Bill, with its references to qualifying offences, are forcing a false distinction in the risk of further offences on the basis of little or no evidence and are shifting the burden of risk assessment on to the police. The judgment of the balance between risk to the public and the right to privacy is the responsibility of the Government, who should not place added administrative burdens on the police. Since the Government have accepted the argument that in some cases there will be a strong enough risk to public safety to warrant retention beyond three years, the way to go about it is not to create a convoluted and bureaucratic system where the burden lies on the police to make that judgment.

With that in mind, it would be helpful if the Minister could say something about the thinking behind the Commissioner for the Retention and Use of Biometric Material, because it would appear that the commissioner will be able to agree to the retention of DNA only for a person who has been arrested and not charged with a qualifying offence-that is, a serious offence-where the victim is vulnerable or where the person arrested knows the victim. The police will also have to show why they consider that the retention of the material is necessary to assist in the prevention or detection of a crime, which may be more easily said than done. If the

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person has committed a non-qualifying offence, as in the Kensley Larrier case, to which I referred, no application, as I understand it, can be made to the commissioner.

It is also far from clear that the Government's intended definition of "vulnerable adult" will even cover many rape victims. In the light of the evidence on rape cases and of the findings of the Jill Dando institute, why are the Government having the additional hurdle of the commissioner at all and certainly with such restrictive powers in relation to the retention of DNA? Will the Minister say whether the powers that the Government intend to give the commissioner mean that we shall have a system similar to that in Scotland, or is the argument still being made that there are significant variations from that system?

In evidence to the Public Bill Committee in the House of Commons earlier this year, the Association of Chief Police Officers said it had been in close contact with colleagues in Scotland on the National DNA Database Strategy Board, and they had indicated that the system proposed by the Government in this Bill had not led to any extensions and was quite complex to operate. Asked why it had not led to any applications for extensions, ACPO said that it thought it was because there were 6 million records on the National DNA Database; it had always argued that it was impossible to create a regime of individual intervention for a database of 6 million and it was necessary to make decisions based on automation, but that in effect the Scottish model had to rely on a judgment being made against an individual profile.

4.45 pm

There is little hard evidence to back up the Government's proposals in this Bill in respect of the retention of DNA-indeed, the exact opposite, since the evidence from the Jill Dando institute and in the Home Office report of 2009 suggests that the period of retention should be six years and that the seriousness of the initial offence for which the person was arrested does not necessarily predict the seriousness of subsequent offences. This group of amendments seeks to amend the Bill so that its provisions are based on firm evidence, to remove unnecessary bureaucracy that the Government are seeking to impose on the police, and to make clear that the burden of responsibility for risk assessment of those arrested and those arrested and charged should not rest with the police.

These amendments will help to reduce the number of victims of serious crime by increasing the likelihood of perpetrators of serious crimes being apprehended and taken off the streets, to the benefit of the public as a whole. I beg to move.

Lord Henley: My Lords, it seems that with this group of amendments the noble Lord first wishes to, in effect, remove the independent biometrics commissioner and then, as we discussed earlier, extend the period of DNA retention automatically to six years for virtually all offences. Amendments 6, 9 and 10 would leave the decision entirely in the hands of the police. Obviously I can see the attraction of effectively automating the process to reduce the administrative burden placed on

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the police in those cases. However, the Government consider this to be completely outweighed by the additional protection given to the arrested person by the safeguard of the commissioner's consideration. We considered this issue very carefully in drawing up our proposals.

We accept that it is appropriate in limited circumstances to retain material where a person has been arrested for a qualifying offence but not subsequently charged, and those circumstances are set out in new Section 63G(2) and (3) of the Police and Criminal Evidence Act 1984, which would be inserted by Clause 3 of this Bill. However, given that in such cases the charging standard has not been met, we believe that further safeguards are necessary, and the independent scrutiny of the commissioner provides that safeguard.

In support of his arguments, the noble Lord produced the case of Kensley Larrier, whose DNA, he claimed, was vital in getting him convicted of rape. My advice is that the DNA was not the key to his subsequent conviction for rape and on that occasion it was the complainant who took the police to the block of flats where he lived and described him in such detail that he could easily be identified. No doubt the noble Lord will say that that is just one example and will produce others, but it was not a very good example and it does not particularly support his case. Again, it is a question of finding the right balance.

I also remind your Lordships that the evidential charging standard is that there is a "realistic prospect of conviction", which is defined in the Code for Crown Prosecutors as,


Where the charging standard has not been met but the police believe there are valid reasons to retain the material, we believe that the process of applying to the commissioner, which we are determined to make as straightforward, simple and unbureaucratic as possible, provides an important safeguard.

As I have indicated, we believe that the police should be able to retain biometric material in limited circumstances. In this respect, therefore, the Bill goes beyond the Scottish system in allowing for the retention of material from persons who have been arrested but not charged, which is why we believe that there should be the safeguard that we have set out to form the biometric commissioner. As my right honourable friend the Home Secretary said at Second Reading in another place:

"We must protect the most vulnerable in society, so when the victim of the alleged offence is under 18, vulnerable or in a close personal relationship with the arrested person ... the police will apply to the commissioner for retention. I believe that these rules give the police the tools they need without putting the DNA of a large number of innocent people on the database".-[Official Report, Commons, 1/3/11; col. 207.]

For that reason, I cannot offer a crumb of comfort to the noble Lord in his Amendments 6, 9 and 10.

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Amendment 13 would provide for a six-year retention period in the case of a person arrested for or charged with, but not convicted of, a minor offence. Clause 4 delivers another of the key protections of the Scottish model. Read with Clause 1 it provides for the destruction of the DNA profiles and fingerprints of anyone who has been arrested for or charged with a recordable offence that is not a qualifying offence but who is not subsequently convicted. The Government's view is that not retaining that material taken from those arrested for or charged with a minor offence but not subsequently convicted strikes the right balance between public protection and individual freedoms.

The European Court of Human Rights was clear on this point. A key passage of the Marper judgment, the case to which we referred earlier and which this Bill implements, stated that it was struck by the indiscriminate nature of the power of retention then in force, and highlighted the fact that,

Obviously, the noble Lord, Lord Rosser, takes a contrary view. He says that we should retain as much of this DNA material as possible for as long as possible. Some of his noble friends, such as the noble Lords, Lord Campbell-Savours and Lord Soley, want ultimately to have everyone's DNA on the register. The party opposite says that retaining someone's DNA profile on a database is not much of an intrusion. It compared it to keeping a photograph and said that it is not much of an intrusion compared with the risk of even one rape or serious assault left unsolved. I do not accept that.

We have argued consistently, both before the election and since, that the previous Government's models went too far. We think that the Scottish model strikes a far better balance between the competing interests, as the Joint Committee concluded when it examined the previous Government's proposals. As I made clear in the debate on the earlier amendment, I believe that a great many others support us on this issue.

As for the research conducted by the Jill Dando Institute of Crime Science, the noble Lord should remember that its director later noted that it was incomplete and based on data to which it was not given direct access. In September 2009, Gloria Laycock, director at the institute, said of the research study:

"That was probably a mistake with hindsight. We should have just said 'you might as well just stick your finger in the air and think of a number'".

I took that from a briefing provided by Liberty, for which I am most grateful. The noble Lord also might have looked at that and might have found it of some use in his arguments. We are trying to find the right balance and we believe that we have. I hope therefore that the noble Lord will feel able to withdraw his amendment.

Lord Rosser: I thank the Minister for his response. It throws into sharp contrast the fundamental difference of view between this side and the Government over the length of time that DNA samples should be retained, and the types of cases for which they should be retained. I do not think the Minister has sought to argue that retaining them for the longer period of

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time, which is what we are advocating, would not lead to more people who have committed serious offences being apprehended. He gets around replying to that argument simply by talking of a so-called balance. On this side we have made it clear that we are in favour of a balance that seeks to apprehend those who have committed serious offences and one that reduces the number of people who are likely to be the victims of serious crime.

However, there is obviously a fundamental difference on this view, which was expressed by the Minister during our discussion on the previous amendment. I will withdraw this amendment for the moment, but we will consider whether to bring back a similar amendment on Report.

Amendment 6 withdrawn.

Amendments 7 to 10 not moved.

Amendment 11

Moved by Baroness Stowell of Beeston

11: Clause 3, page 5, line 26, leave out from "adult"" to end of line 27 and insert "means a person aged 18 or over whose ability to protect himself or herself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise,"

Baroness Stowell of Beeston: My Lords, as we have already discussed, among other things Clause 3 sets out the rules governing the retention of the DNA profile of a person arrested for a serious offence but not charged with that offence. In such cases, the police can apply to the biometrics commissioner to retain the DNA in certain circumstances, including where the alleged victim of the offence is a vulnerable adult. The amendment seeks to replace the definition of "vulnerable adult" as used in this context.

Currently, Clause 3 defines a vulnerable adult by reference to Section 60(1) of the Safeguarding Vulnerable Groups Act 2006. However, as we will come on to when we reach Part 5 of the Bill, Clauses 65 and 66 seek to amend the definition of a vulnerable adult in the 2006 Act to mean any person over the age of 18 in receipt of a regulated activity, for example health or personal care. The changes made by these clauses to the definitions of vulnerable adult and regulated activity put the emphasis on the activity and the person carrying out that activity. It no longer attempts to define vulnerability or label a person as a "vulnerable adult". As a result, the definition is not particularly helpful in the context of Clause 3.

Amendment 11 therefore draws on the definition in Section 5(6) of the Domestic Violence, Crime and Victims Act 2004, which defines a vulnerable adult as,

We believe that this definition is far more apposite for the purposes of Clause 3. The reason why the amendment inserts the definition in full in new Section 63G(10) of PACE rather than merely referring to the 2004 Act is

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that our definition refers to persons aged 18 or over, as the definitions in new Section 63G(2), as inserted by Clause 3, already include all those aged under 18.

I hope your Lordships will agree that this definition is sensible, and I commend it to the Committee.

5 pm

Baroness Royall of Blaisdon: My Lords, the government amendments brought in at the Report stage of this Bill in the House of Commons stipulate that DNA and fingerprint profiles from individuals arrested but not charged with a serious offence could be retained only with the permission of the biometrics commissioner on the condition that the alleged victim is aged under 18, a vulnerable adult, associated with the alleged perpetrator or necessary to assist in the prevention or detection of crime. The effect of that is that many individuals who are arrested for a serious offence will not have their DNA retained at all.

From the definition given in government Amendment 11, it looks as though the Government are setting a higher burden of proof and imposing a greater administrative burden on police, which will have a dissuasive effect on the retention of DNA for serious offences. A false distinction is potentially being made between the risk associated with those arrested and those arrested and charged. As we discussed earlier, rape cases have chronically low charge and conviction rates. The amendment could therefore have an impact on the safety of women. I listened to the reasons which the Minister gave for introducing the new definition, but it would appear to be tighter. I therefore seek an assurance from her that the new definition will include victims in women's refuges and sheltered housing, and rape victims.

I do not fully understand the purpose behind the amendment, nor do I understand which individuals, if any, the Government wish to exclude through the definition. I do not understand why the definition that we already have cannot be used. I suggest that the definition of a "vulnerable adult" should be common to all legislation, because that is the proper way for us as legislators to act. It is both logical and makes sense to citizens who have to deal with the legislation. I am wholly in favour of common definitions. If we are talking about vulnerable adults in one Bill, we should have the same definition in another. I do not accept that the new definition as put forward by the Minister in this amendment is necessary or desirable.

Lord Newton of Braintree: My Lords, perhaps I may build briefly on those comments because lurking in them was the question that I was going to ask. I suppose that I had better declare an interest, in that, whatever definition is used, I am a vulnerable old person, so it probably makes no difference to me.

The question is: does the Bill change the definition in the 2006 Act? On the basis of what the Minister was just saying, it leaves one definition in that Act and puts another in this Act. I think that it is very odd that we should have two definitions of vulnerable persons, whether adult, children or any other category of person. If a definition is right for one purpose, I cannot see why it is not right for another.

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Baroness Stowell of Beeston: My Lords, let me try to explain a little further. We are trying to ensure that, when we refer to "vulnerable adult" in the context of those who are the victims of crime, we are clear about the people who have been affected by the crime against them. Later on in the Bill, in a different context, the term "vulnerable adult" is deployed differently, because it relates to regulated activity and what access a person might have in terms of the activity being carried out at that time. The amendment tries to make sure that, in this context, we define "vulnerable adult" as the person who is the victim, rather than trying to define it in terms of what activity might be used against them, which occurs later in the Bill. I might have to write further to the noble Baroness.

Perhaps I may add that those seeking refuge from an abusive relationship would be covered by the third limb of new Section 63G(2); that is, by being associated with the suspect. However, given the nature of the questions that the noble Baroness has asked and the sensitivity of the topic-I would not want to give anybody the wrong impression about it-it would probably be best for me to come back to her in writing.

Baroness Royall of Blaisdon: My Lords, before we go to a vote, I respectfully suggest that the noble Baroness considers withdrawing the amendment and bringing it back on Report. I do not wish to vote against it but I should like further confirmation that the people who should be covered by this definition of "vulnerable adult" are properly considered and covered by it.

Baroness Stowell of Beeston: I am grateful to the noble Baroness. I think, on reflection, that that would be the right course. I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

Clause 3 agreed.

Clause 4 : Persons arrested for or charged with a minor offence

Amendment 12

Moved by Baroness Hamwee

12: Clause 4, page 6, line 7, leave out "indefinitely" and insert "for as long as is necessary for purposes related to the detection of crime, the investigation of an offence or the conduct of a prosecution"

Baroness Hamwee: My Lords, I shall speak also to Amendments 15, 16 and 17. These are identical amendments to Clauses 4, 5, 6 and 7, which permit the continued retention of material in specified circumstances indefinitely, irrespective-at any rate in statutory terms-of any ongoing necessity for crime prevention and detection purposes.

I have referred before to the fifth principle of data protection, which I have quoted, and my amendments would permit retention for as long as is necessary for the prevention and detection of crime, investigation of an offence or the conduct of a prosecution. That is the

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wording used in Clause 16, which I am not seeking to amend, and which the Information Commissioner has told us more closely accords with the requirements of the Data Protection Act.

I may be told that there is too much bureaucracy involved in this but it would be appropriate for the Committee to hear an explanation from the Minister as to why indefinite retention is allowed in the context of the generally wholly welcomed provisions limiting retention. I beg to move.

Lord Henley: My Lords, I hope to deal with this issue relatively briefly. My noble friend has got it right when she refers to additional bureaucracy. If we move from unconditional indefinite retention to a necessity test, as is suggested in her amendments, this would require the police to keep under continual review some 4.5 million or so convicted individuals whose DNA is retained on the national DNA database, as well as the 3 million or more whose fingerprints are held without a DNA profile. That would be a huge administrative exercise which the police would not be happy to take on.

My noble friend made a point about why we are retaining it indefinitely for certain people and not for others. Recently published research notes that, at least on average, conviction rates for individuals with no prior convictions will be lower than for individuals who are proven offenders. That is why we believe we are right in retaining material from the unconvicted only in certain specific circumstances, as we discussed earlier, while retaining the material from all those with convictions for recordable offences. Such retention is preventive, not punitive. It is done in respect of a group of individuals who pose a considerably higher risk of future offending-significantly higher than that of the general population-because of their past proven criminality.

I hope that with those assurances-that it is a group more likely to offend in future and that it would be a massive bureaucratic exercise for the police to undertake-my noble friend will accept that her amendments are unnecessary.

Baroness Hamwee: I am not sure about their not being necessary, but I can see they may be undesirable. I shall not comment on police happiness.

Lord Henley: It is not purely police happiness-it is also police cost. If my noble friend's amendment were accepted, looking at 4.5 million entries on an annual basis would divert an awful lot of police man hours away from the job.

Baroness Hamwee: My Lords, I am being inappropriately flippant in a serious context. Perhaps I had better just beg leave to withdraw the amendment.

Amendment 12 withdrawn.

Amendment 13 not moved.

Clause 4 agreed.

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Amendment 14

Moved by The Earl of Erroll

14: After Clause 4, insert the following new Clause-

"Privacy Commissioner

(1) The Secretary of State shall appoint a Commissioner to be known as the Privacy Commissioner (referred to in this section as "the Commissioner").

(2) It shall be the duty of the Commissioner to promote respect for individual privacy.

(3) The Commissioner shall have all the duties and functions set out in-

(a) section 51 of the Data Protection Act 1998 (Data Protection Commissioner),

(b) section 57 of the Regulation of Investigatory Powers Act 2000 (Interception of Communications Commissioner),

(c) section 91 of the Police Act 1997 and section 62 of the Regulation of Investigatory Powers Act 2000 (Chief Surveillance Commissioner),

(d) section 20 of this Act (Commissioner for the Retention and Use of Biometric Material),

(e) section 34 of this Act (Surveillance Camera Commissioner).

(4) The Commissioner shall have all the powers which attach to the offices set out in subsection (3).

(5) The Commissioner shall arrange for the dissemination in such form and manner as he considers appropriate of such information as it may appear to him expedient to give to the public about any matter within the scope of his functions under this Act, and may give advice to any person as to any of those matters.

(6) Any reference in any enactment, instrument or other document to a person carrying out the duties and functions set out in subsection (3) shall be construed, in relation to any time after the commencement of this section, as a reference to the Commissioner.

(7) Any appointment made to any of the offices set out in subsection (3) is hereby terminated."

The Earl of Erroll: My Lords, this amendment probes an idea. I am afraid that it was borrowed from one proposed in another place and, although it is not perfect, it will do just to sound out the concept and idea. I think that that is very important.

I spoke along these lines a long time ago in a debate on the report of the Science and Technology Committee on personal internet security, on 10 October 2008 in col. 467, if anyone is interested enough to look it up. We are getting a plethora of commissioners, with five of them looking at different aspects of information privacy, so there is a huge opportunity for things to fall between the cracks when there is no overlap-or there is an overlap, and nobody knows whose jurisdiction it falls within. Every time we have another thing, we invent another commissioner, and that concerns me. We are not taking an overall overview approach to this issue. Also, as new things emerge, where do you fit them in? Which commissioner do you fit them with, or do you invent a new commissioner each time?

The second challenge that I had was with the logical difficulty of a commissioner reporting back through the very person on whom he is reporting-because most of them, except for the Information Commissioner, report to the Secretary of State and on things that the Secretary of State's department is doing. The Secretary of State has the right to edit the report before it goes public, in the public interest, which can mean almost

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anything. So I am challenged by that idea. The reason why I like the set-up for the Information Commissioner under the Data Protection Act is because that commissioner reports to Parliament and is appointed by Her Majesty using letters patent. Therefore, that commissioner reports directly to us. On the other hand, there is a challenge for the Information Commissioner as a single person. For example, when that commissioner had to criticise Parliament over expenses, I know that the previous Information Commissioner, Richard Thomas, felt very exposed as a single person; some complaints were aimed very personally at him. So at that point, I thought that maybe we should have an authority-more of a group of people. So I would rather draw all these commissioners into one personal information protection authority, or PIPA, which would be answerable to Parliament, not through the Secretary of State. Philosophically, in a democracy, that would be a far better way in which to organise it all. Anything new could go into that; they could work out whose responsibility the different bits were. Some of them would have a very high security classification, as some of the aspects for the Surveillance Commissioner have to have.

I am promoting this, hoping that it will find favour, but as usual I expect that the Civil Service would prefer to retain control over their commissioners and the people reporting on them. I think that that is unfortunate. One reason for choosing PIPA is that you have to remember that he who pays the piper calls the tune.

5.15 pm

Baroness Hamwee: My Lords, I am not sure whether I go down the route of paying the piper but the question of accountability, which this amendment raises, is immensely important. Parliament has decided over the years to agree the appointment of a number of commissioners to provide oversight. For that oversight to work in the best way, the line of accountability is one that one has to look at. I am not sure whether having a single commissioner is practicable, but the issue highlighted by this amendment is a very important one and I am glad that the noble Earl has brought it to the Committee.

Baroness Stowell of Beeston: My Lords, as the noble Earl, Lord Erroll, has explained, this proposed new clause seeks to combine a number of distinct statutory commissioners into a single privacy commissioner. As the noble Earl predicted, I am afraid that the Government are not persuaded that any benefits which may arise from such a merger would offset the disadvantages. Each of the five commissioners listed in subsection (3) of the proposed new clause requires a high degree of knowledge of relevant legislation and procedures to operate in specialist and technical areas.

Before I explain why the Government propose to set up the commissioners in this way, I will address the issue of accountability, as it is one that my noble friend Lady Hamwee raised as well. The noble Earl suggested that his privacy commissioner should be directly accountable to Parliament. The existing commissioners are independent officeholders and there is no question that they discharge their functions without fear or favour. If there were a question of a

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conflict of interest-I do not accept that there is-it would apply equally to a situation where the privacy commissioner would be directly accountable to Parliament. Parliament is subject to the Data Protection Act and the Freedom of Information Act, and thus to the jurisdiction of the Information Commissioner, so a conflict of interest could equally arise if he reported directly to Parliament. The existing accountability arrangements work well and I see no reason to change them.

Going back to the five commissioners, there is no doubt that in some cases the work of the various commissioners can be related but, in each case, there remain specific and crucial differences where their work remains distinct. To roll up all of the functions of the various commissioners would be to risk watering down the skills and expertise that are brought to bear in each of the areas. Moreover, given the wide diversion of roles and responsibilities of the five commissioners listed in the proposed new clause, I am not convinced that it would be possible for a single individual to provide adequate oversight in any given area-a point which I think that my noble friend Lady Hamwee made.

If a privacy commissioner were to be appointed, I envisage that he or she would quickly need several deputy commissioners, or a large body of support staff, to oversee the specific areas currently overseen by separate individuals. This would create an unwieldy body which, in all probability, would have less influence and impact, compared with the existing commissioners operating in niche areas. We can take the Interception of Communications Commissioner as an example of the specialist knowledge required in this area. That commissioner provides oversight of the intelligence agencies and law enforcement authorities by keeping under review their use of interception powers and their powers to acquire communications data. The role is very specific and the commissioner's powers to require disclosure by the intelligence agencies, and others, of highly classified information means that it is a highly sensitive post that could not be amalgamated with a range of other, unrelated commissioner functions.

That said, we fully accept that there is a need for these various officeholders to work closely together, and I assure your Lordships that this is already happening. The Public Bill Committee that considered this Bill in the other place heard testimony from the Information Commissioner and the interim CCTV regulator. Both commissioners were clear that where their functions touched on similar areas, they remain adept at establishing and maintaining effective working relationships, so that they can complement rather than duplicate the work of the other. I see no reason to doubt why this cannot continue to be the model in the future.

While there is certainly some common ground between the work of the new Surveillance Camera Commissioner and the Information Commissioner, there are also important differences. The Information Commissioner highlighted, in his evidence to the Public Bill Committee, that his consideration of CCTV is limited to the sphere of data protection and, as such, that his office is not concerned with the effective use of cameras. Indeed, the commissioner saw this separation of functions as advantageous, stating,

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Furthermore, the noble Earl might remember-I know that he has a great deal of experience in this area-that public confidence in CCTV is driven by both the proportionality and the effectiveness of deployment. The public want, rightly, to see that when surveillance cameras are deployed they help to bring criminals to justice.

In that same evidence session, the deputy Information Commissioner stated that,

I would therefore be concerned about having all these functions under the umbrella of a privacy commissioner. It is important to note that the Information Commissioner plays a key role not only in making sure that personal data are properly protected but that information is freely available to the public in accordance with freedom of information legislation. A single privacy commissioner would undoubtedly tilt the overall balance of the role to the detriment of the Government's objectives to promote openness and transparency.

In short, it is our view that the five commissioners that are the subject of the amendment all undertake sufficiently distinct roles to justify their separate identities. Where their roles interconnect, I am confident that they will, as now, work together effectively to ensure that they complement rather than duplicate each other's work. We will of course keep the landscape of commissioners under review but, for the reasons that I have set out, I am not persuaded of the case for a single privacy commissioner. I hope that the noble Earl accepts these arguments and will be prepared to withdraw his amendment, but I am grateful to him for putting it forward in order for us to discuss these matters.

The Earl of Erroll: I thank the Minister for that reply. In fact, what she described was rather what I ended up thinking. I have to admit that the amendment is defective in that it is not quite what I thought; it came quickly from someone else in order to solve the problem of putting something on paper. A single commissioner certainly could not do that job. I had envisaged someone at the top but then four or five departments underneath, some with much higher security ratings than others. It would just be a matter of co-ordination. From that point of view, I am glad to hear from the Minister that this is already happening with the collaboration between the commissioners on the ground. I hope that that will continue with the other commissioners if the structure stays separate. Bringing them together under a single overarching review may still possibly have advantages, but for the moment I beg leave to withdraw the amendment.

Amendment 14 withdrawn.

Clause 5 : Persons convicted of a recordable offence

Amendment 15 not moved.

Clause 5 agreed.

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