(12 years, 9 months ago)
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Baroness Hamwee
“(iii) taken from a person detained under section 136 of the Mental Health Act 1983,”
Baroness Hamwee
My Lords, in moving Amendment 1, I will speak also to Amendment 2. Amendment 3 is also in this group and is in the name of the noble Lord, Lord Campbell-Savours. This amendment refers to Section 136 of the Mental Health Act 1983, which allows for the detention, in a place of safety, of someone found in a public place apparently,
“suffering from mental disorder and … in immediate need of care and control”.
Black Mental Health UK, together with Big Brother Watch and GeneWatch UK, brought concerns to me and other noble Lords about the taking of DNA samples and fingerprints in the circumstances covered by Section 136 that I have just described. The people concerned have been detained in a place of safety; they have not been arrested. They are at a point of crisis in their lives, and the organisations pointed out that the intimate process of taking DNA samples might cause further trauma to an individual who is at his most vulnerable, as I am sure your Lordships will understand.
They wrote to the Minister who is the policy lead on DNA, who replied, referring to the Police and Criminal Evidence Act and explaining that an individual detained under Section 136 is not arrested and so there is no power for DNA samples or fingerprints to be taken; and, if they are taken, that is unlawful. The new Section 63D(2)(a), which would be introduced by Clause 1 of this Bill, requires their destruction. My initial reading of the letter from Black Mental Health UK and the reply from the Minister made me think that the concern was about the impact of taking the sample, and that what was needed was a more careful observation of the restriction—in other words, that samples should not be taken when it is unlawful, and that this might be emphasised in the relevant code of practice or guidance.
However, when I looked at the proposed new Section 63D(1), I wondered whether this situation actually fell within it, and therefore within Section 63D(2), which requires destruction of the samples. Looking at the provisions at the top of page 2, we are talking here about fingerprints or DNA,
“taken from a person under any power conferred by this Part of this Act”—
PACE—
“or … taken by the police, with the consent of the person from whom they were taken, in connection with the investigation of an offence”.
There is no power to take samples or fingerprints and nor are they taken with consent. Hence, my amendments would bring within Section 63D(1) samples and fingerprints taken from a person who is detained under this section of the Mental Health Act.
Earlier in the week, at about the same time that the Minister replied to Black Mental Health UK, I saw that there was a Written Answer to two Questions, I think, from the noble Lord, Lord Ouseley. I have been in touch with him today. He wishes he could be here but is not very well today, and so I am begging his support in absentia. He knows I am going to do that and he has not asked me not to—indeed, he says that he supports these amendments. I beg to move.
Lord Campbell-Savours
My Lords, I speak to Amendment 3, which stands in my name. Perhaps at this stage I can apologise to the House for not being present during proceedings in Committee, as I was back and forth to and from hospital over a six-week period and was therefore unable to attend apart from a brief debate when DNA was being discussed. I set out my position on two amendments—including the one I will be moving later—on 29 November, when I made clear I was in favour of a voluntary national DNA database. I also apologise because Amendment 3, which I wrote in November, is slightly in error. Instead of it beginning with the words,
“or if the person from whom the DNA sample or fingerprint was taken”,
it should actually have read “and only”. That is my fault.
My amendment would require the authorities to obtain the permission of the DNA sample donor prior to the removal of his or her profile from the database, but does not totally compromise the Government’s intention to introduce their proposed changes. At first glimpse, the House might find it difficult to imagine circumstances in which a donor would resist removal of his or her profile. Furthermore, the House might wish to consider in what circumstances creating this new obstacle might benefit the state.
So why would a donor resist removal, and in what circumstances? A donor may wish to ensure that he or she is ruled out of a police inquiry through a simple DNA data mismatch during an investigation. The donor might feel that by allowing the retention of their profile, they were freeing themselves of suspicion during the police investigation. They may well have personal or particular family reasons for doing so. One has to place oneself in the mind of a person who has been accused of a crime and wants to be free of a potential accusation, or even show that he or she is not involved in criminal activity or is even going straight. It might help that person’s resolve. Some former criminals, even those involved in minor offences, feel that they are constantly under suspicion. This proposal is a psychological aid to rehabilitation.
So what possible benefits could there be to the state? I will not pray in aid the general arguments for the retention of DNA in the fight against crime. That is all well documented. However, there is a reasonable discussion to be had about whether, in the absence of DNA information following its removal, at least some residual information should be held on former donors. It was argued repeatedly in Committee that the proposed retention period was too short in the case of serious cases of rape and other crimes of violence. The Government’s response was the two-year possible extension period.
However, there are surely circumstances in which the state, while not retaining the DNA information, has an interest in at least knowing the whereabouts of a person who has previously been charged with a serious criminal offence. Let us not forget that “beyond reasonable doubt” is a high hurdle. Criminals who are successfully prosecuted often drop off the radar, as do those who are not successfully prosecuted. They move on in the process of seeking to cover their tracks. If DNA information is to be lost, the police should at least have the opportunity of retaining some point of contact, or knowledge of the whereabouts of former donors. Some who have been charged with offences will either surface at a contact address to request removal of the DNA data, to avoid detection in the future, or will steer clear of requesting removal, so as to avoid revealing their whereabouts. This may well happen in the case of people who have moved abroad, outside of what they believe to be UK jurisdiction. However, there will of course be those who have surfaced to request the removal of DNA data as a matter of principle. I fully recognise that these are complicated arguments; I suppose that they relate more to criminal psychology than to any empirical evidence that I am able to offer. But I merely ask the House to consider this as a proposition, perhaps for future legislation, since it is a little late at this stage
The Minister of State, Home Office (Lord Henley)
My Lords, I hope that I can deal with these two cases relatively briefly. My noble friend Lady Hamwee has brought before the House again the issue of those detained by the police and taken to a police station as a place of safety under Section 136 of the Mental Health Act. My noble friend outlined what that did, but it might help if I briefly outline my understanding.
If a person in a public place appears to be suffering from a mental disorder and in need of immediate care or control, Section 136 of the Mental Health Act allows a police officer to remove that person to a place of safety if the officer thinks it necessary to do so in the interests of that person’s protection or that of other people. I should make it clear that persons detained under Section 136 of the Mental Health Act—my noble friend emphasised this—are not arrested. That is a very important point that we all have to remember. It is an entirely separate regime, focused on the protection of the detained individual rather than the wider public. The powers to take DNA and fingerprints in Part 5 of the Police and Criminal Evidence Act 1984 apply only to those individuals arrested for a recordable offence. If a person was arrested for a non-recordable offence, such as speeding, or if they were not arrested at all but detained under the provisions that we are talking about, as is the case under Section 136, the powers simply would not apply.
If the police were to take biometrics in these circumstances, it would be not only an error on the part of the police but in fact unlawful. Under new Section 63D(2)(a) of the Police and Criminal Evidence Act, as inserted by Clause 1 of this Bill, if it should get on the statute book, all police officers would be under an obligation to delete material taken in this way. Therefore, I can say to my noble friend that Amendments 1 and 2 are unnecessary in that respect. She shakes her head, but I can assure her that, because the person had not been arrested, that would be the case. Taking biometrics from a person detained under Section 136 of the Mental Health Act is already unlawful.
The police are guided in the way that they take DNA and fingerprints by the PACE code of practice D, which deals with issues of identification of persons by police officers more generally. We will need to update code D in the light of the passage of this Bill and before it comes into force. I am happy to say to the House that we will include in that revision of the code a paragraph to make it quite clear that taking biometrics from those detained under Section 136 of the Mental Health Act is unlawful.
The Earl of Erroll
Just to clarify, if the police inadvertently, even despite the new code, were to take such a sample unlawfully, presumably it would just be destroyed once they realised that they had made the mistake. There would not have to be any other rigmarole.
Lord Henley
My understanding is that it would be unlawful and that therefore they would destroy what they had taken. I can give that assurance to the noble Earl.
Lord Harris of Haringey
To clarify further, presumably part of the difficulty here is that this is an inadvertent error by the police, because they have taken somebody under Section 136 to a place of safety which in this instance has turned out to be a cell in a police station. Is not the real problem here, and the reason why, presumably, custody officers have then made this mistake, that there is an inadequate supply of places of safety in more appropriate accommodation? That is a fundamental issue. If the Government were to address that, the chance of this arising would become far less.
Lord Henley
If I may say so, that is another question. I accept the fact that it might be better if there were other places that they could take the individual to, but the important point is that they have taken that person to that cell. They have then done something wrong by taking his or her DNA in whatever form. That would be unlawful—that is what I am trying to make clear—and I hope that the noble Lord will accept that point.
I turn now to the amendment in the name of the noble Lord, Lord Campbell-Savours, and welcome him back. I had not actually noticed that he was absent from the Committee stage of the Bill, because I seem to remember that we dealt with some of these things—but perhaps it is just a fantasy that I remember us addressing these matters. I certainly remember that we had considerable discussion on these matters.
I appreciate that the noble Lord feels that he has misdrafted his amendment and would like it to read “and only” instead of “or”. We are at Report stage, so it is possibly too late to fix these things, but I suspect that it is to some extent a probing amendment. If the noble Lord remembers, we had some quite spirited discussion in Committee of what the appropriate period should be, and I dare say that we will have another one when we discuss Amendment 4, which the noble Baroness, Lady Royall, will be moving. Amendment 3 does not define that period. If one assumes that the appropriate period would be the relevant period set out in the various provisions of the Bill, I would say to the noble Lord that subsection (3) of new Section 63D of PACE, as inserted by Clause 1, already does this. Subsection (3) says that in,
“any other case,”—
in other words, except in the circumstances already provided for in subsection (2), which are where the arrest or the taking of biometrics were unlawful,
“section 63D material must be destroyed unless it is retained under any power conferred by sections 63E to 630”.
We have a general presumption that material must be destroyed unless the Bill explicitly permits its retention. I will come back to retention on that later amendment from the noble Baroness and later amendments from the noble Lord. But it must be destroyed unless the Bill explicitly permits its retention, either for a fixed period, such as for a person charged with a qualifying offence but not convicted, or for an indefinite period for those with convictions.
I hope that with that explanation my noble friend will feel able to withdraw her amendment and the noble Lord, Lord Campbell-Savours, will not press his amendment. I appreciate that we will discuss these matters in further detail on some later amendments.
Baroness Hamwee
My Lords, I do not think that we will have an opportunity to come back to mine. Of course, I am glad that the Minister and I are focused on the same outcome—the destruction of the material. My concern is that the answer to the Parliamentary Questions and the letter from the Minister rely on the new Section 63D(2) of PACE. However, as I had hoped I had explained, I do not think that it applies. The new section starts “This section applies to” and then in paragraphs (a) and (b) sets out what it applies to. My concern is that material taken when the person is not arrested, as the Minister has made clear, and has not given consent would not fall within this and therefore the provision for destruction in new Section 63D(2) would not apply.
I am glad to hear what the Minister says about the code and I am of course not going to press the amendment today. But my concern was that, by relying on a section that in my view does not apply—I do not think that we have quite bottomed it out—there might be resistance to destruction, which the Minister has said that the code will make quite clear is required. Although not within the context of the Bill, perhaps this is something that he and I might have a further word on outside the Chamber because we are clearly aiming at exactly the same outcome. Having said that, I beg leave to withdraw the amendment.
Baroness Royall of Blaisdon
My Lords, Amendment 4 would seek to instate a more proportionate limit of six years for the retention of DNA and fingerprint data for those arrested and/or charged with a qualifying offence such as rape or serious assault. We return to the difficult balance to be struck between protecting people's freedom from police and government interference and protecting their freedom not to become victims of interference or violence from criminals or terrorists. As was mentioned in our debate in Committee, there is no more important series of cases involving DNA evidence than serious sexual crimes, rape and other offences against women, which cause huge anxiety, shame and sorrow for the victims. That fact is one of the major catalysts for the amendments before us.
The six-year limit proposed by my Government was based on Home Office analysis and reflected a proportionate response to the European Court of Human Rights ruling that the blanket retention of DNA violated Article 8 of the European Convention on Human Rights. In Committee I cited the 23,000 criminals a year who go on to commit further offences, and who will not be covered by the Government's proposed three-year retention limit. I was asked by the noble Lord, Lord Phillips of Sudbury, who is not in his place, whether that figure included minor offences. I confirm that it does, but also that each year 6,000 of those individuals will go on to commit serious crimes including rape and other sexual offences, murder and manslaughter. This analysis comes from the House of Commons Library and from Home Office research given to the Minister, Mr James Brokenshire, in July 2010. I think that the research was buried for some time.
As noble Lords will know, the three-year limit for the retention of DNA comes from the Scottish model, which was based on no real analysis of the risk to public security. The coalition Government made a commitment to the three-year limit based on no new evidence, simply a judgment that this was the appropriate balance between privacy and public safety. The Opposition fundamentally disagree with this judgment. When it comes to offences such as rape and serious assault, we believe that the balance should be in favour of protecting the public and that a more cautious, evidence-based limit should be set.
I was particularly struck by the speech in Committee of the noble Baroness, Lady O'Neill of Bengarve, about the reality of what is stored, and how it is stored, on the National DNA Database, because this reaches the heart of the issue about the invasion of privacy. She said:
“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”.—[Official Report, 29/11/11; col. 145.]
I recognise that how far the state should keep sensitive information on its citizens is a sensitive and highly important issue. However, I believe that the noble Baroness’s detailed explanation about the data on individuals and how those data are actually held removes many of the core concerns voiced about the retention of biometric information. If more citizens understood that they would be willing to cede this tiny amount of personal privacy in exchange for the arrest and conviction of murderers or rapists.
The Government have recognised that there will be situations when there is a clear need to retain an individual's DNA beyond the three-year limit. That is why new Section 63F, “Retention of section 63D material: persons arrested for or charged with a qualifying offence”, contains a provision for allowing police officers to apply for a two-year extension to the limit. However, we have serious concerns about transferring the burden of responsibility for these decisions to the police. It would seem that the Government are abdicating responsibility for the adverse consequences that may result from their decision to set a limit of three years.
We know that in practice such a safeguard does not work. In evidence given to the Public Bill Committee, ACPO stated that the Scottish system on which this is based has not led to a single application for an extension,
“because there are 6 million records on the national DNA database. We have always argued that it is impossible to create a regime of individual intervention for a database of 6 million … In effect, the Scottish model has to rely on a judgment being made against an individual profile when it reaches three years”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 22/3/11; col. 9.]
More fundamentally, the thrust of these provisions is to pass the burden of responsibility for these decisions over to the police. The Government, as I said, are abdicating responsibility for the impact on public safety that may result from their decision to limit the retention period to three years, by suggesting that it is up to the police to decide whether the three-year limit or a five-year limit is more appropriate for each individual who is on the DNA database for a serious offence.
Passing that responsibility on to the police would be wrong on any occasion but it is wholly wrong to do so in these straitened times when intense burdens are placed on the police as a consequence of the cuts. The Government are taking a huge and very risky step in the Bill by reducing to three years the limit for which DNA and fingerprint data are retained for those arrested and/or charged with a qualifying offence such as rape or serious assault. Any such move should—indeed, must—be accompanied by robust evidence, but I do not believe that the evidence is there. I ask the Minister to think again.
Lord Lester of Herne Hill
My Lords, I wonder whether I might speak briefly as a member of the Joint Committee on Human Rights, because Members of the House will have the benefit of our report on the Bill, which is in the Printed Paper Office. In that report the committee—which is of course all-party, and beyond party—expressed the view that the scheme in the Bill is more proportionate and more likely than the previous regime under the Crime and Security Act 2010 to pass muster with the Marper judgment of the European Court of Human Rights.
I am not going to bore the House by referring in detail to what the report says, as it explains the issues very briefly and clearly. However, one matter that we expressed concern about, which I think is relevant, is that the committee said that it could not,
“reach a firm conclusion on the proportionality of these measures”,
without fuller information, including statistics on the operation of the National DNA Database, and asked the Government,
“to collect better records on the contribution made to the prevention and detection of crime by the retention and use of biometric material in the future”.
Paragraph 8 of the report states that,
“the measures in the Bill are likely to be a significant improvement on the measures in the Crime and Security Act 2010”.
As for the three-year versus the six-year period, with a renewal of two years, the committee commended and welcomed that as a,
“decision that a narrower approach to retention is appropriate”—
and so on.
The noble Baroness makes the point that Parliament should set a six-year term rather than having a three-year term renewed on application under the Bill. It seems no more rational or sensible to adopt a six-year period than to have a discretionary ability to increase for a further two years for a cause, as experience shows, but it is a matter of judgment about the better approach that one adopts. I say simply that the Government have the support of the committee itself in its report.
Lord Hughes of Woodside
My Lords, I support my noble friend Lady Royall. I do so even though I am not entirely in agreement with her, simply because in my view six years is too short. I think that we should go further. This is not the time or the place to argue the whole case, but I want to place on record my total opposition to those who say, on libertarian grounds, that we should not keep DNA because it affects people’s privacy. I think of the people over the years who have been caught because DNA has been kept for 10, 15 or 20 years, sometimes not for a specific offence but because it was standard practice to take a DNA profile. I regret very much that we are going to the extent of saying that we should keep DNA only for three years, with all the qualifications that there are around that.
Technology has improved over the years, not least in the storage of DNA samples. We have seen a case recently, which is probably sub judice because it is now in appeal, where a tiny fleck of blood was found on someone’s shirt but that was enough to lead to a conviction. As I say, one defendant is appealing so I shall say no more on that.
With that one reservation, I give my noble friend my full support on this. If it comes to a vote then I shall certainly vote with her, but I think that even six years is too short. We are going far too far on the basis that people’s privacy is more important than the conviction of someone for a serious offence.
Lord Dear
My Lords, I have a good deal of sympathy with the view that the noble Lord, Lord Hughes of Woodside, has just expressed; it is a view that one hears frequently when talking to, as it were, the man on the Clapham omnibus. I rise neither to support nor to oppose the amendment at this stage. I have not checked with ACPO to see whether it would prefer a lift from three years to six, but in a straw poll it would probably agree that six years would be a help. However, it is incumbent on me to point out that ACPO has already expressed the view that it is comfortable with three years, following the Scottish model, and the ability to go further.
I wait to hear what the Minister says, but the nub of this is the question of balance and proportionality. It is necessary to follow to a large extent the judgment in Marper, which we all remember and which started this debate in the first place. What the noble Lord, Lord Lester of Herne Hill, has said is very pertinent; I drift very much towards his point of view. Still, I would like to hear what the Minister says, particularly on the question of balance, proportionality and how that affects the Marper judgment.
Lord Harris of Haringey
My Lords, on the same point about the balance of proportionality, I am assuming that this clause is based on a detailed and careful analysis of the evidence, so perhaps the Minister could share with the House the numbers of people who are affected in terms of their DNA samples being removed and destroyed. Over the past few years, how many individuals whose DNA would now have been removed from the database would not have been brought before the court for offences that have either subsequently come to light or where their DNA has subsequently been matched? It is incumbent on the department to place this evidence before us. That would deal with the concerns raised by the Joint Committee on Human Rights.
If in fact there is no evidence and a judgment has simply been made that three years is better than for ever, but there is no reason why it should be three years instead of five, six, seven or two, that is not a sound basis for making an extremely important decision, not least for the sanity of the victims of serious crime where the perpetrator might otherwise be convicted. It is a very unwise position for this House to be making that judgment without an understanding of the evidence.
Lord Campbell-Savours
My Lords, I do not want to detain the House longer than a few moments. I reiterate what I said in my brief intervention when we last discussed this matter. I simply cannot understand how we could allow the complete disconnect on this issue between the Government and what people think outside the House. When I talk to my colleagues and friends outside politics about this issue, there is universal support for our position. I know one person who is in favour of the Government’s position. Many of my friends who are Conservative supporters just do not believe that the Government are taking this action. I cannot understand how we allow ourselves to slip into a position where this disconnect can develop. Even during the course of this debate, why are Government-supporting Peers, who know what their own supporters are saying on this issue, not objecting more or even privately making representations to the Government on the need to avoid going down this route? What happens when cases begin to surface, as inevitably they will, of people who have committed crimes who could have been picked up in the event that their DNA had been retained?
The Joint Committee on Human rights has obviously expressed a reservation, which I perfectly understand. Effectively it is saying, as my noble friend did, “Where is the evidence?”. I do not believe that there is any evidence that is worthy of this kind of debate. The Government are making a major mistake in proceeding on this basis and, as I say, they are aggravating the disconnect between the people and Parliament.
Lord Lester of Herne Hill
Before the noble Lord sits down, he wants evidence, but would he agree with me that what the public may or may not think on the matter is not evidence—it is evidence only of public opinion? We should be careful in deciding questions of rights and freedoms in adopting what might be called a populist approach.
Lord Campbell-Savours
The public’s perception of freedom in this debate is that they will be free of crime, or at least freer, in the event that more DNA was to be retained. That is the general attitude of the public as I understand it. They want freedom, but they believe that freedom comes with the retention of DNA.
Baroness Hamwee
The noble Baroness has referred to the figures that she gave us at the previous stage. She said that 23,000 criminals a year would no longer be on the database who could commit 6,000 further crimes. She has answered the point of my noble friend Lord Phillips and confirmed that these include minor offences. Rereading Hansard, I was not clear whether the 23,000 were those within years four to six, because some of the cases mentioned in the debate related to crimes where there had been more than a six-year period.
As noble Lords said on the previous occasion we discussed this matter, it is not entirely black and white. As we discussed in Committee, if one asked a random group of the public about this, most would want a longer period of retention. That is possibly correlated with those who watch entertaining but unrealistic television dramas; I know that I am affected by these things. We all know that if you asked the same group of people about capital punishment, you would probably get a very hard-line answer, which is why most of us try to avoid asking that question.
My noble friend Lord Phillips said that though we would all agree that a society with a full range of surveillance would be a different society, few of us would be able to articulate why that was so. I have to say that I am among the less articulate on this. I do not think anyone could say that what the Government have proposed is in any way a casual approach to retention or one which completely reverses the current approach. Indeed, it is a pity that what is proposed in the Bill is so hedged about with conditions that this is not so very different a piece of legislation. I agree that, of course, we should not be casual about crime and the prevention or detection of crime. Similarly, we should not be so cautious that we are casual about privacy, our culture and the intervention of the state in our privacy. The noble Baroness said in Committee that,
“there is a fine line between the preservation of … freedom and privacy”,—[Official Report, 29/11/11; col. 146.]
on the one hand and the delivery of justice and the protection of citizens on the other. I also acknowledge the fineness of that line but I think that I am on the other side of it from her.
Lord Henley
My Lords, as always, I am very grateful to my noble friend Lord Lester of Herne Hill for his assistance and advice in relation to what the Joint Committee on Human Rights feels about this issue. I am also grateful to my noble friend Lady Hamwee for what she had to say. Certainly, we will do what we can to provide better evidence of the use of DNA in convicting criminals as and when we can. However, I refer the noble Lords, Lord Campbell-Savours and Lord Hughes of Woodside, and possibly even the noble Lord, Lord Harris of Haringey, to the figures. These are some of the figures that we have; obviously, more will become available. Since 2001, more than 4 million people have been added to the DNA database, yet despite that the number of DNA detections has fallen from 33,000 to just over 26,000 in 2009-10. There has been a vast growth in the hoarding of people’s DNA but a decline in the number of convictions. That is an important thing to remember as we look at this amendment.
I also give an assurance to the noble Lord, Lord Hughes of Woodside, who was worried that material taken from crime scenes would be lost. That is not the case. Material taken from crime scenes will still be taken; we are talking about material that is taken from individuals, whether criminals or not. That is a very different matter. My noble friend Lady Hamwee addressed a point of disagreement about whose DNA you should keep and for how long. We know that the noble Lord, Lord Campbell-Savours, feels that there should be a national database containing everyone’s data. He would like to start with a voluntary database on which we can all put our DNA. We will discuss that when we reach his amendment. That might be hunky-dory and all that but it is not what we want, nor do we think that we should pursue a compulsory line in that regard.
I have explained what evidence we have. That is something we will look at but I also think we ought to look at other matters which influence this decision. The first thing to point out to the noble Baroness, Lady Royall, is that they would replace the Government’s provisions, which meet our coalition commitment to adopt the protections of the Scottish model. She says that that model was agreed without any analysis whatever. I have given some figures and we will provide some more in due course but we will also look at the remarks of Mr Keith Vaz, chairman of the Home Affairs Select Committee, at Committee stage on this Bill in another place. We will also look at what the ECHR had to say with regard to the Marper case referred to by the noble Lord, Lord Dear. I was very grateful to him for his intervention, particularly as he stressed the important point of this being a question of balance. My noble friend Lady Hamwee also stressed that point.
I believe that the party opposite is persisting in its approach to keep the DNA and fingerprints of innocent people for many years, no matter how little evidence was ever uncovered, and to keep huge numbers of individuals’ DNA and fingerprints on the national databases just in case they go on to commit crime in the future. That is not something with which we can agree. The party opposite pays scant regard to the judgment of the European Court of Human Rights in the S and Marper case, which noted with approval the system which has been in place in Scotland for some years. I remind your Lordships that the Scottish system, seemingly endorsed by the European court and on which we have modelled the proposals in the Bill before us today, was put in place by the Police, Public Order and Criminal Justice (Scotland) Act 2006, which was presented to the Scottish Parliament by the then Labour Justice Minister, Cathy Jamieson. I do not think that the Labour Party is in power in Scotland at the moment.
Noble Lords opposite contend that our proposals are in some way a charter for dangerous criminals such as rapists which will allow dangerous individuals to roam the streets, committing serious offences with no way of tracking them down. The contention that every individual suspected of rape or any other serious offence will instantly come off the database as a result of these proposals is just not true. As we have discussed previously and at some length, 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. The police will do that and that is similar to what is happening in Scotland. Those arrested for a qualifying offence but not charged—oh! I was wondering whether the noble Lord wished to intervene but he is obviously addressing his Front Bench.
Lord Campbell-Savours
If I recall correctly, my noble friend on the Front Bench said that there had been no extensions whatever in Scotland and no use of the two-year extension. Is that true? If it is true, on what basis can it be argued that it is going to happen here?
Lord Henley
I am saying that it is available to the police should that be necessary. That is the important point to get over to the noble Lord. I do not know what the figures are for Scotland. I am not responsible for Scotland. It is another Administration in charge of their—
Lord Campbell-Savours
In other words, the Government are proposing an extension of two years for England and Wales. That system already exists in Scotland but the Government do not even know what has happened in Scotland in terms of the use of the two years. Is that correct?
Lord Henley
My Lords, that provision will be available here; it is available there. That is the important point. The police will have the ability to apply to the courts. Those arrested for a qualifying offence but not charged, where the victim is vulnerable, will also have their DNA held for three years, subject to the approval of the new independent commissioner. The noble Lord may not like that but that is the case.
Lord Harris of Haringey
The Minister said that an application, which has not, or may not have been exercised in Scotland, could be made when the police consider it necessary. Could he define what he thinks would be necessary under such circumstances?
Lord Henley
I noticed the intervention made by the noble Lord earlier on that point. It would be for the police to decide whether they consider it necessary. I would not want to go any further than that at this stage. They will have to do that. These are matters that will be subject to review by the independent commissioner, which is another safeguard. I know that the noble Lord is not very keen on such safeguards, but I think they are very important.
Across the entire coalition Government we took the view, during the passage of the Crime and Security Bill and in advanced proposals on 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. That is why we encouraged the police to complete Operation Sheen, which the noble Lord might have come across, which identified more than 300 subjects in prison custody who had been convicted of murder, manslaughter or any sex offence but who did not appear to have had their DNA profile recorded on the national database. That operation has been completed recently and has resulted in an additional 376 such individuals having their DNA taken and uploaded on to the database.
Having completed that work, using the provisions of the Crime and Security Act which were agreed in the final days of the previous Government, the police service has embarked on a further operation, Operation Nutmeg, which seeks to chase and sample those with similar convictions who are now in the community. As my right honourable friend the Home Secretary said at Third Reading of this Bill in the House of Commons:
“In June last year, we started a programme to identify individuals in the community who have previously been convicted of either a sexual offence or homicide, and whom the last Government failed to place on the DNA database. That process has so far identified more than 13,000 people whose identities have been passed to local police forces, and we are now working with the police to find the individuals and obtain samples”.—[Official Report, Commons, 11/10/11; col. 282.]
I believe that that sets out why we are doing this and why we are getting it right. I also believe the analysis which has been looked at by many independent experts who have considered it closely and, as my right honourable friend the Minister for crime and security said in the House of Commons Public Bill Committee,
“the Information Commissioner states that he ‘does not consider that the evidence presented’”—
that is, the evidence presented by the previous Government—
‘“supports a general period of anything like six years’”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 29/3/2011; col. 212.]
I turn finally to the remarks of the chairman of the Home Affairs Committee as I think they are apposite and they are remarks on which the noble Baroness might wish to reflect. In his contribution at the Report stage of the Crime and Security Bill in the House of Commons, the right honourable Member said,
“There were differences among those of us on the Select Committee on how long the period should be, but we came to the conclusion”—
this is again to stress the balance—
“that a three-year period probably strikes the right balance. We said that the period should not be less than three years—although it could be longer—but that three years was a reasonable length of time”.
The right honourable gentleman went on to say that on the Select Committee,
“there was a consensus that holding the data for six years was too long”.—[Official Report, Commons, 8/3/10; col. 48.]
Again I go back to what I said at previous stages of the Bill, that these are questions of balance. We think that we have the balance right; the European Court of Human Rights seems to think that we are getting the balance right; and the chairman of the Home Affairs Committee thinks that that is the case. Three years with the possibility of an extension seems to me to be about right and we think that six years is too long. I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Royall of Blaisdon
My Lords, I am grateful to all noble Lords who have participated in this brief debate and for the information provided by the Minister. I say to the noble Lord, Lord Lester, that I have huge respect for the work of the Joint Committee on Human Rights but, on this occasion, I do not agree with its conclusions wholeheartedly. I noticed that other noble Lords have noted, as the noble Lord said himself, that the Committee was asking for better recording in future and for more evidence, in effect. It has become apparent during the debate that the coalition Government are now moving towards three years but are saying that, although they want three years, in some cases five years is more appropriate. They are, as many noble Lords would agree, putting that burden on the police.
In my earlier speech, I mentioned that ACPO had said that not one single application for an extension had been made in Scotland. That is very relevant to our deliberations this evening. I completely agree with all noble Lords who have spoken that this is a matter of balance and of which side of the line one comes down on. On these Benches, I think everyone comes down on the side of wishing to preserve people’s freedom to live, protected from crime, rather than having more protection for people’s privacy. We believe that the citizens of this country would prefer that. We are worried that in future—
Lord Lester of Herne Hill
Does the noble Baroness accept that this is not a “rather than” situation? She keeps using the phrase “rather than”. Of course we all want to protect ourselves against disorder and crime, but it is not a question of “rather than” but of balance. The Joint Committee on Human Rights has been looking at Marper and at the evidence and as an all-party and beyond-party committee it came to the conclusion that the balance was correct. Does the noble Baroness accept that it is a question of balance?
Baroness Royall of Blaisdon
I accept that it is a question of balance, as I have said on numerous occasions. However, I believe that it is also a question of “rather than”. We believe that, rather than people's privacy being the be-all and end-all in this argument, it is more important to retain DNA for a longer period. I see people nodding against me, if you see what I mean. I do not expect all noble Lords to agree with me but on this question of balance we come down on the protection of individuals rather than on the privacy of individuals. That is where we are.
I do not intend to move to a vote but I would be grateful if the noble Lord could come back to me with some more information which I may wish to pursue at Third Reading in relation to the three years and the five years. If this is a key plank within the arguments put forward by the Minister, as I believe it to be, it is very relevant that in Scotland it has not been used on a single occasion. I would like to know why the police in Scotland have not felt able to use this or have not felt it necessary to use it. I would be grateful if the Minister could bring back further information before Third Reading.
Lord Henley
My Lords, we are on Report so I intervene with some disquiet merely to say that I do not think that I can add anything to what I have said. I, and other colleagues on these Benches, have been saying that we have to get these things right for a matter of balance. This is also a matter that has been reflected on by the European Court of Human Rights and by our own Joint Committee on Human Rights. They think that three years is about right. We also feel that there should be the ability to extend that in certain cases. I leave it at that.
Baroness Royall of Blaisdon
My Lords, of course I recognise what the European Court of Human Rights said, but my Government, when they came to the view that the period should be six years, believed that it was compliant with the ruling of the ECHR. I was not suggesting that the Minister was going to agree with me; I was asking him to come back with further evidence of the situation in Scotland. There must be some facts and figures. The facts relating to Scotland that I have put before the House have been questioned, and I would like more facts about the situation in Scotland. I would like to know whether it is indeed the case that the police have not asked for an extension from three to five years.
Baroness Hamwee
My Lords, with the leave of the House, perhaps I may say to the noble Baroness that asking whether the police have or have not sought extensions is one matter, but asking why not seems to be asking the Minister to prove a negative. I thought, not just now but a few moments ago, she was asking the Minister to explain why not.
Baroness Royall of Blaisdon
My Lords, forgive me if I misled the House. I did not mean to ask why not; I wished to know whether or not the police had asked for an extension. I beg leave to withdraw the amendment.
Baroness Stowell of Beeston
My Lords, I withdrew a similar amendment in Committee in order to take more time to consider carefully the concerns expressed by noble Lords. Having done so, I am confident about introducing this amendment.
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 was a vulnerable adult. 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 expectation is that the police will apply to the commissioner for retention”.—[Official Report, Commons, 1/3/11; col. 207.]
Amendment 6 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 see when we consider Part 5, 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. The Bill no longer attempts to define vulnerability or label a person as a vulnerable adult. As a result, the definition in the SVGA is not relevant in the context of Clause 3.
Perhaps I may explain further. Clause 3, which we are discussing, is about protecting victims of crime. Clauses 65 and 66 are about protecting those necessarily in receipt of personal care or who rely on the support or contact of others. They are two separate things. The amendment therefore draws on the definition in Section 5(6) of the Domestic Violence, Crime and Victims Act 2004, which defines a vulnerable adult as,
“a person aged 16 or over whose ability to protect himself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise”.
The reason why the amendment inserts the definition in full in new Section 63G(10) of the Police and Criminal Evidence Act, rather than merely referring to the 2004 Act, is that our definition refers to persons aged 18 or over, given that the definitions in new Section 63G(2), as inserted by Clause 3, already include all those under the age of 18. For the purposes of protecting those who are truly vulnerable, we believe that this definition is far more apposite. It will cover and protect more people.
Baroness Royall of Blaisdon
My Lords, I am very grateful to the Minister for the explanation this evening and for the letter that she kindly sent me following Committee. These are complex issues. I hope that she will forgive me if I am asking questions that she has already answered. Essentially, to introduce a new definition of “vulnerable” complicates the issue in many ways. Although I hear what she says—that this definition is imported from another criminal justice Act—it is not the tried and tested definition of “vulnerable” and it would be far easier if people knew exactly where they stood.
I still have serious concerns about the appropriateness of the new definition. As the noble Baroness said in Committee, I disagreed with the restrictions that the Government placed on the retention of DNA data from those arrested for but not charged with a serious offence. That is a misleading distinction which has serious consequences for victims of crime with historically low charge rates, such as rape. As stated in the letter, the Government recognise that vulnerable members of society should be given special protection in such situations, and new Section 63G aims to provide for the retention of DNA data for those arrested for offences against victims deemed to be vulnerable adults.
At Second Reading in the Commons, the Home Secretary, the right honourable Theresa May, stated, on the conditions where new Section 63F(5) would apply:
“I would expect that application to be made in certain circumstances, such as when the victim has been vulnerable, which may mean there is very good evidence that the individual concerned has committed a crime but the victim is not able or not willing to come forward and see that case through”.—[Official Report, Commons, 1/3/11; col. 206.]
However, the Government’s proposed amendment to the definition of vulnerable adult recognises only those individuals who are subject to mental or physical impairment as being particularly vulnerable to problems in bringing forward a charge of providing evidence.
In particular, the new definition requires that an individual’s ability to protect himself or herself from violence, abuse or neglect is significantly impaired. The definition, particularly with the addition of the qualification “significantly”, adds a large element of discretion, leaving judgment of the vulnerability of the victim up to the discretion of the officer dealing with the case. I am concerned that such a definition is open to wide interpretation, which may mean that vulnerable adults are not given sufficient protection under the Bill.
An individual’s circumstances are a key indicator of their vulnerability, as is recognised by the definition used under Section 60(1) of the Safeguarding of Vulnerable Groups Act 2006, which lists a number of different circumstances in which an adult should be classed as vulnerable. The proposed new definition also neglects the fact that the type of offence will often determine the particular vulnerability of the individual and lead to problems which may account for the lack of any charge being made.
I note that the noble Baroness says that women who have been subjected to violence are covered under a different clause, although they are not covered by the definition of “vulnerable”. I am glad that that is the case, but it is complicated. They cannot read the Bill and see that they are covered as being vulnerable.
I will not press the amendment to a vote, but there are still questions to be answered. I do not expect the noble Baroness to answer me this evening, but if we could have further discussion about this to sort out some of my remaining concerns I would be extremely grateful.
Baroness Stowell of Beeston
On the change of definition of vulnerable adult, as I tried to explain in moving the amendment, it is important that we do not use the definition applied later in the Bill in the context of victims. If we did, we would be at risk of creating the opposite situation from what the noble Baroness wants. Later in the Bill, the definition of “vulnerable adult”, as amended, is intended to define people's vulnerability in terms of the activity in which a person may have to engage with them. As I said, whether it is personal care or whether someone is required to be in close proximity to someone else, we want to define vulnerability as far as whether someone should have the right to access the person.
In this part of the Bill, we are focusing on victims of crime. The fact that we are using a definition that already exists—it predates the definition that the Bill amends later—seems to me a simpler way forward. It is clear which people it is intended to protect. The definition states that it,
“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”.
I understand the noble Baroness’s point about the use of “significantly” and whether or not the definition excludes some people whom she thinks might be captured by the other definition. I disagree. Under the other definition, which is dictated by the nature of the care that people receive, some people who are old may not be in receipt of any specific care that would define them as vulnerable. The fact that they are old would suggest that they are vulnerable in this context, so this definition would capture more people. Also, “otherwise”, at the end of the definition, means that there is discretion for the police in considering who is vulnerable. I would expect the new DNA strategy board to offer guidance to the police on how to consider the definition of vulnerability when they make their application to the biometrics commissioner.
One thing behind the noble Baroness’s concern, which I share, is that in the context of a crime such as rape, and violent crime against somebody, the impact of the crime might make somebody vulnerable. The definition taken from the Domestic Crime, Violence and Victims Act already suggests what the police might consider under the definition of “vulnerable”.
I understand where the noble Baroness is coming from. I was very careful to consider the issues that she raised in Committee and I wanted to explore them with officials in great detail before bringing the amendment back to your Lordships today. However, I am as convinced as I can be that this is a clear safeguard. Women in refuges or secure housing are clearly caught by the other limb of the Bill, meaning that they would have been in a refuge centre because somebody known to them had been violent towards them. That is clearly covered by the other part of the Bill and would mean that, if it was anybody known to the victim, that would allow the police to apply for that DNA to be retained.
I am clear that the wording is sufficiently comprehensive to cover what we are trying to achieve, which I outlined in moving the amendment, and at the same time to protect those who are most vulnerable. I shall of course be willing to discuss further with the noble Baroness outside the Chamber any of her concerns, but I felt that it was appropriate for me to move this amendment.
Baroness Hamwee
The noble Baroness pointed to the words “or otherwise” at the end of the amendment. I may not have been paying sufficient attention to the argument, in which case I apologise, but if this matter is considered further perhaps she would take on board that within this definition the impairment is through only physical or mental disability or illness, and that the last five words are a description of what might cause the physical or mental disability or illness. Therefore, one cannot read “or otherwise” as extending the impairment. I repeat: the impairment is only through disability or illness. As I listened to the noble Baroness, I thought that she was asking us to read “or otherwise” as adding to “disability or illness”, which I do not think it does.
Baroness Stowell of Beeston
I am sorry if I in any way misled your Lordships. In her definition of those final five words—particularly the use of “otherwise”—the noble Baroness is correct. I was seeking to make it clear that impairment through physical or mental disability could be due to old age or otherwise. I am not trying to introduce something new; I am saying that it is possible for the impairment to be not just limited to old age. I hope that I am making myself clear; it does get rather complicated. However, in simple terms, I think that the noble Baroness is right.
“(5A) The responsible chief officer of police may apply to a District Judge (Magistrates’ Courts) for an order to retain a sample to which this section applies beyond the date on which the sample would otherwise be required to be destroyed by virtue of subsection (4) or (5) if—
(a) the sample was taken from a person in connection with the investigation of a qualifying offence, and(b) the responsible chief officer of police considers that the condition in subsection (5B) is met.(5B) The condition is that, having regard to the nature and complexity of other material that is evidence in relation to the offence, the sample is likely to be needed in any proceedings for the offence for the purposes of—
(a) disclosure to, or use by, a defendant, or(b) responding to any challenge by a defendant in respect of the admissibility of material that is evidence on which the prosecution proposes to rely.(5C) An application under subsection (5A) must be made before the date on which the sample would otherwise be required to be destroyed by virtue of subsection (4) or (5).
(5D) If, on an application made by the responsible chief officer of police under subsection (5A), the District Judge (Magistrates’ Courts) is satisfied that the condition in subsection (5B) is met, the District Judge may make an order under this subsection which—
(a) allows the sample to be retained for a period of 12 months beginning with the date on which the sample would otherwise be required to be destroyed by virtue of subsection (4) or (5), and(b) may be renewed (on one or more occasions) for a further period of not more than 12 months from the end of the period when the order would otherwise cease to have effect.(5E) An application for an order under subsection (5D) (other than an application for renewal)—
(a) may be made without notice of the application having been given to the person from whom the sample was taken, and(b) may be heard and determined in private in the absence of that person.(5F) A sample retained by virtue of an order under subsection (5D) must not be used other than for the purposes of any proceedings for the offence in connection with which the sample was taken.
(5G) A sample that ceases to be retained by virtue of an order under subsection (5D) must be destroyed.”
Baroness Stowell of Beeston
My Lords, as we have previously discussed, the Bill creates a general rule that all individual samples will be destroyed within six months of being taken. This represents a significant step in protecting the civil liberties of those whose DNA is taken in the course of a criminal investigation, as it ensures that the particularly sensitive genetic material, which is generally not needed for identification purposes, is destroyed at the earliest opportunity.
However, as we have proceeded with our consideration of how to implement the provisions of the Bill, prosecutors at the Crown Prosecution Service have made representations to us that, in a limited number of cases each year, it would in fact be necessary to retain the individual samples in order to deal with any subsequent challenge by the defence to the comparison made between the DNA of the individual and that found at the crime scene.
Prosecutors are concerned that, if they are not able to retain samples in these cases, they might be unable to withstand such a challenge and acquittals on technical grounds might result. An example of the type of case where such an issue might arise could be where the crime scene stain contained a mixture of, for example, the blood of both a murder victim and their attacker, and possibly a third person, such as an innocent housemate of the victim. In such a sample, the quantity of material from the victim is likely far to exceed that from the attacker and the innocent third party but, without retaining the reference samples from all three individuals, the chemistry and analysis used to derive the three individual profiles, and thus to make a match to the suspect, might be open to challenge in court.
Amendment 7 would therefore insert into Clause 14 a mechanism to enable the police, very early in a case before any samples had been destroyed, to make an application to the local magistrates’ court to retain all the individual samples in a case for a period of 12 months. That should be long enough in the majority of cases to identify a suspect and complete the pre-trial disclosure process, as part of which it would be established whether the defence intended to mount a challenge to the derivation of DNA profiles and/or matches. If not, the material would be destroyed at that point.
If a suspect had not been identified at the 12-month point, or if the derivation of the profiles and/or matches was still in dispute, the police would be able to apply to the courts to retain the material for a further 12 months, with further such applications available until either the case was concluded or there was no need to retain it any longer. If at that stage a suspect had been identified and criminal proceedings were under way, Section 66 of the Courts Act 2003 would allow the trial judge to deal with the application to continue to retain the samples.
I emphasise to your Lordships that we anticipate this procedure being used in only a handful of cases each year, all of which must be serious crimes on the qualifying offences list. While biological samples will be retained following a successful application, those samples will be able to be used only in the case for which they are taken and no extra profiles will be retained on the National DNA Database.
Given that the concerns of prosecutors would also apply in respect of the prosecution of those arrested under the Terrorism Act 2000, we are making similar provision in Part 1 of Schedule 1.
I turn briefly to the other amendments in this group. Amendment 8 to Clause 17 is technical and confirms that material taken under the regimes in the International Criminal Court Act and the Terrorism Prevention and Investigation Measures Act is not subject to the rules in the Police and Criminal Evidence Act but to the rules in those Acts.
The amendments to Clause 18 make it clear that, in respect of a DNA profile, the responsible chief officer is the one whose force took the original sample rather than the one in whose force area the forensic science laboratory is located, while Amendment 14 to Clause 21 removes the definition of the phrase “law enforcement authority”, which is not used elsewhere in that clause.
Finally, I take this opportunity to give notice to the House that we are considering whether it would be helpful to clarify further the scope of the regime for the retention and destruction of material under Section 18 of the Counter-Terrorism Act 2008. If we conclude that further clarification would be helpful, I propose to bring forward further amendments to Schedule 1 to the Bill at Third Reading. Naturally, I will give noble Lords proper notice of any such amendments, should they prove to be necessary.
I should have said at the beginning that, in moving Amendment 7, I was speaking also to Amendments 8, 9, 10, 11, 12, 13 and 14.
Lord Rosser
My Lords, I thank the noble Baroness for that explanation of the reasoning behind these amendments. I want to raise a question about a particular part of the amendment rather than to make any point in opposition to the amendments.
The amendments in this group appear to require the application to be made before a district judge in the magistrates’ court. Will the noble Baroness confirm what appears to be the case; namely, that an application could not be made before lay magistrates in the same court? I may be wrong, but if that assumption is right, will the Minister say why this is the case on this issue, since it does not relate, for example, to terrorist activity or threats to national security? As I understand it, the issue simply concerns the case for retention. Is it because there is an existing statute that already provides for this approach? Is it because it is considered that such applications will normally involve complex issues of law? Is it envisaged that such applications will normally be lengthy hearings lasting more than one day? Is it because lay magistrates do not want this responsibility? Is it a lack of confidence in lay magistrates? Or does the reference to “district judge” include lay magistrates? That may possibly be the explanation.
Will the Minister also say whether there is a district judge sitting at every magistrates’ court at which such an application might most conveniently be made; whether it is envisaged that a district judge will hear such applications on occasions outside court sitting hours, away from the court; and what will happen if the district judge who is down to hear the application is off sick on the day fixed for the hearing and, as is often the case, no other district judge is sitting at that magistrates’ court? Will the date for hearing the application have to be rearranged, or in those circumstances would arrangements be made for the application to be heard by a Bench of lay magistrates already sitting that day at the court in question? To cover myself, perhaps I should declare that I am a lay magistrate—but I am not asking these questions in order to tout for additional business.
Baroness Stowell of Beeston
My Lords, I will speak briefly on one aspect of the amendment that might be of interest to the noble Lord, in the hope that further advice might wing its way to me. It may be that the specification of a district judge might relate to the fact that the application by the police in the first instance would be ex parte. That may be why the application needs to be made to a district judge rather than to a lay magistrate. I can now confirm that the application will be only to a district judge, not to a lay magistrate, because it is an exception to a general principle requiring discretion, and is not to be used routinely. If no district judge is available, the application could be heard by a circuit judge if one is available. If after that explanation the noble Lord feels that I have not answered all his questions, I will follow up in writing.
“(2A) Sections 63D to 63T do not apply to material to which paragraph 8 of Schedule 4 to the International Criminal Court Act 2001 (requirement to destroy material) applies.
(2B) Sections 63D to 63T do not apply to material to which paragraph 6 of Schedule 6 to the Terrorism Prevention and Investigation Measures Act 2011 (requirement to destroy material) applies.”
“(5A) The responsible chief officer of police may apply to a relevant court for an order to retain a sample to which this paragraph applies beyond the date on which the sample would otherwise be required to be destroyed by virtue of sub-paragraph (4) or (5) if—
(a) the sample was taken from a person detained under section 41 in connection with the investigation of a qualifying offence, and(b) the responsible chief officer of police considers that the condition in sub-paragraph (5B) is met.(5B) The condition is that, having regard to the nature and complexity of other material that is evidence in relation to the offence, the sample is likely to be needed in any proceedings for the offence for the purposes of—
(a) disclosure to, or use by, a defendant, or(b) responding to any challenge by a defendant in respect of the admissibility of material that is evidence on which the prosecution proposes to rely.(5C) An application under sub-paragraph (5A) must be made before the date on which the sample would otherwise be required to be destroyed by virtue of sub-paragraph (4) or (5).
(5D) If, on an application made by the responsible chief officer of police under sub-paragraph (5A), the relevant court is satisfied that the condition in sub-paragraph (5B) is met, it may make an order under this sub-paragraph which—
(a) allows the sample to be retained for a period of 12 months beginning with the date on which the sample would otherwise be required to be destroyed by virtue of sub-paragraph (4) or (5), and(b) may be renewed (on one or more occasions) for a further period of not more than 12 months from the end of the period when the order would otherwise cease to have effect.(5E) An application for an order under sub-paragraph (5D) (other than an application for renewal)—
(a) may be made without notice of the application having been given to the person from whom the sample was taken, and(b) may be heard and determined in private in the absence of that person.(5F) In Scotland, an application for an order under sub-paragraph (5D) (including an application for renewal) is to be made by summary application.
(5G) A sample retained by virtue of an order under sub-paragraph (5D) must not be used other than for the purposes of any proceedings for the offence in connection with which the sample was taken.
(5H) A sample that ceases to be retained by virtue of an order under sub-paragraph (5D) must be destroyed.”
“(7) In this paragraph—
“ancillary offence”, in relation to an offence for the time being listed in section 41(1) of the Counter-Terrorism Act 2008, means—
(a) aiding, abetting, counselling or procuring the commission of the offence, or(b) inciting, attempting or conspiring to commit the offence;“qualifying offence”—
(a) in relation to the investigation of an offence committed in England and Wales, has the meaning given by section 65A of the Police and Criminal Evidence Act 1984,(b) in relation to the investigation of an offence committed in Scotland, means a relevant offence, an offence for the time being listed in section 41(1) of the Counter-Terrorism Act 2008 or an ancillary offence to an offence so listed, and(c) in relation to the investigation of an offence committed in Northern Ireland, has the meaning given by Article 53A of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12));“relevant court” means—
(a) in England and Wales, a District Judge (Magistrates’ Courts),(b) in Scotland, the sheriff—(i) in whose sheriffdom the person to whom the sample relates resides,(ii) in whose sheriffdom that person is believed by the responsible chief officer of police to be, or (iii) to whose sheriffdom that person is believed by the responsible chief officer of police to be intending to come; and(c) in Northern Ireland, a district judge (magistrates’ court) in Northern Ireland;“relevant offence” has the same meaning as in section 19A of the Criminal Procedure (Scotland) Act 1995;
“a relevant search” has the meaning given by paragraph 20A(6).”
“20HA Paragraphs 20A to 20F and 20H do not apply to paragraph 20A material relating to a person detained under section 41 which is, or may become, disclosable under—
(a) the Criminal Procedure and Investigations Act 1996, or(b) a code of practice prepared under section 23 of that Act and in operation by virtue of an order under section 25 of that Act.”
Baroness Hamwee
“Work-related requirements6A Regulations may provide that a claimant who—
(a) has a right to reside in the United Kingdom under the EU Treaties, and(b) would otherwise fall within section 19, 20 or 21,is to be treated as not falling within that section.”
Baroness Hamwee
My Lords, Amendment 15 deals with membership of the National DNA Database Strategy Board. In Committee, I moved an amendment requiring rules about the composition of the board to be included as part of the governance arrangements. The Minister reassured me that the Government's rules would include full membership of the board. She said that an independent element in the form of representation from the Information Commissioner's Office and the National DNA Database Ethics Group would be included. She also said that she would be happy to receive suggestions to strengthen the independent element. This is such a suggestion.
My point in that debate and now is that an independent element need not be, and possibly should not be, a member of the board in a representative capacity. Noble Lords will all have experience of boards to which independent members bring exactly that: independence. They come as individuals with not only independence but judgment, experience of the wider world and so on. If they are representatives of other organisations, they have a rather different role to play. My reason for moving the amendment again is not just to respond to the invitation issued in Committee but to ask the Government to bear this in mind and not exclude the desirability of having true independence involved in the governance of the board. I beg to move.
Baroness Stowell of Beeston
My Lords, I am grateful to my noble friend for her explanation in moving her amendment. The first thing I will make clear to her is that we are not averse to including on the National DNA Database Strategy Board someone who is wholly independent in the sense that they have no direct or indirect interest in this field and, as such, can exercise a role akin to that of a non-executive director, as my noble friend explained and illustrated. All I can do at this time is restate what I said in Committee: namely, as she acknowledged, that the governance rules that must be published under the new Section 63AB(6) of PACE will include the full membership of the board, and that membership will continue to include an independent element in the form of representation from the Information Commissioner's Office, the National DNA Database Ethics Group and the Forensic Science Regulator. We do not consider it necessary to specify the membership of the board in the Bill or at this time to specify what my right honourable friend the Home Secretary might include in the governance when it is decided and published, but I am sure that in reviewing the membership of the board she will consider the points that have been made by my noble friend. I think she will want to ensure that we are not so specific in those governance rules that they prevent us changing any of the independent elements of the membership of that board in future, when different organisations might be associated with DNA.
I hope that my explanations have given my noble friend the assurance she needs that we understand the importance of an independent element in the board and that we want to retain flexibility for the future in the make-up of the board. However, we will certainly take into account the points she has made.
Baroness Hamwee
My Lords, I thank the Minister for that reply. I do not require the detail now; that would not be sensible. My point is to ensure that the door is not closed to prospective independent members who are not representative of or members of related and connected organisations. The Minister said that the Government are not averse to that, and I am glad that the door will be open and that the point is, I hope, taken. I beg leave to withdraw the amendment.
Lord Campbell-Savours
“(10) The Secretary of State may by regulation introduce a statutory framework for the establishment of a Voluntary National DNA database.
(11) The National DNA Database Strategy Board shall, within a period of 12 months of commencement, report to the Secretary of State with recommendations on the establishment of a Voluntary National DNA database.
(12) The report on the establishment of a Voluntary National DNA database shall include the following—
(a) advice on options for the funding (both public and private) of the DNA database;(b) advice on proposals for the charging of individuals for the taking and retention of sample DNA;(c) advice on the security arrangements governing the retention of DNA samples;(d) advice on the categorising of donors from whom DNA samples have been taken and from which a DNA profile has been derived;(e) advice on the arrangements for the transfer of donor identification between categories;(f) advice on requests for removal of individual DNA profiles from the database;(g) advice on access by a responsible police officer to DNA profile information on the database; and(h) advice as to which statutory organisation and in what circumstances access to DNA profile information shall be given.”
Lord Campbell-Savours
My Lords, this amendment is my modest attempt to secure the introduction of a voluntary national DNA database. I suppose I could have introduced the amendment under the voluntary donation provisions in Clause 10; however, on reflection I decided to graft the responsibility for working up the arrangements for establishing such a scheme on to the functions of the National DNA Database Strategy Board. If the amendment appears clumsy, it is because I am not a lawyer.
During the course of a somewhat flippant area of debate in Committee, the noble Lord, Lord Henley, with a smile on his face, suggested that a special database should be set up for voluntary donors. I think he called it the Baroness Royall database.
Lord Campbell-Savours
I put the same proposition more seriously. I am convinced that there is much support throughout the United Kingdom for the establishment of such a database. I have no evidence, apart from anecdotal evidence and conversations. However, I believe that many people out there would have no problem donating their DNA to such a database. The huge and undeniable benefit of going down the voluntary database route is that it would greatly help to take the stigma out of DNA retention and would help to develop public recognition of the benefit of retaining DNA. The bigger the voluntary database, the lower the level of stigma will be.
It is inevitable that over this century the state will hold more and more information in secure conditions. Better that the collection of such information be organised in a thought-out and structured manner rather than in conditions of panic when the state feels so much under threat that its only response is overreaction, with resultant confusion in policies on law and order.
We are slowly moving into a world where the measure of our freedom is dependent on our freedom to walk where we wish, live where we wish, travel where we wish, interact with others where we wish, transact where we wish and live longer without fear of assault on our person, our possessions and our civil rights. That will require some data to be held on us as individuals. I believe that there are many millions out there who are prepared to invest in the protection of their freedom. For me, the question is not so much the nature of the data to be held—I think that at the end of a national debate we can agree on that—but how we can arrive at a point where the public have swallowed their misgivings and reservations about the secure handling of data. As the former Metropolitan Police Detective Chief Inspector Colin Sutton put it in the Times two weeks ago:
“We are seemingly happy to attach biometrics to our passports—and therefore to our identities—but fearful of DNA. Our data-dependent society requires everyone to be ‘on the system’”.
As the senior judge Lord Justice Sedley put it in the Times on 6 September 2007:
“Where we are at the moment is indefensible. We have a situation where if you happen to have been in the hands of the police, then your DNA is on permanent record. If you haven’t, it isn’t … It also means that a great many people who are walking the streets, and whose DNA would show them guilty of crimes, go free”.
He went on to say that expanding the database to cover the whole population had,
“very serious but manageable implications”.
We then have the very interesting comments of Professor Sir Alec Jeffreys in his evidence to the Commons Home Affairs Select Committee on 3 February 2010. Sir Alec was described by the chairman of the committee as the person who,
“invented techniques for DNA fingerprinting in 1984”,
and as,
“the person who … invented this course of genetics”.
Sir Alec fathered the scheme proposed by the Government in the Bill. It was he who called upon the Home Office to adopt the Scottish model due to his profound concerns over the operation of the DNA regime in England and Wales at that time. To be fair to him, I quote his response to Gary Streeter MP’s questions in its entirety, but briefly. Gary Streeter asked him:
“Do you think it would be fair if the police did not just keep the samples from the people they have arrested who turn out to be innocent but if we were all on the database? How would you feel about that? Would that be a better system than the current system?”.
Professor Sir Alec Jeffreys replied:
“It would be a much less discriminatory system. I do not want to discuss the issue of discrimination against certain classes of our society, but it would get rid of issues of discrimination. I personally would be very uncomfortable with the idea that the police would have such a database. My vision would be of a parallel database … that would allow the police to keep their criminal DNA database and then one can image how those two could possibly interface. Very, very interestingly, the United Arab Emirates has agreed to go ahead with mandatory databasing of the entire population—and without any change in legislation, as far as I can tell. They intend doing that over the next few years. There is an experiment that is about to start which will greatly merit a very careful watch, to see whether it really does impact on criminal detection or whether it is seen by the UAE society as much more of a surveillance tool—which would be my worry, I have to say”.
This is the man who basically invented this whole science.
My amendment is but a tentative step down that route. The reference to “categorising of donors” is the move towards the parallel database. There are a number of questions that would need answers if we were to proceed with a voluntary DNA database. What is the cost to be? Who will pay for it? What is the scale of public support? What security arrangements could be put in place to protect such data? What arrangements could be made for the removal of data? Who would have access to the data? How would one categorise data so as to de-stigmatise the retention of data while allowing for the transfer of data between the various categories?
These questions would be the subject of inquiry, investigation and debate within the National DNA Database Strategy Board, which is what I am recommending in my amendment. I have used the board as a peg on which Parliament would place the responsibility for taking the whole enterprise forward. I beg to move.
Lord Marlesford
My Lords, I strongly support the noble Lord, Lord Campbell-Savours. He is merely putting forward, probably before his time, something that will inevitably come. The sad thing is, as we have more and more science at our disposal to improve the standard of our lives throughout the world, every now and again it is resisted. There is nothing new in that; it is always happening.
When the noble Lord was speaking, what immediately occurred to me as a good example of scientific progress that is being rejected in some areas at the moment is GM foods. There have even been examples of modern vaccinations being rejected. Clearly, DNA being the most certain of the biometrics currently available is something that will come. It is used in other countries. There is nothing sinister about it. The noble Lord’s idea of a voluntary database is extremely sensible and a very good way of moving forward.
Of course one has to recognise the cultural inhibitions and the emotional barriers to doing these things. I always felt that the problem with the identity card system that the previous Government aspired to and which the current Government have scrapped was not the identity part of it but the cards, because people saw identity cards as being echoes of fascism and totalitarianism of various sorts. In any case, the card itself is quite a dangerous thing. The great thing about biometrics is that if you want to know who someone is, you have the biometric and thus the person. If you want to check whether A is who he or she says they are, you take the biometric. You cannot compare the person with a card, because a good criminal or a good terrorist would ensure that the chip on the card matched themselves, but you can compare them with a fundamental base. This will come. Of course, as the noble Lord said, we are in a complicated society in which people move, but the global economy is nothing compared with the global society in which we will move, and as this happens we have to be able to dispose of resources efficiently to help people who need help rather than those who do not, and of course to fight crime as well. We have to have the means of knowing who people are. What the noble Lord suggests is thoroughly sensible, and as it would give the Government only the powers to do it I hope that they will look at it very carefully.
Lord Hughes of Woodside
My Lords, I rise to support my noble friend Lord Campbell-Savours, who has put the case for his amendment with eloquence and his usual attention to detail, which we should not simply shrug aside.
There is a great feeling these days that we are moving towards some sort of society that is totally controlled by the powers that be, known or unknown. People frequently call into aid the infamous—or famous, if you like—book 1984, in which Big Brother was always watching you. Of course we do not want to move down into that kind of society, and although I support the idea of a national DNA database, as I said earlier, if we cannot get one by normal means then by all means let us get it by voluntary means.
Perhaps I might correct an impression that I gave. I seem to have misled the noble Lord, Lord Henley. In an earlier debate, I spoke about the length of time for which DNA evidence might lie about unidentified. I am not suggesting for one second that such evidence would be destroyed as a result of this Bill. I am perfectly aware that it would not be. The point I was trying to make is that there is an ever increasing gap between the time when unidentified DNA evidence comes to the notice of the police and the authorities and the time when it is identified. Thus the gap between the availability of the evidence and its identification and the identification on the database is growing wider and wider.
One noble Lord said that there was an argument for keeping DNA for ever on a database. I accept that. I am not the least bit frightened about DNA material being kept if it is in the public good. It is a question of balance. The Government have decided what the balance is, and some of us might disagree, but I think there is common ground between us on the point that the objective of the exercise of collecting DNA evidence is to prosecute and to convict the guilty, and where possible to protect the innocent, who might be attacked by someone who has not been charged previously but who then can be.
I will not labour the argument except to say that a voluntary database is a very good idea. I wonder whether my noble friend might agree that we should have some sort of pilot system to try to persuade people that everyone should be on it. Perhaps we should proceed by trying to persuade people that such a thing is a good idea and to volunteer for a limited period to see what the take-up is.
With these few words, I certainly support my noble friend’s amendment, and I hope that the House will support it.
Lord Desai
My Lords, I apologise for not having spoken before in a debate on this Bill. I have listened to the excellent idea of my noble friend Lord Campbell-Savours about a voluntary DNA database, but I want to say just one thing. Yes, a voluntary database is a good idea, but if people do not volunteer they should not be marked down as being unco-operative. It is quite likely that some people will not like the idea of offering their DNA. It would be a very bad thing if it got to the stage where not volunteering became a black mark against you. It would detract from the virtue of my noble friend’s suggestion. Certain ethnic communities, especially women, may not want to have their DNA taken. Therefore, we must make sure that it is not held against them if they do not volunteer.
The Earl of Erroll
My Lords, I was quite attracted by the concept of the freedom to choose voluntarily to do something but in this case it leads us astray. History teaches us that, if there is a large amount of private information out there which a Government think is useful, they will acquire access to it. For example, the USA Patriot Act gives the American Government access to anything they want in the name of trying to fight terrorism. Therefore, these data will not necessarily be secure in perpetuity if someone sees a use for them.
I have also learnt from history that governments who accumulate a large amount of information on their citizens end up using it to control the everyday lives of those citizens. For starters, you only have to look at communist Russia, watch “Dr Zhivago”, or look at East Germany, Albania or all sorts of places, where, at the end of the day, these things are used to control behaviours. I am sorry but I do not trust the people who end up in charge of these things. We need to look 10, 20 or 30 years ahead and we do not know who will be in control then.
Perversely, as a result, it does not necessarily protect citizens. It is not as if this will give an automatic one-to-one match. It would do what this Bill is trying to prevent. The Bill is trying to protect us from the Government trying to accumulate large amounts of data. DNA of course is not infallible. Ultimately, it is vulnerable to contamination of samples and laboratory error. It is only an approximate match; it is not a one-to-one match the whole time. Therefore, there will be errors which could be misused. I think that this amendment concerns a bigger subject and should be left out of the Bill. It does not fit with it.
Baroness Royall of Blaisdon
My Lords, I rise not to support my noble friend on behalf of the Opposition necessarily but, as I said in Committee, as an individual I have a great deal of sympathy with my noble friend’s amendment. Like my noble friend I believe that such a voluntary database would lower the level of stigma and in the future might enhance public confidence in the secure handling of data, which is very necessary. As my noble friend has said today, the state will undoubtedly hold more and more information about its citizens.
I was also very interested to hear of the response by Professor Jeffreys to Mr Gary Streeter MP, which is worth pursuing. I do not know what the Government’s response to my noble friend’s amendment will be, although I suspect that they will reject the amendment. However, it is an interesting suggestion and I hope that, if the amendment is not accepted by the Government, the National DNA Database Strategy Board will look at the proposal as perhaps something interesting to pursue on behalf of the citizens of this country and their safety.
Lord Henley
My Lords, the noble Baroness guessed right in that I will be rejecting the amendment or at least not encouraging the House to accept it. The noble Lord, Lord Campbell-Savours, like Jonathan Swift, made what is described as “a modest proposal” and claimed that I had recommended this policy in Committee with a smile on my face. The noble Lord should not always take me totally and utterly seriously, even in Committee, whether there is a smile on my face or otherwise. I will have to look carefully again at what precisely I said at that time.
If the noble Lord is of the view that he or others should be able to go along and hand in their DNA to the police, I am more than happy for them to do that. I will escort him to the police station in Workington, Carlisle or whatever town in the north-west he finds most convenient. We will go together and I will assist him in that process. Having said that, I do not think that this proposal really has much running for it, although I can see the arguments put forward by the noble Baroness, Lady Royall, about reducing stigma and other such matters. Those remarks were echoed by the noble Lord, Lord Desai, although he went on to make the important point about those who do not volunteer and whether they would have problems. I will get to that in due course.
I want to make only one or two points about the amendment because I do not think we should waste too much time on it, modest proposal though it was. First, I do not believe that there is a demand for such an idea. The police service has not been demanding the establishment of such a database and I do not believe that there is any great demand for one within civil society as a whole. There might be a few public-spirited individuals such as the noble Lord, Lord Campbell-Savours, and others who wish to come forward and provide their DNA for a database, but I suspect that they would be few and far between. I would also suggest that it is unlikely that individuals such as the noble Lord who did come forward would have any involvement in criminality, and that would be the reason they were happy to put forward their DNA. It is therefore difficult to see what the use might be for such material being stored on a voluntary database.
Secondly, I have a rather more important objection to the amendment, which relates to new subsection (11) where it proposes that the,
“National DNA Database Strategy Board shall, within a period of 12 months of commencement, report to the Secretary of State with recommendations on the establishment”,
of the database, and then in subsection (12) it sets out what the board should do. I do have to say that having the board carry out a feasibility study within 12 months of the commencement of the Bill would be asking rather a lot. The board’s workload will already be high during that period in supervising the establishment of the new procedures required by the Bill. That will take up a considerable amount of its time. The board has no resources to do this and we do not consider it appropriate to require it to do all this extra work at this time.
Having said that, I will put the smile back on my face and say that it is an interesting idea, as the noble Baroness put it, and a modest proposal. No doubt he will be more than happy to hand in his DNA in due course, but I do not think that I can support his amendment at this stage.
Lord Campbell-Savours
My Lords, I am grateful to the noble Lord, Lord Marlesford, for his recognition of the inevitability of the developments in DNA biometrics and how, in the end, there will be a national database. I am absolutely convinced of that, although it probably will not happen in my lifetime. I am also grateful to my noble friend Lord Hughes of Woodside on the question of the pilot. I do not think that this would cost the Government a lot of money. The only cost would be incurred by the strategy board in carrying out the work that is necessary for the purposes of my amendment. The fact is that we might find some great public benefactor, a private person, to fund a pilot which, over the years, might develop into a national DNA database. All I was asking was for the framework for a voluntary database to be considered, not for the Government to spend money on establishing it.
I recognise the concerns of my noble friend Lord Desai on the issue of black marks being put against those who refuse to join in. As I say, it would be voluntary, and in so far as it is voluntary I do not think that that issue would arise. I am sorry that the noble Baroness, Lady Hamwee, was not able to intervene on this occasion, because she too is recorded in Hansard as expressing the view that it might have some effect on reducing the stigma generated over the retention of DNA. I am grateful to my noble friend Lady Royall of Blaisdon for expressing the hope that we can at least consider this seriously at some stage in the future.
Perhaps I may say to the Minister that this is a debate that is going to carry on. As I have said, I believe it is utterly inevitable that this will happen. It is just a question of which Government will have the courage actually to take on the responsibility of taking the project forward. I beg leave to withdraw the amendment.
Lord Henley
Lord Henley
My Lords, I shall speak also to the other amendments in my name in this group; that is, Amendments 19, 22, 25, 26, 27, 28 and 29. We will also consider in this group Amendments 20, 21 and 23, in the name of my noble friend Lady Hamwee, and Amendment 24 in the name of the noble Baroness, Lady Royall. I shall respond to those as I come to the end of my remarks, but, at this stage, I shall speak just to my own amendments.
We consider a child’s biometric information to be highly personal and sensitive and, as such, it should be protected. It is right that schools and colleges should be required to obtain the written consent of a child’s parents if they wish to take and process this information.
We listened carefully to the concerns raised in Committee about these provisions. In particular, my noble friend Lord Lucas and the noble Lord, Lord Rosser, argued that the requirement to obtain the written consent of both parents would place too great a bureaucratic burden on schools and could have the effect of dissuading schools and colleges from using biometric recognition systems.
The Government are persuaded that we should remove the “dual consent” requirement and instead provide for a system whereby all parents, and any other individual with parental responsibility for a child, must be informed in writing that the school or college intends to take and process the child’s biometric information and that they have a right to object. As long as no one objects in writing, the written consent of only one parent will be required. This change strikes the right balance between ensuring that the views of both parents continue to be taken into account, with their right to object preserved, and ensuring that the administrative burden on schools and colleges is not too great.
The Government’s amendments also make the consent requirements in the Bill more consistent with all other forms of consent that schools and colleges are required to obtain, therefore alleviating any additional bureaucratic burden. The main difference in this instance is the express provision to notify all parents and the stipulation that, if any parent objects, the processing of their child’s biometric information cannot take place. I beg to move.
Baroness Hamwee
My Lords, my Amendments 20 and 21 are to the Minister’s Amendment 19, which, as he explained, deals with notification to parents. My amendments would include the child in the notification.
Noble Lords will be aware of provisions of the European Convention on Human Rights and the UN Convention on the Rights of the Child, both of which are relevant here. Without being technical about it, it seems to me a matter of common sense and principle that a child whose data these are should be part of this whole process. I doubt that I need spend long seeking to persuade your Lordships of that—well, I hope not; if I get a look from in front of me, perhaps I should.
The UN Committee on the Rights of the Child has made it clear that:
“The realization of the right of the child to express her or his views requires that the child be informed about the matters, options and possible decisions to be taken and their consequences by those who are responsible for hearing the child, and by the child’s parents or guardian”.
Amendment 23 follows an amendment that I had in Grand Committee relating to the provision of information. Noble Lords at that stage regarded what I was proposing as too burdensome, in that it was read as an annual requirement. I had not intended that the provision of information should be anything as burdensome as was understood, so I have brought back a simpler amendment, which would provide that the authority in question should ensure that information is provided to each parent and child on their rights, in language capable of being readily understood by them.
I am not proposing here regular pieces of paper in difficult language—I remember the noble Baroness, Lady Farrington, saying that in her experience, as both a mother and a grandmother, such pieces of paper tend to end up in the washing machine. I am simply saying that it needs to be recognised that information should be readily available, perhaps on the school’s website, along with other information. However, the provision of information in accessible language is an important principle. I understand that there has been some research that indicated that most children using biometric systems in schools had not considered how long their fingerprints would be held for. They were generally not concerned, which the researchers took as a serious matter. I am not entirely surprised that children may not think beyond what is immediately in front of them. However, it points up the need, not to shove it down children’s throats, but to make the information very easily accessible.
The Information Commissioner has made it clear that schools collecting data need to be aware that children are data subjects and that,
“it is they who should in the first instance be informed and consulted about the use of their personal data”.
Lord Lucas
My Lords, I am very grateful to the Minister for his amendments. I think they answer the matters that I raised as well as I could have possibly hoped.
Lord Rosser
My Lords, we have Amendment 24 in this group. The purpose of the amendment is to effectively remove from a child of primary school age the application of the provisions that would enable a child to override a decision by their parent or parents that their child’s biometric information should be processed. However, I fear that the wording of the amendment could be interpreted as also excluding children above 12 years of age from the provisions in the Bill on this issue, when that is not in fact the intention. Our view is that no child should be able to overrule their parents’ decision on this issue in the way envisaged in the Bill; indeed, we believe that the process should be agreed, or otherwise, by the parent on the basis of having to opt out rather than opt in, as the Government propose.
However, the Government have resisted changing the Bill other than to say that the consent of only one parent is required, provided the second parent is not raising an objection. Hence, our Amendment 24 seeks to address the issue of overriding a parent’s consent in relation to children of primary school age. The Government have argued that a child of primary school age should be able to make this decision. However, in fact, the decision that the child can make is restricted in a way that the Government have not yet explained. If the Government consider that a child of primary school age, from five to 11, is fully able to understand the issues involved and make a decision, which goes against the expressed wishes of their parent or parents that their child's biometric information should be processed, then why is it that if the parent, or one of the parents, declines to agree that their child's biometric information should be processed, the child should not also be given the opportunity to override that decision by saying that they do wish their biometric information to be processed? Indeed, in the light of the Government's amendment relating to parental consent, one parent could agree to their child's biometric information being processed, the other could disagree, and then irrespective of the fact that the child might wish to have their biometric information processed, their view would count for nothing, even though within the family two were in favour—that is, the child and one parent—and only one was against—that is, one parent.
What is the argument in favour of that situation when the Government are saying that a child should be able to overrule the wishes of their parents if the child says they do not want their biometric information to be processed? There may be reasons why a child would wish to agree to their biometric information being processed in a situation where at least one parent had said no. It might be that all or nearly all the other children in the class had agreed to have their biometric information processed, and the child might not wish to be different, or be treated differently, and indeed this might be a cause of concern to the child. Yet under the Bill, while a child of five to 11 years of age could stop their biometric information being processed, they could not insist on it being processed.
In the absence of a convincing explanation for this apparent anomaly—perhaps the Minister will provide one when he responds—there must be a suspicion that these arrangements are being introduced, under the guise of a very selective definition of children’s rights, when what they are really designed to do is implement an unsaid government policy of effectively making impossible the continued processing of a child's biometric information.
The Minister asked in Committee if we were proposing that a child should be dragged kicking and screaming to have their biometric information processed if they disagreed when their parents had given their approval. I will come back to that point. The trouble with the Government's proposal is that it provides a child, including a young child of primary school age, with the opportunity to very publicly, in their school, override the wishes of their parents, provided of course that they do not want their biometric information processed, but not if they do, contrary to the wishes of their parents. Apart from the prospect of some parents feeling somewhat humiliated, it is hardly giving a message to young children that they should respect the word and wishes of their parents. Indeed, it is doing the exact opposite. If it is all right to overrule parents’ wishes in this very public way on this issue, why should a young child not get the message that it must be all right to do it over other issues?
No school with any sense would force a child to have their biometric information processed in a situation where just parental approval or non-objection was required, but that child nevertheless still refused. A more sensible approach would be for the school to go back to the parents and invite them to discuss the issue with their child. If the matter could not then be resolved by either the child no longer refusing or, alternatively, the parents deciding to withdraw their consent, the school would do best not to pursue the issue and make a martyr, but to tell the child that if they so wished they could change their mind at any time in future. At least that approach would not leave the school having to give the child an open invitation to overrule the wishes of their parents, as is the case under the Government's proposals.
As I said at the beginning, our amendment does not change the Bill in the way we think it should be changed on this issue but, in view of the Government's stance, it does at least provide that the provisions enabling a child very publicly to overrule their parents—but, strangely only if the child does not want their biometric information processed, and not if they do—does not apply to children of primary school age.
The Earl of Erroll
My Lords, although I would agree that the Government have made an effort to move some way in the direction that we were talking about, I entirely agree with the remarks made by the noble Lord, Lord Rosser. For many schools, particularly the not-so-good schools, fingerprint recognition biometrics are used in order to stop a certain amount of bullying—so that you cannot, for example, tell which children are in receipt of free school meals or getting special provisions. The moment you start to have a way of distinguishing those matters, other children will have a lever to start bullying, causing disruption et cetera.
It was said that if the parents decided that the child should not have its biometrics kept they could use a card and some other system would have to be provided. But that in itself could become a target for the other children. For instance, if you knew that little Johnny had a card and was also vulnerable, what could be better than to remove his card and destroy it? He will probably not dare tell people that he has been bullied in this way. People might even use that card to gain stuff for themselves. Your Lordships might say, “It is PIN-protected”. However, it would not be very difficult for other children to bully that PIN number out of little Johnny.
We have to realise that, in the real world, these things are not ideal. These biometrics were being used to provide a much more even way of identifying children with special requirements without other children knowing that they have them. The provision could drive a coach and horses right through this very efficient way of doing it. The Government should therefore think again about what the noble Lord, Lord Rosser, said, and produce their own amendment for Third Reading. The system will need to work in that sort of way so that it can be changed and the child can opt out. If the child thinks, “I am going to get bullied”, it may well want to overrule its parents. In this case, I do not see why the child should not.
The other thing that they might want to do—although this would require a few more amendments and I would not begin to attempt those myself—is somehow to find a way of saying that if this is not working because it is starting to cause problems in schools, we could come back and change it without having to go back to primary legislation. Although I do not like the Henry VIII-clause method, perhaps we can bury some part of this in regulation whereby it could be varied if the Minister found later on that it was causing problems in schools. For instance, instead of the parents having to do an opt-in to the system it would have to be a very deliberate opt-out. Something like that could be useful, because I know this all looks great on paper but out there in the real world it does not work that well. People are not reasonable.
There are also a lot of people who cannot read and write. We talk about providing the information in a form which is easily understood by parents but I am told that the adult illiteracy rate is supposed to be 10 per cent. Perhaps it is 14 per cent, I hear, and in some schools you are going to have that. How many languages would you have to translate it into in some schools? We all seem to be assuming that people are reasonable and available, can read and write, and can understand the issues. That is very dangerous. The Minister should probably look at this and try to give himself more flexibility, in case there are some unintended consequences of what is a well-meaning part of the Bill.
The important thing which we want to end up with is that biometric information used by schools for their administration systems cannot be used outside the schools, and there are many ways of achieving that other than by this opt-in only basis. We should make sure that it is destroyed the moment that the pupil leaves, because it is not needed for administration purposes, and that is not permissible to use it in any other way. If we think that we can keep a voluntary DNA database secure from the Government, we can keep school databases secure from them and the police, or whoever. It is not the fact of the fingerprint that matters; it is what it is used for. We should perhaps make it so that it is not of evidential quality. I suggest to the Minister that he looks again at this.
Lord Henley
My Lords, I note what the noble Earl, Lord Erroll, said in his concluding remarks and we will certainly look at whether any such biometric information should ever be made available outside school. He makes a perfectly valid point on that. Perhaps I might answer some of the points that have been made in the course of this debate, then move my own amendments. It will be open to noble Lords to consider what to do with their own amendments that have been grouped with this later on.
I start with the question of language, which my noble friend Lady Hamwee raised in Amendment 23. The amendment says that information provided by schools and colleges to parents and children on their rights under these provisions must be in a language capable of being readily understood by the parent and child. In response to the noble Earl, Lord Erroll, this is true of all information that is provided to parents, whether illiterate or not, and it is something that schools always have to take into account when trying to get to their parents. As I indicated in our deliberations in Committee, the Bill provides that parental consent must be informed and freely given. Schools and colleges should take steps to ensure that parents receive full information about the processing of their child’s biometric information.
I can give an assurance that the Department for Education will issue advice to schools on the provisions in this chapter of the Bill. That advice will include a template consent form for schools to use if they wish. As well as providing information about the type of biometric information to be taken and how it will be used, the advice and the template will refer to the right of parents and pupils to refuse or withdraw their consent and the duty on schools to provide alternative arrangements for those pupils whose information cannot be processed. We will encourage schools to follow the template that we have put forward.
With the aid of this advice, I hope that my noble friend will agree that we can trust schools and colleges to provide appropriate information in the appropriate manner to provide parents and pupils with the right information without the need for an express legal requirement of the kind set out in her amendment.
I turn to my noble friend’s Amendments 20 and 21, which are amendments to government Amendment 19 and seek to ensure that children will also be notified of the processing and of their right to object. We do not consider that an express statutory provision to this effect is necessary, as schools and parents should be trusted to inform children in an age-appropriate manner of what is being proposed, and to ascertain if the child has any concerns about the processing. The proposed government advice will highlight to schools the child’s right to object, and will recommend that parents are made aware of that advice.
I turn to the amendment in the name of the noble Lord, Lord Rosser. I was worried that his arguments were oversuspicious and, at some points, over-Jesuitical. He seemed to think that there was a hidden agenda, and at times I suspect that there was an element of him protesting too much in his objections to what we do. Having said that, I have a degree of sympathy for the arguments that he put forward.
The Government believe that, regardless of their age, all children should have the right to say no to the processing of his or her biometric information, even if that is an uninformed objection from a relatively small child. No child of any age should be coerced, physically or otherwise, to give his or her biometric information. We believe that it would be wrong to ignore the wishes and feelings of even a primary-aged child in this important matter.
Lord Rosser
If that is the Government’s view for a child of primary school age, is it also their view that if that child wishes their biometric information to be processed and their parents do not, the child’s view should likewise prevail?
Lord Henley
My Lords, I was going to come to that point. The two scenarios are different. This is why I thought that at times his arguments were positively Jesuitical, with one parent pushing one way, one pushing the other and the child possibly going down a third route, if there could be a third route. Why should one or the other prevail? We think it is right that if the parents say, “No, we do not want that”, that should be final. That is why we have tabled the amendments. Even if one parent objects, that should be it. However, because we believe that these things are important, we also feel that, even if the parents want the provision, it is right that the child can opt out, even if he or she is making an uninformed decision. There is a very big distinction between the two matters. That is why I was worried about the arguments that the noble Lord was putting forward. I believe there is little to be gained in overruling the child’s wishes and I am not aware of any specific evidence that—
The Earl of Erroll
I was trying to make that same point, although not as well. Does the noble Lord remember being very embarrassed when he was at school by some of the things that his parents did because they did not understand how things were at school? That is the huge danger here. Some parents will be wound up by the Daily Mail into deciding to opt out of providing biometric information and their child will feel incredibly embarrassed because they stand out in class. That could get quite serious. Children may know better in this instance than one thinks.
Lord Henley
All of us have been children and most of us in this House are parents. All of us know that one thing that is absolutely universal to all children is feeling deeply embarrassed by their parents. That has been the case since time began. There is no way round that. Children will continue to be embarrassed by their parents, whatever their parents decide to do. The point I am trying to make is that I think there is a very big distinction between the parents saying, “Yes, you should do this”, and the child saying, “No, I want to opt out”, even if he or she is making an uninformed decision; and the other way round whereby it is being suggested that the child should be allowed to opt in even though the parents want to opt out. We want to make it clear to the child that this is a very important decision about giving up some of their own identity. They should be allowed to make that decision for themselves because it is a decision they will have to go on making in the future.
I think that I was the first to use the expression “kicking and screaming” in Committee. I do not think that is something that is likely to happen. A relatively small number of schools will make use of these sorts of mechanics, particularly when we are talking about primary schools. I believe that we can trust parents, schools and teachers to resolve any of the concerns that might crop up. The noble Lord has a point but it is a relatively small point and I do not think that he should get too worked up about it. I assure him that there is no hidden agenda on the part of the Government. I think these matters can be resolved by schools in a sensible way. Therefore, I hope that the noble Lord will not feel it unecessary to move his Amendment 24 when we come to it. I hope that I have addressed the points raised by my noble friend Lady Hamwee in her amendments and by the noble Lord, Lord Rosser.
Lord Henley
“(1A) Before the first processing of a child’s biometric information on or after the coming into force of subsection (2), the relevant authority must notify each parent of the child—
(a) of its intention to process the child’s biometric information, and(b) that the parent may object at any time to the processing of the information.”
Baroness Hamwee
Baroness Hamwee
Our procedures do not allow me to come back on a debate on Report, so I move this amendment to the Minister’s amendment to make a point and ask a question. He said that the Government trusted that schools would notify parents and children of the provision in an age-appropriate manner. My problem is that Amendment 19 refers to notifying only the parent. We have got to this point as a result of our focusing on consent. My question is whether guidance will extend—I think he has more or less said this—to notification to the child in the way that I suggest through this amendment. Of course, that will not deal with the consent but, given the later provisions of Clause 26, am I right in assuming that what I am seeking will in effect apply, because Clause 26 will not be workable otherwise? I would be happy with a yes to both those points. I beg to move.
Lord Henley
My Lords, I hope I have understood correctly what is being proposed but if I have got it wrong I shall certainly write to the noble Baroness and we can return to it later. As I understand it, this is a matter of writing to the parents and it is then for the parents to ensure that the child understands, as far as possible, what is being asked. We also hope that the school will deal with this matter. It will be set out in the guidance that I promised that the Department for Education would bring forward in due course.
Lord Henley
“(a) at least one parent of the child consents to the information being processed, and(b) no parent of the child has withdrawn his or her consent, or otherwise objected, to the information being processed.(3) Section 27 makes further provision about the requirement to notify parents and the obtaining and withdrawal of consent (including when notification and consent are not required).”
Lord Henley
“(1A) A notification under section 26(1A) must be given in writing, and any objection to the processing of a child’s biometric information must be made in writing.”
Lord Henley
Lord Henley
Lord Henley
My Lords, I shall speak also to Amendments 38, 39, 40, 41 and 46. I can give an assurance that these are all minor drafting amendments. I beg to move.
Lord Lucas
Lord Lucas
This is also a minor drafting amendment, but I suspect that I shall have to speak to it at greater length. It concerns the scope of “such” in the clause. It is very hard to divine in English what preceding part of the clause “such” is meant to apply to. Clearly, it can go further than the preceding noun. For example, if I were to say, “Some Peers make marmalade; such marmalade is highly prized”, that “such” would clearly apply to marmalade made by Peers and not just to marmalade. However, one can stretch the elastic too far and in that case “such” would seem to apply only to the closing words of a phrase. That is the difference that I have with the drafters of this clause. Clause 33(3) says:
“The surveillance camera code is admissible in evidence in any such proceedings”.
Does “such” mean “criminal and civil proceedings” or does it mean the whole of subsection (2)? This is a moot point. If you put the two subsections together and read straight on, it is absolutely clear in any normal sense of English that “such” refers to the whole of the preceding sentence, but the drafters say that by separating it into two subsections, the “such” applies only to “criminal or civil proceedings”. That is a difficult argument. The additional separation is small and “such” requires to be construed as if what is being talked about is a subset of the whole, but if you are talking about civil and criminal proceedings, you are really talking about the universe of proceedings. There are no other kinds of legal proceedings; you are talking about every kind of legal proceedings in the common world. You would not need “such”, you would talk just about proceedings or legal proceedings. For “such” to have a meaning in that place—I have read and reread that clause—it must refer to the whole of subsection (2). If it does, it allows the surveillance camera code to be admissible in evidence only in cases brought against a person in connection with their not having obeyed the code, not in all the cases that might otherwise involve parking or other aspects of criminal and civil behaviour where the code might be relevant. “Such” greatly restricts the use of the code.
I am clear from my discussions with the Home Office that it intends subsection (3) to be wide—that is, it should apply to any criminal or civil proceedings. It would be much clearer for anyone subsequently reading the Bill if that is what it said, rather than “such”. I beg to move.
Lord Henley
My Lords, I am grateful to my noble friend, particularly for his references to making marmalade. I can assure him that I made my marmalade last weekend. It did not go terribly well and I will probably be making some more this weekend to make sure I can enter it in that great marmalade competition that takes place in Cumbria once a year. No doubt the noble Lord, Lord Campbell-Savours, will be entering his marmalade in due course.
I am sorry that my noble friend still does not quite understand what we are trying to do here, but I admire his persistence. It reminds me of our late noble friend the Earl of Balfour, who frequently put down detailed amendments of this sort to a whole range of Bills and caused the parliamentary draftsmen considerable problems, as they had to try to explain their intentions and how they were getting to them. I hope that I will be able to do that and I shall quote from earlier correspondence.
My noble friend will remember that we discussed this matter in Grand Committee. My noble friend Lady Stowell dealt with it and then wrote to my noble friend Lord Lucas to clarify the overall purpose of Clause 33 and to provide reassurance that the wording of subsection (3) was consistent with the clause’s intention. Perhaps I may quote the relevant sections of the letter. It stated:
“Clause 33(1) provides that ‘a relevant authority’ must have regard to the surveillance camera code; clause 33(2) is deliberately wider than 33(1) in that it provides that any failure to have regard to the code (whether by a relevant authority or by another) does not of itself create civil or criminal liability. Subsection (2) is open to two interpretations: a narrow interpretation to the effect that the code is admissible in any civil or criminal proceedings in which a failure to have regard to the code is relevant, or a wider meaning, namely that it is admissible in any civil or criminal proceedings. We consider that it was clear from the context of the Bill that the words do refer to any civil or criminal proceedings. If you look at clause 33(2) there are no civil or criminal proceedings at that point. Consequently, the ‘any such proceedings’ (in subsection (3)) can really only refer to any civil or criminal proceedings. One also needs to consider clause 33(4) which refers to ‘any such proceedings’, since the meaning of that will hinge on the reference in clause 33(3)”.
I stand by the drafting skills of our parliamentary counsel and believe that the meaning that he has set out is already, should I say, crystal clear. The reference to “such proceedings” unambiguously refers back to the reference to criminal or civil proceedings in subsection (2). We do not need to repeat those words in subsection (3). We remain unconvinced that there is any real merit in such a revision to the Bill. Moreover, if we were to make that change in Clause 33, we would also need to amend Clauses 51 and 62 and Schedule 3, which adopts the same drafting approach.
With that explanation and having read out that extract from my noble friend Lady Stowell’s letter, I hope that my noble friend Lord Lucas will feel able to withdraw the amendment.
Lord Lucas
My Lords, one of the happy consequences of Pepper v Hart is that by setting out what he has, my noble friend has solved the problem, because he has produced something to which the courts can now turn to answer any question that may arise. I am very happy to withdraw my amendment.
Lord Campbell-Savours
“(l) any organisation able to transmit images which derive from surveillance equipment that is subject to the code of practice under section 29”
Lord Campbell-Savours
To describe this as a probing amendment is perhaps to stretch parliamentary procedure a bit far. However, I do so in the light of the parliamentary Answer given by the noble Baroness, Lady Browning, on 31 August, which referred me to the Bill and the proposed code of practice in response to my Questions on pixelation. I should tell the House that I gave the department notice of the subject behind the amendment, which is, as I said, the issue of pixelation—the deliberate scrambling and distortion of televised images of people, a practice used by TV production teams to disguise the identity of individuals, more often than not for legal reasons. I believe that there is far too much pixelation in the live media. I understand that TV companies tend to follow rules, some say guidance, set under the Ofcom broadcasting code, which appears to call for,
“caution to be required in programmes covering relatively common but illegal behaviour such as dangerous driving, speeding and criminal damage”,
and state that programmes should not,
“condone or glamorise violent, dangerous or seriously antisocial behaviour”.
I further understand that the broadcasters also follow the Information Commissioner's code of practice, which provides guidance on how best to comply with the provisions of the Data Protection Act 1998 and the eight data protection principles. Page 13 of the Information Commissioner’s code covers disclosure of images from a CCTV system to a third party, which may well be a television company. The effect of my amendment would be in an oblique way to bring those who transmit the images, TV companies, under the umbrella of not only the two codes to which I referred but the new code, in that the two codes, after suitable amendment, would have some regard to the code covering the operation of surveillance cameras as proposed under Clause 29. There might also need to be further amendment to the Data Protection Act.
I readily accept that that is a rather untidy way to raise the issue of pixelation, which in my view is now completely out of control and contrary to the public interest. Broadcasters have become far too sensitive in the use of such images. I perfectly understand why innocent bystanders—that is, people in the crowd—should have their privacy protected under the various codes. Why should a person committing a driving offence, such as driving with no insurance, grossly exceeding the speed limit or being drunk in charge of a vehicle, or urinating in the street, resisting arrest, attacking a person in a public place, being caught in the act of theft, swearing in a public place, using racist language, or swearing at a police officer, breaking into a shop front, as in the recent riots, or being caught in the act of abusing the benefits system or public servants, shoplifting, acting in a corrupt way through bribery—all acts which can be caught on camera—be protected from exposure and transparency by pixelation of their image in the act of wrongdoing?
The camera does not lie. What the camera sees, those present—very often the public at the scene of the incident—can see and witness. To argue, as the broadcasters do, that their actions are intended to ensure that the legal process is not prejudiced is no more than a cop-out. The judgment that the broadcasters should have in mind is not so much whether they are prejudicing legal proceedings, which is rarely the case, as whether transmission would leave them open to a civil action for damages, which could arise only if the transmission of an image misrepresented the action of an individual or individuals.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Lord, Lord Campbell-Savours, for moving this amendment. I have been provided with speaking notes to address some of the points that he has raised but, before I get to them, it occurs to me that perhaps he is raising two different issues here. I speak as someone who worked at the BBC for nine years. Following the noble Lord’s praise for Sky, I do not know whether this will mean that I attract criticism from him, but, as I say, I think that there are two separate matters here.
One is about documentaries or docusoaps, in which broadcasters follow police services and, in the course of filming or making the programmes, they capture footage on film of people doing things that are against the law. In those circumstances, the broadcasters tend to pixelate the images when they are played out. The broadcasters of that kind of imagery clearly have to comply with Ofcom’s broadcasting code and ensure that they do not broadcast images that might jeopardise any legal process that the police service might want to pursue in apprehending the person whom they have filmed. There is a separate issue that the noble Lord spoke more to in moving the amendment. It covers situations where news organisations, including the BBC, Sky, ITV and many others, broadcast CCTV footage that has been released to them by the police, usually in order for them to report on criminal activity and to broadcast the fact of that activity to the general public. In responding to the noble Lord, I will focus my comments on the second category of images rather than the first.
I start by saying that I wholeheartedly agree with the noble Lord that CCTV systems and images are an important investigative tool for the police. There is little point in investing in such systems if the police and others cannot make full use of the images when investigating offences captured on CCTV systems and prosecuting offenders. Where a suspect has yet to be identified and there is reason to believe that the release of CCTV footage will aid the police investigation of a crime and secure justice for the victim, our general approach is that we support images being made available to the public. There will be some cases where this may not be appropriate. However, the BBC programme “Crimewatch” is a great example of where CCTV footage of crimes has been broadcast and, as a result, the public have been able to provide vital information to the police.
We must be alive to the fact that at an early stage of an investigation, before anyone has been arrested for an alleged offence, any CCTV images would at best identify only one or more alleged offenders or wholly innocent persons. We need to be sensitive to such considerations, particularly where the persons visible on any CCTV footage appear to be under 18 and are therefore afforded particular protection within the criminal justice system. The position is different once a person has been arrested for an offence. In those circumstances, the Contempt of Court Act 1981 is engaged. This means that from the time of their arrest, a suspect is afforded a degree of protection in order to ensure that as the accused they have a fair trial.
All these considerations argue for a degree of constraint on the media in publishing personal details of suspects at the pre-charge stage. This is consistent with guidance issued by the Association of Chief Police Officers that sets out the limited circumstances in which police officers might divulge to the media the personal details of those suspected of, but not yet charged with, an offence. The ACPO guidance sets out the principles in this area, including the legal tests of necessity and proportionality, to help police forces make decisions about the release of images of suspects and defendants to the media.
I am grateful to the noble Lord for raising the issue. It is clearly relevant to the provisions of the Bill, given that one of our objectives is to promote the effective use of CCTV systems. As I said, it must be right that the police should be able to exploit CCTV images as part of their investigation of an offence. If the publication of such images has a role to play in helping identify suspects, the police should not be inhibited from placing them in the public domain. In doing so, they must have proper regard to their duties under data protection legislation and to the need to protect the rights of the accused, and they must have particular regard to the position of children. I hope that, having sparked the debate and listened to my responses, the noble Lord will withdraw his amendment.
Lord Campbell-Savours
My Lords, I am indebted to the noble Baroness for her reply to my amendment. We have had an early canter round a very interesting course. I feel sure that if we had not all been eagerly awaiting the amendment of the noble Lord, Lord Marlesford, there would have been far more contributors to the debate. On that basis, I beg leave to withdraw the amendment.
Baroness Hamwee
“(2A) Subsection (2) shall not apply to an authorisation granted in contemplation of any surveillance undertaken in pursuance of Part 3 of the Environmental Protection Act 1990 or the Noise Act 1996 in respect of noise.”
Baroness Hamwee
Amendment 33 amends the provision dealing with the need for judicial approval in cases of directed surveillance and covert human intelligence sources in the work undertaken by environmental health officers dealing with noise. I moved this amendment in Grand Committee. I know that the Minister is sympathetic to people who suffer from noise disturbance, so I am trying it again, not just for that, but in order to pursue a couple of points. I should declare that I am a vice-president, one of many, of the Chartered Institute of Environmental Health.
In responding to the amendment in Grand Committee, the Minister referred to meetings between the institute and Defra and to work on revising the RIPA code of practice, but if surveillance is unlawful, which is what concerns the institute, the code cannot make it lawful. I am rather cantering through the points covered in that debate. I accept that most of what environmental health officers do in investigating and dealing with noise nuisance does not amount to covert surveillance requiring authorisation. The Minister said that the code would make it clear that,
“authorisation under RIPA is unlikely”—
I stress that word—
“to be necessary”.—[Official Report, 15/12/11; col. GC 357.]
Uncertainty over this is not helpful. The Minister referred to the right to privacy, but I do not believe that this is a matter of privacy—privacy is keeping a matter private after the fact—but is about obtaining information. She said that if noise—for instance, of an argument—is so loud that it can be heard outside a property, there can be no realistic expectation of privacy. However, as I understand it, private information is defined by RIPA according to its content, not its audibility. Indeed, individuals can have a right to privacy in respect of activity even in a public place.
If the local authority is to serve an abatement notice warning that monitoring may be carried out, it has been suggested that it cannot be covert, but whether surveillance is covert is a matter of fact in each instance. The Minister said that the code makes clear that authorisation is not required, but in fact the code states that a perpetrator is not normally to be regarded as having forfeited a right to privacy and that authorisation may not be necessary.
Coming back to those three words, “unlikely”, “normally” and “may”, can the Minister give me any further assurances? I beg to move.
Baroness Stowell of Beeston
My Lords, I am grateful to my noble friend. I was grateful to her for taking my call earlier today to discuss her amendment. Since speaking to her this afternoon and rereading the notes and advice that I have had on this amendment, I hope I can provide her with more assurance than I indicated earlier, but I will not prejudge that.
As I made clear in Committee, I fully share my noble friend’s concerns about the impact that intrusive noise can have, particularly when it comes from neighbouring properties. I share her concerns that in many cases noise monitoring would already fall outside the RIPA regime because there is not an expectation of privacy. However, in some cases it is possible that noise monitoring amounts to an intrusion of an individual’s expectations of privacy. In such cases it is right that steps are taken to ensure that any monitoring is both necessary and proportionate. The whole point of the RIPA safeguards of necessity and proportionality is that there needs to be an assessment on a case-by-case basis that takes into account the individual facts of the case.
RIPA ensures that public authority surveillance activity meets its obligations under Article 8 of the European Convention on Human Rights. Without a RIPA authorisation, a public authority that exceeds the bounds or intrudes quite significantly is at risk of an ECHR challenge. However, I share my noble friend’s view that many noise abatement investigations do not engage any private information and are therefore outside the scope of RIPA. I gave a few examples when we debated this issue in Committee; for example, the monitoring of loud music, alarms or machinery; if someone is having a row and it is causing inconvenience to other people they cannot be in a position to believe that that is private. There are occasions when obtaining a RIPA authorisation for noise abatement would clearly be superseded by the need for immediate action—for example, by the police—because the intervention is for a public order incident.
Home Office officials have been discussing these matters with members of the Chartered Institute of Environmental Health, Defra and London Councils. We have said that we cannot create a general exclusion for any noise abatement measurement or monitoring, especially if the steps taken to investigate it infringe privacy rights. However, I hope I can provide my noble friend with the assurance that she is seeking by saying that we will look again at the RIPA code of practice on surveillance to see whether we can make it clearer that in the circumstances that I have outlined—that is, where no private information is engaged or a where a person would normally be regarded as having forfeited any claim to privacy—a RIPA authorisation is unlikely to be required. I hope that that is sufficient to persuade my noble friend to withdraw her amendment.
Baroness Hamwee
My Lords, I thank my noble friend for having clearly spent quite some time on this since we spoke earlier this afternoon.
As my noble friend will know, a code cannot trump legislation but greater clarity may be of assistance. Certainly, I was with her much more this time on her response than previously. It may not satisfy the institute entirely but if the code can be made clearer and reduce hesitancy on the part of environmental health officers in using the powers that they have, that would certainly be a good thing. I beg leave to withdraw the amendment.
Baroness Hamwee
“Matters subject to legal privilegeInvestigatory powers: legal privilege
(1) In section 5 of the Regulation of Investigatory Powers Act 2000 (interception with a warrant), after subsection (6) insert—
“(7) But an interception warrant does not authorise conduct undertaken for the purpose of doing anything in relation to—
(a) a communication, insofar as the communication consists of matters subject to legal privilege;(b) communications data, insofar as the data relate to the communication of matters subject to legal privilege.(8) In subsection (7), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include a communication made with the intention of furthering a criminal purpose.
(9) For the purposes of this section the Secretary of State may by regulations make provision for the determination (on an application for an interception warrant or otherwise) of the question whether, in any case, a communication is made with the intention of furthering a criminal purpose.
(10) A code of practice issued under section 71 may in particular contain provision about—
(a) the steps to be taken to minimise the risk of conduct undertaken pursuant to an interception warrant resulting in accidental acquisition of a communication, or communications data, falling within subsection (7);(b) the steps to be taken if it appears that such conduct has accidentally resulted in acquisition of such a communication or data.”(2) In section 22 of that Act (obtaining and disclosing communications data), after subsection (9) insert—
“(10) An authorisation or notice under this section does not authorise or require anything to be done for the purpose of obtaining or disclosing communications data relating to the communication of matters subject to legal privilege.
(11) In subsection (10), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include a communication made with the intention of furthering a criminal purpose.
(12) For the purposes of this section the Secretary of State may by regulations make provision for the determination (on an application for an authorisation or otherwise) of the question whether, in any case, a communication is made with the intention of furthering a criminal purpose.
(13) A code of practice issued under section 71 may in particular contain provision about—
(a) the steps to be taken to minimise the risk of accidentally obtaining or disclosing communications data falling within subsection (10) in the course of anything done under this section;(b) the steps to be taken if it appears that anything done under this section has accidentally resulted in such data being obtained or disclosed.” (3) In section 27 of that Act (authorised surveillance and human intelligence sources), after subsection (4) insert—
“(5) An authorisation under section 28 or 32 does not authorise surveillance for the purpose of obtaining information about—
(a) anything taking place on so much of any premises as is in use for the purpose of legal consultations, or(b) matters subject to legal privilege.(6) An authorisation under section 29 does not authorise any activities involving conduct of a covert human intelligence source, or the use of such a source, for the purpose of—
(a) obtaining matters subject to legal privilege,(b) providing access to any matters subject to legal privilege to another person, or(c) disclosing matters subject to legal privilege.(7) In subsection (5), “legal consultation” means—
(a) a consultation between a professional legal adviser and his client or any person representing his client, or(b) a consultation between a professional legal adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purpose of such proceedings,except in so far as the consultation consists of anything done with the intention of furthering a criminal purpose.(8) In subsections (5) or (6), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include anything done with the intention of furthering a criminal purpose.
(9) For the purposes of this section the Secretary of State may by regulations make provision for the determination (on an application for an authorisation or otherwise) of the question whether anything referred to in subsection (7) or (8) is done with the intention of furthering a criminal purpose.
(10) A code of practice issued under section 71 may in particular contain provision about—
(a) the steps to be taken to minimise the risk of conduct undertaken in reliance on this Part accidentally resulting in information of a kind mentioned in subsection (5) being obtained or in any of the things mentioned in subsection (6)(a), (b) or (c) being done;(b) the steps to be taken if it appears that such conduct has accidentally resulted in such information being obtained or such things being done.”
Baroness Hamwee
My Lords, I beg to move Amendment 34, which has been prepared by the Bar Council. Any noble Lord who looked at the Marshalled List would have been surprised that anyone without parliamentary counsel experience could have come up with this, and indeed it was a former parliamentary counsel who drafted it. I take this opportunity to thank the noble Lord, Lord Henley, for the meeting he had with representatives of the Bar Council a few days ago.
The amendment is underlaid by the common-law right of a client and his lawyer—or indeed a lawyer and his client; it works both ways—to communicate privately. I do not think I need to emphasise the importance of this, nor can I overemphasise it. It is a fundamental human right and a major building block of our administration of justice. If a client feels that his communication might be disclosed and used against him, he will edit what he tells his lawyer, and his lawyer will inevitably be handicapped by that.
There is a statutory protection against the use of legally privileged communications when a client is in custody, but in 2009 in the case of Re McE, this House, when it was still sitting as a court, held, although not unanimously—the noble and learned Lord, Lord Phillips of Worth Matravers, dissented—that Part II of RIPA permits the covert surveillance of meetings between defendants and lawyers. This ruling applies to other covert investigation techniques: the interception of communications, the acquisition of communications data and the use of covert human intelligence sources. There is therefore a problem where instructions are taken outside a police station, such as a group of people at an environmental protest, or indeed when one meets any group of people, or any individual, outside particular premises. The ruling also applies outside criminal law when an individual brings a civil action against the state, and to think that the state itself could be listening into and using what he tells a lawyer reminds us of regimes that are very far from the model of what we wish to be in this country.
Following McE, orders were made that altered the authorisation provisions and revisions were made to the codes of practice, but in the view of the Bar Council these provide insufficient safeguards. The codes of practice provide for the violation of legal professional privilege only in “exceptional and compelling circumstances”, but the test contains no special protection for privileged material. For directed surveillance, such circumstances are said to arise only in cases where there is a threat to national security or to “life or limb”. The phrase “threat to life or limb” is not clear; it could extend to quite minor offences where physical injury has arisen from a lack of reasonable care or a breach of a duty that gives rise to strict liability.
The real difficulty is that these changes do not address the fundamental point that covert investigatory powers should not be used to target privileged communications. The orders, in any event, do not apply to the interception of communications and the acquisition of communications data. This amendment would protect legal professional privilege except where it is abused for criminal purposes.
The noble Baroness said in Grand Committee that no one could regard themselves as being beyond the law or immune from investigation or prosecution. I do not challenge that. Indeed, I share that view. Therefore the inequity exception, as it is known in the trade, is included, which provides that privilege does not attach to information that is held or to communications that were made in the furtherance of a criminal purpose. The proposed new clause would simply bring RIPA into line with other legislation. When RIPA was introduced, the issue of privilege was not debated at all, and the courts have been left to construe statutes. This is not a case of the courts having any basis other than an assumption of the construction, “Parliament must have intended”. I do not think that Parliament addressed its mind to it.
I have two further points. First, the noble Baroness mentioned the requirement of codes of practice that cases of legally privileged communications which are intercepted or retained, or are the subject of interception, should be reported to the Interception of Communications Commissioner. I take that point but it is after the event and does not meet the basic concern.
Secondly, the noble and learned Lord, Lord Scott of Foscote, queried whether the way in which the provision was drafted would give a wide power to the Secretary of State to pre-empt how the courts might deal with a criminal purpose. He pointed to the words “or otherwise”. The matter is most likely to arise on an application for authorisation but it could arise later in an investigation where the fruits of a covert operation tend to include lawyer-client communication, which would not attract the iniquity exception.
The Bar Council and I believe that the addition of the words:
“For the purposes of this section”,
in two places would confine regulations which are proposed to provide for determinations only for the purposes of the relevant section of RIPA and not be as extensive as the noble and learned Lord feared. I am grateful to him for pointing out the need for a little tweaking.
This is an issue of really important principle, which I appreciate I am bringing to the House late in the evening. Perhaps the exit of a number of noble Lords indicates that we are not going to go on to what they were staying for. I have no doubt made myself a bit unpopular therefore by this but nevertheless it is an important point of privilege.
Lord Henley
My Lords, my noble friend is absolutely right to say that this is a very important matter. It is sad that we should be debating this so late and that it will be the last amendment of the day. I was going to congratulate her on her drafting abilities but, as she admitted, that was the work of others. I was grateful to see that it was a former parliamentary counsel who managed that.
Having said that, I appreciate that this is an area on which my noble friend and the Bar Council have strong views and I think that there is some agreement between us on the importance of these issues. I am therefore very grateful that my noble friend brought representatives of the Bar Council to a meeting with me, my officials and my noble friend Lady Stowell last week to discuss this matter further.
We all believe that the principle of legal privilege is important and that the ability of a person to seek legal advice in confidence is a key part of our justice system. We also all agree that the privilege must not be abused by lawyers who might themselves participate in or assist with criminal activity. When such communications are taking place it should be possible to target them for surveillance.
This amendment would not allow us to go any further than this and we do not agree that there are absolutely no other circumstances where privileged material can be targeted. We believe that there are some occasions, which would be exceptional in nature, where our intelligence and law enforcement agencies may need to target these communications in order to counter a serious threat or to protect a person from serious harm. An example would be where a person goes on a shooting rampage, taking members of the public or perhaps their family, hostage. Our law enforcement agencies may have intelligence to suggest that it is likely that the person will visit their lawyer and seek advice or refuge. In that situation, it is clearly vital that information can be obtained about the whereabouts of those taken hostage.
Alternatively, we could take the case of a terrorist planning an attack who may consult his lawyer at the lawyer’s office, where there might be an undercover officer in place, before that attack takes place. The surveillance commissioner may reasonably consider that the undercover officer will obtain information which could be used to avert the attack.
Baroness Hamwee
My Lords, I shall certainly do so. What the Minister has explained to the House is of enormous significance. Given the time, I shall confine myself to just one remark. He gave an assurance that there is a distinction between using information to counter a threat and using it as evidence for prosecutions, with the former being permissible and the latter not. I wonder whether in practice it is entirely easy to disentangle the two. The Minister has given me material to think about, as he will to others who are much more expert than I am on the technicalities. I beg leave to withdraw the amendment.