Report stage in the Lords
- Quote
- moved Amendment No. 1:
- Time
- 15:19
- Source
- View in Hansard ↗
- Speaker
Baroness HanhamConservative- Quote
- My Lords, I thank the Minister for his explanation. As far as I can see, a pair of brackets has been inserted in the clause. It still is not brilliantly worded, but, no doubt, someone will understand it. If they do not, they will have to ask, because the Minister’s explanation is now on the record. I also listened to his explanation on the proposed amendments to Clause 62 and onwards on money laundering. That will be handled by the noble Lord, Lord Kingsland, and I suspect that someone has written to him with an explanation of those clauses.
- Time
- 15:19
- Source
- View in Hansard ↗
- Speaker
Baroness Miller of Chilthorne DomerLiberal Democrat- Quote
- My Lords, we appreciate the Minister’s comments on his wish to work consensually. On 13 October, we felt that our role as opposition parties was treated very badly in the Home Secretary’s announcement. Throughout the conduct of this Bill through this place, the Minister has not given rise to any of those feelings and we are grateful for that. The fact that further concessions still are being made to make the Bill more reasonable and more workable is meaningful. The Minister has referred to the large amendment to be introduced by the noble Lord, Lord Myners, and his department. We are already grateful that the Treasury has seen fit to concede that reports should be made to Parliament and has included that in its report following discussions with us. There may be further useful amendments, which we will discuss at the time. However, I have to put on record that it was pushing procedure to the limits to introduce something so large at such a late date. It is lucky that it will be debated next week and not this week.
- Time
- 15:19
- Source
- View in Hansard ↗
- Speaker
Lord Thomas of GresfordLiberal Democrat- Quote
- My Lords, perhaps I may add to what my noble friend has said on the Minister’s preamble. I give notice that we are particularly concerned at the rather extraordinary extension of jurisdiction in paragraphs 32 and 34 of the proposed new schedule, and the extraordinary time limits to be imposed under paragraph 35. I say that because the Minister did not indicate that anyone with a legal background would deal with this when it comes before us next week.
- Time
- 15:19
- Source
- View in Hansard ↗
- Speaker
Lord Mackay of ClashfernConservative- Quote
- My Lords, I should like to express my appreciation for this amendment. It is a considerable improvement. Certainly, it does not in any sense alter the underlying idea behind the clause as it was originally drafted. Clarity of this kind is always to be appreciated.
- Time
- 15:19
- Source
- View in Hansard ↗
- Speaker
Lord West of SpitheadLabour- Quote
- My Lords, I thank the noble and learned Lord for his input. In response to the noble Baroness, Lady Hanham, as I understand it a note will go to the noble Lord, Lord Kingsland, and to the noble Baroness. I will make sure that that will happen. A very large body of amendments came out yesterday, which we will leave for one week, as is required. They did not come out until yesterday because I wanted to be absolutely certain that there was no other way to do this. It seemed to be a rather bad way of doing things, but I believe that there is a requirement for this to be done and that there seems to be no other way to achieve it. It took some time to work that out—over a weekend—and to be absolutely certain, for which I apologise. It will be debated next week and I hope that all noble Lords will have a chance to look at it and see the detail.
- Time
- 15:19
- Source
- View in Hansard ↗
- Speaker
The Earl of OnslowConservative- Quote
- My Lords, I thank the noble Lord for his first remarks, which were generous and in stark contrast to those of the noble Lord, Lord Myners, on the previous Question—perhaps that is a bit unfair. I do not know whether this is possible, but Amendment No. 61A goes on for pages. Normally with legislation of this length one would have a Second Reading, Committee and Report stages, and a Third Reading. Would it be possible to recommit this new clause either on the same day or possibly a day earlier so that it can be considered through all the stages? Technically I believe that one can recommit certain parts of a Bill, and that it has been done before. I do not know what others think about that suggestion, but this is a very long addition to the Bill.
- Time
- 15:19
- Source
- View in Hansard ↗
- Speaker
- Lord West of SpitheadLabour
- Quote
- My Lords, I do not think that I can say we would do that. We have now given more than seven days for the amendment to be looked at and there is an opportunity for considerable discussion. Moreover, my noble friend Lord Myners is available to discuss these issues with any noble Lord who wishes to talk them through, and he will write. I realise that this is not ideal, but, as I have said, it is an important point. I believe most noble Lords agree that it needs to be done; it is really a question of how it is done. I think, therefore, we need to move forward in this way. Again, I apologise for the lateness, but I wanted to be absolutely certain that there was no other way of doing it, and that is why it has arrived like that. On Question, amendment agreed to.
- Time
- 15:19
- Source
- View in Hansard ↗
- Speaker
- Baroness HanhamConservative
- Quote
- moved Amendment No. 2:
- Time
- 15:30
- Source
- View in Hansard ↗
- Speaker
- Baroness Miller of Chilthorne DomerLiberal Democrat
- Quote
- My Lords, we supported this amendment in Committee when the noble Baroness, Lady Hanham, made an outstanding case for why the Government should listen seriously to the amendment. She has made an even stronger case today for this amendment, which we will support. It is a moderate amendment; it requires nothing other than national guidelines on the issue. That is why it is particularly surprising to us on these Benches that the Government have not felt able to move in the direction of issuing such guidelines and including this sensible amendment in the Bill. The noble Baroness has laid out eloquently why it needs to be done. I simply add that the increase in fingerprints and DNA taken from innocent individuals, from people volunteering after a crime has been committed, has been extraordinary over the past decade. The Government must recognise that, to keep public confidence in the system, continue to protect the innocent and, as the noble Baroness said, work on the presumption of innocence, the very least they could do is accept this moderate amendment.
- Time
- 15:30
- Source
- View in Hansard ↗
- Speaker
Viscount BledisloeCrossbench- Quote
- My Lords, I confess that I am puzzled by what the noble Baroness, Lady Hanham, said. I quite understand that if I give my DNA voluntarily to eliminate me because I was in the house, so that no one suspects me, I should be entitled to have it destroyed. As I read it, however, proposed new subsection (2) is an absolute obligation to destroy all DNA unless you give a reason to the contrary. The noble Baroness shakes her head, but the amendment states: “If a request … is refused … the relevant agency shall write to the person setting out why such information will not be destroyed”. As I understand it, that would apply to any request, including that made by a suspect who had not yet been charged because the police had not concluded their investigations—albeit that they had perhaps had to let them go to sleep until more information came out—and not by any means to the innocent or non-charged person to whom she referred. That seems very worrying.
- Time
- 15:30
- Source
- View in Hansard ↗
- Speaker
- Lord West of SpitheadLabour
- Quote
- My Lords, the inclusion of DNA profiles on the National DNA Database and the retention of fingerprints do not indicate either innocence or guilt. These databases are used by the police to provide intelligence leads on the possible identity of the offender by matching the DNA taken from a person with the DNA at or collected from the scene of a crime. We are legislating in Clauses 14 to 18, first, to put a counterterrorism DNA database on a firmer legal footing; secondly, to allow fingerprints or samples taken under the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence (Northern Ireland) Order 1989 to be used for national security; and, thirdly, to make it easier to allow fingerprints or samples taken under the Terrorism Act 2000 to be placed on the National DNA Database. The amendment would require the publication of national guidelines by the Secretary of State on the operation of the National DNA Database and ultimately the counterterrorism DNA database to which Clauses 14 to 18 refer. The guidance would include a procedure for requesting information held on the database and for requesting the destruction of any information held. I shall resist the amendment as such procedures already exist with regard to samples held on the National DNA Database. I shall set out my reasons for this first, before explaining why I resist the amendment, with reference to samples held on the counterterrorism sample database. I hope that it will illustrate some of the transparency referred to in the debate. The amendment requires guidelines on requesting information about the fingerprints and samples held. Access to information held on an individual is regulated by the Data Protection Act. Under that Act, an individual can ask the police what information they hold on them. Information on how to make a subject access request can be obtained from a local police station or through the force’s website. The Information Commissioner provides independent oversight of data protection issues, including the retention and use of fingerprints and samples. Given this established system, it seems unnecessary to require an additional set of national guidelines to be published. I turn to the destruction of samples held on the National DNA Database. The Criminal Justice and Police Act 2001 amended PACE to remove the requirement on the police to destroy samples and fingerprints taken from people who had been acquitted or against whom charges had been dropped or not proceeded with. The amendment in the 2001 Act arose from decisions in the Court of Appeal relating to two cases where compelling DNA evidence that linked one suspect to a murder and another to a rape could not be used and neither man could be convicted. This was because, at the time when the matches were made, both defendants had either been acquitted or a decision made not to proceed with the offences for which the DNA profiles had been taken. The Criminal Justice Act 2003 then amended PACE so that samples and fingerprints could be taken and retained before charge from persons who had been arrested on suspicion of involvement in a recordable offence. Prior to that, DNA samples could be taken only from a person who had been charged with, informed that they would be prosecuted for, or found guilty of having committed a recordable offence. Only chief officers have the discretion to decide whether to remove records from the police national computer or other databases such as the National DNA Database. The matter of discretion is an operational one for the police force involved. The Association of Chief Police Officers has issued guidance for chief officers on the consideration of applications from individuals for the removal of personal information, including DNA samples, from police records. The guidance, known as the “Exceptional Case Procedure”, is incorporated in ACPO’s Retention Guidelines for Nominal Records on the Police National Computer and will help to ensure national consistency regarding retention and deletion. It has been published on the ACPO website. It provides a business process for chief officers to follow when considering applications for the removal of records. The guidance makes it clear that it is expected that records and profiles that have been taken lawfully will be removed in exceptional cases only. The norm will therefore be to retain the profile and associated sample. However, each case has to be considered on its merits. What constitutes exceptional circumstances is ultimately a matter for the individual chief officer. The guidance states: “Exceptional cases will by definition be rare. They might include cases where the original arrest or sampling was found to be unlawful. Additionally, where it is established beyond doubt that no offence existed, that might, having regard to all the circumstances, be viewed as an exceptional circumstance”. Only profiles and samples obtained in relation to terrorism and terrorism investigations will be held on the CT DNA database. A proportion of the database will contain samples recovered by covert and surveillance means, which have been obtained lawfully and with proper authorisation for the purposes of counterterrorist investigation and national security. Covertly obtained samples will account for approximately 2 to 5 per cent of the data on the counterterrorism database. Current operational activity indicates that no more than a few hundred samples per annum will be recovered and retained on the database. In order to protect counterterrorism investigations and national security from compromise, we would not wish to make the covertly acquired contents of the database public knowledge. Disclosure of who is held on this database would create a serious risk of compromising these investigations. Individuals who are under investigation would find this out and investigations would be compromised. I have made clear the procedures already in existence on the retention, use and destruction of fingerprints and samples. We are debating not the principles but the procedures. I know that there was talk of a much larger debate on DNA, but I do not think that this is the time to have that debate. There will have to be another opportunity for that. We can open up all sorts of issues. For example, the noble Earl, Lord Ferrers, said when we last debated this that he could see no reason why any innocent person would be concerned. This matter throws open all sorts of issues and that debate is beyond the context of the narrow provisions in the Bill. I firmly believe that national guidance of the type prescribed in the amendment is unnecessary; indeed, it would be extra bureaucracy. Information on how to obtain details of what information the police hold on an individual and the ACPO guidelines on the retention, use and destruction of fingerprints and samples are already publicly available. However, I take the point made by the noble Baroness, Lady Hanham, that this is somewhat convoluted. When I looked for myself, I saw that it was not as straightforward as it perhaps should be. I very much recognise the importance of clarity for the public on these matters and so I will ask my officials to work with the relevant bodies to ensure that the guidance is much more easily accessible, through pop-ups or whatever, for members of the public. On that basis, I ask that the amendment be withdrawn.
- Time
- 15:45
- Source
- View in Hansard ↗
- Speaker
- Baroness HanhamConservative
- Quote
- My Lords, I am grateful to the Minister for rereading the ACPO guidelines, which I mentioned. However, we are perhaps missing the point entirely. The purpose of the amendment is to ensure that anyone who is on the database has access to guidelines that will tell them how to get off the database. There is only one way of getting off it at the moment, according to the ACPO guidelines, which is to be involved in a case in which you have been accused of murder but it transpires that the dead person died by some other means. That is not a happy example; there may be better ones. The principle goes back to what the noble Baroness, Lady Miller, and I said. Those who are innocent should not be on any database. They should not be under the eye of the law of this country. They are innocent. They have no truck with the law and their DNA should not passed to Europe for whatever reason simply because it is a chunk of information that the police hold. The Information Commissioner is there for data protection. He is not there to tell people how to get themselves off a database that they should not be on in the first place. I do not think that that will help us at all. I do not think that further clarity on the ACPO guidelines will help us either. All that says is that it will take an absolutely extraordinary exception to get off the database. I do not know—I suspect that many do not know—what the public believe is the situation. Like the noble Viscount, Lord Bledisloe, I suspect they think that if you have had your DNA and fingerprints taken but are found innocent and cease being involved in any sort of criminal inquiry, that will be the end of it, the material will be gone, finished, over. But it is not gone, finished or over by any means. You are still on that database. If you cannot remain tranquil, calm and unaffected about it, you will get very mad indeed in trying to get yourself off it. The Minister says that these clauses are to do with counterterrorism and the counterterrorism database but, as we know from the asset-freezing provision, one bit of legislation can be used for any other purpose. It can be used in any way, so that a bit of database information taken for police inquiries can be used in conjunction with another inquiry. That is no way out at all. We need a proper discussion. We need proper guidelines for the public and for those who are involved. I do not know, but my fingerprints may be all over a database. If that is the situation I would like to know, and I would like to get off it. I would like to know how to do so, but the fact is that I do not. We need a major debate on this so that people can understand the situation. For the moment, however, we need to have proper and clear guidelines on how to make an application to get off the database in reality and not only in exceptional circumstances. I wish to test the opinion of the House.
- Time
- 15:45
- Source
- View in Hansard ↗
- Speaker
- Baroness Miller of Chilthorne DomerLiberal Democrat
- Quote
- moved Amendment No. 3:
- Time
- 16:10
- Source
- View in Hansard ↗
- Speaker
- Lord West of SpitheadLabour
- Quote
- My Lords, the provisions on the retention and use of fingerprints and samples have three objectives: putting a counterterrorism DNA database on a firmer legal footing, allowing fingerprints or samples taken under the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence (Northern Ireland) Order 1989 to be used for national security, and making it easier to allow fingerprints or samples taken under the Terrorism Act 2000 to be placed on the National DNA Database. Clause 18 puts the retention and use of DNA and fingerprint material that is not currently subject to statutory restrictions on a statutory footing, permitting law-enforcement use for certain purposes. Those purposes are: the interests of national security; purposes related to the prevention or detection of crime; the investigation of an offence or the conduct of a prosecution; and purposes related to the identification of a deceased person or of the person from whom the material came. I must make it clear that these provisions do not—I repeat, do not—create any new powers for the covert acquisition of fingerprints and samples. Included in the samples covered by Clause 18 are those obtained covertly under Part 3 of the Police Act 1997 and Part 2 of the Regulation of Investigatory Powers Act 2000. The use of the powers in those Acts is subject to numerous safeguards and oversight. Covert and investigatory powers can be used only when they are necessary and proportionate with regard to human rights. Independent oversight is exercised by the Office of Surveillance Commissioners, the OSC, which conducts regular public authority inspections that are reported to the Prime Minister, and produces annual publications of its findings. Anyone who believes that they have been the victim of unlawful, covert surveillance or any other investigatory powers set out in RIPA can apply to an investigatory powers tribunal to investigate their claim. The tribunal is independent of government, law enforcement and intelligence services. Statutory codes of practice provide guidance on the use of covert investigatory powers, including surveillance, and the Home Office is currently revising the covert surveillance code of practice. The OSC also provides advice during its regular inspection visits to public authorities.
- Time
- 16:10
- Source
- View in Hansard ↗
- Speaker
- Baroness Miller of Chilthorne DomerLiberal Democrat
- Quote
- My Lords, I thank the Minister for that very helpful and full reply. He set out the guidelines, when they will be revised, how they will be applied and police attitudes generally to this legislation. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 4 not moved.]
- Time
- 16:15
- Source
- View in Hansard ↗