New Clause 1 — Retention, destruction and use of fingerprints and samples

Crime and Security Bill – in the House of Commons at 3:56 pm on 8th March 2010.

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'For section 64 of the Police and Criminal Evidence Act 1984 (destruction of fingerprints and samples) there is substituted-

"64 Destruction of fingerprints and samples

(1) Unless provided otherwise in this section, where fingerprints, impressions of footwear or samples are taken from a person in connection with the investigation of an offence, the fingerprints, impressions of footwear or samples or any DNA profile may not be retained after they have fulfilled the purposes for which they were taken and shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence, the conduct of a prosecution or the identification of a deceased person or of the person from whom a body part came.

(2) In subsection (1) above-

(a) the reference to crime includes a reference to any conduct which-

(i) constitutes one or more criminal offence (whether under the law of a part of the United Kingdom or of a country or territory outside the United Kingdom); or

(ii) is, or corresponds to, any conduct which, if it all took place in any one part of the United Kingdom, would constitute one or more criminal offences; and

(b) the references to an investigation and to a prosecution include references, respectively, to any investigation outside the United Kingdom of any crime or suspected crime and to a prosecution brought in respect of any crime in a country or territory outside the United Kingdom.

(3) A DNA sample must be destroyed-

(a) as soon as a DNA profile has been derived from the sample, or

(b) if sooner, before the end of the period of six months beginning with the date on which the sample was taken.

(4) Any other sample to which this section applies must be destroyed before the end of the period of six months beginning with the date on which it was taken.

(5) Fingerprints, impressions of footwear and DNA profiles are not required to be destroyed if they were taken from a person convicted of a recordable offence.

(6) Where any fingerprint, impression of footwear or sample has been taken from a person who is arrested for or charged with a sexual offence or violent offence, the fingerprint, impression of footwear or DNA profile shall not be destroyed-

(a) in the case of fingerprints or impressions of footwear, before the end of the period of three years beginning with the date on which the fingerprints or impression were taken, such date being the "initial retention date"; or

(b) in the case of a DNA profile, before the end of the period of three years beginning with the date on which the DNA sample from which the DNA profile was derived was taken, such date being the "initial DNA retention date"; or

(c) if an application is made to the Court under subsection (7), until such later date as may be provided by subsection (8) or (10) below.

Provided always that if the person is convicted of a recordable offence, subsection (5) shall apply.

(7) On application made by the responsible chief officer of police within the period of three months before the initial retention date or the initial DNA retention date as the case may be, the Crown Court, if satisfied that there are reasonable grounds for doing so, may make an order amending, or further amending, the date of destruction of the relevant fingerprint, impression of footwear or DNA profile.

(8) An order under subsection (7) shall not specify a date more than two years later than-

(a) the initial retention date in relation to fingerprints or impressions of footwear or

(b) the initial DNA retention date in the case of a DNA profile.

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

(10) A fingerprint, an impression of footwear or a DNA profile shall not be destroyed where-

(a) an application under subsection (7) above has been made but has not been determined;

(b) the period within which an appeal may be brought under subsection (9) above against a decision to refuse an application has not elapsed; or

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

(11) Where-

(a) the period within which an appeal referred to in subsection (9) has elapsed without such an appeal being brought; or

(b) such an appeal is brought and is withdrawn or finally determined without any extension of the time period referred to in subsection (8);

the fingerprint, impression of footwear or DNA profile shall be destroyed as soon as possible thereafter.

(12) Subject to subsection (13) below, where a person is entitled to the destruction of any fingerprint, impression of footwear or sample taken from him or DNA profile, neither the fingerprint, nor the impression of footwear, nor the sample, nor any information derived from the sample, nor any DNA profile shall be used in evidence against the person who is or would be entitled to the destruction of that fingerprint, impression of footwear or sample.

(13) Where a person from whom a fingerprint, impression of footwear or sample has been taken consents in writing to its retention in the case of a fingerprint or impression of footwear or the retention of any DNA profile-

(a) that fingerprint, impression or DNA profile as the case may be need not be destroyed; and

(b) subsection (12) above shall not restrict its use;

provided that-

(i) no DNA profile may be retained on any child under the age of 10 years; and

(ii) consent given for the purposes of this subsection shall be capable of being withdrawn by such person upon making written application to the responsible chief officer of police or person authorised by the Secretary of State for such purpose whereupon such fingerprint, impression of footwear or DNA profile shall be destroyed as soon as possible following receipt of such written application.

(14) For the purposes of subsection (13) above if shall be immaterial whether the consent is given at, before or after the time when the entitlement to the destruction of the fingerprint, impression of footwear or DNA profile arises.

(15) In this section-

"DNA profile" means any information derived from a DNA sample;

"DNA sample" means any material that has come from a human body and consists of or includes human cells;

"the responsible chief officer of police" means the chief officer of police for the police area-

(a) in which the samples, fingerprints or impressions of footwear were taken; or

(b) in the case of a DNA profile, in which the sample from which the DNA profile was derived was taken;

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

(16) Nothing in this section affects any power conferred by paragraph 18(2) of Schedule 2 to the Immigration Act 1971 or section 20 of the Immigration and Asylum Act 1999 (c. 33) (disclosure of police information to the Secretary of State for use for immigration purposes).

(17) An order under this section must be made by statutory instrument.

(18) A statutory instrument containing an order under subsection (17) above shall not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.".'.- (James Brokenshire.)

Brought up, and read the First time.

Photo of John Bercow John Bercow Chair, Members Estimate Committee, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

With this it will be convenient to discuss the following: new clause 5- Destruction of fingerprints and samples-

'(1) The Police and Criminal Evidence Act 1984 (c. 60) is amended as follows.

(2) After section 64A insert-

"64B Destruction of fingerprints and samples etc.

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

(2) Subsection (1) above shall not apply where the record, sample or information in question is of the same kind as a record, a sample or, as the case may be, information lawfully held in relation to the person.

(3) For the purposes of this section, criminal proceedings shall not be deemed to have concluded until the earlier of-

(a) the lapse of any applicable appeal period, and

(b) a decision not to appeal such proceedings.

(4) Material falls within this subsection if it is-

(a) fingerprints or impressions of footwear taken from the person in connection with the investigation of the offence;

(b) a DNA profile derived from a DNA sample so taken;

(c) photographs falling within a description specified in the regulations; or

(d) information derived from DNA samples so taken from a person.

(5) For the purposes of this section-

(a) "photograph" includes a moving image, and

(b) the reference to a DNA sample is a reference to any material that has come from a human body and consists of or includes human cells."'.

New clause 6- Retention of voluntary samples-

'(1) The Police and Criminal Evidence Act 1984 (c. 60) is amended as follows.

(2) After section 64(1A)(b) insert-

"(c) any other provision in this Part does not prohibit or restrict their retention or require their destruction.".

(3) For section 64(3AC) substitute-

"(3AC) Where a person from whom a fingerprint, impression of footwear or sample has been taken consents in writing to its retention-

(a) that sample need not be destroyed under subsection (3) above;

(b) subsection (3AB) above shall not restrict the use that may be made of the sample or of any information derived from it; and

(c) that consent shall be treated as comprising a consent for the purposes of section 63A(1C) above; provided that-

(i) no sample or information derived from any sample may be retained on any child under the age of 10 years; and

(ii) consent given for the purposes of this subsection shall be capable of being withdrawn by such person upon making written application to the responsible chief officer of police or person authorised by the Secretary of State for such purpose whereupon such sample and any information derived therefrom shall be destroyed as soon as possible following receipt of such written application."'.

New clause 7- Repeal of section 82 of the Criminal Justice and Police Act 2001-

'Section 82 of the Criminal Justice and Police Act 2001 is repealed.'.

New clause 9- National DNA Database Reviewer-

'(1) Within 12 months of the coming into force of any of sections 14 to 21, the Secretary of State shall appoint a Reviewer to be known as the National DNA Database Reviewer.

(2) Subject to subsection (4), the National DNA Database Reviewer shall keep under review-

(a) the exercise and performance, of the powers and duties conferred or imposed by section 64ZI(5) of the Police and Criminal Evidence Act 1984;

(b) the exercise and performance of the powers conferred by section 64ZK of the Police and Criminal Evidence Act 1984;

(c) the exercise and performance of the powers and duties conferred or imposed by Article 64ZI(5) of the Police and Criminal Evidence (Northern Ireland) Order 1989;

(d) the exercise and performance of the powers conferred by Article 64ZK of the Police and Criminal Evidence (Northern Ireland) Order 1989;

(e) the exercise and performance of the powers and duties conferred or imposed by paragraph 14F(5) of Schedule 8 to the Terrorism Act 2000;

(f) the exercise and performance of the powers and duties conferred or imposed by paragraph 14G of Schedule 8 to the Terrorism Act 2000; and

(g) the exercise and performance of the powers and duties conferred or imposed by section 18(3E) of the Counter-Terrorism Act 2008.

(3) Within 12 months of his appointment, and every 12 months thereafter, the National DNA Database Reviewer must lay a report of the findings of his review before both Houses of Parliament.

(4) Each report of the National DNA Database Reviewer must include consideration of-

(a) the number of decisions taken during the proceeding 12 months period under each of the powers in subsection (2);

(b) the grounds for any decisions taken during any preceding 12 month period under each of the powers in subsection (2);

(c) an equality impact assessment of the exercise of the powers in subsection (2) over the preceding 12 month period; and

(d) an assessment of the operation of each of the powers in subsection (2).'.

Government amendments 8 to 10.

Amendment 30, in clause 6, page 13, line 21, at end insert-

'15A Fingerprints and non-intimate samples may only be taken under sections 61(5A), 61(5B), 63(3ZA) and 63(3A) from a person at a police station.'.

Government amendments 11 to 13.

Amendment 3, in page 28, line 20, leave out Clauses 14 to 21.

Amendment 29, in page 28, line 20, leave out Clauses 14 to 20.

Amendment 36, in clause 14, page 31, line 5, leave out from 'offence' to end of line 6.

Amendment 37, page 31, leave out lines 11 to 23 and insert-

'(3) Subject to subsections (3AA) to (3AI), the material must be destroyed as soon as it has fulfilled the purpose for which it was taken or supplied.

(3AA) Where any fingerprint, impression of footwear or DNA profile has been taken from a person under this Part who is arrested for or charged with a sexual offence or violent offence, the fingerprint, impression of footwear or DNA profile shall be destroyed no later than-

(a) in the case of fingerprints or impressions of footwear, before the end of the period of three years beginning with the date on which the fingerprints or impression were taken, such date being the "initial retention date"; or

(b) in the case of a DNA profile, before the end of the period of three years beginning with the date on which the DNA sample from which the DNA profile was derived was taken (or if the profile was derived from more than one DNA sample, the date on which the first of those samples was taken), such date being the "initial DNA retention date"; or

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

(3AB) On application made by the responsible chief officer of police within the period of three months before the initial retention date or the initial DNA retention date as the case may be, the Crown Court, if satisfied that there are reasonable grounds for doing so, may make an order amending, or further amending, the date of destruction of the relevant fingerprint, impression of footwear or DNA profile.

(3AC) An order under subsection (3AB) shall not specify a date more than two years later than-

(a) the initial retention date in relation to fingerprints or impressions of footwear, or

(b) the initial DNA retention date in the case of a DNA profile.

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

(3AE) Subsection (3AA) does not apply where-

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

(b) the period within which an appeal may be brought under subsection (3AD) above against a decision to refuse an application has not elapsed; or

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

(3AF) Where-

(a) the period within which an appeal referred to in subsection (3AD) has elapsed without such an appeal being brought, or

(b) such an appeal is brought and is withdrawn or finally determined without any extension of the time period referred to in subsection (3AC), the fingerprint, impression of footwear or DNA profile shall be destroyed as soon as possible thereafter.

(3AG) For the purposes of this section a "sexual offence" or "violent offence" shall mean such offences of a violent or sexual nature as shall be set out in any order made by the Secretary of State with reference to this section.

(3AH) An order under this section must be made by statutory instrument.

(3AI) A statutory instrument containing an order under subsection (3AH) above shall not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.'.

Amendment 38, page 31, line 27, leave out from beginning to end of line 10 on page 35.

Amendment 33, page 37, line 26, at end insert-

'(5) For the purposes of subsection (1), "for the purposes of national security" means for the purposes of investigating significant threats to the security of the United Kingdom arising from-

(a) terrorist activities;

(b) nuclear weapons and other weapons of mass destruction;

(c) trans-national organised crime;

(d) global instability and conflict;

(e) civil emergencies; or

(f) state-led threats to the United Kingdom.'.

Amendment 34, page 37, line 26, at end insert-

'64ZKA Approval required for retention for the purposes of national security

(1) This section applies where a chief officer determines that retention for the purposes of national security is necessary.

(2) Subject to subsection (3), the determination shall not take effect until such time (if any) as-

(a) the determination has been approved by the Information Commissioner; and

(b) written notice of the Commissioner's decision to approve the determination has been given, in accordance with subsection (3), to the chief officer who made the original determination.

(3) Where subsection (2) applies-

(a) the Information Commissioner shall give his approval under this section to the authorisation if, and only if, he is satisfied that there are reasonable grounds for believing that the requirements of section 64ZK(1) are satisfied in the case of the determination; and

(b) the Information Commissioner shall, as soon as reasonably practicable after making that decision, give written notice of his decision to the Chief Constable.

(4) Any determination under paragraph (1) includes a decision that a determination should be renewed pursuant to section 64ZK(3).'.

Amendment 39, in clause 15, page 41, line 46, leave out from 'offence' to end of line 47.

Amendment 40, page 42, leave out lines 5 to 17 and insert-

'(3) Subject to paragraphs (3AA) to (3AI), the material must be destroyed as soon as it has fulfilled the purpose for which it was taken or supplied.

(3AA) Where any fingerprint, impression of footwear or DNA profile has been taken from a person under this Order who is arrested for or charged with a sexual offence or violent offence, the fingerprint, impression of footwear or DNA profile shall be destroyed no later than-

(a) in the case of fingerprints or impressions of footwear, before the end of the period of three years beginning with the date on which the fingerprints or impression were taken, such date being the "initial retention date"; or

(b) in the case of a DNA profile, before the end of the period of three years beginning with the date on which the DNA sample from which the DNA profile was derived was taken (or if the profile was derived from more than one DNA sample, the date on which the first of those samples was taken), such date being the "initial DNA retention date"; or

(c) such later date as may be ordered under paragraph (3AB).

(3AB) On application made by the Chief Constable within the period of three months before the initial retention date or the initial DNA retention date as the case may be, the Crown Court, if satisfied that there are reasonable grounds for doing so, may make an order amending, or further amending, the date of destruction of the relevant fingerprint, impression of footwear or DNA profile.

(3AC) An order under paragraph (3AB) shall not specify a date more than two years later than-

(a) the initial retention date in relation to fingerprints or impressions of footwear, or

(b) the initial DNA retention date in the case of a DNA profile.

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

(3AE) Paragraph (3AA) does not apply where-

(a) an application under paragraph (3AB) above has been made but has not been determined;

(b) the period within which an appeal may be brought under paragraph (3AD) above against a decision to refuse an application has not elapsed; or

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

(3AF) Where-

(a) the period within which an appeal referred to in paragraph (3AD) has elapsed without such an appeal being brought, or

(b) such an appeal is brought and is withdrawn or finally determined without any extension of the time period referred to in paragraph (3AC), the fingerprint, impression of footwear or DNA profile shall be destroyed as soon as possible thereafter.'.

Amendment 41, page 42, line 21, leave out from beginning to end of line 2 on page 46.

Amendment 42, page 49, line 29, at end insert-

'(5) For the purposes of this section a "sexual offence" or "violent offence" shall mean such offences of a violent or sexual nature as shall be set out in any order made by the Secretary of State with reference to the Police and Criminal Evidence (Northern Ireland) Order 1989.

(6) An order under this section must be made by statutory instrument.

(7) A statutory instrument containing an order under subsection (6) above shall not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.'.

Amendment 4, in clause 22, page 71, line 24, leave out from first 'of' to 'which' and insert

'section [Retention, destruction and use of fingerprints and samples]'.

Amendment 5, page 71, line 31, leave out 'sections 64 to 64ZN' and insert 'section 64'.

Amendment 35, page 72, line 2, at end insert-

'(6) A statutory instrument containing an order under this section must be laid before Parliament within 12 months of Royal Assent to this Act.'.

Government amendments 14 to 16.

Amendment 6, in clause 58, page 106, line 30, leave out subsections (4) to (8).

Amendment 7, page 106, line 30, leave out '20 to' and insert '22 and'.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

There is little doubt about the scope and powerful effect of DNA evidence. In many respects, the use of DNA has revolutionised policing. The ability to match tiny traces of DNA left at the scene of a crime by an offender with the DNA that is taken from a suspect has helped to solve serious crimes and to reduce the scope for miscarriages of justice. We agree that the use of DNA can be an important evidential tool in prosecuting crimes and bringing offenders to justice. The use of modern scientific techniques makes an important contribution to combating crime, but the use of that technology must strike the right balance between the promotion of the wider public interest and public safety, and the protection of important private-life interests, which are central to this debate, to the new clause and to the Government's proposals in the Bill. Unlike the Government, apparently, we acknowledge that there are limits to both the effectiveness and acceptability of DNA use if it is taken too far.

The DNA database continues to grow at an exceptional rate. More than 32,000 profiles were added in November 2009 alone. Proportionately, we have the largest such database in the world. This country claims a pioneering role in the utilisation of DNA technology, and that is something that we can be proud of. In so doing, however, we have a special responsibility to ensure that the way in which it is used strikes the right balance regarding what is permissible when it comes to potential interference in people's private lives. Until recently, the Government took the view that the indefinite retention of DNA profiles was acceptable. In their view, simply growing the DNA database for the sake of doing so was a policy objective in its own right. For the past year, they have been fighting hard to limit their commitment to following the judgment of the European Court of Human Rights in the S and Marper case. The judgment ruled that the indefinite retention of the DNA profiles of those who have never been convicted of an offence was not in accordance with the relevant convention rights. It sums up the current viewpoint of this Government that even if someone volunteers their DNA, once it is on the national DNA database, they cannot get it removed except in exceptional circumstances.

In response to the Court's judgment, the Government first said that they wanted to deal with the matter by order, out of the glare of full parliamentary scrutiny. Next, they said that they would retain data and profiles for up to 12 years. Now, under pressure, they have come down to a retention period of six years for those who have never been convicted of an offence. However, they remain obdurate about the basic principle of retaining data for as long as possible, regardless of what people have done or whether they were even charged, let alone found guilty. DNA that is taken from anyone who ends up in a police station following arrest will be stored by the state for six years just in case.

The number of profiles on the DNA database has certainly grown. The number of profiles stood at just over 2 million in 2003, and it is now well above 5.5 million. The full impact of the situation becomes clear only when one breaks down the figures in relation to the countries of the United Kingdom. Some 4 per cent. of the population of Northern Ireland, nearly 5 per cent. of the population of Scotland and more than 10 per cent. of the population of England and Wales are affected. However, rather than there being an increase in the number of crimes detected, the reverse has happened. The focus on quantity rather than on the quality of the data retained has led to diminishing returns. The proportion of crimes detected by DNA has dropped. The figure two years ago was 0.76 per cent., and in the past year it was 0.67 per cent. Similarly, the proportion of crimes detected in which a DNA match was available was 36.5 per cent. two years ago, and 32.4 per cent. last year.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Is my hon. Friend making a distinction between crimes which are detected and cases which are carried forward with corroborative evidence based on DNA? In the latter, there is a very large number of corroborative evidence cases.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

There is a distinction to be drawn between, say, detections and convictions. That is an important distinction to make. Indeed, the National Policing Improvement Agency recognised that in a previous DNA database report:

"It is important to note that the availability of DNA match intelligence may not have been causal in solving the crime as detections are achieved through integrated criminal investigation and not by forensic science alone."

Such cases are often quite complicated, so although a DNA match may have played an important role, that of itself may not be the determining factor. It can only place someone at a particular point at a particular time. The Crown Prosecution Service will look for other corroborative factors in bringing its their prosecution case.

There have been other consequences of the Government's database state policy approach. About a million people on the database have never been convicted, cautioned or even formally warned or reprimanded, as recorded by the police national computer. It is estimated that there are records of approximately 100,000 innocent children on the database. It is the impact that this has on those who feel they have been criminalised that is so damaging. As one person who wrote to my hon. Friend Damian Green put it:

"The charges were dropped five hours later but I was informed that my DNA and fingerprints would remain on their files as though I was a common criminal. As a respected member of the community, holder of the British Empire Medal and a retired Army Officer I shouldn't have to be put through this continual torment."

Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

I am sure the hon. Gentleman would be the first to admit that the Government have moved since Second Reading. That is because of the pressure from all sides of the House. Does he accept that we are in this situation because the Government ought to have moved quickly on the removal of DNA profiles from the database? If that system had been working more effectively, we would not be in the position that we are in today.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

That has been highlighted by what might be described as the postcode lottery, an issue on which I know the right hon. Gentleman has focused clearly. The fact that certain police forces are prepared, in exceptional circumstances, under guidance from the Association of Chief Police Officers, to remove the profiles of those never convicted of and never charged with an offence, whereas other police forces will not remove any of those details, has drawn attention to the issue. However, the right hon. Gentleman needs to be careful. An individual must approach the police to have that record removed. There is a big difference between a robust system that reflects the concept that people are innocent unless proven guilty and proactively removes those profiles, and a system whereby profiles are removed only when an individual approaches the police with that request.

The make-up of the database has had a starkly disproportionate impact on minority communities. It is thought to contain the records of about 40 per cent. of black men in the UK. Some have suggested that when the focus is narrowed to young black men, the figure jumps to 70 per cent. That compares with 13 per cent. of Asian men and 9 per cent. of white men. The national DNA database and the approach taken to it are perceived to have criminalised minority communities and to have taken an almost aggressive stance towards them. I know, from the discussions that I have had, that the issue is of significant concern for a number of those communities.

More fundamentally, the measure fails to take account of one of the fundamental principles of our liberal democracy: the presumption of innocence before the law unless one has been proven guilty. That principle should be an important guiding factor in framing the debate on retention, rather than being an inconvenient anomaly, as the Government appear to view it, given their historical approach to DNA retention.

However, we agree with the Government on some things: DNA samples should be destroyed as soon as practicable, once a profile has been taken; when an adult has been convicted of a recordable offence, DNA should be retained indefinitely; and when consent to put DNA profiles on the database has been volunteered, the withdrawal of that consent should be possible. We have also long argued for the need to ensure that police can retrospectively take samples for a longer period after conviction, and from those convicted overseas. We are therefore glad that the Government have responded positively to that call, and we welcome their changes to improve the oversight and reporting of the national DNA database. I welcome also their amendments to clarify that arrangement and make it somewhat stronger.

Photo of David Hanson David Hanson Minister of State (Home Office) (Crime and Policing)

I have been trying to follow the hon. Gentleman's logic. He is content for DNA to be taken for up to three years for serious offences, but not for up to six years, and I cannot quite understand the logic of the difference between the two, apart from the time scale given the judgment that has been made. I really cannot see his logic.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

Well, we shall come to the judgment on timing.

I was just about to turn to retention, which is central to the debate, and the balance to be struck in terms of the presumption of innocence until proven guilty. I appreciate that the Minister and the Government take the reverse approach of wishing to retain data for as long as possible. That has been their historical approach, and they have made their position clear. We approach the issue from the alternative direction, saying that DNA should be retained for the minimum period that it is safe to do so. That is why we have drawn a distinction: we do not simply say that all DNA profiles of anyone arrested for an offence but not convicted should be removed; we strike that balance-that proportionate balance, as we see it-by having a period during which the DNA of those arrested for an offence but not necessarily charged or convicted should be retained.

There is a real difference between us on the retention of profiles, and the Minister alluded to it. The Government argue that, when someone has been acquitted of any wrongdoing, they should treat them as a future or potential suspect in a criminal investigation. Such people are supposed to be innocent in the eyes of the law, but the Government are suggesting a blanket period of six years, regardless of the nature of the offence, the crime that may or may not have been committed or whether anyone was found guilty.

The Government have sought to justify their position on two main grounds. Their "hazard rate analysis", as they call it, compares the likelihood of re-arrest within a specified period following an initial arrest with the general propensity for arrest in the general population. The "arrest to arrest hazard curve" is the analysis on which the Government have sought to pin their six-year period. However, by doing so the Government conflate the fundamental difference between arrest and conviction. They use re-arrest as a proxy for having committed an offence, even though a second arrest may be as unsound as the first. They also fail to take account of what has been termed "the confirmation bias by investigating officers"-the fact that, once a person is known to the police, they are more likely to be considered a suspect when future offences are investigated. A bias in the statistics is created as a consequence.

The Government acknowledge that the analysis is based on extrapolated, rather than real, data, because they had only a three-year window to consider the data that were available. Therefore, estimated data on the general population was used, the extrapolated risk curve is quite sensitive to errors, and the lines are measured with some degree of uncertainty.

It is highly questionable whether this latest Home Office-produced research offers much more than the previous, incomplete research produced by the Jill Dando Institute of Crime Science, which the Home Office published in support of its previous policy of retaining DNA for 12 years. As Gloria Laycock, the director of the Jill Dando Institute, acknowledged, it was a mistake to publish that incomplete research, which was based on data to which it did not even have direct access. She said:

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

It is also interesting to note that the Information Commissioner has formed a different view from that of the Government on the interpretation of the hazard rate analysis data, stating that he

"remains concerned that the way this evidence is being interpreted at present does not provide an appropriate basis for the proposed retention periods."

He suggests that a shorter retention period for those not convicted of any crime should be adopted than that advocated by the Government:

"The Commissioner does not consider that the evidence presented supports a general retention period of anything like six years."

Photo of Tony Baldry Tony Baldry Conservative, Banbury 4:15 pm, 8th March 2010

Since the Bill came out of Committee, I have been reflecting on what stands between us and the Government on this issue. It is not as neat as the question of three or six years' retention; it is to do with the fact that policing has to be policing by consent. During the passage of the Bill, and in the build-up to it, the Government have not succeeded in getting the consent of the people, in the broadest sense, for their proposals. Police officers and police forces have too often given the impression that if they retain DNA it is because they have reasonable suspicion that someone has committed an offence or may commit an offence. The Government have failed to convince people that they have the public's consent to what they are proposing.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

A mini-speech perhaps, but one with some important points wrapped up in it as regards the need for policing by consent, the public's confidence and trust in policing, and the way in which the national DNA database is operated. Indeed, senior police officers have made that very evident in saying that it is for us in Parliament to decide what is appropriate, while reflecting the need to ensure that there is that trust and confidence in policing as a whole. In many ways, that mirrors some of the points that Keith Vaz has already made.

The second, and perhaps more emotive, justification that the Government have given for their approach has been based on individual cases, with the claim that certain serious crimes might not have been solved if an alternative approach to the one that they have advanced were adopted. However, careful examination of the facts of those cases shows that either they would have been detected and solved by virtue of our proposals in new clause 2 or there were other material factors that would have led to an arrest, DNA sampling, and the requisite corroborative evidence being obtained to secure a conviction.

Let us take, for example, the case of Abdul Azad, who was convicted of an appalling stranger rape that took place in 2005. His conviction was partly the result of DNA found under the fingernails of his victim. It was an appalling crime, but it is also an example of a crime in which the DNA profile would still have been available to the police under our proposals, as Azad had previously been arrested for violent disorder-a crime of violence.

Or let us take the case of Abdirahman Ali Gudaal, a Dutch national who was arrested on suspicion of robbery and went on to commit an appalling and shocking rape two years later. The Home Office thought that the case supported its arguments so strongly that it tried to count it twice in a letter of what were intended to be five good examples that it sent to members of the Public Bill Committee. In addition to trying to pass off one case as two examples as the result of an administrative error, another oversight was the failure to mention that the appalling rape took place in Gudaal's bedsit flat. The Home Office's own anonymised summary of the case also suggests that Gudaal was arrested after being identified by his victim.

Photo of David Hanson David Hanson Minister of State (Home Office) (Crime and Policing)

If the Government's proposals resulted in stopping one murder or one rape, would they not be worth while?

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

The point is that the Minister has sought to advance various individual cases to prove that our approach is somehow unreasonable and that we are in some way seeking to support the perpetrators of serious crimes. Actually, an analysis of those cases does not bear that out. In citing them, the Government are in many ways making our case for us.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I always hate to disagree with my hon. Friend, but he will know the point that I made in Committee about the case of D, in which I acted for the defendant. The rape occurred some 10 years or so before his arrest, and he was arrested only because of the DNA that was found on the rape sample.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

I am grateful to my right hon. and learned Friend for highlighting that case, as he did in Committee, but the Government will acknowledge that even on the basis of their proposals there must be a risk that someone may not be caught. There is always a case for balance and judgment.

Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

Does the hon. Gentleman not feel that those who advance the one case of finding a rapist or other criminal as a result of DNA are actually making the case for everyone being on the DNA database? I am sure he would agree that that would be a very large step for us to take.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

I would always hesitate to make law based on individual cases, but that in no way undermines the considerable traumas of the victims of the crimes that have rightly been solved using DNA evidence. However, the point is that such cases are complex, and forensics are often only one element in solving a particular case, so it is a mistake to present the matter in a stark way.

Photo of Graham Stuart Graham Stuart Conservative, Beverley and Holderness

I was shocked by the Minister's intervention just now. His form of logic would strip away all civil liberties and restrict any brakes on powers of the state that might ever, in any circumstances, have led to the prevention of a serious crime if they had only been in place. I cannot believe that we have Ministers who place so little value on our civil liberties and cannot see the fine judgment that has to be made in coming to a decision on such matters.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

Perhaps it is the mindset that this Government have always had of always erring on the side of the Big Brother database state. In many ways they are making the case for universal inclusion on the DNA database, which is utterly unacceptable and, I know, is not the approach that even the Minister takes.

As I have said, there are complications. DNA forensics are often important in securing a conviction, but other material factors and lines of inquiry make a significant contribution. It is spurious to suggest that certain cases, such as those that have been adduced, would have gone unsolved, or that justice would have been denied, as a consequence of the proposals outlined in our new clause 1.

Let us take the case of Jeremiah Sheridan, which was relied on most recently by the Prime Minister. It was a particularly shocking case, as Sheridan brutally raped a disabled woman. In a complex case, he was subsequently caught, prosecuted and convicted because of the DNA that he left behind at the scene. The Prime Minister has claimed that the case would not have been solved if a revised approach to that proposed by the Government were adopted, but he misses the point totally. We should retain DNA that is left behind at crime scenes, and greater focus should be placed on the robustness of that part of the database. When a DNA profile is added to the database following an arrest for an offence, it should be checked against the cold-case database. If someone is subsequently arrested for a different offence and there is a DNA match, they should be prosecuted and the case should be solved.

If the Government's case studies do anything, they underline the reasoned approach of our proposal, which properly reflects the need to ensure that DNA forensics are available to help the police to bring serious criminals to justice. However, there is a world of difference between maintaining the DNA from crime scenes and keeping on file the DNA of the innocent, just in case they might one day be re-arrested in connection with a crime.

That is the Government's justification for their approach, but they should concentrate on getting their house in order. There should be much greater focus not simply on growing the DNA database of innocent people for the sake of it, but on obtaining the DNA of those already convicted of offences and those currently residing in Her Majesty's prisons. I welcome the fact that the Government are finally taking that seriously in some of their proposals in the Bill. That might be a rather better starting point for tackling crime in future.

What is an acceptable period for the retention of DNA records of those arrested for, but not convicted of, any offence? We believe that a similar model to that used in Scotland has some merit. In Scotland, if someone is convicted of a recordable offence, their DNA profile is retained indefinitely, but if they are not convicted of an offence, their DNA profile should not be retained once it has fulfilled the purpose for which it was taken, save for crimes of violence or sexual offences. In the latter category, DNA profiles should be retained for a limited period of three years, with the possibility of an extension for a further two years with court oversight.

The Scottish model was reviewed by Professor James Fraser from the Strathclyde university Centre for Forensic Science in 2008. Despite what the Home Secretary has asserted, Professor Fraser's terms of reference were wide enough to consider alternatives in other systems, and he recommended no material changes to the current system in Scotland. Lord Bach, the Minister's colleague in the Ministry of Justice, acknowledged that:

"In determining the appropriateness of the current legislation, Professor Fraser considered data on reoffending rates and conducted a wide consultation. He did not uncover any evidence to suggest that this approach to retention has caused any detriment to the detection of serious crime in Scotland."

We believe that an approach similar to that in Scotland should be adopted in the other nations of the United Kingdom, but with one important distinction, namely that the trigger for retention in cases involving violence or sexual offences should be arrest rather than charge.

We believe that that approach takes proper account of the competing interests of the individual against the collective need for protection from crime. It strikes the right balance between respect for an individual's private life and the legitimate interests of the state in preventing and detecting crime. As the Home Office's hazard rate analysis suggests, that is ultimately a matter of judgment. It is a judgment between retaining trust and confidence in the use of DNA materials, and trust and confidence in the police's use of such forensics. It is also a judgment on how to treat those who have never been convicted of an offence, the rights of the state to interfere in the lives of others, and the need to protect the public from crime.

The Government have sought to make the issue a political dividing line. So be it. That will expose how they have in many ways played fast and loose with the facts of sensitive cases, and how even now they cling to the view that the state needs to be intrusive and invasive, and that it needs to know as much information about all of us as it can, regardless of proportionality. It will also expose how the fundamental principles of innocence and guilt are almost inconsequential to the Government, and how they continue to delude themselves that draconian powers will mean a safer and more just society.

That is question of judgment, and on that and so many other issues, the Government's judgment is flawed. They are on the wrong side of the line and the wrong side of the argument, and increasingly, they are failing to uphold the security that they claim to support.

Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

I am delighted that we are able to have a debate of this kind on this very important subject, bearing in mind that so many concerns about the Government's DNA database proposals were expressed on Second Reading. To help the House, I should point out that today, the Select Committee on Home Affairs published our report into the DNA database. I apologise for not getting it to Members sooner, but we were keen to let the House know of our deliberations in time for this debate. We do not control Government business of course, so we did not know when Report would be. We met in what one might call an emergency session last Thursday to agree this report, and I wish to thank all the members of the Committee for their work.

The report was prompted by the concern expressed on Second Reading-and over the last few years-about the ever-growing DNA database. We can all agree on the facts-I certainly agree with the facts put forward by James Brokenshire. There is no dispute that it is one of the largest-if not the largest-DNA databases in the world, and our concern is the way in which it has grown. The Government have often said that information should only be retained if necessary, and that must apply to the use of DNA profiles.

During our deliberations, we took evidence from several individuals, including my hon. Friend Ms Abbott and representatives of the Jill Dando Institute of Crime Science. Among our most persuasive witnesses was Sir Alec Jeffreys, the inventor of DNA profiling. When someone as distinguished as Sir Alec appears before a Select Committee and expresses the concern that he never anticipated that the DNA profile of innocent people would be kept on the database, members of the Committee have to listen carefully to him. The Minister was in the session just before or after Sir Alec gave evidence, and I think that he heard that evidence. I do not say that politicians have hidden agendas-many of our agendas are open and transparent-but when someone like Sir Alec says that such retention was not intended, we have to take that seriously.

The Committee had different views about the length of time that people's DNA should be retained on the database. Some felt strongly that everyone's DNA should be on the database. Some felt that the DNA of innocent people should not be kept on it at all-in other words, it should be removed almost immediately. However, there was general agreement that the Government had delayed unnecessarily following the decision by the European Court of Human Rights. We could have avoided this dispute if the Government had acted much more quickly.

If there is a need for consensus on Home Affairs issues, this is one of those occasions on which we should have reached all-party agreement, because this issue affects so many of our citizens. There is no dispute on either side of the House that, if DNA helps in the detection of crime-as we say in our report, there is no doubt about that-it must be used to do so. The point of contention is the worry about the ability of this Government or any Government to hold information about citizens and therefore to expand their possession of that information to the detriment of individual citizens. Balancing the rights of the individual and civil liberties with the interests of justice has to be done very carefully.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 4:30 pm, 8th March 2010

What one has to resolve is the prejudice to the individual of having their DNA on a national database. The right hon. Gentleman has spoken of the prejudice, but I am not clear what prejudice he is identifying, other than the fact that an innocent individual might object to retention. That is a real consideration, but it is not necessarily prejudice.

Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

I would not say that the right hon. and learned Gentleman was in court every day, but he is there much more often than probably every other Member of the House, bar Tony Baldry, and probably even more than all of us put together. The right hon. and learned Gentleman therefore speaks as an expert, and he knows when such expertise is necessary. However, there is a higher judgment. Our deliberations need to be guided by what is in the public interest, in terms of what the public would want. He sees the matter from a different point of view. He sees it as a lawyer-a very distinguished lawyer-where the expertise offered through DNA can prove either that his client is guilty or that he is not guilty. There is a different judgment to be made by Members of this House from those judgments to be made by lawyers. I say that with the greatest of respect for the right hon. and learned Gentleman, whom I have known for many years, and for what he has said about such issues before the House.

However, the Government's position-that we should retain the data indefinitely-is indefensible, yet they hung on to it for a long time. They could have created a great deal of good will among their own Back Benchers and the Opposition parties if they had retreated from that indefensible position much sooner. The Government then went for a longer period, which they subsequently reduced to six years. 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 set out in the conclusions that we have published today-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. If hon. Members know the personalities of the members of the Home Affairs Committee and their different politics, they will understand that achieving a unanimous report is quite difficult. Consensus is not easy on such issues, but there was a consensus that holding the data for six years was too long.

The Government need to look at that period for the very reasons that were put forward by the Opposition spokesperson, the hon. Member for Hornchurch. It worries me that the DNA of so many young black men is on the database. That cannot be right. We are talking about high percentages-between 60 and 70 per cent. in some age groups-but Ministers have given no explanation of that. They cannot expect Members of Parliament to go along with more and more of our citizens being put on the database just because of the colour of their skin. I have heard no explanation from the Minister as to why that is happening, nor have I heard about any research that the Home Office intends to commission to find that out. In discussing such issues, it is important that we should know why those things are happening. I raised that point with the Minister on Second Reading, right at the start of our proceedings on this Bill-indeed, I raised it before, when the European Court made its judgment-so he really needs to tell us now. He cannot just say, "Tut-tut, it's very sad that this is the case, but we don't know why it's happening." Why is it happening? These are matters of fact; they are not even matters of debate.

However, where the Minister has me-that is, where he has made enormous progress and been prepared to listen-is on the issue of innocent people trying to remove their entries from the database once they have been arrested, by writing in and saying, "Could we please have our DNA removed?"

During our deliberations we took evidence from Mr. Hands. He told us about his experience after the death of an elderly relative whom he had not seen for many years, when, because he was related to that particular woman, the police came and took his DNA. He tried for a year and a half to get some explanation from the chief constable of the west midlands as to whether his DNA was still on the database and when it could be removed. The chief constable appeared before us when we were preparing the report, but he did not know the answer, even though the issue was in the public domain. He wrote to me recently and said, "Very good news: Mr. Hands's DNA is not on the database." Why did it take a year and a half, parliamentary questions, and the chief constable appearing before a Select Committee for the hon. Gentleman to get an answer?

That is where the Government's problems lie. If only there was a much easier, more robust and more defensible way of dealing with the issue, the Government would not be in their present difficulties, with so many on their own Benches worrying about the issue. Those who are innocent should be able to write in, such as Mr. Jonathan Leighton, who gave evidence to our Committee. Why is his DNA on the database? He is a student from Oxford university. A protester had climbed up a tree because the local authority in Oxford wished to chop it down. Mr. Leighton was not involved in the protest, and all he did was to throw a bottle of water up to the gentleman because he was thirsty. He was arrested, and his DNA was put on the database and retained from that moment. If a system were introduced that made it easy for innocent people to write in, the Government would take the House with them on that.

I am delighted that the Minister has looked carefully at this issue, and he has come up with proposals that the Select Committee welcome. I hope he does not think that all our reports always criticise the Government, because they do not. The only bits that the media pick up are our criticisms of Government policy, but the purpose of Select Committees is to be robust so that the Government can do better. Otherwise, we would be like those who sat in the Kremlin before elections were run in the Soviet Union, agreeing with everything that the then Russian Government did. We have to point out to the Government where we think they have gone wrong, and I think that our method of scrutiny is pretty good. We always take evidence from Ministers, as we did in this case from the Minister for Policing, Crime and Counter-Terrorism, my right hon. Friend Mr. Hanson.

My right hon. Friend's proposals are very welcome. Putting this matter on a statutory footing is the right approach. Innocent people-indeed, anyone-will be able to write in to the proposed body and say, "I'd like my DNA removed." The body will issue robust guidelines, which is welcome, and there will be others besides police officers sitting on it. The Select Committee has asked to be consulted on the guidance, and we look forward to receiving assurance from the Minister that that will happen. Given the imminence of the general election, it would be nice if that could be done as soon as possible. We would like to do it before the House rises whenever it is going to rise, at the end of March.

The measures will help us to show the public that we are serious about dealing with the DNA of innocent people, and we welcome these important changes. The Minister has certainly answered some of the criticisms that I made on Second Reading, but he still needs to do some work on the time limit. Of course the police are advising him that six years is the right time limit, and that three years is too short a period, but I urge him to look again at this. If the system works, people such as myself will be willing to give him the benefit of the doubt on time limits if we can end the postcode lottery-whereby those living in north Wales, for example, get a better response than those in Leicestershire-and if we can take the power away from the 43 chief constables. If such consistency can be introduced into the system, the Government will have done an enormous amount to deal with the criticisms that have been made since the European Court judgment. I look forward to receiving such assurances from the Minister.

Photo of Christopher Huhne Christopher Huhne Shadow Home Secretary

I am always delighted to follow Keith Vaz who, as usual, has been speaking an awful lot of good sense. I am delighted that his Committee was able to reach a unanimous view on this sensitive issue, and I hope that the Minister and his officials were listening to the points that he raised.

I wish to speak to new clauses 5 to 7, tabled in my name and those of my colleagues. I outlined our position on the DNA database on Second Reading, and my hon. Friends the Members for Carshalton and Wallington (Tom Brake) and for Winchester (Mr. Oaten) did so in Committee. We believe that only the DNA of people who have been convicted of a criminal offence should be on the database. There should be a primacy of the presumption of innocence over guilt. DNA should by all means be taken following an arrest but, if no subsequent conviction is achieved, the data relating to that person should be removed from the database on conclusion of the investigation or criminal proceedings. That should be a simple rule with no caveats, and no ifs or buts: a dividing line between innocence and guilt.

The amendments tabled by Chris Grayling and his colleagues represent a pragmatic compromise. There may be some doubt as to whether a two-year extension period is necessary; it may lead to function creep, whereby all samples are tacitly assumed to be kept for five rather than three years. On the whole, the Scottish model on which the Conservatives have based their amendments is not our first preferred policy, but it represents in our eyes-as one would expect, given that it was introduced in a Labour-Liberal Democrat Administration, in which the Justice Secretary was my esteemed colleague Lord Wallace of the other place-a much more palatable solution than the one proposed by the Government. If the Conservatives press their amending provisions to the vote, we would support them.

The Government have made no fundamental changes to their original proposals. They have made no compromises, although there have been token additions to deal with people convicted of offences overseas and to end the postcode lottery for removal from the database. Some of these are welcome. There should, of course, be a standardised approach to removal from the database and there can be no argument against having proper parliamentary oversight. The ends may not be to our liking, but the means must be as fair and as transparent as possible.

The Government amendments do not change the foundations of their approach to the DNA database, which is little more than a random hoarding of any data that they can get their hands on. The proposals, of course, still fail to address any of the concerns outlined in the European Court of Human Rights ruling in the case of S and Marper v. the United Kingdom about the "blanket and indiscriminate nature" of the database. How on earth can the Government suggest that these measures are "proportionate", as they are required to be by the judgment?

The UK already has the largest DNA database in the world in proportion to our population, with the records of more than 5.5 million people on it, almost 1 million of whom have never been convicted of any crime; while almost one in two of all black men are on the database. There are real issues about the potentially counterproductive nature of a detection tool that is seen to be quite so discriminatory by ethnic group. It was interesting that James Brokenshire cited the extraordinary difference in the figures for people on the DNA database between the separate nations of this country alone. It becomes even more severe, of course, when ethnic minority figures are taken into account.

The number on the database would surely increase under the proposed system of keeping for six years the DNA of people who have not been convicted of any crime, yet more than 2 million people who were convicted before the database began are still not on it. All we get from the policing Minister is the charge that the Government's proposals might lead to some convictions, but what about all the convictions that are not taking place because the Government have not introduced an effective system for catching up with people who are convicted, who should be on the database and whose presence on it has the support of every political party?

The effectiveness of the DNA database as a tool for fighting crime is without any doubt whatever. It is important; the police want it; we support it. It is telling that the database is, as the hon. Member for Hornchurch pointed out, clearly set at a point of diminishing returns.

Photo of Christopher Huhne Christopher Huhne Shadow Home Secretary

I shall give way to the right hon. and learned Gentleman in a few moments.

The increase in the database is not leading to a corresponding increase in the number of crimes solved. In fact, there has been an enormous increase in the number of profiles held on the database from 2.1 million in 2002 to 5.6 million last year, but the number of detected crimes for which a DNA match was available-never mind whether or not it was pivotal in securing a conviction, which I suspect the right hon. and learned Gentleman is about to raise in his intervention-has fallen from 21,098 to 17,614 last year. Where is the proportionality called for by the European Court in this random accretion and increase in the DNA database coupled with a falling effectiveness and diminishing returns?

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Does the hon. Gentleman agree with the proposition that because DNA provides such an important and effective detective tool, it is also in itself a deterrent in that almost any crime involving the physical presence of a person at a scene or someone coming into contact with another person will leave DNA? Is that not a deterrent to the commission of crime as well as a detective tool in the event that crime is committed?

Photo of Christopher Huhne Christopher Huhne Shadow Home Secretary

Of course it is a deterrent, and of course any crime scene will be searched for DNA, which will automatically go on to the database and be used as part of the investigation. We entirely support that. However, the right hon. and learned Gentleman's point is similar to a point made by the Minister earlier. The Minister said that as long as one single case was brought to justice, such action would surely be regarded as sensible. As the right hon. and learned Gentleman knows, that is not a requirement in law. The law requires, and the European Court has spelt out, that measures taken by the state should be proportionate to the objectives of the state and the protection of the public.

Many years ago, before 1989 and the fall of the Berlin wall, I visited the Soviet union. An elderly lady would note all the times at which I went into or left my hotel room. If any member of the Soviet Government at the time had been asked whether that was a proportionate use of scrutiny, the response would have been that those with nothing to hide had nothing to fear, but I do not think-and I hope that the right hon. and learned Gentleman agrees-that we want such an intrusive state. It is simply not appropriate for the state randomly to acquire samples, and then profiles, of something as sensitive and as potentially intrusive into privacy as DNA on the basis of an arrest which may not lead to a conviction, as the person concerned may be entirely innocent.

The evidence provided by the Government to support the retention of the DNA of all innocent people for six years is an embarrassment to statistical science. The so-called evidence in the consultation paper was based on an extremely small sample of research carried out by the Jill Dando Institute of Crime Science, which its own director later noted was incomplete and based on data to which the institute was not given direct access. Further criticism came from none other than Professor Sheila Bird, a vice-president of the Royal Statistical Society, who said that the consultation had damaged public trust in statistics and misled the House. The Home Office really has a lot to answer for.

More recently, confusion seems to have reigned across all fronts. Numbers have been flying around in connection with examples which the Government say prove beyond doubt that the DNA of innocent people should be kept for six years. The Home Secretary tells us that in 36 cases the DNA of innocent people not convicted of any crime was pivotal to the solving of cases involving serious violence and sexual offences. On 19 February I tabled a parliamentary question asking for the details of these cases, but, nearly a month later, I have still not received a response. If the evidence was so fantastically compelling, why on earth is the Home Office unable to provide a written parliamentary answer giving the details?

Some consultation seems to be taking place among the officials. I certainly hope that it is, because in my view it is rather important for parliamentary questions to be answered in advance of debates on legislation. It is a dereliction of duty for the Home Office not to come up with an answer. One would have thought that the Home Secretary would be more than willing to share the information, given that he quotes that figure at every available opportunity. What is the reason for his sudden reluctance?

We have received letters from the Minister for Policing, Crime and Counter-Terrorism claiming to list five cases, but the number turned out to be only four owing to double counting. Another case, that of rapist Jeremiah Sheridan, has been cited by none other than the Prime Minister. In that case, DNA taken following Mr. Sheridan's arrest for a minor offence in 2005 was later matched to crime-scene DNA from an offence committed in 1991. Nothing in my party's proposals would prevent that from happening. Under our scheme, Mr. Sheridan's DNA would have been taken at arrest in 2005 and held on the database until the decision was made not to proceed any further. During that time, officers would have been free to check his DNA for matches against cold-case samples held on the database. A match would have been made, and the original 1991 case would have been solved.

The really shocking aspect of the case of Mr. Sheridan is that the original cold-case DNA sample from 1991 was not uploaded to the database until a staggering 16 years later, in 2007, at which point it was matched to Mr. Sheridan's. The failing here would not have been to have removed Mr. Sheridan's DNA from the database when he was not convicted of a crime; rather, it was to wait 16 years to run the cold case data against the information on the database. I do not want to go over any more individual cases-as I have said, the enumeration of them has been singularly lacking from Justice Ministers and from the Home Department-save to say that of the millions of crimes committed each year, the Government struggled to come up with even five concrete examples to support their case.

Of more concern in terms of the evidence the Home Secretary recently told us was being peer reviewed is the Government's constant conflation of re-arrest rates and conviction rates. I am not going to labour this point, because the hon. Member for Hornchurch made it very tellingly; I simply say that I entirely agree with his comments. The Government have come up with no evidence to convince me, and no evidence that should convince this House, that six years is a proportionate or necessary length of time to retain the DNA data of an innocent person, nor do I believe for an instant that the European Court of Human Rights will be persuaded. Were this sorry piece of legislation finally to reach the statute book, I believe it would be overturned again. Despite the positive aspects of the Bill-the latterly introduced measure to provide compensation to the victims of overseas terrorist offences, for example-Liberal Democrat Members cannot support these proposals, which loom so large over the remainder of the Bill.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

I rise to speak to my Committee's report on this part of the Bill and the amendments in my name that have been tabled on behalf of that Committee.

We have had extensive correspondence with my right hon. Friend the Minister and his predecessors on the retention of DNA, most recently, of course, in light of the Marper case. It might be useful to remind Members of what the Grand Chamber said in that case, because that is the test the Government have to meet in how they approach this issue. The court said that

"the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken-and retained-from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database...in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances."

That is the test laid down by the Grand Chamber, and the real question for us today is whether the Government's proposals meet it.

I am concerned that in the Public Bill Committee the Minister said that the Government would consider the judgment and that the question is now

"how far we can push the boundary of the judgment in relation to our wish to have protection for the public."--[Official Report, Crime and Security Public Bill Committee, 26 January 2010; c. 71.]

That implies a desire to push against the Grand Chamber judgment, and to see just how far the Government can go. That inevitably risks both future litigation if we are right up against the borderline-or, potentially, on the wrong side of it-and impacting unfairly, unjustly and unlawfully on the rights of many of our fellow citizens if their DNA is retained in circumstances that the Grand Chamber would not find acceptable.

We certainly welcome the Government's decision to respond swiftly to the judgment in the Marper case, and the proposed scheme reduces the likelihood of DNA samples and profiles being retained in a manner that is incompatible, but we are concerned that proposals for retention, in respect of people who are arrested but not charged or convicted, on the basis of a blanket retention period remain disproportionate and potentially arbitrary.

I am particularly concerned about the question of stigma, which the Government seem to discount, but the Grand Chamber thought was rather important:

"it did consider that the stigma attached...for the purposes of assessing the impact on the individual for the purposes of Article 8 ECHR" was an important factor. The Grand Chamber said that

"the inclusion of an individual on a list which treated him in the same way as a convicted person, and differently from a person who has never been suspected of an offence, would affect his own understanding of how the State chose to perceive him".

I think that is important, because about 18 months ago one of my constituents, the mother of Robert Chong, came to see me after her son had committed suicide in July 2008 because of the shame of being put on the database after he was falsely accused of exposing himself to a woman. A cursory check of the CCTV tapes would have demonstrated his innocence; his only interaction with the woman had been when she swore at him on a station concourse. The impact on Mr. Chong was severe-his mother described it to me in some detail. He became withdrawn and he told his mother:

"I'm on the criminal database now, I have got a record."

Eventually, he committed suicide. Whatever we do today will not resolve that particular case, because he is dead as a result of what happened in relation to DNA retention.

However, the case demonstrates how important the issue of stigma can be if we underestimate what we should do to try to put these things right. That is particularly the case in relation to children. We have separate provisions for them, but the provisions create significant risks of disproportionality. For example, a child convicted of two offences of shoplifting or minor criminal damage at the age of 11 or 12 could have his or her DNA profile retained indefinitely, and that cannot be right. The Government have a particular responsibility to justify the taking and retention of DNA samples and profiles from children. My Committee's view was that, in the absence of further evidence to support the Government's position, the proposed retention periods for the DNA profiles of children may be disproportionate and inconsistent with the requirements of the UN convention on the rights of the child.

My Committee is also concerned about the position on the DNA samples of innocent people arrested in connection with minor offences, because the Government make no distinction between arrests for minor and more serious offences. Our view is that the evidence is insufficiently robust to support the Government's contention. We noted the Council of Europe's recommendation, which indicates that the retention of DNA samples and profiles will be proportionate-even after conviction-only in the cases of more serious offences. We also noted that the research cited by the Government relates to conviction data and not to the likelihood that a person arrested in connection with a serious crime might subsequently be convicted of another offence of that type. Thus, there is no correlation in the evidence so far between the two-I think that that was the point being made by Chris Huhne. Although the Government's research supports the public protection argument for keeping more people's details on the database, it does not illustrate that the interference posed to individual rights is proportionate and necessary.

My Committee found it disappointing that the Government have chosen not to draw any distinction between arrests in connection with serious violent and sexual offences, and those in connection with less serious offences. Under the Bill, an individual arrested in connection with the investigation of a minor criminal damage or public order offence will be treated in the same manner as an individual who is charged but not convicted in relation to a serious violent or sexual offence. We consider that that failure is likely to increase the likelihood that the proposals will be considered disproportionate and incompatible when the inevitable challenge later appears.

My Committee was particularly concerned about the provisions in relation to national security, which go way beyond what we think to be appropriate-they go beyond the six-year period. Where a chief constable thinks that something has a national security implication, even when the six-year period has expired the DNA can still be retained, and that can be done without notifying the individual concerned that it is being retained. Our first concern is that there is no definition of what national security is in these circumstances, so my amendment 33 tries to set out what a definition of national security considerations should be. In addition, no provision is made for any oversight of a decision by the chief constable on this matter. My Committee recommends that oversight should be carried out by the Information Commissioner and a DNA reviewer, in the same way that there is a reviewer on counter-terrorism matters, in the form of Lord Carlile, to examine retention that is carried out for the purposes of national security.

We also need to address the oversight of retention decisions. The exceptional cases procedure is in place, under which, if it appears to a chief officer that certain criteria are fulfilled, for example that the arrest was unlawful, that it had been carried out on the basis of mistaken identity, that samples had been taken unlawfully or that any other relevant circumstances applied, the DNA record should be removed. However, the Nuffield Council on Bioethics has recommended that

"an independent body, along the lines of an administrative tribunal, should oversee requests from individuals to have their profiles removed".

The Government take the view that judicial review would be a sufficient remedy for that, as they always seem to in this sort of case. Generally speaking, these cases will be very fact-specific.

We note from the case of Tsfayo against the UK that in those circumstances judicial review could not resolve a lack of independence. Our view, therefore, is that there has to be a statutory form of appeal should a chief constable not accept that a case falls within those exceptional criteria. I propose an amendment on behalf of my Committee to provide for an appeal to the Information Commissioner and, ultimately, to the Information Tribunal.

Overall, in light of our conclusions, we remain concerned that the Government's proposals risk being indiscriminate and disproportionate. Without further concrete evidence to support the Government's argument for a blanket six-year single retention period, there is a real risk that these provisions will lead to further judgments finding the UK in violation of the right to respect for private life. In our view, there are various approaches that could comply with the Marper judgment-for example, the Scottish model, which was described earlier-but we are very concerned that the proposals before us simply do not meet the requirements of the European Court.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 5:00 pm, 8th March 2010

This whole question raises some very troubling issues. It is one about which reasonable-minded people can differ quite dramatically. There is a division of opinion. On the one hand-this is the minority view to which I subscribe-DNA is an enormously important deterrent and detective tool, and that being so there is a strong case for a national database including all citizens. On the other hand, there is the view that it is a monstrous and serious intrusion into privacy, and therefore unacceptable. That is an argument that has to be taken into account even if one personally disagrees with it.

I think that we can all agree with the general proposition that DNA taken from crime samples should be retained indefinitely. That goes without saying and is very important. The question that should concern the House is the extent to which the DNA should be retained of persons who have come into the criminal network but who have not been convicted of serious crimes. That seems to me the central issue that the House should be considering.

At this point one is rather driven to first principles. I am sorry that Keith Vaz is not in his place because he raised rhetorically the perfectly proper question whether it would be right to have a national database embracing the DNA of everybody. That question needs to be considered; it has been articulated by very senior Law Lords in the past. I can speak only for myself. I hope that the House will accept that I am, generally speaking, on the liberal wing in these arguments. Speaking absolutely personally, I would have no objection to my DNA being on a database, albeit I have not been convicted of a criminal offence.

That general proposition has to be subject to three important provisos. One is cost; another is practicality; and the third is public consent. The fact that I personally might have a particular view in the end cannot be determinative of what we as parliamentarians should decide. I am quite plain that at the moment cost and practicality argue against a national database embracing all citizens. It would be immensely costly and very difficult to achieve, and for those two reasons is probably not acceptable at present. In any event-this is the true argument against, which is decisive-there is no public consent for a national database embracing everybody.

One goes to the next question. Assuming that one is not going to have a national database embracing everybody, one has to determine in a pretty unclear way, by pretty unclear criteria, what classes of people who have not committed serious offences should have their DNA retained on the database. We are being asked to fix a time with reference to no very obvious criteria. However, there are some proper conclusions that one can ultimately arrive at. Here, in the end, I agree with my hon. Friend James Brokenshire, and indeed Chris Huhne.

I am guided on this matter primarily by what I think that the public want, and not necessarily by what I think is the correct conclusion. The public probably want a lesser, rather than a greater, period. If one asked the public in general-if one could ever pose such a question-whether six or three years came within the framework of what they thought proper, in respect of people not convicted of serious offences, they would argue in favour of the shorter period, rather than the longer period.

The public would probably say that the DNA of people who have not been convicted should not be retained. I think that there would be real anxiety were the public fully to understand that, under the Bill, if one is reprimanded or cautioned, one's DNA will be retained; they might be somewhat surprised by that. Again, using the test of what I judge the public mood to be, and not my opinion, I think that the public would object to that.

I am quite sure that the public would demand much greater ability to remove DNA from the database, and would demand that that ability be national. In my constituency work, I am struck by the way in which it is sometimes easy for a citizen in one police force area to remove their DNA from the database, but not for a citizen in another police force area. I find that extremely difficult to justify.

To conclude, the issue is serious; I am conscious of how important a detective tool the database is, and if it is a detective tool, it is a deterrent-a point that I made to the hon. Member for Eastleigh. Then again, I have to recognise that the fact that I do not find the database intrusive into my privacy or deeply offensive is not determinative. The public have to have confidence in such instruments of policy, and they do not, I think, have confidence in the long-term retention of DNA of persons not convicted of serious offences. For those somewhat narrow reasons, I am driven to support the position of my hon. Friend the Member for Hornchurch, and that adopted by the Liberals.

I hope that this debate is not the end of the matter, in the sense that the subject is one on which the public should be engaged in continuing discussion. If one believes, as I do, that there is a case for longer retention-and perhaps for a national database covering everybody-we should engage the public in that debate. If they will not have it, that is the end of the matter; but they might have it if the argument is fully debated over a period of time, so I hope that this discussion will not be regarded, for years to come, as wholly determinative of the issue.

Photo of Tony Baldry Tony Baldry Conservative, Banbury

We are enjoined in both the Old and New Testaments to love justice, seek mercy and walk humbly with our God. An important part of the issue is justice and ensuring that justice is done. There is no doubt that DNA has enabled police forces across the country, through their cold case review teams, to bring to justice for serious offences of murder and rape people who would otherwise have escaped justice.

I was fortunate enough to spend 21 days with Thames Valley police as part of the police parliamentary scheme. I point out to Members of the House who ever have the opportunity of taking part in that scheme that I considered it very worth while. During that time, I spent a day with the Thames Valley police cold case review team, which, on the next day, was about to arrest a man for a rape that had allegedly been committed some considerable time before. I noted subsequently that that resulted in a conviction in the Oxford Crown court. If there had not been a DNA sample, that man would not have been brought to justice and, more importantly, the victim of that offence would not have had justice.

Although the total number of offences in which DNA leads to conviction may be statistically and comparatively small, it can lead to convictions in cases of considerable importance and can ensure that justice is done. I rather take the view of my right hon. and learned Friend Mr. Hogg. We all have a national insurance number that we are given when we are 16 or whenever we first apply to start work, which is a unique combination of letters and numbers that stays with us to the day we die. Our DNA profile, as opposed to a DNA sample, is, as I understand it, a unique collection of letters and numbers. I have no problem with the state's having my national insurance number-of course it must have it-and I do not personally see any problem with its having the letters and numbers of my DNA profile.

The difficulty with this debate, which has been brought forward very clearly by the Select Committee's report and by contributions made by colleagues from all parties this afternoon, is that there is not public consent to the proposal because there is an understandable feeling, as was evidenced by the rather tragic constituency case raised by Mr. Dismore, that having one's record on the DNA database means that a value judgment is being made that one either has committed an offence or has the propensity to commit an offence in the future.

There have been occasions when the police have given the impression that although they might not have managed to secure a conviction or a charge on that occasion, they think that the person involved did it and are going to keep their DNA on the database. That, coupled with the difficulties that people have had in having their DNA profile removed from the database, has tended to erode public consent in what the Government are trying to do with this part of the Bill. Perhaps there is a message for police forces throughout the country that when they secure convictions through the use of DNA or when that use helps to lead to convictions, they ought to give that greater publicity. There might not be sufficient recognition of the contribution that DNA can make to solving crimes. There is no consent about the process.

There is an interesting point about the way in which the Bill has gone through the House. We have a Second Reading debate on the principles. We then have the Public Bill Committee, which now takes evidence from witnesses at the start of its proceedings. We took evidence from a number of people but we have now discovered that in parallel to our doing that work and the work of a Standing Committee, the Home Affairs Committee was engaged in carrying out an inquiry and taking evidence on this very specific point. For perfectly good reasons, which were explained by Keith Vaz, the Chair of the Select Committee, it has only been possible for the Select Committee to publish its unanimous report today. I doubt whether Members of the House, other than those who have been in the Chamber this afternoon, will have had the opportunity to know what the Select Committee recommended.

Photo of Christopher Huhne Christopher Huhne Shadow Home Secretary 5:15 pm, 8th March 2010

It seems to me that it is crucial for the hon. Gentleman to recognise that on both sides of the House no one is against the national DNA database. The vast majority of crimes that are solved using the DNA database are those in which there is a match of DNA at the crime scene to somebody who is a suspect for other reasons. All that will continue. The real issue, which he is not addressing in his remarks, is that of proportionality and of adding random numbers of people to the DNA database, without that being based on their guilt or innocence. That is the issue. Does he disagree with the European Court of Human Rights that the policy that the Government have been pursuing-and, I believe, the policy that they are also proposing today-would be disproportionate?

Photo of Tony Baldry Tony Baldry Conservative, Banbury

May I come to that point in a second? I gave way, but I shall just finish my point about the Home Affairs Committee. I suspect that there are few Members of this House, other than those who are taking part in this debate, who will know that the Home Affairs Committee, in a unanimous report, has said-the right hon. Gentleman did not read out his conclusion, but I think that it is important that it is put into Hansard-that:

"Decisions on retention periods must balance public safety against individual privacy. We are not convinced that retaining for six years the DNA profiles of people not convicted of any crime would result in more cases being cleared up-let alone more convictions obtained-than retaining them for three years. We therefore recommend a three year limit, and a draft amendment to the Crime and Security Bill to this effect is in the Annex to this Report."

As everyone in the House would, I hope, agree, this is the sort of issue on which it is very sensible to try to get all-party consensus. It would be stupid to ignore the unanimous report of a Select Committee that is tasked with monitoring and scrutinising the work of the Home Office. It is a pity that, through no fault of the Committee's, only on the last day on which the Bill will be debated in this Chamber do we have the opportunity of reflecting on what it has said. If the Government insist on using their majority to drive through a six-year period, I hope that when the Bill gets to the other place, our colleagues there will reflect on what the Home Affairs Committee has said so that we can try to get some consensus.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

In reality, of course, the Bill will not become law unless there is consent across all parties, because of the general election and the wash-up period. That being so, the Government would surely be well advised to consider the Select Committee's recommendations for the purposes of the wash-up.

Photo of Tony Baldry Tony Baldry Conservative, Banbury

My right hon. and learned Friend, who has witnessed even more wash-ups than I have, gives some sensible advice that I am sure will have been heard by those on the Treasury Bench.

Let me come back to the point that Chris Huhne made. I approach this issue in a slightly different way. The whole raison d'être of the Bill was the European Court's judgment; that is why we are here. If it had not been for that, we would never have had a Crime and Security Bill, and all the other measures in it-from those on mobile telephones in prisons to those on wheel-clamping-some of which are very welcome, would never have been there. An important point that was made in Committee by me and others is that we have to be confident that whatever the Government do in the Bill will be judge-proof. I should have thought that, if anything, that would require the Government to err on the side of caution rather than go for a longer period that could mean that they end up back before the European Court.

Personally, I see no reason why anyone should be concerned about having their profile on the DNA database as long as the practice is applied broadly. I see that costs might discriminate against that, but if costs were not an issue I should not see any reason why we should not all have our DNA profiles on the database. I just do not see, from a human rights or a civil liberties point of view, why that should be a great issue. The state knows our national insurance numbers and many other details, and we now have biometric passports. In what way am I prejudiced by the state knowing that? It becomes an issue only if I think that I am being discriminated against because my data are being retained and my neighbour's are not. If I think that my information is being retained simply because I am thought to have a propensity to commit offences and because I am therefore thought less worthy than my neighbour or my colleague, of course that will encourage resentment. That point has come through in the Select Committee's report.

Photo of Christopher Huhne Christopher Huhne Shadow Home Secretary

This is a fundamental issue. The hon. Gentleman says that it would not be prejudicial for all people's DNA to be on the database, but the key principle is surely that the state should not take unto itself powers to intrude on our personal activities unless there are very good and proportionate reasons for doing so, and that case has not been made.

Photo of Tony Baldry Tony Baldry Conservative, Banbury

I am not sure that the state's having my DNA profile would intrude on my personal activities. However, all this is otiose because I think we are of one mind on this point: whatever the Government do has to be judge-proof. The judges are against me on this, because they have decided that there must be more constraints. I am simply making my views clear. The judges have made things clear and I think that it is in everyone's interest for the House to reach a conclusion that is judge-proof.

Let me summarise the arguments for reducing the period of retention. A unanimous report of the Home Affairs Committee urges the Government to adopt a three-year period. It must be common sense that the general principle of trying to find political consensus is in the best interests of us all. In any event, we are nearing the end of this Parliament and if we do not have general political consensus, the chances of the Bill getting through are limited, particularly because as we all know, the other place will almost certainly side with the Home Affairs Committee, rather than with the Government on the matter. Lastly, public opinion supports the Home Affairs Committee's position and a three-year limit.

For all those reasons, I hope that even at this late stage, and bearing in mind that the Home Affairs Committee's report came out only today, Ministers will contemplate accepting the amendments that reduce the period to three years. Sooner or later, they will probably have to do that if they want to get the Bill through, and it might be more sensible to do it now than wait until the wash-up period.

Photo of Bill Cash Bill Cash Conservative, Stone 5:26 pm, 8th March 2010

I very much agree with my right hon. and learned Friend Mr. Hogg, my hon. Friend Tony Baldry and our Front-Bench team. The new clause is extremely important. Its purpose is to ensure that a limit of three years is imposed, instead of the period prescribed in the Bill.

We are moving towards a general election and the wash-up period. If one were to make an assessment of the progress likely to be made by the Bill, one would conclude it is highly probable that because of the important issues at the heart of the new clause and amendments, the Government will have an opportunity to think again about getting some of their proposals through when the matter goes between the usual channels. The three-year period is something to hang on to. It would mitigate the difficulties that we face in what is increasingly called the surveillance society.

I listened, sometimes with a slight weariness, to the repetitious or at any rate the enlarged deliberations of Mr. Dismore which were churned out of the Joint Committee on Human Rights. There are some distinguished members on that Committee, but I have the gravest reservations about our legislating simply because the Joint Committee on Human Rights is imbued with the idea that because it has the duty to monitor the Human Rights Act and the European convention on human rights, we should automatically pay special attention to that assumption.

The framework should be decided in Westminster. We are quite capable of deciding for ourselves what the right level is and what is proportionate. After all, most of the democracies in the world-many of the Commonwealth countries and the United States-have worked with us over many generations. We in this House are not so completely aberrant or so witless that we cannot come up with legislation that is in favour of protecting the rights of the individual. In general, we are moving towards a surveillance society and it is extremely important that we do not allow the benefits made possible by DNA samples, which I certainly admit, to intrude on the rights of individuals.

Photo of Christopher Huhne Christopher Huhne Shadow Home Secretary

In a very fine pamphlet recently, Peter Oborne and his co-author pointed out that the European convention on human rights was drafted substantially by British lawyers and came under enormous political pressure from this House, precisely because we wanted to establish that sort of British basis throughout the continent, so which of the human rights set out in the convention does the hon. Gentleman desire to remove?

Photo of Bill Cash Bill Cash Conservative, Stone 5:30 pm, 8th March 2010

I just do not believe in written constitutions or in the charter of fundamental rights. I believe in the rights of the people, but they should not be entrenched and then adjudicated, in respect of sensitive political matters, by judges who, by definition, are not elected. I had a debate only a few days ago with Richard Gordon QC, who has just written a book called "Repairing British Politics: A Blueprint for Constitutional Change". He calls for a written constitution, but his idea of constitutional supremacy is, unfortunately for him, dependent on the fact that all the matters in his constitution would be subjected to the European convention on human rights, the European Union and the judgments of the European Court of Justice.

I believe very strongly, and many others in this country would agree, that there are perfectly sound reasons, of which the new clause put forward by my party's Front Benchers takes account, for disagreeing with the hon. Member for Dismore- [ Interruption. ] "Dismal" came to mind, but I must not go down that route. The hon. Member for Hendon simply falls back on what the European convention on human rights and the Joint Committee on Human Rights say, but it is not the function of this House to refer continuously to those abstract principles when we are quite capable. Historically, to answer Chris Huhne, the fact that the convention happens to have been passed is not a justification for hanging on to it.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

I noticed how my hon. Friend let go by the contention of Chris Huhne that everyone was for the convention. In point of fact, it was a highly contentious matter within Attlee's Government. It was indeed drafted by British lawyers, but there was contention, and it was about a foreign Court adjudicating on matters that had always been at the heart of the responsibility of this House.

Photo of Bill Cash Bill Cash Conservative, Stone

As ever, I am extremely grateful to my hon. Friend. He and I think almost identically on these matters, and he always adds some value to the arguments that we put forward on a mutual footing.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I agree with my hon. Friend's views on proportionality in this case, but the fact is, as my hon. Friend Tony Baldry said, that we have to make these proposals judge-proof. Whatever my hon. Friend Mr. Cash may think about the European Court of Justice and so on, we have to represent its views so long as its views govern the law in this country on these matters.

Photo of Bill Cash Bill Cash Conservative, Stone

Regretfully, that is correct. That is why, when I was shadow Attorney-General, I recommended, and my party accepted, that we repeal the Human Rights Act. For all the reasons under discussion, we must be quite clear about the European convention. Geoffrey Robertson QC, a very distinguished lawyer who, as he said himself, is not a known Eurosceptic, recently made it clear in a very important Standpoint article that we had to review the status of the European convention on human rights, and, as I understood his article, that we should legislate in Westminster to ensure that we strike the right balance in such matters.

This is a very important provision and a very important new clause. The hon. Member for Eastleigh prattles on-if I may be allowed to say so, somewhat pejoratively-about proportionality, but the essence of proportionality is derived from that European convention.

Photo of Christopher Huhne Christopher Huhne Shadow Home Secretary

I am grateful to the hon. Gentleman for giving way, particularly as it allows me more time to prattle. He says that he is in favour of repealing the Human Rights Act, and we know that that is his party's position, but the burden of his remarks appears to be that we should withdraw from the European convention on human rights. Is that what he is advocating?

Photo of Michael Lord Michael Lord Second Deputy Chairman of Ways and Means

Order. I am hesitant to intervene, but I am sure that when the hon. Gentleman responds he will relate his remarks to DNA.

Photo of Bill Cash Bill Cash Conservative, Stone

In the context of DNA and the potential invasion of privacy, while allowing for the benefits of the system as a whole, length of retention time, public consent and the other parameters that have already been amply discussed by my hon. Friends, there remains a very serious question: what limits should we impose? I strongly believe that we should impose only limits that are consistent with what people in this country want. If they decided in a general election, or as a result of public consultation, that they would prefer to have Westminster deciding these issues and the time limits involved, that would indicate the degree of public consent that we have in making decisions here in this House. Much as I like the hon. Member for Eastleigh, with whom I have debated these issues many times over, God knows, 20 years or so, I strongly believe that in DNA matters, or any other matters of this extremely sensitive character, we should not employ abstract principles that are decided in European Courts but could just as well have been decided by our own courts on the basis of our own legislation. This comes down to the whole question of who governs Britain and what is our role as a Member of Parliament.

The new clauses tabled by my hon. Friend James Brokenshire are very important. I return to the question of the wash-up and the extent to which we stand firm on these questions in the interests of our constituents. Our job is to protect them and to ensure that they get a proper and a fair deal, not an unreasonable subjection to principles of proportionality, or other principles, and a whole series of decisions that come from the Strasbourg Court. Nor do we want to find, as the charter of fundamental rights-the Lisbon treaty-begins to work its way into our legislative arrangements, that we are having to accept those principles.

I repudiate the arguments of the hon. Member for Eastleigh because they are based on abstract principles that are, I am afraid, inherited from a period that has long since gone by. We helped to write and produce the European convention on human rights-and, indeed, the charter of the United Nations-because in those days we were repudiating fascism and the surveillance society that went with it. All that came from our tradition, and that is what we in this House should stick to rather than having a kneejerk reaction in going back to principles that were enunciated all those years ago.

Photo of David Hanson David Hanson Minister of State (Home Office) (Crime and Policing)

I thank colleagues for a useful and reflective debate on some important and key issues for the House as a whole. We had a long and detailed debate on these matters in Committee. I am grateful to all right hon. and hon. Members who have spoken in this debate for ensuring that those matters came before the House today.

If I can summarise, two clear positions have been stated from the Opposition Front Benches. James Brokenshire said that he supports the three-year period for retention in relation to serious offences, based on the Scottish model. As I said in Committee and repeat today, we have a principled position from Chris Huhne, who does not believe that the DNA of anybody not convicted of crimes should be kept. We have heard important contributions from my right hon. Friend Keith Vaz, who has brought to bear the conclusions of the Home Affairs Committee. I am grateful to members of the Committee for their consideration of these matters.

My hon. Friend Mr. Dismore commented on the views of the Joint Committee on Human Rights and has tabled some amendments, to which I shall speak shortly. Mr. Hogg made a thoughtful speech that summarised some of the dilemmas that we face in balancing the need to protect our citizens with the need to gain their consent, and in doing so in the legal framework within which we have to work.

Tony Baldry made the case, in part, for a full DNA database. We need to ensure that that is considered, and there are arguments for it, but the Government have had to take a proportionate view and have settled on the position that is before the House today as meeting our legal obligations. Mr. Cash talked about the primacy of this House in making decisions and expressed what I can only say are long-held concerns about the operation of these matters which are not new to anybody in the House.

There is honest disagreement about the DNA database, and I believe ultimately that the hon. Members for Hornchurch and for Eastleigh are on the wrong side of the argument for the British public. We are trying to ensure that we take a proportionate approach that meets the legal obligations that my hon. Friend the Member for Hendon mentioned and works within the legal framework that the hon. Member for Stone and the right hon. and learned Member for Sleaford and North Hykeham talked about, but that ultimately protects the British public, deters individuals from committing crime and supports the prevention of crime by ensuring that we have a database that is operationally efficient. There is honest disagreement, but I believe that we are proposing a proportionate system and working within the judgments of the Council of Ministers on Marper. We are trying to ensure that the six-year period that we have suggested meets our obligations in a fair and effective way.

I shall speak in due course to Government amendments 8 to 16, in the name of my right hon. Friend the Home Secretary. As I tried to explain in Committee, the Opposition amendments would remove the proposed framework for the retention and destruction of DNA and adopt a variant on the Scottish model. The hon. Member for Eastleigh would have a model that did not allow for the retention of matters relating to the DNA of innocent individuals at all.

I begin with Government amendments 14 to 16. We listened to the debates in Committee, as I hope the hon. Member for Hornchurch and others recognise. Issues that were raised there are partly reflected in the reports produced by my hon. Friend the Member for Hendon and my right hon. Friend the Member for Leicester, East. I will consult my right hon. Friend's Committee, but we have tried to ensure that we consider both the need for consistency and how individual approaches to the database can be made.

One key issue that has been raised, which is addressed in amendments 14 to 16, is ensuring that we do not have postcode lottery on the implementation of the proposals before the House. In tabling the amendments, the Government decided on a new early deletion procedure, with the National DNA Database Strategy Board being a single point of contact for both members of the public and constituency MPs instead of their having to go to individual police forces. That was a key issue in Committee, and I know that the hon. Member for Hornchurch was concerned about it. I hope that the amendments will ensure that we have consistency across the board in relation to early deletion. Once the board receives a request, the case will be handled by a central team, which will collate the case file, offer advice and consider, based on previous decisions, whether a deletion can be agreed to. If so, it will arrange for it to be implemented.

Amendment 14 will place the responsibility for those arrangements on the board, which, as the House will be aware, has existed since 2007. It will oversee the operation of the database and technical standards in relation to DNA. The board's core membership will be drawn from the Association of Chief Police Officers, the Association of Police Authorities and the Home Office, but it will include independent elements such as the Information Commissioner, the forensic science regulator and the National DNA Database Ethics Group.

Government amendment 14 will also mean that chief police officers in England, Wales and Northern Ireland must follow that guidance. It is crucial that the removal process is consistent, and I hope that the House welcomes that amendment.

On Government amendments 15 and 16, we listened to what was said in Committee with regard to parliamentary scrutiny over the board and the reports it produces. I thank the hon. Member for Hornchurch for raising that in Committee. Again, I believe that there is now a consensus to amend the Bill to allow that parliamentary scrutiny of the board.

Ultimately, there is a disagreement between the Government, and the Conservative and Liberal Democrat Front Benchers on these matters. New clause 1 and associated Opposition proposals return us to the fundamental questions of the length of time for retention, and whether we achieve a balance for the protection of the community at large with the Government's proposals or with the Scottish model, as the hon. Member for Hornchurch proposes.

We believe that we have the evidence and the support, that we meet our legal obligations and that the six-year retention period-regardless of the seriousness of the offence for which a person has been arrested-will lead to the prevention of crime, and ultimately and accordingly to the solving of crimes. That is important, and we have taken that view very strongly. As the House will know from discussions in Committee, we believe that rapes, murders or manslaughter cases in England and Wales have been matched to the DNA database and the DNA profiles of individuals who have been arrested but not convicted of any crime.

I say to the hon. Members for Hornchurch and for Eastleigh that it is an issue of proportion.

Photo of Christopher Huhne Christopher Huhne Shadow Home Secretary 5:45 pm, 8th March 2010

Will the Minister tell me when he intends to answer my parliamentary question?

Photo of David Hanson David Hanson Minister of State (Home Office) (Crime and Policing)

The hon. Gentleman will have an answer to his parliamentary question as quickly as possible, but we need to check the information for him to ensure that what I say in the House is correct. However, in 2008-09, 79 rape, murder or manslaughter cases were matched to the DNA database, and 36 were found to have a specific and direct value to those investigations.

Photo of Christopher Huhne Christopher Huhne Shadow Home Secretary

It is very important that the House hears what the Minister just admitted. He admitted that the information on which he has been making his case has not been checked, which is why he has been unable to answer my parliamentary question.

Photo of David Hanson David Hanson Minister of State (Home Office) (Crime and Policing)

The hon. Gentleman is making it up as he goes along. I have told the House that I will respond to his parliamentary question in due course. When I do so, I want to ensure that I check that the information in my answer is sufficient to answer his question. I am telling House today that 79 rape, murder or manslaughter cases in England and Wales were matched to the DNA database, and that 36 were found to have a direct or specific value to those investigations.

Do not just listen to me. The president of ACPO, Sir Hugh Orde, has said that he believes that the database is of value in helping to secure criminal convictions, preventing crime, and in ensuring, as the right hon. and learned Member for Sleaford and North Hykeham said, that innocent people are acquitted of crimes, as they are on occasion. There is an honest disagreement between the Government, the Conservatives and the Liberal Democrats, which I suspect will be tested in a Division very shortly.

My hon. Friend the Member for Hendon proposes new clause 9, which forwards the underlying principle of independent oversight. As he is aware, we have given a commitment to look at the creation of an independent oversight role on such matters, which we are doing. I cannot accept his proposal today, but we are aware of the need for such oversight. We are considering whether to introduce amendments in due course to meet those obligations.

The Joint Committee on Human Rights is also behind proposed amendments 35 to 42, which would substitute the Government's proposals for a Scottish model. My arguments on that relate to those I made to the hon. Members for Hornchurch and for Eastleigh. We have had to make judgments on these matters, and I believe we have made them in support of crime prevention. I commend the Government amendments, but I ask the hon. Member for Hornchurch to withdraw his proposal, because I believe that it is not in the interests of the prevention of crime. The Conservatives are on the wrong side of the argument, and I hope the House rejects the hon. Gentleman's proposals should he not withdraw them.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

We have had an interesting debate on this important subject. The framing of today's debate with the publication of the Select Committee's report has been helpful in highlighting some of the issues, which were raised by the Chairman. It is interesting to note that the Committee did not support the Government's approach to the six-year retention period. The Committee believes that that is too long-much of the other evidence supports that-and argues for a three-year retention period. I note the points that the right hon. Gentleman made about the disproportionate impact on minority communities, and we will need to maintain our focus on that issue.

I respect the approach taken by Chris Huhne and the purity of his logic, although we see the need for pragmatism in striking the balance between the interests of citizens and protecting them from the risk of crime. I support the points that he made about the evidential approach that the Government have taken and the holes in their analysis.

Mr. Dismore set out clearly the problem of stigma that can occur in relation to the retention of a DNA profile and the impact that that might have on an individual. That stigma has been rightly highlighted in several cases, and the House will be concerned by the individual case that the hon. Gentleman brought up this afternoon and the tragic circumstances involved.

My right hon. and learned Friend Mr. Hogg makes the case in relation to a universal database, although I would mention the issues of cost and practicality. I take a different view when it comes to the benign nature of the state. I do not agree with the universal approach, but I do agree with my right hon. and learned Friend about the need for DNA forensics and proper cold case databases so that information can be matched speedily and effectively. It is an important detection tool, and he also mentioned the deterrent effect. Crime scene forensics and DNA records must be retained, so that they can be matched against DNA profiles taken on arrest for unconnected offences.

My hon. Friend Tony Baldry highlighted the issue of justice, and that is why we support the use of DNA forensics in the detecting of crimes and bringing perpetrators to justice. That overlaps with some of the points made earlier in the debate, but I am clear that the use of the DNA database should be for the detection and prosecution of crime and for no other purpose. A universal database of the kind that my hon. Friend suggests would be disproportionate, for reasons of cost and security. The Government do not have the strongest of records when it comes to keeping information safe, and that would be even more of an issue if the database were to be extended as my hon. Friend suggests.

I appreciated the support of my hon. Friend Mr. Cash in making the case for the basic period of three years and about the primacy of Parliament. He mentioned his concerns about the surveillance society, which is a wider issue albeit connected to several of the contributions we have heard in this debate.

I acknowledge some of the changes that the Minister has made following our discussions in Committee on oversight and the scrutiny by Parliament. He has also recognised the need to be able to take samples from visitors from overseas should it be discovered, once they are here, that they have committed serious offences overseas. I welcome the changes that the Minister has brought forward, but I return to the issue of balance and judgment. We must take a proportionate approach to the retention of DNA records for those who have never been convicted of an offence. We must respect the basic principle that someone is innocent unless proven guilty, and we must not discount the stigma that can be attached to someone if those principles are breached. Therefore, I wish to test the opinion of the House on new clause 1, and see whether we do in fact respect those fundamental principles that I and my colleagues hold dear.

Question put, That the clause be read a Second time.

The House divided: Ayes 185, Noes 264.

Division number 101

See full list of votes (From The Public Whip)

Question accordingly negatived.