Counter-Terrorism Bill

– in the House of Lords at 3:07 pm on 4th November 2008.

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Report received.

Clause 1 [Power to remove documents for examination]:

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism) 3:19 pm, 4th November 2008

moved Amendment No. 1:

Clause 1, page 2, line 19, leave out subsection (4) and insert—

"( ) A constable has the same powers of seizure in relation to a document removed under this section as the constable would have if it had not been removed (and if anything discovered on examination after removal had been discovered without it having been removed)."

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, before I speak on the detail of Amendment No. 1, I draw noble Lords' attention to the amendments which I tabled yesterday. These amendments deal with financial restrictions in relation to countries where money laundering, terrorist finance and the proliferation of weapons of mass destruction are a cause for concern. I apologise for tabling these amendments so late in the parliamentary process, but I hope that there will be ample time to debate and scrutinise them on day two of Report next Tuesday. My noble friend Lord Myners will deal with the detail of this issue in the Chamber next week. He has written to all Members who have taken part in the debate on the Bill so far, and he and his officials are happy to provide any further information that noble Lords may require in advance of that debate.

My approach to the Bill from the start has been to try to reach a compromise where possible on the various proposals. I have tried where possible to meet concerns expressed and to incorporate, where appropriate, all the excellent points made about the Bill, because it is important to deal with matters of national security consensually where at all possible. I have made compromises and adjustments where I could, and I am sure that as a result some of the provisions in the Bill will be in better shape when they leave the Chamber than when they came to it.

When I stand at the Dispatch Box, other Members of the House often ask me to remember that, although they might oppose something that the Government are doing, they have the welfare and safety of this nation just as much at heart as we do. I have always been very fulsome in my regard for that because I believe it to be true, but I also ask the House to remember that the Government are very interested in human rights and in looking after the freedom of individuals. That should also be acknowledged. We are not doing this to try to bear down on those things, and we do not take lightly some of the measures that we sometimes have to introduce. That is important to remember.

Amendment No. 1 is a small example of what we have done to compromise. During the debate on the provisions in Clauses 1 to 9 on the power to remove documents, a number of your Lordships expressed concern that Clause 1(4), although essential to the functioning of the power, could be drafted to be more readily understandable. At that point in the debate, I agreed to take the clause away and work with the parliamentary counsel to redraft the clause if at all possible.

Clause 1 is vital to the functioning of the power to remove documents, as it sets out the powers of seizure available to an officer after a document has been removed, examined and found to pass the threshold for seizure. Once a document is removed following the search of premises, the original seizure powers no longer apply because they exist only while the constable is actually on the premises. We therefore need a provision in the Bill to spell out that, where the reasonable belief test is met following examination of the document after it has been removed from the premises, a constable may indeed seize that document. That is what Clause 1(4) does.

Should an officer exercise one of the search powers in Clause 1(1) and find a document which he is not sure reaches the threshold for seizure, the power in Clause 1 enables him to remove the document to the police station or another place so that it may be examined further. Once back at the police station, the document is examined further and the officer realises that it is of interest. That is when Clause 1(4) kicks in. Were we not to have such a provision, the officer would not be able to seize the document. Instead, as a result of Clause 1(4), the officer has the same powers of seizure as he would if the seizure threshold were crossed when he exercised the initial search power.

We have not changed the functioning of this clause from the one that appeared in Committee. Rather, following the concerns that noble Lords expressed during that debate, we have tried to redraft it to be much more understandable. I beg to move.

Photo of Baroness Hanham Baroness Hanham Shadow Minister, Home Affairs

My Lords, I thank the Minister for his explanation. As far as I can see, a pair of brackets has been inserted in the clause. It still is not brilliantly worded, but, no doubt, someone will understand it. If they do not, they will have to ask, because the Minister's explanation is now on the record.

I also listened to his explanation on the proposed amendments to Clause 62 and onwards on money laundering. That will be handled by the noble Lord, Lord Kingsland, and I suspect that someone has written to him with an explanation of those clauses.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson in the Lords, Home Affairs

My Lords, we appreciate the Minister's comments on his wish to work consensually. On 13 October, we felt that our role as opposition parties was treated very badly in the Home Secretary's announcement. Throughout the conduct of this Bill through this place, the Minister has not given rise to any of those feelings and we are grateful for that. The fact that further concessions still are being made to make the Bill more reasonable and more workable is meaningful.

The Minister has referred to the large amendment to be introduced by the noble Lord, Lord Myners, and his department. We are already grateful that the Treasury has seen fit to concede that reports should be made to Parliament and has included that in its report following discussions with us. There may be further useful amendments, which we will discuss at the time. However, I have to put on record that it was pushing procedure to the limits to introduce something so large at such a late date. It is lucky that it will be debated next week and not this week.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

My Lords, perhaps I may add to what my noble friend has said on the Minister's preamble. I give notice that we are particularly concerned at the rather extraordinary extension of jurisdiction in paragraphs 32 and 34 of the proposed new schedule, and the extraordinary time limits to be imposed under paragraph 35. I say that because the Minister did not indicate that anyone with a legal background would deal with this when it comes before us next week.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, I should like to express my appreciation for this amendment. It is a considerable improvement. Certainly, it does not in any sense alter the underlying idea behind the clause as it was originally drafted. Clarity of this kind is always to be appreciated.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, I thank the noble and learned Lord for his input. In response to the noble Baroness, Lady Hanham, as I understand it a note will go to the noble Lord, Lord Kingsland, and to the noble Baroness. I will make sure that that will happen. A very large body of amendments came out yesterday, which we will leave for one week, as is required. They did not come out until yesterday because I wanted to be absolutely certain that there was no other way to do this. It seemed to be a rather bad way of doing things, but I believe that there is a requirement for this to be done and that there seems to be no other way to achieve it. It took some time to work that out—over a weekend—and to be absolutely certain, for which I apologise. It will be debated next week and I hope that all noble Lords will have a chance to look at it and see the detail.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, I thank the noble Lord for his first remarks, which were generous and in stark contrast to those of the noble Lord, Lord Myners, on the previous Question—perhaps that is a bit unfair. I do not know whether this is possible, but Amendment No. 61A goes on for pages. Normally with legislation of this length one would have a Second Reading, Committee and Report stages, and a Third Reading. Would it be possible to recommit this new clause either on the same day or possibly a day earlier so that it can be considered through all the stages? Technically I believe that one can recommit certain parts of a Bill, and that it has been done before. I do not know what others think about that suggestion, but this is a very long addition to the Bill.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, I do not think that I can say we would do that. We have now given more than seven days for the amendment to be looked at and there is an opportunity for considerable discussion. Moreover, my noble friend Lord Myners is available to discuss these issues with any noble Lord who wishes to talk them through, and he will write. I realise that this is not ideal, but, as I have said, it is an important point. I believe most noble Lords agree that it needs to be done; it is really a question of how it is done. I think, therefore, we need to move forward in this way. Again, I apologise for the lateness, but I wanted to be absolutely certain that there was no other way of doing it, and that is why it has arrived like that.

On Question, amendment agreed to.

Photo of Baroness Hanham Baroness Hanham Shadow Minister, Home Affairs 3:30 pm, 4th November 2008

moved Amendment No. 2:

Before Clause 14, insert the following new Clause—

"National guidelines on fingerprint and sample database

(1) The Secretary of State shall by regulations publish national guidelines for governmental agencies establishing—

(a) a procedure by which a person can request a statement of what information relating to fingerprints and samples is held on them or on a dependent;(b) a procedure by which a person can request that such information held on them or a dependent is destroyed (c) the circumstances in which a request under paragraph (b) may be refused.

(2) If a request made under paragraph (1)(b) is refused under paragraph (1)(c), the relevant agency shall write to the person setting out why such information will not be destroyed and when such circumstances as prevent it being destroyed may no longer apply.

(3) In drawing up guidelines under subsection (1), the Secretary of State shall consult such bodies as he thinks appropriate.

(4) Regulations under subsection (1) shall not be made until a draft copy is laid before, and approved by resolution of, both Houses of Parliament."

Photo of Baroness Hanham Baroness Hanham Shadow Minister, Home Affairs

My Lords, we had an interesting debate in Committee on the retention of samples such as fingerprints and DNA. The Minister kindly followed that up with a comprehensive letter which included a fact-sheet compiled for the police on the retention and use of such samples. As I indicated in Committee, I was not particularly reassured by the Minister's answers, and therefore I return today with the second of the two amendments I tabled at that stage. The aim of this amendment is to try to spark a national debate about the retention of samples and to inform the public about what information is being held on them.

This amendment would require the Secretary of State to draft and lay before Parliament regulations governing the procedures by which people can discover what information is held about them and under what circumstances a request can be made by them to have samples taken during an investigation by the police destroyed. As we will see, there is no transparency in the current situation and the dice are severely loaded against innocent people being able to ensure that their most personal details are not kept indefinitely following their exclusion, either by a court or following a decision that there is no reason for them to be involved further in any inquiry. No one disputes the value of DNA and fingerprint information in identifying criminals and possibly terrorists, and that it has and will continue to make a useful contribution in pursuit of identifying and bringing to justice perpetrators of crime and terrorism. However, there is wide concern about the retention by the police of information on samples taken from a wide range of people during their inquiries which is then retained indefinitely on the police national computer. The provisions in this Bill add to those already in PACE 1984 and, as we now know, this legislation can be used to justify action over a wider range than counterterrorism purposes.

Few innocent people will resent helping the police by giving samples whether they are innocent at the time or subsequently found to be, but they question, as we do, the justification for their personal identification material being held and for it to be difficult to find out how they can have it removed from the police national computer. There is an additional factor in that such information can now be transferred to other EU countries. The general assumption in those countries is that anyone whose details are held on the database is guilty or at least suspected of being associated with crime. Transparency is needed.

The Minister was kind enough to identify where the current guidelines on the retention of DNA are set out, but their title, "Retention guidelines for nominal records on the police national computer", has clearly not been chosen with transparency in mind. However titled, they certainly did not pop up in a sample search of the internet; rather, they appeared on the website of the Association of Chief Police Officers and are, apparently, only for the guidance of the police. Members of the public would find it extraordinarily hard to make any headway through this maze.

The guidelines are deeply worrying and make clear just how high a barrier the Government have imposed on DNA and fingerprint information ever being destroyed. The initial response to a request for destruction is an automatic refusal. The guidelines state:

"In the first instance applicants should be sent a letter informing them that the samples and the associated PNC record are lawfully held and that their request for deletion/destruction is refused".

But the chief police officer is then recommended to check with the DNA and Fingerprint Retention Project if the applicant persists.

Appendix 2 makes it clear that, while the chief police officers have the discretion to authorise deletion of any specific data, it is,

"suggested that this discretion should only be exercised in exceptional cases".

It then goes on to say:

"Exceptional cases will by definition be rare".

Indeed they will be rare, for the case study given of when DNA information might be suitable for destruction is almost laughable. It is that if the police arrest every occupant of a building for murder following the discovery of a dead body and forcibly take DNA samples, but then discover that the dead body in fact died of natural causes and that no crime has been committed. That is then considered sufficiently a case where, possibly, DNA samples—taken from entirely innocent people—might be destroyed. The number of similar cases will not be enormous.

In responding to similar amendments in Committee on 9 October 2008, at col. 384 of Hansard, the Minister prayed in aid to his conclusion that the retention of all samples taken helped identification in other criminal inquiries that some 8,500 individuals had been matched—he did not say in what timescale—with DNA taken from crime scenes involving some 14,000 offences which, he said, included more than 100 murders and attempted murders, 116 rapes, 68 other sexual offences and a number of other serious crimes.

A briefing from GeneWatch in June this year drew attention to these or similar figures raised in a speech by the Prime Minister. It asked where the figures came from and pointed out that DNA matches are not successful prosecutions and that many matches occur with the DNA of individuals who are not perpetrators of crime. Only some matches, known as DNA detections, lead to someone being prosecuted for a crime and,

"it is not possible to provide figures for the number of convictions produced by DNA".

The first annual report in April of this year of the Ethics Group of the National DNA Database, a body set up by the Government, made 11 recommendations. They are all important but I shall not worry the House with them. However, for today's purposes I shall draw attention to four of them as they are laid out in the report. Recommendation B states:

"For those members of the public who are believed to be innocent at the time of sampling and voluntarily donate their DNA to help the police with their enquiries, the presumption should shift to an expectation that these samples will be used only for the case under investigation, that the profile will not be loaded onto the NDNAD, and that the samples and all data derived from them will be destroyed when the case has ended".

Recommendation C says:

"There should be a specific consent form for competent adults who are not suspected of the crime under investigation when they agree to give a volunteer DNA sample".

Recommendation G is:

"A clearer, simpler and less cumbersome process needs to be put in place to enable those who wish to appeal against the decision of a chief constable to retain their DNA profile on the NDNAD", the National DNA Database. Recommendation I states:

"Consideration should be given to further public clarification of the role of the NDNAD and reinforcement of the message that it is intended only to be used for criminal intelligence".

The Minister agreed during Committee that a debate surrounding all this was needed. We believe that our amendments today would give that opportunity. Regulations laying out the guidelines on the whys, wherefores and means of DNA and other samples being either retained on or removed from the police national computer that are clear, explicit and user-friendly are long overdue. Changes to the whole system during the passage of the Criminal Justice Act in 2001, which turned the assumption of the destruction of DNA at the end of a case into the assumption of retention, upset the presumption of innocence. The balance at present is not in favour of the innocent.

Endless justifications may be put forward by those who believe that the current use of the database is too restricted and should be widened into one that is universal. However, it is perhaps now time to listen to the voices of those in favour of the current situation, and of those who are frankly appalled by the possibility of having their identifying materials held indefinitely by the police, and, with their aid, come to a balanced judgment. The Government's justification for their current policy needs to be properly scrutinised. I beg to move.

D

For more details on "Retention guidelines for nominal records on the police national computer" and how these affect DNA retention see http://www.theregister.co.uk/2008/01/07/delete_your_dna_prof...

Just to see the flowchart explaining the whole process see http://gizmonaut.net/blog/innocent/innoncents_are_exceptiona...

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Submitted by David Mery

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson in the Lords, Home Affairs

My Lords, we supported this amendment in Committee when the noble Baroness, Lady Hanham, made an outstanding case for why the Government should listen seriously to the amendment. She has made an even stronger case today for this amendment, which we will support. It is a moderate amendment; it requires nothing other than national guidelines on the issue. That is why it is particularly surprising to us on these Benches that the Government have not felt able to move in the direction of issuing such guidelines and including this sensible amendment in the Bill.

The noble Baroness has laid out eloquently why it needs to be done. I simply add that the increase in fingerprints and DNA taken from innocent individuals, from people volunteering after a crime has been committed, has been extraordinary over the past decade. The Government must recognise that, to keep public confidence in the system, continue to protect the innocent and, as the noble Baroness said, work on the presumption of innocence, the very least they could do is accept this moderate amendment.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, I confess that I am puzzled by what the noble Baroness, Lady Hanham, said. I quite understand that if I give my DNA voluntarily to eliminate me because I was in the house, so that no one suspects me, I should be entitled to have it destroyed. As I read it, however, proposed new subsection (2) is an absolute obligation to destroy all DNA unless you give a reason to the contrary. The noble Baroness shakes her head, but the amendment states:

"If a request ... is refused ... the relevant agency shall write to the person setting out why such information will not be destroyed".

As I understand it, that would apply to any request, including that made by a suspect who had not yet been charged because the police had not concluded their investigations—albeit that they had perhaps had to let them go to sleep until more information came out—and not by any means to the innocent or non-charged person to whom she referred. That seems very worrying.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism) 3:45 pm, 4th November 2008

My Lords, the inclusion of DNA profiles on the National DNA Database and the retention of fingerprints do not indicate either innocence or guilt. These databases are used by the police to provide intelligence leads on the possible identity of the offender by matching the DNA taken from a person with the DNA at or collected from the scene of a crime.

We are legislating in Clauses 14 to 18, first, to put a counterterrorism DNA database on a firmer legal footing; secondly, to allow fingerprints or samples taken under the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence (Northern Ireland) Order 1989 to be used for national security; and, thirdly, to make it easier to allow fingerprints or samples taken under the Terrorism Act 2000 to be placed on the National DNA Database.

The amendment would require the publication of national guidelines by the Secretary of State on the operation of the National DNA Database and ultimately the counterterrorism DNA database to which Clauses 14 to 18 refer. The guidance would include a procedure for requesting information held on the database and for requesting the destruction of any information held. I shall resist the amendment as such procedures already exist with regard to samples held on the National DNA Database. I shall set out my reasons for this first, before explaining why I resist the amendment, with reference to samples held on the counterterrorism sample database. I hope that it will illustrate some of the transparency referred to in the debate.

The amendment requires guidelines on requesting information about the fingerprints and samples held. Access to information held on an individual is regulated by the Data Protection Act. Under that Act, an individual can ask the police what information they hold on them. Information on how to make a subject access request can be obtained from a local police station or through the force's website. The Information Commissioner provides independent oversight of data protection issues, including the retention and use of fingerprints and samples. Given this established system, it seems unnecessary to require an additional set of national guidelines to be published.

I turn to the destruction of samples held on the National DNA Database. The Criminal Justice and Police Act 2001 amended PACE to remove the requirement on the police to destroy samples and fingerprints taken from people who had been acquitted or against whom charges had been dropped or not proceeded with. The amendment in the 2001 Act arose from decisions in the Court of Appeal relating to two cases where compelling DNA evidence that linked one suspect to a murder and another to a rape could not be used and neither man could be convicted. This was because, at the time when the matches were made, both defendants had either been acquitted or a decision made not to proceed with the offences for which the DNA profiles had been taken.

The Criminal Justice Act 2003 then amended PACE so that samples and fingerprints could be taken and retained before charge from persons who had been arrested on suspicion of involvement in a recordable offence. Prior to that, DNA samples could be taken only from a person who had been charged with, informed that they would be prosecuted for, or found guilty of having committed a recordable offence.

Only chief officers have the discretion to decide whether to remove records from the police national computer or other databases such as the National DNA Database. The matter of discretion is an operational one for the police force involved.

The Association of Chief Police Officers has issued guidance for chief officers on the consideration of applications from individuals for the removal of personal information, including DNA samples, from police records. The guidance, known as the "Exceptional Case Procedure", is incorporated in ACPO's Retention Guidelines for Nominal Records on the Police National Computer and will help to ensure national consistency regarding retention and deletion. It has been published on the ACPO website. It provides a business process for chief officers to follow when considering applications for the removal of records. The guidance makes it clear that it is expected that records and profiles that have been taken lawfully will be removed in exceptional cases only. The norm will therefore be to retain the profile and associated sample. However, each case has to be considered on its merits. What constitutes exceptional circumstances is ultimately a matter for the individual chief officer. The guidance states:

"Exceptional cases will by definition be rare. They might include cases where the original arrest or sampling was found to be unlawful. Additionally, where it is established beyond doubt that no offence existed, that might, having regard to all the circumstances, be viewed as an exceptional circumstance".

Only profiles and samples obtained in relation to terrorism and terrorism investigations will be held on the CT DNA database. A proportion of the database will contain samples recovered by covert and surveillance means, which have been obtained lawfully and with proper authorisation for the purposes of counterterrorist investigation and national security. Covertly obtained samples will account for approximately 2 to 5 per cent of the data on the counterterrorism database. Current operational activity indicates that no more than a few hundred samples per annum will be recovered and retained on the database.

In order to protect counterterrorism investigations and national security from compromise, we would not wish to make the covertly acquired contents of the database public knowledge. Disclosure of who is held on this database would create a serious risk of compromising these investigations. Individuals who are under investigation would find this out and investigations would be compromised.

I have made clear the procedures already in existence on the retention, use and destruction of fingerprints and samples. We are debating not the principles but the procedures. I know that there was talk of a much larger debate on DNA, but I do not think that this is the time to have that debate. There will have to be another opportunity for that. We can open up all sorts of issues. For example, the noble Earl, Lord Ferrers, said when we last debated this that he could see no reason why any innocent person would be concerned. This matter throws open all sorts of issues and that debate is beyond the context of the narrow provisions in the Bill.

I firmly believe that national guidance of the type prescribed in the amendment is unnecessary; indeed, it would be extra bureaucracy. Information on how to obtain details of what information the police hold on an individual and the ACPO guidelines on the retention, use and destruction of fingerprints and samples are already publicly available. However, I take the point made by the noble Baroness, Lady Hanham, that this is somewhat convoluted. When I looked for myself, I saw that it was not as straightforward as it perhaps should be. I very much recognise the importance of clarity for the public on these matters and so I will ask my officials to work with the relevant bodies to ensure that the guidance is much more easily accessible, through pop-ups or whatever, for members of the public. On that basis, I ask that the amendment be withdrawn.

Photo of Baroness Hanham Baroness Hanham Shadow Minister, Home Affairs

My Lords, I am grateful to the Minister for rereading the ACPO guidelines, which I mentioned. However, we are perhaps missing the point entirely. The purpose of the amendment is to ensure that anyone who is on the database has access to guidelines that will tell them how to get off the database. There is only one way of getting off it at the moment, according to the ACPO guidelines, which is to be involved in a case in which you have been accused of murder but it transpires that the dead person died by some other means. That is not a happy example; there may be better ones.

The principle goes back to what the noble Baroness, Lady Miller, and I said. Those who are innocent should not be on any database. They should not be under the eye of the law of this country. They are innocent. They have no truck with the law and their DNA should not passed to Europe for whatever reason simply because it is a chunk of information that the police hold.

The Information Commissioner is there for data protection. He is not there to tell people how to get themselves off a database that they should not be on in the first place. I do not think that that will help us at all. I do not think that further clarity on the ACPO guidelines will help us either. All that says is that it will take an absolutely extraordinary exception to get off the database.

I do not know—I suspect that many do not know—what the public believe is the situation. Like the noble Viscount, Lord Bledisloe, I suspect they think that if you have had your DNA and fingerprints taken but are found innocent and cease being involved in any sort of criminal inquiry, that will be the end of it, the material will be gone, finished, over. But it is not gone, finished or over by any means. You are still on that database. If you cannot remain tranquil, calm and unaffected about it, you will get very mad indeed in trying to get yourself off it.

The Minister says that these clauses are to do with counterterrorism and the counterterrorism database but, as we know from the asset-freezing provision, one bit of legislation can be used for any other purpose. It can be used in any way, so that a bit of database information taken for police inquiries can be used in conjunction with another inquiry. That is no way out at all.

We need a proper discussion. We need proper guidelines for the public and for those who are involved. I do not know, but my fingerprints may be all over a database. If that is the situation I would like to know, and I would like to get off it. I would like to know how to do so, but the fact is that I do not. We need a major debate on this so that people can understand the situation. For the moment, however, we need to have proper and clear guidelines on how to make an application to get off the database in reality and not only in exceptional circumstances. I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 161; Not-Contents, 150.

Division number 1

See full list of votes (From The Public Whip)

Resolved in the affirmative, and amendment agreed to accordingly.

Clause 18 [Material not subject to existing statutory restrictions]:

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson in the Lords, Home Affairs

My Lords, we are bringing this amendment back because, on reflection, and having read the Minister's reply to the points we raised in Committee, we are not happy that Clause 18(4) is so widely drawn. We wonder why the provision that,

"the reference to crime includes any conduct that ... constitutes a criminal offence" and so on, is necessary. We can understand that position as regards the UK, but my question in Committee was: what about crimes committed in another country, which this subsection encompasses, that are not crimes in the UK? I invited the Minister to give examples of situations in which information might be held on an individual who had committed a crime in another country which was not a crime here—for example, the consumption of alcohol.

The Minister's reply related mostly to terrorism, which is internationally recognised as a crime; but I had hoped to draw out why the Government had chosen such a wide definition of criminal offences in the Bill, including those that would certainly not be crimes in the UK. By tabling the amendment again, I hope that the Minister will answer in a way that I can understand and give some of the examples that I had asked for. We left it open for more information to be given between Committee and Report, but we have not received any. I would like that information to be put on the record. I beg to move.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, the provisions on the retention and use of fingerprints and samples have three objectives: putting a counterterrorism DNA database on a firmer legal footing, allowing fingerprints or samples taken under the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence (Northern Ireland) Order 1989 to be used for national security, and making it easier to allow fingerprints or samples taken under the Terrorism Act 2000 to be placed on the National DNA Database.

Clause 18 puts the retention and use of DNA and fingerprint material that is not currently subject to statutory restrictions on a statutory footing, permitting law-enforcement use for certain purposes. Those purposes are: the interests of national security; purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution; and purposes related to the identification of a deceased person or of the person from whom the material came. I must make it clear that these provisions do not—I repeat, do not—create any new powers for the covert acquisition of fingerprints and samples.

Included in the samples covered by Clause 18 are those obtained covertly under Part 3 of the Police Act 1997 and Part 2 of the Regulation of Investigatory Powers Act 2000. The use of the powers in those Acts is subject to numerous safeguards and oversight. Covert and investigatory powers can be used only when they are necessary and proportionate with regard to human rights. Independent oversight is exercised by the Office of Surveillance Commissioners, the OSC, which conducts regular public authority inspections that are reported to the Prime Minister, and produces annual publications of its findings.

Anyone who believes that they have been the victim of unlawful, covert surveillance or any other investigatory powers set out in RIPA can apply to an investigatory powers tribunal to investigate their claim. The tribunal is independent of government, law enforcement and intelligence services. Statutory codes of practice provide guidance on the use of covert investigatory powers, including surveillance, and the Home Office is currently revising the covert surveillance code of practice. The OSC also provides advice during its regular inspection visits to public authorities.

As has been said, these amendments refer to the use of samples covered by Clause 18 for the prevention or detection of crime. Clause 18(4)(b)(i) covers offences under UK law or the law of another territory. Clause 18(4)(b)(ii) covers conduct that is, or corresponds to, conduct which, had it taken place in the UK, would have constituted an offence.

The definition in this Bill has been in operation under Section 64(1B)(d) of the Police and Criminal Evidence Act since 2001, when it was amended by Section 84 of the Criminal Justice and Police Act 2001. Since that change, there have been no challenges to the provision. The definition can also be found in the Police and Criminal Evidence (Northern Ireland) Order and the Terrorism Act 2000.

There are two reasons why the definition must remain as currently drafted: first, there is an operational need to share samples internationally to tackle crimes such as drug trafficking, people smuggling and terrorism; and, secondly, for the purpose of uniformity, which enables the most effective and efficient use of retained samples.

Sub-paragraphs (i) and (ii) of Clause 18(4)(b), to which these amendments attach, provide the definition of crime for the purpose of these clauses. When this amendment was tabled in Committee, I made the point that the definition as currently drafted is essential for the most efficient use of fingerprints and samples. The definition must remain the same if we are to be able to counter the national and transnational threat of crime and terrorism. The effect of this definition is that the police can share fingerprints and samples internationally to aid terrorist and criminal investigations of crimes committed in the UK or abroad.

The threat of terrorism and crime requires both national and transnational multi-agency co-operation. It is important that we are able to share our data with national and international partners so that we can properly protect our national security and investigate crimes of an international and serious nature, such as drug-related crimes. The definition of crime at Clause 18(4)(b)(i) is so drafted to maximise international co-operation in circumstances where there is a serious criminal offence abroad. I shall explain the process by which samples covered by Clause 18, to which the amendment applies, may be shared internationally.

A request from a foreign partner would be submitted to the police to cross-check a sample with one held here. Initially, given the sensitivity of the samples covered by Clause 18, the police would treat the request with caution and, unless they considered it a valid request for a check regarding a particularly serious crime, it would be denied. There is no requirement to share these samples. Should the request pass this stage, a check may be done against the samples covered by Clause 18. It must be remembered that the number of samples covered by Clause 18 is very limited. Where a sample is shared with a foreign partner, it is completely anonymised. Therefore, if it is a fingerprint, the foreign partner receives only an image of the fingerprint and none of the biographical detail, the status of the sample or its provenance. Where it is a DNA sample, the foreign partner will receive a string of numbers—again, stripped of the biographical detail, status and provenance. Should the foreign partner subsequently find a hit against the shared sample, it would have to return to the police to request any of the sample's biographical information, status and provenance, and a decision would then be taken as to whether to reveal that information.

The decision to share samples internationally is discretionary and is taken by the police. Given the nature of the samples covered by Clause 18, the decision is given considerable thought.

There are safeguards against the abuse of samples held subject to Clause 18. In line with his existing powers, the Information Commissioner will provide independent oversight of the database with regard to data protection issues. Additionally, the Metropolitan Police Service will liaise with the newly appointed Forensic Science Regulator to establish protocols for international exchange of DNA data. Working with the Custodian of the National DNA Database, the MPS will ensure compliance to standards it has set, which are accepted and adhered to by forensic laboratories.

The definition of crime in Clause 18(4)(b) is the same as that in Section 64(1B)(c) of the Police and Criminal Evidence Act 1984, Article 64(1B)(c) of the Police and Criminal Evidence (Northern Ireland) Order 1989 and paragraphs 14 and 20 of Schedule 8 to the Terrorism Act 2000. In those statutes and in this Bill a crime is defined as a criminal offence under the law of the UK or of a country or territory outside the UK.

It is vital that the definition of crime remains the same across those pieces of legislation and in the Bill we are debating today. Such a uniform definition is fundamental to the efficient use of fingerprints and samples. As long as fingerprints and samples are obtained legally and retained legally, their subsequent use for the prevention and detection of serious crime must be of the utmost importance. As I have already said, samples are shared internationally only for the most serious crimes and where this definition has been in operation since 2001. The number of requests received from all other countries to check profiles from unsolved serious crimes or for the identification of an unknown deceased person believed to be a United Kingdom national for the year 2007-08 is 727.

It would be an anomaly for the definition in this legislation not to remain the same as that in other legislation concerning the retention and use of fingerprints and samples. What is more, given the nature of the samples held on this database, the ability to share them during investigation of the most serious crimes is likely to be of great utility to the United Kingdom as we work to build up a clearer picture of the criminal and terrorist networks which entwine and span the globe. It is important to remember that the number of samples covered by Clause 18 is very small. The number of officers who have access to those samples is limited and all are subject to stringent vetting processes. The samples subject to Clause 18 will be classified as secret and, as such, they will be closely guarded. Where these samples are shared internationally, it will be only for the most serious offences, in the very limited circumstances I have set out and subject to anonymisation.

We can all agree that it will be in the national interest to bring to justice those who have committed the most serious offences and we must do all we can to assist in that. I can state absolutely categorically to the noble Baroness, Lady Miller, that such material would not be used in regard to drinking or other very minor crimes in this country. Historically, that has not been the case. I hope the noble Baroness is able to withdraw her amendment.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson in the Lords, Home Affairs 4:15 pm, 4th November 2008

My Lords, I thank the Minister for that very helpful and full reply. He set out the guidelines, when they will be revised, how they will be applied and police attitudes generally to this legislation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]