Clause 14

Counter-Terrorism Bill – in a Public Bill Committee at 4:45 pm on 29th April 2008.

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Material subject to the Police and Criminal Evidence Act 1984

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I beg to move amendment No. 84, page 10, line 8, leave out ‘or samples’.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

With this it will be convenient to discuss amendment No. 86, in clause 15, page 11, line 7, leave out ‘or samples’.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

These amendments were also tabled by my hon. Friend the Member for Newark. They are simply probing amendments to gain an understanding of what the word “samples” encompassed in the two clauses. I think that I know the answer, but if the Minister would like to explain the matter to the Committee, I am sure that my hon. Friend would be pleased to hear his response.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

Certainly, in the original amendment paper—I am sure that it has been corrected—when amendment No.86 was first tabled, it referred to clause 14 rather than 15. I am not too sure—

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

The two amendments refer to the identical phrase in the two clauses.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

Clause 14 makes amendments to the Police and Criminal Evidence Act 1984 and Clause 15 makes amendments to the Police and Criminal Evidence (Northern Ireland) Order 1989 to allow samples obtained under PACE to be checked against samples that are

“held by or on behalf of the Security Service or the Secret Intelligence Service.”.

In this case, “samples” means DNA samples derived, for example, from saliva, blood or swab. Most of what I read out as referring to samples and swabs came from the definition in the explanatory memorandum.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Does that include intimate samples? I rather assumed that it did, but the Minister can doubtless put me right on that.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I certainly assume that it does, unless someone tells me otherwise, which they may during the course of my deliberations. However, that was certainly my understanding. Having said that, I have discovered in the past that inspiration does come if one stands around for long enough.

By amending PACE and its Northern Ireland equivalent, these clauses will allow such samples to be checked against samples that are

“held by or on behalf of the Security Service or the Secret Intelligence Service.”.

To facilitate this cross-checking, the clauses change the purposes for which PACE samples can be used, adding simply “national security”.

For example, if the police take a sample from an individual as part of an ordinary criminal investigation, that sample will be retained on the national DNA database, as we have just been discussing, where the uses to which it can be put are regulated by PACE. If a sample is subsequently taken covertly by the security services during a terrorism investigation, but they are unable to identify to whom the sample belongs, the current law would not permit the security services to check the national DNA database. Whatever one’s view of the DNA database, with regard to retention of data  and all the other issues that we have discussed, clearly that is a position that should not prevail.

The clauses will rectify that situation and allow the security services to undertake a cross-check to obtain the necessary personal information that will enable them to continue their investigations. In terrorist investigations, where it is vital to construct the network to those involved with terrorist organisations, the ability to make such a cross-check routinely will be invaluable.

The two amendments would amend the two clauses by removing reference to “samples” in PACE and its Northern Ireland equivalent. That would mean that there will be no provision for checking of DNA samples obtained under PACE against police records or databases, as is the case at present. It would also mean that the checking of DNA samples obtained under PACE against records held by the security agencies, which is the entire purpose of the clauses, would not be provided for.

Clearly, it would not be in the interests of effective investigations to remove provision for the police to check DNA samples against their databases or against the records held by the security services. That situation would be particularly peculiar because the amendments would not remove the provision for the police to cross-check fingerprints and footprints against records held by the security agencies, but, because of the use of the word “samples”, they would remove the ability of the police to cross-check DNA samples.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

In a desperate attempt to stop the Minister’s flow, I am intervening. Actually, I have a serious question—well, I do not know if it is a serious question, but I shall put it. Does the act of the police checking the evidence base held by the security services against the police evidence database, incorporate the evidence held by the security services into the body of evidence that is subject to PACE? Does PACE apply to the evidence held by the security services?

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I do not think so because the security services hold such evidence for entirely different reasons. PACE is very clearly outlined in the regulatory framework within which an individual is taken through the charge and subsequent process. It relates to the level and quality of evidence in the evidential chain and other elements. Unless somebody tells me otherwise, I struggle to see why PACE should apply to that interchange in use from the security services’ database, unless it is subsequently used in the courts by the police. That would be unusual, but under such circumstances, PACE would cover it. Perhaps the hon. and learned Member for Beaconsfield has an answer.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

A better point at which to debate this issue might be when we come to material not subject to existing statutory restrictions. The point raised by the hon. Member for Somerton and Frome is whether material held by the security services may be adduced in evidence in a criminal trial. That raises a host of interesting issues, such as the possible disclosure of how such material was obtained. We can deal with those issues in a moment, but I think that I have understood his point, which is an important one. However, the appropriate time at which to raise it is during our discussion of clause 18.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I am afraid that the hon. Gentleman will have to do much more than that to stop me reading my notes. I think that I have responded to his point, not least by saying that the utilisation of the security services’ data in any public court would lend them to coverage by the rules of evidence and PACE. That is why it is more likely than not that such evidence would not be used, except in exceptional cases and there have been such cases.

Because I have had inspiration, I can now confirm the point from the hon. and learned Member for Beaconsfield that “sample” covers intimate and non-intimate samples, as we had all assumed. However, unlike in our previous discussions, the clause does nothing to add to the ability to take samples. The measure is about sharing that data and information and must, in the perfectly reasonable way that I put it, make sense to everybody. Clearly, it will be greeted with acclamation and the amendment will be withdrawn.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The amendment will indeed be withdrawn and we can continue the debate under subsequent groups of amendments. I am grateful to the Minister for answering my main question on the scope of the word “sample”. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I beg to move amendment No. 62, page 10, line 37, leave out paragraph (a).

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

With this it will be convenient to discuss the following amendments: No. 85, page 10, line 37, leave out ‘national security’ and insert

‘preventing an offence with a terrorist connection’.

No. 63, in clause 15, page 11, line 36, leave out paragraph (a).

No. 87, in clause 15, page 11, line 36, leave out ‘national security’ and insert

‘preventing an offence with a terrorist connection’.

No. 64, in clause 17, page 12, line 29, leave out from beginning to ‘or’.

No. 65, in clause 18, page 13, line 13, leave out paragraph (a).

No. 88, in clause 18, page 13, line 13, leave out ‘national security’ and insert

‘preventing an offence with a terrorist connection’.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

We now come to the issue of national security, which features in more than one of the subsequent clauses. As the Minister is aware, I have sought to delete the words “national security” from a number of places. I emphasise that this is a probing amendment. It is, nevertheless, a rather important one for reasons that I will explain briefly.

The Bill is about counter-terrorism, so it is ultimately about the prevention or detection of crime, which, as the Minister will see when he looks at clause 14, features clearly in the words in proposed new subsection (1AB), which refers to

“purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution”.

That covers not just the investigation of a crime after it has been committed, but the prevention of a crime before it is committed.

I believe the Minister will have little difficulty agreeing that, in the scope of counter-terrorism work, it is not immediately obvious what difference there might be between the interests of national security and the prevention of crime, because one would have thought that the sort of activity that takes place in the interests of national security is the prevention of crime, quite apart from its detection afterwards. I do not think that the Committee can simply gloss over the question of what other than the prevention or detection of crime, or, for that matter, the identification of a deceased person, is covered by the ambit of national security.

The term “national security” has a legal definition. It covers the scope of the activities of the security services and the Secret Intelligence Service. The Committee is entitled to ask the question, because I suspect that activities that previously have been conducted—I am mixing my metaphors—on the wrong side of the blanket, if one talks about conception, are now being brought to the right side of the blanket, and things that previously simply did not have a statutory framework at all are now being given one. If they are to be given a statutory framework, the Committee must ask exactly what it will be.

For example, is it being suggested that fingerprints, impressions of footwear or samples, however they may be treated in the different clauses—the amendments do not apply only to clause 14—can be used to protect the economic interests of the United Kingdom? What is the scope to which national security will apply for those purposes? That is the nub of the question that I wanted to ask the Minister.

Let us consider some of the later clauses to which the amendments would make deletions. Amendment No. 65 would amend clause 18, which deals with material not subject to existing statutory restrictions. The clause states:

“This section applies to...DNA samples or profiles, or...fingerprints, that are not held subject to existing statutory restrictions.”

I must assume that, in essence, that is security services and SIS material collated by from time to time taking DNA samples from possible suspects whom they have under surveillance in one form or another.

The clause goes on to state:

“Material to which this section applies that is held by a law enforcement authority in England and Wales...may be retained by that authority and used—

(a) in the interests of national security”.

That appears simply to be putting on a statutory footing what I suspect has already been happening, but perhaps the Minister would like to confirm that that is indeed the case.

I will leave until consideration of the detailed amendments to clause 18 itself the discussion of the counter-relationship, which is using material from the  SIS and the security services to bring a prosecution. We touched on that, but the proper place to consider it will come later.

I hope that I have made my main point clear to the Minister. The amendments centre around the definition of national security. An understanding of that as we start our consideration of the clauses would help the Committee to understand what we are in fact making legal for the future that was not previously covered by any legal framework whatever.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office 5:00 pm, 29th April 2008

The provisions on the retention and use of fingerprints and samples have three broad objectives: first, putting a counter-terrorism DNA database on a firmer legal footing; secondly, allowing fingerprints or samples taken under PACE or its Northern Ireland equivalent to be used for national security, as the hon. and learned Member for Beaconsfield implies; and thirdly, making it easier to allow fingerprints or samples taken under the Terrorism Act 2000 to be placed on the national DNA database.

The amendments concern the second of those objectives. As the hon. and learned Gentleman said, they propose the removal of the provisions in these clauses to add national security to the permitted uses of samples obtained under PACE or PACE (Northern Ireland) and those covered by clause 18. As he said, amendments Nos. 85, 87 and 88 propose an alternative to including national security, which is to include

“preventing an offence with a terrorist connection.”

As he rightly said, “national security” is broadly defined in section 1(2) of the Security Service Act 1989. When Lord Carlile was before us last week, he said:

“It is very difficult to define exactly the concept of national security. The security services certainly have a need to share information, as do other control authorities, which is the generic term that I use for the police, the security services, Revenue and Customs and so on...I believe that any information that is potentially useful in the prevention and detection of terrorism should be shared by appropriate bodies. If that requires placing it on a statutory footing, again, I have no possible objection. I would support it.”——[Official Report, Counter-Terrorism Public Bill Committee, 24 April 2008; c. 118, Q313.]

That is what the reference to national security in these clauses does.

As the hon. and learned Gentleman said, the definition of national security is clear in the 1989 Act. It includes

“threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means.”

That is the broad definition of national security. We want an interplay between information, data, samples and so on held by the security services and those held by the police, and this and subsequent clauses are the best way of achieving that outcome. A more narrowly drawn definition, as given in amendments Nos. 85, 87 and 88, does not capture the statutory reasons that afford the security services the right to collect their databases in the first place, which are widely drawn in that definition of national security.

Clearly, not all the activities in that definition are included in the current purposes for which samples obtained in criminal or counter-terrorism investigations can be used. Section 64(1A) of PACE currently allows  DNA to be used for the prevention or detection of crime, the investigation of an offence, the conduct of a prosecution or the identification of dead people. The same is true of PACE (Northern Ireland). Clauses 15, 17 and 18, which are the targets of the amendments, insert national security into the uses to which samples obtained under those Acts or clause 18 can be put.

The hon. and learned Gentleman said that the references to national security would be expunged entirely by the amendments, and that is why we must resist them. For example, if the security services took a sample covertly during a terrorism investigation but were unable to identify to whom it belonged, the law as it currently stands, and would remain if the amendments were accepted, would not permit them to check the national DNA database unless they considered the investigation to be related to one of the purposes for which PACE allows DNA to be used. Intuitively, that cannot be right. The law must afford our “control agencies”, to use Lord Carlile’s term, the ability to talk and interact with each other about the data and information that they hold. However, in some terrorist investigations, perhaps undertaken at an early stage, no crime has been committed and no specific crime is envisaged. Samples may be obtained covertly to gather intelligence on a group of individuals about whom there are concerns but who are yet to commit a criminal act. It may then be difficult to say that the investigation relates to the prevention of crime when the focus, for example, is more on establishing links between the persons. The establishment of networks in counter-terrorism is hugely important.

Clauses 14, 15 and 18 will rectify the situation by allowing the use of PACE samples for national security purposes and allowing the security services to undertake a cross-check to obtain the necessary personal information, which will enable them to carry on their investigations. I repeat that, in terrorist investigations, where it is vital to disrupt the networks of those involved in terrorist organisations, the ability to make that cross-check will be invaluable. If the police obtain a sample covertly as part of a terrorism investigation, it is more of a national security matter, as defined by the principal Act, than a simple focus on a particular crime. The sample will be checked against an ordinary PACE sample, with the same benefits that apply when the security services cross-check samples with PACE. For those reasons, we resist the amendment. The hon. and learned Gentleman quite properly did not refer to amendments Nos. 85, 87 and 88, but we can return to them if the Committee wishes. Again, for the reasons that I have mentioned, it is appropriate for the Committee to resist the amendment.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I hope that I made it clear to the Minister that I did not table the amendments for the purposes of dividing the Committee. I wanted some clarity, which the Minister has most helpfully provided, about what the provision means in practice. The explanatory notes were not helpful, therefore it seemed to me that we ought to know what we were doing. As for not touching on the other amendments, they were added later. They did not add much to the issues that we had to debate, although they tried to tease out the difference between national security and preventing an  offence with a terrorist connection, which the Minister has properly dealt with anyway. I am grateful to the Minister for providing that explanation, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 14 ordered to stand part of the Bill.

Clauses 15 to 17 ordered to stand part of the Bill.