New Clause 33

– in a Public Bill Committee at 1:45 pm on 26th February 2009.

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Retention and destruction of samples etc: England and Wales

‘(1) After section 64A of the Police and Criminal Evidence Act 1984 (c. 60) insert—

“64B Retention and destruction of samples etc

(1) The Secretary of State may by regulations make provision as to the retention, use and destruction of material to which this section applies.

(2) This section applies to the following material—

(a) photographs falling within a description specified in the regulations,

(b) fingerprints taken from a person in connection with the investigation of an offence,

(c) impressions of footwear so taken from a person,

(d) DNA and other samples so taken from a person,

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

(3) The regulations may—

(a) make different provision for different cases, and

(b) make provision subject to such exceptions as the Secretary of State thinks fit.

(4) The regulations may frame any provision or exception by reference to an approval or consent given in accordance with the regulations.

(5) The regulations may confer functions on persons specified or described in the regulations.

(6) The functions which may be conferred by virtue of subsection (5) include those of—

(a) providing information about the operation of regulations made under this section,

(b) keeping their operation under review,

(c) making reports to the Secretary of State about their operation, and

(d) making recommendations to the Secretary of State about the retention, use and destruction of material to which this section applies.

(7) The regulations may make provision for and in connection with establishing a body to discharge the functions mentioned in subsection (6)(b) to (d).

(8) The regulations may make provision amending, repealing, revoking or otherwise modifying any provision made by or under an Act (including this Act).

(9) The provision which may be made by virtue of subsection (8) includes amending or otherwise modifying any provision so as to impose a duty or confer a power to make an order, regulations, a code of practice or any other instrument.

(10) 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.

64C Retention and destruction of samples etc: supplementary

(1) Regulations under section 64B may make—

(a) supplementary, incidental or consequential provision, or

(b) transitional, transitory or saving provision.

(2) Regulations under that section are to be made by statutory instrument.

(3) An instrument containing regulations under that section may not be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.”

(2) The amendment made by subsection (1) applies in relation to material obtained before or after the commencement of this section.’.—(Mr. Campbell.)

This amendment, responding to the ECtHR judgement in S and Marper v UK on 4 December 2008, would amend the Police and Criminal Evidence Act 1984, creating a power to make regulations on the retention, use and destruction of photographs, fingerprints, footwear impressions, DNA and other samples and DNA profiles.

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Photo of Hugh Bayley Hugh Bayley NATO Parliamentary Assembly UK Delegation

With this it will be convenient to discuss the following: Government new clause 34—Retention and destruction of samples etc: service offences.

Government new clause 35—Retention and destruction of samples etc: Northern Ireland.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

The purpose of new clause 33 is to provide for regulations to be made to enable the Government to respond to the judgment of the European Court of Human Rights in the case of S and Marper. The Court found that the existing policy under part V of the Police and Criminal Evidence Act 1984 was in breach of the right to respect for private life in article 8 of the European convention on human rights. The Court held that the blanket nature of the powers to retain DNA samples and fingerprints of people who were arrested but have not been found guilty of an offence or against whom no further action was taken, failed to strike a fair balance between the competing public and private interests and therefore constituted a disproportionate interference with the article 8 right.

We robustly defended the S and Marper case at all stages of our domestic courts and we were strongly of the belief that what we had introduced with the consent of Parliament was an effective and proportionate approach to help tackle crime and bring offenders to justice. We know from research between May 2001 and 31 December 2005 that there were approximately 200,000 DNA profiles on the national DNA database, which would previously have had to be removed—before legislation was passed in 2001—because the person was acquitted or charges dropped.

Of those 200,000 profiles, approximately 8,500 from some 6,290 individuals have been linked with crime scene profiles, involving nearly 14,000 offences. These include 114 murders, 55 attempted murders, 116 rapes, 68 sexual offences, 119 aggravated burglaries and 127 offences of supplying controlled drugs. Therefore, as that approach was a major contribution to the identification and detection of offenders, we are understandably disappointed in the judgment of the European Court of Human Rights.

Technological developments and, in particular, the use of DNA in investigations has been one of the breakthroughs for modern policing in which we have led the world. It has led not only to convictions for serious crimes, but to the exoneration of the innocent. Moreover, it is not unreasonable to assume that many people whose DNA was on the database may have been deterred from committing crimes because they knew that detection was inevitable. We continue to believe that DNA and fingerprints play an invaluable role in fighting crime, and will now carefully consider how best to give effect to the Court’s findings.

Part of that process lies in informing the Council of Europe’s Committee of Ministers of progress and of final proposals for implementing the decision. A second and key part lies in ensuring that sufficient public debate takes place on whatever we propose and how it is implemented. The judgment recognised the level of public interest in and, indeed, public disquiet with the  current retention policy. That is why we intend to publish a public consultation paper before the summer with proposals on retention and future governance in this important area.

We recognise that some people who are currently on the DNA and fingerprint databases and who have been arrested but not convicted may feel frustrated that their samples are not being destroyed in the light of the European Court judgment. As the Committee will be aware, the existing law stands until such time as it is changed or amended by the United Kingdom Parliament. The contents of this enabling clause are drafted to allow for a retention and destruction framework to be put in place to ensure compliance with the European Court judgment within a reasonable time, and for such regulations to be subject to consideration by both Houses.

In her speech to the Intellect Technology Association on 16 December 2008, my right hon. Friend the Home Secretary said that the public expect us to make use of technology to protect them, and that people instinctively understand that these technologies, used properly, are vital tools against crime, terrorism and illegal immigration. But she also recognised the absolute necessity of getting the balance on privacy right, and that there is more we can do to strengthen the dividing line between guilt and innocence. For those who have committed a serious offence, our retention policies need to be as tough as possible, but for others, including children, there is scope to introduce a more flexible approach.

We intend to consult on bringing greater flexibility and fairness into the system by stepping down some individuals over time by using a differentiated approach, possibly based on age, or on risk, or on the nature of the offences involved. We will also re-examine retention arrangements for samples. We have informed the Committee of Ministers of our intention to consult and of compliance to date with the judgment in respect of the relevant samples of S and Marper, as well as the payment of costs and expenses. The information will be considered by that Committee at its next meeting on 19 March.

I hope Members of this Committee will recognise that we are committed to implementing the judgment. There are significant policing operational issues involved in complying with the judgment, but at the core is the need to ensure a proportionate level of public protection. This is an important issue, which is why the approach that we are proposing focuses on open public debate and parliamentary consideration.

The purpose of new clause 34 is to ensure that regulations, which will be equivalent to those provided for in new clause 33, can be made in respect of material obtained by the service police in each of the armed forces. Section 113 of the Police and Criminal Evidence Act 1984 allows the Secretary of State to apply any of the provisions in part 5 of the Act to the armed forces, subject to any modifications that he considers necessary in order to cater for the different procedures under which the armed forces operate.

Part 5 of the Police and Criminal Evidence Act is already applied to the armed forces by means of a statutory instrument made under section 113. Section 113, therefore, needs to be amended to allow regulations to be made for the armed forces which will be closely based on the regulations provided for in new clause 33. Biometric data obtained by the service police in each of the armed forces will therefore be treated in the same  way as biometric data obtained by civilian police forces, subject to the different circumstances in which the service police conduct investigations. This will ensure that the UK’s response to the S and Marper judgment in the European Court of Human Rights is comprehensive.

The purpose of new clause 35 is to ensure that regulations, which will be equivalent to those provided for in new clause 33, can be made in respect of material obtained by the Police Service of Northern Ireland. The regime governing the retention and destruction of samples in Northern Ireland is contained within the Police and Criminal Evidence (Northern Ireland) Order 1989 and the amendment makes provision for similar regulations to those provided for in new clause 33. This will ensure that the UK’s response to the S and Marper judgment in the European Court of Human Rights is comprehensive.

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

The Opposition have consistently called for a full debate on the DNA database, so I welcome the opportunity to consider some of the issues in the context of the new clauses proposed by the Government. I regret that our consideration is necessarily so partial and focused on whether we should give authority to the Home Secretary to make regulations governing the retention and destruction of DNA, fingerprint, photographic, CCTV and other records. If we grant the proposal, it would prevent and frustrate the very parliamentary debate that we have been seeking, allowing all MPs to contribute. The Minister for Security, Counter-Terrorism, Crime and Policing said in his letter to the Committee that the means would be the affirmative resolution procedure.

Before I develop the detail of the argument surrounding the proposals, I want to start with one point of agreement with the Minister. We agree that the use of DNA samples can be an important evidential tool in prosecuting and bringing crimes to justice. We are all aware of cases where DNA data have formed an important part of the case to prove guilt and ensure that serious criminals have been put behind bars, where they belong. The fight against crime, in particular organised crime and terrorism, depends on the use of modern scientific techniques of investigation and identification.

However, the status of DNA needs to be considered carefully. As the European Court of Human Rights noted:

“The retention of cellular samples is particularly intrusive given the wealth of genetic and health information contained therein.”

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 is central to the debate and the Government’s proposals.

The UK’s DNA database is the largest in the world, containing approximately 4.3 million profiles, which accounts for around 5.2 per cent. of the UK population. The Government argue, as did the Minister, that this country claims a pioneering role in the utilisation of DNA technology, but in doing so it bears a special responsibility to ensure that it strikes the right balance on what is permissible in the potential interference in private life.

The central question that the new clause seeks to address, although without spelling out the solution, is the extent to which the Government should retain DNA and other data on people who have been suspected of committing a criminal offence but who have never been charged or have been acquitted. Under the Police and Criminal Evidence Act 1984, as amended by the Criminal Justice and Police Act 2001, fingerprints and samples, including DNA samples, can be taken from anyone arrested for a recordable offence and detained in a police station. However, the Home Office has confirmed that 1.1 million people on the database have never been convicted, cautioned or even formally warned or reprimanded, as recorded by the police national computer.

GeneWatch has calculated that there are records of 100,000 innocent children on the database, and the records of 521,901 under-16-year-olds have been added to the database since 1996. The database contains the records of around 40 per cent. of black men in the UK, compared with 13 per cent. of Asian men and just 9 per cent. of white men. As the Minister will be aware, one of the issues that the Court highlighted was the potentially disproportionate impact that the operation of the database has on young children and people from minority ethnic communities, which needs to be considered carefully in the context of the debate on what is proportionate and reasonable.

I shall move on to the details of the case of S and Marper shortly, but I would like to read out a paragraph from the Court’s judgment that puts a disturbing gloss on the Government’s view of DNA data and, by extension, the potential use of the powers that they seek under the new clauses. Paragraph 123 of the judgment states:

“The Government argue that the power of retention applies to all fingerprints and samples taken from a person in connection with the investigation of an offence and does not depend on innocence or guilt. It is further submitted that the fingerprints and samples have been lawfully taken and that their retention is not related to the fact that they were originally suspected of committing a crime, the sole reason for their retention being to increase the size and, therefore, the use of the database in the identification of offenders in the future.”

If the Court has accurately stated the Government’s policy position, which is what we need to be clear about, it is in essence saying that there is a simple primary policy intention to grow the database, and that even suspicion of guilt is not regarded as a triggering factor. That might not be reflected in the current law and seems to have been a policy statement that the Court has highlighted from the evidence that it was given in the course of its considerations, but it is a significant point to consider when the Government tell us that we should rely on their assurances.

We need to understand clearly the Government’s stand on that, so will the Minister confirm that they argued their case on that basis and that the natural extension of that line of logic is that everyone is a potential suspect? Is it now the case that one is innocent until proven guilty in the eyes of the criminal law, but always potentially guilty in the eyes of the DNA database? I base those points in all seriousness on that paragraph in the Court’s judgment and am not seeking to make a pejorative or debating point. I am simple reading from the Court judgment and interpreting from it what seems to be an intention that was argued at the Court, because it is pretty fundamental in understanding where the Government are coming from. If that is the case, how  can we trust the Government to look after our liberties, as the measures imply that we would seek to do, if their fundamental stating point is that there do not necessarily need to be grounds of suspicion for obtaining information in the first place?

In that context, I wholeheartedly agree with recommendations I and J in the first annual report of the ethics group on the national DNA database, which was published on 21 July 2008. 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.”

Recommendation J states:

“Consideration should be given to formally announcing publicly that the NDNAD will only be used for the currently described purposes (i.e. criminal intelligence) and will never transform into a repository for the whole nation’s DNA characteristics.”

Will the Minister indicate whether the Home Department agrees with those recommendations so that we can gain a better understanding of the Government’s likely approach in the context of the order-making powers that it seeks in the new clause?

The ethics group also raised questions about DNA samples given by the public voluntarily. Will the Minister confirm how many DNA samples on the national DNA database have been given voluntarily? Will he also confirm that the intended White Paper, which the order-making power under the new clauses is intended to implement, will address the scope of use of those samples, and the retention and process for destruction of volunteered samples? The ethics committee suggested, in various recommendations, that further clarification is needed. While I accept that the law on obtaining samples suggests that there is an automatic requirement of destruction, the fact that the ethics committee raises such a number of recommendations about volunteered DNA data clearly suggests that it has some concerns.

Will the Minister also confirm whether the Government have any intention to extend the authority required to take DNA samples in cases of non-notifiable offences, as was suggested at one point? In other words, will they extend the existing authority to take DNA samples when there is a notifiable offence to non-notifiable offences as well, which could lower the authority to minor offences?

We have long argued for the need to ensure that the police can retrospectively take samples for a longer period after conviction and from those convicted overseas, so we are glad that the Government have responded positively to that call. Will the Minister confirm that that will also form part of the White Paper, together with the removal of profiles for children under 10?

The official Opposition believe that there should be an established procedure to allow a person to request a statement on what information, relating to fingerprints and samples, is being held on either them or a dependant. We think that there should be a procedure by which a person can request that such information held on them or a dependant is destroyed, and that the circumstances in which such a request might be refused should be set out. Will the Minister indicate whether he envisages the White Paper encompassing issues of that nature and, by extension, the application to familial links? DNA might not necessarily simply indicate one individual, as a sibling’s DNA might have similar characteristics. Some  of the concerns attached to the debate relate to whether DNA can be identified. It can, in part, be matched to one’s own DNA, but it is the familial link that applies, and a close relation might be actually indicated.

In his letter to the members of the Committee explaining why the Government were bringing forward those new clauses, the Minister for Security, Counter-Terrorism, Crime and Policing rightly said that their actions had been necessitated by the judgment of the European Court of Human Rights in the case of S and Marper. I welcome his statement, and the comments of the Under-Secretary of State for the Home Department, the hon. Member for Tynemouth, that the Government are committed to its implementation as soon as possible. In that landmark judgment, the Court held that there had been a violation of article 8 of the European convention on human rights. The Lord Chancellor, in his response to the Court ruling, was right to highlight paragraph 119 of that judgment. That is important—I hope that you will allow me to put it on record in the context of the debate, Mr. Bayley—as it informs the framework that the Government need to work to with regard to the power that they are now seeking under the new clause.

On the issue of proportionality and the fair balance between competing public and private interests, the Court said:

“In this respect, 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 or the materials destroyed ...; 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.”

I apologise for reading out that somewhat lengthy extract, but it really goes to the heart of what we are considering. As I said, the Lord Chancellor rightly drew attention to it, and it is important in understanding where we are all coming from. That very paragraph sets out some of the benchmarks and indicators that we would certainly expect to see in the detailed proposals that the Government are yet to publish in their formal response to the particular court case.

However, given what the Court said, I must say, with respect, that I think that the Minister for Security, Counter-Terrorism, Crime and Policing may have slightly missed the point in his letter to the Committee—indeed, the Under-Secretary of State might have done so too in his opening remarks—when he suggested that the Court recognised that the retention of biometric data could be retained

“on consideration of the individual circumstances.”

The Court judgment goes much deeper than saying, as that quote from the Minister suggests, that it is a case of individual review of individual circumstances. What the Court is saying goes to the structure—the fundamental protections and reviews—that exists, rather than saying that, in some way, this could be dealt with by means of case-by-case consideration.

The Court was very clear, and in many ways it was very critical. Whatever the Government or we may think about whether the Court was right, we have the judgment. It highlighted very clearly that England and Wales—treated as one country—is the only country in Europe adopting these procedures. Scotland has a different procedure, and I note that an amendment tabled by the hon. Member for Chesterfield, although not selected, alluded in some ways to the Scottish situation. There is a different standard in Scotland than in England and Wales. Effectively, DNA data are not retained when someone has been acquitted. The data can be retained for three years if there was a violent offence or a case involving a sexual offence, and that period can be extended to five years, but in other circumstances, the DNA data cannot be retained if there has been an acquittal or if no charges were brought. Therefore, even in this country—I use that word to mean the United Kingdom as a whole—the approaches in England and Wales and in Scotland differ. Consequently, what the Court said about the current system and situation that we have in this country went quite deep.

That is why we believe that it is right that the DNA database as a whole is put on a formal statutory footing. That goes further than simply having a power of regulation in respect of the Home Secretary saying what the retention and destruction issues should be. In this context, we need a more fundamental statement about the DNA database itself. In our view, at this stage, it is not acceptable simply to give what amounts to almost blank-cheque authorisation under the new clauses on the basis of the White Paper that the Under-Secretary says will be forthcoming at some stage before the summer.

I agree with the Minister for Security, Counter-Terrorism, Crime and Policing and the Under-Secretary about the importance of this debate. I know that the Under-Secretary said that there was considerable public interest and public concern, and that the Minister for Security, Counter-Terrorism, Crime and Policing said in his letter:

“This is an area of significant importance which impacts on public protection and confidence.”

That gains even more significance when we consider the potential ambit of data sharing among parties. That is the subject of debate on the Coroners and Justice Bill, in which a power is being sought to share data among relevant bodies in an unspecified manner at the authorisation of the Secretary of State—the Secretary of State for Justice in that case. Therefore, when setting the boundaries for data retention, there should be consideration of whether, and to what extent, those data will be shared in a wider format. I appreciate that that is a debate for another Committee on another Bill, but it gives context to discussions about the DNA database and the retention and sharing of that information with third parties. Potentially, this goes wider than the domestic setting.

On 12 June 2007, UK Ministers attending the European Union Justice and Home Affairs Council backed a plan to extend the Prum treaty to the whole of the EU. Can the Minister confirm that that means that all EU member states will have automatic access to Britain’s DNA database? Is that the direction of travel? To better assess what is and is not appropriate in the retention and destruction of data held on that database, it is important  to understand the significance of the DNA database and what it may be used for in a domestic and, potentially, pan-European setting. It is fundamentally important to understand where we are going with this measure.

Given the significance and importance of the topic, why is it being swept under the affirmative resolution procedure? With that procedure, I assume that it will not be possible to amend the regulations and we will only have an hour and a half of debate in Committee on these fundamental issues. There are serious issues of public confidence, as Ministers have identified. The other place almost has a convention of not rejecting secondary legislation. I have serious concerns about how the issue is being approached. The irony is that we may have a longer debate in this Committee on the order-making power than will be permissible on the substantive issues of the retention of DNA and the fundamentals that apply.

The Minister has said that he wants a debate but the impression is that, rather than promoting debate, the Government do not want it. Instead, they want to deny the debate that would allow all hon. Members the opportunity to consider the proposals in detail and to make amendments if required. It will be interesting to see how the Government put forward the changes that they propose in the light of the Court judgment. I assure the Minister that we will work constructively with him on this because we recognise its importance and significance, as he does.

Simply to present a set of regulations and, in essence, say, “Take it or leave it” will not allow the necessary scrutiny, debate and consideration that the issue rightfully demands. Even in seeking the power, the Government cannot give us any indication of their intentions. As the Minister says:

“We are not in a position at this stage to produce detailed proposals”.

If they make that admission, how can they expect the Committee or the House to give an authorisation without any idea of how such authority would be used?

I appreciate that issues with the parliamentary timetable are often used as justification for the argument, “Well, we have a Bill before us now and we should use this opportunity as it may be the only primary legislation that we get.” That does not wash. The issue demands primary legislation that can be properly scrutinised and examined, in detail, line by line to ensure that appropriate protections are provided.

The Constitution Committee in the other place, in its recent report, “Surveillance: Citizens and the State” recommended:

“The Government should introduce a Bill to replace the existing regulatory framework governing the NDNAD. This would provide an opportunity to reassess the length of time DNA profiles are retained and the regulatory oversight of the NDNAD.”

We agree. The use, retention and destruction of DNA records and the oversight that sits behind that require detailed primary legislation in their own right, with full and detailed debate and examination in Parliament of the proposals that the Government bring forward by all Members of Parliament. I can assure the Minister that if he does so Her Majesty’s Opposition will work with the Government in a constructive way in the public interest. The issues at stake are too serious to do otherwise.

“Trust me” was a phrase frequently used by the former Prime Minister Tony Blair. That is precisely what the Minister and the Home Secretary are asking us to do by virtue of this clause—to trust them—as we would be approving a significant and wide-ranging authority applicable now and in the future on a promise of the White Paper and a promise that the Government intend to address the issues highlighted in the recent European Court of Human Rights case. But the nature of this subject puts it beyond questions of simple trust of a particular Minister or even a particular Government. Once the authority is there it remains in place and can be used in the future by any future Government too. I appreciate that we cannot bind future Governments, but we can signpost them. If this is in place it makes a fundamental departure.

In making those comments I am not seeking to impugn the Minister, the Home Secretary or the Government’s intentions. We have to operate in a vacuum in this context. We do not know the basic principles, notwithstanding what may have been set up in the new clause and certain statements that it could include this, that and the other. The order-making power encompasses that; but we do not actually know.

Surely it would be more appropriate for us to consider what changes are appropriate in legislation once we have an indication from the Government of their intentions. Then we can have that public debate that the Minister has rightly said is needed and that he wants. We can have that detailed scrutiny. We can consider what strikes the right balance between the public interests and the protection of the private interests that is at the heart of our debate this afternoon.

That is why I say to the Minister in clear and unambiguous terms that the proposal he has set forward in these new clauses is utterly unacceptable and if the Government are insistent on taking this approach we will oppose it tooth and nail.

Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield 2:15 pm, 26th February 2009

When we discussed the late entry of the clauses on gangs I made the point that it was a great shame that they were introduced at a very late stage. They were not available to be debated on Second Reading or at the start of our Committee proceedings. They came in just at the start of the recess week. It has been difficult therefore to do all the research and to have the full debate that we need on them. Nevertheless we had a constructive debate and the Minister said some reassuring things and we made some progress. Those points have to be made a thousand times more on this issue.

These new clauses are of crucial importance. They concern the DNA database which has been a long-running and controversial issue in Parliament, but they were introduced by the Government last Friday at the end of recess week. They were made available publicly on Monday of this week. A number of organisations that would normally respond on something like this have not had time to get to grips with it. We looked at it and tabled some amendments, but it was too late for the Tuesday midday deadline for them to be considered here. On such a major issue that is completely unacceptable.

I do not know what the explanation will be for that very last-minute production of these new clauses, but I do not think that it will be a very convincing one. The Minister cannot say that the Government are surprised  about this being an issue and by the judgment in the S and Marper case, or that they are surprised that anyone should regard the DNA issue as controversial and that it came out of the blue. It has been argued about a great deal both in and outside Parliament. My hon. Friend the Member for Cardiff, Central (Jenny Willott) introduced a ten-minute Bill on precisely that issue in June 2008, which referred to adopting the model that the Scottish Executive—at that time a joint Labour and Liberal Democrat one—went down the road of some two and a half years ago. It is not exactly a new issue that has come out of the blue. On 4 December we had the European Court of Human Rights ruling that categorically stated that UK practice was out of line with that of the rest of Europe, and that it breached the European convention on human rights.

On 13 January I received the answer to a question that I had submitted to the Minister about whether the Secretary of State was considering introducing proposals on time limits for keeping various types of DNA sample, and on removal from the national DNA database of profiles of people who had never been convicted of an offence. According to the Minister’s answer, much as he said in his opening statement, on 16 December the Secretary of State told the Intellect Technology Association that the Government were looking at those issues, that there would be a White Paper and a consultation, and that the Government would eventually introduce some proposals, which we were told today would happen by the summer. That is not acceptable, given how long the argument has been raging, and the amount of time the Government have known that the issue was coming along.

On Friday 20 February the holding clauses were submitted, but we could see them publicly only from Monday of this week. The Minister made a few welcome hints about what proposals might arrive—on children, for example—but they were no more than hints and suggestions. We will not know what the Government will propose in the measures until much later in the year. For us not to be able to debate the concrete substance of what the Government will or will not propose to do is absolutely unacceptable. It is entirely wrong and unsatisfactory to ask us to simply give the Government advance permission to introduce regulations that would not be subject to major debate, vote and amendment in the House but rather to the affirmative resolution procedure. That cannot be accepted on such an important and long-running issue, which the Government have known for a long time to be controversial.

The Government have grown the biggest database in the world. It has 4 million entries, which is 5 per cent. of the English and Welsh population, and the Government estimate that by 2010 there will be 4.5 million entries. There are 700,000 children aged under 18 on it, but many people who were entered on to the database as children will have now moved into adulthood. A question that I asked on 6 November 2008 produced the information that 98,017 people were under the age of 13, 442,375 were aged between 13 and 15 and 606,098 were between the ages of 16 and 18 when they were first entered on to the database. Huge numbers of young people are having personal information intrusively accumulated, and the European Court has judged that to be unacceptable. The database is bigger than the one in the USA, even though the USA has five times our population. That seems remarkable.

A quarter—1 million—of those on the database have no police record. They were either arrested and never charged, or were charged but not convicted. Twenty-five per cent. of the people on the database are innocent in the eyes of the law. They are the people who everyone has been so concerned about. Two or three years ago, Scotland went down a different route and decided to remove the bulk of those people, with some exceptions which we will come to.

What sort of people go on to the database? Can we trust it? One example is three children who built a tree-house in a cherry tree and were arrested. Children building dens and tree-houses becomes a criminal offence that gets them on the DNA database for the rest of their lives. That seems remarkable. Another example is of a fight in a school. The teachers reported to the police the two people they thought were involved and a 14-year-old boy was wrongly identified by the teachers. DNA was taken and put on the database and although it was then explained that it was a case of mistaken identity, the chief constable refused to remove the DNA.

These are examples of people having their DNA put on the database for life, in the way the Government have accumulated it. What is the logic of that? The Government argue that the DNA database is very important in catching criminals and we heard the statistics at the start of the debate on these clauses. That is true. DNA is a great new weapon in helping to bring criminals to justice but it is never used as the sole piece of evidence to convict someone. There has to be other corroborative evidence.

If the Government say that DNA is so important that we should have all this information—that we should grow the biggest DNA database in the world—logic demands that it should include the whole population. If that cannot be done logistically, as has been explained to me by experts in the field, the next step would be to include every baby who is born. We will have all that for the future and build a database that way. The ethics group already mentioned said in its first annual report that the Government should make a formal announcement, and that they had failed to do so at that point. For various reasons set out in its detailed notes, it said:

“A universal database is both impractical and socially undesirable. It would also be very expensive and of questionable value to improved policing.”

So, above all, it would be “undesirable”, not just because of practical difficulties but for all sorts of ethical reasons. The Government fallback position might be to say that they just want to cast the net as widely as possible. I have heard it argued that people arrested in the vicinity of an incident, even though they are never charged or convicted, are likely to be the sort who would be criminals. The argument is that there is no smoke without fire, that they would not be there unless they were prone to that sort of behaviour. It is an appalling step for the state to imply that it is going back to a presumption of guilt without evidence, rather than the presumption of innocence unless proven guilty which is supposed to have underpinned British law for the past 800 years. The ethics group addressed that explicitly in light of the S and Marper judgment:

“The ethics group remains convinced that the current policy for process and removal puts innocent individuals at a severe disadvantage which is at considerable variance with the principles of policing by consent.”

Are the Government, by logic of their argument, saying we want the whole population because then we can catch all the criminals?

Mr. Campbellindicated dissent.

Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield 2:30 pm, 26th February 2009

The Minister shakes his head. The Government may say, let us throw out the widest net in the democratic world and get as many people as possible, thanks to guilt by association, as there is no smoke without fire: somebody may have been named as a possible suspect, so we will keep their record. As for the 25 per cent. of people on the database who are innocent—that is 1 million people and growing—we will get them in the future because they are likely to be criminals. Is that really acceptable? We certainly do not think so, the Conservative party does not think so, and the ethics group does not think so. In Scotland, they said some years ago that they did not think so, and they have changed the law to take that into account. The European Court has said it is not acceptable. Most people would say that it is not acceptable. The Government ask what should be done about serious crimes that are detected. In fact, only 0.35 per cent. of serious crimes are detected as a result of information from the DNA database, which is a tiny fraction. That was true in 2004-05, and it was true in 2005-06, 2006-07 and 2007-08.

Myths have been promulgated about the role that DNA has played in some famous convictions. Maninder Pal Singh Kohli was convicted in November 2008 of the rape and murder of 17-year-old Hannah Foster, and his case has been cited as an example in which the DNA database led to conviction. However, in fact, police investigations led to his van; Hannah’s DNA was found in his van and DNA evidence corroborated evidence that police collected in the normal pursuit of policing. That is true of several other famous examples that keep being quoted in support of Government policy, including the case of Mark Dixie, who was recently convicted for the murder of Sally Ann Bowman. However, the DNA sample that led to the conviction was taken when he was arrested for violent affray in a pub nine months after the murder.

No one is arguing that the DNA of people who are arrested for that sort of offence should not be taken—of course it should. If the person is not convicted, eventually their DNA sample should be removed. According to Scottish law, in cases where people are arrested on suspicion of a sex crime or a violent crime—the two issues that people are always concerned about—there should be provision to keep the DNA for three years and possibly to extend that by another two years if the chief constable thinks it appropriate, and we support that policy.

Mark Dixie’s DNA swab was taken after he was arrested for violent affray nine months after the murder for which he was eventually convicted. Under the type of system that we suggest should be introduced, which the Scottish Executive have enacted and the European Court of Human Rights is talking about, that DNA sample would still have been taken and would be run against the database. If nothing came up and he was never convicted or charged for the affray in the pub, the sample would be destroyed three or five years later, depending on the view of the chief constable. There are several other examples, such as Steve Wright and Peter  Tobin, where the DNA sample that was already on the database did not lead directly to conviction but acted in a supporting or corroborative role for DNA that was taken legitimately and kept for some other incident, and that process would not be affected by our suggestions to adopt the Scottish practice.

The Court’s ruling was clear. It accepted that the DNA profile and sample constituted personal data and should be protected by data protection laws. That was significant, because until now, the Information Commissioner in the UK has argued that DNA samples do not fall under UK data protection laws. However, the Court stated that a sample does, and should. The Court emphasised the truly sensitive nature of a DNA sample and described it as being of a “highly personal nature”, containing

“substantial amounts of unique personal data”, so it was particularly intrusive to break that privacy. If we are to take that intrusive step, it ought to be because we have convicted someone of an offence, and not because they were arrested as a possible witness and we are just going to keep it forever because of a suspicion that one day it might come in handy, as is the case with a quarter of the people on the database. The Court stated that

“the mere retention and storing of personal data by public authorities, however obtained, are to be regarded as having direct impact on the private-life interest of an individual concerned, irrespective of whether subsequent use is made of the data”.

The Court ruling was strong and clear about what is wrong with Government policy.

The Scottish Executive’s legislation is relevant, because the Court stated that the practice in England and Wales, which allowed for the indefinite retention of the DNA and fingerprints of unconvicted people, breached the European convention on human rights. The Court also stated that it considered the current retention policy in Scotland for samples from those who are not convicted to be compliant with the convention. Therefore, there is leeway with the Scottish case, which the Court has stated fits in fine with the convention.

With regard to people who have been arrested on suspicion of violent or sexual offences but not convicted, their samples can be kept for three to five years under various conditions, which fits with the Court’s approach. Otherwise, the DNA of innocent people who are not charged, or who are charged and not convicted, should be destroyed, and that is the line of argument that most rational people outside the Government’s line of argument have taken, and that is the line or argument that western democracies take. It is the line of argument that part of the UK, Scotland, has taken and implemented successfully in law, and it is certainly the approach that we think should be taken.

The Government say that they will consult, issue a White Paper and come back later in the year, possibly in the summer, but the arguments have been well rehearsed. There has been much research and consultation in this country, in Scotland and in other places, and it is pretty extensive and satisfactory. In asking us to pass the new clauses, the Government are asking us simply to trust them. They are saying, “We will get it right and will come back with the detail later this year, which you will not be able to amend, reject or throw out. You will have to like it or lump it, so trust us.” Unfortunately, on this issue, we cannot do that because, as I say, the arguments  have been very clearly put forward at great length by many people in recent years, and it is unacceptable to have a DNA database—the biggest DNA database in the world—that breaches European rights, when a quarter of the people on it are innocent. It is simply unacceptable to include them, on spec, on the basis that one day they might be guilty, so we should create as big a database as possible. We oppose that absolutely; it is simply unacceptable.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

I begin by repeating the process that we are involved in. The Government—I put this on the record again—are committed to complying with the decision of the European Court of Human Rights. To some extent, the clock is ticking, in that we have a commitment to respond to that decision within 12 months. Whatever else may have been said, there is a definitive time scale here, which affects the process on which we have embarked.

We accept, as the Court judgment accepts, that there is public disquiet about the retention of DNA, but there is also, as the Court judgment also accepts, a strong case for using DNA for public protection. Furthermore, the Court judgment accepts that there should be a balance; I accept that there should be a balance. The difficulty is where does that balance lie? That is not an easy position to arrive at. We should not simply rush to arrive at a position and we should try to involve as many people in the process as possible.

The next stage of the process is to consult the public, then to introduce proposals later this year in legislation to allow Parliament, ultimately, to decide. The Government can introduce proposals, which will be based on that public consultation, but at the end of the day Parliament will decide. In case anyone is thinking of the argument, “But of course the Government will get their way”, I can assure that person that, judging from the Home Office questions that are tabled, the letters I receive and the opinions of colleagues who speak to me, there is a wide range of opinions about DNA. They are not all on one side of the House; they are on both sides of the House. Therefore, I welcome the opportunity to have a constructive debate.

Let me try to respond to the points made by the hon. Member for Hornchurch. I welcome his contribution to the debate and the way in which he made his comments. I do not agree with some of the things that he said, but I welcome his commitment to engage constructively. He suggested that we were somehow seeking to frustrate parliamentary consideration. I have just been through the process that we are involved in, and a key part of it is public consultation. I am quite sure that Members of Parliament will want to play a full part in that process outside Parliament. We are committed to introducing proposals in the autumn for Parliament to decide, but there are lots of other ways in which Parliament can make its views clear, not just in the public consultation but through the business of the House. There must be ample opportunity for people to watch this debate as it goes on and to be able to make the very points that the hon. Gentleman is making, not just to influence the consultation itself but the process. As for the parameters of the consultation, we need to think about Parliament in its wider sense, because this issue is one of the most important issues that we face.

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

I am grateful to the Minister for giving way and I am also grateful to him for making a commitment to public consultation, which I agree is absolutely essential. What I do not understand is why the Government appear to want to subject this matter to the regulation and order-making approach, because it would not then be possible for hon. Members to make amendments, even though, as he rightly indicates, there is a broad range of views and feelings on this very sensitive issue. If that mechanism of making amendments was allowed, it could aid the debate in the House on the detailed consideration of the Government’s proposals, to ensure that each of those viewpoints can be considered, so that appropriate scrutiny can take place. I do not understand why the Government seem to have set their face against that approach.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction) 2:45 pm, 26th February 2009

I understand very well the points that the hon. Gentleman is making, and he makes them very well. They are important points, but they relate to what I just said—namely that Parliament can play an important part in the process of helping to shape the consultation and its outcome.

At the end of the day, however, if the hon. Gentleman is questioning the process, because he thinks that the Government will introduce proposals anyway and those proposals cannot be amended, it is valid to ask, why go through this process? Why bother having a process at all? Why not just respond simply to what the ECHR has said? Why have a public consultation and make it such an important issue for public debate? Why am I telling the hon. Gentleman that there are mechanisms in Parliament to debate such matters? Let him talk to his business managers about how they use their time in Parliament to see whether they can use some of it on the issue. If it is that important, why do they not do that? There will be a vote, after all.

Photo of Simon Burns Simon Burns Opposition Whip (Commons)

The Minister was a Government Whip so he understands that we can have as much consultation as we like in Parliament, but if the Government of the day are determined to do something, they will use their majority to force the matter through regardless.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

Yes, and I have told the hon. Member for Chesterfield that there is a wide range of opinion on both sides of the House. It would be wrong for the Government to assume that, if they introduce the proposals to which he objects, there would not be objections from their own side. It is important that, first of all, we have a debate and a consultation, and that the Government listen to what is said, before introducing the measures. The hon. Member for Hornchurch is, of course, correct in saying that, if the measures are introduced as a statutory instrument, it will not be possible to amend them. He will also know, however, that a statutory instrument can be voted down.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

If the measures are, as the hon. Gentleman says, so out of touch with what the hon. Member for Chesterfield calls the majority of people, what makes him think that the Government side would support such a thing?

Photo of Simon Burns Simon Burns Opposition Whip (Commons)

With respect, I will repeat what I said earlier. The Minister was a Government Whip, so he knows what he is talking about. Government members of a Committee dealing with controversial statutory instruments will be hand-picked in order for the Government to get their majority, unless the Government Whips Office makes a mistake.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

I do not recognise that process at all, so I could not possibly comment. The hon. Gentleman knows, however, that what happens in Committee is not the end of the story. A statutory instrument is not just a matter of what happens in Committee; it is actually a matter for Parliament. Furthermore, it is not just a matter for the House of Commons, but for the other place, too. The hon. Gentleman should not be so cynical about the way in which Parliament works and the opportunities for scrutiny.

Mr. Burnsrose—

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

I want to move on before we exhaust this particular point.

Photo of Simon Burns Simon Burns Opposition Whip (Commons)

On the point about cynicism, the Labour party has been in government for 12 years now, and its control freakery over its own members surpasses that of the Thatcher Government. The Minister is slightly disingenuous if he is suggesting that members of statutory instrument Committees are not hand-picked. He knows in his heart of hearts that I am telling the truth when I say that they are hand-picked to minimise any danger to the Government majority.

Photo of Hugh Bayley Hugh Bayley NATO Parliamentary Assembly UK Delegation

I should stop this particular debate, because the way in which the Whips operate is not relevant to the Bill. The point has been well made by the hon. Gentleman, but the Minister should return to the new clause.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

Thank you, Mr. Bayley. The hon. Member for West Chelmsford knows that I did not comment on what he just said. I did not make that point at all.

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

May I make a final point on this process? The Government regularly introduce White Papers that result in primary legislation. That then allows consideration in detail and debates on the Floor of the House. While I respect the fact that Adjournment and Opposition debates can take place in advance to allow issues to be articulated as part of the consultation, the requirement for detailed scrutiny to ensure that the Government’s provisions are acceptable only comes into being when a set of proposals are introduced. The Government seem to be shying away from that scrutiny, and that is why I am concerned about the process that has been adopted, which means that we might not get the end result that the Minister promises.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

I quite understand that point, because the hon. Gentleman raised it when he questioned why this is not being done through primary legislation. I will come back to point in a moment, but first let me address some of the other comments that he made.

The hon. Gentleman and I agree on the need to strike a balance between public protection and the right to privacy—so, too, did the judgment. I also accept his point about accepting the responsibility of being a country at the cutting edge in having a DNA database,  which makes it more important that we act in a responsible way—that almost goes without saying. He mentioned, as the hon. Member for Chesterfield did, the reference to young children. The Home Secretary signalled, in her speech in December 2008, that children under the age of 10 will be removed from the database and that process is well underway—in fact it is nearing completion. She added that we want to have people on the database who are guilty of the most serious offences, and make sure that people who are in prison for such offences are on the database. Again, I give a commitment that that process is underway.

Much has been made of the Government’s intention to expand the database “as much as possible”—I think that that was the phrase that was used—and whether that meant that it would become a repository of the whole nation’s DNA. If the Government, or indeed Parliament, had not set a threshold, perhaps there would be a better case for making that point. However, the reality is that there is a threshold, which is set at the point of people being arrested and detained in a police station. The relevant point is that the European Court of Human Rights did not accept that that was the appropriate place for the threshold—it says that the threshold is in the wrong place. That is what the whole debate is about. If it says that it is in the wrong place and we have to comply with that judgment, then what do we do not just to comply with that judgment, but to assure ourselves that the threshold we put in place is appropriate and proportionate?

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

I come back to the quote from the Court judgment on the intention of the policy about

“the sole reason being to increase the size and, therefore, the use of the database.”

Can the Minister confirm whether the arguments before the Court were made on that basis, because it gets to the nub of the issues that I have highlighted and the issues raised subsequently by the hon. Member for Chesterfield?

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

Part of the argument that was made was to try and counter the argument that the two individuals should have their samples removed from the database. Of course, part of the counter-argument is to justify why people are on the database in the first place: it is about the public need for people to be on that database and how it is being used.

As I was saying, the Government’s policy is not to try and do everything we can, in any way possible, to increase the size of the database. I agree, that if that was the case, one could extrapolate and say, “Why not go down the route of having everybody on a database?” We have set a threshold. The fact that the Court disagrees with the threshold means that we have to address that particular point, but if we were simply going down the route of getting as many people as possible on to that database, why would we have a threshold and why would we not introduce some idea of compulsion and make it mandatory? We have to have some sense of balance about what the Government are trying to achieve. What is clear from the discussion that we are having this afternoon is that the hon. Member for Chesterfield and I disagree fundamentally about the size and the necessity of the DNA database.

Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

I do not disagree fundamentally about the necessity of the database; I disagree fundamentally about the necessity of having 25 per cent. of the people on it who are innocent. Having guilty people on there is fine, but it is not fine to have innocent people on there.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

I apologise to the hon. Gentleman, almost as I said it I thought that I was getting into the wrong place, so I am happy to apologise on the record.

I will return to that point in my response to the hon. Gentleman. He raises points that will be raised in the public and parliamentary debate on the nature and scale of the DNA database. That will allow us to not only comply with the judgment, but point a way forward.

The hon. Member for Hornchurch raised a number of specific points. He asked how many samples have been given voluntarily. I am still waiting for the number but I will get it to him as soon as possible. He also asked if the White Paper will address volunteer samples. Yes, it will, particularly ensuring that the volunteer is made fully aware of their rights.

The hon. Gentleman asked if there were any proposals to cover non-notifiable offences. No. He raised a point about individuals knowing what information on them is held and if that issue will be included in the White Paper. The White Paper will emphasise the importance of informing a person of their rights and entitlements. We have already indicated in the consultation paper on the PACE review, published in August 2008, that we will raise the awareness and understanding of the public and detainees.

The hon. Gentleman raised points and questions that, frankly, are more about the debate that will need to take place than the issue that we are discussing, which is whether the Home Secretary should be given the power to bring forward proposals that Parliament can decide upon after public consultation. I welcome that wide public debate and hope that hon. Members also welcome it, but emphasise that Parliament will make the final decision.

On data sharing and the Prum treaty, in one sense, the hon. Gentleman is correct in saying that there will be what could be described as an exchange of profiles. However, it is not about another signatory to the treaty being able to access the database and sharing responsibility for it, in case anyone gets that impression. It is about whether they can request samples and whether we agree to share them in specified circumstances. I hope that that reassures the Committee.

The hon. Gentleman mentioned familial links. They are an important aspect of identifying potential suspects, as well as the innocent. We will publish proposals in the White Paper on the use of DNA, but we do not envisage it extending beyond the current uses set out in PACE.

The hon. Gentleman made a point about primary legislation, which I promised to come back to. I started by saying the we are involved in a process and that the judgment made in December in the European Court of Human Rights set a clock ticking. There were options for looking at the issue and for complying within the 12-month time scale. We decided that we would begin work on it but would also involve the public. I will come on to the hon. Gentleman’s point about why we did not do it sooner. I believe that involving the public strengthens our case for when we go back to Europe and argue that  we have complied with the judgment. It helps to clarify, in our mind, what the future rules should be, and helps us to make our case in Europe.

What would the alternative have been? Would it have been that, after December, we, as a Government, drew up proposals, which would have to have been consulted on anyway, brought them to Parliament at some point and had primary legislation, which would have had to be scrutinized in the way that he talked about—an alternative system, but scrutinized in that manner? He has been in Parliament long enough to understand. Does he seriously believe that we could have completed that process and complied with the judgment? I cannot agree with him. That is a difficulty of operating within the time scale. We had to make a choice and we have made the right one.

Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

On that point, the Government have created this hole for themselves and they should stop digging. They have had ample opportunity to consider this issue. It has been discussed in Parliament before. Another model has been tried and tested in Scotland. If clauses on gangs can be tabled and brought forward for discussion in such a short period and included in primary legislation, the same could be done on DNA.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction) 3:00 pm, 26th February 2009

I am disappointed that the hon. Gentleman is suggesting that we should short-circuit the system by using primary legislation to rebalance the matter. That would short-circuit the public consultation that we are signed up to. We have not hidden away and then brought forward a series of proposals on a take-it-or-leave-it basis. We have opened up the debate to ensure that we get to a position of compliance. We have also ensured that we can be much more confident in the way the database is used in the future. He keeps referring to the Scottish model. Let us talk about that as part of the consultation. He can bring forward that model as part of his argument for reforming the methods.

The hon. Gentleman said that the Government should bring forward amendments at this stage and that we should not be surprised by the judgment. The Government did not expect that judgment in December 2008, in part because when it was discussed in our system there was a unanimous decision in the House of Lords. How could we have been expected to believe that the European Court of Human Rights would make that decision? Having decided to fight the case in Europe because we believed passionately that it was the right case to make, what signal would we have sent had we started making the changes that would be needed if the decision went against us? That would have been a strange case of putting the cart before the horse. Therefore, I do not accept the argument that we should not be surprised. We were surprised and disappointed because that outcome was not expected.

Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

I made a dual point. First, the Government should not have been surprised, partly because we were so out of kilter with the rest of the democratic world. Secondly, having been surprised, they should realise the arguments have been well rehearsed over a long period. If the Government could bring forward clauses for primary legislation on gangs so quickly in response to the court judgment on the Birmingham case, why could the same not have been done on DNA? This is a well-rehearsed argument.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

The hon. Gentleman started his remarks by stating how important this issue is. I hope that he also accepts that it is a complex issue. As I told him, the Home Secretary said in December 2008 that children under 10 would be taken off the database. I have assured him that a lot of work has been done on that, but that it has not yet been completed. There are a small number of cases. It is not a case of going to the database and simply taking them off. Many of these cases are complex. Taking them off can be justified, but often there is also a reason for leaving them on.

The hon. Gentleman underestimates the complexity of the case in saying that we should have proposals for primary legislation in February in response to a judgment that was made in December. As I keep saying to him, to do so would write out the other part of the equation that we want to see, which is a full and proper debate. That was part of the judgment in December. The court accepted that there was public concern and that, by implication, there should be public debate.

Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

Could the Minister explain what that complexity is? I am not talking just about children under the age of 10, which is one of the lowest ages of criminal responsibility in the democratic world, but about children from 10 to 18. The matter is not complex. If they have been charged and convicted, they should stay on the database. If they have not been charged or have been charged and found innocent, they should be taken off it. The only complexity relates to a small section at the bottom end of the database made up of under-10s who are below the age of criminal responsibility.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

I am delighted that the hon. Gentleman has started to raise exceptions. Once one gets into what looks like a very straightforward principle exceptions often emerge. It is often more complex than he suggests. He himself, in raising issues that were part of amendments that were not selected, started to put conditions. He started to describe the sort of areas where exceptions would be made. When we start on that process it is anything but easy. Other factors often need to be taken into consideration.

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

The Minister has given us various reasons why the Government are proceeding down this route. He sets great store by the need for public consultation and public engagement, which I do not necessarily deny, albeit that I disagree with his analysis of what primary legislation can do. However, can he tell us what form he envisages the public consultation will take?

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

I cannot give a definitive answer to that. I do not think that the hon. Gentleman really expected me to say that I could. This is work in progress. We are committed to bringing forward a White Paper. I have told him, because some of them grow out of the judgment itself, the sort of areas that we will be looking at. He is well aware of the kind of issues that are involved here. We will have a full consultation with the public on this matter.

James Brokenshireindicated dissent.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

The hon. Gentleman shakes his head. But in an earlier debate when we talked about consultation on the mandatory code on alcohol I gave him a commitment that we would share information about who was part of the pre-consultation and what the issues were at a very  early stage. If the hon. Gentleman does not have that information he will get it extremely shortly. I can also tell him that there will be a full consultation on that practice. Could he give us the benefit of the doubt and accept that if a Minister stands up and says, “There will be a full consultation on this matter,” we will stick to our word? I cannot, of course, tell him exactly what the consultation will be, but I am sure that if he and others find that it is not extensive enough they will seek to make it so. We want the fullest, widest consultation.

Let me return to the other comments that the hon. Member for Chesterfield made. He raised some pretty fundamental issues. Can we trust the database? Why is it so large? Why should some people be on it and others be off it? Those are precisely the issues that the consultation will look at and Parliament will decide upon. But he and others are in danger of ignoring the other side of the argument. Of the 200,000 profiles that would not have been on the register had things taken a different route, 6,290 were from people involved in 14,000 offences, including 114 murders and 116 rapes.

We all get e-mails from people asking how they can get off the register and why people should hold data on them. But we have a responsibility in this House to think about the other side. We have to think about the families of people who have been murdered and raped and the families of people who have been exonerated by the use of this database. If we had gone down the route that the hon. Gentleman suggested at an earlier stage it would simply not be available to us.

Photo of Simon Burns Simon Burns Opposition Whip (Commons)

I am impressed by the Minister’s impassioned plea on behalf of the victims of crime, but there is another side to the coin. What about those people who are innocent who have given their DNA and are then not charged because they are innocent? Why should they have their DNA on a register when they are totally innocent?

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

That is precisely what the Court issue was all about. That is why the Government are bringing forward not just consultation but proposals to change the threshold. We will address that issue. The point I am making is that one cannot make that argument on the one hand and then dismiss the usefulness of the DNA database. It plays a very important part in policing in this country. I got the impression from listening to the hon. Member for Chesterfield that if he is not careful he will not only underestimate but underplay the importance of the database. He listed, twice, organisations that can tell us that we have got it wrong. He talked a great deal about Scotland, but Scotland has a different system and a devolved Government, as he well knows. It does not have to be the same south of the border as it is north of it. He not only gave a list of people whom we should be listening to—whom we will listen to—but said that the majority of people, and most rational people, certainly agree with him. He might be right, but we will test that by letting the public have their say. Let us have a public consultation. Going down the hon. Gentleman’s route and looking at his prescription would have denied the public their say. Let us get a sense of balance here. I welcome a public consultation but I do not have the confidence in the hon. Gentleman’s position that he has.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

Not at the moment, because I do not want to end on a discordant note. The hon. Gentleman introduced a series of amendments that were not accepted, and for obvious reasons I do not wish to dwell on that. However, I welcome such amendments being tabled because the ideas they contain are precisely the sort of things that should help to form our debate. I very much welcome what the hon. Gentleman has said.

Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

As I said in what I think was my opening sentence on the issue, DNA has been a fantastic advance in helping to catch criminals. It should, however, never be used without corroborating evidence. In only 0.35 per cent. of convictions based on DNA is the DNA of the innocent 25 per cent. of the 4 million people on the database used. That is a very tiny percentage. I hope that in the promised public consultation the Government uses the stats and not emotive headlines. I gave four examples, two in detail, of people who are often quoted by the Government as evidence that having innocent people’s DNA on the database leads to convictions, for murder and so on. That was not the case in my two detailed examples. I hope that the consultation will be based on genuine facts and not on saying that having all those innocent people on the database is essential to catching all these criminals. That is not effective in 99.65 per cent. of cases.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

Before I finish my remarks, I say to the hon. Gentleman that the judgment in the European Court of Human Rights was not that innocent people’s DNA could not be retained. It placed conditions on retention, stating circumstances in which DNA could be retained. What I have tried to say throughout this debate is that the Government will respond to the European Court of Human Rights. We will comply with it, and in doing so the threshold will change.

This is an appropriate opportunity to look at the wide issue. The hon. Members for Chesterfield and for Hornchurch have both accepted that there is widespread public concern and the need for a debate. We have discussed the issue for some time; it is a regular at questions and it is often raised in Home Office debates. So, let us have that debate. Our proposal is the best way, within the time scale that the judgment gives us, to get the balance right between the rights of the individual, which the court case highlighted, and the rights of the rest of the community to be safe and be kept safe. Part of that is having and using a DNA database. Despite all that has been said, we think that our new clauses are the correct way forward.

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

The Committee divided: Ayes 7, Noes 4.

Division number 11 Nimrod Review — Statement — New Clause 33

Aye: 7 MPs

No: 4 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

Question put, That the clause be added to the Bill.

The Committee divided: Ayes 7, Noes 4.

Division number 12 Nimrod Review — Statement — New Clause 33

Aye: 7 MPs

No: 4 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

New clause 33 added to the Bill.