Clause 3

Protection of Freedoms Bill – in a Public Bill Committee at 4:00 pm on 29th March 2011.

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Amendment moved (this day): 19, in clause 3, page 3, line 30, leave out ‘3’ and insert ‘6’.—(Clive Efford.)

Question proposed, That the amendment be made.

Photo of Martin Caton Martin Caton Labour, Gower

I remind the Committee that with this we are discussing the following: amendment 20, in clause 3, page 3, line 32, leave out ‘3’ and insert ‘6’.

Amendment 22, in clause 4, page 5, line 19, at end insert ‘Otherwise the retention period is 6 years.’.

Amendment 23, in clause 4, page 5, line 21, at end add—

‘(4) If the person was under the age of 18 at the time of the offence the retention period is 3 years.’.

Amendment 36, in clause 9, page 7, line 39, after ‘retained’, insert ‘for an initial period of six years, then’.

Amendment 32, in clause 25, page 16, line 12, leave out ‘3’ and insert ‘6’.

Amendment 33, in clause 25, page 16, line 22, leave out ‘3’ and insert ‘6’.

Amendment 34, in clause 25, page 16, line 25, after ‘derived’, insert ‘6 years or more’.

Amendment 35, in clause 25, page 16, line 30, at end insert—

‘(d) in the case of material taken or derived less than six years before the commencement day from a person who—

(i) was arrested for, or charged with, the offence and

(ii) has not been convicted of the offence, the destruction of the material at the end of the period of six years beginning with the day on which the material was taken or derived.’.

Photo of John Robertson John Robertson Labour, Glasgow North West

I am looking for clarification on the clause and answers to the questions that I asked earlier. Some points were made to me about why DNA should not be as important as I deem it to be. DNA can be useful in many cases. As a supporter of identity cards, I thought that that would be another area where it was going to be used. Alas, that was another Bill that I supported that has bitten the dust, but there we go. Having said that, it is important for some Government Members to remember that not everyone agrees with them. Some of us Opposition Members probably think that we should not agree with them, but we are entitled to our opinion, just as Government Members are entitled to theirs. As much as I honour their opinion, I expect them to do the same to mine. Just because they disagree with me does not mean that I am wrong; just that they think I am wrong. In my case, I know that I am right, but there we go. I made that point for Government Members; perhaps I will remember that when I am asking questions. I am not doing it just to be awkward, but because I want to know the answers.

We talked about the law. Of course the law in Scotland is slightly different from the law in England. Scottish law is made not so much on an evidence base but according to what is probable. I have made some inquiries since last week’s evidence sessions with the police, and I talked to some friends who are lawyers, and to the police force north of the border, about the difference between the three-year and six-year provision and why Scotland went down the road of three years. To be perfectly honest, no one could tell me exactly why the three-year provision was chosen, but they said that the part of the law that allows them to go back to court is perceived differently from how it would be south of the border.

To that effect, I wonder whether the Minister, in citing Scottish ideas of the law, might be slightly misguided. As seems to have happened in Scotland, I wonder whether, because this is done on a probability or a possibility base, the police have not bothered to use this law at all since its inception. Some people might think  that that is because the police did not say that they wanted the period for holding DNA increased beyond three years and that they were happy with three years. It appears that that may not be the case. We will never know, of course, because we will not be able to do the investigation. After the Bill has passed through Parliament and we go to a three-year-period, there will not be much point asking whether someone was right or wrong—it will be too late. The horse will have bolted and we will be stuck with what we have, at least until another Government come in and perhaps change it. Who knows—perhaps the same Government will take another look and change it, although that is unlikely.

I asked the Minister about the cost issue. When I spoke to the people in Scotland whom I mentioned earlier, they said that the cost of extending the period from three years to six put a big question mark on whether it was worth doing—particularly for something that is based not on evidence but on the judge’s perception, at that time, of reliability. If there is some question in police’s mind that it is a waste of their time and effort—a waste of the money it would cost to bring the case to a judge, and a waste of the time that would be spent by everyone involved in deliberating whether to extend the period from three years to six—the chances of the police doing that are remote. They have plenty of other things they have to do that take up a lot of time, and their going through this process is unlikely.

That brings me back to the 1,000 cases issue that we discussed earlier. I would have liked a breakdown of the cases the police were talking about. If they were very minor, perhaps we do not really care, although I would say—I made this point from the other side of the Chamber when we were in government—that we always seem to neglect the victims of the crime. We are so busy looking after the human rights of those who did the crime that we have a habit of forgetting those of the person who has had ill done to them. I wonder whether we go down a road we do not want to go down in some cases. In these 1,000 cases, that may come back to haunt us one day. Perhaps we will never know. Why will we never know? Because we have not looked at whether we should extend the period from three years to six, or to somewhere in between.

Alternatively, as my hon. Friend the Member for Eltham said, the Minister may be correct. Perhaps three years is right, but we will never know because the Government’s position is already so entrenched that they have no thought that they might be wrong. That is a big mistake for any Government to make, and if my Government were making it I would say so. I did so in the past when I thought the previous Government were going too far. It is the duty of every Member of this House to do that if they think their party is going a step too far—if, for example, a lawyers charter for making money is being created, as we discussed in debating a previous Bill, ensuring that enough ambiguity exists within the system for lawyers to make a fortune for years, while the victims never get the justice they deserve. I am sure that colleagues will come across many such cases in years to come, just as those of us who have been in Parliament for some time have dealt with such cases in the past.

Given that the Government are engaged in a cost-cutting exercise, which they are very good at, will the Minister tell me how much this system will cost to set up? He  could tell me how much the system under the Crime and Security Act 2010 cost to set up, but how much will this one cost? How much will it cost if the police try to get an extension from three to six years? How long would it take to get that extension? Could they get a judge out of bed one night, as is done for a warrant to raid a house, or do they have to take it to court and go through the rigmarole of defence lawyers and so on? If so, we need to know how much that will cost at the end of day.

I am willing to listen and I am open to the Government’s stance on a lot of things in the Bill. I have my concerns, which I have expressed, in particular on using a form of law south of the border that is not based on evidence, compared with one based on evidence. I have always said that I have a real problem with the “not proven” verdict that we can get north of the border, where the person is found neither innocent nor guilty, which could be an “innocent” verdict with the stigma of guilt written in, although not an actual “guilty” verdict. People’s innocence can be brought into question because they or their lawyer could not persuade the jury to acquit, rather than to give a “not proven” verdict. I would hate to see that happen south of the border as well.

I ask the Minister to look at the costs. If he cannot supply the figures—I doubt whether he will be able to supply them all—I am sure he will write to us with the answers. I also ask him to consider the different styles of law north and south of the border. When writing a Bill, it is important that the same rules should be followed south of the border as north of the border, where I come from.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

This has been a helpful debate, highlighting some of the distinctions and differences of approach, with the Opposition’s starting point perhaps contrasting with where the Government are. The hon. Member for Glasgow North West has highlighted his opinion, as did the Opposition spokesman, the hon. Member for Eltham. I get a strong sense that their starting point would be indefinite retention, with the hon. Member for Glasgow North West perhaps wanting to see the DNA database expanded. That argument is respectable. Equally, however, I disagree with it; indefinite retention would not be proportionate, and that is my and the Government’s view.

Photo of Jenny Chapman Jenny Chapman Labour, Darlington

I have listened to the debate extremely carefully. I would argue that our starting position is not as put forward by my hon. Friend the Member for Glasgow North West, but that we want the approach to be based on evidence. From the evidence I have been reading, a retention period of six years would seem to mark the point at which the figures for the population that would have its DNA retained equals those for the rest of the population. That is our starting point and we have not heard anything from the Minister to suggest a retention period of three years.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

We will come to that, I assure the hon. Lady. I appreciate that she might not have been in the House at the time, but the previous Government’s starting position was that they wanted to indefinite retention, hence the changes made under them. In  response to the challenges that arose, the Home Office initially said it wanted 12 years, which got battered down to six years. All I am suggesting is that the starting position of the then Government had been indefinite retention, whereas the Conservative and Liberal Democrat starting point has been “innocent until proven guilty”. That is a difference of approach between the Government and the Opposition. We will come on to points about the evidence and the hazard rate analysis.

Photo of Jenny Chapman Jenny Chapman Labour, Darlington

I am more interested in what the Government are about to do, rather than in the positions of the past. However, in the hazard rate analysis, once the level of error is built in for both populations, six years would seem to be a minimum period. If we allow the errors, based on the evidence, we could be looking more at a period of 10 years.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office) 4:15 pm, 29th March 2011

If the hon. Lady is now exhorting her Front Bench to go for a 10-year period, that may be news to them. Perhaps it is consistent with the line of approach that I have been articulating.

The hazard rate analysis, which I examined closely at the time and have continued to review, in many ways supports a three-year retention period. That was the view that the Home Affairs Committee ultimately reached. Regarding the same evidence that the hon. Lady has quoted as suggesting a six-year period, the Information Commissioner states that he

“does not consider that the evidence presented supports a general period of anything like six years.”

It is interesting that the Information Commissioner, taking the self-same information that the hon. Lady and the hon. Member for Eltham pray in aid, suggests a shorter period. I read a lot out this morning about a three-year retention period, and how it was quite robust regarding the sensitivities from which the hon. Lady draws her conclusions. Ultimately, there is evidence, but it points to a three-year period, because of the way in which the hazard rate curve comes down rapidly after the first three years. If anything, that supports the Government’s argument.

Photo of Jenny Chapman Jenny Chapman Labour, Darlington

I refer the Minister to the hazard rate analysis, which states:

“If the general population risk were, for instance, three per cent instead of our current estimate of five,” which the report acknowledges may be high,

“the risks of criminality would equalise after 11 years rather than six.”

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

I point to the specific reference in the hazard rate analysis. The previous Government were content to adopt a three-year period for young people, even though the hazard rate analysis showed that that was the area where there was the most likelihood of offending. If the hon. Lady is correct in her suggestion, no doubt the previous Labour Government would not have listened and would have stuck to the six-year period. The hazard rate analysis document is quite interesting and useful in many ways in setting out the information about a three-year period. The previous Government were very happy to adopt a three-year period for what the hon. Lady herself may agree is the  highest-risk age group. Perhaps there might not be so much difference between the two sides; if the previous Government were happy with three years for young people, perhaps they might be prepared—

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

I want to move on, because I am conscious that we need to cover a number of points in this debate. Perhaps the hon. Lady needs to listen to her own leader, who said on 24 August:

“I want to take my party on a journey to a different identity for the future: social democratic on economic policy, standing for redistribution and tackling inequality, liberal in our respect for individual rights.”

We will see whether that sense of liberalism is reflected in the party’s approach, but the problem is that it is not borne out by what we are seeing. Despite the rhetoric about the new Liberals on the other side of the Committee, Labour Members are not acting in a liberal way. It will be interesting to see how this progresses, in view of some of the statements that have been made and some of the rhetoric about change in how the Opposition consider and reflect on what the future holds. Equally, that needs to be borne out in their actions and their approach to a number of the issues that we have before us.

Photo of John Robertson John Robertson Labour, Glasgow North West

The job of Opposition is to ask questions and to scrutinise. If the Minister honestly expects the Opposition to sit and say nothing, he would be better telling the Liberals to come and sit here. Then we will have them sitting here doing nothing, as they are over there. Perhaps we can agree that it is our job to ask the questions. The fact that he shut down my hon. Friend the Member for Darlington from asking a question would suggest that he does not want to hear anything that has a go at his Bill.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

I will respond to the hon. Member for Glasgow North West, because I am pleased and grateful to have the support of the Minister for Equalities, my hon. Friend the hon. Member for Hornsey and Wood Green, sitting alongside me, who will be playing an essential part in the consideration of the Bill. The hon. Gentleman’s pejorative comments were pretty ill-directed in the message they were seeking to send.

The hon. Gentleman wants to look at evidence. In essence, the argument is that the more DNA we retain, the higher the detections and the greater the impact on crime and bringing crimes to justice. I say clearly, that is not borne out by historical evidence. If one takes the figures from 2005-06—after the change relating to DNA taken on arrest rather than charge—the total DNA-related detections were 40,000. The latest information I have for last year is that detections were down to 32,000.

In the light of the significant growth in the DNA database over that time by around a couple of million—I am happy to confirm the details—is it the case that, as night follows day, the more on the database, the higher the detections? That is not borne out by what has happened. The Opposition may say that there have not been so many detections because crime has fallen so significantly. Even if one accepted that argument, the fact is that total DNA-related detections, as a proportion of total force detections over that time, went down from  3% to 2.7%. Even on that basis, the argument does not stack up. That is without taking into account the increase in the numbers on the DNA database over that time.

I say clearly that there is evidence to show that simply putting more people on the database does not equate to more detections. We are comfortable looking at past evidence, rather than seeking to guess and extrapolate, albeit that the hazard rate analysis is interesting and useful in supporting the case that we seek to make.

Photo of Jenny Chapman Jenny Chapman Labour, Darlington

Our position is not that we want more people on the database; we want to get the right people on the database. Criminologists know a lot of things, but the only thing they know for sure is that the most reliable indicator of future criminality is being arrested for a crime. That is why we want those people on the database.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

The hon. Lady is saying that arrest is criminality. She is suggesting that simply because someone is arrested they are guilty. That is not necessarily a fruitful line of argument.

Photo of Rehman Chishti Rehman Chishti Conservative, Gillingham and Rainham

The hon. Lady talks about getting the right people on the database. Will the Minister clarify and confirm that according to Home Office statistics from 2007, 500,000 people were wrongly put on that system? That is why the system has to change.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

My hon. Friend makes a very important point, of around 1 million people without any current convictions sitting on the national DNA database. I hope the hon. Lady would accept that simply putting people who are innocent until proven guilty on the DNA database is not in principle the right approach. With the DNA expansion programme that took place under the previous Government, there was a desire to get as many people on to the DNA database as possible and to keep them on there. It was only as a consequence of the S. and Marper judgment that there was any acknowledgment, reluctantly, that that might be the wrong course of action. So that is the history to all of this. It is important to highlight that to give some context and background to our debate.

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

Does the Minister agree that there is one respect in which one should extend the DNA database, and that is for people who have been found guilty but whose DNA is not currently there?

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

That is a point of agreement on both sides. There should be the right to take DNA samples from those who have been convicted of offences and whose DNA has not been taken. That was a point of agreement under the previous Government. I said that at that time when I was on the Opposition Benches. Obviously that power has been implemented and as we heard in evidence last week, the Association of Chief Police Officers is now taking it forward to get convicted people on the database.

There is a sense of proportionality and judgment and we can look at the evidence historically and at what the previous Government produced. But even as the analysis  that was cited in that document showed, it is ultimately a question of judgment. We judged that the previous Government put the line in the wrong place and we believe that the changes that we are making in the Bill take the appropriate and proportionate line in that regard.

There was also an analysis of the Scottish system, to take on board the point made by the hon. Member for Glasgow North West. Professor James Fraser, an eminent expert in forensics, examined the robustness of the Scottish system taking account of the views of stakeholders, the available information and experience elsewhere. He concluded that the

“retention of forensic data for a three-year period, from individuals subject to proceedings for relevant sexual or violent offences but not convicted, is in principle, appropriate.”

It was not that there was no analysis or consideration: there was as part of the review undertaken by Professor Fraser.

It is not just me who recognised that this was the case. I draw the Committee’s attention to the letter that Lord Bach sent to Lord Pannick following a debate on DNA retention. Referring to the Fraser report, he wrote:

“He did not uncover any evidence to suggest that this approach to retention has caused any detriment to the detection of serious crime in Scotland.”

Lord Bach, then Under-Secretary of State at the Ministry of Justice, drew attention to the examination by Professor Fraser of the Scottish system which supported the three years, plus two years’ extension.

The hon. Member for Glasgow North West referred to costs. According to the regulatory impact assessment, the initial set-up costs are £10.8 million and the average annual running costs are £3.1 million. So the set-up costs are materially lower than those envisaged in the Crime and Security Act 2010. There is a clear difference here. We believe on the basis of historical evidence and the analysis that has been undertaken in relation to the future—the hazard rate analysis curve—that three years is an appropriate period for retention.

I recognise that there is a broad range of views in this area but I ask the Committee to recognise that the weight of opinion in various arenas is in favour of the Scottish model, as we heard from Liberty, Justice, the Law Society, the Criminal Bar Association and GeneWatch in oral evidence last Tuesday. We have consistently supported the adoption of the Scottish model and that was a central plank of the programme for Government announced last May. We believe it represents an appropriate balance between the rights of those who have not been convicted by a court and the necessities of public protection in some of the most difficult cases.

Photo of Jenny Chapman Jenny Chapman Labour, Darlington 4:30 pm, 29th March 2011

Has any analysis been done of the different intervals at which crimes are committed following arrest? I have read research that suggests that in the initial three-year period, when the Minister is right to say there is a very steep drop-off in criminality, most of those crimes will be relatively less serious in the minds of most people. There is a much longer interval between initial arrest and subsequent arrest for very serious crimes, such as sexual crimes or nasty, violent crimes.  What analysis have the Government made of the difference in the length of time that it would be sensible to retain DNA on different crime types?

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

We have looked at a number of pieces of evidence. The hazard rate analysis has been helpful in that regard, and indicates why we think that three years is appropriate. In that analysis, it was interesting that sexual crimes and violent crimes were also highlighted as a potential distinction, which is a reason why we put specific emphasis on those cases. Again, that was an issue for the previous Government. They made distinctions between serious crimes and less serious crimes, as embodied in the 2010 Act.

Photo of Jenny Chapman Jenny Chapman Labour, Darlington

I cannot resist intervening, because the Minister is wrong, although I am truly grateful to him for giving way again. The report says that offenders very rarely tend to be specialist offenders and, most often, they are generalists. It is therefore not possible to tell on first arrest, depending on the crime that they have been arrested for, what future crimes people might commit. The Government just do not have the evidence to support treating DNA in this way.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

I again refer to the quote from the then Labour Justice Minister, Lord Bach, who made the point that the different approach of the Scottish system did not have a material impact on the ability to solve serious crimes. The hazard rate analysis draws this out in one of the charts relating to sexual offences and serious violence. It looks at a one-year period, when there could be repeat offences within the same category of offences, so the document draws attention to that specific point.

In suggesting that six years is the appropriate period, the Opposition have the balance wrong. It is interesting that there is some confusion; they were willing to start off with a three-year period, albeit not in the way that we would frame it in the clause. We have different views that are not likely to be reconciled in the course of this sitting. None the less, in light of our debate, I ask the hon. Member for Eltham to withdraw his amendment.

Photo of Clive Efford Clive Efford Labour, Eltham

We fundamentally differ in our approach to the matter. As my hon. Friends the Members for Darlington and for Glasgow North West have attempted to point out, we are not arguing for a fixed position on length of time. As was said at the time of the 2010 Act, we need detailed analysis of the assistance that retention of details for more than three years, and up to six, gives the police for detecting and preventing crime. We can then consider whether the measure is appropriate, or whether four, two, five, seven or eight years would be better. As the Minister indicated, some data in the hazard rate analysis suggest that there are issues about a longer period. We are not proposing that or arguing for it; what we are saying is that there must be an evidence-based approach.

The Minister has responded to some issues, but there is still the matter of extensions. It has been made clear to us that extensions are unlikely to be sought by the police and that none, as yet, has been sought in Scotland, as my hon. Friend the Member for Glasgow North West said. Has ACPO outlined any costs for taking steps to extend the retention of materials? I suspect that the figure is zero, since the association has already said  that it cannot manage the process on a case-by-case basis given that there are so many items on the database. My hon. Friend the Member for Glasgow North West asked about that, and I wonder if the Minister has been given any information from ACPO about it.

My hon. Friend the Member for Darlington raised important issues about the hazard rate analysis, not least that the first crime is not a sign of what might take place later. Also, for more serious crimes, she has seen data that suggest that there will be a longer time lapse between arrest for a first offence and committing a second or more serious crime. We fundamentally disagree with the Minister about such matters, and we shall press the amendment to a Division.

Question put, That the amendment be made.

The Committee divided: Ayes 6, Noes 10.

Division number 1 Decision Time — Clause 3

Aye: 6 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Amendment proposed: 20, in clause 3, page 3, line 32, leave out ‘3’ and insert ‘6’.—(Clive Efford.)

Question put, That the amendment be made.

The Committee divided: Ayes 6, Noes 10.

Division number 2 Decision Time — Clause 3

Aye: 6 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Clive Efford Clive Efford Labour, Eltham

I beg to move amendment 21, in clause 3, page 3, leave out from line 37 to end of Clause.

Photo of Martin Caton Martin Caton Labour, Gower

With this it will be convenient to discuss the following:

Amendment 28, in clause 3, page 3, leave out lines 37 to 39 and insert—

‘(7) The responsible chief officer of police or a specified chief officer of police may write to a person on the DNA database to notify them that an extension of the retention period is necessary on an opt-out basis.

(7A) If the person responds wanting to opt-out, the responsible chief officer of police or a specified chief officer of police may apply to a District Judge (Magistrates’ Courts) for an order extending the retention period.’.

Amendment 29, in clause 3, page 3, leave out lines 37 to 39 and insert—

‘(7) The responsible chief officer of police or a specified chief officer of police may write to a person on the DNA database to notify them that an extension of the retention period is necessary on an opt-out basis.

(7A) If the person responds wanting to opt-out, the responsible chief officer of police or a specified chief officer of police may apply to a District Judge (Magistrates’ Courts) for an order extending the retention period.

(7B) The commencement of new section 63F shall not take place before the following—

(a) the Secretary of State must make an order made by statutory instrument which sets out circumstances in which DNA will be retained and a criteria for extension decisions,

(b) the Statutory Instrument has been laid before, and approved by a resolution of, both Houses of Parliament.’.

Amendment 30, in clause 3, page 3, leave out lines 37 to 39 and insert—

‘(7) The responsible chief officer of police or a specified chief officer of police may write to a person on the DNA database to notify them that an extension of the retention period is necessary on an opt-out basis.

(7A) If the person responds wanting to opt-out, the responsible chief officer of police or a specified chief officer of police may apply to a District Judge (Magistrates’ Courts) for an order extending the retention period.

(7B) The person on the database may apply for the Court to be held on camera.’.

Amendment 31, in clause 3, page 3, leave out lines 37 to 39 and insert—

‘(7) The responsible chief officer of police or a specified chief officer of police may write to a person on the DNA database to notify them that an extension of the retention period is necessary on an opt-out basis.

(7A) If the person responds wanting to opt-out, the responsible chief officer of police or a specified chief officer of police may apply to a District Judge (Magistrates’ Courts) for an order extending the retention period.

(7B) The person will remain on the DNA database, including after the initial retention period, if the court process is subject to delay.’.

Photo of Clive Efford Clive Efford Labour, Eltham

The amendments deal with the process whereby the police may apply for someone’s DNA to be retained for an extended period. The Bill proposes that such applications should be made through a magistrates court. We suggest that in the first instance it may be more appropriate for the police simply to write to the person indicating their intention. That might avoid a whole load of bureaucracy and unnecessary court time.

We are also concerned that, theoretically, somebody could be arrested for something prescribed by the Secretary of State—a serious violent or sexual offence, say—but not convicted, so they are innocent before the courts. The police might then make an application because of their concern about the nature of the crime. Despite the matter not being tested before the courts and not being proven, that person’s name would be put before the courts and a public procedure undertaken in which the police would set out a case for the retention of their DNA.

If I am wrong, I am happy to be put right by the Minister, but my understanding from reading the Bill is that it is theoretically possible that a person in such circumstances, whose DNA has been retained under a prescribed procedure, could find themselves named in open court. That seems a retrograde step. It would clearly cause distress to that person. Even though their DNA had been retained for a serious crime, they might be innocent so it could have an enormous effect on their life; they might feel stigmatised by having gone through the courts.

Professor Alec Jeffreys gave evidence to the Select Committee for its report on DNA last year. He cited a case in which someone apparently committed suicide because of the shame they felt at being on the DNA database. Somebody who had been through open court, and whose name had been used in open court, would presumably feel that even more severely. That is a concern, and it is worthy of the Committee’s discussion to determine whether the procedure will be that such applications are to be made in open court and, therefore, reportable in the local press. Magistrates courts could put a restriction on the reporting of such cases, but in close-knit communities no restriction can be put on word of mouth. In theory, somebody could find themselves stigmatised.

I might have misread the Bill, but this is a probing amendment and I am happy to be put right by the Minister. The amendment suggests that if there is disagreement, the matter could then go before a magistrates court to be determined. If the police write to an individual and say, “We are minded to keep your DNA for an extended period,” and the person says, “No, I do not agree with that,” there has to be some sort of adjudication. That is our proposal, but Governments have the habit of accepting only amendments that have been drafted by the parliamentary counsel. The DNA strategy board could deal with the matter if the Government do not accept this excellent amendment. Perhaps another adjudicating body should deal with such situations in camera, without the full glare of someone being named in public.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North 4:45 pm, 29th March 2011

Is the hon. Gentleman not concerned about an officer writing a letter in that fashion? If he recalls the evidence given on the historic gross indecency convictions, he might be concerned that such letters may in themselves intrude into the private lives of individuals who receive them. Family or friends may see them, which may be injurious to the recipient.

Photo of Clive Efford Clive Efford Labour, Eltham

The hon. Gentleman makes a good point, which may be true. Presumably, the person would have received a letter telling them that they were going to court, so I am not sure where it begins and ends—perhaps they get a text message.

Photo of Nicola Blackwood Nicola Blackwood Conservative, Oxford West and Abingdon

I think my hon. Friend’s point is that the letters in the proposal would go to every single person whose name is removed from the database rather than only to those for whom the police choose to extend the retention period.  As we have seen in evidence from the Scottish model, that will by no means be for the majority of those who are having their names removed.

Photo of Clive Efford Clive Efford Labour, Eltham

I am sorry if I have given that impression and have misled the hon. Lady. That is not what I suggest; I merely suggest that if the police were minded to keep someone’s data, they should indicate their intention to that person.

I accept the point that the hon. Member for Northampton North has made. Even under the Bill, however, if the police were inclined to keep someone’s data for longer, they would have to communicate with the person in some way. In that case, the same situation applies, and the matter is worthy of further consideration. Perhaps the hon. Gentleman will draft a more accurate amendment.

Photo of Gareth Johnson Gareth Johnson Conservative, Dartford

Will the hon. Gentleman concede that an additional difficulty with the amendment is the service of documents? From my experience, in approximately a quarter of summonses some difficulty arises in the service of documents—people move addresses and so on. Of course, people might level allegations at the police, saying that they have deliberately sent letters to addresses they knew were incorrect, and so on. How would the hon. Gentleman tackle that problem if the amendment were accepted?

Photo of Clive Efford Clive Efford Labour, Eltham

We are opening up a number of interesting questions that had not occurred to me. Such questions apply, of course, both to our proposal and the Government’s provision. I shall take the hon. Gentleman through the process, if I understand it correctly. The police assess an individual case and then decide whether they want to extend the retention of that material. To do so, they must apply to a magistrates court. They might send a letter to people saying, “Look, we don’t need to go to court. If you’re in agreement, we’ll keep your information for another couple of years,” or they might send one saying, “We intend to apply for this extension and we are going to the magistrates court. This is what you need to do and these are your rights.” The problem that the hon. Member for Dartford has highlighted would apply to both procedures equally, so we have the same problem.

Photo of Gareth Johnson Gareth Johnson Conservative, Dartford

The difference between the two systems is that there will at least be a judicial process in the Government’s provision. Under the hon. Gentleman’s amendment, all that is required is that a letter be sent. Such a letter might go into the great blue yonder, and the DNA extension would apply if there were no reply.

Photo of Clive Efford Clive Efford Labour, Eltham

The hon. Gentleman may understand something that I do not. How does he think that the process in the Bill will be communicated to the individuals concerned? Presumably they will have to be told. Under those circumstances, I cannot see the difference. The documents still need to be delivered, whether that is done using my proposal or that of the Government.

Photo of Gareth Johnson Gareth Johnson Conservative, Dartford

The point is that it is something the court can take into account. The court can say that it is not satisfied there has been an adequate service, and therefore it will not extend the time limit. Under the  amendment, no one would know whether the service had taken place, and it would simply be the case that they had not had a return.

Photo of Clive Efford Clive Efford Labour, Eltham

If the police are concerned about an individual, I hope they would have some idea where that individual is, and that they would ensure they elicited some sort of response before taking any action. We have returned to the same problem. The court will have to make a decision based on the evidence put before it by the police. Are we saying that the court will make that judgment in the absence of any response from the individual, and that no attempt will be made to contact that individual? As far as the procedure is concerned, the DNA strategy board will oversee the management of the data and can issue guidance. The proposals for the strategy board are not dissimilar from proposals in the previous legislation, and they will include an oversight of how the police manage the information. They could also include an oversight as to how the procedure works.

The Bill is aimed at protecting the civil liberties of innocent people. I would find it difficult if one of my constituents came to me because their name was going to be presented before a court, and the police said that they wanted to keep that person’s data for a longer period. We would all have a great deal of difficulty dealing with that piece of casework if it came our way, and I have suggested a means by which we might avoid that but still have some oversight. The points made by Government Members are legitimate in terms of having oversight of the process, but, as I understand it, that lies with the DNA strategy board.

Photo of Steven Baker Steven Baker Conservative, Wycombe

I am struggling to see why the hon. Gentleman does not object in principle to the retention of DNA for everyone who has been arrested but not convicted.

Photo of Clive Efford Clive Efford Labour, Eltham

The procedure in the Bill allows the police to apply for an extension. I am merely trying to set out a mechanism that would not involve the person being named in public. The Minister may say that it does not actually mean that, and that there is a simple way round it. I cannot see it in the Bill, but the Minister will point out if I am in error. The points made by Government Members are legitimate, but—I repeat—they are legitimate concerns about the procedure that we would follow under the legislation. The Government may want to consider those issues further. It would concern many people if an innocent person who had not been before a court or convicted of anything were named in court by the police as someone whose DNA they want to retain.

The most disturbing thing about the legislation is that this entire discussion could be completely hypothetical, given that ACPO has said that it does not think there will be any of these applications. Effectively, we are talking about a three-year limit. That is peculiar because the Government have accepted in principle that there are situations in which that period should be more than three years, otherwise the measure would not be in the Bill. There are people whose data it is reasonable to retain for more than a three-year period, and there should be the ability to extend that. In Scotland, that period can be extended and there is no limit on the number of extensions. This legislation allows for just one extension. If that is the case, I go back to the point  that my hon. Friend the Member for Darlington made earlier about the hazard curve, and the fact that there are people who have a propensity to be re-arrested within that six-year period. The Government clearly recognise that, because they desire an extension up to a maximum of five years.

If ACPO is telling us the truth—I have no reason to suggest that it is not—and this will actually happen despite there being the power to apply for extensions, we are talking about a three-year limit here, with no extension. ACPO says that it does not have the resources to analyse a list of 6 million items of data and come up with the individual records that it would find it desirable to keep. That means that we are talking about an effective three-year limit with no extensions. We must be clear about that, because that was the evidence presented to us by ACPO.

The other concern I have is that ACPO, perhaps under guidance from the DNA strategy board, may come up with a blanket approach. It might set the criteria by which it would apply for those extensions. In itself, it will be a problem for any individual who is arraigned in court for their biometric materials to be retained for an extended period, because everyone will know why they are there—the process will stigmatise them. I suggest that that process will not be used, and that it is more likely to be used if there were an arrangement where it could be agreed between individuals and minimise the number of cases that have to go before the court.

The process of applying for extensions seems fraught with problems, both if they are granted, and if they are applied for at all. ACPO says that they will not be used—they are not used in Scotland and will not be here—so we are talking about a three-year limit even for those cases where we would perhaps be alarmed that the data would be released after three years. There might only be a handful of them, as the hon. Member for Gillingham and Rainham said this morning, but even so we would potentially be preventing very serious crimes, so there is concern about that. There is also concern about the impact on the individuals should the police enter into this process.

I would be grateful if the Minister were to respond to my points. If I have just been wittering on and speaking complete rubbish for the past 20 minutes or so—he is my neighbour as an MP and is far too decent a chap to be rude to me—I apologise. However, if that is the process, we would all be concerned if a constituent of ours came to tell us that their name was going to be used in court in that way.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office) 5:00 pm, 29th March 2011

I thank the hon. Member for Eltham for his kind personal comments, and I certainly would not be unkind enough to say that he had been talking nonsense in that way. [ Interruption. ] I am sorry that I caused him to laugh because I know that that is not necessary good for his health either, even though he has his Strepsils with him. However, it can be dangerous to challenge the parliamentary draftsmen, as I think he perhaps did.

I was grateful for the hon. Gentleman’s explanation because I had looked at amendment 30 quizzically. It states that the

“person on the database may apply for the Court to be held on camera”, and I thought that was a way of discouraging people from going forward with their application. The court would be filmed and the recording used in a way that might discourage people from challenging or seeking to use the powers or rights. I suspect that that is a typographical error and that it should read “in camera,” but it is precisely for that reason that I am grateful that I have parliamentary counsel on this side to assist with drafting issues.

The amendments would provide alternative arrangements to replace the Scottish model for extending the retention of biometric material from unconvicted individuals with an opt-out system, in which if a person did not object to their material being retained for longer, the police could just retain it and would not have to make an application to the courts. Amendment 29 would add to that basic formula a requirement for guidance on the criteria for extended retention. Amendment 30 would provide that any hearings before the court may take place in camera—or “on camera”—and amendment 31 would enable the police to retain material pending the outcome of the court’s decision.

I shall first deal with the proposed opt-out mechanism. The Government consider that the judiciary’s involvement in the process in respect of every application to retain material for more than three years provides an appropriate independent check on the police’s power to retain material. Although we have some sympathy with the potential saving in police and court time that such a system might produce, we believe that the oversight provided by the courts is an important way of increasing public confidence in how the police use and retain DNA—public confidence is particularly relevant here. In addition, given that almost three years would have passed since the individual was arrested, I would have concerns that an individual might have their DNA retained for an extended period purely because they had moved house and the police were unable to contact them. Hon. Friends have made some important points about how that might operate, but it might simply be that someone has moved house, communication is not possible and there is a subsequent automatic retention. I would certainly not want indefinite retention by the back door to be almost created in that manner.

It might also be the case that far from reducing the administrative burden on the police, the approach would increase it, as it would require them to send a notification to all affected persons, advising them of their right to opt out. I am all for streamlining the process, but the amendments could have the opposite effect.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Health), Shadow DUP Spokesperson (Transport)

Last week in my constituency there was a horrendous attack on an elderly lady. I spoke to the police about it, and they said that they would want to have DNA retention for a longer period. I am curious to know what discussions the hon. Gentleman has had with the police. Have they said that they want a DNA bank retained for a longer period than the one that the coalition suggests, and if so, is he prepared to take that on board? From what the police tell me, they do want a longer period.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

The hon. Gentleman might have missed the preceding mini-debate. We certainly took that issue through in some detail, and considered six  years versus three years and three years or not for young people. ACPO’s previous position was ideally to retain for as long as possible, but we have considered the issue carefully in the context of what is appropriate and believe that the right balance has been struck. I do not want to reopen some of our debates on the previous group of amendments.

On the add-ons to the proposed opt-out system, in relation to amendment 29 it would not be appropriate for the Home Secretary to give guidance to members of the judiciary about how they exercise their functions. Such guidance might be seen to fetter their independence. However, I am happy to consider whether guidance to the police would be appropriate in such circumstances, and if so, who might give it. I point out that there is no such guidance in Scotland, where sheriffs have a general discretion when considering applications from the police.

Photo of Clive Efford Clive Efford Labour, Eltham

I always preface questions like this by saying, “I am not a lawyer”—why am I looking at the hon. Member for Northampton North?—but what is the difference between what is in the amendment, which the Minister says would mean the Secretary of State providing guidance to the judiciary, and the prescribed cases, where the Secretary of State would allow retention via the commissioner for the use and retention of biometric material? Do they not provide the same limitation on circumstances in which retention can be extended?

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

There is a big distinction between a commissioner and a court and, on the separation of powers, between the judiciary and a commissioner who may be appointed under statutes. I make that point to explain why the hon. Gentleman’s amendment is not appropriate in the context of the review that would be undertaken by a magistrates court. I am aware that there is a body of opinion that hearings before a district judge in those circumstances should not take place in open court, given that such individuals are innocent by definition, which I think is the key argument that the hon. Gentleman is advancing in his amendments.

We would normally expect such hearings to take place in private—in a closed court or in the judge’s chambers. However, the decision on whether to do that is for the judge hearing the case, and that would normally be provided for in the rules of the court, which are set by the judiciary, rather than in legislation. For those reasons, amendment 30 is not necessary, because of the separation of powers issues that I have alluded to.

Finally, on amendment 31, the police’s ability to retain material pending the outcome of an extension hearing is implicit in the clause, as any other outcome would render the proceedings redundant. Therefore, that amendment is also unnecessary. For those reasons, I invite the hon. Gentleman to withdraw his amendment.

Photo of Clive Efford Clive Efford Labour, Eltham

Will the Minister clarify the process that came up during our exchange? The procedure is that the police decide that they want to extend the retention of a piece of biometric information, but do they have to apply to the commissioner before they go to the court? Under the guidance from the Secretary of State to the commissioner on prescribed cases—for want of a better term—does the commissioner decide that the police may apply for that extension? Is that the correct procedure?

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

No, it is not. Just for clarification, the role of the commissioner in relation to sexual or violent crimes in cases where someone has been arrested but not charged is on the decision as to whether there should be an initial three-year retention period. In other words, the police have to make reference to the commissioner to have the right to retain material for that category of person—someone who has not been charged with an offence—for the initial three-year period. It is at the time of seeking a two-year extension that an application would have to be made to the court, whether in that class of case, or in cases of people who had been charged but not convicted of offences and where the initial three-year period had already been triggered. The police would therefore be applying to the court only for the two-year extension beyond the initial three-year period. In such circumstances, it would not be the role of the commissioner, purely that of the court, given our argument for the need for judicial oversight of the two-year extension.

Photo of Clive Efford Clive Efford Labour, Eltham

The commissioner is involved in the initial decision to retain but has no further involvement if the police want to consider an extension. That is curious—it would seem logical for the commissioner to reconsider whether an extension was appropriate. Many of the cases might fall at that point and not reach open court. Is there a specific reason why the commissioner is not involved at that stage?

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

Ultimately, it is a question of liberty at that point—with a two-year extension taking the total to five years, we believe that an appropriate check and safeguard is to have the case in court, for a decision at that time by the magistrate.

We have a tiered level of oversight for that specific group of those who have been arrested for but not charged with a sexual offence or a crime of violence, with the scrutiny of the commissioner and then, more generally, if there is to be a further extension from three to five years, determination by the judiciary. That is why we believe the safeguard to be the appropriate one in that situation.

I hope that the hon. Gentleman will withdraw his amendment.

Photo of Clive Efford Clive Efford Labour, Eltham

I am grateful to the Minister for his response, but my concerns remain. I shall not press the amendment to a Division, but I wonder whether a court procedure is proportionate in such a case, because the person has not committed any crime. I am reassured that the proceedings will take place behind closed doors, but it is something for someone to have their name taken before a magistrate, with the police making a case.

We are talking about the protection of people’s rights and, in this case, the rights of people who are innocent. Yes, there is an infringement of people’s civil liberties in the retention of their profile in the national DNA database—I accept that—but is that proportionate to being taken before a local magistrates court as suggested?

As I understand it, the process can take place without the person’s knowledge. I apologise if the flaw is in the drafting, but the intention was for the police to seek a response from the individuals concerned, not just to fire off a letter, pop into court and extend the retention of their DNA. If there is no response, of course some  independent body has to adjudicate. In this case, it is the courts, but it might be a process going through the national DNA strategy board.

That said, I hope the Government will take on board the concerns, give the issue more thought and see if there is a way of being less authoritarian with people on the process by which we seek the extension.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Health), Shadow DUP Spokesperson (Transport)

Last week in the papers—I think the Evening Standard—the headlines were about the gentleman who was caught for the vicious rapes and burglaries, and the case only happened because he was caught trying to burgle the house and the police had DNA that went back 17 years. Is that not an example of the need to have a larger DNA retention bank?

Photo of Clive Efford Clive Efford Labour, Eltham

We have been through that point in a great deal of detail, and we shall probably return to it as we proceed through more of the clauses. The hon. Gentleman expresses a concern about how much the changes in the Bill will limit the ability of the police to detect and prevent serious crime. That is the thrust of our arguments.

I was mistaken in what I indicated—we do want to press the amendment to a vote. I apologise for misleading you, Mr Caton, but then a celestial voice whispered in my ear, from somewhere, so we will be pressing for a Division.

Question put, That the amendment be made.

The Committee divided: Ayes 7, Noes 10.

Division number 3 Decision Time — Clause 3

Aye: 7 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Photo of Clive Efford Clive Efford Labour, Eltham

It has been a pleasure to debate this clause, which is probably one of the most controversial clauses in relation to DNA. The youthful Minister is an innocent-looking individual who hardly looks weathered enough to be a Member of Parliament. I am afraid, however, that he has fallen among a bad lot—the Liberals—and it is not good for him. It is making him do things that, instinctively, he would not normally do. We are concerned about him.

The issue is a matter of balance and, as the Minister said earlier, drawing the line in relation to what period we should retain people’s biometric details for. We say that it should be evidence-based. The previous Government did not go into power on a promise to introduce control  orders or automatic retention of DNA on arrest. It was events that led to the legislation that introduced those things. There was public demand for new technology to be used, as DNA became more and more effective and serious crimes were detected. It is events that will affect this Government in years to come. The public will respond to those events and demand that the Government take action. It is public opinion and the demands of constituents that force Members of Parliament to legislate and introduce laws that protect the public and that, at times, infringe on civil liberties.

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

But does the hon. Gentleman agree that many Members—possibly all of them—have also received strong representations from people who want the DNA database to be scaled back?

Photo of Clive Efford Clive Efford Labour, Eltham

I do not deny that there are people who are concerned about the DNA database. I prefaced my comments by saying that a balance needs to be struck. It is about where the line is drawn. The Minister referred to detection rates. In spite of the fact that the DNA database had grown, they are down to 32,000. That is a piece of evidence that suggests that the blanket approach to retaining DNA may not be the most effective and may make the database unwieldy. We need, however, to make that decision on the basis of evidence. The analysis of the evidence will prove to us, in light of experience, whether what is in the Bill is the best way to proceed, or whether DNA should be retained for a longer period.

The Minister referred to Professor Fraser’s analysis, which he undertook in 2008—the year after the three-year system was introduced in Scotland. There is a letter to the Chair of the Select Committee from the Home Office. There is no name at the bottom of the letter, which I have printed out from the parliamentary website, unfortunately, but it is presumably from a Home Office Minister:

“It has been suggested that the research carried out into the Scottish system (by Professor Fraser) did not uncover any evidence to suggest that the Scottish approach to retention had caused any detriment to the detection of…crime. However, that is to misunderstand this research which did not assess whether alternative systems would have been more effective. It was also unable to review how many serious crimes went undetected as the relevant DNA profiles had been deleted and, therefore, was not in a position to conclude whether there was any detriment to the detection of serious crime.”

That was the evidence that was presented to the Select Committee and calls into question the evidence base that is used in the impact assessment by the Government to support the proposal for three years.

My hon. Friend the Member for Darlington did a very detailed analysis—I hope that she will contribute to the debate—of the hazard rate analysis and how that tapers off, and the likelihood of people who have been arrested being re-arrested for a crime, and the length of time that can elapse between being arrested and when they commit a serious crime. Those are issues that we need to analyse in the light of hard evidence, and I suggest to the Minister that we do not have that evidence yet.

Photo of Jenny Chapman Jenny Chapman Labour, Darlington

The hon. Member for Carshalton and Wallington let the cat out of the bag when it was revealed that hon. Members on the Government Benches  had received many representations suggesting that the public are not happy with the DNA database. That suggests to me that that decision is politically motivated and not based on evidence at all.

Photo of Clive Efford Clive Efford Labour, Eltham

It is true to say that some of the bold statements about civil liberties issues that were made before the election have boxed people into taking a position on certain issues. I would not normally pray in aid in these circumstances George Monbiot—not one of the greatest fans of the previous Labour Government and their legislative record, particularly relating to civil liberties—but he has an amusing article in The Guardian today pointing out the huge gaping holes in the Bill—what is laughingly called the freedom Bill. He welcomes how far it goes, but then points out the sorts of things that the hon. Member for Carshalton and Wallington would no doubt want to see in the next Queen’s Speech for the coalition Government, in his No. 2 freedom Bill, which he mentioned on Second Reading.

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

I am entirely confident that the Minister, who is seeking to intervene on the hon. Gentleman, will confirm that this is not the end of the story in relation to protection of freedoms.

Photo of Clive Efford Clive Efford Labour, Eltham

I am almost speechless. I am looking across at Conservative Members and they are just being told that the next Queen’s Speech is being written as we deliberate.

Photo of Martin Caton Martin Caton Labour, Gower

Order. Can we concentrate on the Bill?

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

I was particularly interested that the hon. Gentleman was quoting that article from The Guardian. Will he confirm whether Mr Monbiot welcomed the reform of the DNA database as part of the Bill?

Photo of Clive Efford Clive Efford Labour, Eltham

Mr Monbiot is bound to welcome any step in the right direction as assessed by him. However, the body of the article’s argument was that the sweeping statements that people have made about civil liberties, the Bill and how they were going to liberate everyone from the yoke of legislation under the Labour Government were a bit overblown.

Photo of Rehman Chishti Rehman Chishti Conservative, Gillingham and Rainham

On the point about civil liberties, does the hon. Gentleman agree with the assertion made by the leader of his own party, which was that Labour was far too casual about civil liberties under the previous two Prime Ministers?

Hon. Members:

A split.

Photo of Clive Efford Clive Efford Labour, Eltham

The Labour party is never split.

Every new leader has to assert themselves and set a new direction for their party. I think that the Home Secretary once said, “We were the nasty party.” She called the Conservatives the nasty party, and they had  to change. We have all been there and we have all done it. We have all got the T-shirt and the scars on our backs.

When dealing with the clause, I was searching around for bits and pieces to help me make my argument. I came across this thing called the “Policeman’s Song” [Hon. Members: “Sing it.”] I will not sing it to you, Mr Caton—not that you would not be entertained if I did, but because I am not a good singer. One could interpret that to suggest that it fits in with what we are discussing, on the issue of balance. The lyrics say:

“When a felon’s not engaged in his employment,

Or maturing his felonious little plans,

His capacity for innocent enjoyment,

Is just as great as any honest man’s.

Our feelings we with difficulty smother,

When constabulary duty’s to be done.

Ah, take one consideration with another,

A policeman’s lot is not a happy one.”

It is certainly not a happy one in relation to the Bill and the tools that are currently in the toolkit of the police in fighting crime. The lyrics suggest that there is a balance. We cannot jump to conclusions about people’s guilt or innocence, and there is a duty on us as MPs to strike that balance, but in doing so, not unreasonably diminish the ability of the police to carry out their duties. The Bill seeks to limit one of the most useful tools in the toolkit of the police, without an evidence base for doing so.

To return to the point that was made when we were debating the amendments, it may well be that the three-year period is the correct one, but there is no evidence to back it up at the moment. However, we would have the ability to produce that evidence by using the DNA database on a six-year basis and analysing whether there are any benefits in retaining DNA beyond three years for up to six years. That is the thrust of the argument, and the position that the Government were left in when the 2010 Act was passed.

As I said earlier, I did not start with a fixed view on the matter—new leader, new beginning—and I was able to review where we have stood on such issues and determine whether a six-year period or a three-year period is the correct one. The more I have looked into this, the more I see the problems of managing the process. There are civil liberties issues about the retention of DNA. There are organisations and private companies that will still retain DNA material that cannot be removed on their databases, although personal identification will be removed. Dr Wallace from GeneWatch said as much in his evidence in answer to a question from my hon. Friend the Member for Darlington—

Photo of Clive Efford Clive Efford Labour, Eltham

I beg your pardon. It is not that I need glasses, but I was not there for the evidence. I simply read the evidence. She said that there was concern about that material being retained. There is an issue of trust, and that needs to be monitored and overseen to ensure that the public can have confidence in what is being held and how. As for the detailed DNA information that the  forensic science services have, an individual can be identified. The information there is their DNA ID, which is not removable, and a single individual can be identified.

The Bill, as I said earlier when I was poking fun at it, is called the Protection of Freedoms Bill, but we should change its name to the bits and pieces Bill—give a bit here, shave a bit off there, take a little bit back over there. It has certainly been over-hyped amid claims that the Bill means that all innocent people will have their DNA removed from the database. That is not true. We have had suggestions from the Deputy Prime Minister and great sweeping statements about how the Government will be sweeping away all the restrictions on people’s liberties. Even on Second Reading, the Secretary of State had to be pulled up by my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), who warned her that she was suggesting that every innocent person would have their DNA removed from the database, and the Secretary of State had to accept that that was not the case. It goes back to the point that I made earlier when we were debating the first amendment. The way that people have approached this debate has often been inaccurate and has led to people misinterpreting how we are dealing with DNA profiles.

The Secretary of State, as the Minister has done, referred to the ability to retain DNA in certain circumstances. It will be interesting to tease out from the Minister what is behind the Government’s thinking and what those certain circumstances are. He has referred to vulnerable people, but what does that mean and how far do the Government intend to go in prescribing for the retention of DNA material? If we are to consider the Bill as the measure that wins freedom for people who otherwise might unfairly have their personal data retained on the national DNA database, we cannot go through it and then find that the Secretary of State decides to do something else. We really need some indication from the Government of just how far they intend to go with prescribing so that we know exactly what we are talking about. We may even want the Secretary of State to go further. There may be some crimes that she is not intending to include that some of us feel may need to be included.

I do not want to be pulled up by you again, Mr Caton, but we know that the hon. Member for Carshalton and Wallington is planning the next Queen’s Speech and the protection of freedoms Bill No. 2. And we have some very powerful lobbying groups and individuals—[Interruption.] There is nothing wrong with that. I am sure that we in Labour will enjoy the spectacle of the Liberals drawing up the next Queen’s Speech for the coalition.

Photo of Nicola Blackwood Nicola Blackwood Conservative, Oxford West and Abingdon

I just want to make the very small point at this stage that some of us on the Conservative Benches are also civil libertarians. It is not only the Liberal Democrats who are civil libertarians.

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

May I reassure the hon. Gentleman that anything that is put forward as a protection of freedoms Bill No. 2 will, of course, be agreed with our coalition partners?

Photo of Clive Efford Clive Efford Labour, Eltham

It is all fine on the day—and then there are tears afterwards.

As I was saying, we have some very powerful lobbying groups who are also pressing us. We heard from the Information Commissioner that we should not have speculative searches and that the record of someone who has been arrested but not charged or cautioned should not even be on the police database. I am sure that the direction of travel for some of the people supporting the Bill goes further than many of us here might want to accept.

On the argument that there should be no speculative searches, there are some cases where people have been identified as a result of a speculative search. The case I referred to earlier was that of Abdul Aziz. He was arrested for a minor drugs offence and he would have been subjected to a speculative search, but his DNA would not have been retained. Five months later, he committed a very serious crime. The changes we are proposing to the Bill involve an issue that the public are greatly concerned about.

We will be losing some of this data for ever—that is the point. We have an opportunity here to do something that could prove to all of us, once and for all, how long we should retain DNA for. This limit will be a three-year limit because we have heard from ACPO that it is unlikely to be able to administer applications for extensions. Imposing a three-year limit will mean that we miss an opportunity, and once the data have gone, we have missed the opportunity for ever.

The Minister corrected me this morning regarding the conclusion of the Select Committee report on the DNA database. I went back and checked because I did not believe that I had read the conclusion incorrectly. I do not know what I have identified; however, the Minister read out the conclusion on the back page. I selected paragraph 37 from within the report. It says:

“Decisions on retention periods must balance public safety against individual privacy. The current situation of indefinite retention of the DNA profiles of those arrested but not convicted is impossible to defend in light of the judgment of the European Court of Human Rights and unacceptable in principle. However, given the complexity of the issues and the conflicting evidence about what would be an appropriate length of time for retention, we are unable to recommend a specific period other than to say that we would regard three years as the minimum length of time for which such profiles should be retained.”

So, when I was quoting from the report this morning and talking about a “minimum” length of time, I was quoting paragraph 37 from within the body of the report. I knew that the Minister would not be misleading the Committee, and nor was I. However, we have highlighted a little anomaly in the drafting of that report. So we are both right: there you go—we can all go out for a drink together later on.

In conclusion, this limit is a three-year limit, effectively, because we know that ACPO will not be able to administer any extensions. It would be useful if the Minister clarified proscribing and the role of the commissioner. He has partially done so—the commissioner will be involved in the initial application for retention but not any extension—but what will the commissioner’s role be outside national security?

What is a vulnerable victim? Is it a child, a woman who has been sexually assaulted or an elderly or disabled person? The Minister indicated that the commissioner  will be involved at least as far as that in dealing with vulnerable individuals, but he has not given any indication beyond that. If we are to consider the Bill and which innocent people’s DNA will be retained, it would be useful to have some indication from the Minister of where we are at. I am sure he will want to respond.

Photo of Steven Baker Steven Baker Conservative, Wycombe

I support the clause. We have heard a great deal this afternoon about balance; in particular, the balance between evidence and principle has come out in hon. Members’ remarks. Consideration of that balance speaks very much to the nature of the clause. A lot of the talk has been about evidence, but it struck me that it has also been a conversation about counterfactuals. How many crimes will we not detect if we adopt the measure? I am not sure how one proves how many crimes have not been detected.

The hon. Member for Darlington complained that the measure might be political and not evidential, and she said it with considerable passion. For me, the hon. Lady ably demonstrated that we have adopted a kind of managerialism on the subject that is not driven by principle. It is a fear of consequences, perhaps, rather than what we stand for fundamentally.

If I remember correctly, the hon. Member for Glasgow North West mentioned the Scottish principle of “not proven”, which I would like to pick up. When the Minister talked about our commitment to innocent until proven guilty, which I welcome and fully support, I was reminded of the hon. Gentleman’s remarks. Pressure groups such as the Adam Smith Institute have written to us on this, and if we adopt the measure, in doing so we somehow pick up the Scottish idea of not proven. We charge someone, they are not convicted and yet we put them under the taint of suspicion by retaining their DNA. The hon. Lady mentioned criminologists and their notion that—forgive me if I misphrase this, I am only an engineer—the fundamental pointer to criminality is having been arrested.

Photo of Jenny Chapman Jenny Chapman Labour, Darlington

I am not a criminologist either, or a lawyer or an engineer; in fact, I was a housewife before I came here.

Photo of Jenny Chapman Jenny Chapman Labour, Darlington

Thank you. The point I made was that arrests were an indicator. There are many indicators, but that is the most reliable one we have.

Photo of Steven Baker Steven Baker Conservative, Wycombe

I am most grateful to the hon. Lady for that clarification; nevertheless, I say that that principle stands in stark contrast to the notion of innocent until proven guilty.

The clause is a balance. It is already a balance between the principle of innocent until proven guilty and, knowing what the hon. Lady has told us, concern that we might not detect certain crimes. It is by no means a dogmatic application of principle, and I know that many will criticise it, but it heads in the right direction in what I could describe—without wishing to be overly pejorative—as a slightly neurotic atmosphere of concern. I believe that we should go further and be more principled. We should assert innocent until proven guilty. If we were to adopt the Scottish notion of not proven and have people living under the taint of suspicion simply because they  had been arrested, I would like us to make that decision plainly and clearly, so that we know what we have adopted. Nevertheless, I shall support the Government.

Photo of John Robertson John Robertson Labour, Glasgow North West 5:45 pm, 29th March 2011

As someone who is also only an engineer, it is a pleasure to follow the hon. Gentleman. His concern about “not proven” is well founded. It solves a problem. It is not so much a case of, as he put it, somebody who is innocent being deemed guilty. In a lot of ways, it is the other way around. It is the case of somebody who is innocent being not proven and the person then always seen as guilty by a certain part of the population. There is a probability that he could be guilty and a probability that he could be innocent. It is something that I have always felt strongly about, and one of the few things that I think is better down south is that part of the law. Unfortunately, there is not much else. [ Laughter. ] I only say that in case someone from Scotland reads this. I have family back home and although I am not worried so much about others, I am worried about my family. To be serious for a second, I know no songs, so I shall just plod along with my speech as I see fit.

My hon. Friend the Member for Eltham mentioned public confidence, which is, more than anything else, what we are talking about: public confidence first in the law and, secondly in the Government. It does not matter whether I am a member of the Opposition or of the Government. The country is governed by the Government and, at the end of the day, no matter what we put together in the House, it will be the Government’s stamp on it; but we will all be associated with it one way or another, no matter whether we were in favour of it or against it. We have been elected to the House of Commons and we vote accordingly. Whether we win or lose a vote, we still have to stand by the result, so there has to be confidence in the Government, and I include everyone in that.

I do not believe there is confidence, because we are using flawed research. As my hon. Friend said when he talked about Professor Fraser, the evidence that we took in two days was much more expansive than Professor Fraser’s research and its conclusions. We have based the decision on a Scottish way of working that came from research that, although it might be disingenuous to call it flawed as a whole, is certainly flawed in relation to this Bill. There was not enough evidence to make decisions. The Government have to take an extra look at what they are doing, or we will end up with the not proven scenario to which the hon. Member for Wycombe referred.

The bodies who were not consulted included, of course, the police—the people who have to catch the criminals and help to get them convicted and into prison. If we do not talk to the people who actually have to deal with the law, how can we possibly have confidence in it? I believe that is the cornerstone of what my hon. Friend the Member for Eltham was saying and, to some extent, of what the Minister has been trying to say. I do not have confidence in the Bill. We cannot go forward with it knowing that we are using a set of rules and guidelines from somebody whose research did not cover all the bases, to use an American phrase.

I do not believe that all the bases were covered, so I honestly think that the Minister needs to look at the issue again. If he does not and the Bill goes to the  House of Lords, I hope the Lords will look at the evidence and perhaps take some extra evidence from north of the border that will alleviate my concerns. We could then progress with a Bill that I at least had some confidence in, even though I might not be happy with it.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

We have had an impassioned debate. I respect the views expressed by Members from both sides of the Committee. This country claims a pioneering role in the utilisation of DNA technology, which is something that we can be proud of. Two engineers have contributed to the debate, and the hon. Member for Glasgow North West takes the issue of technology and its development extremely seriously. He and I have had a number of discussions outside the House on technology-related matters, so I know of his passion for such facets and factors. In taking that pioneering role, however, we have a special responsibility to ensure that it is used in a way that strikes the right balance on what is permissible when it comes to potential interference in people’s private lives. That is at the core of this afternoon’s debate.

The Leader of the Opposition was right when he said that

“we must always remember that British liberties were hard fought and hard won over hundreds of years. We should always take the greatest care in protecting them. And too often we seemed casual about them.”

I refer to that speech because the hon. Member for Eltham said that events took us in a particular direction or down a particular path. The Leader of the Opposition was right: we have to consider the basic principles and fundamentals of liberty when examining the decisions that we take. Perhaps belatedly, the Opposition recognise that they did not strike that balance correctly. I genuinely welcome that conversion. If we believe in liberty and its protection, we should welcome and celebrate all who recognise that fundamental aspect of our democratic rights.

It is in that context and on that balance that we took innocent until proven guilty as our fundamental starting point. The previous Government took the opposite view. They started at the other end, saying, “We want to protect everything; everything must be on a database, and we have to keep it there for ever and a day,” but without taking account of the question of liberty. In many ways, they were forced to change their mind as a consequence of various matters that arose, which is partly why we are debating the matter this afternoon.

One can analyse and re-analyse, but at some point one has to form a judgment. The Government have formed a judgment on the information and evidence afforded to us. It is a fair and reasonable judgment, based on analysis undertaken by the previous Government of experience in Scotland and the analysis in Professor Fraser’s report. Professor Fraser is an eminent specialist. Our conclusion is therefore reasonable and appropriate. Lord Bach, then at the Ministry of Justice, said that Professor Fraser had not uncovered

“any evidence to suggest that this approach to retention has caused any detriment to the detection of serious crime in Scotland.”

We heard such words from many Members in preceding debates on amendments to the clause. I do not want to go back over territory that we have already covered in great detail, but it is worth underlining those fundamental principles to which we all adhere.

Yes, I have made it clear that DNA is of course an important part of our criminal justice system, but it is only one part of it:

“DNA is only one of the tools” that the police use

“to suggest to the Crown Prosecution Service that someone should be charged. In most circumstances, they will need corroborative evidence, or they will need to take other factors into account.”—[Official Report, 15 November 2006; Vol. 453, c. 126.]

Those are not my words but the words of the hon. Member for Gedling. I agree with him, but it is a complex scenario.

I previously highlighted the puncturing of the bubble inherent in the previous Government’s approach—that retaining ever more DNA would make us more effective and better protected, and that more crime would be solved. That clearly was not the experience, given the detection rates that we have seen.

Photo of Clive Efford Clive Efford Labour, Eltham

The Minister has said that on a number of occasions. In the early days of DNA processing, what he is saying is accurate but the 2010 Act did not take a blanket approach to the retention of DNA. It introduced a six-year limit. We have moved on from that position, and we are debating whether it is reasonable to set a three-year limit or a six-year limit, with the proviso that we assess its effectiveness.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

I acknowledge that. I took part in discussions on the Crime and Security Bill during its passage through the House before the last general election, so I am familiar with the debate and a number of the points that we have been discussing. A number of comments made by the hon. Gentleman imply that in his view, we should be retaining evidence for a much longer period. If he is setting out the new Liberalism, or the change in approach of the previous Government and current Opposition—however one might like to characterise them—that view is not consistent. It is a question of whether we adhere to the fundamental liberties that were referred to by the Leader of the Opposition, and referred to this afternoon in the context of the judgments and decisions to be made.

Photo of Clive Efford Clive Efford Labour, Eltham

We do not suggest a length of time beyond six years. We do not propose six years because we think it is absolutely the right thing to do; as was said at the time of the 2010 Act, the provision should be reassessed with the information in place to determine whether it makes a significant difference to the detection and prevention of crime. If it does not, we can reduce the time period on the basis of empirical evidence derived from that process.

Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office)

There has been an inherent approach by the Labour party to delay, defer, not make a decision, try and keep things as they are and maintain the status quo. A fundamental judgment must be made, which is why we have looked at the evidence in detail. There is some consensus on the period of three years for under-18s who are not convicted, albeit that we would look at the matter in a different way and would not retain evidence from those who had simply been arrested for a minor crime. There was an indication that a three-year period was appropriate in those circumstances, but there is an inherent confusion in the Opposition’s standpoint.

I will address the fair point raised about vulnerability, which I spoke about during the debate this morning. I am sure the hon. Gentleman has read the comments of the Home Secretary on Second Reading on the reserve power that we seek to adopt. As I indicated, we intend to bring that forward in secondary legislation following further discussions with ACPO to deal with a number of the issues about vulnerability highlighted by the hon. Gentleman. Although the Home Secretary gave a good explanation of the issues, I have reflected on the hon. Gentleman’s request for further clarity, and I will consider his understandable concern for a level of certainty in the approach. I recognise the point and assure the hon. Gentleman that I will reflect on it carefully. I will provide the Committee and the public as a whole with clarity about the provisions relating to the potential retention of the DNA profiles of those who have been arrested but not charged, and I have set out the limited circumstances that will be used to address those issues with the oversight of the commissioner.

We have had a fair and detailed discussion and I do not intend to rehearse or go back over the detailed points that have already been examined. [Hon. Members: “ Go on.”] I appreciate that Opposition Members may wish to delay and defer debate on this issue, but fundamentally it is a question of judgment and there is a line to be drawn. Based on the information and the evidence, we believe our proposals strike a fair and proportionate balance between public protection and the right of the individual, and we feel strongly that the provisions are appropriate.

Question put, That the clause stand part of the Bill.

The Committee divided: Ayes 11, Noes 6.

Division number 4 Decision Time — Clause 3

Aye: 11 MPs

No: 6 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

Clause 3 ordered to stand part of the Bill.