Clause 3

Part of Protection of Freedoms Bill – in a Public Bill Committee at 5:00 pm on 29 March 2011.

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Photo of James Brokenshire James Brokenshire Parliamentary Under-Secretary (Home Office) 5:00, 29 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.