Lord Campbell-Savours
My Lords, I speak to Amendment 3, which stands in my name. Perhaps at this stage I can apologise to the House for not being present during proceedings in Committee, as I was back and forth to and from hospital over a six-week period and was therefore unable to attend apart from a brief debate when DNA was being discussed. I set out my position on two amendments—including the one I will be moving later—on 29 November, when I made clear I was in favour of a voluntary national DNA database. I also apologise because Amendment 3, which I wrote in November, is slightly in error. Instead of it beginning with the words,
“or if the person from whom the DNA sample or fingerprint was taken”,
it should actually have read “and only”. That is my fault.
My amendment would require the authorities to obtain the permission of the DNA sample donor prior to the removal of his or her profile from the database, but does not totally compromise the Government’s intention to introduce their proposed changes. At first glimpse, the House might find it difficult to imagine circumstances in which a donor would resist removal of his or her profile. Furthermore, the House might wish to consider in what circumstances creating this new obstacle might benefit the state.
So why would a donor resist removal, and in what circumstances? A donor may wish to ensure that he or she is ruled out of a police inquiry through a simple DNA data mismatch during an investigation. The donor might feel that by allowing the retention of their profile, they were freeing themselves of suspicion during the police investigation. They may well have personal or particular family reasons for doing so. One has to place oneself in the mind of a person who has been accused of a crime and wants to be free of a potential accusation, or even show that he or she is not involved in criminal activity or is even going straight. It might help that person’s resolve. Some former criminals, even those involved in minor offences, feel that they are constantly under suspicion. This proposal is a psychological aid to rehabilitation.
So what possible benefits could there be to the state? I will not pray in aid the general arguments for the retention of DNA in the fight against crime. That is all well documented. However, there is a reasonable discussion to be had about whether, in the absence of DNA information following its removal, at least some residual information should be held on former donors. It was argued repeatedly in Committee that the proposed retention period was too short in the case of serious cases of rape and other crimes of violence. The Government’s response was the two-year possible extension period.
However, there are surely circumstances in which the state, while not retaining the DNA information, has an interest in at least knowing the whereabouts of a person who has previously been charged with a serious criminal offence. Let us not forget that “beyond reasonable doubt” is a high hurdle. Criminals who are successfully prosecuted often drop off the radar, as do those who are not successfully prosecuted. They move on in the process of seeking to cover their tracks. If DNA information is to be lost, the police should at least have the opportunity of retaining some point of contact, or knowledge of the whereabouts of former donors. Some who have been charged with offences will either surface at a contact address to request removal of the DNA data, to avoid detection in the future, or will steer clear of requesting removal, so as to avoid revealing their whereabouts. This may well happen in the case of people who have moved abroad, outside of what they believe to be UK jurisdiction. However, there will of course be those who have surfaced to request the removal of DNA data as a matter of principle. I fully recognise that these are complicated arguments; I suppose that they relate more to criminal psychology than to any empirical evidence that I am able to offer. But I merely ask the House to consider this as a proposition, perhaps for future legislation, since it is a little late at this stage
The Minister of State, Home Office (Lord Henley)
My Lords, I hope that I can deal with these two cases relatively briefly. My noble friend Lady Hamwee has brought before the House again the issue of those detained by the police and taken to a police station as a place of safety under Section 136 of the Mental Health Act. My noble friend outlined what that did, but it might help if I briefly outline my understanding.
If a person in a public place appears to be suffering from a mental disorder and in need of immediate care or control, Section 136 of the Mental Health Act allows a police officer to remove that person to a place of safety if the officer thinks it necessary to do so in the interests of that person’s protection or that of other people. I should make it clear that persons detained under Section 136 of the Mental Health Act—my noble friend emphasised this—are not arrested. That is a very important point that we all have to remember. It is an entirely separate regime, focused on the protection of the detained individual rather than the wider public. The powers to take DNA and fingerprints in Part 5 of the Police and Criminal Evidence Act 1984 apply only to those individuals arrested for a recordable offence. If a person was arrested for a non-recordable offence, such as speeding, or if they were not arrested at all but detained under the provisions that we are talking about, as is the case under Section 136, the powers simply would not apply.
If the police were to take biometrics in these circumstances, it would be not only an error on the part of the police but in fact unlawful. Under new Section 63D(2)(a) of the Police and Criminal Evidence Act, as inserted by Clause 1 of this Bill, if it should get on the statute book, all police officers would be under an obligation to delete material taken in this way. Therefore, I can say to my noble friend that Amendments 1 and 2 are unnecessary in that respect. She shakes her head, but I can assure her that, because the person had not been arrested, that would be the case. Taking biometrics from a person detained under Section 136 of the Mental Health Act is already unlawful.
The police are guided in the way that they take DNA and fingerprints by the PACE code of practice D, which deals with issues of identification of persons by police officers more generally. We will need to update code D in the light of the passage of this Bill and before it comes into force. I am happy to say to the House that we will include in that revision of the code a paragraph to make it quite clear that taking biometrics from those detained under Section 136 of the Mental Health Act is unlawful.
The Earl of Erroll
Just to clarify, if the police inadvertently, even despite the new code, were to take such a sample unlawfully, presumably it would just be destroyed once they realised that they had made the mistake. There would not have to be any other rigmarole.
Lord Henley
My understanding is that it would be unlawful and that therefore they would destroy what they had taken. I can give that assurance to the noble Earl.
Lord Harris of Haringey
To clarify further, presumably part of the difficulty here is that this is an inadvertent error by the police, because they have taken somebody under Section 136 to a place of safety which in this instance has turned out to be a cell in a police station. Is not the real problem here, and the reason why, presumably, custody officers have then made this mistake, that there is an inadequate supply of places of safety in more appropriate accommodation? That is a fundamental issue. If the Government were to address that, the chance of this arising would become far less.
Lord Henley
If I may say so, that is another question. I accept the fact that it might be better if there were other places that they could take the individual to, but the important point is that they have taken that person to that cell. They have then done something wrong by taking his or her DNA in whatever form. That would be unlawful—that is what I am trying to make clear—and I hope that the noble Lord will accept that point.
I turn now to the amendment in the name of the noble Lord, Lord Campbell-Savours, and welcome him back. I had not actually noticed that he was absent from the Committee stage of the Bill, because I seem to remember that we dealt with some of these things—but perhaps it is just a fantasy that I remember us addressing these matters. I certainly remember that we had considerable discussion on these matters.
I appreciate that the noble Lord feels that he has misdrafted his amendment and would like it to read “and only” instead of “or”. We are at Report stage, so it is possibly too late to fix these things, but I suspect that it is to some extent a probing amendment. If the noble Lord remembers, we had some quite spirited discussion in Committee of what the appropriate period should be, and I dare say that we will have another one when we discuss Amendment 4, which the noble Baroness, Lady Royall, will be moving. Amendment 3 does not define that period. If one assumes that the appropriate period would be the relevant period set out in the various provisions of the Bill, I would say to the noble Lord that subsection (3) of new Section 63D of PACE, as inserted by Clause 1, already does this. Subsection (3) says that in,
“any other case,”—
in other words, except in the circumstances already provided for in subsection (2), which are where the arrest or the taking of biometrics were unlawful,
“section 63D material must be destroyed unless it is retained under any power conferred by sections 63E to 630”.
We have a general presumption that material must be destroyed unless the Bill explicitly permits its retention. I will come back to retention on that later amendment from the noble Baroness and later amendments from the noble Lord. But it must be destroyed unless the Bill explicitly permits its retention, either for a fixed period, such as for a person charged with a qualifying offence but not convicted, or for an indefinite period for those with convictions.
I hope that with that explanation my noble friend will feel able to withdraw her amendment and the noble Lord, Lord Campbell-Savours, will not press his amendment. I appreciate that we will discuss these matters in further detail on some later amendments.
Baroness Hamwee
My Lords, I do not think that we will have an opportunity to come back to mine. Of course, I am glad that the Minister and I are focused on the same outcome—the destruction of the material. My concern is that the answer to the Parliamentary Questions and the letter from the Minister rely on the new Section 63D(2) of PACE. However, as I had hoped I had explained, I do not think that it applies. The new section starts “This section applies to” and then in paragraphs (a) and (b) sets out what it applies to. My concern is that material taken when the person is not arrested, as the Minister has made clear, and has not given consent would not fall within this and therefore the provision for destruction in new Section 63D(2) would not apply.
I am glad to hear what the Minister says about the code and I am of course not going to press the amendment today. But my concern was that, by relying on a section that in my view does not apply—I do not think that we have quite bottomed it out—there might be resistance to destruction, which the Minister has said that the code will make quite clear is required. Although not within the context of the Bill, perhaps this is something that he and I might have a further word on outside the Chamber because we are clearly aiming at exactly the same outcome. Having said that, I beg leave to withdraw the amendment.
Baroness Hamwee
The noble Baroness has referred to the figures that she gave us at the previous stage. She said that 23,000 criminals a year would no longer be on the database who could commit 6,000 further crimes. She has answered the point of my noble friend Lord Phillips and confirmed that these include minor offences. Rereading Hansard, I was not clear whether the 23,000 were those within years four to six, because some of the cases mentioned in the debate related to crimes where there had been more than a six-year period.
As noble Lords said on the previous occasion we discussed this matter, it is not entirely black and white. As we discussed in Committee, if one asked a random group of the public about this, most would want a longer period of retention. That is possibly correlated with those who watch entertaining but unrealistic television dramas; I know that I am affected by these things. We all know that if you asked the same group of people about capital punishment, you would probably get a very hard-line answer, which is why most of us try to avoid asking that question.
My noble friend Lord Phillips said that though we would all agree that a society with a full range of surveillance would be a different society, few of us would be able to articulate why that was so. I have to say that I am among the less articulate on this. I do not think anyone could say that what the Government have proposed is in any way a casual approach to retention or one which completely reverses the current approach. Indeed, it is a pity that what is proposed in the Bill is so hedged about with conditions that this is not so very different a piece of legislation. I agree that, of course, we should not be casual about crime and the prevention or detection of crime. Similarly, we should not be so cautious that we are casual about privacy, our culture and the intervention of the state in our privacy. The noble Baroness said in Committee that,
“there is a fine line between the preservation of … freedom and privacy”,—[Official Report, 29/11/11; col. 146.]
on the one hand and the delivery of justice and the protection of citizens on the other. I also acknowledge the fineness of that line but I think that I am on the other side of it from her.
Lord Henley
My Lords, as always, I am very grateful to my noble friend Lord Lester of Herne Hill for his assistance and advice in relation to what the Joint Committee on Human Rights feels about this issue. I am also grateful to my noble friend Lady Hamwee for what she had to say. Certainly, we will do what we can to provide better evidence of the use of DNA in convicting criminals as and when we can. However, I refer the noble Lords, Lord Campbell-Savours and Lord Hughes of Woodside, and possibly even the noble Lord, Lord Harris of Haringey, to the figures. These are some of the figures that we have; obviously, more will become available. Since 2001, more than 4 million people have been added to the DNA database, yet despite that the number of DNA detections has fallen from 33,000 to just over 26,000 in 2009-10. There has been a vast growth in the hoarding of people’s DNA but a decline in the number of convictions. That is an important thing to remember as we look at this amendment.
I also give an assurance to the noble Lord, Lord Hughes of Woodside, who was worried that material taken from crime scenes would be lost. That is not the case. Material taken from crime scenes will still be taken; we are talking about material that is taken from individuals, whether criminals or not. That is a very different matter. My noble friend Lady Hamwee addressed a point of disagreement about whose DNA you should keep and for how long. We know that the noble Lord, Lord Campbell-Savours, feels that there should be a national database containing everyone’s data. He would like to start with a voluntary database on which we can all put our DNA. We will discuss that when we reach his amendment. That might be hunky-dory and all that but it is not what we want, nor do we think that we should pursue a compulsory line in that regard.
I have explained what evidence we have. That is something we will look at but I also think we ought to look at other matters which influence this decision. The first thing to point out to the noble Baroness, Lady Royall, is that they would replace the Government’s provisions, which meet our coalition commitment to adopt the protections of the Scottish model. She says that that model was agreed without any analysis whatever. I have given some figures and we will provide some more in due course but we will also look at the remarks of Mr Keith Vaz, chairman of the Home Affairs Select Committee, at Committee stage on this Bill in another place. We will also look at what the ECHR had to say with regard to the Marper case referred to by the noble Lord, Lord Dear. I was very grateful to him for his intervention, particularly as he stressed the important point of this being a question of balance. My noble friend Lady Hamwee also stressed that point.
I believe that the party opposite is persisting in its approach to keep the DNA and fingerprints of innocent people for many years, no matter how little evidence was ever uncovered, and to keep huge numbers of individuals’ DNA and fingerprints on the national databases just in case they go on to commit crime in the future. That is not something with which we can agree. The party opposite pays scant regard to the judgment of the European Court of Human Rights in the S and Marper case, which noted with approval the system which has been in place in Scotland for some years. I remind your Lordships that the Scottish system, seemingly endorsed by the European court and on which we have modelled the proposals in the Bill before us today, was put in place by the Police, Public Order and Criminal Justice (Scotland) Act 2006, which was presented to the Scottish Parliament by the then Labour Justice Minister, Cathy Jamieson. I do not think that the Labour Party is in power in Scotland at the moment.
Noble Lords opposite contend that our proposals are in some way a charter for dangerous criminals such as rapists which will allow dangerous individuals to roam the streets, committing serious offences with no way of tracking them down. The contention that every individual suspected of rape or any other serious offence will instantly come off the database as a result of these proposals is just not true. As we have discussed previously and at some length, those charged with a qualifying offence, including rape, will have their DNA held for three years, and the police will be able to apply to the courts to extend that by a further two years. The police will do that and that is similar to what is happening in Scotland. Those arrested for a qualifying offence but not charged—oh! I was wondering whether the noble Lord wished to intervene but he is obviously addressing his Front Bench.
Lord Campbell-Savours
If I recall correctly, my noble friend on the Front Bench said that there had been no extensions whatever in Scotland and no use of the two-year extension. Is that true? If it is true, on what basis can it be argued that it is going to happen here?
Lord Henley
I am saying that it is available to the police should that be necessary. That is the important point to get over to the noble Lord. I do not know what the figures are for Scotland. I am not responsible for Scotland. It is another Administration in charge of their—
Lord Campbell-Savours
In other words, the Government are proposing an extension of two years for England and Wales. That system already exists in Scotland but the Government do not even know what has happened in Scotland in terms of the use of the two years. Is that correct?
Lord Henley
My Lords, that provision will be available here; it is available there. That is the important point. The police will have the ability to apply to the courts. Those arrested for a qualifying offence but not charged, where the victim is vulnerable, will also have their DNA held for three years, subject to the approval of the new independent commissioner. The noble Lord may not like that but that is the case.
Lord Harris of Haringey
The Minister said that an application, which has not, or may not have been exercised in Scotland, could be made when the police consider it necessary. Could he define what he thinks would be necessary under such circumstances?
Lord Henley
I noticed the intervention made by the noble Lord earlier on that point. It would be for the police to decide whether they consider it necessary. I would not want to go any further than that at this stage. They will have to do that. These are matters that will be subject to review by the independent commissioner, which is another safeguard. I know that the noble Lord is not very keen on such safeguards, but I think they are very important.
Across the entire coalition Government we took the view, during the passage of the Crime and Security Bill and in advanced proposals on this Bill, that the correct approach is to ensure that those convicted in the past of serious offences have their DNA added to the database, while those arrested for, but not convicted of, more minor offences should not have their biometrics held beyond the end of the investigation. That is why we encouraged the police to complete Operation Sheen, which the noble Lord might have come across, which identified more than 300 subjects in prison custody who had been convicted of murder, manslaughter or any sex offence but who did not appear to have had their DNA profile recorded on the national database. That operation has been completed recently and has resulted in an additional 376 such individuals having their DNA taken and uploaded on to the database.
Having completed that work, using the provisions of the Crime and Security Act which were agreed in the final days of the previous Government, the police service has embarked on a further operation, Operation Nutmeg, which seeks to chase and sample those with similar convictions who are now in the community. As my right honourable friend the Home Secretary said at Third Reading of this Bill in the House of Commons:
“In June last year, we started a programme to identify individuals in the community who have previously been convicted of either a sexual offence or homicide, and whom the last Government failed to place on the DNA database. That process has so far identified more than 13,000 people whose identities have been passed to local police forces, and we are now working with the police to find the individuals and obtain samples”.—[Official Report, Commons, 11/10/11; col. 282.]
I believe that that sets out why we are doing this and why we are getting it right. I also believe the analysis which has been looked at by many independent experts who have considered it closely and, as my right honourable friend the Minister for crime and security said in the House of Commons Public Bill Committee,
“the Information Commissioner states that he ‘does not consider that the evidence presented’”—
that is, the evidence presented by the previous Government—
‘“supports a general period of anything like six years’”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 29/3/2011; col. 212.]
I turn finally to the remarks of the chairman of the Home Affairs Committee as I think they are apposite and they are remarks on which the noble Baroness might wish to reflect. In his contribution at the Report stage of the Crime and Security Bill in the House of Commons, the right honourable Member said,
“There were differences among those of us on the Select Committee on how long the period should be, but we came to the conclusion”—
this is again to stress the balance—
“that a three-year period probably strikes the right balance. We said that the period should not be less than three years—although it could be longer—but that three years was a reasonable length of time”.
The right honourable gentleman went on to say that on the Select Committee,
“there was a consensus that holding the data for six years was too long”.—[Official Report, Commons, 8/3/10; col. 48.]
Again I go back to what I said at previous stages of the Bill, that these are questions of balance. We think that we have the balance right; the European Court of Human Rights seems to think that we are getting the balance right; and the chairman of the Home Affairs Committee thinks that that is the case. Three years with the possibility of an extension seems to me to be about right and we think that six years is too long. I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Royall of Blaisdon
My Lords, I am grateful to all noble Lords who have participated in this brief debate and for the information provided by the Minister. I say to the noble Lord, Lord Lester, that I have huge respect for the work of the Joint Committee on Human Rights but, on this occasion, I do not agree with its conclusions wholeheartedly. I noticed that other noble Lords have noted, as the noble Lord said himself, that the Committee was asking for better recording in future and for more evidence, in effect. It has become apparent during the debate that the coalition Government are now moving towards three years but are saying that, although they want three years, in some cases five years is more appropriate. They are, as many noble Lords would agree, putting that burden on the police.
In my earlier speech, I mentioned that ACPO had said that not one single application for an extension had been made in Scotland. That is very relevant to our deliberations this evening. I completely agree with all noble Lords who have spoken that this is a matter of balance and of which side of the line one comes down on. On these Benches, I think everyone comes down on the side of wishing to preserve people’s freedom to live, protected from crime, rather than having more protection for people’s privacy. We believe that the citizens of this country would prefer that. We are worried that in future—
Baroness Royall of Blaisdon
I accept that it is a question of balance, as I have said on numerous occasions. However, I believe that it is also a question of “rather than”. We believe that, rather than people's privacy being the be-all and end-all in this argument, it is more important to retain DNA for a longer period. I see people nodding against me, if you see what I mean. I do not expect all noble Lords to agree with me but on this question of balance we come down on the protection of individuals rather than on the privacy of individuals. That is where we are.
I do not intend to move to a vote but I would be grateful if the noble Lord could come back to me with some more information which I may wish to pursue at Third Reading in relation to the three years and the five years. If this is a key plank within the arguments put forward by the Minister, as I believe it to be, it is very relevant that in Scotland it has not been used on a single occasion. I would like to know why the police in Scotland have not felt able to use this or have not felt it necessary to use it. I would be grateful if the Minister could bring back further information before Third Reading.
Lord Henley
My Lords, we are on Report so I intervene with some disquiet merely to say that I do not think that I can add anything to what I have said. I, and other colleagues on these Benches, have been saying that we have to get these things right for a matter of balance. This is also a matter that has been reflected on by the European Court of Human Rights and by our own Joint Committee on Human Rights. They think that three years is about right. We also feel that there should be the ability to extend that in certain cases. I leave it at that.
Baroness Royall of Blaisdon
My Lords, of course I recognise what the European Court of Human Rights said, but my Government, when they came to the view that the period should be six years, believed that it was compliant with the ruling of the ECHR. I was not suggesting that the Minister was going to agree with me; I was asking him to come back with further evidence of the situation in Scotland. There must be some facts and figures. The facts relating to Scotland that I have put before the House have been questioned, and I would like more facts about the situation in Scotland. I would like to know whether it is indeed the case that the police have not asked for an extension from three to five years.
Baroness Royall of Blaisdon
My Lords, I rise not to support my noble friend on behalf of the Opposition necessarily but, as I said in Committee, as an individual I have a great deal of sympathy with my noble friend’s amendment. Like my noble friend I believe that such a voluntary database would lower the level of stigma and in the future might enhance public confidence in the secure handling of data, which is very necessary. As my noble friend has said today, the state will undoubtedly hold more and more information about its citizens.
I was also very interested to hear of the response by Professor Jeffreys to Mr Gary Streeter MP, which is worth pursuing. I do not know what the Government’s response to my noble friend’s amendment will be, although I suspect that they will reject the amendment. However, it is an interesting suggestion and I hope that, if the amendment is not accepted by the Government, the National DNA Database Strategy Board will look at the proposal as perhaps something interesting to pursue on behalf of the citizens of this country and their safety.
Lord Henley
My Lords, the noble Baroness guessed right in that I will be rejecting the amendment or at least not encouraging the House to accept it. The noble Lord, Lord Campbell-Savours, like Jonathan Swift, made what is described as “a modest proposal” and claimed that I had recommended this policy in Committee with a smile on my face. The noble Lord should not always take me totally and utterly seriously, even in Committee, whether there is a smile on my face or otherwise. I will have to look carefully again at what precisely I said at that time.
If the noble Lord is of the view that he or others should be able to go along and hand in their DNA to the police, I am more than happy for them to do that. I will escort him to the police station in Workington, Carlisle or whatever town in the north-west he finds most convenient. We will go together and I will assist him in that process. Having said that, I do not think that this proposal really has much running for it, although I can see the arguments put forward by the noble Baroness, Lady Royall, about reducing stigma and other such matters. Those remarks were echoed by the noble Lord, Lord Desai, although he went on to make the important point about those who do not volunteer and whether they would have problems. I will get to that in due course.
I want to make only one or two points about the amendment because I do not think we should waste too much time on it, modest proposal though it was. First, I do not believe that there is a demand for such an idea. The police service has not been demanding the establishment of such a database and I do not believe that there is any great demand for one within civil society as a whole. There might be a few public-spirited individuals such as the noble Lord, Lord Campbell-Savours, and others who wish to come forward and provide their DNA for a database, but I suspect that they would be few and far between. I would also suggest that it is unlikely that individuals such as the noble Lord who did come forward would have any involvement in criminality, and that would be the reason they were happy to put forward their DNA. It is therefore difficult to see what the use might be for such material being stored on a voluntary database.
Secondly, I have a rather more important objection to the amendment, which relates to new subsection (11) where it proposes that the,
“National DNA Database Strategy Board shall, within a period of 12 months of commencement, report to the Secretary of State with recommendations on the establishment”,
of the database, and then in subsection (12) it sets out what the board should do. I do have to say that having the board carry out a feasibility study within 12 months of the commencement of the Bill would be asking rather a lot. The board’s workload will already be high during that period in supervising the establishment of the new procedures required by the Bill. That will take up a considerable amount of its time. The board has no resources to do this and we do not consider it appropriate to require it to do all this extra work at this time.
Having said that, I will put the smile back on my face and say that it is an interesting idea, as the noble Baroness put it, and a modest proposal. No doubt he will be more than happy to hand in his DNA in due course, but I do not think that I can support his amendment at this stage.
Lord Campbell-Savours
My Lords, I am grateful to the noble Lord, Lord Marlesford, for his recognition of the inevitability of the developments in DNA biometrics and how, in the end, there will be a national database. I am absolutely convinced of that, although it probably will not happen in my lifetime. I am also grateful to my noble friend Lord Hughes of Woodside on the question of the pilot. I do not think that this would cost the Government a lot of money. The only cost would be incurred by the strategy board in carrying out the work that is necessary for the purposes of my amendment. The fact is that we might find some great public benefactor, a private person, to fund a pilot which, over the years, might develop into a national DNA database. All I was asking was for the framework for a voluntary database to be considered, not for the Government to spend money on establishing it.
I recognise the concerns of my noble friend Lord Desai on the issue of black marks being put against those who refuse to join in. As I say, it would be voluntary, and in so far as it is voluntary I do not think that that issue would arise. I am sorry that the noble Baroness, Lady Hamwee, was not able to intervene on this occasion, because she too is recorded in Hansard as expressing the view that it might have some effect on reducing the stigma generated over the retention of DNA. I am grateful to my noble friend Lady Royall of Blaisdon for expressing the hope that we can at least consider this seriously at some stage in the future.
Perhaps I may say to the Minister that this is a debate that is going to carry on. As I have said, I believe it is utterly inevitable that this will happen. It is just a question of which Government will have the courage actually to take on the responsibility of taking the project forward. I beg leave to withdraw the amendment.
Lord Henley
Lord Henley
My Lords, I shall speak also to the other amendments in my name in this group; that is, Amendments 19, 22, 25, 26, 27, 28 and 29. We will also consider in this group Amendments 20, 21 and 23, in the name of my noble friend Lady Hamwee, and Amendment 24 in the name of the noble Baroness, Lady Royall. I shall respond to those as I come to the end of my remarks, but, at this stage, I shall speak just to my own amendments.
We consider a child’s biometric information to be highly personal and sensitive and, as such, it should be protected. It is right that schools and colleges should be required to obtain the written consent of a child’s parents if they wish to take and process this information.
We listened carefully to the concerns raised in Committee about these provisions. In particular, my noble friend Lord Lucas and the noble Lord, Lord Rosser, argued that the requirement to obtain the written consent of both parents would place too great a bureaucratic burden on schools and could have the effect of dissuading schools and colleges from using biometric recognition systems.
The Government are persuaded that we should remove the “dual consent” requirement and instead provide for a system whereby all parents, and any other individual with parental responsibility for a child, must be informed in writing that the school or college intends to take and process the child’s biometric information and that they have a right to object. As long as no one objects in writing, the written consent of only one parent will be required. This change strikes the right balance between ensuring that the views of both parents continue to be taken into account, with their right to object preserved, and ensuring that the administrative burden on schools and colleges is not too great.
The Government’s amendments also make the consent requirements in the Bill more consistent with all other forms of consent that schools and colleges are required to obtain, therefore alleviating any additional bureaucratic burden. The main difference in this instance is the express provision to notify all parents and the stipulation that, if any parent objects, the processing of their child’s biometric information cannot take place. I beg to move.
Baroness Hamwee
My Lords, my Amendments 20 and 21 are to the Minister’s Amendment 19, which, as he explained, deals with notification to parents. My amendments would include the child in the notification.
Noble Lords will be aware of provisions of the European Convention on Human Rights and the UN Convention on the Rights of the Child, both of which are relevant here. Without being technical about it, it seems to me a matter of common sense and principle that a child whose data these are should be part of this whole process. I doubt that I need spend long seeking to persuade your Lordships of that—well, I hope not; if I get a look from in front of me, perhaps I should.
The UN Committee on the Rights of the Child has made it clear that:
“The realization of the right of the child to express her or his views requires that the child be informed about the matters, options and possible decisions to be taken and their consequences by those who are responsible for hearing the child, and by the child’s parents or guardian”.
Amendment 23 follows an amendment that I had in Grand Committee relating to the provision of information. Noble Lords at that stage regarded what I was proposing as too burdensome, in that it was read as an annual requirement. I had not intended that the provision of information should be anything as burdensome as was understood, so I have brought back a simpler amendment, which would provide that the authority in question should ensure that information is provided to each parent and child on their rights, in language capable of being readily understood by them.
I am not proposing here regular pieces of paper in difficult language—I remember the noble Baroness, Lady Farrington, saying that in her experience, as both a mother and a grandmother, such pieces of paper tend to end up in the washing machine. I am simply saying that it needs to be recognised that information should be readily available, perhaps on the school’s website, along with other information. However, the provision of information in accessible language is an important principle. I understand that there has been some research that indicated that most children using biometric systems in schools had not considered how long their fingerprints would be held for. They were generally not concerned, which the researchers took as a serious matter. I am not entirely surprised that children may not think beyond what is immediately in front of them. However, it points up the need, not to shove it down children’s throats, but to make the information very easily accessible.
The Information Commissioner has made it clear that schools collecting data need to be aware that children are data subjects and that,
“it is they who should in the first instance be informed and consulted about the use of their personal data”.
The Earl of Erroll
My Lords, although I would agree that the Government have made an effort to move some way in the direction that we were talking about, I entirely agree with the remarks made by the noble Lord, Lord Rosser. For many schools, particularly the not-so-good schools, fingerprint recognition biometrics are used in order to stop a certain amount of bullying—so that you cannot, for example, tell which children are in receipt of free school meals or getting special provisions. The moment you start to have a way of distinguishing those matters, other children will have a lever to start bullying, causing disruption et cetera.
It was said that if the parents decided that the child should not have its biometrics kept they could use a card and some other system would have to be provided. But that in itself could become a target for the other children. For instance, if you knew that little Johnny had a card and was also vulnerable, what could be better than to remove his card and destroy it? He will probably not dare tell people that he has been bullied in this way. People might even use that card to gain stuff for themselves. Your Lordships might say, “It is PIN-protected”. However, it would not be very difficult for other children to bully that PIN number out of little Johnny.
We have to realise that, in the real world, these things are not ideal. These biometrics were being used to provide a much more even way of identifying children with special requirements without other children knowing that they have them. The provision could drive a coach and horses right through this very efficient way of doing it. The Government should therefore think again about what the noble Lord, Lord Rosser, said, and produce their own amendment for Third Reading. The system will need to work in that sort of way so that it can be changed and the child can opt out. If the child thinks, “I am going to get bullied”, it may well want to overrule its parents. In this case, I do not see why the child should not.
The other thing that they might want to do—although this would require a few more amendments and I would not begin to attempt those myself—is somehow to find a way of saying that if this is not working because it is starting to cause problems in schools, we could come back and change it without having to go back to primary legislation. Although I do not like the Henry VIII-clause method, perhaps we can bury some part of this in regulation whereby it could be varied if the Minister found later on that it was causing problems in schools. For instance, instead of the parents having to do an opt-in to the system it would have to be a very deliberate opt-out. Something like that could be useful, because I know this all looks great on paper but out there in the real world it does not work that well. People are not reasonable.
There are also a lot of people who cannot read and write. We talk about providing the information in a form which is easily understood by parents but I am told that the adult illiteracy rate is supposed to be 10 per cent. Perhaps it is 14 per cent, I hear, and in some schools you are going to have that. How many languages would you have to translate it into in some schools? We all seem to be assuming that people are reasonable and available, can read and write, and can understand the issues. That is very dangerous. The Minister should probably look at this and try to give himself more flexibility, in case there are some unintended consequences of what is a well-meaning part of the Bill.
The important thing which we want to end up with is that biometric information used by schools for their administration systems cannot be used outside the schools, and there are many ways of achieving that other than by this opt-in only basis. We should make sure that it is destroyed the moment that the pupil leaves, because it is not needed for administration purposes, and that is not permissible to use it in any other way. If we think that we can keep a voluntary DNA database secure from the Government, we can keep school databases secure from them and the police, or whoever. It is not the fact of the fingerprint that matters; it is what it is used for. We should perhaps make it so that it is not of evidential quality. I suggest to the Minister that he looks again at this.
Lord Henley
My Lords, I note what the noble Earl, Lord Erroll, said in his concluding remarks and we will certainly look at whether any such biometric information should ever be made available outside school. He makes a perfectly valid point on that. Perhaps I might answer some of the points that have been made in the course of this debate, then move my own amendments. It will be open to noble Lords to consider what to do with their own amendments that have been grouped with this later on.
I start with the question of language, which my noble friend Lady Hamwee raised in Amendment 23. The amendment says that information provided by schools and colleges to parents and children on their rights under these provisions must be in a language capable of being readily understood by the parent and child. In response to the noble Earl, Lord Erroll, this is true of all information that is provided to parents, whether illiterate or not, and it is something that schools always have to take into account when trying to get to their parents. As I indicated in our deliberations in Committee, the Bill provides that parental consent must be informed and freely given. Schools and colleges should take steps to ensure that parents receive full information about the processing of their child’s biometric information.
I can give an assurance that the Department for Education will issue advice to schools on the provisions in this chapter of the Bill. That advice will include a template consent form for schools to use if they wish. As well as providing information about the type of biometric information to be taken and how it will be used, the advice and the template will refer to the right of parents and pupils to refuse or withdraw their consent and the duty on schools to provide alternative arrangements for those pupils whose information cannot be processed. We will encourage schools to follow the template that we have put forward.
With the aid of this advice, I hope that my noble friend will agree that we can trust schools and colleges to provide appropriate information in the appropriate manner to provide parents and pupils with the right information without the need for an express legal requirement of the kind set out in her amendment.
I turn to my noble friend’s Amendments 20 and 21, which are amendments to government Amendment 19 and seek to ensure that children will also be notified of the processing and of their right to object. We do not consider that an express statutory provision to this effect is necessary, as schools and parents should be trusted to inform children in an age-appropriate manner of what is being proposed, and to ascertain if the child has any concerns about the processing. The proposed government advice will highlight to schools the child’s right to object, and will recommend that parents are made aware of that advice.
I turn to the amendment in the name of the noble Lord, Lord Rosser. I was worried that his arguments were oversuspicious and, at some points, over-Jesuitical. He seemed to think that there was a hidden agenda, and at times I suspect that there was an element of him protesting too much in his objections to what we do. Having said that, I have a degree of sympathy for the arguments that he put forward.
The Government believe that, regardless of their age, all children should have the right to say no to the processing of his or her biometric information, even if that is an uninformed objection from a relatively small child. No child of any age should be coerced, physically or otherwise, to give his or her biometric information. We believe that it would be wrong to ignore the wishes and feelings of even a primary-aged child in this important matter.
Lord Rosser
If that is the Government’s view for a child of primary school age, is it also their view that if that child wishes their biometric information to be processed and their parents do not, the child’s view should likewise prevail?
Lord Henley
My Lords, I was going to come to that point. The two scenarios are different. This is why I thought that at times his arguments were positively Jesuitical, with one parent pushing one way, one pushing the other and the child possibly going down a third route, if there could be a third route. Why should one or the other prevail? We think it is right that if the parents say, “No, we do not want that”, that should be final. That is why we have tabled the amendments. Even if one parent objects, that should be it. However, because we believe that these things are important, we also feel that, even if the parents want the provision, it is right that the child can opt out, even if he or she is making an uninformed decision. There is a very big distinction between the two matters. That is why I was worried about the arguments that the noble Lord was putting forward. I believe there is little to be gained in overruling the child’s wishes and I am not aware of any specific evidence that—
The Earl of Erroll
I was trying to make that same point, although not as well. Does the noble Lord remember being very embarrassed when he was at school by some of the things that his parents did because they did not understand how things were at school? That is the huge danger here. Some parents will be wound up by the Daily Mail into deciding to opt out of providing biometric information and their child will feel incredibly embarrassed because they stand out in class. That could get quite serious. Children may know better in this instance than one thinks.
Lord Henley
All of us have been children and most of us in this House are parents. All of us know that one thing that is absolutely universal to all children is feeling deeply embarrassed by their parents. That has been the case since time began. There is no way round that. Children will continue to be embarrassed by their parents, whatever their parents decide to do. The point I am trying to make is that I think there is a very big distinction between the parents saying, “Yes, you should do this”, and the child saying, “No, I want to opt out”, even if he or she is making an uninformed decision; and the other way round whereby it is being suggested that the child should be allowed to opt in even though the parents want to opt out. We want to make it clear to the child that this is a very important decision about giving up some of their own identity. They should be allowed to make that decision for themselves because it is a decision they will have to go on making in the future.
I think that I was the first to use the expression “kicking and screaming” in Committee. I do not think that is something that is likely to happen. A relatively small number of schools will make use of these sorts of mechanics, particularly when we are talking about primary schools. I believe that we can trust parents, schools and teachers to resolve any of the concerns that might crop up. The noble Lord has a point but it is a relatively small point and I do not think that he should get too worked up about it. I assure him that there is no hidden agenda on the part of the Government. I think these matters can be resolved by schools in a sensible way. Therefore, I hope that the noble Lord will not feel it unecessary to move his Amendment 24 when we come to it. I hope that I have addressed the points raised by my noble friend Lady Hamwee in her amendments and by the noble Lord, Lord Rosser.
Lord Henley
“(1A) Before the first processing of a child’s biometric information on or after the coming into force of subsection (2), the relevant authority must notify each parent of the child—
(a) of its intention to process the child’s biometric information, and(b) that the parent may object at any time to the processing of the information.”
Lord Henley
My Lords, I hope I have understood correctly what is being proposed but if I have got it wrong I shall certainly write to the noble Baroness and we can return to it later. As I understand it, this is a matter of writing to the parents and it is then for the parents to ensure that the child understands, as far as possible, what is being asked. We also hope that the school will deal with this matter. It will be set out in the guidance that I promised that the Department for Education would bring forward in due course.
Lord Henley
“(a) at least one parent of the child consents to the information being processed, and(b) no parent of the child has withdrawn his or her consent, or otherwise objected, to the information being processed.(3) Section 27 makes further provision about the requirement to notify parents and the obtaining and withdrawal of consent (including when notification and consent are not required).”
Lord Henley
Lord Henley
Lord Henley
Lord Henley
My Lords, I shall speak also to Amendments 38, 39, 40, 41 and 46. I can give an assurance that these are all minor drafting amendments. I beg to move.
Lord Lucas
This is also a minor drafting amendment, but I suspect that I shall have to speak to it at greater length. It concerns the scope of “such” in the clause. It is very hard to divine in English what preceding part of the clause “such” is meant to apply to. Clearly, it can go further than the preceding noun. For example, if I were to say, “Some Peers make marmalade; such marmalade is highly prized”, that “such” would clearly apply to marmalade made by Peers and not just to marmalade. However, one can stretch the elastic too far and in that case “such” would seem to apply only to the closing words of a phrase. That is the difference that I have with the drafters of this clause. Clause 33(3) says:
“The surveillance camera code is admissible in evidence in any such proceedings”.
Does “such” mean “criminal and civil proceedings” or does it mean the whole of subsection (2)? This is a moot point. If you put the two subsections together and read straight on, it is absolutely clear in any normal sense of English that “such” refers to the whole of the preceding sentence, but the drafters say that by separating it into two subsections, the “such” applies only to “criminal or civil proceedings”. That is a difficult argument. The additional separation is small and “such” requires to be construed as if what is being talked about is a subset of the whole, but if you are talking about civil and criminal proceedings, you are really talking about the universe of proceedings. There are no other kinds of legal proceedings; you are talking about every kind of legal proceedings in the common world. You would not need “such”, you would talk just about proceedings or legal proceedings. For “such” to have a meaning in that place—I have read and reread that clause—it must refer to the whole of subsection (2). If it does, it allows the surveillance camera code to be admissible in evidence only in cases brought against a person in connection with their not having obeyed the code, not in all the cases that might otherwise involve parking or other aspects of criminal and civil behaviour where the code might be relevant. “Such” greatly restricts the use of the code.
I am clear from my discussions with the Home Office that it intends subsection (3) to be wide—that is, it should apply to any criminal or civil proceedings. It would be much clearer for anyone subsequently reading the Bill if that is what it said, rather than “such”. I beg to move.
Lord Henley
My Lords, I am grateful to my noble friend, particularly for his references to making marmalade. I can assure him that I made my marmalade last weekend. It did not go terribly well and I will probably be making some more this weekend to make sure I can enter it in that great marmalade competition that takes place in Cumbria once a year. No doubt the noble Lord, Lord Campbell-Savours, will be entering his marmalade in due course.
I am sorry that my noble friend still does not quite understand what we are trying to do here, but I admire his persistence. It reminds me of our late noble friend the Earl of Balfour, who frequently put down detailed amendments of this sort to a whole range of Bills and caused the parliamentary draftsmen considerable problems, as they had to try to explain their intentions and how they were getting to them. I hope that I will be able to do that and I shall quote from earlier correspondence.
My noble friend will remember that we discussed this matter in Grand Committee. My noble friend Lady Stowell dealt with it and then wrote to my noble friend Lord Lucas to clarify the overall purpose of Clause 33 and to provide reassurance that the wording of subsection (3) was consistent with the clause’s intention. Perhaps I may quote the relevant sections of the letter. It stated:
“Clause 33(1) provides that ‘a relevant authority’ must have regard to the surveillance camera code; clause 33(2) is deliberately wider than 33(1) in that it provides that any failure to have regard to the code (whether by a relevant authority or by another) does not of itself create civil or criminal liability. Subsection (2) is open to two interpretations: a narrow interpretation to the effect that the code is admissible in any civil or criminal proceedings in which a failure to have regard to the code is relevant, or a wider meaning, namely that it is admissible in any civil or criminal proceedings. We consider that it was clear from the context of the Bill that the words do refer to any civil or criminal proceedings. If you look at clause 33(2) there are no civil or criminal proceedings at that point. Consequently, the ‘any such proceedings’ (in subsection (3)) can really only refer to any civil or criminal proceedings. One also needs to consider clause 33(4) which refers to ‘any such proceedings’, since the meaning of that will hinge on the reference in clause 33(3)”.
I stand by the drafting skills of our parliamentary counsel and believe that the meaning that he has set out is already, should I say, crystal clear. The reference to “such proceedings” unambiguously refers back to the reference to criminal or civil proceedings in subsection (2). We do not need to repeat those words in subsection (3). We remain unconvinced that there is any real merit in such a revision to the Bill. Moreover, if we were to make that change in Clause 33, we would also need to amend Clauses 51 and 62 and Schedule 3, which adopts the same drafting approach.
With that explanation and having read out that extract from my noble friend Lady Stowell’s letter, I hope that my noble friend Lord Lucas will feel able to withdraw the amendment.
Lord Lucas
My Lords, one of the happy consequences of Pepper v Hart is that by setting out what he has, my noble friend has solved the problem, because he has produced something to which the courts can now turn to answer any question that may arise. I am very happy to withdraw my amendment.
Baroness Hamwee
My Lords, I beg to move Amendment 34, which has been prepared by the Bar Council. Any noble Lord who looked at the Marshalled List would have been surprised that anyone without parliamentary counsel experience could have come up with this, and indeed it was a former parliamentary counsel who drafted it. I take this opportunity to thank the noble Lord, Lord Henley, for the meeting he had with representatives of the Bar Council a few days ago.
The amendment is underlaid by the common-law right of a client and his lawyer—or indeed a lawyer and his client; it works both ways—to communicate privately. I do not think I need to emphasise the importance of this, nor can I overemphasise it. It is a fundamental human right and a major building block of our administration of justice. If a client feels that his communication might be disclosed and used against him, he will edit what he tells his lawyer, and his lawyer will inevitably be handicapped by that.
There is a statutory protection against the use of legally privileged communications when a client is in custody, but in 2009 in the case of Re McE, this House, when it was still sitting as a court, held, although not unanimously—the noble and learned Lord, Lord Phillips of Worth Matravers, dissented—that Part II of RIPA permits the covert surveillance of meetings between defendants and lawyers. This ruling applies to other covert investigation techniques: the interception of communications, the acquisition of communications data and the use of covert human intelligence sources. There is therefore a problem where instructions are taken outside a police station, such as a group of people at an environmental protest, or indeed when one meets any group of people, or any individual, outside particular premises. The ruling also applies outside criminal law when an individual brings a civil action against the state, and to think that the state itself could be listening into and using what he tells a lawyer reminds us of regimes that are very far from the model of what we wish to be in this country.
Following McE, orders were made that altered the authorisation provisions and revisions were made to the codes of practice, but in the view of the Bar Council these provide insufficient safeguards. The codes of practice provide for the violation of legal professional privilege only in “exceptional and compelling circumstances”, but the test contains no special protection for privileged material. For directed surveillance, such circumstances are said to arise only in cases where there is a threat to national security or to “life or limb”. The phrase “threat to life or limb” is not clear; it could extend to quite minor offences where physical injury has arisen from a lack of reasonable care or a breach of a duty that gives rise to strict liability.
The real difficulty is that these changes do not address the fundamental point that covert investigatory powers should not be used to target privileged communications. The orders, in any event, do not apply to the interception of communications and the acquisition of communications data. This amendment would protect legal professional privilege except where it is abused for criminal purposes.
The noble Baroness said in Grand Committee that no one could regard themselves as being beyond the law or immune from investigation or prosecution. I do not challenge that. Indeed, I share that view. Therefore the inequity exception, as it is known in the trade, is included, which provides that privilege does not attach to information that is held or to communications that were made in the furtherance of a criminal purpose. The proposed new clause would simply bring RIPA into line with other legislation. When RIPA was introduced, the issue of privilege was not debated at all, and the courts have been left to construe statutes. This is not a case of the courts having any basis other than an assumption of the construction, “Parliament must have intended”. I do not think that Parliament addressed its mind to it.
I have two further points. First, the noble Baroness mentioned the requirement of codes of practice that cases of legally privileged communications which are intercepted or retained, or are the subject of interception, should be reported to the Interception of Communications Commissioner. I take that point but it is after the event and does not meet the basic concern.
Secondly, the noble and learned Lord, Lord Scott of Foscote, queried whether the way in which the provision was drafted would give a wide power to the Secretary of State to pre-empt how the courts might deal with a criminal purpose. He pointed to the words “or otherwise”. The matter is most likely to arise on an application for authorisation but it could arise later in an investigation where the fruits of a covert operation tend to include lawyer-client communication, which would not attract the iniquity exception.
The Bar Council and I believe that the addition of the words:
“For the purposes of this section”,
in two places would confine regulations which are proposed to provide for determinations only for the purposes of the relevant section of RIPA and not be as extensive as the noble and learned Lord feared. I am grateful to him for pointing out the need for a little tweaking.
This is an issue of really important principle, which I appreciate I am bringing to the House late in the evening. Perhaps the exit of a number of noble Lords indicates that we are not going to go on to what they were staying for. I have no doubt made myself a bit unpopular therefore by this but nevertheless it is an important point of privilege.
Lord Henley
My Lords, my noble friend is absolutely right to say that this is a very important matter. It is sad that we should be debating this so late and that it will be the last amendment of the day. I was going to congratulate her on her drafting abilities but, as she admitted, that was the work of others. I was grateful to see that it was a former parliamentary counsel who managed that.
Having said that, I appreciate that this is an area on which my noble friend and the Bar Council have strong views and I think that there is some agreement between us on the importance of these issues. I am therefore very grateful that my noble friend brought representatives of the Bar Council to a meeting with me, my officials and my noble friend Lady Stowell last week to discuss this matter further.
We all believe that the principle of legal privilege is important and that the ability of a person to seek legal advice in confidence is a key part of our justice system. We also all agree that the privilege must not be abused by lawyers who might themselves participate in or assist with criminal activity. When such communications are taking place it should be possible to target them for surveillance.
This amendment would not allow us to go any further than this and we do not agree that there are absolutely no other circumstances where privileged material can be targeted. We believe that there are some occasions, which would be exceptional in nature, where our intelligence and law enforcement agencies may need to target these communications in order to counter a serious threat or to protect a person from serious harm. An example would be where a person goes on a shooting rampage, taking members of the public or perhaps their family, hostage. Our law enforcement agencies may have intelligence to suggest that it is likely that the person will visit their lawyer and seek advice or refuge. In that situation, it is clearly vital that information can be obtained about the whereabouts of those taken hostage.
Alternatively, we could take the case of a terrorist planning an attack who may consult his lawyer at the lawyer’s office, where there might be an undercover officer in place, before that attack takes place. The surveillance commissioner may reasonably consider that the undercover officer will obtain information which could be used to avert the attack.