Baroness Hamwee
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Protection of Freedoms Bill
Baroness Hamwee Excerpts(13 years ago)
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Baroness O'Neill of Bengarve
My Lords, I should like to ask the Minister whether the Government considered an alternative way of reducing recourse to the DNA database that would, on the one hand, have restricted the police from searching the database except where there was a proposal to press charges for serious violence or a serious sexual offence, and on the other hand where the person arrested requests that the database should be searched for the purposes of exoneration.
Baroness Hamwee
My Lords, I am so glad that I prompted my noble friend Lord Phillips to speak before me because he put into words much better than I could have done things that I was trying to articulate in my own mind. He mentioned the possibility of a 100 per cent compulsory database, and I too had been working towards that as a question. I cannot, however, follow the suggestion of a voluntary database. I am not a psychologist and I cannot put myself into the mindset of an offender, but it is difficult to believe that a voluntary database would be any sort of deterrent at all.
Lord Campbell-Savours
My Lords, I thank the noble Baroness. It would dilute the stigma.
Baroness Hamwee
The noble Lord, Lord Soley, talked about deterrence in the context of a voluntary database. I take the point about stigma, but only a little bit.
On the requirement for further evidence sought in the amendment, as the noble Lord, Lord Condon, has said, the science and the technology are both galloping forward very fast, and logically one could make an argument for continually looking for further evidence as the science goes forward and never coming to a conclusion. It is always possible to ask for more evidence, and we will hear from the Minister what evidence the Home Office has looked for. However, I would like to ask him in this context about the post-implementation review mentioned in the impact assessment. There are a number of boxes under that heading that are not completed. Perhaps he can tell the Committee something about the establishment of the criteria for the assessment under a post-implementation review, because that would be helpful.
I am not sure that the amendments in this group that seek to extend the period are entirely consistent. We are in Committee, so I understand that, but to seek to decide whether to increase or decrease the time period while at the same time calling for further evidence before implementing this part of the Bill does not quite seem to hang together. However, that is probably a picky and unworthy argument because, as my noble friend said, the noble Baroness has raised matters that are extremely important.
Lord Dear
My Lords, we have discussed the rapid advances in DNA technology, but a fact that noble Lords may wish to take note of is that we are literally on the brink of a breakthrough in DNA analysis whereby, although the same sample being tested in the laboratory does not produce a hit on the database, it will nevertheless produce a pretty good description of the person who has given the sample. That will move the debate into a whole new area. I say that to put the record straight on just how fast databases are moving forward.
There is no doubt that if legislated for as we are considering, DNA technology will undoubtedly bring some convictions from cold case reviews. Indeed, that has already been mentioned from the Cross Benches. However, I have to say that, as a proportion of the total number of cases dealt with and convictions brought each year, the number will be relatively very small. Undoubtedly these reviews will frequently focus on serious cases involving rape or violence where the victim has suffered enormous trauma.
Having concluded my brief opening remarks, I have little else to say other than that I support the stance taken by the noble Lord, Lord Phillips of Sudbury. There has been far too much intervention in the privacy of the individual. We are currently reading in the newspapers about the conduct of the Leveson inquiry, which is yet another example of possible intervention in another sphere. That thrust of the interventionist state into our lives is something that this Bill seeks to reverse. Although this is an emotional issue, it raises great interest in the criminal justice system and in my former service, the police service. I shall make very few new friends in the service when I say that I believe that the safeguards proposed by the Government in trying to search for this balance are appropriate. I therefore support what the noble Lord, Lord Phillips, has said as well as the general thrust of this Bill.
Baroness Hamwee
“(c) any biographical information relating to the material referred to in paragraphs (a) and (b).”
Baroness Hamwee
My Lords, I shall speak also to Amendment 3. These are among a number of probing amendments that I tabled following receipt of a briefing from the Information Commissioner, which I am aware has been sent quite widely to your Lordships. Therefore, I hope I do not need to spend too long on any of the individual items. It seems that I need not consider with too much suspicion or cynicism whether the Information Commissioner might have got hold of the wrong end of the stick. I am very happy to rely on a briefing from him.
Amendments 2 and 3 would add references to biographical information relating to the material dealt with by Clause 1. The commissioner is concerned that, although there is provision to delete fingerprints and DNA profiles, allied biographical information that is held on the police national computer or the police national database is not referred to. Perhaps the Minister can help me with the basis of these amendments. Is the PNC record also deleted when the DNA profile is removed? At present, records held on the PNC are readily accessible. The noble Lord, Lord Dear, may tell me that I am wrong, but it has been suggested that because that information is there access is frequently used to run a name check on individuals who come into contact with the police. Noble Lords will understand the inaccurate assumptions that may be made as a result of this.
The fifth principle of data protection states:
“Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes”.
It seems to me that we should be looking at biographical information alongside the technical information. I beg to move.
Lord Henley
As my noble friend has explained, these amendments were tabled following receipt of a letter from the Information Commissioner, which I think a large number of us have seen. They seek to amend Clause 1 by extending the scope of the provisions for deleting fingerprints and DNA of those arrested but not charged or subsequently not convicted to all police records held on that individual. For ease, I shall refer to these records as “arrest-only records”. In our view there is no need to extend the scope of the clause to cover arrest-only records. What is retained on police records should continue to be an operational matter for chief police officers to decide.
As your Lordships may be aware, the Association of Chief Police Officers has already issued guidance to forces in the light of the Supreme Court judgment earlier this year in the case of GC & C v the Commissioner of Police of the Metropolis. ACPO issued a letter on 16 June to chief officers which said that,
“if the biometric data is deleted or destroyed, then there is no need—and therefore no justification—for the retention of the arrest record on the Police National Computer. Therefore, if the biometric data is to be deleted or destroyed, then so must be the arrest record on the PNC”.
Therefore, in effect, ACPO has already put a deletion process into effect for arrest-only records held on the PNC. To go further and then delete all records from every other police database, whether national or local, would, in our view, be a step too far. On balance we think that the approach taken in the ACPO letter is the correct and appropriate one. It creates the correct balance—I apologise again for using the word “balance”—between civil liberties and public protection. It also creates consistency between the retention of arrest-only records on the PNC and the treatment of fingerprints and DNA profiles in the Bill.
We have to appreciate that, once the details are removed from the PNC, front-line operational officers will not be able to tell whether an individual has previously been arrested and not subsequently cautioned or convicted. They will not have access at that point to the police national database nor will they necessarily be able to check local records. That, we believe, provides the necessary safeguards for individuals. The fact that a person was arrested or went to trial is a matter of fact and keeping those details on databases that are not readily available to all police officers means that that information will not be visible to the officer making the stop.
Going further and deleting all arrest-only records from all databases means that the police would have no way of knowing that an individual had come to their attention before. It would also mean that the enhanced criminal record checks could not show details of those arrests where they are relevant to a particular application. Such an approach would significantly weaken the public protection afforded by the criminal record regime. I hesitate to refer to it, but it could result in another Huntley-type case where relevant information about previous suspicious behaviour is not disclosed. I accept that in that particular case the records were not effective in preventing what subsequently happened, but that does not alter the fact that the records were there to show a history of arrest linked to a certain type of offending.
I appreciate that at this stage they are probing amendments, but their effect would be that all police databases would be reduced simply to holding details of cautions and convictions. All other intelligence would be removed. In our view, that would hamper the ability of the police properly to protect the public, and for that reason I cannot support the amendments. I therefore hope that my noble friend will be prepared to withdraw the amendment.
Lord Henley
My Lords, again I repeat the word “balance”. It is a question of balance as to what is appropriate. Again I stress that it is a matter of fact, referring to the noble Earl’s example, that that person has been arrested. He might not have been appropriately arrested and the noble Earl might feel that that should not have happened. However, the simple fact is that he was arrested and there are occasions when keeping that information may be of some use.
Baroness Hamwee
My Lords, like the noble Earl, I blinked at the words “a step too far” and I appreciate that the Minister went on to try to explain that. It would be only right to read his explanation in order to seek to understand it. However, I have more questions now than when I introduced these amendments.
I should also say that I have a little difficulty in relying on ACPO guidance, if I have correctly understood its status. There is no question about whether it is proper. However, it is one thing for a statute to allow something and for ACPO then to withdraw a little from it, but that is not as good as the statute being clear. I was also not sure how that lay with the Minister’s comment about this being an operational matter for the police. Having added to the list of questions in my head, I will of course withdraw the amendment. This issue may be something that I can discuss with the Minister between this stage and the next. A lot of complications and procedures are not evident in the Bill, which of course deals with just one aspect of the way that the police organise themselves. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, I shall speak also to Amendment 22. These amendments deal with two provisions about speculative searches. Clause 1, on the destruction of fingerprints and the DNA profile, and Clause 22, on the destruction of samples, state that they do not prevent a speculative search,
“within such time as may reasonably be required for the search if the responsible chief officer of police considers the search to be desirable”.
My amendments relate to the term “desirable” and propose wording taken from Clause 15, whereby, instead of when it is “desirable”, fingerprints and DNA can be kept when,
“necessary for the prevention or detection of crime, or the investigation of an offence”.
Without wanting unduly to hinder the police's discretion, it seems to me that those two provisions are very wide. The Explanatory Notes states that the material could be retained for a “short period”. I do not read that into the two clauses. Perhaps the Minister can help me with that and about what limitations there might be on this apparently wide provision. I beg to move.
Lord Henley
My Lords, I have some sympathy with what I think the noble Baroness is trying to get at with the amendments, certainly from my understanding of the letter from the Information Commissioner, but we believe that her amendments would both seriously undermine the effectiveness of the national DNA database and significantly increase the cost of the administration of the system at a time when police budgets are under significant pressure.
In terms of effectiveness, we are advised by the police service that the key point in the taking and retention cycle for DNA and fingerprints is the carrying out of a speculative search immediately following arrest and sampling. For those of your Lordships who are not familiar with this process, it involves the comparison of the newly-taken DNA and fingerprints with material from previous crime scenes and with those whose biometrics are retained following conviction or, in the limited circumstances that we will be discussing shortly, from those suspected but not convicted of serious offences.
It is that speculative searching process which results in the identification of those who have already committed crimes, which I would hope that all of your Lordships would agree is a vital public protection measure. To give an example, a speculative search was undertaken on the DNA profile of Mark Dixie in June 2006, when he was arrested following a fight at the pub where he worked. He was not charged with that offence, but his DNA was matched to biological material left at the scene of the murder of Sally Anne Bowman the previous September. As a result, he was subsequently convicted and sentenced to life imprisonment.
The Government consider that carrying out a speculative search in each case where DNA and fingerprints have been taken on arrest is vital to the effectiveness of the database in identifying such crimes and far outweighs any additional intrusion in Article 8 terms. Indeed, in its recent report on the Bill, the Joint Committee on Human Rights commented at paragraph 45 of its report that,
“an additional final search before destruction is unlikely to pose such an additional interference to create a separate violation of Article 8 … which could not be justified”.
I appreciate that my noble friend does not want to stop such searches, merely to require the circumstances to be considered before a search is carried out. As I said at the beginning of my remarks, it would add to the delay and cost of each arrest for such consideration to be given. There were nearly 1.4 million arrests for recordable offences in 2009-10, a figure I gave to the House earlier today at Question Time. Thus, the additional time required for police officers to consider whether searches were necessary would run to many thousands of hours and could well result in many thousands of additional hours spent in detention by those being investigated.
I can assure my noble friend that we considered this issue carefully in bringing forward our proposals and we consider that carrying out a speculative search in every case is an appropriate use of the DNA and fingerprints taken on arrest. For those reasons, I cannot support Amendments 4 and 22 and I therefore hope that my noble friend will be prepared to withdraw the amendment.
Baroness Hamwee
My Lords, indeed I shall do so. When the Minister said “cost”, I wrote the word “balance” because, as he said, it has come up in every line of every clause and on every page. I think I am left with understanding that the short period to which the Explanatory Notes refer—I appreciate that they are not binding—is the period for which the material is retained. The Minister is nodding at that. Having clarified that, I beg leave to withdraw the amendment.
Baroness Hamwee
“( ) For the purpose of this section, an investigation is concluded when it is so certified by the responsible chief of police.”
Baroness Hamwee
My Lords, Clause 2(2) provides for the retention of certain material,
“until the conclusion of the investigation of the offence or”,
as the case may be, the conclusion of proceedings, where proceedings are taken. My amendment seeks to define what is meant by the conclusion of an investigation for the purposes of this clause.
“Conclusion of proceedings” seems to be relatively clear. Presumably one gets to the end of a case or the end of an appeal. Alternatively, when an appeal is not possible, I suppose there is always the possibility of a case being reopened by the Criminal Cases Review Commission, but I shall not try to go there. However, we also ought to be clear about when an investigation is regarded as concluded. There has already been a good deal of reference today to cold cases. How cold does a case have to be before it is concluded? If it is cold but not solved, is it still unconcluded? I simply suggest, partly as a way of exploring this matter, that an investigation should be regarded as concluded when it is certified by the responsible chief of police. I beg to move.
Lord Dear
My Lords, I have the greatest respect for the noble Baroness, Lady Hamwee, but I have to say from practical experience of commanding the largest force in the British Isles other than the Metropolitan Police—having previously headed the operations department of the Metropolitan Police—that in practical terms, forgetting the philosophical benefits or disbenefits of the amendment, it does not stack up.
There are thousands of offences on police books and well over half of them remain undetected. Therefore, seeking a certificate for every single one of them when one believed that an investigation was concluded would frankly be a bureaucratic nightmare. Quite apart from that, at the very serious end of offences it is not uncommon to have 50, 80 or 100 detectives and others working on an investigation. As the case winds on, that number will be run down until, months or even years later, you finish with perhaps five or six. There will come a point when everyone will know that the investigation has stopped because they will simply have run out of avenues to explore, but in my experience no chief officer would wish to say categorically, “It is finished”, because that would be slamming a door in the face of victims. We have already spoken in your Lordships’ House about the need to balance the rights and feelings of victims among other things, and that is absolutely right. I do not think that any chief officer of police would wish to say, “We have now certified that this is finished and as far as you, the victim, are concerned—or you, the general public, are concerned—we have now closed our books”, and I do not believe that the public would wish to hear it.
Therefore, with the greatest respect and although I understand where the noble Baroness, Lady Hamwee, is coming from, on practical and philosophical grounds—and, if those fail, then certainly on grounds of sensibility to feelings—the amendment does not have my support.
Baroness Stowell of Beeston
My Lords, I am very grateful to my noble friend Lady Berridge for her intervention. I am pleased to confirm that her analysis of the subsection preceding the one we are discussing is correct. I am also grateful to my noble friend Lord Newton. I will take his advice, consider his points and be sure to write to him. I have been given some comfort on the way in which we may be able to respond to his query by the intervention of my noble friend concerning the subsection preceding the one my noble friend Lady Hamwee seeks to amend.
Baroness Hamwee
My Lords, one always knows about one-third of the way into a sentence that a “but” is coming. I anticipated it when the noble Lord, Lord Dear, started to make his comments. I entirely agree with the noble Baroness, Lady Berridge, about the application of these provisions. That is a safeguard, but it seems to me that it is more of an answer to the noble Lord, Lord Dear, than it is to me.
Of course I understand the practical problems. I said a few minutes ago that all the amendments are probing. The problem often is that when one tables an amendment to probe, it is taken as if one means every word. I am looking for an answer to my underlying question and I am not sure that I have yet heard it. What worries me is that even on the fairly narrow track that the noble Baroness, Lady Berridge, identified, there is the possibility of driving a coach and horses through what we all think we are agreeing this afternoon. I do not seek to apply more bureaucracy, but I do seek clarity. I am not yet clear, but there are more stages and I will not make more of a nuisance of myself at this stage. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, I shall speak also to Amendments 15, 16 and 17. These are identical amendments to Clauses 4, 5, 6 and 7, which permit the continued retention of material in specified circumstances indefinitely, irrespective—at any rate in statutory terms—of any ongoing necessity for crime prevention and detection purposes.
I have referred before to the fifth principle of data protection, which I have quoted, and my amendments would permit retention for as long as is necessary for the prevention and detection of crime, investigation of an offence or the conduct of a prosecution. That is the wording used in Clause 16, which I am not seeking to amend, and which the Information Commissioner has told us more closely accords with the requirements of the Data Protection Act.
I may be told that there is too much bureaucracy involved in this but it would be appropriate for the Committee to hear an explanation from the Minister as to why indefinite retention is allowed in the context of the generally wholly welcomed provisions limiting retention. I beg to move.
Lord Henley
My Lords, I hope to deal with this issue relatively briefly. My noble friend has got it right when she refers to additional bureaucracy. If we move from unconditional indefinite retention to a necessity test, as is suggested in her amendments, this would require the police to keep under continual review some 4.5 million or so convicted individuals whose DNA is retained on the national DNA database, as well as the 3 million or more whose fingerprints are held without a DNA profile. That would be a huge administrative exercise which the police would not be happy to take on.
My noble friend made a point about why we are retaining it indefinitely for certain people and not for others. Recently published research notes that, at least on average, conviction rates for individuals with no prior convictions will be lower than for individuals who are proven offenders. That is why we believe we are right in retaining material from the unconvicted only in certain specific circumstances, as we discussed earlier, while retaining the material from all those with convictions for recordable offences. Such retention is preventive, not punitive. It is done in respect of a group of individuals who pose a considerably higher risk of future offending—significantly higher than that of the general population—because of their past proven criminality.
I hope that with those assurances—that it is a group more likely to offend in future and that it would be a massive bureaucratic exercise for the police to undertake—my noble friend will accept that her amendments are unnecessary.
Baroness Hamwee
I am not sure about their not being necessary, but I can see they may be undesirable. I shall not comment on police happiness.
Lord Henley
It is not purely police happiness—it is also police cost. If my noble friend’s amendment were accepted, looking at 4.5 million entries on an annual basis would divert an awful lot of police man hours away from the job.
Baroness Hamwee
My Lords, I am being inappropriately flippant in a serious context. Perhaps I had better just beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, I am not sure whether I go down the route of paying the piper but the question of accountability, which this amendment raises, is immensely important. Parliament has decided over the years to agree the appointment of a number of commissioners to provide oversight. For that oversight to work in the best way, the line of accountability is one that one has to look at. I am not sure whether having a single commissioner is practicable, but the issue highlighted by this amendment is a very important one and I am glad that the noble Earl has brought it to the Committee.
Baroness Stowell of Beeston
My Lords, as the noble Earl, Lord Erroll, has explained, this proposed new clause seeks to combine a number of distinct statutory commissioners into a single privacy commissioner. As the noble Earl predicted, I am afraid that the Government are not persuaded that any benefits which may arise from such a merger would offset the disadvantages. Each of the five commissioners listed in subsection (3) of the proposed new clause requires a high degree of knowledge of relevant legislation and procedures to operate in specialist and technical areas.
Before I explain why the Government propose to set up the commissioners in this way, I will address the issue of accountability, as it is one that my noble friend Lady Hamwee raised as well. The noble Earl suggested that his privacy commissioner should be directly accountable to Parliament. The existing commissioners are independent officeholders and there is no question that they discharge their functions without fear or favour. If there were a question of a conflict of interest—I do not accept that there is—it would apply equally to a situation where the privacy commissioner would be directly accountable to Parliament. Parliament is subject to the Data Protection Act and the Freedom of Information Act, and thus to the jurisdiction of the Information Commissioner, so a conflict of interest could equally arise if he reported directly to Parliament. The existing accountability arrangements work well and I see no reason to change them.
Going back to the five commissioners, there is no doubt that in some cases the work of the various commissioners can be related but, in each case, there remain specific and crucial differences where their work remains distinct. To roll up all of the functions of the various commissioners would be to risk watering down the skills and expertise that are brought to bear in each of the areas. Moreover, given the wide diversion of roles and responsibilities of the five commissioners listed in the proposed new clause, I am not convinced that it would be possible for a single individual to provide adequate oversight in any given area—a point which I think that my noble friend Lady Hamwee made.
If a privacy commissioner were to be appointed, I envisage that he or she would quickly need several deputy commissioners, or a large body of support staff, to oversee the specific areas currently overseen by separate individuals. This would create an unwieldy body which, in all probability, would have less influence and impact, compared with the existing commissioners operating in niche areas. We can take the Interception of Communications Commissioner as an example of the specialist knowledge required in this area. That commissioner provides oversight of the intelligence agencies and law enforcement authorities by keeping under review their use of interception powers and their powers to acquire communications data. The role is very specific and the commissioner’s powers to require disclosure by the intelligence agencies, and others, of highly classified information means that it is a highly sensitive post that could not be amalgamated with a range of other, unrelated commissioner functions.
That said, we fully accept that there is a need for these various officeholders to work closely together, and I assure your Lordships that this is already happening. The Public Bill Committee that considered this Bill in the other place heard testimony from the Information Commissioner and the interim CCTV regulator. Both commissioners were clear that where their functions touched on similar areas, they remain adept at establishing and maintaining effective working relationships, so that they can complement rather than duplicate the work of the other. I see no reason to doubt why this cannot continue to be the model in the future.
While there is certainly some common ground between the work of the new Surveillance Camera Commissioner and the Information Commissioner, there are also important differences. The Information Commissioner highlighted, in his evidence to the Public Bill Committee, that his consideration of CCTV is limited to the sphere of data protection and, as such, that his office is not concerned with the effective use of cameras. Indeed, the commissioner saw this separation of functions as advantageous, stating,
“if you are specifically identified as Mr Privacy and expected to come down on the privacy side all the time, it is difficult to make judgments about the release of official information”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 24/3/11; col. 97.]
Furthermore, the noble Earl might remember—I know that he has a great deal of experience in this area—that public confidence in CCTV is driven by both the proportionality and the effectiveness of deployment. The public want, rightly, to see that when surveillance cameras are deployed they help to bring criminals to justice.
In that same evidence session, the deputy Information Commissioner stated that,
“if the cameras do not work, we are not concerned, because cameras that do not work cannot intrude on someone’s privacy and that is what our driver is”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 24/3/11; col. 99.]
I would therefore be concerned about having all these functions under the umbrella of a privacy commissioner. It is important to note that the Information Commissioner plays a key role not only in making sure that personal data are properly protected but that information is freely available to the public in accordance with freedom of information legislation. A single privacy commissioner would undoubtedly tilt the overall balance of the role to the detriment of the Government’s objectives to promote openness and transparency.
In short, it is our view that the five commissioners that are the subject of the amendment all undertake sufficiently distinct roles to justify their separate identities. Where their roles interconnect, I am confident that they will, as now, work together effectively to ensure that they complement rather than duplicate each other’s work. We will of course keep the landscape of commissioners under review but, for the reasons that I have set out, I am not persuaded of the case for a single privacy commissioner. I hope that the noble Earl accepts these arguments and will be prepared to withdraw his amendment, but I am grateful to him for putting it forward in order for us to discuss these matters.
Baroness Hamwee
“( ) For the purposes of this section, a person shall not be considered to have consented to the taking of section 63D material unless that person has been fully informed of its potential use and retention.”
Baroness Hamwee
My Lords, my amendment deals with informed consent. It would provide that a person is not considered to have consented to the taking of material without having been fully informed of its potential use and retention. I am hoping that the Minister will tell me that this is not necessary because that happens and will happen. If I am correct in that assumption, I look forward to hearing on what basis the information is given, but if I am not correct, I look forward to assurances regarding how that will be put in place. I beg to move.
Baroness Royall of Blaisdon
My Lords, I do not wish to return to our earlier discussion about the desirability of a voluntary or mandatory DNA database. However, I seek an assurance from the Minister, pursuant to the amendment of the noble Baroness, Lady Hamwee, that citizens will still be able to give their DNA voluntarily should they so wish. I know that my right honourable friend David Blunkett did so to show that the DNA database was not something to be feared and that there was no stigma related to it. Listening to the debates in the Chamber this afternoon, I feel even more strongly about the retention of DNA now than I did before. I might well go along to a police station and voluntarily give my DNA.
Baroness Hamwee
My Lords, that is very helpful. As the noble Earl has said, there are consequences of which not everyone is always aware. His point about the police understanding what they are doing is an important factor. I look forward to the script of the sitcom of the noble Baroness, Lady Royall, turning up at a police station and saying, “Please will you take my DNA and record it”. I think that they might be a little baffled but no doubt she will take Hansard with her. I beg leave to withdraw the amendment.
Baroness Hamwee
“( ) Destruction of copies of section 63D material under this section must be processed individually.”
Baroness Hamwee
My Lords, the destruction of material by way of batches, and what the material was which was to be destroyed, was dealt with in Committee in the Commons. Reading the debate of 5 April after I had received the Information Commissioner’s briefing, it seemed to me that the discussion slightly petered out. My Amendment 21, which would provide for copies to be processed individually, is tabled to enable the Minister to give assurances—no doubt he will seek to do so—that the deletion of all DNA profile information will be the norm and that retention will occur only in exceptional circumstances. I understand from the debate in the Commons that there are some practical issues around how destruction is dealt with. Perhaps the Minister can reassure the Committee in regard to the subject of the amendment. I beg to move.
Lord Henley
My Lords, my noble friend is again right when she says that there are some technical problems with this issue. I shall say a little about that in a moment once I have set out the position. It might help if I set out a little of the background in this area. Because of the way in which DNA samples have historically been processed in batches—typically of 96, I am told—it is impractical to delete all processing records held within a forensic science laboratory, as batches will inevitably contain a mixture of profiles from convicted and unconvicted individuals, and records must be retained for evidential purposes of convicted individuals, not least in the event of a subsequent appeal or referral to the Court of Appeal by the Criminal Cases Review Commission.
Action is already under way, led by the National DNA Database Strategy Board and the Protection of Freedoms Bill Implementation Project Board, chaired by Chief Constable Chris Sims on behalf of ACPO, to address the potential for relinking records by removing any link between police barcode numbers and laboratory processing records. One forensic science provider already does this. The strategy board is already working with the laboratories to make this change by the middle of next year. This will break the link between the police and laboratory records and prevent any illicit relinking of names to profiles. The revised procedures will apply to both new and existing samples. From mid-2012, it will be impossible to carry out this relinking. Once the forensic science provider is informed that an individual’s DNA profile has been removed from the database, the link between the police barcode and the laboratory reference will be broken and restoration will not be possible.
None the less, we understand the concerns that have been expressed in this area, and my honourable friend the Minister for Crime and Security recently met representatives of the company which supplies the DNA profiling machines which produce these interim records. They are working on a proposal to enable the deletion of these records rather than merely breaking the links as I have described. If the cost of doing so is not wholly excessive, we will require the destruction of these records. I hope that my noble friend will bear with me for a while until those discussions have been completed and the company can tell us what will be physically possible and what will not be possible. In the mean time, I hope that she will be satisfied by the fact that we feel that we can break the link between the police barcode and the laboratory reference. Once we have broken that link, it will not be restored. Therefore, Amendment 21 will not be necessary.
Baroness Hamwee
My Lords, that is very helpful information and updating. I suppose the obvious question is whether the Minister is asking me to bear with him for a period which may be longer than that between Committee and Report stage. I do not know whether he has been informed of how long the investigations may take.
Lord Henley
I certainly cannot guarantee to do anything between Committee and Report and I doubt even necessarily between Committee and Third Reading. We will do what we can. If I can bring any further intelligence to the House in the Bill’s later stages, I will certainly do so. However, it would be wrong for me to give any assurances at this stage. The important thing to say is that we can at least break the link between the police barcode and the laboratory. Whether we can do something better will depend on what the company manufacturing these machines manages to do.
Lord Henley
I will have to take advice on this but my understanding is—I will write to my noble friend if I am wrong about this—that once we have broken the link between the police barcode and the samples, it is broken and cannot be repaired. However, if I am wrong on that, I will let my noble friend know. As regards whether we can get improvements made to the machines so that we can properly delete these things, that will have to wait on the discussions to which I referred earlier.
Lord Henley
I suppose that a case could collapse just because one bit of evidence fell apart, although in the main there would be other bits of evidence. However, the noble Earl, Lord Erroll, is right to make that point.
My noble friend, in moving the amendment, is obviously concerned about the costs of the Bill to the police and what that might do in diverting resources away from front-line policing. That has also been a concern of mine, and it is why, for example, I resisted an amendment from my noble friend Lady Hamwee suggesting that we should be looking at all the entries on the database on an annual basis. That certainly would have had major cost implications.
The reasoning behind my noble friend’s amendment is to ask the commissioner to look at a number of issues, including the cost of implementing the Government’s proposals. I can see why she wants to do that—I understand that she is a member of the GLA—particularly in view of the costs for the Metropolitan Police Authority, which, by virtue of its size, will have the largest single bill for implementing the proposals set out in this chapter.
I have to say to my noble friend that the Government have been working very closely with ACPO, the National Policing Improvement Agency and private sector forensic science providers to keep the cost of our proposals as low as possible. We published a very full impact assessment of these proposals in February this year, setting out a transition cost of just over £10 million. I appreciate that my noble friend Lady Hamwee had some criticisms of one part of the impact assessment, and I said that even Homer nods from time to time. I contrast that figure of £10 million with the previous Government’s impact assessment for, say, the provisions in the Crime and Security Act, which had an estimated transitional cost of over £50 million. Therefore, I think that the Committee will see that we have done much work in this area.
We are not convinced that the proposed post-implementation review by the new commissioner would add significantly to our understanding of this issue, and it would impose an additional bureaucratic burden not only on him but on hard-pressed police forces. I also say to my noble friend that I believe the commissioner’s first six months in office are going to be very busy indeed in terms of examining a number of applications for extended retention and setting out guidance under Clause 22 of the Bill, without giving the new officeholder the additional task of a financial review.
That said, Clause 20(6) confers on the commissioner a general function of keeping under review the retention and use of biometric material, so it would be within his remit to examine the impact of the retention periods provided for in the Bill without the constraints imposed by the amendment. I certainly reassure my noble friend that we take very seriously the issues highlighted by her amendment but we do not think that it is necessary.
My noble friend also touched on some of the issues relating to the batch processing of DNA samples, with which I think we dealt on an earlier amendment. Again, I reassure her that we think it will be physically impossible to relink anything held on a police file, including the original DNA sample barcode, with any information stored in a forensic laboratory. However, as I said, more work needs to be done in that area, and we will certainly do that in due course. I hope to be able to let the House know more about that at a later stage if at all possible.
Therefore, I hope that my noble friend will feel that there are sufficient protections in the Bill and that she will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, before my noble friend responds, perhaps I may say to the Minister that he really should not take every question from me as being a criticism. Questions are sometimes completely straight questions.
Lord Henley
Of course questions from my noble friend are not criticisms. I hope that I answer them as well as I am able to do.
Baroness Hamwee
Baroness Hamwee
My Lords, I have just realised that I am about to ask my noble friend a question—my other noble friend.
The amendment would provide that as well as publishing the governance rules of the board, the Secretary of State would publish rules governing its composition. My question is an entirely simple one and there is nothing to be read between the lines. What will be the composition of the board and how will it be brought into the public domain? My noble friend Lady Stowell may say that governance covers composition, but clearly the membership of the board is important. It needs to be appropriate to its functions and the interests reflected in the composition are clearly a matter of public importance and concern. I beg to move.
Baroness Stowell of Beeston
My Lords, I am grateful to my noble friend for this amendment and I hope that my response will provide the reassurance that she is looking for. This is another issue that was covered in the letter from the Information Commissioner sent to several noble Lords before our Committee stage.
The simplest thing for me to do in the first instance is refer to paragraph 130 on page 31 of the Explanatory Notes, which states:
“The principal members of the Board are the Association of Chief Police Officers, the Association of Police Authorities (in future, following the enactment of the Police Reform and Social Responsibility Bill, a representative of Police and Crime Commissioners) and the Home Office, but there is also an independent element to the Board from non-police bodies, such as the Information Commissioner and the National DNA Database Ethics Group”.
I am happy to put on the record that the governance rules set out in new Section 63AB(6) of the Police and Criminal Evidence Act 1984, as inserted by Clause 24, will include the full membership of the board and that members will continue to include an independent element in the form of representation from the Information Commissioner’s Office and the national DNA database ethics group. If any of your Lordships have any suggestions for others that might join the board to strengthen the independent element, I will be happy to receive them. Having heard my remarks, I hope that my noble friend Lady Hamwee will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, I am grateful for that. It did not occur to me to look at the Explanatory Notes. My noble friend is quite right; I should have done so. Her emphasis on the independent element from non-police bodies is important. As she read out that list it sounded police-heavy. The police have to operate the system so I am not suggesting that they should not be properly represented but as the debates today and throughout the passage of this Bill amply illustrate—if we need that illustration—it is not only the police who have an interest in these provisions and in the operation of handling DNA material, which is the subject of these various clauses. I am not sure that I would feel that it is adequate that there is simply “an independent element” from the bodies referred to. I would like to see “an independent element”—period. There are plenty of organisations which call on the services of, if not the great and the good—they are not necessarily the best—those who are interested and willing to give the public service that is required for this sort of activity, using the wisdom and judgment obtained through public life, or simply through a period of years.
What can I refer to? We have just been abolishing them but standards committees in local government have used an independent element. I am sure that there are plenty of examples but they always escape you on these occasions. Perhaps I can take what my noble friend has said as something of an invitation to explore this a little after the Committee stage. To have elements from what might be regarded as the usual suspects—I do not say that pejoratively—may not serve the purpose as well as we could.
Baroness Stowell of Beeston
I just want to re-emphasise that I would be grateful to any of your Lordships who have any suggestions to add on the independent element of the board after today’s debate.
Baroness Hamwee
My Lords, I would also say that it is not uncommon for there to be advertisements for applications using the Nolan principles for an independent element to boards such as this. Perhaps after this evening I shall try to come up with some other examples. I am grateful for that and I put on the record that I am grateful to the information commissioner for the thoughtful way in which he and his office have briefed your Lordships. I warn the government Front Bench that I have not read through to the end of his briefing so there will no doubt be more to come in future parts of the Bill. Having said that, I beg leave to withdraw the amendment.