Police: Public Trust
Baroness O'Neill of Bengarve Excerpts(10 years, 7 months ago)
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Baroness O'Neill of Bengarve (CB)
My Lords, I thank the noble Lord, Lord Paddick, for his very courageous speech. I listened with great care and I think we all learnt from it. I should declare an interest as the chair of the Equality and Human Rights Commission, which undertook some work on the disproportionate use of stop and search and managed to show that reducing levels of stop and search, in particular its inequitable application, does not in any way lead to increased crime. That is an extraordinarily important empirical finding.
I want to talk about trust. I am not an expert on policing, but I have thought a good deal about trust and trustworthiness in other contexts. It is a constant worry in most areas of public and commercial life that there may be a crisis of trust, that things may have gone radically wrong.
There is very mixed evidence for that claim, because the evidence that people like to cite is that of the opinion polls. In the case of most of those, we do not have a long time series, so it is difficult to compare the past with the present and to draw that conclusion of the declining level of public trust. Where we have longer series—20 years, say—we find that the people who came low in the trust rankings, for example, politicians and journalists came low 20 years ago and those who came high, for example, judges and nurses, came high 20 years ago. Most of the rest of us are in between. That is mixed evidence.
However, I think that this is probably the wrong sort of evidence to focus on. What we are really interested in is trustworthiness rather than trust. To get evidence of trustworthiness is a good deal harder. How does it make a difference if we switch to think about trustworthiness? I start by characterising the received view on these matters as consisting of a claim, an aim and a view about the task that we face. The claim is that the trust has gone down and the aim, it is said, is more trust. The task, therefore—I hear the conclusion coming from all directions—is that we must rebuild trust.
I do not think that that is a sensible position. I do not want just more trust; I want something much better. I want more well placed trust and, if you please, more well placed mistrust. For example, I do not think that it was desirable that all those people placed their trust in the aptly named Mr Madoff, who then made off with their money. That was an example of too much trust placed in the wrong way.
My view is that what we really want is trustworthiness before trust. Our proper question should be: how do we increase trustworthiness? It is not easy, of course. It is much harder to think about trustworthiness than to think about trust, but it is pointless for us to seek better trust in the police unless we think first about what helps and supports the police in being trustworthy, and what helps and supports the police complaints procedures, current or future, to be trustworthy. When we have thought about trustworthiness, that is the time to start thinking about how we might increase the alignment of public trust with trustworthiness.
Two received answers have been popular over the past 20 years as to what one should do. It is thought that we should go for more accountability. Who can be against that? It also thought that we should go for more transparency. Who, it is said, can be against that? I am only selectively for transparency and accountability. Those remedies have, after all, been tried energetically and repeatedly—you could even say, obsessively—for some 20 years, but they do not seem to have worked. Is it sensible to say, “We must try harder. We must do more, we must jump in and have more of the remedy that did not work”?
We need to think about the supposed remedies. The forms of accountability that have been instituted in policing and elsewhere have not always been brilliantly designed. We all know that, sometimes, detailed regulation works by setting targets. Targets have been set in policing and the targets that have been thought appropriate in policing have sometimes, including recently, been subject to change. That suggests to me that we need to think much more carefully about which targets we have and what effects the setting of targets has. In general, the problem with targets is not that they are ineffective but that they are all too effective. Once targets are set, people know what the aim is, and they pursue the targets at the expense of the broader, deeper social aims. That, perhaps, has happened in policing, in which I am not expert, as it has in higher education, which I know a bit about, and certainly in schooling.
We also need to think about what the real aims of policing are. I do not intend to enter into that large debate but I take it that we probably have a considerable measure of consensus there. We need accountability, but we need intelligent accountability and we have had to do without it all too often. What sort of processes would help us to secure more intelligent forms of accountability? Here, we are looking at the thickets that grow up around primary legislation, so I would bring it back to Parliament in part.
Although primary legislation seems odiously detailed when you are looking at a Bill, it nevertheless leaves a great deal that is open. In its wake comes masses of regulation, with codes of practice and guidelines. In another context, I was told by a midwife that the trouble was that it took longer to do the paperwork than to deliver the baby. Something has gone wrong if anywhere in our public life we have forms of regulation that achieve that, where the accountability measures disrupt performance of the primary task. I have heard, as all your Lordships will have heard, complaints again and again that police officers are overwhelmed by that aspect of accountability. We conduct many consultations; we conduct them until the cows come home. Yet seemingly we do not have reliable ways of weeding out dysfunctional, useless and merely burdensome forms of accountability. I am sure that we can do better.
Secondly, I will add a word or two on transparency. Suppose that we had a better set of systems of accountability, which were not dysfunctional but useful to police officers. How then would we link that to systems that would help the public to discriminate and would strengthen the trust placed in trustworthy policing? If trustworthiness is to be matched by public trust, we need to pay attention to how the public are enabled, or not enabled, to place trust in others’ performance. It is often said that transparency will do that. Transparency is about putting more information into the public domain, as we all know, and that creates certain incentives. I believe that this remedy is inadequate. Transparency is surely, in the first instance, a really good remedy for secrecy, including inappropriate secrecy.
However, if we want intelligently placed trust we need more than a reduction in secrecy. Secrecy is after all not the only problem with the procedures of the police, or indeed with IPCC investigations. Trust is given only when the public can judge the honesty, competence and reliability of those in whom they might place their trust. If the processes for investigating complaints that the IPCC or a successor body uses do not enable ordinary people to judge the honesty, competence and reliability of the police, they will not enable ordinary people to put well placed trust in policing. It is that matter of discriminating, well placed trust and, where appropriate, well placed mistrust that surely goes to the heart of it.
Protection of Freedoms Bill
Baroness O'Neill of Bengarve Excerpts(12 years, 4 months ago)
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“( ) No order under subsection (1) appointing a day for section 103 to come into force shall be made until—
(a) the Secretary of State has produced and laid before both Houses of Parliament a response to any recommendations made in the post-legislative scrutiny review of the Freedom of Information Act;(b) both Houses of Parliament have given legislative effect to any recommendations arising from that review which require legislation to take effect; (c) the Secretary of State has laid before both Houses of Parliament any revisions to the code of practice issued under section 45 of the Freedom of Information Act 2000 (issue of code of practice by Secretary of State) made in pursuance of paragraph (da) of subsection (2), or of subsection (2A) of that section of that Act; and(d) both Houses of Parliament have passed a resolution affirming support for any such revisions to the code of practice.”
Baroness O'Neill of Bengarve
My Lords, the amendment addresses a range of issues on which we have had long discussions at Second Reading, in Committee and on Report, on the clauses dealing with proposed extensions of the application of the Freedom of Information Act 2000 to research data sets.
I thank the Minister especially for his agreement at Report to delay implementation of this part of the Bill until the completion of the post-legislative review of the workings of the Freedom of Information Act. Delay alone is not, however, enough, but it may be fruitful if used actively to deal with issues that have been raised in the course of the passage of this Bill. Amendment 19 sets out some conditions for a process for using this delay constructively. I hope that it builds upon the Minister’s indication at Report that the delay would be used.
So far amendments proposed to this part of the Bill have mainly met a uniform response that the exemptions in Freedom of Information Act already cover the case. In some instances perhaps they do, but it has not been easy to see that they do. There have been very few detailed explanations of how they do so, and no arguments that they can continue to do so in the world in which we find ourselves. That is a world in which new players, often in the Far East, combine high-quality IT with ambitions to be scientific and technological innovators, yet do not respect others’ IP and are protected by jurisdictions that provide no remedies for IP violations. These circumstances mean that arguing that there have been few requests for research data in the past is no adequate guide to the future.
Lord Henley
My Lords, I understand all the concerns that have been expressed by a number of noble Lords in the course of this debate, at earlier stages and in the large number of meetings that I have held with the noble Baroness, Lady O’Neill, and others over the preceding months. We want to address those points.
We understand the worries of the noble Lord, Lord Oxburgh, when he talks of the risk of serious damage to universities resulting from the Freedom of Information Act. I remind him that that Act was passed 10 years or so ago and came into effect some five years ago, and so far that damage has not happened. We understand his concerns, though, and will continue to try to address them, and I will continue to give assurances today, as I have done on earlier occasions.
The amendment—it is always important at Third Reading to discuss the amendment, not wider issues—seeks to delay the commencement of Clause 103 until the concerns of the noble Baroness and others about the reuse of data sets are addressed through the revised code of practice under Section 45 of the Freedom of Information Act, and more generally about the cost of FOI requests and the adequacy of exemptions. The noble Baroness asked me to comment on those last two, but that really ought to wait until we have dealt with that post-legislative scrutiny. The noble Baroness is right to highlight these by way of amendments, but we are agreed that putting them into the Bill is not the appropriate way forward. I hope therefore that she will find the following comments of some use.
I turn first to the Section 45 code of practice, through which we intend to provide guidance about the data-set provisions in the Bill—for example, on licensing conditions. Neither Clause 102 nor Clause 103 will be commenced before the revised code has been put in place. We will consult, as is required under Section 45, the Information Commissioner in drawing up the revised code before it is laid before Parliament.
We must develop guidance that ensures that the application of Clause 102 on data sets is understood and clear in order to ensure that the perceived problems described over recent months are avoided and that clarity is provided. Clearly, the views of experts working with data sets will be important in developing that guidance, and those will be taken account of to ensure that we get the guidance right.
I shall say a little more about post-legislative scrutiny of the Act. That assessment, which is under way now, of the operation of the Act is the best way of addressing more general concerns. Given that the Freedom of Information Act applies to a very wide range of bodies, it is important that comprehensive evidence is collated from a wide range of interested parties before deciding what changes might usefully be made. Once again, I can provide some reassurances.
On the timing, I do not anticipate the committee taking so long to publish its recommendations that there is any significant likelihood of Clause 103, or for that matter Clause 102, being commenced first.
However, I must exercise a little caution over subsequent legislation to implement any recommendations. We all understand that secondary legislation is relatively quick to bring forward and revised guidance even quicker. However, I am sure noble Lords understand that enacting primary legislation would necessarily take somewhat longer and could therefore delay the enhancement of the right to data for a considerable time. I am sure the House of Lords will also understand that I cannot pre-empt the outcome of the deliberations of the Justice Select Committee, sitting under Sir Alan Beith, which are being informed in part by evidence submitted by the higher education sector. Therefore, I cannot predict exactly what action the Government will consider it necessary or appropriate to take as a result.
However, I can reassure the noble Baroness, Lady O’Neill, that we do not intend to drag our feet following publication of that post-legislative scrutiny. Whatever actions are deemed appropriate in the light of the Justice Select Committee’s recommendations will be taken as quickly as possible. It is important for public authorities and users of the Freedom of Information Act alike that it functions as effectively as is appropriate. Therefore, the Government will consider the evidence collated during post-legislative scrutiny, including that presented by the higher education sector, as they ensure that this is the case.
As I have already indicated several times, we certainly want to maintain, protect and enhance the leading position of the United Kingdom research sector. That is why I hope that, given my assurances about timing and what post-legislative scrutiny will involve, the noble Baroness will withdraw her amendment. I assure her that the review will continue and that we will act on it as quickly as we can once we have the results of the scrutiny.
Baroness O'Neill of Bengarve
My Lords, I thank the Minister for listening to what the process set out in Amendment 19 is. I understand his reluctance to make any commitment under the heading of introducing changes that may be recommended by Sir Alan Beith’s committee but that require primary legislation. For that reason, I shall withdraw the amendment.
However, on other matters this has been like sweeping a very long and dusty floor with all the dust still in front of us. We will need to look with great care at the codes of practice. A code of practice is often a fragile instrument and these data sets are of very high value. We have to be careful in what we do, lest we wish we had done something else at the end of it. With those assurances, I thank the Minister for his sustained attention to these less than thrilling issues and beg leave to withdraw the amendment.
Protection of Freedoms Bill
Baroness O'Neill of Bengarve Excerpts(12 years, 6 months ago)
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Baroness O'Neill of Bengarve
My Lords, I want to speak to Amendments 147A, 147B, 148A, 148C and 148D. I will also comment, but much more briefly, on the more comprehensive Amendment 151, in the names of the noble Baronesses, Lady Brinton, Lady Warwick and Lady Benjamin, which I support, and I will comment very briefly on one of the amendments in the name of the noble Lord, Lord Lucas. Before doing so, I would like very much to thank the Minister and the Bill team for their exemplary courtesy and helpfulness in explicating their thinking on Clause 100—not, I think, the simplest clause of the Bill. If we have not reached agreement, it is not for lack of effort on their part.
Secondly, I would like to make it entirely clear that I am in favour of making scientific data more open. Science needs openness for its own purposes; it needs to have open data so that it is possible for others to check and challenge, and openness allows data to be put to unanticipated uses. Therefore, I am in much sympathy with the overall purpose of this part of the Bill. Of course, it used to be feasible—and it was standard practice—to publish data within articles in scientific journals. That is no longer feasible because of the size and complexity of many scientific data sets, so openness now has to be sought in other ways.
However, I believe that the Bill is based on too confident a view of the effectiveness and adequacy of the system of exemptions established in the Freedom of Information Act 2000 and of their capacity to avoid undesirable and unintended effects—particularly in this area, which is essentially that of scientific databases. Clause 100 proposes a seemingly minor, but in fact very substantial, change in the application of the freedom of information requirements to the release of data sets by public authorities. I will not at this stage say anything further about the use of the term “public authority”, as I think that we all understand that this means a publicly funded authority, which may, however, be a research institution or university that also has charitable status.
On the surface, Clause 100 simply requires the release of data sets in reusable electronic form, but I believe that in practice its demands will create a number of risks and problems. Let me therefore begin with Amendment 147A. The present drafting of the clause is, I believe, ambiguous, in that it requires data to be released upon request if the data are, or form part of, a data set held by a public authority. Amendment 147A seeks to restrict that requirement to “completed” parts of a data set held by a public authority. While it is reasonable to require that completed parts of still incomplete data sets be disclosed if requested—for example, the data pertaining to a past year in a continuously updated series—there is no benefit to anybody in disclosing an incomplete part of a data set. Indeed, requiring disclosure of incomplete parts of data sets could be misleading as well as damaging to research projects and to those provided with the incomplete, and perhaps misleading, data.
The clause would currently require disclosure of data sets while data were still being entered and had not yet been checked. At that stage, the incomplete part of the data set might be misleading. To take the example of a multi-centre clinical trial, requests for disclosure of incomplete parts of the data set could lead to the release of data that related only to a distinctive subset of patients whose data happened to become available at an earlier stage than those of other subsets of patients whose results might differ—that is, after all, the reason why the structure of clinical trials is quite elaborate. Such misleading releases might, I fear, falsely raise or dash the hopes of patients suffering from a serious condition, who would read the incomplete data set released as indicating that they had grounds for hope or despair.
I think that this issue arises because the drafting actually conflates two very different types of incompleteness in data sets. A data set may be incomplete because it relates to an ongoing project. In this case, completed parts of that data set relating, for example, to completed periods or phases in the project may indeed be available and could be released upon request.
In the second case, a data set or parts of a data set may be incomplete because the data are not yet fully available for entry, have not yet been entered or have not yet been checked. It could be highly misleading to require disclosure in the second case. Amendment 147A seeks to limit such requirements to disclose to the completed parts of data sets, where the danger of misleading is less.
Secondly, Amendment 147B requires that access is provided on request to data sets in reusable electronic form. Again, I stress that this is in principle an admirable thought. Where a data set is, for example, a relatively simple spreadsheet, this requirement would create no more difficulty for research databases than it does for government data sets. However, some scientific data sets are of orders of magnitude larger and do not use standard software; even if it is feasible, it may be extremely costly to render them usable by others or, indeed, reusable even by others with technical skills. We have to remember that those of whom data are requested will not know the skills of those who request them. In such cases it may be necessary to provide metadata or to process data further in order to make access to them more feasible even for competent others. It is more usual to make research data available by archiving data sets or by setting out a publication or so called data sharing scheme that will provide access for others and also secure the crucial benefits of professional data curation and data security.
Amendment 148B will permit holders of research data to undertake to provide those data using these normal and reliable routes. At present, the Freedom of Information Act grants an exemption once data sets have already been placed in the public domain in this way, such as in a data archive or through a data sharing scheme. This amendment seeks to postpone access where such archiving is not merely foreseen but is something that data holders have undertaken to provide. In effect, it would create a temporary exemption for the data concerned. The Minister might see this as an opening for procrastination. However, if he is sympathetic to the realities of the problem, he might perhaps wish to consider at least a version of the amendment that offers a limited time for this exemption—for example, six months after the completion of the relevant research project or phase of the research project. It is a question of trading off quality for instant gratification, I suppose.
Amendment 148A concerns the charging of fees. It seeks to address the real financial implications of seeking to make large and complex data sets available for reuse. The Bill provides for the charging of fees but does not allow public authorities to take account of the real costs of making data available to others. These costs may include not only additional checking and making metadata available but above all—and this is the main concern in the scientific community—the diversion of highly skilled and specialised time from research projects to the satisfaction of freedom of information requests. I have drafted the amendment to make it clear that it is the real costs of disclosure that matter. As noble Lords will have noted from the very helpful briefing provided for this section of the Bill by Universities UK, these costs can be very significant. It would not be reasonable, in my view, to require research projects or universities to bear these costs, which they cannot in principle have known about when seeking and obtaining the funding to do the research.
The last two amendments to which I shall speak very briefly are Amendments 148C and 148E, which are relatively uncontroversial. At present, the Bill restricts the operations that may be performed on data sets prior to required disclosure to calculation. That is just unrealistic. Those who compile data sets also need to check the data, which will be done using a variety of methods, and take steps to ensure data integrity and security, particularly at the point at which data are to be disclosed on request. Amendment 148C provides for this; Amendment 148E is consequential on Amendment 148C.
On Amendment 148, tabled by the noble Lord, Lord Lucas, from what I have already said and what the UUK briefing—now supported by the Academy of Medical Sciences, the Wellcome Trust and other scientific and medical bodies—has documented, the complexity of scientific databases rules out a solution along these lines. It would be very nice if it were feasible, but I believe that it is not feasible.
Amendment 151, tabled by the noble Baronesses, Lady Brinton, Lady Benjamin and Lady Warwick, is a substantial amendment. It takes the more radical step of seeking to define an additional exemption to freedom of information requirements and in the process achieves a number of the specific objectives that I have tried to achieve by more economical means in the amendments that I have tabled. However, their approach has one great advantage, which I believe—although I have racked my brains on this one—cannot be achieved by the more modest approach that I have taken. It recognises the risks to UK science and business and to the personal safety of researchers in certain fields—for example, involving work with animals—and to research subjects that will be created by Clause 100 if it is not amended. We are simply being naive if we imagine that we can rely on all those who request data respecting the intellectual property of those whose efforts produce data sets. We no longer live in a world where that is true, and we can all imagine many scenarios in which data disclosure is sought on behalf of others who work in jurisdictions where intellectual property is widely disrespected, with the aim of getting a free ride on the basis of work done by others without the payment of any fees. In those jurisdictions, legal remedies are not effective. I look forward to hearing a great deal more about Amendment 151. I beg to move.
Lord Lucas
My Lords, I have a clutch of amendments in this group. I will not at this moment comment on those proposed by the noble Baroness, Lady O’Neill, although I am looking forward to listening to others’ contributions on that subject. But it is very important that when a group of scientists ask us as a Government or community to take action based on results that they have published, the data underlying those results must be open to scrutiny. I understand that that has a difficult interaction with the questions raised by the noble Baroness, but I look forward to others’ contribution on how to solve that.
The first amendment that I have in the group is Amendment 148. I should declare that I am an extensive user of freedom of information legislation, particularly as regards universities, which I have found unutterably tiresome and difficult to deal with. One of their more tiresome habits is to refuse to provide information in anything other than PDF format. They get it in Excel, or whatever form, and translate it into PDF to provide it to me, merely to cause me extra work. I have to buy a program to suck it out of the PDF again. PDF is not a transmissible format, as it were, and they are merely trying to make life difficult by putting it in that format. So I would like to be sure that when data are provided they are provided in a properly reusable format. I have never come across a data set that cannot be reduced to tabbed, delimited text. Maybe that happens in a collection of tables, but data are essentially a simple thing. Although the data may be held in an immensely complex form in the program that the scientists are using, in any program that I have come across it should be easy—if only for the purposes of sharing with other people—to drop out at least the base data into relatively simple form.
Baroness O'Neill of Bengarve
My Lords, I too am very grateful for the offer of a further meeting. I am slightly puzzled because I thought I had gone a considerable way to meet the very specific objections the Minister made to my previous drafts of these amendments in his letter and which also members of the Bill team have made. They are very narrow amendments and have a considerable protective implication because I have not suggested that it is incomplete databases but incomplete parts of databases that should not be released. If one thinks through the difference between the two one sees that whereas it might be open to a public authority to go on saying, “Oh our database is incomplete, we are perfecting it, we are polishing it, we are taking it into the next time period,” it could not say the same of each part of a database. So I believe that that move achieves the purposes of open data while not undermining them by licensing the disclosure of data that then have to be pulled back with the comment, “Well, it was only 10 per cent of the data points you got because that is what we had when your request was granted,”. It is a substantial amendment. Nevertheless I beg leave to withdraw Amendment 147A.
Protection of Freedoms Bill
Baroness O'Neill of Bengarve Excerpts(12 years, 7 months ago)
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Baroness O'Neill of Bengarve
My Lords, I have great admiration for what the noble Lord, Lord Selsdon, has done. The number of powers of entry is truly amazing and overwhelming, but I think that we are skirting a much bigger issue, which is the question of the implementation of Article 8 of the European Convention on Human Rights that covers the right to privacy. It is either beautifully observed or perhaps, I fear, widely neglected. I hope that we can take a more systematic view of when and under what circumstances powers of entry are justified. Listing them makes it very plain just how urgent the problem is, but I think that the remedies will have to be on a slightly different scale.
Lord Henley
My Lords, when I referred to the gateway that we talked about, I sought to say that what we are committed to do in the Home Office is to check any new powers as they come in from other departments to make sure that they can be justified before they are introduced. It is easy to introduce something without much further thought, but we are trying to create a form of approach that will allow for a greater degree of caution and care to be used before such powers are introduced.
Lord Henley
One of the joys of devolution is that it allows different parts of the United Kingdom to do different things. One might or might not approve of the different things they do, and they might create tensions in certain border areas. It will entirely depend on what powers each of the three devolved countries have as to what they do. Obviously we will continue to discuss matters with colleagues, as we do on all matters that go across borders. However, in the end it has to be a matter for them. It might be that differences will appear in due course, but once you have let the genie out of the bottle, that is what happens.
Baroness O'Neill of Bengarve
Since there will be conversations, it might be important to think about the way in which this code of conduct can be understood by citizens whose premises are to be entered, or not entered, in that this is very much addressing the official who seeks to enter, and what he or she may or may not do. It is very important to have something very simple that the citizen can actually grasp and say, “No, you have no warrant. I do not agree. This is not an emergency, so not now”.
Lord Henley
I well understand what the noble Baroness is saying. As we all know, statute is not written in a language that most of us find that easy to understand—although I have no doubt the noble and learned Lord finds it easy to understand. Codes of conduct are obviously written in a manner that we hope will be understandable by all those who have to either make use of them or who will be affected by them. I am sure that as codes of conduct are drawn up, the strictures the noble Baroness has mentioned will be taken into account.
Protection of Freedoms Bill
Baroness O'Neill of Bengarve Excerpts(12 years, 7 months ago)
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Lord Soley
Perhaps I may intervene briefly in support of this proposed new clause and to add to what my noble and learned friend Lord Goldsmith and my noble friend Lord Campbell-Savours have said. There is an additional argument. I agree entirely about the cold case and about a voluntary database. Indeed, in this House and prior to being in this House, I have said that we should have a voluntary database and that I should be delighted to be on it.
In a sense, my answer to the noble Lord, Lord Phillips, is that the difference between this and cameras is that it is much harder to come up with ways in which a DNA database could be misused by the authorities or anyone else. There is a deterrent factor. The final and only different point that I want to make to those that have already been made is that we should not rule out the deterrent effect of a DNA database. If a person on that database has raped or killed, or has carried out a violent attack, their DNA will be on that database and they know it.
Put yourself in the mind of the victim for a while and think of their rights. Victims have rights, which it is important to respect. As a deterrent factor, a database of DNA is very useful. It also enables the person who is not guilty of an offence—there have been a number of those recently—to be ruled out at a much earlier stage. The gentleman in Bristol who was wrongly accused initially of a murder in Bristol last year would have been ruled out much more quickly had the DNA database with his DNA on it been available. It is important both as a deterrent to further violent crime and as a protection for those who are wrongly accused. Quite simply, never ever rule out the rights of the victims, which we are very fond of doing at times. In the House of Lords where we do not deal with these things directly on a constituency basis, as my noble friend Lord Campbell-Savours said, you do not see the victim quite as starkly as you might. Those victims have rights, which we should defend and protect.
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.
Baroness O'Neill of Bengarve
My Lords, before we go further with the fantasy of newborn babies being separated from their mothers to be swabbed, let us remember that all newborn babies have a pinprick test of their heels in order to get a blood sample for a Guthrie test to be sure that they do not suffer from a serious metabolic disorder—namely, PKU—and that these samples are retained. So a database, in that sense, exists. We should discuss the uses of databases rather than what exists or how samples are taken.
The Minister of State, Home Office (Lord Henley)
My Lords, I start by picking up on the point made by my noble friend Lady Hamwee about Amendments 1, 7 and 8 not being consequential. I do not know what are the ultimate intentions of the noble Baroness, Lady Royall, but I agree with my noble friend that Amendments 7 and 8 are not consequential on Amendment 1. Certainly if the noble Baroness was minded to divide the House on Amendment 1, I would not accept the consequences of the House’s decision as being binding on Amendments 7 and 8. However, I shall leave that to the noble Baroness when she gets to them.
As the noble Baroness, Lady Royall, made clear, Amendment 1 would delay the implementation of these provisions by several months. I remind the House that the provisions in Part 1, Chapter 1 of the Bill represent the response of the Government to the European Court of Human Rights judgment in the S and Marper case, to which the noble Baroness referred, which is already three years old. If the previous Government had implemented compliance legislation when they had the chance in 2009-10, we would not now have more than 1 million innocent people recorded on the DNA and fingerprint databases and we would not have had to legislate again on this subject in this Bill.
The previous Government’s proposals, to which the noble Baroness referred and which she obviously still supports, received at that time virtually no support at all beyond her own Front Bench. She has obviously since then dragged up a bit more support from her Back Benches. Our proposals, which very much adopt the Scottish model, have been welcomed by a wide variety of organisations such as Liberty, Justice, the Law Society, the Criminal Bar Association and GeneWatch. They all gave evidence to the Public Bill Committee in another place and welcomed the Government’s general approach in this area. The Scottish model has also found favour with the Joint Committee on Human Rights and with the Constitution Committee, which have both referred to it.
The noble Baroness referred to evidence from the 2009 analysis, which was based on only three years of evidence, as I understand it, extrapolated to a point where it was essentially of, it could be argued, no real value. I refer the noble Baroness to our analysis, which was published in September and used five years of evidence, looking crucially at the likelihood of conviction. Therefore, further analysis is unnecessary.
However, I can tell my noble friend Lady Hamwee that there will be a post-implementation review, as there always is, and if we failed to include something in our impact assessment again I can only say that Homer nodded on this occasion and that we will make sure that that does not happen in future. I believe that further analysis is unnecessary and our proposals to retain unconvicted persons’ DNA for only three years are correct, and then only in respect of serious offences.
The analysis has been looked at by many independent experts, who have considered it closely. For example, as my honourable friend the Minister for Crime and Security, James Brokenshire, said in Committee in the other place,
“the Information Commissioner states that he ‘does not consider that the evidence presented supports a general period of anything like six years’”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 29/3/2011; col. 212.]
We have consistently supported the adoption of the protections of the Scottish model, and that was a central plank of our programme for government announced last May. We believe that our proposals represent an appropriate balance—and I was very grateful to the noble Lord, Lord Dear, for using the word balance—between the rights of those who have not been convicted by a court and the need to protect the public in some of the most difficult cases.
If the noble Baroness would like a little support from her own Back Benches, I can also refer her to the widely respected independent website Straight Statistics, whose board of directors is chaired by her noble friend Lord Lipsey. It has examined the research and reached the conclusion that:
“Despite the limitations of the analysis, acknowledged by its authors, it does suggest that the retention periods allowed under the 2001 and 2003 Acts were unduly long, as were those proposed in the 2010 Bill. The present bill, which is broadly similar to the law in Scotland, gets the balance more nearly right”.
The noble Baroness seemed to imply that we offered full support to the 2010 Bill. Again, I remind her, as I did in my intervention, that that Bill went through in the wash-up, very rapidly. Obviously, we offered it support in that six years was considered an improvement on the situation in the past, but we have not yet brought those provisions into effect and we have no intention of doing so. We think it better to bring forward these proposals, which are more likely to comply with the European Court of Human Rights judgment.
Again, I refer the noble Baroness to comments made by the then Policing Minister, when the noble Baroness’s party was in government, who said to the Public Bill Committee on the Crime and Security Bill that,
“we have obviously considered the judgment”—
that is, the judgment of the European Court of Human Rights—
“and how far we can push the boundary of the judgment in relation to our wish to have protection for the public”.—[Official Report, Commons, Crime and Security Bill Committee, 26/1/2010; col. 71.]
In our judgment, we should be seeking a balance, rather than riding roughshod over the rights of the million or more innocent people whose DNA profile is on the database despite them never having been convicted of any crime.
I turn to Amendments 7 and 8, which deal with the period for which we seek to retain the DNA and fingerprints of innocent people, which was discussed at some length in another place. These amendments would replace the Government’s provisions, which meet our coalition commitment to adopt the protections of the Scottish model, with the core of the last Government’s Crime and Security Act, which was rushed through in the run-up to the election. The party opposite persists in its approach to keep the DNA and fingerprints of innocent people for many years, no matter what those people have been accused of and no matter how little evidence was ever uncovered.
The noble Baroness referred to some 23,000 offenders. I was never quite sure where they had come from and whether they were alleged rapists, alleged something else or just people who had been arrested. Similarly, at the Labour Party conference in September, the shadow Home Secretary said that this Government will,
“take 17,000 suspected rapists off”
the DNA database, which,
“will make it even harder to bring rapists to justice”.
Of course, we all believe that increasing the conviction rate for rape and other serious offences is important. But are those on the Front Bench really saying that, in order to increase that conviction rate, we need to keep the details of thousands of innocent people on the DNA database because some of them in the future may go on to commit serious crimes?
I say to the noble Baroness that the conclusions of the report from the noble Baroness, Lady Stern, last year are far more important. She looked at the handling of rape by the police and by criminal justice and made some 23 recommendations in that area. While her terms of reference did not include the criminal law, her report recommended reassessing the essential elements of investigating rape cases, supporting victims to improve the handling of investigations and improving victim support, which would build stronger cases. Her recommendations on that occasion included ensuring that all police officers adopt ACPO’s Guidance on Investigating and Prosecuting Rape and adopting the protocol between the Crown Prosecution Service, the police and local authorities on exchange of information. I say to the Committee that these issues are more likely to be of assistance in increasing the conviction rate for rape than keeping 1 million—or whatever number we think it is—innocent people’s DNA on the national database.
In any event, the contention that every individual suspected of rape will instantly come off the database is just not true. 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. Those arrested for but not charged with a qualifying offence where the victim is vulnerable will also have their DNA held for three years, subject to the approval of the new independent commissioner. We have consistently taken the view, both during the passage of the Crime and Security Act and in advancing our proposals in 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.
Lord Henley
As I said, my Lords, there is a balance. What the noble Lord is advocating could also lead to a great many miscarriages of justice, as the noble Earl, Lord Erroll, pointed out. I appreciate that noble Lords opposite would like to bring in identity cards and a national database of the DNA of every person in the country. We do not go down that route; we feel that there should be an appropriate balance between what is kept and what is not. That is why I would reject the amendments.
Baroness O'Neill of Bengarve
I would like to return to the question asked by my noble friend Lord Campbell-Savours, which is a serious one. The information that is retained from a genetic profile for the purposes of the forensic database is not revealing information, such as susceptibility to disease or other genetic factors. It is a selection of the DNA evidence that used to be referred to as “junk DNA”, which is not known to code for any personally sensitive feature of persons. In that respect it is what in other aspects of privacy legislation is called an identifier. That suggests that in some ways it is less personal than a photograph of someone’s face.
Lord Henley
Sorry, but I do not accept that. I refer the noble Baroness to the comments made by the noble Lord, Lord Dear, that we are in the early days of knowing what DNA can and might achieve in the future. We are offering a very large amount of information to be stored in that DNA. I find that idea scary. Obviously some noble Lords, such as the noble Lord, Lord Campbell-Savours, do not; indeed, they positively welcome it. On this, there will have to be a philosophical divide between the noble Lord and myself.
For the reasons that I have given, I would certainly not support the amendment and I hope that the noble Baroness, Lady Royall, will feel able to withdraw it because I do not think it would command the support of the House.
Protection of Freedoms Bill
Baroness O'Neill of Bengarve Excerpts(12 years, 8 months ago)
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Baroness O'Neill of Bengarve
My Lords, this Bill has quite a grand Title but a somewhat miscellaneous feel. Although this is a Second Reading debate, I will concentrate on one part of the Bill, which has already been mentioned. I hope to ask the Minister a range of questions about Part 6, which makes provision for the publication of data sets held by public authorities. I am not against what is generally called “transparency”. In fact, it is a great deal weaker than most people suppose. Transparency is an antidote to secrecy; its defect is that it is no guarantee of communication of any sort. That form of quasi communication can sometimes create an illusory advance in the things we try to do.
As I understand it, the Bill covers data sets which are neither government data—that is, produced or commissioned by government or government-controlled entities—nor official statistics. Both government data and official statistics are, after all, already subject to requirements for openness. The intention of the Bill is to bring data sets held by other public authorities—the term is slightly curiously used here—under similar, though not quite the same, requirements for openness. The other public authorities, I take it, include not only local authorities but, above all, universities, hospitals and research institutions and, no doubt, the publicly owned companies to which the Minister referred. I am not quite sure what sort of companies those are because I note that hospitals, universities and research institutions are not companies and are not publicly owned companies.
It is a complex problem and I should declare a non-pecuniary interest at this point as a member of the Royal Society Working Group on Science as a Public Enterprise. This group is looking specifically at the problem of scientific data sets—which are not always published, even when there are publications—and will report within the next few months.
Let me now return to the Bill. Given that the period within which institutions have to respond to requests to make data available is very short—three weeks or fewer—it seems to me that one effect, or perhaps purpose, of this Bill is to require investigators to make research data available on an ongoing basis, if requested, and in an ongoing way. Can the Minister confirm that the Bill removes any discretion to wait until a data set has been completed or checked, let alone until the research project is completed or the work based on that research project is published? Does the Bill require disclosure to competing research groups if they simply request that the data be made available to them? Does it require disclosure before a decision about possible commercialisation has been reached—or, indeed, can be reached?
I know that some noble Lords hope that there is a Scots remedy to this. I yield to nobody in my admiration for the remedies that have been taken in Scotland for certain matters; but, unfortunately, it is a fantasy that waiting for publication is a real solution to the problem. I will come back to why. Before that, I would like to ask a few questions about the form in which data would have to be released. Clause 100 tells us that,
“the public authority must, so far as reasonably practicable, provide the information to the applicant in an electronic form which is capable of re-use”.
At one level, that is clearly very sensible. The provisions for the release of government data are, of course, even stronger. They must be released in a form that can be freely used, reused and redistributed to anyone—subject only, at most, to the requirement to attribute and share alike.
I do not think that the present Bill demands quite as much, in that it permits controllers of data sets that have to be released to charge a fee for reuse if they are the sole owner of a copyright in the relevant database. Am I right in reading the Bill as requiring these public authorities to release data they control to competitors, subject only to the right to charge a fee? Am I right that there is nothing to prevent those who have secured release of data from reusing them for commercial and other purposes, without needing any consent from those who compiled the data?
Do the Government envisage defining a stage in a research project before which the requirements to release data would not apply? Or does the Bill ensure that a research team at a UK university must share their data with all-comers, including scientific and commercial competitors? Do the Government envisage that overseas researchers will reciprocally open their databases to scientific and commercial competitors? If this is not the picture that the Government have in mind, it would be very helpful if the Minister could say something about the stage of a research project at which data would have to be made available upon request. I do not think we can solve this problem by referring to a point of publication: most big data sets have many publications associated with them, which occur at many stages. Which of them would be decisive for triggering susceptibility to be requested for release of the data set?
Finally, I have some boring questions about costs. A requirement to make data sets available in electronic form that permits reuse does not sound onerous if one thinks about little data sets. However, a great deal of scientific research today compiles massive data sets. We are not talking about megabytes or gigabytes of information, but about terabytes and petabytes onwards. Making data sets of this size available is not done by the click of a mouse: it is expensive, time consuming and skilled. If data sets are to be reusable by others, it is likely that those who provide them will have to make metadata available. Do the Government have a view of the costs of this provision of the Bill? Have the Government identified who will bear the costs? Who is responsible for data archiving, for data integrity and for data security? On which budgets do the costs fall? What provisions do the Government have in mind against data mining that peels away anonymisation from ostensibly anomynised personal data? Do the Government think that these provisions are likely to incentivise public authorities which have such large databases to enter into partnership with private sector organisations which will hold the data—thereby eluding the provisions of this legislation? Open communication matters for science and for citizens; but mandated disclosure of reusable data in response to all and any requests, regardless of costs and time constraints, may not be the best way forward.
Lord Henley
How you would interpret those words is really a question of fact and degree. I will have a further look before we get to Committee to see whether I can write in greater detail on that. If I cannot, I am sure that it is something that we would want to discuss in greater detail in Committee and at later stages.
Finally, I come to freedom of information and data protection in Part 6. I will touch on this only very briefly because I understand the concerns expressed by my noble friend Lady Hamwee, the noble Lord, Lord Bew, and the noble Baronesses, Lady O’Neill and Lady O’Loan, about the publication of research, particularly early publication. I accept that there is a genuine concern coming from Universities UK.
Baroness O'Neill of Bengarve
I just want to clarify that. There is absolutely no concern about the publication of research. That is what researchers aim to do. The concern is about applying the publication criteria to databases which are of a size that precludes their being published in journals, monographs or any other way. These are causing concern for large numbers of research institutions which have such databases but are committed to open publication.
Lord Henley
I am sorry if I misunderstood the noble Baroness. I have written down “pre-publication”. I will look carefully at what she had to say. Certainly, I hope that we can address that in due course. The noble Lord, Lord Bew, said that we should copy Scotland but I think that the noble Baroness, Lady O’Neill, was not so keen on that idea. Again, we need to address these matters in due course and examine them in a manner that I properly understand, particularly as I just seem to have misunderstood the noble Baroness on this occasion. The noble Baroness went on to ask what she described as some boring questions about costs. As they are allegedly boring questions—I am sure they are not—I will address them in a letter.
That is a rather rapid gallop through some of the comments that we have received today. I thank all noble Lords for their contributions. If we can agree on nothing else, we can agree that we will have an interesting and possibly somewhat lengthy Committee stage. As noble Lords will know from the Motions that I will move after this Bill has had its Second Reading, it will move down a novel line with some of the Committee stage taking place in the Chamber on the more contentious issues and some taking place in Grand Committee. I hope that that will have the agreement of the House and that once the Second Reading Motion is agreed, your Lordships will permit me to move the other Motions that stand in my name.
Education: Overseas Students
Baroness O'Neill of Bengarve Excerpts(13 years, 9 months ago)
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Baroness Neville-Jones
Indeed, and no part of the Government’s policy is aimed at doing anything other than enabling genuine language schools to offer genuine language teaching to genuine students—one of the points made earlier by my noble friend. The English language qualification for those courses is lower because it is designed to enable people either to do a foundation course or to learn basic English, so different rules apply. On the other hand, we intend those students to actually be in genuine institutions.
Baroness O'Neill of Bengarve
Does the Minister consider that adequate safeguards are in place to detect impersonation in oral examinations by those who present themselves at the borders with supposed qualifications? If so, what are they?
Baroness Neville-Jones
My Lords, if you are to be required to have an English language qualification before you turn up, that obviously has to have been acquired somewhere else. A register has been built up of approved institutions, which have to demonstrate that they are both able and capable of providing the necessary qualification. They have to have a trading presence in this country and a reputation established independently of their application to government. If that is done, it is hoped that the qualifications will prove genuine. However, there is also monitoring of those institutions, whereby people go along and inspect whether they are still providing courses of the right level and whether the students are attending.