Protection of Freedoms Bill

Earl of Erroll Excerpts

Tuesday 29th November 2011 Lords Chamber

[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.

[The Earl of Erroll]

My Lords, I associate myself with the comments of my noble friend Lord Dear and the noble Lord, Lord Phillips of Sudbury. Certain things can go wrong all too easily. DNA is not a straight yes/no; at the end of the day, if something is done in a laboratory, you are talking about an analogue match that is reduced to certain points. We have seen sometimes the misinterpretation of fingerprints. When a computer has reduced it to X points, it is not necessarily a true match. There have been miscarriages of justice as a result. People have refused to admit mistakes later because of the tendency of the system to try to cover up its mistakes for the greater good, in order not to discredit something that is widely accepted as evidence.

I am also worried that, if DNA exists and is associated with a case, you use it to try to prove some guilt. You do not know how it got there. I might have tried on a jersey in a department store and left a couple of hairs on it. It might later have been bought by someone else and the knife that went into the person might have carried one of my hairs inside the wound. With our DNA techniques, it could be deduced that I was the person who was at the place in question—you do not know

The trouble is that, because we have an adversarial system, we do not seek to find the truth in our courts; we see who has got the best lawyers to discredit the evidence on the other side. That can be dangerous sometimes with things such as DNA, which is fairly new. We have widely different quoted figures for what an exact match is and for the probability of a match that do not take into account laboratory accuracy. We need to think about exactly how accurate it really is. You also get criminal seeding of sites, which has been going on for a long time—taking ashtrays from pubs and leaving DNA evidence elsewhere to sow false things.

What worries me, finally, is what we saw happen with RIPA—that is, function creep. This will start off in the serious crime arena and then get extended, because it is an easy way to find who was where when or who handled what. We have to be very careful about making sure that that does not happen if we are going to retain DNA as evidence. That is why I approve of the Government’s stand and of what the noble Lord, Lord Phillips, said.

We seem to treat very lightly the fact that someone should be arrested. Actually, that goes on your record and it stays there even if you are never then prosecuted or a charge is not laid properly. The fact that you have been arrested will disbar you from all sorts of things. A simple example is the American visa waiver scheme. I am fairly certain that you cannot get a US visa waiver if you have been arrested. For some people, there is no smoke without fire. We have to be very careful before thinking that just an arrest is okay and that it is all forgotten in the wash—it is not.

[Lord Macdonald of River Glaven]

My Lords, this is a difficult and sensitive issue, and I have great sympathy with what the noble and learned Lord, Lord Goldsmith, said a moment ago. When he was Attorney-General and I was Director of Public Prosecutions, we often saw the result of DNA evidence in successful prosecutions. Nobody for one moment would underestimate, in spite of what has been said recently, the importance and the potency of that evidence, particularly in cold-case reviews.

Nevertheless, I am driven to support the Government’s position on this amendment, largely because of the sentiment that was expressed by the noble Lord, Lord Campbell-Savours. The rational and honest conclusion of the previous Government’s policy was a national DNA database. The policy was discriminatory in a sense that has not been addressed so far in this debate. Everybody knows that more young black men than young white men are arrested on the streets of our cities by proportion of population, and therefore more are swabbed. Therefore, a database that was growing as that one was, uncontrolled by any process of anti-discrimination, was inherently dangerous.

The safe process, if the Government had wanted to go down that road, as was once explained very eloquently by Lord Justice Sedley on the “Today” programme, was to institute a national DNA database. That was the logical and only fair extension of the previous Government’s policy. I cannot support the concept of a national DNA database. It seems an inherently totalitarian concept. The idea that newborn babies would be separated from their mothers in our hospitals to be swabbed before being returned for suckling, or however the process is conducted, seems deeply totalitarian and unacceptable.

The Scots have got it about right. These are questions of balance. Of course the position of victims is critical, but we also have to develop a system which achieves a balance between justice for victims and justice for defendants in a free society in which the Government play an appropriate and not overly intrusive role in people’s lives.

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[The Earl of Erroll]

I am quite intrigued by this. The police have a policy in some cases of arrest first and ask questions later, particularly when householders are defending their property, and so on. These people will therefore effectively be regarded in perpetuity—or at least for as long as they live—as having behaved undesirably, even though they have never been in front of a judge or the courts and we should therefore deem them to be innocent. I am worried by the attitude that that should stay on file. I fully realise that we must watch out for cases such as that of Huntley, but they are surely dealt with by the other provisions, whereby you are allowed to retain the records in certain circumstances.

[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.

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Moved by

[The Earl of Erroll]

14: After Clause 4, insert the following new Clause—
“Privacy Commissioner
(1) The Secretary of State shall appoint a Commissioner to be known as the Privacy Commissioner (referred to in this section as “the Commissioner”).
(2) It shall be the duty of the Commissioner to promote respect for individual privacy.
(3) The Commissioner shall have all the duties and functions set out in—
(a) section 51 of the Data Protection Act 1998 (Data Protection Commissioner),(b) section 57 of the Regulation of Investigatory Powers Act 2000 (Interception of Communications Commissioner),(c) section 91 of the Police Act 1997 and section 62 of the Regulation of Investigatory Powers Act 2000 (Chief Surveillance Commissioner),(d) section 20 of this Act (Commissioner for the Retention and Use of Biometric Material),(e) section 34 of this Act (Surveillance Camera Commissioner).(4) The Commissioner shall have all the powers which attach to the offices set out in subsection (3).
(5) The Commissioner shall arrange for the dissemination in such form and manner as he considers appropriate of such information as it may appear to him expedient to give to the public about any matter within the scope of his functions under this Act, and may give advice to any person as to any of those matters.
(6) Any reference in any enactment, instrument or other document to a person carrying out the duties and functions set out in subsection (3) shall be construed, in relation to any time after the commencement of this section, as a reference to the Commissioner.
(7) Any appointment made to any of the offices set out in subsection (3) is hereby terminated.”

[The Earl of Erroll]

My Lords, this amendment probes an idea. I am afraid that it was borrowed from one proposed in another place and, although it is not perfect, it will do just to sound out the concept and idea. I think that that is very important.

I spoke along these lines a long time ago in a debate on the report of the Science and Technology Committee on personal internet security, on 10 October 2008 in col. 467, if anyone is interested enough to look it up. We are getting a plethora of commissioners, with five of them looking at different aspects of information privacy, so there is a huge opportunity for things to fall between the cracks when there is no overlap—or there is an overlap, and nobody knows whose jurisdiction it falls within. Every time we have another thing, we invent another commissioner, and that concerns me. We are not taking an overall overview approach to this issue. Also, as new things emerge, where do you fit them in? Which commissioner do you fit them with, or do you invent a new commissioner each time?

The second challenge that I had was with the logical difficulty of a commissioner reporting back through the very person on whom he is reporting—because most of them, except for the Information Commissioner, report to the Secretary of State and on things that the Secretary of State’s department is doing. The Secretary of State has the right to edit the report before it goes public, in the public interest, which can mean almost anything. So I am challenged by that idea. The reason why I like the set-up for the Information Commissioner under the Data Protection Act is because that commissioner reports to Parliament and is appointed by Her Majesty using letters patent. Therefore, that commissioner reports directly to us. On the other hand, there is a challenge for the Information Commissioner as a single person. For example, when that commissioner had to criticise Parliament over expenses, I know that the previous Information Commissioner, Richard Thomas, felt very exposed as a single person; some complaints were aimed very personally at him. So at that point, I thought that maybe we should have an authority—more of a group of people. So I would rather draw all these commissioners into one personal information protection authority, or PIPA, which would be answerable to Parliament, not through the Secretary of State. Philosophically, in a democracy, that would be a far better way in which to organise it all. Anything new could go into that; they could work out whose responsibility the different bits were. Some of them would have a very high security classification, as some of the aspects for the Surveillance Commissioner have to have.

I am promoting this, hoping that it will find favour, but as usual I expect that the Civil Service would prefer to retain control over their commissioners and the people reporting on them. I think that that is unfortunate. One reason for choosing PIPA is that you have to remember that he who pays the piper calls the tune.

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[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.

[The Earl of Erroll]

I thank the Minister for that reply. In fact, what she described was rather what I ended up thinking. I have to admit that the amendment is defective in that it is not quite what I thought; it came quickly from someone else in order to solve the problem of putting something on paper. A single commissioner certainly could not do that job. I had envisaged someone at the top but then four or five departments underneath, some with much higher security ratings than others. It would just be a matter of co-ordination. From that point of view, I am glad to hear from the Minister that this is already happening with the collaboration between the commissioners on the ground. I hope that that will continue with the other commissioners if the structure stays separate. Bringing them together under a single overarching review may still possibly have advantages, but for the moment I beg leave to withdraw the amendment.

Amendment 14 withdrawn.

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[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.

[The Earl of Erroll]

My Lords, this is quite an important principle. I notice that when it comes to cautions and reprimands, particularly reprimands, the police certainly do not warn youngsters of the full implications of accepting one. They do not realise that it is a plea of guilt to a criminal offence, which will stay on their record for certain purposes throughout their life. In fact, I have discovered that even some solicitors in the county courts do not realise that. Therefore, it is important that the police have a duty to advise people properly of the full implications of these things, partly so that the police realise them as well. I support this amendment.

[Lord Henley]

My Lords, I start with the point made by the noble Baroness, Lady Royall, about her desire to give DNA voluntarily. I take note of that. There is nothing to stop her. I was going to suggest that a special database could be set up, possibly named after her noble friend, the noble Lord, Lord Campbell-Savours, who seemed so keen on the idea. However, we will now have to call it the Baroness Royall database, and it can collect the DNA of all those members of the party opposite who want to hand it over voluntarily, and all those others who want to deal with the problem of stigma that the noble Lord, Lord Campbell-Savours, talked about earlier.

There is, however, a much more serious point here: the informed consent of individuals when they come to give their DNA. They might be doing so as part of some operation that the police are mounting where they deliberately want to exclude certain people from their investigations and, therefore, want to take fingerprints or DNA. It is right that we get the appropriate consent set out. That is why comprehensive guidance on the operation of these powers is set out in PACE Code of Practice D, which was revised in March this year to take account of the 2010 Act. It will need to be revised again once the Bill receives Royal Assent. Code D sets out the information that needs to be provided to a person before their fingerprints and/or DNA are taken. Annexe F of the code specifically sets out the requirements to be followed. Note for Guidance F1—to confuse noble Lords even further—underlines the importance of true informed consent. I shall read an extract from it to give assurance that appropriate guidance is offered. It will be revised in the appropriate manner after the passage of the Bill. It states:

“Fingerprints, footwear impressions and samples given voluntarily for the purposes of elimination play an important part in many police investigations. It is, therefore, important to make sure innocent volunteers are not deterred from participating and their consent to their fingerprints, footwear impressions and DNA being used for the purposes of a specific investigation is fully informed and voluntary. If the police or volunteer seek to have the fingerprints, footwear impressions or samples retained for use after the specific investigation ends, it is important the volunteer’s consent to this is also fully informed and voluntary”.

It is very important that the people covered by the new details in Clause 10, particularly new subsection (3), which refers to people who have,

“previously been convicted of a recordable offence”,

are properly informed, under the code of practice, of just what they are consenting to and for how long their DNA will be retained. Therefore, I think my noble friend will accept that her amendment is not necessary. We will make sure that the code of practice is revised in the appropriate manner and that will be done at an appropriate moment after the passage of the Bill. I hope therefore that she will feel able to withdraw her amendment.

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[Baroness Doocey]

My Lords, the Bill will place a large administrative and financial burden on all police forces. I believe that we need to monitor the impact of this, particularly in the current climate, when police budgets are under threat and facing severe cuts.

Each DNA profile and sample will need to be processed individually to ensure that they are deleted within the correct time parameters. Furthermore, this process must take into account any subsequent reoffending by the individual, as well as an application for extended retention.

The Metropolitan Police estimates that implementing the Bill will entail a one-off cost of £2.5 million, with ongoing costs of nearly half a million pounds a year. That is a huge sum of money when you consider how tight budgets are going to be, and it could pay for 10 police officers per year. Amendment 39 would ensure that the impact on the police service of the retention periods for fingerprints and DNA profiles and, in particular, the estimated costs of processing samples on an individual basis were reported back to Parliament.

An operational risk is also inherent in the complexity of the retention regime. While the Bill will in theory put in place mechanisms to ensure that DNA data are deleted at the right time, no system is perfect. If, as could well occur with the volumes involved, the deletion process were out of sync and not carried out at the appropriate time, DNA profiles which should have been deleted could remain on the database. If these profiles were then to be matched with the DNA from a crime scene or the victim of a serious crime, this evidence could not be used, since by law the profile should not have been there in the first place as it should not have been retained.

That is what happened in two cases, both of which necessitated changes to the Police and Criminal Evidence Act. In both, a DNA match was obtained but their profiles should already have been deleted from the DNA database. In the first case, which concerned a rape, the judge refused to admit the evidence and the prosecution was abandoned, and in the other case a conviction for murder was quashed by the Court of Appeal on the grounds that the DNA evidence should not have been admitted. The House of Lords subsequently ruled that it should be left to the discretion of the trial judge as to whether evidence in these circumstances should be admitted. We would not want history to repeat itself.

We therefore need some form of reassurance that we will not be put in the invidious position of perhaps identifying another rapist or a murderer but not being able to use the DNA match in evidence. I beg to move.

[The Earl of Erroll]

Does a case collapse just because one bit of evidence is not quite right? I cannot believe that that one bit of evidence would be the only thing to bring about a conviction, in which case why on earth do we let people off? That seems quite dotty to me, as a lay man, unless the whole thing hinged on that one bit of evidence, in which case there could be some ambiguity about it.

[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.