Criminal Records Bureau

Debate between Earl of Erroll and Lord Henley

Wednesday 21st March 2012 Lords Chamber

[Lord Henley]

My Lords, I do not have the precise words that I used on that occasion, but the noble Lord is probably right to imply that we were offering discretion to the police.

[The Earl of Erroll]

What percentage of these certificates would reveal either a criminal record or information that would bar these people from working?

[Lord Henley]

My Lords, I cannot answer that question, but I can say that in the 10 years in which this system has been running some 130,000 potentially unsuitable people have been prevented from working with children and vulnerable adults. The noble Earl can use that figure against the figure of 31 million and work out his own percentage.

Protection of Freedoms Bill

Debate between Earl of Erroll and Lord Henley

Tuesday 31st January 2012 Lords Chamber

[The Minister of State, Home Office (Lord Henley)]

My Lords, I hope that I can deal with these two cases relatively briefly. My noble friend Lady Hamwee has brought before the House again the issue of those detained by the police and taken to a police station as a place of safety under Section 136 of the Mental Health Act. My noble friend outlined what that did, but it might help if I briefly outline my understanding.

If a person in a public place appears to be suffering from a mental disorder and in need of immediate care or control, Section 136 of the Mental Health Act allows a police officer to remove that person to a place of safety if the officer thinks it necessary to do so in the interests of that person’s protection or that of other people. I should make it clear that persons detained under Section 136 of the Mental Health Act—my noble friend emphasised this—are not arrested. That is a very important point that we all have to remember. It is an entirely separate regime, focused on the protection of the detained individual rather than the wider public. The powers to take DNA and fingerprints in Part 5 of the Police and Criminal Evidence Act 1984 apply only to those individuals arrested for a recordable offence. If a person was arrested for a non-recordable offence, such as speeding, or if they were not arrested at all but detained under the provisions that we are talking about, as is the case under Section 136, the powers simply would not apply.

If the police were to take biometrics in these circumstances, it would be not only an error on the part of the police but in fact unlawful. Under new Section 63D(2)(a) of the Police and Criminal Evidence Act, as inserted by Clause 1 of this Bill, if it should get on the statute book, all police officers would be under an obligation to delete material taken in this way. Therefore, I can say to my noble friend that Amendments 1 and 2 are unnecessary in that respect. She shakes her head, but I can assure her that, because the person had not been arrested, that would be the case. Taking biometrics from a person detained under Section 136 of the Mental Health Act is already unlawful.

The police are guided in the way that they take DNA and fingerprints by the PACE code of practice D, which deals with issues of identification of persons by police officers more generally. We will need to update code D in the light of the passage of this Bill and before it comes into force. I am happy to say to the House that we will include in that revision of the code a paragraph to make it quite clear that taking biometrics from those detained under Section 136 of the Mental Health Act is unlawful.

[The Earl of Erroll]

Just to clarify, if the police inadvertently, even despite the new code, were to take such a sample unlawfully, presumably it would just be destroyed once they realised that they had made the mistake. There would not have to be any other rigmarole.

[Lord Henley]

My understanding is that it would be unlawful and that therefore they would destroy what they had taken. I can give that assurance to the noble Earl.

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[The Earl of Erroll]

My Lords, although I would agree that the Government have made an effort to move some way in the direction that we were talking about, I entirely agree with the remarks made by the noble Lord, Lord Rosser. For many schools, particularly the not-so-good schools, fingerprint recognition biometrics are used in order to stop a certain amount of bullying—so that you cannot, for example, tell which children are in receipt of free school meals or getting special provisions. The moment you start to have a way of distinguishing those matters, other children will have a lever to start bullying, causing disruption et cetera.

It was said that if the parents decided that the child should not have its biometrics kept they could use a card and some other system would have to be provided. But that in itself could become a target for the other children. For instance, if you knew that little Johnny had a card and was also vulnerable, what could be better than to remove his card and destroy it? He will probably not dare tell people that he has been bullied in this way. People might even use that card to gain stuff for themselves. Your Lordships might say, “It is PIN-protected”. However, it would not be very difficult for other children to bully that PIN number out of little Johnny.

We have to realise that, in the real world, these things are not ideal. These biometrics were being used to provide a much more even way of identifying children with special requirements without other children knowing that they have them. The provision could drive a coach and horses right through this very efficient way of doing it. The Government should therefore think again about what the noble Lord, Lord Rosser, said, and produce their own amendment for Third Reading. The system will need to work in that sort of way so that it can be changed and the child can opt out. If the child thinks, “I am going to get bullied”, it may well want to overrule its parents. In this case, I do not see why the child should not.

The other thing that they might want to do—although this would require a few more amendments and I would not begin to attempt those myself—is somehow to find a way of saying that if this is not working because it is starting to cause problems in schools, we could come back and change it without having to go back to primary legislation. Although I do not like the Henry VIII-clause method, perhaps we can bury some part of this in regulation whereby it could be varied if the Minister found later on that it was causing problems in schools. For instance, instead of the parents having to do an opt-in to the system it would have to be a very deliberate opt-out. Something like that could be useful, because I know this all looks great on paper but out there in the real world it does not work that well. People are not reasonable.

There are also a lot of people who cannot read and write. We talk about providing the information in a form which is easily understood by parents but I am told that the adult illiteracy rate is supposed to be 10 per cent. Perhaps it is 14 per cent, I hear, and in some schools you are going to have that. How many languages would you have to translate it into in some schools? We all seem to be assuming that people are reasonable and available, can read and write, and can understand the issues. That is very dangerous. The Minister should probably look at this and try to give himself more flexibility, in case there are some unintended consequences of what is a well-meaning part of the Bill.

The important thing which we want to end up with is that biometric information used by schools for their administration systems cannot be used outside the schools, and there are many ways of achieving that other than by this opt-in only basis. We should make sure that it is destroyed the moment that the pupil leaves, because it is not needed for administration purposes, and that is not permissible to use it in any other way. If we think that we can keep a voluntary DNA database secure from the Government, we can keep school databases secure from them and the police, or whoever. It is not the fact of the fingerprint that matters; it is what it is used for. We should perhaps make it so that it is not of evidential quality. I suggest to the Minister that he looks again at this.

[Lord Henley]

My Lords, I note what the noble Earl, Lord Erroll, said in his concluding remarks and we will certainly look at whether any such biometric information should ever be made available outside school. He makes a perfectly valid point on that. Perhaps I might answer some of the points that have been made in the course of this debate, then move my own amendments. It will be open to noble Lords to consider what to do with their own amendments that have been grouped with this later on.

I start with the question of language, which my noble friend Lady Hamwee raised in Amendment 23. The amendment says that information provided by schools and colleges to parents and children on their rights under these provisions must be in a language capable of being readily understood by the parent and child. In response to the noble Earl, Lord Erroll, this is true of all information that is provided to parents, whether illiterate or not, and it is something that schools always have to take into account when trying to get to their parents. As I indicated in our deliberations in Committee, the Bill provides that parental consent must be informed and freely given. Schools and colleges should take steps to ensure that parents receive full information about the processing of their child’s biometric information.

I can give an assurance that the Department for Education will issue advice to schools on the provisions in this chapter of the Bill. That advice will include a template consent form for schools to use if they wish. As well as providing information about the type of biometric information to be taken and how it will be used, the advice and the template will refer to the right of parents and pupils to refuse or withdraw their consent and the duty on schools to provide alternative arrangements for those pupils whose information cannot be processed. We will encourage schools to follow the template that we have put forward.

With the aid of this advice, I hope that my noble friend will agree that we can trust schools and colleges to provide appropriate information in the appropriate manner to provide parents and pupils with the right information without the need for an express legal requirement of the kind set out in her amendment.

I turn to my noble friend’s Amendments 20 and 21, which are amendments to government Amendment 19 and seek to ensure that children will also be notified of the processing and of their right to object. We do not consider that an express statutory provision to this effect is necessary, as schools and parents should be trusted to inform children in an age-appropriate manner of what is being proposed, and to ascertain if the child has any concerns about the processing. The proposed government advice will highlight to schools the child’s right to object, and will recommend that parents are made aware of that advice.

I turn to the amendment in the name of the noble Lord, Lord Rosser. I was worried that his arguments were oversuspicious and, at some points, over-Jesuitical. He seemed to think that there was a hidden agenda, and at times I suspect that there was an element of him protesting too much in his objections to what we do. Having said that, I have a degree of sympathy for the arguments that he put forward.

The Government believe that, regardless of their age, all children should have the right to say no to the processing of his or her biometric information, even if that is an uninformed objection from a relatively small child. No child of any age should be coerced, physically or otherwise, to give his or her biometric information. We believe that it would be wrong to ignore the wishes and feelings of even a primary-aged child in this important matter.

[Lord Henley]

My Lords, I was going to come to that point. The two scenarios are different. This is why I thought that at times his arguments were positively Jesuitical, with one parent pushing one way, one pushing the other and the child possibly going down a third route, if there could be a third route. Why should one or the other prevail? We think it is right that if the parents say, “No, we do not want that”, that should be final. That is why we have tabled the amendments. Even if one parent objects, that should be it. However, because we believe that these things are important, we also feel that, even if the parents want the provision, it is right that the child can opt out, even if he or she is making an uninformed decision. There is a very big distinction between the two matters. That is why I was worried about the arguments that the noble Lord was putting forward. I believe there is little to be gained in overruling the child’s wishes and I am not aware of any specific evidence that—

[The Earl of Erroll]

I was trying to make that same point, although not as well. Does the noble Lord remember being very embarrassed when he was at school by some of the things that his parents did because they did not understand how things were at school? That is the huge danger here. Some parents will be wound up by the Daily Mail into deciding to opt out of providing biometric information and their child will feel incredibly embarrassed because they stand out in class. That could get quite serious. Children may know better in this instance than one thinks.

[Lord Henley]

All of us have been children and most of us in this House are parents. All of us know that one thing that is absolutely universal to all children is feeling deeply embarrassed by their parents. That has been the case since time began. There is no way round that. Children will continue to be embarrassed by their parents, whatever their parents decide to do. The point I am trying to make is that I think there is a very big distinction between the parents saying, “Yes, you should do this”, and the child saying, “No, I want to opt out”, even if he or she is making an uninformed decision; and the other way round whereby it is being suggested that the child should be allowed to opt in even though the parents want to opt out. We want to make it clear to the child that this is a very important decision about giving up some of their own identity. They should be allowed to make that decision for themselves because it is a decision they will have to go on making in the future.

I think that I was the first to use the expression “kicking and screaming” in Committee. I do not think that is something that is likely to happen. A relatively small number of schools will make use of these sorts of mechanics, particularly when we are talking about primary schools. I believe that we can trust parents, schools and teachers to resolve any of the concerns that might crop up. The noble Lord has a point but it is a relatively small point and I do not think that he should get too worked up about it. I assure him that there is no hidden agenda on the part of the Government. I think these matters can be resolved by schools in a sensible way. Therefore, I hope that the noble Lord will not feel it unecessary to move his Amendment 24 when we come to it. I hope that I have addressed the points raised by my noble friend Lady Hamwee in her amendments and by the noble Lord, Lord Rosser.

Protection of Freedoms Bill

Debate between Earl of Erroll and Lord Henley

Thursday 15th December 2011 Grand Committee

[The Earl of Erroll]

My Lords, I support the noble Lord, Lord Phillips of Sudbury. I well remember RIPA going through and your Lordships did not like it. As a result, very unusually, we tabled an amendment to the regulations that went through. This is symptomatic of some problems and an opportunity to tidy up some of these things. I remember that one of the key points that a lot of us did not like was the lack of external checks. There were too many internal authorisations allowing things to be done which could have some quite severe consequences on personal privacy of the citizens of this country. We should do what we can to tighten that up. I have to admit that I have not looked at any of this in detail, but I trust the noble Lord, Lord Phillips, to have probably got this one right.

[The Minister of State, Home Office (Lord Henley)]

My Lords, I think I can intervene now. I apologise if I digress to mention metal thefts, civil partnerships or intercepts as evidence, but even by a quarter past two it has already been something of a long day. My noble friend Lady Hamwee talked about the need for hot towels to understand what is going on behind some of the amendments tabled by my noble friend Lord Phillips. I am grateful to discover that it will be hot towels only for my noble and Liberal friends, so I shall get on with an explanation of what I think my noble friend Lord Phillips is getting at in his amendments and what the Government’s response is. That should be useful to noble Lords. What I think these amendments laudably seek to do is provide a degree of clarity in what is obviously a complex area, but I hope I can persuade him that the existing drafting of Clause 37 and of Sections 22 and 23 of RIPA is appropriate.

Protection of Freedoms Bill

Debate between Earl of Erroll and Lord Henley

Tuesday 13th December 2011 Grand Committee

[The Earl of Erroll]

I want to go back to the business about being able to assume that there is implied consent, when it is very difficult to get it. Does the Minister not accept that inertia can be quite large among people and that, if you have to get positive consent, there will be a whole raft of parents who will not get round to doing it, for one reason or another? Therefore, you will suddenly find in these systems such a large failure to opt in because of inertia that they will be quite expensive and will have to be replaced by manual systems. That could put a huge burden on some of the schools, which would have to be paid for by the Government. Is it not much more sensible to move into a positive opt-out rather than a positive opt-in? I think that it will be much more burdensome than the Minister thinks. People are full of inertia, and you are not going to get that many people opting in.

[Lord Henley]

I accept that there can be a problem with inertia. It is what one might refer to as the “cheque is in the post” syndrome. People say that they are doing things and they do not. I suspect that we have got it right, but I am more than happy to have a further look at this if the noble Lord thinks that there will be concern over that. But this is something that schools are already doing a great deal about in terms of consulting or talking to their parents, and it is something that schools are used to. But perhaps we could talk about that at some later stage or between now and another stage.

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[Lord Henley]

Careless words they may be, as the noble Lord is saying, but I will go on using them. The simple fact is that he was suggesting you would force a child to be registered. How is he suggesting that that could be done other than by dragging the child kicking and screaming? We think that it is right at any age. I think that it would be rather unusual for a child of five to say that he was not going to do something when his parents insisted that it should be done.

[The Earl of Erroll]

If I could assist—

[Lord Henley]

No, I will not give way, because I am answering the noble Lord. I can confirm that a child of any age can refuse; similarly, if a child of 15 wants to register but one of the parents refuses, it will not happen. We are trying to get the right balance.

[The Earl of Erroll]

I was only going to try to help the Minister by saying that all that would happen is that you would not get such a service. In other words, if it was a biometric lock that allowed access to a laboratory at certain times, the child just would not get into it. They would have to decide whether they wanted access or not. If it was about school meals, and the parents said that they would only get the meals that way, the child will just not get fed. They will soon come round.

[Lord Henley]

No, we are not looking for them to “soon come round”, as the noble Earl puts it. We are suggesting that schools should have to provide some alternative arrangement so that those who do not want to have biometric processes used can still get access to school meals or the library or whatever by some other means. It might be by a PIN or a swipe card. It does not have to be, but it is very convenient for a lot of them if they can put a finger down and get out their library book or get their meal. I hope that satisfies the noble Lord.

Protection of Freedoms Bill

Debate between Earl of Erroll and Lord Henley

Tuesday 29th November 2011 Lords Chamber

[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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[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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[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.