Protection of Freedoms Bill

Debate between Lord Goldsmith and Lord Henley

Tuesday 29th November 2011 Lords Chamber

[Lord Goldsmith]

Perhaps I may make some observations on the amendment that are very much in the nature of trying to understand what it is intended to do, and I am sorry if I have misunderstood it.

As I read the Bill, there are two circumstances in which material that has been taken in relation to a person who has been detained under Schedule 7 may be retained. In one case, it is retained indefinitely in circumstances where that person has previously been convicted of a recordable offence, other than a single exempt conviction, or is so convicted before the end of a further period. Therefore, if a person has been convicted previously of a recordable offence, DNA or material taken under Schedule 7 may be retained indefinitely. There is a second circumstance in which the material can be retained for six months, which is where the person has no previous convictions or only a single exempt conviction.

I regret that I do not understand at the moment what the noble Baroness’s amendment would do. It would add the words,

“and subsequently arrested for an offence directly related to the reasons for detention”.

For example, if this was the case as regards a person who had previously been convicted of a recordable offence, one would somehow have to wait to see whether that person was subsequently arrested—and I do not know within what period that would apply—for an offence that would also have to qualify as being directly related to the reasons for detention. Only in those circumstances could the material be retained. I do not understand how anyone will know at any point whether that person is going to be subsequently arrested. Nor do I understand why they should be,

“arrested for an offence directly related to the reasons for detention”.

I have to some extent demonstrated my colours in relation to DNA but, at least in the case of a person who has previously been convicted of a recordable offence, I see no reason at all why the material should not be retained. I do not see why one should add a condition whereby somehow you are going to be able to discover subsequently that a person would be arrested for an offence and, furthermore, that that offence is directly related to the reasons for the original detention—whatever, with respect, that means.

At the moment, I do not understand the amendment and, for those reasons, I could not support it.

[Lord Henley]

My Lords, I do not know whether I can bring light to the noble and learned Lord, Lord Goldsmith, but I will see what I can manage. I will speak to my noble friend’s amendments and, because they have been grouped together, in due course speak to the government amendments in my name—Amendments 24 to 37.

My noble friend helpfully set out her views on the provisions in Schedule 1 in respect of the retention of material taken as a result of a Schedule 7 examination. Schedule 7 to the Terrorism Act 2000 is a national security border power that enables examining officers to stop, search and question a person at a port or in a border area to determine whether they are someone who is or has been concerned in the commission, preparation or instigation of acts of terrorism, without reasonable suspicion that they are so concerned. Given that most major terrorist plots have involved individuals travelling across international borders to plan and prepare their attacks, it is only right that the police are given appropriate powers to examine persons, including through the taking and retention of biometric material—in this context, in order to identify and disrupt such individuals.

Imposing a requirement to arrest an individual for terrorism offences as a condition for retention and use of material taken under these powers, would fundamentally undermine their use as a means to identify those involved in terrorist activity and to gather intelligence. Such intelligence can provide vital contributions towards wider intelligence-based investigations in respect of national security. Terrorism investigations are, by their very nature, long and complex, and at the end of a Schedule 7 examination it may not be immediately apparent that an arrest is appropriate.

Attaching a requirement for arrest would furthermore offer no additional safeguards. The Bill already provides safeguards for material taken from a person detained under Schedule 7. There is a defined retention period of six months, which is considerably shorter than the three years’ retention period that applies where a person has been arrested for a terrorist offence under Section 41 of the 2000 Act. The new biometric commissioner will also have a general oversight role in respect of the retention and use of biometric material taken under Schedule 7.

I hope that that helps partially to explain matters to the noble and learned Lord and reassures my noble friend that the provisions in the Bill are transparent and will provide strong protection against unnecessary retention of material taken from individuals detained under Schedule 7 to the 2000 Act.

Turning now to the governance arrangements for the DNA databases, the subject of Amendment 41, I think it is important to note that all DNA material retained by the police will as a result of the Bill be subject to comprehensive regulation, irrespective of the databases on which it is held. Indeed, although the overwhelming majority of DNA information retained by the police will continue to be held on the National DNA Database, where this is not the case, such material will be subject to the requirements of the regimes set out in the Bill, and covered by all the relevant safeguards.

Regarding the counterterrorism database, only DNA profiles obtained by the police in relation to national security—including counterterrorism investigations—will be held on the database. It has already, in effect, been placed on a statutory footing by virtue of the Counter-Terrorism Act 2008, which provides for all material not otherwise subject to statutory restriction, and is already overseen by the National DNA Strategy Board in respect of compliance with agreed national standards and protocols.

The Forensic Science Regulator is also closely involved in ensuring that DNA analysis and validation meet acceptable standards, as he is with the National DNA Database. In addition, we should not forget the new biometrics commissioner’s general oversight function under Clause 20. If the commissioner had concerns about the governance arrangements, I am confident that he or she would not be reticent in bringing such concerns to the attention of the Home Secretary.

Perhaps I may briefly address the government amendments, starting with Amendments 24 to 28. These address three separate matters. First, Amendments 24 to 28 to Part 3 of Schedule 1 are intended to clarify the application and scope of the provisions for the retention and destruction of biometric material to which Section 18 of the Counter-Terrorism Act 2008 applies. Section 18 mostly covers biometric material acquired covertly and material supplied by overseas authorities.

The Government are clear that material obtained under Section 18 of the 2008 Act should be subject to a clear and robust regime for the destruction and retention of such material. As such, we have proposed limiting retention to three years—on the basis of a national security determination extendable for renewable two-year periods—after which it must be destroyed.

However, the proposed destruction requirements in Section 18 are not expressly limited to material obtained from known persons. We are concerned that this will lead to anonymous material and, in particular, material taken from crime scenes, having to be destroyed at the three-year point. Indeed, as currently drafted the Bill requires just that. This unintended consequence would result in the destruction of material before the police were able to identify the individual to whom it belonged, complete an investigation of an offence—potentially compromising prosecutions in the process—or make a case for its retention on national security grounds. For these reasons, the amendments are designed to prevent the automatic and premature destruction after three years of anonymous and unidentified crime scene material obtained by the police.

We do not consider that anonymous material or material taken from a crime scene—where it is also anonymous—should be subject to the same destruction requirements as material obtained from known individuals. Rather, it should still be possible for the police and other law enforcement authorities to retain such material indefinitely. However, we recognise that not all crime scene material will be anonymous in nature and as such want to make clear that where there is provision for indefinite retention of unidentified material, once identified, such material will be subject to the same retention and destruction requirements of material where the identity of its owner is known on acquisition.

Amendment 26 will exclude from Section 18 of the Counter-Terrorism Act material taken under the Terrorism Prevention and Investigation Measures Act 2011, as it will become shortly. This is consistent with the exclusion of other existing statutory regimes from the scope of Section 18 to avoid enacting overlapping and conflicting provisions. We consider that all these amendments enhance the provisions in Schedule 1 by making clear how they are intended to operate.

Amendment 29 would omit paragraphs 6(4) and 7 from Schedule 1 to the Bill. Those paragraphs, which contain provisions in respect of the retention and use of biometric material in Scotland for national security purposes have, in effect, been made redundant by the Criminal Justice and Licensing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2011, which itself gave effect to the changes that those provisions would have made. Simply put, the provisions are no longer needed and can therefore be removed from the Bill. There are three consequential amendments to Clause 113 and Schedule 10 which we will need to come back to later in the passage of the Bill.

Finally, Amendments 30 to 37 to Parts 7 and 8 of Schedule 1 extend the list of purposes to which material taken under the Police and Criminal Evidence (Northern Ireland) Order 1989 and held pursuant to a national security determination may be used. They further ensure that the order-making powers conferred on the Secretary of State to amend the Police and Criminal Evidence (Northern Ireland) Order applies in respect of provisions regarding a transferred matter where it is ancillary to an excepted or reserved matter.

Amendments 30 to 33 provide that the purposes for which material retained pursuant to a national security determination which was taken under the Police and Criminal Evidence (Northern Ireland) Order may be used are the same as for the rest of the UK. That is, that such material can be used for the prevention and detection of crime, the investigation of an offence or for identification purposes, in addition to that for national security and terrorist investigations.

Amendments 34 to 37 are technical amendments. They amend the Secretary of State’s order-making powers so that the Secretary of State is able to make provision in respect of transferred matters where such provision is ancillary to excepted or reserved matters.

I apologise for taking so much time on those government amendments, but I hope that my noble friend will be content with the explanation I have given of her Amendments 41 and 23. I hope that she will feel able to withdraw her amendment, and I will move mine in their proper place.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Goldsmith and Lord Henley

Wednesday 26th January 2011 Lords Chamber

[Lord Goldsmith]

My Lords, I was going to support this amendment even before hearing the noble and learned Lord, Lord Woolf, but his point, which I had not considered before, is one that the Minister really ought to consider. Speaking from experience of having to deal with inquiries and judicial review against government, the fact is that if you do not provide any form of outlet for local opinion and for people who are unhappy about decisions that are being taken, they will look for other ways. The legal profession is sufficiently innovative and able, as the noble and learned Lord knows, to find ways of doing it if we do not provide it. That is an enormously important point.

I would have supported the amendment in any event on the basis of the effect on the population and on localism. He and I have heard much about that in our debates, and rightly so. I look across to the noble Lord, Lord Rennard. We come from the same city of Liverpool, where localism for his party might have been born. Certainly I saw it in operation there. It is therefore surprising to see that a critical part of that—the ability of local people to say what they think about this issue—is being removed entirely. Is it not plain, as my noble and learned friend Lord Falconer said, that the real reason the Government are doing this is not because they think it will give more power to the people, which is what their programme is about, but because they are worried about delay? However, my noble and learned friend’s amendment deals with that. If the Government think that they can tighten it a little more but accept the principle, no doubt they can say so.

The really important point is this, and I support the noble and learned Lord in saying it: do not remove all opportunity to have a form of local inquiry that enables people not only to say what they think, but often to provide information and advice that, when it is heard by those who are making the final decision about boundaries, makes a difference. Therefore, I very much hope that the noble and learned Lord will be positive about this amendment. If he tinkers with it and brings back slightly different time limits, those on the Front Bench on this side will no doubt consider those carefully. However, the principle is important.

[Lord Henley]

Oh, come on.

[Lord Goldsmith]

I really must object to that comment from the noble Lord, Lord Henley, who, as far as I can see, has been in the Chamber for only the past five minutes. I have been speaking for less than that. That really was an unhelpful comment. He should know better than that.