Protection of Freedoms Bill

Lord Hughes of Woodside Excerpts

Tuesday 31st January 2012 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, I wonder whether I might speak briefly as a member of the Joint Committee on Human Rights, because Members of the House will have the benefit of our report on the Bill, which is in the Printed Paper Office. In that report the committee—which is of course all-party, and beyond party—expressed the view that the scheme in the Bill is more proportionate and more likely than the previous regime under the Crime and Security Act 2010 to pass muster with the Marper judgment of the European Court of Human Rights.

I am not going to bore the House by referring in detail to what the report says, as it explains the issues very briefly and clearly. However, one matter that we expressed concern about, which I think is relevant, is that the committee said that it could not,

“reach a firm conclusion on the proportionality of these measures”,

without fuller information, including statistics on the operation of the National DNA Database, and asked the Government,

“to collect better records on the contribution made to the prevention and detection of crime by the retention and use of biometric material in the future”.

Paragraph 8 of the report states that,

“the measures in the Bill are likely to be a significant improvement on the measures in the Crime and Security Act 2010”.

As for the three-year versus the six-year period, with a renewal of two years, the committee commended and welcomed that as a,

“decision that a narrower approach to retention is appropriate”—

and so on.

The noble Baroness makes the point that Parliament should set a six-year term rather than having a three-year term renewed on application under the Bill. It seems no more rational or sensible to adopt a six-year period than to have a discretionary ability to increase for a further two years for a cause, as experience shows, but it is a matter of judgment about the better approach that one adopts. I say simply that the Government have the support of the committee itself in its report.

[Lord Hughes of Woodside]

My Lords, I support my noble friend Lady Royall. I do so even though I am not entirely in agreement with her, simply because in my view six years is too short. I think that we should go further. This is not the time or the place to argue the whole case, but I want to place on record my total opposition to those who say, on libertarian grounds, that we should not keep DNA because it affects people’s privacy. I think of the people over the years who have been caught because DNA has been kept for 10, 15 or 20 years, sometimes not for a specific offence but because it was standard practice to take a DNA profile. I regret very much that we are going to the extent of saying that we should keep DNA only for three years, with all the qualifications that there are around that.

Technology has improved over the years, not least in the storage of DNA samples. We have seen a case recently, which is probably sub judice because it is now in appeal, where a tiny fleck of blood was found on someone’s shirt but that was enough to lead to a conviction. As I say, one defendant is appealing so I shall say no more on that.

With that one reservation, I give my noble friend my full support on this. If it comes to a vote then I shall certainly vote with her, but I think that even six years is too short. We are going far too far on the basis that people’s privacy is more important than the conviction of someone for a serious offence.

[Lord Dear]

My Lords, I have a good deal of sympathy with the view that the noble Lord, Lord Hughes of Woodside, has just expressed; it is a view that one hears frequently when talking to, as it were, the man on the Clapham omnibus. I rise neither to support nor to oppose the amendment at this stage. I have not checked with ACPO to see whether it would prefer a lift from three years to six, but in a straw poll it would probably agree that six years would be a help. However, it is incumbent on me to point out that ACPO has already expressed the view that it is comfortable with three years, following the Scottish model, and the ability to go further.

I wait to hear what the Minister says, but the nub of this is the question of balance and proportionality. It is necessary to follow to a large extent the judgment in Marper, which we all remember and which started this debate in the first place. What the noble Lord, Lord Lester of Herne Hill, has said is very pertinent; I drift very much towards his point of view. Still, I would like to hear what the Minister says, particularly on the question of balance, proportionality and how that affects the Marper judgment.

--- Later in debate ---

[Lord Hughes of Woodside]

My Lords, I rise to support my noble friend Lord Campbell-Savours, who has put the case for his amendment with eloquence and his usual attention to detail, which we should not simply shrug aside.

There is a great feeling these days that we are moving towards some sort of society that is totally controlled by the powers that be, known or unknown. People frequently call into aid the infamous—or famous, if you like—book 1984, in which Big Brother was always watching you. Of course we do not want to move down into that kind of society, and although I support the idea of a national DNA database, as I said earlier, if we cannot get one by normal means then by all means let us get it by voluntary means.

Perhaps I might correct an impression that I gave. I seem to have misled the noble Lord, Lord Henley. In an earlier debate, I spoke about the length of time for which DNA evidence might lie about unidentified. I am not suggesting for one second that such evidence would be destroyed as a result of this Bill. I am perfectly aware that it would not be. The point I was trying to make is that there is an ever increasing gap between the time when unidentified DNA evidence comes to the notice of the police and the authorities and the time when it is identified. Thus the gap between the availability of the evidence and its identification and the identification on the database is growing wider and wider.

One noble Lord said that there was an argument for keeping DNA for ever on a database. I accept that. I am not the least bit frightened about DNA material being kept if it is in the public good. It is a question of balance. The Government have decided what the balance is, and some of us might disagree, but I think there is common ground between us on the point that the objective of the exercise of collecting DNA evidence is to prosecute and to convict the guilty, and where possible to protect the innocent, who might be attacked by someone who has not been charged previously but who then can be.

I will not labour the argument except to say that a voluntary database is a very good idea. I wonder whether my noble friend might agree that we should have some sort of pilot system to try to persuade people that everyone should be on it. Perhaps we should proceed by trying to persuade people that such a thing is a good idea and to volunteer for a limited period to see what the take-up is.

With these few words, I certainly support my noble friend’s amendment, and I hope that the House will support it.

[Lord Desai]

My Lords, I apologise for not having spoken before in a debate on this Bill. I have listened to the excellent idea of my noble friend Lord Campbell-Savours about a voluntary DNA database, but I want to say just one thing. Yes, a voluntary database is a good idea, but if people do not volunteer they should not be marked down as being unco-operative. It is quite likely that some people will not like the idea of offering their DNA. It would be a very bad thing if it got to the stage where not volunteering became a black mark against you. It would detract from the virtue of my noble friend’s suggestion. Certain ethnic communities, especially women, may not want to have their DNA taken. Therefore, we must make sure that it is not held against them if they do not volunteer.