Protection of Freedoms Bill

Baroness Berridge Excerpts

Tuesday 8th November 2011 Lords Chamber

[Baroness Berridge]

My Lords, I believe that there is an irony in the Title of the Bill. The Government are introducing a piece of legislation to protect freedoms which, to a significant extent, have been infringed by their actions. Like many unscientific people, I marvel at the advances in DNA and its role in crime detection, but I am pleased that many of the controversies surrounding the DNA database are dealt with by this legislation. I wish to speak briefly to the principles of Part 1 of the Bill, the nature of DNA material and the impact on communities.

Deeply embedded, not only in our constitution but in the conscience of citizens, is the principle that you are innocent until you are proven guilty. The corollary of this presumption is that citizens can go about their daily lives free from the unwarranted intrusion of the state or, as the European Convention on Human Rights and Fundamental Freedoms expresses it positively under Article 8, the right to respect for their “private and family life”.

At a time when the European Court of Human Rights has come in for quite a drumming, it is sobering to reflect that England and Wales needed to be told by the court that the blanket and indiscriminate retention of genetic material indefinitely of innocent people is a breach of Article 8. I am embarrassed that an 11 year- old British child was one of the applicants in the case of S and Marper v United Kingdom. How did the country of ancient liberties and the Magna Carta come to this?

I welcome Part 1 of the Bill, which at long last puts the national DNA database on a statutory footing. Further, the introduction of a nationwide framework for the destruction or retention of genetic material should mean a consistent approach to this issue in future. The Bill brings to an end the inevitable police authority postcode lottery, when the matter was left to the discretion of individual chief officers. Of course, once an offender is convicted, the issue is very different but, from my reading of the Bill, is it really proportionate that an 18 year-old who is convicted of drunkenness or driving without due care and attention should have their DNA profile retained indefinitely by the state? How is such a situation in line with the spirit of the Rehabilitation of Offenders Act? Is there not a point at which, if someone is in no further trouble, the profile is removed?

Secondly, I turn to the nature of the material. “If you are innocent, why worry about being on a database?”, has been the response of some of the tabloid press and even the Home Office under the previous Government. Apart from the fact that we live in a free country, DNA samples degrade over time. Samples do not merely identify you, like fingerprints or the DNA profile; DNA samples are you. Therefore it is valuable material, especially in unscrupulous hands. I welcome the introduction of a strict regime to deal with the destruction of DNA samples because, although I am not a pessimist, not long ago, the names, addresses, and bank details of 7.25 million families in receipt of child benefit were downloaded on to disks, put on a courier bike and never seen again. I did feel for the then Chancellor, just like I felt for Bob Quick who walked into Downing Street with highly classified information on public display. It is easily done.

I hope these serious but rare examples explain why I have been ill at ease with the thought of DNA samples stored somewhere instead of being destroyed. Also I was troubled to read in the report of the Joint Committee on Human Rights, of which I am now privileged to be a member, of the practical difficulties—or perhaps insuperable obstacles—in the destruction of innocent people's DNA profiles. Apparently innocent and guilty people’s DNA samples are held in groupings that are now difficult to separate. To avoid the misuse of these innocent profiles in the future, I hope that the Minister will be able to assure your Lordships’ House that the Bill will result in the destruction of DNA profiles, and not merely the deletion of the connection between the DNA profile and the identity of the person whose profile it is. Further, I urge the Minister to have a strict timetable under Clause 25 for the destruction of existing biometric material, although I understand that there are resource implications.

Finally, I move to the effect on particular communities. In 2007, the Home Affairs Select Committee concluded in its report, Young Black People and the Criminal Justice System, that:

“A larger proportion of innocent young black people will be held on the database than for other ethnicities given the small number of arrests which lead to convictions and the high arrest rate of young black people relative to young people of other ethnicities”.

I understand that you are three times more likely to be arrested if you are a young black man than your white counterparts. The noble and learned Baroness, Lady Scotland, in giving evidence to the Home Affairs Select Committee, predicted that soon three-quarters of young black men would be on the DNA database. According to the Human Genetics Commission, this prediction came true in November 2009. By the end of last year, just over 500,000 black people in England and Wales were on the DNA database. Not only is this a travesty, but it is hard not to believe the anecdotal evidence, supported sometimes by former senior police officers, that the power of arrest has on occasion been used merely to obtain DNA. Against this background, I ask the Minister to consider whether the commissioner should have a defined role in monitoring the ethnic profiles of people on the database.

How did the country of ancient liberties and the Magna Carta come to this? It is not a rhetorical question. Infringements on citizens’ liberties often must occur when public safety is at risk. But people, and Governments, often overreact to a threat to their safety. That is why your Lordships’ House had to prevent the introduction of excessive detention periods. Even if DNA techniques were like “CSI: Miami”, the state keeping the DNA of 1 million innocent people would still be an overreaction. I welcome this Bill.